                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA

_________________________________________
                                          )
JASON VOGEL,                              )
                                          )
      Plaintiff,                          )
                                          )
              v.                          )                  Case No. 16-cv-1598 (APM)
                                          )
GO DADDY GROUP, INC., et al.,             )
                                          )
      Defendants.                         )
_________________________________________ )

                                  MEMORANDUM OPINION

       Before the court is Plaintiff Jason Vogel’s motion for leave to amend his complaint.

Plaintiff wishes to voluntarily dismiss Defendant Go Daddy Group, Inc., and to add facts that he

contends suffice to establish the court’s subject matter jurisdiction in a lawsuit continuing only

against four unnamed “Doe” defendants. Prospective Amicus Freedman + Taitelman LLP, a Los

Angeles-based law firm, received a subpoena from Plaintiff as part of Plaintiff’s efforts at early,

jurisdictional discovery. It argues in proposed amicus briefs that it need not comply with that

subpoena because this court lacks jurisdiction over Plaintiff’s lawsuit.

       For the reasons that follow, the court concludes allowing Plaintiff leave to amend would

be futile because his proposed amended complaint does not plausibly allege that this court has

subject matter jurisdiction. Accordingly, the court denies Plaintiff leave to amend, denies as moot

Freedman + Taitelman LLP’s motions for leave to file as amicus curiae, and dismisses the case.

I.     BACKGROUND

       Plaintiff filed suit in this court on August 5, 2016, seeking relief under state law against

The Go Daddy Group, Inc. (“GoDaddy”), and four unnamed defendants (“the Doe Defendants”).
See Compl., ECF No. 1 [hereinafter Compl.]. According to Plaintiff’s Complaint, Plaintiff is a

citizen of California who owns and manages real estate in Washington, D.C., New Mexico, and

California. Id. ¶ 1. In early 2016, the four Doe Defendants purportedly created a website called

“www.TheRealJasonVogel.com,” hosted by GoDaddy, on which they anonymously posted

tortious and defamatory statements about Plaintiff, including accusing him “of being a ‘penny-

pinching’ ‘slum-lord’” who evicted his tenants without cause.          See id. ¶¶ 3, 9–10, 14–16.

Additionally, on or about July 1, 2016, the Doe Defendants allegedly distributed flyers in

Plaintiff’s neighborhood that contained a photograph of Plaintiff and “a large heading reading

‘I want to rip you off’” and directed the reader to “www.TheRealJasonVogel.com.” Id. ¶¶ 18–19.

These accusations also appeared on Twitter and Facebook, in addition to accusations that Plaintiff

did not maintain or improve his properties. See id. ¶¶ 3–6, 21–23. Plaintiff seeks relief against

the Doe Defendants for defamation, tortious interference with business relations, false light,

intentional infliction of emotional distress, and trespass. See id. ¶¶ 26–53. Additionally, Plaintiff

seeks preliminary and permanent injunctions against All Defendants that require them to remove

the online statements, retract those prior statements, and prevent the Doe Defendants from posting

new defamatory statements online or disseminating defamatory fliers. See id. at 9–10. Plaintiff

claims $1 million in damages. Id. at 9.

       This court extended the deadline by which Plaintiff had to serve All Defendants and

permitted Plaintiff to seek limited early discovery. The Complaint maintained that the court had

subject matter jurisdiction over the case under the diversity statute, 28 U.S.C. § 1332(a), because

Plaintiff is a resident of California and GoDaddy is incorporated in Delaware and headquartered

in Arizona. See id. ¶¶ 1, 2, 8. Although Plaintiff could not list the Doe Defendants’ places of

citizenship at the time he filed the Complaint, the Complaint states that Plaintiff “intends to seek



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immediate discovery from Defendant website host GoDaddy, and also from non-defendants

www.Facebook.com, and www.Twitter.com to determine the identity of” each Doe Defendant.

Compl. ¶¶ 3–6. The court granted Plaintiffs’ three motions for extension of time and provided

Plaintiff the opportunity to conduct early discovery to learn the Doe Defendants’ identities.

