United States District Court, D. Nevada
MARC J. RANDAZZA, an individual, JENNIFER RANDAZZA, an individual, and NATALIA RANDAZZA, an individual, Plaintiffs,
CRYSTAL COX, an individual, Defendant.
MOTIONS FOR SUMMARY JUDGMENT (DOCS. 75, 79 AND VARIOUS OTHER RELIEF (DOCS. 184,
JENNIFER A. DORSEY, District Judge.
This cybersquatting case arises out of the alleged targeting of Plaintiffs Marc Randazza, his wife Jennifer, and their young daughter Natalia, by Defendant Crystal Cox, a self-proclaimed "investigative blogger." The Randazzas allege that Cox and Defendant Eliot Bernstein have engaged in an online harassment campaign to extort them by registering dozens of internet domain names that incorporate the Randazzas' names and then demanding they agree to purchase Cox's "reputation management" services to remove this allegedly defamatory material from the internet and rehabilitate their cyber reputations. Cox maintains that this lawsuit was instituted to harass her and stifle her First Amendment freedoms of speech and expression.
The Randazza Plaintiffs move for summary judgment on their claims against Cox. But as one of those claims is legally untenable, and genuine issues of material fact preclude summary judgment on the remainder, their motion is denied. Cox has pending her own motion for summary judgment on her original "Counter-Complaint, " which has since been stricken and supplanted (in part) by a new amended counterclaim. As the developments since the filing of Cox's motion have rendered it moot, her motion for summary judgment is also denied. Cox has filed three other motions requesting a variety of additional relief. None of the motions comply with the rules of this Court or are founded upon any authority, and the relief they seek has been denied by this Court numerous times. These motions are also denied.
Motions for Summary Judgment
In November 2012, the Randazzas sued Cox and Bernstein alleging violations of individual cyberpiracy protections for various registered websites under 15 U.S.C. § 8131, cybersquatting for various registered websites under 15 U.S.C. § 1125(d), their right of publicity under NRS 597.810, their common law right of publicity, intrusion upon seclusion, and civil conspiracy. The claims were based on allegations that Cox and Bernstein registered several domain names containing Plaintiffs' names, that Cox's blog posts contained objectionable characterizations of the Plaintiffs, and that these acts were designed to extort and harass the Randazzas and capitalize on and damage the goodwill Marc Randazza claims he built up in his own name as a prominent First Amendment attorney.
Bernstein has not appeared or answered the allegations, but Cox has. She contends that she registered the domain names to control public relations information when she thought Marc Randazza would represent her in another lawsuit. Cox also strongly objects to Plaintiffs' characterization of her motivation and actions as "extortion."
The tortured history of this case is rife with procedural maneuvering by both sides. All parties have disrupted the Court's timely management of its docket, wasted judicial resources, and threatened the orderly administration of justice by sandbagging the docket with multiple impertinent, legally unsupported, and frivolous filings. The instant motions were not spared from these tactics. Despite Mr. Randazza's self-proclaimed prominence as a First Amendment attorney and being represented by independent counsel, Plaintiffs have failed to authenticate more than half of their proffered exhibits in support of their motion; and half of the authenticated ones are immaterial to this motion. Equally confounding is that pro se Cox has submitted a 255-page nonsensical summary judgment motion and a 183-page opposition to Plaintiffs' summary judgment motion, neither of which includes any relevant legal authority or complies with this Court's rules of procedure and evidence. In short, all parties have fallen far short of sustaining their initial summary judgment burdens and both motions are denied.
A. Authentication of Evidence
The first step in analyzing these motions is to determine what evidence the Court may consider in evaluating whether the parties met their respective burdens. In Orr v. Bank of America, the Ninth Circuit Court of Appeals "made it clear that unauthenticated documents cannot be considered in a motion for summary judgment.'" To authenticate a document, the proponent must offer "evidence sufficient to support a finding that the matter in question is what its proponent claims.'" As the summary judgment procedure is the pretrial functional equivalent of a directedverdict motion, it requires consideration of the same caliber of evidence that would be admitted at trial; thus, it is insufficient for a litigant to merely attach a document to a summary judgment motion or opposition without affirmatively demonstrating its authenticity.
