Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Handshoe v. Perret

United States District Court, S.D. Mississippi, Southern Division

September 19, 2017

DOUGLAS HANDSHOE PLAINTIFF
v.
VAUGHN PERRET, et al. DEFENDANTS

         MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT ASHOKA'S [94] MOTION TO DISMISS; GRANTING IN PART AND DENYING IN PART DEFENDANTS VAUGHN PERRET AND CHARLES LEARY'S [96] MOTION TO DISMISS; AND DENYING SLABBED NEW MEDIA, LLC'S [101] MOTION TO INTERVENE

          HALIL SULEYMAN OZERDEN UNITED STATES DISTRICT JUDGE.

         BEFORE THE COURT are three Motions: (1) a Motion to Dismiss [94] filed by Defendant Ashoka; (2) a Motion to Dismiss [96] filed by Defendants Vaughn Perret and Charles Leary; and (3) a Motion to Intervene [101] filed by Slabbed New Media, LLC. These Motions are fully briefed.

         After due consideration of the Motions, the related pleadings, the record, and relevant legal authority, the Court finds that Ashoka's Motion to Dismiss [94] should be granted, that Perret and Leary's Motion to Dismiss [96] should be granted in part and denied in part, and that Slabbed New Media, LLC's Motion to Intervene [101] should be denied. All of Plaintiff's claims should be dismissed except for the misrepresentation claims pursuant to 17 U.S.C. § 512(f) against Defendants Progress Media Group Limited and Marilyn Smulders contained in Count 3 of the Third Amended Complaint and against Defendants Charles Leary and Trout Point Lodge in Count 5. These two claims will remain.

         I. BACKGROUND

         A. Procedural History

         Plaintiff Douglas Handshoe (“Plaintiff” or “Handshoe”) alleges that he is the publisher of Slabbed New Media, LLC's “regionally noted website.” 3d Am. Compl. [90] at 3. Plaintiff has been embroiled in litigation for years with certain of the Defendants in this case in various courts throughout the United States and Canada. According to the Third Amended Complaint, which is the operative pleading here, Trout Point Lodge Ltd. (“Trout Point Lodge”), Charles Leary (“Leary”), Vaughn Perret (“Perret”), and Daniel Abel (“Abel”)[1] have commenced three defamation suits against Plaintiff in his personal capacity in Nova Scotia, Canada. Id. at 11, 13.[2]

         The Third Amended Complaint alleges that Defendants sent certain “takedown notices” pursuant to 17 U.S.C. § 512, which is part of the Digital Millennium Copyright Act (“DMCA”), [3] “in an attempt to force Plaintiff, as Publisher and agent for Slabbed New Media, LLC to take down constitutionally protected free speech in the form of journalistic posts to the Slabbed New Media LLC website . . . .” Id. at 4. Plaintiff maintains that these takedown notices were “directed to a Mississippi legal business entity and ultimately its publisher/owner in his personal capacity, creating impacts on the business of that entity and its publisher in his personal capacity, including causing injury leading to damages . . . .” Id. at 4-5.

         Plaintiff maintains that the posts in question constituted journalistic reporting in the public interest related to a “massive political corruption scandal, resulting criminal investigation, conviction and incarceration of former Jefferson Parish[, Louisiana, ] President Aaron Broussard, ” id. at 2, and that some posts were parodies created by Slabbed New Media, LLC, or third parties who gave express consent for Slabbed New Media, LLC, to publish the works. See, e.g., Id. at 22, 29, 40-44, 48.

         However, according to the Third Amended Complaint, “Plaintiff in his personal capacity had no connection to the illustrative use of the photographs in question.” Id. at 29. Slabbed New Media, LLC, as a journalistic website, and Plaintiff as publisher of that website, used “the creative works in the context of a public interest news story . . . and journalistic reporting in the public interest . . . .” Id.

