Case 2:19-cv-02306-MWF-AFM Document 37 Filed 08/05/19 Page 1 of 24 Page ID #:295 1 Jeffrey J. Pyle (pro hac vice pending) jpyle@princelobel.com 2 Aaron S. Jacobs (Cal. Bar No. 214953) 3 ajacobs@princelobel.com PRINCE LOBEL TYE LLP 4 One International Place, Suite 3700 5 Boston, MA 02110 6 tel. (617) 456-8000 fax (617) 456-8100 7 8 Matthew Vella (Cal. Bar No. 314548) mvella@princelobel.com 9 PRINCE LOBEL TYE LLP 10 357 S Coast Highway, Suite 200 Laguna Beach, CA 92651 11 tel. (949) 232-6375 12 fax (949) 861-9133 13 Attorneys for Defendant Matthew J. Weymouth 14 15 UNITED STATES DISTRICT COURT 16 CENTRAL DISTRICT OF CALIFORNIA 17 WESTERN DIVISION 18 MATTHEW HOGAN, Plaintiff, 19 20 v. 21 MATTHEW J. WEYMOUTH, PATRICK C. CHUNG, PRO SPORTORITY (ISRAEL) LTD., KARL RASMUSSEN, BEASLEY BROADCAST GROUP INC., MELISSA EANNUZZO, and DOES 1-10, 22 23 24 25 No. 2:19-cv-02306-MWF-AFMx NOTICE OF MOTION AND MOTION TO DISMISS BY DEFENDANT MATTHEW WEYMOUTH Date: Time: Location: Judge: September 9, 2019 10:00 a.m. Courtroom 5A Michael W. Fitzgerald Defendants. 26 27 28 NOTICE OF MOTION AND MOTION TO DISMISS BY DEFENDANT MATTHEW WEYMOUTH 1 Case No. 2:19-cv-02306-MWF-AFMx Case 2:19-cv-02306-MWF-AFM Document 37 Filed 08/05/19 Page 2 of 24 Page ID #:296 1 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: 2 PLEASE TAKE NOTICE that on September 9, at 10:00 a.m. or as soon 3 thereafter as this matter may be heard in Courtroom 5A of the above-entitled court, 4 located at 350 West 1st Street, Los Angeles, CA 90012, Matthew Weymouth will 5 and hereby does move to dismiss all claims against him by plaintiff Matthew Hogan, 6 for lack of personal jurisdiction pursuant to Fed. R. Civ. P. 12(b)(2), and for failure 7 to state a claim upon which relief may be granted pursuant to Fed. R. Civ. P. 8 12(b)(6). 9 Defendant Matthew Weymouth is a resident of Massachusetts with no 10 contacts in California. He is not alleged to have committed any acts in California, 11 and did not purposefully direct any activity toward California. Weymouth 12 accordingly lacks sufficient “minimum contacts” for this court to sustain personal 13 jurisdiction over him consistent with constitutional principles of due process. 14 Even if jurisdiction existed, all claims against Weymouth must be dismissed 15 pursuant to Fed. R. Civ. P. 12(b)(6) because they fail to state a claim upon which 16 relief may be granted. In particular: Plaintiff’s “public disclosure of private facts” claim fails because 17 (1) 18 plaintiff has not alleged “publication” of intimate details—or even “private” 19 facts—about his life, and because there is a public interest in the texts; 20 (2) 21 fails because Weymouth’s conduct was not extreme and outrageous as a 22 matter of law, and because plaintiff has not alleged that he suffered severe 23 emotional distress; and 24 (3) 25 harassment “exists” or that it is likely to recur, both of which are requirements 26 for the restraining order contemplated in the California statute on which the 27 claim is based. Plaintiff’s intentional infliction of emotional distress (“IIED”) claim Plaintiff’s “Civil Harassment” claim fails to allege facts showing that 28 NOTICE OF MOTION AND MOTION TO DISMISS BY DEFENDANT MATTHEW WEYMOUTH 2 Case No. 2:19-cv-02306-MWF-AFMx Case 2:19-cv-02306-MWF-AFM Document 37 Filed 08/05/19 Page 3 of 24 Page ID #:297 1 This Motion is made following the conference of counsel pursuant to Local 2 Rule 7-3, which took place on July 24, 2019. 3 This Motion is based on this Notice; on the attached Memorandum of Points 4 and Authorities; on the Declarations of Matthew Weymouth and Patrick Chung; on 5 any other matters of which this Court may take judicial notice; on all pleadings, files 6 and records in this action; and on such argument as may be received by this Court at 7 the hearing on this Motion. 8 9 Dated: August 5, 2019 10 Respectfully submitted, /s/ Aaron S. Jacobs Jeffrey J. Pyle (pro hac vice pending) Aaron S. Jacobs (Cal. Bar No. 214953) PRINCE LOBEL TYE LLP One International Place, Suite 3700 Boston, MA 02110 tel. (617) 456-8000 fax (617) 456-8100 11 12 13 14 15 16 Matthew Vella (Cal. Bar No. 314548) PRINCE LOBEL TYE LLP 357 S Coast Highway, Suite 200 Laguna Beach, CA 92651 tel. (949) 232-6375 fax (949) 861-9133 17 18 19 20 Attorneys for Defendant Matthew J. Weymouth 21 22 23 24 25 26 27 28 NOTICE OF MOTION AND MOTION TO DISMISS BY DEFENDANT MATTHEW WEYMOUTH 3 Case No. 2:19-cv-02306-MWF-AFMx Case 2:19-cv-02306-MWF-AFM Document 37 Filed 08/05/19 Page 4 of 24 Page ID #:298 1 TABLE OF CONTENTS 2 I. SUMMARY OF ARGUMENT ............................................................................. 1 3 II. STATEMENT OF FACTS .................................................................................... 1 4 III. THIS COURT LACKS PERSONAL JURISDICTION OVER WEYMOUTH ... 4 5 A. Weymouth Did Not Purposefully Direct his Actions at California. ...................................................................................................... 5 B. This Case Does Not Arise out of Weymouth’s Contacts with California. .................................................................................................... 10 C. The Exercise of Personal Jurisdiction Over Weymouth Would Be Unreasonable. .............................................................................................. 10 6 7 8 9 10 11 12 IV. HOGAN FAILS TO STATE A CLAIM AGAINST WEYMOUTH. ................ 11 A. Hogan Has Failed to State a Claim for Public Disclosure of Intimate Private Facts. ................................................................................. 12 B. Hogan Has Failed to State a Claim for Intentional Infliction of Emotional Distress. ................................................................................. 13 C. Hogan Has Failed to Allege Facts that Meet the “Civil Harassment” Standard. ...................................................................................................... 15 13 14 15 V. CONCLUSION.................................................................................................... 16 16 17 18 19 20 21 22 23 24 25 26 27 28 NOTICE OF MOTION AND MOTION TO DISMISS BY DEFENDANT MATTHEW WEYMOUTH i Case No. 2:19-cv-02306-MWF-AFMx Case 2:19-cv-02306-MWF-AFM Document 37 Filed 08/05/19 Page 5 of 24 Page ID #:299 1 TABLE OF AUTHORITIES 2 Cases 3 Ankeny v. Lockheed Missiles & Space Co., 88 Cal. App. 3d 531 (1979) .................................................................................... 