The opinion
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
DORA I. BROWN,
Plaintiff,
-V.- 19 Civ. 6328 (KPF)
AUTOMATTIC INC.; BLUEHOST- ORDER
ENDURANCE INTERNATIONAL
GROUP; and TWITTER,
Defendants.
KATHERINE POLK FAILLA, District Judge:
On July 28, 2020, the Court held an initial pretrial conference in this
action. At the conference, Plaintiff requested leave to file a second amended
complaint. That application is GRANTED. The Court ORDERS Plaintiff to file
her Second Amended Complaint on or before September 11, 2020. Given that
Plaintiff is proceeding pro se, the Court has attached to this Order instructions
on how to file her Second Amended Complaint, as well as copies of Defendants’
prior pre-motion letters. Defendants have until October 9, 2020, to inform the
Court whether they wish to file an Answer or move to dismiss the Second
Amended Complaint.
SO ORDERED.
Dated: July 28, 2020 7 4
New York, New York Kittens fal. flr
KATHERINE POLK FAILLA
United States District Judge
A copy of this Order was mailed by Chambers to:
Dora I. Brown
14 Bast 28th Street
#236
New York, NY 10016
ky @ NO) United States District Court
ay Southern District of New York
eee) Temporary Pro Se Filing@nysd.uscourts.gov.
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FAQs: SELF REPRESENTATION DURING THE PANDEMIC
How do I file papers?
e EMAIL. The fastest way to file documents at this time is by email. You may
submit documents by reviewing the court’s instructions for emailing
documents, available at https://nysd.uscourts.gov/forms/instructions-filing-
documents-email. The court has created a temporary email address,
Temporary Pro Se Filing@nysd.uscourts.gov, for self-represented litigants
to use to email their documents. Documents submitted that do not comply
with the instructions will be disregarded.
e DROP BOx. If you are unable to email your documents, you may drop
them off at the courthouse. (See drop box location information below.)
e MAIL. You may still mail documents to the Daniel Patrick Moynihan
(DPM) Courthouse, Pro Se Intake Unit, 500 Pearl Street, New York, NY
10007, or for White Plains matters, the Charles L. Brieant (CLB) Courthouse,
Pro Se Intake Unit, 300 Quarropas Street, White Plains, NY 10601.
Overnight delivery service is also accepted.
e Please note that filings submitted by email are likely to be processed more
quickly than filings made by drop box or mail.
Is the courthouse open?
e The DPM Courthouse is open to submit documents at the “drop box.”
The drop box is located in the lobby of the 200 Worth Street entrance to
the DPM Courthouse, next to the security station and is available 24
hours a day and 7 days a week to drop off filings. Clerk’s Office staff is
available to retrieve drop box filings only during the hours of 8:30 a.m.
to 4:00 p.m., Monday through Friday. The Thurgood Marshall
Courthouse located at 40 Foley Square is closed to the public. The Pro Se
Intake Unit is not providing in-person assistance, but the Unit is
answering questions by telephone at (212) 805-0175.
500 PEARL STREET; 40 FOLEY SQUARE | NEW YORK, NY 10007
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• The CLB Courthouse in White Plains located at 300 Quarrapos is open
to submit documents at the drop box, from 8:30 a.m. to 4:00 p.m. The
White Plains drop box is located in the lobby of the CLB Courthouse,
next to security.
• Emergency civil applications received during the hours of 8:30 a.m. to
4:00 p.m., Monday through Friday, may be handled by the Part I Judge,
but you must first call (212) 805-0140 in Manhattan or (914) 390-4000 in
White Plains to alert staff of an emergency application after submitting
the filing in the drop box at one of the designated courthouse locations.
• All documents submitted by drop box must be time stamped on the first
page of each document. A stamping machine is located next to each
drop box.
Will the judge still hold conferences in my case?
• YES. Cases are still proceeding, and judges may hold telephone
conferences. The judge will let you know when and how your conference
will proceed. But judges are not holding in-person conferences.
Are cases still being referred to mediation?
• YES. Mediations are being conducted by telephone and videoconference, or
are being scheduled to take place in person once it is safe to meet again. Pro
bono counsel is still being assigned.