See Order, ECF No. 8; Order, ECF No. 6; Minute Order, Nov. 4, 2016.

       Plaintiff’s early discovery efforts prompted the present inquiry into whether the court has

jurisdiction to hear this case. After receiving a subpoena from Plaintiff, the law firm of Freedman

+ Taitelman LLP (“Prospective Amicus”) filed a motion for leave to proceed as amicus curiae,

opposing the court’s continued extensions of time for Plaintiff to serve the Doe Defendants on the

ground that the court lacks jurisdiction over the case. Prospective Amicus’s brief asserts that this

court lacks subject matter jurisdiction because Plaintiff’s Complaint does not allege complete

diversity amongst the parties; GoDaddy purportedly is immune from suit, and diversity jurisdiction

does not exist when the only remaining defendants are the unnamed Doe Defendants. See Mot.

for Leave to File as Amicus Curiae, ECF No. 9, Proposed Amicus Br., ECF No. 9-2, at 4–6. Even

if complete diversity exists, the brief concludes, the court lacks personal jurisdiction over the Doe

Defendants based on the limited factual allegations in the Complaint. Id. at 6–8.

       The court did not rule on Prospective Amicus’s Motion but stayed discovery and directed

Plaintiff to file a brief that addressed the court’s jurisdiction. Order, ECF No. 11. Plaintiff

responded to the court’s Order by seeking leave to amend his Complaint. Plaintiff’s proposed

amendment voluntarily dismisses GoDaddy from the suit and states that each Doe Defendant “is

believed to be a resident of” either Virginia, Texas, or Illinois, based on IP addresses Plaintiff

uncovered during early discovery.      See Pl.’s Mot. for Leave to Am. Compl., ECF No. 12




                                                 3
[hereinafter Pl.’s Mot. for Leave to Am.], Am. Compl., ECF No. 12-2 [hereinafter Am. Compl.],

¶¶ 3–6, 29–32.

       Prospective Amicus then filed a second motion for leave to proceed as amicus curiae,

opposing Plaintiff’s Motion and the continuation of the case. This Second Motion renews the

arguments raised in Prospective Amicus’s original Motion and contends that Plaintiff’s reliance

on IP addresses does not demonstrate the court has jurisdiction. See Second Mot. for Leave to File

as Amicus Curiae, ECF No. 13, Second Proposed Amicus Br., ECF No. 13-1 [hereinafter Second

Proposed Amicus Br.], at 3–9. Specifically, Prospective Amicus highlights that an IP address can

provide evidence of an Internet user’s physical location, but that data is not equivalent to evidence

of “citizenship.” Id. at 4–5. Moreover, according to Prospective Amicus, the court lacks personal

jurisdiction over the Doe Defendants because the IP addresses Plaintiff identified place the Doe

Defendants outside the District of Columbia and Plaintiff has not alleged that they “regularly do[]

or solicit[] business, engage[] in any other persistent course of conduct, or derive[] substantial

revenue from goods used or consumed, or services rendered, in the District of Columbia.” Id. at

7–8 (quoting Forras v. Rauf, 812 F.3d 1102, 1106 (D.C. Cir. 2016)).

       Plaintiff responded to the Second Amicus Brief with a filing titled “Praecipe,” which asked

the court to accept a “Revised Amended Complaint.” The Revised Amended Complaint is

substantially the same as the Amended Complaint, except that Plaintiff now alleges each Doe

Defendant “is believed to be a citizen of” Virginia, Texas, or Illinois, based on the same IP

addresses Plaintiff uncovered during early discovery. See Praecipe, ECF No. 14 [hereinafter

Praecipe], Rev. Am. Compl., ECF No. 14-1 [hereinafter Rev. Am. Compl.], ¶¶ 3–6, 30–33

(emphasis added).




                                                 4
II.      LEGAL STANDARD

         At every stage in litigation, a federal court must determine that is has jurisdiction to hear

the case before it. Nat’l Mining Ass’n v. Kempthorne, 512 F.3d 702, 706 (D.C. Cir. 2008); Brown

v. Jewell, 134 F. Supp. 3d 170, 176 (D.D.C. 2015). “A federal court presumptively lacks

jurisdiction in a proceeding until a party demonstrates that jurisdiction exists. A party must

therefore affirmatively allege in its pleadings the facts showing the existence of jurisdiction, and

the court must scrupulously observe the precise jurisdictional limits prescribed by Congress.”