         Plaintiff filed a pro se Civil Complaint for Damages, Declaratory, and Injunctive Relief [1] in this Court on November 16, 2015. Plaintiff has since filed three amended pleadings, two of which were filed after obtaining leave of Court to do so. The operative pleading is now the Third Amended Complaint [90], which advances eight counts of misrepresentation pursuant to 17 U.S.C. § 512(f) related to takedown notices dated from December 2012 to January 2016. 3d Am. Compl. [90] at 33-47.

         The Third Amended Complaint also seeks certain declarations, including that: (1) “to the extent Defendants own any valid copyright interest in the creative works in questions [sic] or have claimed to own any valid copyrights, Defendants have misused such copyrights rendering those Copyrights as unenforceable, ” id. at 49; (2) Plaintiff's “use of the photographs in question as agent for Slabbed New Media, LLC is lawful under the fair use doctrine and does not infringe on any of the Defendants' copyrights, ” id. at 50; (3) “as a matter of law [Plaintiff] has no liability in his personal capacity over content belonging to a third party in which he acts as agent pursuant to the Mississippi Limited Liability Act, ” id.; and (4) “as a matter of law each and every component judgment rendered in the case styled, Trout Point Lodge et al. v. Douglas Handshoe, Nova Scotia Supreme Court No. 41135 is REPUGNANT TO THE CONSTITUTION OF THE UNITED STATES OF AMERICA and unenforceable in the United States of America, ” under the Securing the Protection of our Enduring and Established Constitutional Heritage Act, 28 U.S.C. § 4101, et seq. (“SPEECH Act”), id. at 52.

         B. The takedown notices at issue

         In total, nine takedown notices are at issue here. Each is summarized in a separate count of the Third Amended Complaint.[4]

         1. The December 13 and 14, 2012, and February 18, 2014, takedown notices (Counts 1, 2, and 6)

         Counts 1, 2, and 6 of the Third Amended Complaint assert claims under § 512(f) against Leary, Perret, Abel, Trout Point Lodge, and Ashoka, [5] related to takedown notices dated December 13, 2012; December 14, 2012; and February 18, 2014, respectively. 3d Am. Compl. [90] at 33-36, 41-44. With respect to the December 13, 2012, notice, Plaintiff asserts that

Leary as authorized by Ashoka and in coordination with Perret and Abel, filed a DMCA takedown notice with Automattic, Inc. asserting ownership of a creative work posted to the Slabbed New Media website that have [sic] alternatively previously been subject to DMCA takedown notices by both Ashoka and the Trout Point Criminal Enterprise. This image in question was previously litigated in Nova Scotia Canada . . . . The resulting judgment was denied comity by this Court on December 19, 2012.

Id. at 13-14; see also Notice [1-3] at 10-11 (DMCA Notice sent by Leary on December 13, 2012).[6]

         The December 13, 2012, takedown notice related to “a photograph from the Ashoka Change Makers website . . . .” 3d Am. Compl. [90] at 33. The image for which Leary sent the takedown notice was an image of Leary and Perret, see Notice [96-11] at 1, which

appeared in the post, Slabbed solves the mystery on the shores of the Tusket River in Nova Scotia as we reveal the Trout Point connection to the Jefferson Parish political Corruption Scandal published on September 8, 2011 which is found [on the slabbed.org website, ]

Id. at 14 n.4.

         Count 2 asserts a § 512(f) claim for an initial takedown notice sent by Leary on December 14, 2012, which “dealt with the same image” as the December 13, 2012, notice. 3d Am. Compl. [90] at 14 n.4; see also Notice [1-3] at 21-22. Leary sent “separate notices for both the cropped original and scaled versions of that cropped original designed for mobile device optimization.” 3d Am. Compl. [90] at 14 n.4.

         As for Count 6, Leary allegedly submitted a takedown notice on February 18, 2014, which

represented that Publisher Handshoe and Slabbed New Media, LLC's republication with permission of parodies created by third parties unconnected to the Trout Point Lodge Criminal Enterprise that were published to the Slabbed New Media website with the express consent of the creators of the works in question and for creative works previously subject to multiple takedown notices submitted by Ashoka, the National Geographic Society and Progress Media/Marilyn Smulders infringed on copyrights owned by Ashoka, the National Geographic Society, Charles Leary, Vaughn Perret and Daniel Abel d/b/a Trout Point Lodge Ltd. on whose behalf's [sic] Defendant Leary swore he was authorized to act.