14 4 Bell Atl. Corp. v. Twombly, 5 550 U.S. 544 (2007).................................................................................................. 7 6 Bolbol v. Brown, 120 F. Supp. 3d 1010 (N.D. Cal. 2015) .................................................................. 15 7 Braunling v. Countrywide Home Loans Inc., 8 220 F.3d 1154 (9th Cir. 2000) ................................................................................ 14 9 Brayton Purcell LLP v. Recordon & Recordon, 606 F.3d 1124 (9th Cir. 2010) .................................................................................. 9 10 Bristol-Myers Squibb Co. v. Superior Court of California, San Francisco Cty., 11 137 S. Ct. 1773 (2017).............................................................................................. 6 12 Burger King Corp. v. Rudzewicz, 471 U.S. 462 (1985)................................................................................................ 10 13 Christensen v. Superior Court, 14 54 Cal. 3d 868 (1991) ............................................................................................. 13 15 Core-Vent Corp. v. Nobel Indus. AB, 11 F.3d 1482 (9th Cir. 1993) .................................................................................. 10 16 Coverstone v. Davies, 17 38 Cal.2d 315 (1952) .............................................................................................. 12 18 Daimler AG v. Bauman, 571 U.S. 117 (2014).............................................................................................. 4, 6 19 Doe v. Unocal Corp., 20 248 F.3d 915 (9th Cir. 2001) .................................................................................... 5 21 Dole Food Co. v. Watts, 303 F.3d 1104 (9th Cir. 2002) ................................................................................ 11 22 Duronslet v. Cty. of Los Angeles, 23 266 F. Supp. 3d 1213 (C.D. Cal. 2017) .................................................................. 15 24 Edwards v. Schwartz, 378 F. Supp. 3d 468 (W.D. Va. 2019) ...................................................................... 9 25 GCIU-Employer Ret. Fund v. Goldfarb Corp., 26 565 F.3d 1018 (7th Cir. 2009) .................................................................................. 6 27 Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915 (2011).................................................................................................. 6 28 NOTICE OF MOTION AND MOTION TO DISMISS BY DEFENDANT MATTHEW WEYMOUTH ii Case No. 2:19-cv-02306-MWF-AFMx Case 2:19-cv-02306-MWF-AFM Document 37 Filed 08/05/19 Page 6 of 24 Page ID #:300 1 Hecimovich v. Encinal School Parent Teacher Organization, 203 Cal. App. 4th 450 (2012) ................................................................................. 13 2 Hughes v. Pair, 46 Cal. 4th 1035 (2009) .......................................................................................... 15 3 In re Cathode Ray Tube (CRT) Antitrust Litig., 4 27 F. Supp. 3d 1002 (N.D. Cal. 2014) ...................................................................... 9 5 Insurance Company of North America v. Marina Salina Cruz, 649 F.2d 1266 (9th Cir.1981) ................................................................................. 10 6 Karimi v. Golden Gate Sch. of Law, 7 361 F. Supp. 3d 956 (N.D. Cal. 2019) .................................................................... 12 8 Kellman v. Whole Foods Mkt., Inc., 313 F. Supp. 3d 1031 (N.D. Cal. 2018) .................................................................... 5 9 Mavrix Photo, Inc. v. Brand Techs., Inc., 10 647 F.3d 1218 (9th Cir. 2011) .............................................................................. 4, 9 11 Nora v. Kaddo, 116 Cal. App. 4th 1026 (2004) ............................................................................... 15 12 Perry v. Brown, 13 No. CV 18-9543-JFW(SSX), 2019 WL 1452911 (C.D. Cal. Mar. 13, 2019) ......... 5 14 Picot v. Weston, 780 F.3d 1206 (9th Cir. 2015) .............................................................................. 4, 7 15 Plater v. United States, 16 359 F. Supp. 3d 930 (C.D. Cal. 2018) .................................................................... 13 17 Professional’s Choice Sports Med. Prod., Inc. v. Hegeman, No. 15-CV-02505-BAS(WVG), 2016 WL 1450704 (S.D. Cal. Apr. 12, 2016)...... 9 18 Ranza v. Nike, Inc., 19 793 F.3d 1059 (9th Cir. 2015) .................................................................................. 4 20 Remick v. Manfredy, 238 F.3d 248 (3rd Cir. 2001) .................................................................................... 9 21 Rosen v. Terapeak, Inc., 22 No. CV-15-00112-MWF (EX), 2015 WL 12724071 (C.D. Cal. Apr. 28, 2015). 4, 8 23 Russell v. Douvan, 112 Cal. App. 4th 399 (2003) ........................................................................... 15, 16 24 Schwarzenegger v. Fred Martin Motor Co., 25 374 F.3d 797 (9th Cir. 2004) .......................................................................... 5, 6, 10 26 Sec. Alarm Fin. Enterprises, L.P. v. Nebel, 200 F. Supp. 3d 976 (N.D. Cal. 2016) ...................................................................... 9 27 Shulman v. Grp. W Prods., Inc., 28 18 Cal. 4th 200 (1998) ............................................................................................ 13 NOTICE OF MOTION AND MOTION TO DISMISS BY DEFENDANT MATTHEW WEYMOUTH iii Case No. 2:19-cv-02306-MWF-AFMx Case 2:19-cv-02306-MWF-AFM Document 37 Filed 08/05/19 Page 7 of 24 Page ID #:301 1 Sipple v. Chronicle Publ’g Co., 154 Cal. App. 3d 1040 (Ct. App. 1984) ................................................................. 12 2 Summit Bank v. Rogers, 206 Cal. App. 4th 669 (2012) ................................................................................. 13 3 Taus v. Loftus, 4 40 Cal. 4th 683 (2007) ............................................................................................ 12 5 Walden v. Fiore, 571 U.S. 277 (2014).............................................................................................. 