Commodity Futures Trading Comm’n v. Nahas, 738 F.2d 487, 492 n.9 (D.C. Cir. 1984); accord

Loughlin v. United States, 393 F.3d 155, 172 (D.C. Cir. 2004).

         Subject matter jurisdiction exists if the parties in the litigation are citizens of different states

and the amount in controversy exceeds $75,000. 28 U.S.C. § 1332(a); Strawbridge v. Curtiss,

7 U.S. (3 Cranch) 267, 267 (1806). A party is a citizen of the place where he or she is domiciled.

Prakash v. Am. Univ., 727 F.2d 1174, 1180 (D.C. Cir. 1984). Domicile, in turn, “is determined by

two factors: physical presence in a state, and intent to remain there for an unspecified or indefinite

period of time.” Id.      A suit invoking a federal court’s diversity jurisdiction cannot be brought

solely against Doe defendants because their place of citizenship is not known. See Sinclair v.

TubeSockTedD, 596 F. Supp. 2d 128, 132–33 (D.D.C. 2009); Meng v. Schwartz, 305 F. Supp. 2d

49, 55 (D.D.C. 2004); see also Howell by Goerdt v. Tribute Ent. Co., 106 F.3d 215, 218 (7th Cir.

1997).

         A plaintiff may amend his complaint to fix a deficiency that goes to whether the court has

jurisdiction. 28 U.S.C. § 1653; Johnson v. Panetta, 953 F. Supp. 2d 244, 248 (D.D.C. 2013).

Under Rule 15 of the Federal Rules of Civil Procedure, the plaintiff may amend his complaint

once, as of right, within 21 days of when the opposing party serves its responsive pleading. Fed.



                                                      5
R. Civ. P. 15(a)(1)(B). Otherwise, the plaintiff may amend his complaint with the opposing party’s

written consent or leave of court. Fed. R. Civ. P. 15(a)(2). The Rules direct the court to “freely

give leave [to amend] when justice so requires.” Id.

       When the only issue before the court is whether the plaintiff’s proposed amended complaint

would establish the court’s jurisdiction, the court’s resolution of the plaintiff’s motion for leave to

amend necessarily dovetails with its assessment of whether it actually possesses jurisdiction. If

the plaintiff’s proposed pleading contains statements of fact plausibly alleging that the court has

jurisdiction, then the court has jurisdiction to allow Plaintiff leave to make those necessary

amendments. Alternatively, if Plaintiff’s proposed pleading does not plausibly allege that the court

possesses jurisdiction, then the court must dismiss the case. See Fed. R. Civ. P. 12(h)(3);

cf. Loughlin, 393 F.3d at 171–72.

III.   DISCUSSION

       Plaintiff could amend his initial Complaint once as a matter of right because it is a pleading

to which a response is required, and no response has been filed. See Fed. R. Civ. P. 15(a)(1)(B).

Accordingly, Plaintiff need not have sought leave of court to amend the initial Complaint; the

“Amended Complaint” is the operative pleading in this matter. The court, however, treats

Plaintiff’s “Praecipe” as a motion for leave to amend under Rule 15(a)(2), because Plaintiff plainly

filed the Praecipe and the attached Revised Amended Complaint to cure the jurisdictional pleading

deficiencies asserted in Prospective Amicus’ Second Motion to file an amicus brief. Compare

Second Proposed Amicus Br. at 3–4 (arguing that the Amended Complaint lacks allegations

concerning the citizenship of the Doe Defendants), with Praecipe at 1 (seeking to add the purported

citizenship of the Doe Defendants). Accordingly, the question before the court is whether to grant




                                                  6
the Praecipe, i.e., Plaintiff’s motion for leave to amend, and accept the Revised Amended

Complaint as the operative pleading in this matter.

