COUNSEL:
For Gerald Nicosia, Plaintiff: Paul Kleven, Law Offices of Paul Kleven, Berkeley, CA.

For Gerald Nicosia, Plaintiff: David A. DeGroot, San Francisco, CA.

For Diane De Rooy, defendant: Roger R. Myers, Joshua Koltun, Steinhart & Falconer, San Francisco, CA.

Before the Court are the motions of defendant Diane De Rooy ("De Rooy") (1) to dismiss, pursuant to Rule 12(b)(2) of the Federal Rules of Civil Procedure, for lack of personal jurisdiction; (2) to dismiss, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, for failure to state a claim; and (3) to strike, pursuant to California Code of Civil Procedure § 425.16. The Court, having considered the papers filed in support of and in opposition to the motion, and the arguments of counsel presented at the hearing on February 19, 1999, rules as follows:

Plaintiff Gerald Nicosia ("Nicosia" ), a California resident, brings the instant action for slander and libel in connection with statements De Rooy published about Nicosia on her web-site. According to the Complaint, De Rooy has called Nicosia a killer, an embezzler, a criminal, a fraud, a perjurer, and a liar, and, in particular, De Rooy has stated:

Gerald Nicosia is to the Beats (and Jan) what Charles Manson was to the hippies. Virtually everyone I've interviewed over the 17 months, including disinterested third parties, has said the same thing: Gerald Nicosia killed Jan Kerouac. [Comp., P 36; Request for Judicial Notice ("RJN"), Ex. K].

[Nicosia used a Kerouac seminar] as a publicity stunt, in an effort to keep the public from noticing his embezzlement of at least $33,000 from Jan Kerouac's heirs. [Comp., P 34; RJN, Ex G at 7].

When I began my research 18 months ago, I had no idea I would discover that Gerry Nicosia's [sic] is a self-serving fraud and criminal. [Comp. P 35; RJN, Ex G at 9].

[Joe Grant] is the foremost accomplice of Gerald Nicosia, who for years has been illegally trying to gain ownership of the papers and marketable image of Jack Kerouac. [Comp., P 45; RJN Ex. G at 7].

I thought [ Nicosia ] was maybe mentally unstable, from the stress of his crusade, perhaps. But I had to cross a line at some point into believing he was simply, deliberately, lying, including perjuring himself in court documents I'd gotten copies of. [Comp., P 37; RJN, Ex. E].

I have personal knowledge of the underhanded and deceitful practices of these two men. Although there is no controversy around the Jack Kerouac Estate, and his papers are in no danger whatsoever, Joe Grant and Gerald Nicosia persist in telling these lies because they are embittered believers in their own publicity. [Comp., P 46; RJN Ex. G at 7].

TWO YEARS AFTER THE DEATH OF JAN KEROUAC, her name is still at the center of controversy. Her heirs are still besieged by a self-celebrating writer with dubious credentials, who is living off the proceeds of her persona. Jan is dead, but she is far from being laid to rest. Many people have unpublished points of view relating to Jan Kerouac's unfortunate association with Gerald Nicosia. These viewpoints clearly reveal a man with Napoleonic aspirations to conquer the literary kingdom; a man who believes he is more ethical than most people; a man who refuses to admit his own desires for money and fame; a man who has alienated, betrayed, or lied to everyone in the Beat community. [Comp., P 44; RJN, Ex. F at 2].

[Nicosia] is far less well known for his biography of Jack Kerouac than he is for his role, many believe, as the Svengali who manipulated Kerouac's daughter, Jan. Two years after the death of Jan Kerouac, hardly a week goes by when Nicosia doesn't invoke the dead woman's name to shore up a sagging writing career. [Comp., P 42; RJN, Ex. F at 5].

Many people have unpublished points of view relating to Jan Kerouac's unfortunate association with Gerald Nicosia. These viewpoints clearly reveal a man with Napoleonic aspirations to conquer the literary kingdom. [Comp., P 44; RJN, Ex. F at 2].

Nicosia appears to be so serious about being Jack Kerouac that he's even made application to trademark his name for use, nationally and internationally, in labeling 'Clothing, Games, Toys & Sports Goods' (U.S. Patent & Trademark Office, Serial No. 75-451,862 filed March 17, 1998). Taking his admitted enmeshment and confessed transformation to its next logical level, Gerald Nicosia is Jack Kerouac, and he's here to get his stuff back. [Comp. P 43; RJN, Ex. F at 6].

I. Motion to Dismiss for Lack of Personal Jurisdiction

De Rooy moves to dismiss, pursuant to Rule 12(b)(2) of the Federal Rules of Civil Procedure, for lack of personal jurisdiction.