7, 8 6 Other Authorities 7 Cal. Civ. Proc. Code § 410.10 ..................................................................................... 4 8 Cal. Code Civ. Proc. Section 527.6 ........................................................................... 15 9 Cal. Code Civ. Proc. Section 527.6(i) ....................................................................... 16 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 NOTICE OF MOTION AND MOTION TO DISMISS BY DEFENDANT MATTHEW WEYMOUTH iv Case No. 2:19-cv-02306-MWF-AFMx Case 2:19-cv-02306-MWF-AFM Document 37 Filed 08/05/19 Page 8 of 24 Page ID #:302 1 I. SUMMARY OF ARGUMENT 2 Defendant Matthew Weymouth, a resident of Massachusetts, has been sued in 3 this Court based solely on actions he took in Georgia and Massachusetts. 4 Weymouth has no connection to the state of California, did not direct any activities 5 at California, and would suffer undue burden and expense if he were required to 6 litigate this action 2,600 miles from his home. Accordingly, the claims against 7 Weymouth must be dismissed for lack of personal jurisdiction pursuant to Fed. R. 8 Civ. P. 12(b)(2). 9 Even if jurisdiction over Weymouth were proper, plaintiff Matthew Hogan has 10 failed to state a claim against him. Hogan’s claim for disclosure of intimate private 11 facts fails because the subject matter disclosed—Hogan’s text messages to his 12 acquaintance Weymouth—were not intimate details of Hogan’s private life, were not 13 “private,” and were the subject of a legitimate public interest. Hogan’s claim for 14 intentional infliction of emotional distress fails because Weymouth’s alleged actions 15 are not sufficiently “outrageous” to qualify for that cause of action and because 16 Hogan has alleged no severe emotional distress. Finally, Hogan’s claim for “civil 17 harassment” fails to allege facts showing the existence of harassment or that any 18 alleged harassment is likely to recur. 19 II. STATEMENT OF FACTS 20 Defendant Matthew J. Weymouth (“Weymouth”) is a citizen of 21 Massachusetts. (Compl. ¶ 3; Weymouth Dec. ¶ 2). Weymouth owns no assets in 22 California, and does not do business of any kind in California. (Weymouth Dec. 23 ¶ 4). He has visited California once, seven years ago. (Id.) 24 Plaintiff Matthew Hogan (“Hogan”) is a resident of California. (Compl. ¶ 2). 25 Hogan alleges that he met Weymouth “through mutual friends during college.” 26 (Compl. ¶ 12). Weymouth went to college in Rhode Island and met Hogan in 27 Massachusetts. (Weymouth Dec. ¶ 3). 28 NOTICE OF MOTION AND MOTION TO DISMISS BY DEFENDANT MATTHEW WEYMOUTH 1 Case No. 2:19-cv-02306-MWF-AFMx Case 2:19-cv-02306-MWF-AFM Document 37 Filed 08/05/19 Page 9 of 24 Page ID #:303 1 In early 2019, Hogan was working for the Los Angeles Rams as an “account 2 executive.” (Compl. ¶ 2). The Rams were scheduled to play the New England 3 Patriots in Super Bowl LIII on February 3, 2019. Hogan alleges that in the days 4 leading up to the Super Bowl, he learned through social media that his acquaintance 5 Weymouth would be attending the event in Atlanta, Georgia. (Compl. ¶¶ 16-21). 6 Hogan also planned to attend the game, and he communicated with Weymouth in the 7 days leading up to it. Weymouth and Hogan also met up for drinks in Atlanta in the 8 days leading up to the game. (Compl. ¶ 22). 9 Hogan acknowledges that he knew that Weymouth was a Patriots fan and that 10 Weymouth had a social relationship with Patriots’ defensive player Patrick C. 11 Chung, also a defendant in this action. (Compl. ¶ 15). Hogan also knew that 12 Weymouth was traveling on the Patriots’ charter airplane to Atlanta. (Id.; Ex. A). 13 During the third quarter of the Super Bowl, Patrick Chung was seriously 14 injured in the midst of a tackle, breaking his right forearm. (Compl. ¶ 31). 15 Immediately after this injury, Hogan texted Weymouth: “Patrick Chung is a bitch.” 16 (Compl. ¶ 27). Hogan alleges that he intended the statement as a joke, but 17 Weymouth, concerned about his injured friend Chung, did not find it funny, and sent 18 a text to Hogan rebuking him for this comment. (Compl. ¶ 34 and Ex. A). Hogan 19 responded by mocking Weymouth, further angering him. (Compl. Ex. A). The text 20 exchange took place while Hogan and Weymouth were both in Atlanta, Georgia. 21 (Weymouth Dec. ¶ 6). 22 Hogan alleges that after the game, Weymouth took screenshots of parts of the 23 text exchange and shared them with Chung, including the disparaging comment 24 Hogan made about Chung after his injury. (Compl. ¶ 32). Chung then posted the 25 screenshots on his Instagram and Facebook pages, along with a comment criticizing 26 Hogan for disrespectfully mocking an injured player. (Dec. of Patrick Chung ¶ 5). 27 Hogan alleges, solely “[o]n information and belief,” that “Weymouth 28 composed and posted the Instagram and Facebook posts on Chung’s behalf,” but NOTICE OF MOTION AND MOTION TO DISMISS BY DEFENDANT MATTHEW WEYMOUTH 2 Case No. 2:19-cv-02306-MWF-AFMx Case 2:19-cv-02306-MWF-AFM Document 37 Filed 08/05/19 Page 10 of 24 Page ID #:304 1 provides no factual basis for this assertion. (Compl., ¶ 37). Hogan further alleges, 2 also on information and belief, that “Weymouth manages these accounts for Chung 3 and sometimes posts to them on Chung’s behalf,” but again provides no facts 4 supporting that assertion. (Compl. ¶ 4). As set forth in the Declarations of Matthew 5 Weymouth and Patrick Chung, neither of these allegations is true. Weymouth 6 neither composed nor posted the Facebook or Instagram postings, nor has he ever 7 “manage[d]” or posted content to Chung’s social media accounts. (Weymouth Dec. 8 ¶ 7; Chung Dec. ¶¶ 5-6). 9 Hogan filed the instant Complaint on March 28, 2019. As the Court has aptly 10 summarized, “The crux of the Complaint is that Plaintiff’s ‘playful trash talk’ with 11 Defendant Weymouth—concerning co-Defendant Patrick Chung’s injuries during 12 the Superbowl LIII game—resulted in harm to Plaintiff’s reputation, various forms 13 of harassment on social media, and loss of economic opportunities.” (Order, June 14 12, 2019, Doc. 21 at 1). Hogan alleges three claims against Weymouth: “Disclosure 15 of Private Facts,” “Intentional Infliction of Emotional Distress,” and “Civil 16 Harassment.” (Compl. Counts 2, 4 and 5). 