The opinion of the court was delivered by: Debevoise, Senior District Judge.
Plaintiffs filed this civil rights action against the
above-named government defendants, alleging violations of their
First and Fifth Amendment rights to freedom of speech and
procedural and substantive due process. Plaintiffs seek damages
as well as injunctive and declaratory relief. Four motions are
presently pending before the Court.
Alleging an ongoing violation of their rights, plaintiffs moved
for leave to conduct expedited discovery in this matter.
Plaintiffs' motion was granted and defendants moved for
reconsideration of that order or for a stay of discovery pending
resolution of their motion to dismiss. Defendants' motion for
reconsideration has since been withdrawn as moot, but they
maintain their request for a stay of discovery. Because
defendants' motions to dismiss are resolved by this opinion, the
motion for a stay of discovery pending
resolution of those motions will be dismissed as moot.
As for the motions to dismiss, all of the defendants move to
dismiss the complaint on the grounds of lack of standing and
failure to state a cause of action. Defendants Lisa Korologos and
Joseph Metzinger, sued individually and in their official
capacities, have filed additional motions to dismiss asserting
certain defenses personal to them. For the reasons set forth
below, defendants' motions to dismiss the official capacity
claims will be granted. Because the court lacks personal
jurisdiction over defendant Korologos, the remaining claims will
be transferred to the United States District Court for the
Southern District of New York for further proceedings.
On a motion to dismiss, all allegations set forth in the
complaint must be accepted as true and all reasonable inferences
must be drawn in the plaintiff's favor. Schrob v. Catterson,
948 F.2d 1402, 1405 (3d Cir. 1991). Thus, the following facts are
drawn from plaintiffs' complaint.
Plaintiff Michael Zieper is an independent filmmaker who lives
in West Caldwell, New Jersey. He is the creator of a fictional
short film titled "Military Takeover of New York City",
consisting of daytime footage of Times Square accompanied by a
voice-over of an actor portraying a military officer who debriefs
other officers on a planned military takeover of the city on New
Year's Eve ("the Film"). The Film is intentionally framed in a
realistic style, with nothing to indicate that it is a fictional
dramatization. The purpose of the Film, according to the
complaint, was to raise issues about the then-upcoming
millennium, Americans' distrust of government, and the use of
racial hatred to manipulate the American people.
Plaintiff Mark Wieger lives in Edwardsburg, Michigan, and is
the owner of a web hosting company, plaintiff BECamation.*fn1
Exhibition of movies on the Internet provides small filmmakers
with an affordable alternative to other methods of distribution.
After producing the film, Zieper contacted Wieger to arrange for
placement of the Film on the Internet. Internet users were then
able to view the Film by visiting a web site at http://www.
crowdedtheater.com, which included an e-mail address,
email@example.com, for users who wanted to contact the
film maker. The web site included a message stating:
Is there going to be a military takeover of New York
City on New Year's Eve 1999? I don't know too much
about this tape you are about to see. I got it from
my cousin Steve who's in the army. He said that
copies of this tape are floating around the base, and
nobody knows who made it. If it's a fake, then
there's nothing to worry about. If it's real, then
we're in really big trouble.
Exhibition of the Film began on October 28, 1999, and it became
the subject of several online discussion groups. The interest
generated resulted in a television news story about the Film,
including an interview with Zieper, which aired on UPN Channel 9
in the New York metropolitan area on November 10, 1999.
That same evening, Zieper, who was away from home, received a
telephone call on his pager. When he returned the call, it was
answered by a police officer who stated that he was standing at
the door of Zieper's home in West Caldwell with agents from the
Federal Bureau of Investigation. The agents, the police officer
informed Zieper, wanted to speak with him about the Film. Zieper
offered to call the next day to arrange a meeting with the FBI
The following day, Zieper consulted with attorneys and did not
return the call to Metzinger. Metzinger left two messages, asking
why Zieper had not called. Zieper's attorneys later called
Metzinger, who told them that FBI agents had again been
dispatched to Zieper's home. Over the next several days, Justice
Department officials publicly stated that they were conducting an
ongoing investigation into Zieper's activities.
Plaintiff Wieger received a call from Metzinger and defendant
Lisa Korologos several days later, on November 15, 1999. They
asked whether Wieger was the owner of the web site, and explained
that they had traced the site to him through his business
contacts. They further informed him that they had asked Online
Marketing, the business from whom Wieger had leased the web site,
to take the web site down if Wieger was unwilling to do so.
Wieger asked whether they wanted him to block public ...