A. Legal Standard

Pursuant to Federal Rule of Civil Procedure 12(b)(2), a defendant may move to dismiss the complaint on the grounds that the court lacks jurisdiction over the defendant. In opposing a motion to dismiss for lack of personal jurisdiction, the plaintiff must present a prima facie case that personal jurisdiction exists over the defendants. See United States v. Ziegler Bolt and Parts Co., 111 F.3d 878, 880 (Fed. Cir. 1997).

In determining whether the plaintiff has presented a prima facie case, the Court must assume the truth of "well pled" allegations in the complaint that are not contradicted. Wenz v. Memery Crystal, 55 F.3d 1503, 1505 (10th Cir. 1995). The Court need not, however, assume the truth of conclusory allegations. Id. Once the defendant has contradicted allegations contained in the complaint, plaintiff may not rest on the pleadings, and must present admissible evidence to support the court's exercise of personal jurisdiction. Data Disc. Inc. v. Systems Technology Ass'n, Inc., 557 F.2d 1280, 1284 (9th Cir. 1997) (citing Taylor v. Portland Paramount Corp., 383 F.2d 634, 639 (9th Cir. 1967)). The plaintiff must produce admissible evidence which, if believed, would be sufficient to establish the existenceof personal jurisdiction. WNS, Inc. v. Farrow, 884 F.2d 200, 203-204 (5th Cir. 1989). The court is required to resolve disputed facts in the light most favorable to the plaintiff. Dakota Industr., Inc. v. Dakota Sportswear, Inc., 946 F.2d 1384, 1387 (8th Cir. 1991).

B. Analysis

In order to establish personal jurisdiction over defendants, plaintiffs must first show that the forum state's jurisdictional statute confers personal jurisdiction over defendants, and that the exercise of such jurisdiction "accords with federal constitutional principles of due process." Federal Deposit Ins. Corp. v. British-American Ins. Co., Ltd., 828 F.2d 1439, 1441 (9th Cir. 1987). California's "long-arm" statute extends jurisdiction to the maximum extent permitted by due process. See Cal. Civ. Proc. § 410.10). Accordingly,the jurisdictional inquiries under state law and constitutional due process principles can be conducted simultaneously. Pacific Atl. Trading Co. v. M/V Main Express, 758 F.2d 1325, 1327 (9th Cir. 1985).

Nicosia argues that De Rooy is subject to specific jurisdiction in California. In the Ninth Circuit, a three-part test is applied to determine whether specific jurisdiction may be exercised over a defendant consistent with due process principles:

(1) The nonresident defendant must do some act or consummate some transaction with the forum or perform some act by which he purposefully avails himself of the privilege of conducting activities in the forum, thereby invoking the benefits and protections of its laws; (2) the claim must be one which arises out of or results from the defendant's forum-related activities; and (3) exercise of jurisdiction must be reasonable.

1. Purposeful Availment

"'Purposeful availment' requires that the defendant engage in some form of affirmative conduct allowing or promoting the transaction of business within the forum state." American National Red Cross, 112 F.3d 1048 at 1051. "A defendant has purposefully availed himself of the benefits of a forum if he has deliberately 'engaged in significant activities within a State or has created continuing obligations' between himself and the residents of the forum." Gray & Co. v. Firstenberg Machinery Co., Inc., 913 F.2d 758, 760 (9th Cir. 1990) (quoting Burger King v. Rudzewicz, 471 U.S. 462, 475-76, 105 S. Ct. 2174, 2183-84, 85 L. Ed. 2d 528 (1985)). Thus, "isolated contacts, an attenuated affiliation, or the unilateral activity of another party in the forum state is insufficient." Advideo, Inc. v. Kimel Broadcast Group, Inc., 727 F. Supp. 1337, 1340 (N.D. Cal. 1989).

Purposeful availment is not satisfied by merely creating a web-site accessible by residents of the forum state. Cybersell, Inc. v. Cybersell, Inc., 130 F.3d 414, 418 (9th Cir. 1997) (Creating a web-site, like placing a product into the steam of commerce, may be felt nationwide -- or even worldwide -- but, without more, it is not an act purposefully directed toward the forum state."). There has to be "'something more' [than a web-site] to indicate that the defendant purposefully (albeit electronically) directed his activity in a substantial way to the forum state." Panavision International, L.P. v. Toeppen, 141 F.3d 1316, 1321 (9th Cir. 1998) quoting Cybersell, 130 F.3d at 418. [FN 1] The requirement of "something more" applies equally to defamation cases involving more traditional forms of publication, like newspapers and magazines. See Gordy v. Daily News, L.P., 95 F.3d 829 (9th Cir. 1996) (New York defendants who "wrote and published their allegedly defamatory column intentionally directing it at ... a California resident" must do "something more" to invoke jurisdiction).