Can I call the Pro Se Intake Unit?
• YES. You may call (212) 805-0175 to speak with someone in the Pro Se
Intake Unit, but because the courthouse is operating with greatly reduced
staffing, someone may not immediately answer your call. Please try to call
at a different time if you are experiencing a wait.
Is the NYLAG legal-advice clinic open?
• YES. Limited scope representation will continue to be provided, but only
by appointment and only over the phone. You may call the clinic at
(212)659-6190 and leave a message with your telephone number, and
someone will return your call. More information regarding the clinic’s
current schedule is available here, https://nysd.uscourts.gov/attorney/legal-
assistance, and in NYLAG’s recent flyer.
Can I start a new case?
• YES. New cases may be filed by emailing documents to:
Temporary Pro Se Filing@nysd.uscourts.gov. Instructions for filing new
cases are on the court’s website.
• If you are unable to email your documents, you must submit them by mail
to the Pro Se Intake Unit at 500 Pearl Street.
• You may also submit a new case by leaving your documents in one of the
courthouse drop boxes.
Will I still receive court orders?
• YES. But mail may be delayed. If you have an email address, you can
receive court orders more quickly by completing a signed consent to
electronic service form to receive court documents and emailing this
document to Temporary Pro Se Filing@nysd.uscourts.gov.
Will the U.S. Marshals Service (USMS) still serve my complaint?
• YES. The USMS will continue to serve summonses and complaints by
regular mail, but a standing order issued by this Court has suspended
personal service by the USMS until further notice. Service by mail may be
delayed.
Can I ask for an extension of time?
• YES. If you require more time to submit your documents, you may request
an extension of time from the judge. To request an extension, you must file
a letter motion, by either emailing the letter to
Temporary Pro Se Filing@nysd.uscourts.gov, mailing the letter to the Pro
Se Unit at 500 Pearl Street, or dropping the letter off at the drop box.
SM I T H MA Z U R E , P . C .
A T T O R N E Y S A T L A W
Long Island Office: New Jersey Office:
200 Old Country Road, Suite 590 111 John Street 92 East Main Street, Suite 402
Mineola, New York 11501 New York, New York 10038 Somerville, New Jersey 08876
(516)414-7400 (212)964-7400 (908)393-7300
(516)294-7325 Fax Fax (212) 374-1935 Fax (908) 231-1030
Writer’s Direct Dial: (212) 485-8724 Please Respond to:
asclar@smithmazure.com New York, NY
April 16, 2020
Honorable Katherine Polk Failla
United States District Court
Southern District of New York
Thurgood Marshall Courthouse
40 Foley Square, Courtroom 618
New York, New York
Re: Dora I. Brown v. Automattic Inc., Bluehost, Twitter, Inc.
Index No. : 19 Civ. 6328 (KPF)
Our File : SMC-00132
Dear Honorable Failla:
This firm is local counsel for defendant Automattic Inc. in the above-referenced action,
and together with Melinda Morton of Procopio, Cory, Hargreaves & Savitch, LLP, who is lead
counsel for Automattic, we submit this letter as required by the Court’s Notice of Initial Pretrial
Conference in Pro Se Action, Dkt. No. 10.
(1) A brief statement of the nature of the action and the principal defenses thereto
Ms. Brown has sued Automattic, Twitter and Bluehost. It is somewhat unclear what Ms.
Brown’s causes of action are. The case appears to center around her request to transfer the
contents of a WordPress.com account to Bluehost, and then her confusion as to why the domain
name was not also transferred. Automattic’s employees offered to assist her, as the documents
attached to the amended complaint show, but instead, Ms. Brown filed this lawsuit.
The initial Complaint lists the cause of action as fraud. Automattic’s principal defense is
failure to state a claim. See Dkt. No. 2.
The Amended Complaint references copyright and trademark rights, but Ms. Brown does
not identify any copyrighted or trademarked material that Automattic allegedly infringed.
Automattic’s principal defense is failure to state a claim. See Dkt. No. 6.