17 Along with his complaint, Hogan filed an ex parte motion for an order 18 prohibiting “harassment” by Weymouth. On March 29, 2019 the Court summarily 19 denied the request on the grounds that the motion failed to meet federal standards for 20 a temporary restraining order, and because Weymouth had not yet been served. 21 (Order, March 29, 2019, Doc. No. 9). On May 6, 2019, Hogan filed a substantively 22 identical motion, again without having served Weymouth. (Doc. No. 11). The 23 Court denied the second motion on June 12, 2019, on the grounds that it “simply 24 restates some of the allegations in the Complaint, and there appears to be no 25 indication of ongoing threats apart from texts and social media posts in February 26 2019.” (Order, June 12, 2019, Doc. 21 at 2). 27 On June 15, 2019, Weymouth was served with process. 28 NOTICE OF MOTION AND MOTION TO DISMISS BY DEFENDANT MATTHEW WEYMOUTH 3 Case No. 2:19-cv-02306-MWF-AFMx Case 2:19-cv-02306-MWF-AFM Document 37 Filed 08/05/19 Page 11 of 24 Page ID #:305 1 III. 2 THIS COURT LACKS PERSONAL JURISDICTION OVER WEYMOUTH “Due process requires that the defendant have certain minimum contacts with 3 4 the forum state such that the maintenance of the suit does not offend traditional 5 notions of fair play and substantial justice.” Picot v. Weston, 780 F.3d 1206, 1211 6 (9th Cir. 2015) (internal quotations omitted). Defendant Matthew Weymouth has no 7 “contacts” with California at all, is not alleged to have committed any acts in 8 California, and did not purposefully direct any activity toward California. 9 Accordingly, the Court lacks jurisdiction over Weymouth, and the claims against 10 him must be dismissed. On a motion such as this, “the plaintiff bears the burden of establishing that 11 12 jurisdiction is proper.”1 Ranza v. Nike, Inc., 793 F.3d 1059, 1068 (9th Cir. 2015) 13 (internal quotations omitted). There are two types of personal jurisdiction, “general” 14 and “specific.” Plaintiff alleges no facts remotely suggesting that Weymouth could 15 be subjected to “general jurisdiction,” which requires that the defendant’s 16 “affiliations with the State in which suit is brought [be] so constant and pervasive as 17 to render [him] essentially at home in the forum State.” Daimler AG v. Bauman, 571 18 U.S. 117, 122 (2014). Moreover, as Weymouth states in his declaration, he has no 19 California contacts at all, let alone “constant and pervasive” contacts. (Weymouth 20 Dec. ¶ 4). Accordingly, the balance of this section will address whether the Court 21 has “specific jurisdiction,” meaning jurisdiction that derives from the facts alleged in 22 this case. 23 24 1 The discussion below will be confined to the question of whether jurisdiction is proper 25 under the due process clause of the 14th Amendment to the U.S. Constitution, and will not 26 separately address the California “long arm” statute. The long-arm statute, Cal. Civ. Proc. Code § 410.10, is coextensive with federal due process requirements, and therefore the jurisdictional 27 analyses under state law and federal due process are the same. Mavrix Photo, Inc. v. Brand Techs., Inc., 647 F.3d 1218, 1223 (9th Cir. 2011); Rosen v. Terapeak, Inc., No. CV-15-00112-MWF (EX), 28 2015 WL 12724071, at *2 (C.D. Cal. Apr. 28, 2015). NOTICE OF MOTION AND MOTION TO DISMISS BY DEFENDANT MATTHEW WEYMOUTH 4 Case No. 2:19-cv-02306-MWF-AFMx Case 2:19-cv-02306-MWF-AFM Document 37 Filed 08/05/19 Page 12 of 24 Page ID #:306 1 This Circuit applies a three-part test to determine whether specific jurisdiction 2 exists over a non-resident defendant: 3 (1) the non-resident defendant must purposefully direct his activities to or 4 consummate some transaction with the forum or resident thereof; or 5 perform some act by which he purposefully avails himself of the 6 privilege of conducting activities in the forum, thereby invoking the 7 benefits and protections of its laws; (2) the claim must be one which arises out of or relates to the defendant’s 8 9 forum-related activities; and 10 (3) the exercise of jurisdiction must comport with fair play and substantial 11 justice, i.e. it must be reasonable. 12 Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 802 (9th Cir. 2004). 13 Hogan bears the burden of proof on prongs (1) and (2)—if he carries it, then 14 Weymouth may establish that the exercise of jurisdiction would be unreasonable 15 pursuant to prong (3). In this process, “[t]he parties may submit, and the court may 16 consider, declarations and other evidence outside the pleadings in determining 17 whether it has personal jurisdiction.” Kellman v. Whole Foods Mkt., Inc., 313 F. 18 Supp. 3d 1031, 1042 (N.D. Cal. 2018) (citing Doe v. Unocal Corp., 248 F.3d 915, 19 922 (9th Cir. 2001)). 20 As explained below, Hogan cannot satisfy either the “purposeful direction” 21 standard, nor can he show that his claims against Weymouth arise out of 22 Weymouth’s California-related activities. And, even if he could do both of these 23 things, the exercise of jurisdiction against Weymouth would still be unreasonable. 24 A. 25 Hogan’s claims sound in tort, and therefore he must show that Weymouth Weymouth Did Not Purposefully Direct his Actions at California. 26 “purposefully direct[ed]” his activities toward California. Schwarzenegger, 374 27 F.3d at 802; Perry v. Brown, No. CV 18-9543-JFW(SSX), 2019 WL 1452911, at *6 28 (C.D. Cal. Mar. 13, 2019) (“the purposeful direction concept applies in tort cases”). NOTICE OF MOTION AND MOTION TO DISMISS BY DEFENDANT MATTHEW WEYMOUTH 5 Case No. 2:19-cv-02306-MWF-AFMx Case 2:19-cv-02306-MWF-AFM Document 37 Filed 08/05/19 Page 13 of 24 Page ID #:307 1 A showing of purposeful direction “requires that the defendant . . . have 2 (1) committed an intentional act; (2) expressly aimed at the forum state; and 3 (3) causing harm that the defendant knows is likely to be suffered in the forum 4 state.” Schwarzenegger, 374 F.3d at 803. Here, Weymouth is alleged to have 5 committed intentional acts, but none of them was “expressly aimed at the forum 6 state.” The Supreme Court has held that to satisfy due process, “there must be ‘an 7 8 affiliation between the forum,” here, California, “and the underlying controversy, 9 principally, [an] activity or an occurrence that takes place in the forum State and is 10 therefore subject to the State’s regulation.’” Bristol-Myers Squibb Co. v. Superior 11 Court of California, San Francisco Cty., 137 S. Ct. 1773, 1780 (2017) (emphasis 12 supplied) (quoting Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 13 919 (2011)). “When there is no such connection, specific jurisdiction is lacking 14 regardless of the extent of a defendant’s unconnected activities in the State.” Id. at 15 1781; see also Daimler AG, 571 U.S. at 127 (specific jurisdiction over a non16 resident defendant may exist where a suit “arises out of or relates to the defendant’s 17 contacts with the forum”) (internal citations omitted) (emphasis supplied). Here, no “activity or . . . occurrence . . . [took] place in the forum State.” 