[FN 1] In Panavision, the defendant used Panavision's trademark as a domain name and posted the related web-site on the Internet. The Ninth Circuit found, that, while creating the web-site was not sufficient, the defendant had satisfied the "something more" requirement because: (1) the defendant knew his conduct would likely injure Panavision in California where Panavision had its principal place of business and where the entertainment industry is largely located and (2) defendant "engaged in a scheme to register Panavision's trademarks as his domain name for the purpose of extorting money from Panavision." Id. at 1322.

"The circulation of the defamatory material in the forum state is an important factor in the minimum contacts analysis for a defamation action." Gordy, 95 F.3d at 833 (quoting Casualty Assurance Risk Insurance Brokerage v. Dillon, 976 F.2d 596, 599 (9th Cir. 1992)). In Gordy, cited by Nicosia, a California resident brought suit in California against a New York newspaper for defamation. 95 F.3d at 833. The Ninth Circuit found that the newspaper's regular distribution of 13 to 18 copies of its publication in California was sufficient to invoke jurisdiction over the New York defendant. The court reached this conclusion even though more than 99% of the newspaper's circulation was in or near New York City, and only .0017% of the circulation was in California. Id. at 830.

Here, De Rooy did more than the defendants in Gordy to direct her activities toward California. Nicosia has sufficiently shown that De Rooy sent at least eleven e-mails, out of a total of one hundred, to California addresses, inviting the recipients to view the articles on her web-site. (Id. at PP 6 & 7). [FN 2] While the absolute number of contacts (11) is comparable to the number of contacts in Gordy (13 to 18), the percentage of California contacts (10%) is much higher than that in Gordy (.0017%).

[FN 2] De Rooy objects to Nicosia's declaration that eleven e-mail addresses correspond to California residents on the grounds of lack of foundation and inadmissable conclusion. (De Rooy's Objections to Evidence, 2:19 to 3:9). De Rooy, however, concedes that four of the e-mail addresses "are clearly identifiable as located in California." (De Rooy's Reply, 3:26-28 fn. 2). With respect to Nicosia's declaration regarding the other seven addresses, the Court finds that such declaration is not conclusory and does not lack foundation for purposes of the instant motions. Accordingly, the Court hereby overrules De Rooy's objection to this evidence. In addition, even if the seven other addresses were not admissible, their absence would not materially alter the Court's analysis.

[FN 4] See Gordy at 834 (distinguishing Demaris v. Greenspun, 712 F.2d 433 (9th Cir. 1983), which found no personal jurisdiction even though defendant distributed several hundred copies of allegedly defamatory article to forum state, on grounds that article in Demaris primarily concerned out-of-state activities).

2. Arising Out of Forum Related Contacts

De Rooy also disputes that the claim arose out of her contacts with California. The Ninth Circuit applies a "but for" test to decide whether a defendant meets this requirement. Shute v. Carnival Cruise Lines, 897 F.2d 377, 385-86 (9th Cir. 1990), rev'd on other grounds, 499 U.S. 585, 113 L. Ed. 2d 622, 111 S. Ct. 1522 (1991). Courts, therefore, must ask the following question: but for the defendant's contacts with the forum state, would the plaintiff's claims against the defendant have arisen? Ballard v. Savage, 65 F.3d 1495, 1500 (9th Cir. 1995). As applied to the instant case, the answer is clearly "yes." But for De Rooy's posting of her articles on her web-site and sending e-mails to Californians, Nicosia's claims against De Rooy would not have arisen.

3. Reasonableness

De Rooy also argues that exercising jurisdiction would be unreasonable [FN 5] because De Rooy does not have the financial means to defend the instant suit in California. The defendant has the burden of showing unreasonableness and must do so by "presenting a compelling case that the presence of some other considerations would render jurisdiction unreasonable." Ballard v. Savage, 65 F.3d 1495, 1500 (9th Cir. 1995) (citation omitted). Although the burden of defending in the forum state is a factor in assessing reasonableness, unless the "inconvenience is so great as to constitute a deprivation of due process, it will not overcome clear justifications for the exercise of jurisdiction." Caruth v. International Psychoanalytical Ass'n, 59 F.3d 126, 128-29 (9th Cir.1995) (citation omitted).

[FN 5] In the Ninth Circuit, there are seven factors that courts consider in determining whether the exercise of personal jurisdiction is reasonable:

(1) The extent of the purposeful interjection into the forum state; (2) the burden on the defendant of defending in the forum; (3) the extent of conflict with the sovereignty of the defendant's state; (4) the forum state's interest in adjudicating the dispute; (5) the most efficient judicial resolution of the controversy; (6) the importance of the forum to the plaintiffs interest in convenient and effective relief; (7) the existence of an alternative forum.

Federal Deposit Ins. Co. v. British-American Ins. Co., Ltd., 828 F.2d 1439, 1442 (9th Cir. 1987) (citing Decker Coal Co. v. Commonwealth Edison Co., 805 F.2d 834, 840 (9th Cir. 1986)).