Greenspan v. Masmarques

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AARON GREENSPAN, Plaintiff, v. DIEGO MASMARQUES, SERGEI IGOREVICH KUDRIAVTSEV, MEDIOLEX, LTD., and ASTRAD LTD., Defendants.

No. 23-cv-10134-DJC

United States District Court, D. Massachusetts

March 25, 2024

MEMORANDUM AND ORDER

DENISE J. CASPER, UNITED STATES DISTRICT JUDGE.

I. Introduction

Plaintiff Aaron Greenspan (“Greenspan”), who is proceeding pro se, has filed this lawsuit against Defendants Diego MasMarques (“MasMarques”), Sergei Igorevich Kudriavtsev (“Kudriavtsev”), Mediolex Ltd. (“Mediolex”) and Astrad Ltd. (“Astrad”) (collectively “Defendants”). D. 1, 54. Against MasMarques Greenspan alleges libel per se (Count I), civil harassment under Mass. Gen. L. c. 258E (Count II), tortious interference with prospective economic advantage (Count III), abuse of process (Count IV) and malicious prosecution (Count V). D. 54. Against Kudriavtsev, Mediolex, and Astrad (collectively, the “Complaints Board Defendants”), Greenspan alleges libel per se (Count VI), contribution (Count VII), negligent infliction of emotional distress (Count VIII), unfair or deceptive acts or practices under Mass. Gen. L. c. 93A § 2A (Counts IX, X and XI). Id. Finally, against all Defendants, Greenspan alleges civil conspiracy (XII), false light invasion of privacy (Count XIII) and intentional infliction of emotional distress (Count XIV). Id. MasMarques has moved to dismiss. D. 66.^[1] The Complaints Board Defendants have moved to dismiss all claims brought against them. D. 95. For the reasons stated below, the Court DENIES MasMarques's motion in part and ALLOWS it in part, D. 66, and ALLOWS the Complaints Board Defendants' motion, D. 95. The Court also DENIES Greenspan's motion for leave to file a second amended complaint, D. 102.

II. Standard of Review

A. Motion to Dismiss Pursuant to Fed.R.Civ.P. 12(b)(1)

Under Fed.R.Civ.P. 12(b)(1), a defendant can move to dismiss an action in federal court based upon a lack of subject matter jurisdiction. “[T]he party invoking the jurisdiction of a federal court carries the burden of proving its existence.” Murphy v. United States, 45 F.3d 520, 522 (1st Cir. 1995) (quoting Taber Partners, I v. Merit Builders, Inc., 987 F.2d 57, 60 (1st Cir. 1993)). Once a defendant challenges the jurisdictional basis for a claim in federal court pursuant to Fed.R.Civ.P. 12(b)(1), the plaintiff has the burden of proving that jurisdiction exists. Johansen v. United States, 506 F.3d 65, 68 (1st Cir. 2007). When considering a motion to dismiss for lack of subject matter jurisdiction under Fed.R.Civ.P. 12(b)(1), “the district court must construe the complaint liberally, treating all well-pleaded facts as true and indulging all reasonable inferences in favor of the plaintiff.” Aversa v. United States, 99 F.3d 1200, 1209-10 (1^st Cir. 1996) (citing Murphy, 45 F.3d at 522). The Court also “may consider whatever evidence has been submitted, such as the depositions and exhibits submitted in this case.” Id. at 1210.

B. Motion to Dismiss Pursuant to Fed.R.Civ.P. 12(b)(2)

When ruling on a motion to dismiss for lack of personal jurisdiction under Fed.R.Civ.P. 12(b)(2) without an evidentiary hearing, a district court applies the prima facie standard of review. United States v. Swiss Am. Bank, Ltd., 274 F.3d 610, 618 (1^st Cir. 2001) (citation omitted). “Under this standard, it is plaintiff's burden to demonstrate the existence of every fact required to satisfy both the forum's long-arm statute and the Due Process Clause of the Constitution.” Id. (quoting United Elec., Radio & Mach. Workers of Am. V. 163 Pleasant St. Corp., 987 F.2d 39, 44 (1^st Cir. 1993)). The Court considers the facts alleged in the pleadings as well as the parties' supplemental filings, including affidavits. Sawtelle v. Farrell, 70 F.3d 1381, 1385 (1^st Cir. 1995). The Court will “take specific facts affirmatively alleged by the plaintiff as true (whether or not disputed) and construe them in the light most congenial to the plaintiff's jurisdictional claim.” Mass. Sch. Of L. at Andover, Inc. v. Am. Bar Ass'n, 142 F.3d 26, 34 (1^stCir. 1998) (citation omitted). But it will “not credit conclusory allegations or draw farfetched inferences.” Ticketmaster-N.Y. v. Alioto, 26 F.3d 201, 203 (1^st Cir. 1994). The Court will also consider facts offered “by the defendants, to the extent that they are uncontradicted.” Mass. Sch. Of L., 142 F.3d at 34.

