Dr. Stewart Lucas Murrey v. Brandyourself.com Inc

Background

Dr. Stewart Lucas Murrey proceeded without a lawyer and asserted claims under the Racketeer Influenced and Corrupt Organizations Act (RICO), California’s unfair competition law, California’s statutory and common-law right of publicity, common-law fraud, and civil conspiracy. The defendants named in the action included Brandyourself.com, Inc., Tom Vitolo, and Christian Tyron. The opinion refers to those three as the “Remaining Defendants.” Other defendants had previously been dismissed by the Central District of California for lack of personal jurisdiction or failure to complete service on time, and the action was later transferred to the Southern District of New York.

Murrey alleged that defamatory comments and photographs about him appeared on www.cheaterreport.com beginning in late 2016. He alleged that the posts dominated search results for his name and harmed his reputation and ability to earn money. He further alleged that, from 2017 to 2019, defendants and others solicited thousands of dollars from him to remove the material and repair his online reputation, while concealing an alleged connection to the website and its operators.

Legal standard

The Remaining Defendants moved to dismiss under Federal Rule of Civil Procedure 12(b)(6), which asks whether the complaint contains enough factual allegations to state a legally plausible claim. The court accepted the complaint’s factual allegations as true for purposes of the motion and gave special consideration to Murrey’s status as a self-represented litigant, while noting that self-represented parties must still comply with procedural and substantive law.

RICO claims

The court granted the motion to dismiss Murrey’s RICO claims, including his RICO conspiracy claim. A civil RICO claim requires allegations of conduct involving an enterprise through a pattern of qualifying criminal activity or the collection of an unlawful debt.

The court held that defamation could not serve as a qualifying predicate act for RICO. It also held that Murrey did not plead wire fraud with the particularity required by Federal Rule of Civil Procedure 9(b). His allegations did not adequately identify the time and place of the alleged misrepresentations, the speaker, the specific content, or each defendant’s participation.

The court also found that Murrey did not adequately plead extortion. He alleged no force or violence. To the extent he relied on fear of reputational harm, that fear was insufficient. The court explained that fear of economic loss can support extortion only when the victim reasonably believes the defendant has the power to cause economic harm and will use that power if the victim does not pay. The complaint did not allege that Murrey was prevented from using other reputation-management firms or that he feared defendants would harm him if he did not hire them. The court therefore concluded that Murrey had not alleged a qualifying predicate act and had not stated a RICO claim or RICO conspiracy claim.

State-law claims

The court granted the motion to dismiss Murrey’s state-law claims. His fraud claim relied on the same allegations as his deficient wire-fraud allegations and therefore did not satisfy the heightened pleading requirements for fraud.

The court held that the unfair-competition claim was also inadequately pleaded. The complaint did not sufficiently allege unlawful conduct based on wiretapping or eavesdropping, and its allegations under the unfair and fraudulent parts of California’s unfair competition law were based on inadequately pleaded fraud.

The court rejected the right-of-publicity claim because such a claim requires allegations that the defendants themselves appropriated Murrey’s name or likeness for commercial purposes. The complaint generally alleged that defendants published defamatory statements but did not identify which defendants personally posted the material or provide nonconclusory factual support for that allegation.

The civil conspiracy claim also failed. The court explained that civil conspiracy is not an independent tort and requires an underlying tortious act. Because Murrey had not adequately alleged a tortious act, the conspiracy claim failed. The court additionally held that the complaint did not adequately allege an agreement or meeting of the minds among the defendants and others involved in the alleged scheme.

Request to amend and disposition

Murrey requested permission to file a second amended complaint. The court stated that it did not find that he had acted in bad faith, but it declined to grant leave to amend at that time because Murrey had not submitted a proposed complaint or described the facts he would add, leaving the court unable to assess whether amendment would be futile.

Judge Analisa Torres granted the Remaining Defendants’ motion to dismiss. She denied Murrey’s request for leave to amend without prejudice to renewal. The order allowed Murrey to move by July 6, 2022, to file a second amended complaint, accompanied by the proposed complaint.