        Plaintiff’s Revised Amended Complaint asserts subject matter jurisdiction based on

diversity.   The following statements encompass the whole of Plaintiff’s factual allegations

addressing the court’s diversity jurisdiction:

               1. Jason G. Vogel (hereinafter “Plaintiff”) is an individual who
                  resides in Laguna Beach, California. The Plaintiff is a citizen of
                  California. He is a native of Washington, DC. He has family
                  in the DC metropolitan area.

                   ....

               3. Defendant John Doe 1 is believed to be a citizen of Virginia,
                  living in or near Herndon, VA, near Washington, DC.

               4. Defendant John Doe 2 is believed to be a citizen of San Antonio,
                  Texas.

               5. Defendant John Doe 3 is believed to be a citizen of El Paso,
                  Texas.

               6. Defendant John Doe 4 is believed to be a citizen of Illinois,
                  living in or near Chicago or Naperville, which is a suburb of
                  Chicago.

                    ....

               9. This Court also has subject matter jurisdiction because the
                  amount in controversy exceeds $75,000 exclusive of interest and
                  costs, and the controversy is between citizens of different states,
                  per 28 U.S.C. § 1332(a)(1).

                   ....

               29. A web site called NextDoor is designed to facilitate interactions
                  and discussions of interest to members of the local community.
                  A person who self-identified herself as Sally Forsythe joined
                  two NextDoor communities in proximity to the Plaintiff’s
                  property in Los Angeles. Sally Forsythe may be her real name.
                  It is also possible that Sally Forsythe is an alias for someone else.
                  The reason that the Plaintiff questions the real name of Sally
                  Forsythe is because she signed up for two separate Nextdoor
                  [sic] accounts using two different home addresses. NextDoor

                                                  7
                   has no records that they actually verified Sally Forsythe’s
                   address. In one case, the physical address does not exist. For the
                   other NextDoor account, the listed address is a post office.

               30. Sally Forsythe e-mailed derogatory information about the
                   Plaintiff to the Los Angeles City Government. Internet Protocol
                   (IP) addresses obtained though discovery indicate that Ms.
                   Forsythe lives in or around Herndon, Virginia, a suburb of
                   Washington, D.C.

               31. The Plaintiff has reason to suspect that John Doe 1 may be
                   named Sally Forsythe. However, the Plaintiff does not yet have
                   proof to support his suspicion. Early discovery is required to
                   obtain more information regarding the specific location in
                   Herndon, VA where Sally Forsythe, or the person who is using
                   the name Sally Forsythe, resides.

               32. IP addresses indicate that Doe 2 lives in San Antonio, Texas;
                   Doe 3 lives in El Paso, Texas and Doe 3 lives in Chicago, Illinois
                   or in nearby Naperville, Illinois.

                   ....

Rev. Am. Compl. ¶¶ 1, 3–6, 9, 29–32. These paragraphs make plain that Plaintiff “believes” the

Doe Defendants to be residents of Virginia, Texas, and Illinois, respectively, based solely on IP

addresses he obtained during early discovery. See id. ¶¶ 30, 32. The Doe Defendants are the only

parties that remain in the amended pleading. As such, the Revised Amended Complaint alleges

Plaintiff and the Doe Defendants are completely diverse parties because no defendant is affiliated

with an IP address in California. See Strawbridge, 7 U.S. (3 Cranch) at 267.

       The Revised Amended Complaint does not, however, plausibly allege that the court has

diversity jurisdiction because it does not aver sufficient facts to establish the Doe Defendants’

places of citizenship. A suit invoking a federal court’s diversity jurisdiction cannot, as here, be

brought solely against Doe defendants because their place of citizenship is not known. See

Sinclair, 596 F. Supp. 2d at 132–33; Meng, 305 F. Supp. 2d at 55; see also Howell by Goerdt, 106

F.3d at 218. Plaintiff does not dispute that jurisdictional principle. See Pl.’s Mot. for Leave at 6.


