Rhonda M. Fosbinder #172253
FOSBINDER & FOSBINDER
A Law Corporation
(808)244-1524 tel.
(808)244-3971 fax
Attorneys for Plaintiff
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
COMPLAINT
Comes now
Plaintiff, MICHAEL J. ROSSI, d.b.a. INTERNET MOVIES.COM, to allege against the
Defendants, and each of them, as follows:
INTRODUCTORY ALLEGATIONS
1.
This action is brought under diversity jurisdiction
against defendants for damages as well as declaratory and injunctive relief for
interference with prospective business advantage, interference with contractual
relations, trade libel/defamation, and intentional infliction of emotional
distress for the shutting down of Plaintiff’s business with his internet
service provider and publicizing false statements about the nature of that
business.
JURISDICTION AND VENUE
2.
This Court’s jurisdiction is invoked pursuant to 28
U.S.C. § 1332, this being an action arising between parties domiciled in
different states with the amount in controversy in excess of $75,000.
3.
This Court's jurisdiction is also invoked under 28
U.S.C. §§ 2201 and 2202, this being a case of actual controversy where the
relief sought by Plaintiff, among other things, includes a declaration of the
parties' respective rights and obligations.
4.
Venue is proper in the District of Hawaii pursuant to
28 U.S.C. § 1391(a)(2), in that the subject matter of
this action arose in this district, because the events and omissions on which
the subject claim is bases occurred in this district, and all defendants are
subject to personal jurisdiction in this district, because of their contacts
with and activities in this district.
PARTIES
5.
Plaintiff MICHAEL J. ROSSI (“Rossi”) is and at all
times herein relevant was a competent adult individual and doing business as
INTERNETMOVIES.COM, a registered
6.
Defendant MOTION PICTURES ASSOCIATION OF AMERICA INC.
(“MPAA”) is and at all times herein relevant was a registered trade association
and corporation that, amongst other things, enforces copyrights and engages in
“anti-piracy” operations on behalf of its member motion picture artists and
studios. Defendant MPAA does business
nationwide and internationally, with its principal place of business located
and headquartered in
7.
Defendant HEMANSHU NIGAM (“Nigam”) is and at all times
herein relevant was the Director of Worldwide Internet Enforcement for
Defendant MPAA, who spoke to and sent letters to Plaintiff Rossi’s internet
service provider alleging copyright violations by Rossi and demanding that
Rossi’s internet service provide disable access to Rossi’s site.
8.
Defendants, and each of them, are at all times herein
mentioned the agents, servants and/or employees of one another in doing the
acts and omissions herein complained of, and have been and are acting within
the course and scope of said agency and/or employment.
9.
Plaintiff does not presently know the true names and
capacities of the Doe defendants, but will amend this complaint as soon as they
become ascertained.
FIRST CLAIM FOR RELIEF
(Tortious Interference With
Contractual Relations)
10.
Plaintiff hereby realleges and incorporate by
reference each and every allegation set forth at paragraphs 1 through 11,
above, as though fully set forth herein.
11.
Plaintiff Rossi owns and operates an internet website
known as “InternetMovies.com”. Plaintiff’s
website consists of an online directory of artists’ works as well as an
internet news magazine providing site members with information and resources
about movies on the internet.
Plaintiff’s website does not and at all times herein relevant did not engage
in the unauthorized distribution of copyrighted motion pictures.
12.
In April of 2001, Plaintiff had a continuing
contractual relationship for internet hosting with an internet service provider
known as FlexNet Inc, located in
13.
On April 3, 2001, Defendants sent an e-mail addressed
to “webmaster@internetmovies.com” making the same allegations and attaching a
copy of the March 26, 2001, letter to FlexNet Inc., and demanding that
Plaintiff cease and desist from the conduct complained of by Defendants. Plaintiff advised the president of FlexNet
Inc. that the allegations of Defendant were false and that his website did not
engage in the unauthorized downloading or distribution of copyrighted movies,
and FlexNet Inc. thereby initially refused to take any action against
Plaintiff.
14.
On
15.
In response to said
16.
Plaintiff did
not engage in the unlawful conduct alleged by and sworn to under penalty of
perjury by Defendants, therefore by corresponding with and threatening FlexNet
Inc. in such a manner as to cause FlexNet Inc. to cancel its contract with
Plaintiff, all as described hereinabove, Defendants have intentionally and
negligently interfered with Plaintiff’s contractual relationship with FlexNet
Inc. through improper means and with reckless disregard for the consequences of
their actions.
17.
As a direct and proximate result of the conduct of
Defendants as alleged hereinabove, Plaintiff has suffered general and special
pecuniary and non-pecuniary damages in an amount to be proven at trial.
18.
Defendants’ actions were undertaken willfully,
wantonly, maliciously and in reckless disregard for Plaintiff’s rights, and as
a direct and proximate result thereof Plaintiff suffered economic and emotional
damage in a total amount to be proven at trial, therefore Plaintiff seeks
exemplary and punitive damages in an amount sufficient to deter said Defendant
and others from similar future wrongful conduct.
SECOND CLAIM FOR RELIEF
(Tortious Interference With
Prospective Economic Advantage)
19.
Plaintiff hereby realleges and incorporate by
reference each and every allegation set forth at paragraphs 1 through 18,
above, as though fully set forth herein.
20.
Plaintiff had a legitimate and identifiable
prospective business advantage of being the first of his type of internet site
in the highly competitive digital marketplace and being established with his
internet service provider. Defendants
were aware of Plaintiff’s prospective business advantage and by engaging in the
unjustified conduct described more fully hereinabove, Defendants intentionally,
negligently, and improperly interfered with Plaintiff’s prospective economic
advantage in the internet marketplace.
