Liguore v. Simmons

1

CORY LIGUORE, Plaintiff, v. KENDALL SIMMONS, et al., Defendants.

No. 24-cv-01621-LB

United States District Court, N.D. California, San Francisco Division

September 5, 2024

ORDER ADDRESSING MOTION FOR DEFAULT JUDGMENT AND PROCEDURAL POSTURE OF THE CASE

RE: ECF NO. 15

LAUREL BEELER, UNITED STATES MAGISTRATE JUDGE.

INTRODUCTION

In early 2018, the plaintiff posted intimate videos to Fuzz, an online dating app. Defendant Kendall Simmons allegedly took screenshots of the videos and used them and the plaintiff's name and personal information to set up a website to impersonate the plaintiff. The plaintiff sued the defendant and his company 7+6 Management, LLC, for cyberpiracy in violation of federal and California law and harassment, exploitation, negligent and intentional infliction of emotional distress, and unfair competition in violation of California law. The defendants did not appear and after the clerk's entry of default, the plaintiff moved for default judgment on all claims, asking for statutory, compensatory, and punitive damages totaling $408,299.50, attorney's fees of $23,885, a permanent injunction, and transfer of the domain name. Then, at the August 29, 2024, hearing on the motion, the defendant appeared (and had been emailing the clerk's office regularly for some months previously to ask when the case was calendared). The court issues this order to flag legal issues that attend the pending motion: the law regarding default and default judgments, personal jurisdiction, the viability of certain claims, damages, and the status of the corporation and the attendant issues under Williams v King, which requires that all parties, even non-appearing defendants, consent to the undersigned's jurisdiction. 875 F.3d 500, 503-05 (9th Cir. 2017).

STATEMENT

1. Allegations in the Complaint and Declarations About Damages

The plaintiff is Corey Liguore, and he lives in Pleasanton, California.^[1] He had an account on a now-defunct videochat and dating application called Fuzz, where he livestreamed to public audiences or to private individuals by invitation only. He also owned and used an educational YouTube channel under his real name.^[2] Defendant Kendall Simmons resides in Illinois. He has a company called 7+6 Management, LLC, but “the company either does not truly exist (at least not as an Illinois or Delaware LCC), or if it does exist, then it has profited from Mr. Simmons'[s] activities....” Mr. Simmons allegedly appropriated the plaintiff's intimate photos from Fuzz and took the plaintiff's resume information from LinkedIn and the YouTube channel and, without the plaintiff's consent, impersonated the plaintiff (by using the plaintiff's name in the domain name coryliguore.com) and posted the photos publicly. As a result, the plaintiff's employer fired him.^[3]

The following is a fuller account of the relevant events as recounted in the complaint.

The parties became acquainted in 2018. In early 2018, the plaintiff used the app Fuzz to livestream to public audiences and, by invitation, to individuals. Fuzz “was described and purportedly was designed to be a secure application on which no media or information could be recorded or saved to users' personal devices.”^[4] In the summer of 2018, Mr. Simmons contacted the plaintiff through Fuzz's private-chat function, asking about whether he could be the plaintiff's roommate. The plaintiff refused because they were strangers. Despite that rejection, Mr. Simmons demanded the plaintiff's personal cell number. “In response and fear of further uncomfortable requests,” the plaintiff “ceased any private communications with the Defendant.”^[5]

This marked the beginning of a campaign of online harassment.^[6] Using the username @yfroggy13, Mr. Simmons left public comments on the plaintiff's YouTube channel - a channel where the plaintiff posted career-coaching videos directed to audiences who wanted to improve their work skills and gain financial freedom - that referenced public and private content that the plaintiff posted on the Fuzz app.^[7] In November 2018, the plaintiff deleted his YouTube channel and created a new one “to avoid the Defendant finding the new account.” He also blocked Mr. Simmons's “two known Instagram accounts from seeing or accessing any content from [the plaintiff's] personal Instagram account.”^[8]

On October 21, 2023, Mr. Simmons and 7+6 Management, LLC “registered the domain name and published on the domain a website containing information from [the plaintiff's] resume and intimate content that was screenshot or screen recorded from his long-inactive Fuzz application profile, without [the plaintiff's] knowledge or consent. The website represents [the plaintiff] as the publisher and host of the domain name, which was and is false.” The meta description provided in the search results of [the plaintiff's] name started by producing the results ‘Cory Liguore slut.”^[9]