C. Motion to Dismiss Pursuant to Fed.R.Civ.P. 12(b)(6)

On a motion to dismiss for failure to state a claim upon which relief can be granted pursuant to Fed.R.Civ.P. 12(b)(6), the Court must determine if the facts alleged “plausibly narrate a claim for relief.” Schatz v. Republican State Leadership Comm., 669 F.3d 50, 55 (1^st Cir. 2012) (citation omitted). Reading the complaint “as a whole,” the Court must conduct a two-step, context-specific inquiry. Garda-Catalan v. United States, 734 F.3d 100, 103 (1^st Cir. 2013). First, the Court must perform a close reading of the claim to distinguish the factual allegations from the conclusory legal allegations contained therein. Id. Factual allegations must be accepted as true, while conclusory legal conclusions are not entitled credit. Id. Second, the Court must determine whether the factual allegations present a “reasonable inference that the defendant is liable for the conduct alleged.” Haley v. City of Boston, 657 F.3d 39, 46 (1^st Cir. 2011) (citation omitted). In sum, the complaint must provide sufficient factual allegations for the Court to find the claim “plausible on its face.” Garda-Catalan, 734 F.3d at 103 (citation omitted). “Exhibits attached to the complaint are properly considered part of the pleading for all purposes, including Rule 12(b)(6).” Trans-Spec Truck Serv., Inc. v. Caterpillar, Inc., 524 F.3d 315, 321 (1^st Cir. 2008) (internal quotation marks and citation omitted).

III. Factual Background

The Court draws the following factual allegations from the first amended complaint, D. 54, and accepts them as true for the purposes of resolving the pending motions.

Greenspan founded Think Computer Corporation, a software company based in California, which operates PlainSite, a website that provides free access to court documents and other public records. D. 54 ¶ 2. Greenspan oversees the operations of PlainSite. Id. An individual may contact PlainSite directly if he wishes to have his court records suppressed from search engine results or removed from PlainSite via a “Contact Us” form. Id. ¶ 8. PlainSite and Greenspan have never accepted payment nor charged any fee to remove or suppress content from its website. Id. ¶¶ 7-8.

On July 17, 2000, MasMarques was convicted of the murder in Spain. Id. ¶ 27. MasMarques's case was transferred to the United States on February 13, 2006, and he served his sentence here. Id. ¶¶ 27, 30. Shortly after his release from prison, MasMarques turned himself in to the police on December 24, 2008 because of outstanding warrants for his arrest on other charges. Id. ¶ 32. In 2015, another session of this Court denied MasMarques's motion to seal his criminal records pertaining to his convictions in Spain, id. ¶ 33, which the First Circuit affirmed. Id. ¶ 34. Greenspan published information about MasMarques's criminal history on his website. Id. ¶ 36.

1. PlainSite Form Submissions

On July 20, 2016, Greenspan received an email from an individual purporting to be “Vincent Bellomo,” a former boss of the Genovese crime family. Id. ¶ 35. The message included threatening language and requested the removal of two dockets on PlainSite involving an individual named Diego MasMarques, Sr., MasMarques's father. Id. On at least one other occasion, Greenspan received an aggressive message also allegedly from MasMarques under another “Bellomo” alias. Id. ¶ 60.

On February 21, 2017, through the PlainSite Contact Us form, Greenspan received three requests from “Diego MasMarques” concerning the removal of his criminal records from PlainSite's website. Id. ¶ 36. Over the next few days, Greenspan continued to receive similar correspondence allegedly from MasMarques using various email addresses and aliases. Id. ¶¶ 37-40. On March 1, 2017, Greenspan reviewed MasMarques's case and denied his requests for removal, notifying him of same. Id. ¶ 41. The denial prompted further requests from MasMarques, again using various aliases, email addresses, and phone numbers. Id. ¶¶ 42-45, 47. MasMarques offered to provide a donation to have the entries removed, which Greenspan declined. Id. ¶ 44. As alleged, many of MasMarques's emails were threatening. See id. ¶¶ 47, 60.

2. Pattern of MasMarques's Alleged Harassment

After denial of MasMarques's requests to remove his criminal records from the PlainSite website, Greenspan alleges that MasMarques made defamatory posts regarding him and his family. On September 13, 2017, a post appeared on the website “Blacklist Report,” containing a photograph of Greenspan accompanied by “a long, rambling defamatory tirade” written in the same style as many of MasMarques's emails. Id. ¶ 48. Similar posts continued to appear on various websites concerning Greenspan and his family, reaching over 350 posts by June 2018. Id. ¶¶ 50-51. These posts, among other things, falsely identified Greenspan as a defendant in a criminal case, falsely accused him of running an unregistered and/or fraudulent 501(c)(3) nonprofit organization to evade taxes, falsely alleged that he owns or manages the website leagle.com and falsely suggested that he caused his brother's disability and deliberately harms him. Id. ¶ 51. The posts contained modified images of Greenspan and his parents. Id. ¶ 52. They also contained personal information that put Greenspan and his friends and family in physical danger, such as phone numbers and contact information, his family's home address,...