21.
As a direct and proximate result of the conduct of
Defendants as alleged hereinabove, Plaintiff has suffered general and special
pecuniary and non-pecuniary damages in an amount to be proven at trial.
22.
Defendants’ actions were undertaken willfully,
wantonly, maliciously and in reckless disregard for Plaintiff’s rights, and as
a direct and proximate result thereof Plaintiff suffered economic and emotional
damage in a total amount to be proven at trial, therefore Plaintiff seeks
exemplary and punitive damages in an amount sufficient to deter said Defendant
and others from similar future wrongful conduct.
THIRD CLAIM FOR RELIEF
(Libel and Defamation)
23.
Plaintiff hereby realleges and incorporates by
reference each and every allegation set forth at paragraphs 1 through 22,
above, as though fully set forth herein.
24.
Commencing on
25.
The accusations published to third parties by
Defendants of unlawful conduct by Plaintiff were false, unprivileged, and
defamatory, and Plaintiff did not at any time engage in the unlawful conduct
alleged by, and sworn to under penalty of perjury by, Defendants. Defendants’ publication of said false and
defamatory statements was intentionally and maliciously made and/or made with
reckless disregard for the truth or falsity.
26.
Because the false and defamatory statements published
by Defendants impute to Plaintiff unlawful conduct and also injured Plaintiff
in his business, the statement of Defendants constitute
libel per se for which Plaintiff is presumptively entitled to recover damages
without proof of same.
27.
As a direct and proximate result of the conduct of
Defendants as alleged hereinabove, Plaintiff has suffered general and special
pecuniary and non-pecuniary damages in an amount to be proven at trial.
28.
Defendants’ actions were undertaken willfully,
wantonly, maliciously and in reckless disregard for Plaintiff’s rights, and as
a direct and proximate result thereof Plaintiff suffered economic and emotional
damage in a total amount to be proven at trial, therefore Plaintiff seeks
exemplary and punitive damages in an amount sufficient to deter said Defendant
and others from similar future wrongful conduct.
FOURTH CLAIM FOR RELIEF
(Intentional Infliction of Emotional Distress)
29.
Plaintiff hereby realleges and incorporate by reference
each and every allegation set forth at paragraphs 1 through 28, above, as
though fully set forth herein.
30.
By contacting Plaintiff’s webmaster and his internet
service provider and defaming and shutting down his business, Defendants
intentionally inflicted extreme emotional distress upon Plaintiff. Defendants’ conduct was unreasonable and
outrageous and exceeds the bounds usually tolerated by decent society, and was
done willfully, maliciously and deliberately with the intent to cause Plaintiff
severe mental and emotional pain, distress, and anguish and loss of enjoyment
of life, or was done with reckless indifference to the likelihood that such
behavior would cause such severe emotional distress and with utter disregard
for the consequences of such actions.
31.
The behavior and conduct on the part of Defendants as
described hereinabove was so extreme and outrageous as
to be capable of causing Plaintiff severe emotional distress and has in fact
caused Plaintiff severe mental anguish, distress, depression, and humiliation.
32.
As a direct and proximate result of the conduct of
Defendants as alleged hereinabove, Plaintiff has suffered non-pecuniary damages
in an amount to be proven at trial.
Defendants’
actions were undertaken willfully, wantonly, maliciously and in reckless
disregard for Plaintiff’s rights, and as a direct and proximate result thereof
Plaintiff suffered economic and emotional damage in a total amount to be proven
at trial, therefore Plaintiff seeks punitive damages in an amount sufficient to
deter said Defendant and others from similar future wrongful conduct.
FIFTH CLAIM FOR RELIEF
(Injunctive and Declaratory Relief)
33.
Plaintiff hereby realleges and incorporates by
reference each and every allegation set forth at paragraphs 1 through 32,
above, as though fully set forth herein.
34.
As a direct and proximate result of the foregoing
conduct by Defendants, Plaintiff has sustained and will continue to sustain
irreparable damage to his business and has no adequate remedy at law to prevent
repeated unfounded interference with his business relationships by Defendants,
and is therefore entitled to an injunction enjoining Defendants and its
officers, agents, directors, employees, licensees and all other persons acting
by, through, or in concert with Defendants, from engaging in further acts
interfering with his existing business, Internetmovies.com.
35.
Furthermore, an actual, present, and substantial
controversy exists between the parties, and a
declaration as to the respective rights and duties of the parties, pursuant to
28 U.S.C. §§ 2201 and 2202, is necessary and appropriate.
PRAYER FOR RELIEF
WHEREFORE Plaintiff requests the
following relief against Defendants, and each of them, as follows:
1.
For an award of general, special, consequential and/or
continuing damages from the defendants, and each of them, plus prejudgment
interest thereon, according to proof or by operation of law;
2.
For damages for per se libel in an amount to be
determined according to proof or by operation of law;
3.
For an award of exemplary and punitive damages to the
extent allowed by law and in an amount according to proof;
4.
For preliminary and permanent injunctive and
declaratory relief;
5.
For attorneys’ fees and costs of suit herein pursuant
to statute or as otherwise may be allowed by law; and,
6.
For such other relief as this Court may deem just and
proper.
DEMAND FOR JURY TRIAL
Plaintiff hereby demands trial by
jury on all issues triable by right to a jury.
Dated this 19th day of April, 2002
FOSBINDER
& FOSBINDER
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By: |
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James H. Fosbinder #7070 Rhonda M. Fosbinder #6986 |