On November 13, 2023, the plaintiff's employer fired him, citing “the content displayed on the domain name as the reason for his termination.” This was the first time the plaintiff learned about the domain name and its content. The domain “appeared as the first online information when any person searched Microsoft Bing for [the plaintiff's] name and as the fourth online listing when any person searched his name on Google.”^[10]

The plaintiff filed a police report on November 16, 2023, with the Pleasanton police department.^[11] On November 18, he contacted Google to remove the domain name and website from search results relating to his name. Google removed the website from the search results.^[12] On November 28, at the behest of the police, the domain registrar and webhost (Wix.com) took the website down and ceased domain services.^[13]

On December 6, 2023, in response to a police warrant, Wix.com identified the owner and creator of the domain as “Kendell Simmons, from Villa Park, Illinois.”^[14] “On December 20, 2023, the Defendants launched another website, publishing more information than had been published previously from [the plaintiff's] resume, publishing the same intimate screenshot content from [the plaintiff's] long-ago deleted Fuzz account, and publishing accessible links to all of [the plaintiff's] personal social media accounts.”^[15] On December 21, a sergeant from the Villa Park police department was assigned to the case. “However, information revealed later than the defendant Simmons did not live in Villa Park Police Department jurisdiction,” and so the case was reassigned to the DuPage County Sheriff's Office.^[16] The authorities in Illinois “were not willing to pursue any criminal investigation or charges, and consequently the criminal cases were all closed.”^[17]

On January 9, 2024, the plaintiff filed a request with Microsoft Bing to remove the domain website from search results relating to his name. Microsoft removed the website from the Bing search results.^[18] On January 8, 2024, the plaintiff “went to the District Attorney to meet Inspector Cassandra Pickett and plead for help to get Police Departments to pursue charges for the alleged crimes committed against him.”^[19] In January 2024, the plaintiff changed and updated his socialmedia accounts and user names, including Facebook, Instagram, and Twitter “so as not to be connected to any websites operated by the Defendants. However, the Defendants persisted in finding and publishing [his] updated social media accounts and usernames on the Domain and associated website. The Defendants added [the plaintiff's] updated resume information and statements pertaining to [his] current search for new employment and shared that information on the website as well.”^[20] On January 31, 2024, following Inspector Pickett's suggestion, the plaintiff filed a complaint with the FBI, which has not responded.”^[21]

In his supporting declaration, the plaintiff confirms Mr. Simmons's online harassment of him: the plaintiff had a Fuzz account in early 2018, it was supposed to be secure and anonymous, Mr. Simmons contacted him in the summer of 2018 about being his roommate, and he declined and blocked Mr. Simmons, who thereafter left comments on the plaintiff's career-advice YouTube channel referencing the intimate content on Fuzz and then set up the unauthorized websites (twice) with the intimate content.^[22]

The plaintiff submitted documents showing how he identified Mr Simmons as the creator of the two websites and more information about what Mr. Simmons published on the sites. A WHOIS record shows that Mr. Simmons - listing the Villa Park address (above) and phone number 415-949-6022 - registered the domain name on October 20, 2023.^[23] Mr. Simmons then published information from the plaintiff's resume and Fuzz account.^[24] A screenshot shows the website from a Google search result with the metatag “Cory Liguore slut” in the first line of the search result.^[25] Other screenshots have the words “Cory” and “blog” and has the plaintiff's images, thus suggesting that it is his website. They also list “kendallsimmons” as the author of the posted content.^[26] The bottom of the website “indicated that it was owned by Defendant 7+6 Management LLC.”^[27] On December 20, 2023, the defendants launched the second website with information from the plaintiff's resume, content from the Fuzz account, and links to the plaintiff's social-media accounts.^[28] The plaintiff confirms the complaint's allegations about his successful efforts to remove the domain and websites from search results related to his name and his changing his social-media accounts and usernames “so as not to be connected to any websites operated by the Defendants.”^[29]But the defendants “persisted in finding [him] and again published [his] updated social media accounts...