18 19 Bristol-Myers Squibb Co., 137 S. Ct. at 1780. Weymouth did not engage in any 20 actions in California, or direct any activity into California. Rather, the sum total of 21 Weymouth’s actions amounts to: (1) sending text messages to Hogan while both 22 Weymouth and Hogan were in Atlanta, Georgia, and (2) sharing screenshots of the 23 texts with Chung in Massachusetts. (Compl., ¶¶ 30-39; Weymouth Dec., ¶¶ 6-7; 24 Chung Dec., ¶¶ 5-6).2 25 Contrary to Hogan’s allegations on mere “information and belief,” Weymouth did not post any of the allegedly actionable content on social media. (Chung Dec. ¶¶ 5-6; Weymouth Dec. ¶ 7). 26 The declarations of both Chung and Weymouth confirm as much, id., and on a motion to dismiss 27 for lack of personal jurisdiction, the courts “accept as true any facts contained in the defendant’s affidavits that remain unrefuted by the plaintiff.” GCIU-Employer Ret. Fund v. Goldfarb Corp., 28 565 F.3d 1018, 1020 n. 1 (7th Cir. 2009). Likewise, the Complaint’s conclusory assertion “on 2 NOTICE OF MOTION AND MOTION TO DISMISS BY DEFENDANT MATTHEW WEYMOUTH 6 Case No. 2:19-cv-02306-MWF-AFMx Case 2:19-cv-02306-MWF-AFM Document 37 Filed 08/05/19 Page 14 of 24 Page ID #:308 1 The mere fact that Hogan happens to reside in California is insufficient to 2 establish personal jurisdiction over Weymouth, because the “’minimum contacts’ 3 analysis looks to the defendant’s contacts with the forum State itself, not the 4 defendant’s contacts with persons who reside there.” Walden v. Fiore, 571 U.S. 5 277, 285 (2014) (emphasis supplied). Further, any injury Hogan claims to have 6 suffered in California “is jurisdictionally relevant only insofar as it shows that the 7 defendant has formed a contact with the forum State.” Id. at 290 (emphasis 8 supplied); see Picot, 780 F.3d at 1214. “The plaintiff,” in other words, “cannot be 9 the only link between the defendant and the forum.” Walden, 571 U.S. at 285. 10 The Supreme Court’s decision in Walden is particularly instructive. In that 11 case, Anthony Walden, a Georgia law enforcement officer working at the Atlanta 12 Hartsfield-Jackson Airport, seized $97,000 belonging to Gina Fiore and Keith 13 Gipson, residents of Nevada, who were in the process of catching a connecting flight 14 to Las Vegas. Walden, 571 U.S. at 280-281. The suit, filed in federal court in 15 Nevada, alleged that Walden violated the plaintiffs’ Fourth Amendment rights by 16 seizing the money in Atlanta without probable cause, and by preparing false 17 affidavits to justify the seizure, knowing the plaintiffs lived in Nevada. Id. at 281. 18 The plaintiffs argued that the Georgia officer was subject to suit in Nevada because 19 his actions, including the swearing out of a false affidavit, were “expressly aimed” at 20 them and caused them foreseeable harm in their home state. 21 The Supreme Court unanimously rejected personal jurisdiction. Walden, 571 22 U.S. at 291. The court held that “the defendant’s suit-related conduct must create a 23 substantial connection with the forum State” for jurisdiction to be “consistent with 24 due process.” Id. at 284. In deciding whether such a connection exists, the proper 25 26 information and belief” that Weymouth made unidentified false statements to Chung about the text messages is also refuted by Weymouth’s declaration, (Weymouth Dec. ¶ 6), and such vague 27 “labels and conclusions” cannot raise an entitlement to relief in any event. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007). More to the point, any such misstatements are not alleged 28 to have been made into California, and therefore cannot satisfy the “purposeful direction” test. NOTICE OF MOTION AND MOTION TO DISMISS BY DEFENDANT MATTHEW WEYMOUTH 7 Case No. 2:19-cv-02306-MWF-AFMx Case 2:19-cv-02306-MWF-AFM Document 37 Filed 08/05/19 Page 15 of 24 Page ID #:309 1 analysis “looks to the defendant’s contacts with the forum State itself, not the 2 defendant’s contacts with persons who reside there.” Id. at 285 (emphasis supplied). 3 Thus, even where the parties have had extensive dealings and the plaintiff resides in 4 the forum state, “the relationship must arise out of contacts that the ‘defendant 5 himself’ creates with the forum State”—“mere injury to a forum resident is not a 6 sufficient connection to the forum.” Id. at 284, 290. Stated differently, “it is the 7 defendant’s conduct that must form the necessary connection with the forum State 8 that is the basis for its jurisdiction over him.” Id. at 285. 9 So, the Court held that Walden, who “never traveled to, conducted activities 10 within, contacted anyone in, or sent anything or anyone to Nevada,” had formed “no 11 jurisdictionally relevant contacts with Nevada,” and thus jurisdiction over him in 12 that state was improper. Id. at 289, 291. As this Court later summarized, Walden 13 holds that the “analysis must focus on the defendant’s wrongful acts directed at the 14 forum, rather than the effect those acts have on a plaintiff in their place of 15 residence.” Rosen v. Terapeak, Inc., No. CV-15-00112-MWF (EX), 2015 WL 16 12724071, at *6 (C.D. Cal. Apr. 28, 2015). 17 Like Officer Walden, Weymouth has no “jurisdictionally relevant” contacts 18 with California. He did not commit any act in California or direct any activity into 19 California. Per Walden, the mere fact that Hogan allegedly suffered “effect[s]” in 20 California from Weymouth’s alleged acts elsewhere is insufficient, because it does 21 not show any connection between Weymouth and California itself. Walden, 571 22 U.S. at 290; Rosen, 2015 WL 12724071, *6. 