3d Am. Compl. [90] at 41-42. At issue were “Slabbed New Media, LLC posts” that “were published to the Slabbed New Media website . . . .” Id. at 42.

         Plaintiff alleges that each Slabbed New Media, LLC post is a “self-evident non-infringing fair use, ” id. at 33, 35, 42, and that he had no connection to these postings in his individual capacity, id. However, Plaintiff asserts that he incurred damages when the service providers terminated access to the Slabbed New Media, LLC, posts that were subject to these takedown notices. Id. at 34, 36, 43-44.

         2. The Second December 14, 2012, takedown notice (Count 3)

         Count 3 raises a claim under § 512(f) against Progress Media and Smulders. 3d Am. Compl. [90] at 36. Plaintiff refers to Progress Media as a Canadian media outlet with which Smulders is apparently associated, although there is little information in the record as to the identity of these two foreign Defendants, neither of whom has entered an appearance in this case. Id. at 23.

         The Third Amended Complaint alleges that “[t]he Takedown Notice of December 14, 2012 represented that Publisher Handshoe and Slabbed New Media, LLC's post infringed copyrights owned by Progress Media Group Limited and Marilyn Smulders on whose behalf the Canadian lawyer swore he was authorized to act.” Id. at 36-37. The post was a “picture of defendants Leary, Perret and Abel that was posted to the Slabbed New Media website . . . .” Id. at 15. Plaintiff again claims “[t]he Slabbed New Media, LLC posts is [sic] a self-evident non-infringing fair use under 17 U.S.C. § 107, ” and that “Plaintiff Handshoe had no connection to those postings in his personal capacity.” Id. at 37. Plaintiff asserts that he incurred damages as a result of Progress Media and Smulder's misrepresentations, and that “[s]uch injury includes, but is not limited to, the financial and personal expenses associated with responding to the claim of infringement and harm to Plaintiff's free speech rights under the First Amendment.” Id. at 38.

         3. The December 31, 2012; April 1, 2014; and January 15 and 18, 2016, takedown notices (Counts 4, 7, and 8)

         Counts 4, 7, and 8 advance claims under § 512(f) against Leary, Perret, Abel, and Trout Point Lodge related to takedown notices dated December 31, 2012; April 1, 2014; January 15, 2016; and January 18, 2016. 3d Am. Compl. [90] at 38-40, 44-47. Leary submitted the December 31, 2012, takedown notice as to two alleged “copyrighted works being infringed on slabbed.org, ” see Notice [1-3] at 5, which is the basis of Count 4, and the April 1, 2014, takedown notice related to “three creative works subject to infringing publication at www.slabbed.org, ” see Notice [96-11] at 12, which is the basis of Count 7.

         Count 8 references two takedown notices-one sent on January 15, 2016, and another on January 18, 2016. 3d Am. Compl. [90] at 45. According to Plaintiff,

[o]n January 15, 2016[, ] Trout Point Lodge owner Charles Leary, using the DMCA Takedown request form provided by Slabbed New Media, LLC's reverse proxy provider CloudFlare, sent a DMCA Takedown notice to them [sic] . . . . CloudFlare is a reverse proxy provider which serves but only indirectly hosts the Slabbed New Media website.
* * *
On January 18, 2016 defendants Charles Leary and Vaughn Perret submitted a complaint to Amazon Web Services (AWS), hosting provider of Slabbed New Media, LLC. AWS construed this complaint as a DMCA Takedown notice. This takedown notice duplicated the takedown notices of January 15, 2016 . . . .

Id. at 27, 28.

         Plaintiff maintains that each Slabbed New Media, LLC, post is a self-evident non-infringing fair use under 17 U.S.C. § 107. Id. at 38, 44, 46. As to Counts 4 and 7, the Third Amended Complaint states that “Plaintiff Handshoe had no connection to those postings in his individual capacity.” Id. at 39, 46.