                                                 8
Instead, he submits that the IP addresses he has acquired for each Doe Defendant, and the

corresponding geolocation information those IP addresses contain, is sufficient evidence to

establish diversity jurisdiction. See id. That argument is unpersuasive. As the D.C. Circuit

recently explained, an IP address provides some geolocation information, but not as to a particular

person:

               Every device connected to the Internet and every web page on the
               Internet is identified by an IP address. The IP address appears as a
               string of numbers separated by periods, for example,
               “100.200.123.234.” It identifies the location, i.e., a particular
               computer-to-network connection of an end-user’s computer and also
               serves as the routing address for requests to view a web page.

Weinstein v. Islamic Republic of Iran, 831 F.3d 470, 473 (D.C. Cir. 2016) (alteration adopted)

(citation and internal quotation marks omitted). In other words, an IP address pinpoints the

location of a computer; it does not pinpoint a particular computer user. Many people can, and do,

use the same computer—e.g., public library computers. Even assuming, as Plaintiff does, that the

IP addresses he found plausibly allege the locations of specific computer users, as opposed to the

computers used to commit the alleged tortious acts, those IP addresses still provide no information

regarding the user’s intent to remain in the location affiliated with the IP address. In order to

establish each Doe Defendant’s place of citizenship, Plaintiff must provide plausible factual

allegations concerning not only each Doe Defendant’s presence in a particular state, but also his

or her intent to remain there. See Prakash, 727 F.2d at 1180. Reliance an IP address alone cannot

establish such intent. Accordingly, because the Revised Amended Complaint alleges, at most, that

the Doe Defendants were present in the states of Virginia, Illinois, and Texas on a particular day,




                                                9
the court concludes Plaintiff has not plausibly alleged whether the Doe Defendants are citizens of

states other than California. 1

         Although Plaintiff argues that through continued early discovery he can gather additional

evidence to identify the Doe Defendants’ places of citizenship, that argument does not save

Plaintiff’s Revised Amended Complaint. Indeed, as another member of this Court wrote, “a

diversity action cannot be brought against Doe defendants in hopes of later discovering that the

requisite diversity of citizenship actually exists.” Sinclair, 596 F. Supp. 2d at 132–33. Here, the

court originally could allow Plaintiff to take early discovery because GoDaddy’s presence as a

defendant created diversity jurisdiction. Now, however, given Plaintiff’s dismissal of GoDaddy,

this court lacks subject matter jurisdiction over this case, and Plaintiff cannot continue to use the

tools of discovery otherwise available to a plaintiff properly in federal court to uncover the

requisite jurisdictional facts. See id. at 134.

         For this reason, the court denies as futile Plaintiff’s Praecipe requesting leave to file his

Revised Amended Complaint and dismisses the case for want of jurisdiction.

1
  The cases Plaintiff cited in his first motion for leave to amend—Malibu Media, LLC v. John Doe, No. 16-639, 2016
WL 1698263 (D.D.C. Apr. 27, 2016), and Nu Image, Inc. v. 1-23,322, 799 F. Supp. 2d 34 (D.D.C. 2011)—do not
compel a different result. See Pl.’s Mot. for Leave to Am. at 7. In each case, the court’s subject matter jurisdiction
was premised on federal question jurisdiction and only its personal jurisdiction was at issue. See Malibu Media, 2016
WL 1698263, at *1; Nu Image, Inc., 799 F. Supp. at 36. In that context, those courts found that an IP address suffices
to provide “some basis” or a “good faith basis” to believe that a John Doe resides in the District of Columbia and the
District Court for the District of Columbia may exercise personal jurisdiction over the unnamed defendant. Malibu
Media, No. 2016 WL 1698263, at *2; accord Nu Image, Inc., 799 F. Supp. 2d at 41. Here, on the other hand, the
court’s subject matter jurisdiction is premised on diversity and is at issue—an entirely different context in which the
court must evaluate the evidentiary value of an IP address. Merely offering “some basis” of each John Doe’s
citizenship does not satisfy Plaintiff’s burden to establish subject matter jurisdiction.




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IV.    CONCLUSION

       In light of the foregoing, the court concludes it lacks subject matter jurisdiction and

dismisses the case without prejudice. A separate Order accompanies this Memorandum Opinion.




Dated: July 19, 2017                                     Amit P. Mehta
                                                         United States District Judge




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