23 Hogan cannot carry his burden of showing “purposeful direction” by pointing 24 to the fact that parties other than Weymouth published material online. Notably, 25 Hogan has not included Weymouth in his causes of action for defamation or false 26 light invasion of privacy, the primary publication-related torts at issue. (Compl. 27 Claims 1 and 3). Rather, he has sued Weymouth solely for disclosure of intimate 28 private facts (presumably for sharing the texts with Chung); “harassment” (based on NOTICE OF MOTION AND MOTION TO DISMISS BY DEFENDANT MATTHEW WEYMOUTH 8 Case No. 2:19-cv-02306-MWF-AFMx Case 2:19-cv-02306-MWF-AFM Document 37 Filed 08/05/19 Page 16 of 24 Page ID #:310 1 text messages sent within Georgia); and intentional infliction of emotional distress 2 (for the above actions). (Compl. Claims 2, 4 and 5). 3 However, even if Hogan were suing Weymouth based on the social media 4 posts, his claims would run into two insurmountable obstacles. First, the 5 declarations establish that Weymouth did not post any of the relevant social media 6 content, notwithstanding Hogan’s bare and unsupported allegation “on information 7 and belief” to the contrary. (Weymouth Dec. ¶ 7; Chung Dec. ¶¶ 5-6); In re Cathode 8 Ray Tube (CRT) Antitrust Litig., 27 F. Supp. 3d 1002, 1008 (N.D. Cal. 2014) (on a 9 motion to dismiss for lack of personal jurisdiction, “[t]he Court may not assume the 10 truth of allegations [in a complaint] that are contradicted by affidavit”). 11 Second, a non-resident’s mere act of uploading information to a website that 12 is available for all to see is insufficient to establish nationwide personal jurisdiction. 13 Mavrix Photo, Inc. v. Brand Techs., Inc., 647 F.3d 1218, 1229 (9th Cir. 2011) 14 (“[W]e have made clear that ‘maintenance of a passive website alone,’” without 15 “something more,” “‘cannot satisfy the express aiming prong.’”) (quoting Brayton 16 Purcell LLP v. Recordon & Recordon, 606 F.3d 1124, 1127 (9th Cir. 2010)); see 17 also, e.g., Remick v. Manfredy, 238 F.3d 248 (3rd Cir. 2001) (“[T]he mere posting of 18 information or advertisements on an Internet website does not confer nationwide 19 personal jurisdiction.”); Edwards v. Schwartz, 378 F. Supp. 3d 468, 492 (W.D. Va. 20 2019) (“[M]ere injury to a [forum state] resident is not a sufficient connection,” and 21 therefore “posting defamatory statements on social media, without more, does not 22 constitute purposeful availment.”); Sec. Alarm Fin. Enterprises, L.P. v. Nebel, 200 F. 23 Supp. 3d 976, 985 (N.D. Cal. 2016) (defendant’s “social media posts are insufficient 24 to establish personal jurisdiction.”); Professional’s Choice Sports Med. Prod., Inc. v. 25 Hegeman, No. 15-CV-02505-BAS(WVG), 2016 WL 1450704, at *5 (S.D. Cal. Apr. 26 12, 2016) (holding no personal jurisdiction over Utah resident who made allegedly 27 false statements on Facebook page, because, “the Facebook page was, in essence, a 28 passive posting of information available for all to see”). NOTICE OF MOTION AND MOTION TO DISMISS BY DEFENDANT MATTHEW WEYMOUTH 9 Case No. 2:19-cv-02306-MWF-AFMx Case 2:19-cv-02306-MWF-AFM Document 37 Filed 08/05/19 Page 17 of 24 Page ID #:311 1 Accordingly, Hogan cannot sustain his burden of demonstrating that 2 Weymouth purposefully directed any activity toward California, and personal 3 jurisdiction must be deemed improper on this basis alone. 4 B. 5 6 This Case Does Not Arise out of Weymouth’s Contacts with California. As shown above, Hogan’s claims against Weymouth do not “arise[] out of or 7 relate[] to the defendant’s forum-related activities.” Schwarzenegger, 374 F.3d at 8 802. None of Weymouth’s alleged acts took place in California, nor were they 9 directed at California. For this additional reason, personal jurisdiction is improper. 10 11 12 C. The Exercise of Personal Jurisdiction Over Weymouth Would Be Unreasonable. Hogan cannot demonstrate that his claims are based on Weymouth’s 13 California-related activities, and therefore analysis of the third prong of specific 14 jurisdiction, the “fairness” factors identified in Burger King Corp. v. Rudzewicz, 471 15 U.S. 462, 475 (1985), is unnecessary. Schwarzenegger, 374 F.3d at 802. However, 16 even if those factors were considered, they cut in Weymouth’s favor. 17 “The extent of a defendant’s purposeful interjection.” Burger King Corp., 18 471 U.S. at 475. “Even if there is sufficient ‘interjection’ into the state to satisfy the 19 purposeful availment prong, the degree of interjection is a factor to be weighed in 20 assessing the overall reasonableness of jurisdiction under the reasonableness prong.” 21 Core-Vent Corp. v. Nobel Indus. AB, 11 F.3d 1482, 1488 (9th Cir. 1993), quoting 22 Insurance Company of North America v. Marina Salina Cruz, 649 F.2d 1266, 1271 23 (9th Cir.1981)). Here, Weymouth directed no actions at all toward California, so 24 this factor cuts in Weymouth’s favor. 25 “The burden on the defendant in defending in the forum.” Panavision 26 Int’l., 141 F.3d at 1323. The burden on Weymouth, a resident of Massachusetts, to 27 appear in California for this lawsuit would be substantial. Weymouth has no assets 28 NOTICE OF MOTION AND MOTION TO DISMISS BY DEFENDANT MATTHEW WEYMOUTH 10 Case No. 2:19-cv-02306-MWF-AFMx Case 2:19-cv-02306-MWF-AFM Document 37 Filed 08/05/19 Page 18 of 24 Page ID #:312 1 in California and no meaningful connection to California that would mitigate the 2 unfairness of requiring him to appear here. “The extent of conflict with the sovereignty of the defendant’s state” and 3 4 “the forum state’s interest in adjudicating the dispute.” Id. California may 5 have an interest in affording its residents a remedy for tortious harm, but none of the 6 acts in this case took place in California, whereas some of them took place in 7 Massachusetts. Accordingly, Massachusetts has at least as great an interest in this 8 action as California does. “The most efficient judicial resolution of the controversy.” Id. Hogan’s 9 10 claims against Weymouth could be handled efficiently in Massachusetts. Two of the 11 three obvious witnesses in Hogan’s case against Weymouth—Weymouth himself 12 and Chung—live in Massachusetts. (Weymouth Dec. ¶ 2; Chung Dec. ¶ 2). “The importance of the forum to the plaintiff’s interest in convenient and 13 14 effective relief.” Id. While Hogan may find it more convenient to sue Weymouth 15 in California, Hogan’s convenience is not of paramount concern. Dole Food Co. v. 16 Watts, 303 F.3d 1104, 1116 (9th Cir. 2002) (“[T]he plaintiff's convenience is not of 17 paramount importance.”) “The existence of an alternative forum.” Again, Hogan may sue Weymouth 18 19 in a Massachusetts court. 