Page 2
April 16, 2020
(2) A brief explanation of why jurisdiction and venue lie in this Court
Automattic is incorporated in Delaware and its principal place of business is in
California. Ms. Brown alleges she was injured in the Southern District of New York and that
she has sustained damages in excess of $75,000. Automattic denies that it caused any damage to
Ms. Brown. Automattic’s terms of service that Ms. Brown agreed to state that “The proper
venue for any disputes arising out of or relating to the Agreement and any access to or use of our
Services will be the state and federal courts located in San Francisco County, California.”
Further, any such dispute is governed by California law.
(3) A statement of all existing deadlines, due dates, and/or cut-off dates
The Court set an initial pretrial conference for April 23, 2020 at 4:00 p.m. Automattic’s
response to the Amended Complaint is due on April 27, 2020. There are no other due dates or
deadlines of which Automattic is aware.
(4) A brief description of any outstanding motions
There are no outstanding motions.
(5) A brief description of any discovery that has already taken place (including any
discovery pursuant to S.D.N.Y. Local Rule 33.2) and of any discovery that is necessary for
the parties to engage in meaningful settlement negotiations
There is no discovery that has taken place. Automattic has attempted to engage with Ms.
Brown to settle the case, but she has not been willing to discuss settlement. Automattic does not
believe that discovery would assist in settlement negotiations.
(6) Any other information that the parties believe may assist the Court in advancing
the case
Automattic intends to move to dismiss the Amended Complaint for failure to state a
claim and/or for a more definite statement. Ms. Brown has not alleged any actions by
Automattic that constitute fraud, copyright infringement or trademark infringement. None of the
documents attached to the Amended Complaint support any of these three causes of action.
Automattic anticipates filing a three page pre-motion letter next week pursuant to the Court’s
rules.
Respectfully yours,
SMITH MAZURE, P.C.
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ALAN SCLAR
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cc: Dora I. Brown
14 East 28th Street, Apartment 236
New York, NY 10016
Plaintiff Pro Se
Cozen O'Connor (Broadway)
45 Broadway Atrium, Suite 1600
New York, NY 10006
(212) 453-3808
Fax: (646) 588-1450
Attorneys for Bluehost-Endurance International Group
Perkins Coie LLP
1155 Avenue of the Americas
22nd Floor
New York, NY 10036
(212) 261-6919
Attorneys for Twitter, Inc.
3
¢ 2 COZEN
O'CONNOR
April 16, 2020 William Lesser
Direct Phone 212-453-3808
Direct Fax 646-588-1450
wlesser@cozen.com
VIA ECF
The Honorable Katherine Polk Failla
United States District Judge
Southern District of New York
40 Foley Square, Room 2103
New York, NY 10007
Re: Doral. Brown vy. Automattic, et al.: Case No.: 1:19-cv-06328-KPF
Dear Judge Failla:
We represent Defendant Bluehost Inc. (“Bluehost”) in the above-captioned action, and
we respectfully submit this correspondence pursuant to Your Honor’s January 28, 2020 Notice of
Initial Pretrial Conference in Pro Se Action. See Doc. 10.
As described below, pro se Plaintiff Dora Brown (‘Plaintiff’) has not alleged any
wrongdoing by Bluehost, and her Amended Complaint (Doc. 6) does not contain any factual
allegations that would support a cause of action against Bluehost. Therefore, Bluehost should be
dismissed from this action.
I. Brief Statement Of The Nature Of The Action And The Principal Defenses Thereto
Although Plaintiff's pleadings are difficult to decipher, it appears that in her initial
complaint, Doc. 2, she asserted a single claim of fraud against Defendants Automattic Inc.
(“Automattic”), Twitter, Inc. (“Twitter”), and Bluehost,’ based on the migration of her website
from Automattic’s hosting service to Bluehost’s hosting service. See Doc. 5, at 2. Plaintiff filed
her Amended Complaint after the Court dismissed her complaint sua sponte for lack of subject
matter jurisdiction. See Doc. 5, at 6. Plaintiff's Amended Complaint contains no new factual
allegations, and no claim of wrongdoing by Bluehost. As a result, Plaintiff's claim against
Bluehost must be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6), as Plaintiff's
' Bluehost is a domain name registrar, meaning that it is responsible for managing the reservation
of Internet domain names registered through it by members of the public. As relevant to this
action, Bluehost also offers web hosting services, whereby a customer pays Bluehost a monthly
fee to lease space on Bluehost’s servers to host their website.