Documents may be authenticated two ways: (1) through the personal knowledge of a party who attests that the document is what it purports to be; or (2) any other manner permitted by Federal Rules of Evidence 901(b) (which provides ten methods of authentication) or 902 (identifying selfauthenticating documents that "require no extrinsic evidence of authenticity in order to be admitted"). Documents authenticated through personal knowledge must be attached to an affidavit signed by a person with personal knowledge about the document (such as the drafter or signer of the document, or the custodian of the document kept in the ordinary course of a business, depending on the type of document and its particular relevance), or properly authenticated deposition testimony in which the same information was elicited.
Plaintiffs' proffered evidence falls into several categories, and the Court addresses each in turn:
Plaintiffs offer at Exhibit B an article from Forbes Magazine. Printed material "purporting to be a newspaper or periodical" is self-authenticating. Thus, this article is self-authenticating. Its contents, however, are hearsay not subject to any exception. Accordingly, the periodical is not admissible for summary judgment purposes.
Few courts have considered how a website print-out or blog posting may be authenticated. Those that have considered the issue have found "website print-outs [were] sufficiently authenticated where the proponent declared that they were true and correct copies of pages on the internet and the print-outs included their webpage URL address and the dates printed."
The websites contained in Exhibits E, K, Q, R, S, and T have been properly authenticated under this standard because Plaintiff Marc Randazza has attested that they are true and correct copies and the print-outs include the webpage URL address and the dates the websites were printed. However, Plaintiffs have not authenticated any of the purported website contents in Exhibits D, G, M, O, and P. Although Mr. Randazza has attested that these exhibits are true and correct copies and the print-outs include the webpage URL address, absent are the dates the webpages were printed. Without the print dates, these website printouts have not been properly authenticated, and the Court will not consider them.
3. Letters, Emails, and Text Messages
A document may be authenticated by personal knowledge "by a witness who wrote it, signed it, used it, or saw others do so." Although circumstantial evidence-like an email's context, email address, or previous correspondence between the parties-may help to authenticate an email,  the most direct method of authentication is a statement from its author or an individual who saw the author compose and send the email.
Plaintiffs have authenticated the letter sent from Mr. Randazza to Defendant Bernstein presented in Exhibit A by Randazza's affidavit stating that he wrote and signed the letter. Similarly, Mr. Randazza's curriculum vitae and the "About" page of his blog attached as Exhibits I and J have been properly authenticated because Mr. Randazza is a person with personal knowledge and he wrote his curriculum vitae and the "About" page of his own blog. Plaintiffs have also authenticated via circumstantial evidence the emails between Cox and Mr. Randazza contained in Exhibit H because the email contains sufficient indicia of authenticity by context, the email addresses, and previous correspondence between the parties.
But Plaintiffs have not authenticated the purported emails between Cox and Dylan Energy CEO Martin Cain contained in Exhibit C. Although Plaintiffs attempt to authenticate Exhibit C via circumstantial evidence, there is a gap in the email chain. Mjr@randazza.com purportedly received the forwarded email from email@example.com; savvybroker@ yahoo.com (the email associated with Cox) sent the email to firstname.lastname@example.org. Therefore, it is unclear how the person in control of the email address email@example.com came to be in possession of an email originally addressed to firstname.lastname@example.org. Without some explanation of the gap in this email chain by someone with personal knowledge, there is insufficient circumstantial indicia of authenticity for the Court to consider this document.
Plaintiffs have not authenticated the text message screen shot in Exhibit A either. The screen shot purporting to be a text-message exchange between Messrs. Randazza and Bernstein has not been authenticated because it does not have circumstantial indicia of authenticity. It is unclear which phone numbers sent or received the messages or to whom those phone numbers belonged when the screen shot was taken, or who took the screen shot. Without this type of supporting evidence, the Court cannot consider the text message in Exhibit A.
Finally, Exhibit L, which is a compiled listing made by the Plaintiffs of the allegedly infringing domain names, is not evidence, and no realistic effort has been made to render it ...