20 Accordingly, even if Hogan could somehow establish that Weymouth 21 purposefully directed his activities toward California, the exercise of jurisdiction 22 over him would violate norms of fair play and substantial justice. This action should 23 be dismissed for lack of personal jurisdiction. 24 IV. HOGAN FAILS TO STATE A CLAIM AGAINST WEYMOUTH. 25 Even if Hogan were able to establish personal jurisdiction over Weymouth, 26 his complaint must be dismissed pursuant to Fed. R. Civ. P. 12(b)(6) because it fails 27 to state any claim upon which relief may be granted. 28 NOTICE OF MOTION AND MOTION TO DISMISS BY DEFENDANT MATTHEW WEYMOUTH 11 Case No. 2:19-cv-02306-MWF-AFMx Case 2:19-cv-02306-MWF-AFM Document 37 Filed 08/05/19 Page 19 of 24 Page ID #:313 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 A. Hogan Has Failed to State a Claim for Public Disclosure of Intimate Private Facts. The California Supreme Court has “set forth the elements of the publicdisclosure-of-private-facts tort as follows: ‘(1) public disclosure, (2) of a private fact, (3) which would be offensive and objectionable to the reasonable person, and (4) which is not of legitimate public concern.’” Karimi v. Golden Gate Sch. of Law, 361 F. Supp. 3d 956, 980 (N.D. Cal. 2019) (quoting Taus v. Loftus, 40 Cal. 4th 683, 717 (2007)). To meet this test, the disclosure at issue must reveal “intimate details of plaintiffs’ lives.” Taus, 40 Cal. 4th at 718 (2007) (noting that the “publicdisclosure-of-private-facts tort applies to ‘the unwarranted publication by defendant of intimate details of plaintiffs’ lives’”), quoting Coverstone v. Davies, 38 Cal.2d 315, 323 (1952); Sipple v. Chronicle Publ’g Co., 154 Cal. App. 3d 1040, 1047 (Ct. App. 1984) (defining “public disclosure of private facts” as “the unwarranted publication of intimate details of one’s private life which are outside the realm of legitimate public interest.”). The text messages that Weymouth disclosed to Chung did not reveal “intimate private details” of Hogan’s life. Karimi, 361 F. Supp. 3d at 980 (statement that plaintiff had been required to leave law school for period of time did not reveal intimate details). Rather, they merely showed that Hogan made an insensitive remark in a text message about a professional football player. The claim fails for this reason alone. Even if the text messages could somehow be deemed “intimate details,” however, the texts are of “legitimate public concern” because they involve an employee of the Los Angeles Rams making disrespectful and mocking comments about a seriously injured player on the opposite team in the midst of the biggest game of the year. Karimi, 361 F. Supp. 3d at 980. The posts led to significant media attention, demonstrating the public interest behind them. See, e.g., Compl. ¶¶ 46 & 48, and Exs. B-F. This interest extended to social media as well: Exhibit D NOTICE OF MOTION AND MOTION TO DISMISS BY DEFENDANT MATTHEW WEYMOUTH 12 Case No. 2:19-cv-02306-MWF-AFMx Case 2:19-cv-02306-MWF-AFM Document 37 Filed 08/05/19 Page 20 of 24 Page ID #:314 1 to the Complaint shows that Chung’s Instagram post revealing the text messages had 2 garnered 4,693 “likes” and 357 comments by the time defendant Beasley published 3 its article concerning the post. Summit Bank v. Rogers, 206 Cal. App. 4th 669, 695 4 (2012) (the “fact that [defendant’s] posts drew numerous comments” showed 5 “considerable public interest”); Hecimovich v. Encinal School Parent Teacher 6 Organization, 203 Cal. App. 4th 450, 467 (2012) (statements criticizing a volunteer 7 fourth grade basketball coach’s treatment of his players a matter of public interest 8 because of broad importance of child safety in sports.) Accordingly, the disclosure 9 of the texts was outside the scope of the “private facts” tort. Shulman v. Grp. W 10 Prods., Inc., 18 Cal. 4th 200, 225 (1998), as modified on denial of reh’g (July 29, 11 1998) (“[A] publication is newsworthy if some reasonable members of the 12 community could entertain a legitimate interest in it.”) 13 Finally, Hogan fails to plausibly allege that his deliberately provocative text 14 message to Weymouth was “private” in any meaningful sense. Hogan has alleged 15 no facts showing that Weymouth promised to keep his text communications with 16 Hogan private. Hogan may be embarrassed by his words now, but he has not 17 alleged facts showing a reasonable expectation of privacy in the texts. Hogan has 18 thus failed to state a claim against Weymouth for public disclosure of intimate 19 private facts. 20 21 22 B. Hogan Has Failed to State a Claim for Intentional Infliction of Emotional Distress. “A claim for Intentional Infliction of Emotional Distress (‘IIED’) requires a 23 showing of the following: ‘(1) extreme and outrageous conduct by the defendant 24 with the intention of causing, or reckless disregard of the probability of causing, 25 emotional distress; (2) the plaintiff’s suffering severe or extreme emotional distress; 26 and (3) actual and proximate causation of the emotional distress by the defendant’s 27 outrageous conduct.’” Plater v. United States, 359 F. Supp. 3d 930, 942 (C.D. Cal. 28 2018) (quoting Christensen v. Superior Court, 54 Cal. 3d 868, 903 (1991)). For NOTICE OF MOTION AND MOTION TO DISMISS BY DEFENDANT MATTHEW WEYMOUTH 13 Case No. 2:19-cv-02306-MWF-AFMx Case 2:19-cv-02306-MWF-AFM Document 37 Filed 08/05/19 Page 21 of 24 Page ID #:315 1 purposes of this tort, “extreme and outrageous conduct” generally “does not extend 2 to mere insults, indignities, threats, annoyances, petty oppressions, or other 3 trivialities, but only to conduct so extreme and outrageous as to go beyond all 4 possible bonds of decency.” Ankeny v. Lockheed Missiles & Space Co., 88 Cal. 5 App. 3d 531, 537 (1979) (citation omitted) (demurrer with respect to claim for 6 intentional infliction of emotional distress); Braunling v. Countrywide Home Loans 7 Inc., 220 F.3d 1154, 1158 (9th Cir. 2000) (“Conduct which exhibits mere rudeness 8 and insensitivity does not rise to the level required for a showing of intentional 9 infliction of emotional distress.”). 