A5 Broadway, 16" Floor New York, NY 10006
Page 2
allegations “could not raise a claim of entitlement to relief.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 558 (2007).
The unspecified fraud claim in Plaintiff’s initial complaint also fails as a matter of law.
See Doc. 2, at 2; Doc. 5, at 2. This claim requires “(1) a material representation or omission of
fact; (2) made with knowledge of its falsity; (3) with scienter or an intent to defraud; (4) upon
which the plaintiff reasonably relied; and (5) such reliance caused damage to the plaintiff.”
DeAngelis v. Corzine, 17 F. Supp. 3d 270, 280 (S.D.N.Y. 2014). Moreover, “allegations of fraud
are subject to a heightened pleading standard,” which requires that Plaintiff “(1) specify the
statements that the plaintiff contends were fraudulent, (2) identify the speaker, (3) state where
and when the statements were made, and (4) explain why the statements were fraudulent.”
Nakahata v. New York-Presbyterian Healthcare Sys., Inc., 723 F.3d 192, 197-198 (2d Cir. 2013).
Plaintiff does not allege that Bluehost made any representation, or that Plaintiff relied on any
such representation, or that she was damaged as a result of any such representation. Therefore,
Plaintiff’s claim fails as a matter of law.
Given that Plaintiff has already had an opportunity to amend her pleading, and given
Plaintiff’s history of filing “vexatious or frivolous litigation,”2 see Doc. 5, at 6, Plaintiff should
not be granted leave to amend again. Bluehost should be dismissed from this matter with
prejudice.
II. Brief Explanation Of Why Jurisdiction And Venue Lie In This Court
Plaintiff is attempting to invoke the Court’s diversity jurisdiction under 28 U.S.C. § 1332,
see Doc. 6, at 4, which requires that Plaintiff (a) plead that she and the defendants are citizens of
different states, and (b) “allege to a ‘reasonable probability’” that her claim exceeds $75,000.
Doc. 5, at 4-5. Bluehost is a Utah corporation headquartered in Massachusetts, and is therefore
of diverse citizenship from Plaintiff, who is a New York resident. However, Plaintiff has not
alleged facts necessary to meet the amount in controversy requirement, as she merely speculates
that she can meet this threshold “since [her website] was also a web based business plan in the
process of being constructed.” See Doc. 6, at 25. Such damages are not recoverable as a matter
of law, because they are “speculative, expected proceeds” of a theoretical business. See Nwanza
v. Time, Inc., 125 Fed. App’x 346, 348 (2d Cir. 2005). Therefore, “Plaintiff has not pleaded facts
that would, if true, enable her to recover $75,000 or more.” See Doc. 5, at 5.
III. Statement Of All Existing Deadlines, Due Dates, And/Or Cut-off Dates
The Court has set an initial pretrial conference in this matter for April 23, 2020, at 4:00
p.m. ET. Bluehost’s deadline to respond to the Amended Complaint is April 27, 2020. If
2 This lawsuit was one of approximately eight cases Plaintiff filed in this court “[i]n a matter of
weeks,” see Doc. 5, at 6, all of which were dismissed sua sponte for lack of subject matter
jurisdiction.
Page 3
Bluehost is not otherwise dismissed from this lawsuit before its responsive pleading deadline,
Bluehost intends to request a pre-motion conference regarding its proposed motion to dismiss, in
accordance with Section 4(A) of Your Honor’s Individual Rules of Practice in Civil Cases, see
Doc. 10, at 8-9.
IV. Brief Description Of Any Outstanding Motions
Bluehost does not have any motions outstanding, and is unaware of other outstanding
motions.
V. Brief Description Of Any Discovery That Has Already Taken Place And Any
Discovery Necessary For The Parties To Engage In Meaningful Settlement
Negotiations
No discovery has taken place as to Bluehost, and no discovery is necessary to resolve this
matter. Bluehost has attempted to confer with Plaintiff regarding this matter, but does not
believe that further discussions would be fruitful at this time.
