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Naffe v. Frey

United States Court of Appeals, Ninth Circuit

June 15, 2015

NADIA NAFFE, an individual, Plaintiff-Appellant,
v.
JOHN PATRICK FREY, an individual; COUNTY OF LOS ANGELES, a municipal entity, Defendants-Appellees

Argued and Submitted, Pasadena, California May 6, 2015

Page 1031

[Copyrighted Material Omitted]

Page 1032

Appeal from the United States District Court for the Central District of California. D.C. No. 2:12-cv-08443-GW-MRW. George H. Wu, District Judge, Presiding.

SUMMARY[*]

Civil Rights

The panel affirmed in part and reversed in part the district court's dismissal of an action brought by conservative political activist Nadia Naffe against Los Angeles County Deputy District Attorney Patrick Frey, who published derogatory and intimidating statements about Naffe on his personal Internet blog and on Twitter.

Affirming the dismissal of Naffe's claims brought under 42 U.S.C. § 1983, the panel held that Naffe's factual allegations did not sufficiently support her claim that Frey acted under color of state law. The panel determined that: (1) the allegations did not give rise to a reasonable inference that Frey harmed Naffe while on duty; (2) Frey's comments about Naffe were not sufficiently related to his work as a county prosecutor; and (3) the facts did not support Naffe's claim that Frey " purported or pretended to act under color of [state] law" when he blogged about her. Finally, the mere fact that Naffe knew Frey was a prosecutor did not mean he abused his government position to violate her rights.

Reversing the district court's dismissal of Naffe's state law claims, the panel held that the district court erred when it required Naffe to establish by a preponderance of the evidence the amount in controversy for showing federal diversity jurisdiction. The panel held that it could not say to a legal certainty that Naffe's claims were worth less than $75,000.01.

Eugene G. Iredale (argued) and Grace Jun, Iredale and Yoo, APC, San Diego, California, for Plaintiff-Appellant.

Ronald D. Coleman (argued), Archer & Greiner PC, Hackensack, New Jersey; Kenneth P. White, Brown, White & Newhouse LLP, Los Angeles, California, for Defendant-Appellee John Patrick Frey.

Paul B. Beach (argued) and John W. Nam, Lawrence Beach Allen & Choi, PC, Glendale, California, for Defendant-Appellee County of Los Angeles.

Eugene Volokh, UCLA School of Law, Los Angeles, California, for Amicus Curiae Digital Media Law Project.

Before: A. Wallace Tashima, Richard C. Tallman, and Jacqueline H. Nguyen, Circuit Judges. Opinion by Judge Tallman.

OPINION

Page 1033

TALLMAN, Circuit Judge

Plaintiff Nadia Naffe appeals the district court's dismissal of her 42 U.S.C. § 1983 claim and six related state law causes of action. Her appeal requires us to resolve two issues. First, we must decide whether the factual allegations in Naffe's complaint are sufficient to support her claim that Defendant John Patrick Frey--a Los Angeles County Deputy District Attorney--acted under color of state law for the purposes of § 1983 when he published derogatory statements about Naffe on his personal Internet blog and on Twitter. Second, we must determine if the district court erred when it required Naffe to establish by a preponderance of the evidence the amount in controversy for showing federal diversity jurisdiction.

First, we hold that Naffe has not supported adequately her claim that Frey acted under color of state law for the purposes of § 1983. Rather, the factual allegations--taken as true--compel the conclusion that Frey did not act under color of state law when he blogged and Tweeted about Naffe because he did so for purely personal reasons, and the communications were unrelated to his work as a county prosecutor. Second, we conclude that the district court applied an incorrect standard to evaluate the amount in controversy and, as a result, improperly dismissed Naffe's state law claims. We therefore affirm in part, reverse in part, and remand.

I

" Because this is an appeal from the dismissal of an action pursuant to Federal Rule of Civil Procedure 12(b)(6), we accept as true the facts alleged in the complaint." Lee v. City of Los Angeles, 250 F.3d 668, 677 (9th Cir. 2001) (citation omitted) (internal quotation marks and brackets omitted). Naffe alleges the following facts.

Naffe and Frey are conservative political activists. By day, Frey is a criminal prosecutor in Los Angeles County assigned to the gang unit. By night, he maintains a blog, Patterico's Pontifications (patterico.com), and a Twitter handle, @Patterico. On both, he writes and comments about--among other things--conservative politics, liberal media bias, and criminal law. Although he frequently references his position as a Deputy District Attorney in his posts and Tweets, his blog contains the following message: " The statements made on this web site reflect the personal opinions of the author. They are not made in any official capacity, and do not represent the opinions of the author's employer." Frey's Twitter page displays a similar disclaimer.

Like Frey, Naffe is a well-known political activist. She is also a former friend and colleague of James O'Keefe, a conservative politico who claims to " specializ[e] in producing undercover videos that style themselves as 'exposé s' of liberal political misdeeds." Naffe admits to assisting O'Keefe with at least one of his " sting operations," a 2010 plot to wiretap Representative Maxine Waters's congressional district office, which is located in Los Angeles. Around that time, O'Keefe checked his email on Naffe's smart phone. He did not log out of the email application, and as a result, Naffe maintained access to O'Keefe's account ...


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