10 Here, Weymouth’s alleged conduct did not come close to exceeding “all 11 bounds of reasonable decency.” At most, the complaint shows that Weymouth 12 became upset when Hogan mocked his injured friend, Chung, and became more 13 upset when Hogan responded to Weymouth’s rebuke of his insensitive words with 14 further mockery. (Compl. Ex. A, e.g. correcting Weymouth’s use of “your” to 15 “you’re” and writing, “Oh my God! That’s so nice of you.”). After Hogan 16 deliberately triggered a reaction from Weymouth, he threatened to share 17 Weymouth’s angry messages with his employer. (Id.) Hogan, in other words, chose 18 to taunt Weymouth and Chung, predictably making Weymouth angry. Indeed, 19 Hogan admitted in the text exchange that his “bitch” remark was an “asshole 20 comment.” (Compl., Ex. A). Hogan has failed to allege facts showing that 21 Weymouth’s emotional reaction, under the circumstances of a serious injury to his 22 friend, was “so extreme and outrageous as to go beyond all possible bonds of 23 decency.” Ankeny, 88 Cal. App. 3d at 537. 24 Even if Hogan could meet this hurdle, however, his claim of IIED should be 25 dismissed because he has failed to allege facts showing severe emotional distress. 26 “’With respect to the requirement that the plaintiff show severe emotional distress, 27 this court has set a high bar. Severe emotional distress means emotional distress of 28 such substantial quality or enduring quality that no reasonable person in civilized NOTICE OF MOTION AND MOTION TO DISMISS BY DEFENDANT MATTHEW WEYMOUTH 14 Case No. 2:19-cv-02306-MWF-AFMx Case 2:19-cv-02306-MWF-AFM Document 37 Filed 08/05/19 Page 22 of 24 Page ID #:316 1 society should be expected to endure it.’” Duronslet v. Cty. of Los Angeles, 266 F. 2 Supp. 3d 1213, 1220 (C.D. Cal. 2017) (quoting Hughes v. Pair, 46 Cal. 4th 1035, 3 1051 (2009) (allegation that the plaintiff suffered “discomfort, worry, anxiety, upset 4 stomach, concern, and agitation” insufficient)). In Duronslet, the court dismissed an 5 IIED claim where the plaintiff alleged that she suffered “shock, embarrassment, and 6 emotional distress” as a result of the defendant’s conduct, because these were 7 “simply insufficient allegations” of severe emotional distress. Here, Hogan has 8 merely alleged, in purely conclusory fashion, that he suffered “severe emotional 9 distress.” (Compl. ¶¶ 59, 88). This is plainly insufficient, and his IIED claim must 10 therefore be dismissed. 11 12 13 C. Hogan Has Failed to Allege Facts that Meet the “Civil Harassment” Standard. Hogan’s fifth cause of action, titled “Civil Harassment,” alleges that 14 Weymouth made “credible threats of violence” toward Hogan, and “engaged in a 15 knowing and willful course of conduct directed at the plaintiff that: (a) seriously 16 alarms, annoys, and harasses the plaintiff; (b) serves no legitimate purpose; and (c) 17 has caused substantial emotional distress to the plaintiff.” These allegations track 18 the language of Cal. Code Civ. Proc. Section 527.6, which “provides a person who 19 has suffered harassment the right to seek an injunction.” Bolbol v. Brown, 120 F. 20 Supp. 3d 1010, 1013 (N.D. Cal. 2015). Under the statute, “’the court must hold a 21 hearing, receive relevant testimony, and issue the injunction if it finds, by clear and 22 convincing evidence, that harassment exists.’” Id. (emphasis supplied), quoting 23 Nora v. Kaddo, 116 Cal. App. 4th 1026, 1028 (2004). However, “[a]n injunction is 24 authorized only when it appears that wrongful acts are likely to recur.” Russell v. 25 Douvan, 112 Cal. App. 4th 399, 402 (2003). 26 Hogan’s complaint fails to allege facts that could justify an injunction under 27 this standard. As the Court observed in its June 12, 2019 Order, “there appears to be 28 no indication of ongoing threats apart from texts and social media posts in February NOTICE OF MOTION AND MOTION TO DISMISS BY DEFENDANT MATTHEW WEYMOUTH 15 Case No. 2:19-cv-02306-MWF-AFMx Case 2:19-cv-02306-MWF-AFM Document 37 Filed 08/05/19 Page 23 of 24 Page ID #:317 1 2019.” (Order, June 12, 2019, Doc. 21 at 2). Indeed, all alleged acts that 2 supposedly constituted “harassment” occurred by February 6, 2019, yet plaintiff 3 waited until March 28, 2019, to file his complaint and motion to prevent 4 “harassment,” demonstrating that he did not believe such further acts were likely to 5 recur during the intervening six weeks. As of today’s date, August 5, 2019, Hogan 6 has not amended his complaint or otherwise alleged facts showing that any supposed 7 “harassment” has occurred since early February, or is likely to recur again. 8 Accordingly, plaintiff has failed to allege facts showing that “unlawful harassment 9 exists” today, nor that the allegedly “wrongful acts are likely to recur”—and 10 certainly not facts that could satisfy his burden of “clear and convincing evidence” 11 under Section 527.6. Russell, 112 Cal. App. 4th at 402; Cal. Code Civ. Proc. 12 Section 527.6(i). 13 V. CONCLUSION 14 For the foregoing reasons, Defendant Matthew Weymouth respectfully 15 requests that this action be dismissed for lack of personal jurisdiction pursuant to 16 Fed. R. Civ. P. 12(b)(2), and for failure to state a claim upon which relief may be 17 granted pursuant to Fed. R. Civ. P. 12(b)(6). 18 19 20 21 22 23 24 25 26 27 28 NOTICE OF MOTION AND MOTION TO DISMISS BY DEFENDANT MATTHEW WEYMOUTH 16 Case No. 2:19-cv-02306-MWF-AFMx Case 2:19-cv-02306-MWF-AFM Document 37 Filed 08/05/19 Page 24 of 24 Page ID #:318 1 Dated: August 5, 2019 2 3 4 5 6 7 8 Respectfully submitted, /s/ Aaron S. Jacobs Jeffrey J. Pyle (pro hac vice pending) jpyle@princelobel.com Aaron S. Jacobs (Cal. Bar No. 214953) ajacobs@princelobel.com PRINCE LOBEL TYE LLP One International Place, Suite 3700 Boston, MA 02110 tel. (617) 456-8000 fax (617) 456-8100 9 10 11 12 13 14 15 Matthew Vella (Cal. Bar No. 314548) mvella@princelobel.com PRINCE LOBEL TYE LLP 357 S Coast Highway, Suite 200 Laguna Beach, CA 92651 tel. (949) 232-6375 fax (949) 861-9133 Attorneys for Defendant Matthew J. Weymouth 16 17 18 19 20 21 22 23 24 25 26 27 28 NOTICE OF MOTION AND MOTION TO DISMISS BY DEFENDANT MATTHEW WEYMOUTH 17 Case No. 2:19-cv-02306-MWF-AFMx