VI. Other Information That May Assist The Court In Advancing The Case
Bluehost does not have other information that it believes may assist the Court in
advancing this matter.
Respectfully submitted,
COZEN O’CONNOR
s/William Lesser
PERKINS cole 1155 Avenue of the Americas @ +1.212.262.6900
22nd Floor @ +1.212.977.1649
New York, NY 10036-2711 PerkinsCoie.com
Adam H. Schuman
ASchuman@perkinscoie.com
April 16, 2020 D. +1.212.261.6919
F. +1.212.399.8009
The Honorable Judge Katherine Polk Failla
United States District Court
Southern District of New York
Thurgood Marshall United States Courthouse
40 Foley Square, Room 2103
New York, NY 10007
Re: Brown v. Automattic, Inc., et al., No. 1:19-cv-06328 (KPF)
Initial Pretrial Conference Letter on Behalf of Defendant Twitter, Inc.
Dear Judge Failla:
This firm represents defendant Twitter, Inc. (“Twitter”) in the referenced action, and we submit
this letter seven days before the initial pretrial conference set for April 23, 2020 at 4:00 p.m., as
required by this Court’s Notice of Initial Pretrial Conference in Pro Se Action, ECF No. 10.
As described below, pro se plaintiff Dora Brown’s Amended Complaint nominally identifies
Twitter as a defendant, but contains no factual allegations or causes of action asserted against
Twitter. Accordingly, Twitter should be dismissed from this case.
Brief Statement of The Nature of This Action and Principal Defenses Thereto
Plaintiff has named Twitter as a defendant in this lawsuit but asserts no allegations against
Twitter in the operative Amended Complaint. See ECF No. 6. Twitter has attempted to confer
with Plaintiff but has been unable to reach her. Because there are no allegations against Twitter,
and because Plaintiff has already had an opportunity to amend her complaint, there is no basis
for this case to proceed against Twitter or to allow Plaintiff leave to amend again. This is
particularly so given that the Court already has warned Plaintiff against filing vexatious or
frivolous litigation. See ECF No. 5. Twitter should be dismissed from this matter with prejudice.
Brief Explanation of Why Jurisdiction and Venue Lie in This Court
There are no allegations against Twitter in the operative Amended Complaint, so Twitter is
unable to discern what Plaintiff believes might be a basis for personal jurisdiction or for venue to
lie in this Court as to Twitter. With regard to jurisdiction and the statutory requirements of 28
U.S.C. § 1332, Twitter is headquartered in San Francisco, California, and is therefore of diverse
citizenship from Plaintiff, who is a resident of New York. Although Plaintiff claims to have
147898983.2
April 16, 2020
suffered $75,000 in damages, no allegations are asserted against Twitter so Twitter cannot be
liable for any damages, and no subject matter jurisdiction exists. Lastly, with regard to venue,
Twitter’s Terms of Service, which would apply to any putative claims brought by a Twitter
account holder, require that any disputes regarding the provision of its service be brought only in
the state or federal courts in San Francisco County, California.
Statement of All Existing Deadlines, Due Dates, and/or Cut-off Dates
This Court has set an initial pretrial conference in this matter on April 23, 2020, at 4:00 p.m.
Twitter’s deadline to respond to the Amended Complaint is April 27, 2020. If Twitter is not
otherwise dismissed from this lawsuit before its upcoming response deadline, Twitter seeks to
move to dismiss the Amended Complaint, including based on its failure to plead any factual
allegations or causes of action against Twitter.
Brief Description of Any Outstanding Motions
Twitter does not have any motions outstanding and is unaware of other outstanding motions.
Brief Description of Any Discovery That Has Already Taken Place and Any Discovery
Necessary for the Parties to Engage in Meaningful Settlement Negotiations
No discovery has taken place as to Twitter. Given that Plaintiff’s dispute is with other parties,
there is no discovery necessary or settlement discussions to undertake as to Twitter.
Other Information That May Assist the Court in Advancing the Case
Twitter does not have other information that it believes may assist the Court in this manner.
Respectfully submitted,
/s/ Adam H. Schuman
Adam H. Schuman
Counsel for Defendant Twitter, Inc.
cc: All parties via ECF