         4. The February 15, 2014, takedown notice (Count 5)

         Count 5 advances a claim under § 512(f) against Leary, Perret, Abel, and Trout Point Lodge, related to a February 15, 2014, takedown notice. 3d Am. Compl. [90] at 40. Count 5 asserts that

[t]he Takedown Notice of February 15, 2014 represented that the Slabbed New Media, LLC parody created by and published to YouTube by Publisher Handshoe infringed on copyrights owned by Charles Leary, Vaughn Perret and Daniel Abel d/b/a Trout Point Lodge Ltd. on whose behalf Defendant Leary swore he was authorized to act.

Id. According to Plaintiff, “[t]he Slabbed New Media, LLC parody that included a photographs [sic] Trout Point criminal Conspirators is a self-evident non-infringing fair use under 17 U.S.C. § 107.” Id.

         Plaintiff argues that “Defendants violated 17 U.S.C. § 512(f) by knowingly [and] materially misrepresenting that the Slabbed New Media, LLC posting infringed on their copyrights, ” and that the misrepresentations “were material to YouTube's decision to require Plaintiff disable [sic] access to the Slabbed New Media, LLC video . . . causing Plaintiff to incur damages.” Id. at 41. “Such injury includes, but is not limited to, the financial and personal expenses associated with responding to the claim of infringement and harm to Plaintiff's free speech rights under the First Amendment.” Id.

         Leary submitted the takedown notice to YouTube for this video, as director of Trout Point Lodge, Limited, and listed Trout Point Lodge, Limited, as the copyright owner. Notice [96-11] at 10-11. Plaintiff has supplied a screen shot of this YouTube video, which was published on May 6, 2013. Screen Shot [111-4] at 2. The opening of the video is depicted as: “Slabbed The Alternative New Media for the Gulf South.” Id. At the bottom left of the video, the screen states “Slabbed: No Fear Journalism, ” and “Doug Handshoe.” Id.

         C. The Parties' Pending Motions

         Defendants in this case have previously filed Motions to Dismiss, see Mots. [14], [34], [47], [55], [64], [75], to which Plaintiff responded in part by requesting leave to amend his pleadings, see Mots. for Leave [29], [82]. The Court has twice denied Defendants' Motions without prejudice and granted Plaintiff leave to amend his Complaint in order to attempt to cure defects in his pleadings. See Orders [43], [89].

         On February 9, 2017, Defendant Ashoka filed a Motion to Dismiss [94] pursuant to Federal Rule of Civil Procedure 12(b)(6), on grounds that the Third Amended Complaint fails to state a claim against Ashoka. Mot. [94] at 1. On February 15, 2017, Defendants Perret and Leary filed a Motion to Dismiss [96] pursuant to Federal Rules of Civil Procedure 9(b), 12(b)(1), and 12(b)(6). Perret and Leary take the position that the Third Amended Complaint should be dismissed under Rule 12(b)(1) because Plaintiff lacks standing to bring his claims, and alternatively on grounds that dismissal is warranted under Rule 12(b)(6). Mot. [96] at 1. These Motions to Dismiss [94], [96] are fully briefed.

         On February 17, 2017, Slabbed New Media, LLC, filed a Motion to Intervene [101] as a party Plaintiff pursuant to Federal Rule of Civil Procedure 24(a)(2). Mot. [101] at 1. Alternatively, Slabbed New Media, LLC, seeks to intervene under Rule 24(b)(1)(B). Id. Ashoka, Perret, and Leary oppose this Motion [101]. See Resps. [105], [107]; Mems. [106], [108].

         II. DISCUSSION

         A. Perret and Leary's Motion to Dismiss [97] the Third Amended Complaint should be granted in part and denied in part.

         Perret and Leary ask the Court to dismiss the Third Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(1), arguing that Plaintiff lacks standing. Mem. [97] at 9. Perret and Leary alternatively seek dismissal pursuant to Rule 12(b)(6), for failure to state a claim.

         1. Federal Rule of Civil ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.