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Stayart v Yahoo (March 8, 2011 ruling)

Stayart v Yahoo (March 8, 2011 ruling)

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Published by Eric Goldman

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Published by: Eric Goldman on Mar 16, 2011
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03/16/2011

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UNITED STATES DISTRICT COURTEASTERN DISTRICT OF WISCONSIN
BEVERLY STAYART, a/k/aBEV STAYART,Plaintiff,v. Case No. 10C0043YAHOO! INC.,Defendant.DECISION AND ORDER
This is plaintiff Beverly Stayart’s second suit against defendant Yahoo! Inc.(“Yahoo”) after conducting search engine queries using her own name as a search termand discovering that Yahoo’s website included the phrase “bev stayart levitra.” Levitra isa medication for erectile dysfunction. In her previous action, plaintiff claimed trademarkinfringement under the Lanham Act and brought supplemental Wisconsin law claimsalleging that Yahoo wrongfully used her name for advertising purposes. The district courtheld that plaintiff had no commercial interest in her name and therefore lacked standingunder the Lanham Act, and it declined to exercise jurisdiction over plaintiff’s state lawclaims. The Seventh Circuit affirmed. See Stayart v. Yahoo! Inc., 623 F.3d 436 (7th Cir.2010). In her present suit, plaintiff alleges that I have diversity jurisdiction under 28 U.S.C.§ 1332(a) and once again claims that Yahoo violated Wisconsin law by using her name for advertising purposes. Before me now is Yahoo’s motion to dismiss plaintiff’s complaint.Before discussing the issues presented by Yahoo’s motion, I will briefly summarizeplaintiff’s allegations. Plaintiff alleges that she is a genealogy researcher, is involved in
Case 2:10-cv-00043-LA Filed 03/08/11 Page 1 of 5 Document 19
 
2animal protection, regularly uses the internet to further these activities and is the only BevStayart on the internet. She also alleges that she has published several poems. Plaintiff further alleges that Yahoo provides internet search services through a commercial website.Through proprietary software algorithms, Yahoo reviews and indexes websites. Usersaddress search queries to Yahoo and it determines which websites are relevant to thequery and provides the information to the user. Yahoo also helps users find informationin other ways.As for her complaint against Yahoo, plaintiff alleges that she typed in the query “BevStayart” and that Yahoo’s website suggested that she query “bev stayart levitra” and listedother websites selling erectile dysfunction medications, and that Yahoo’s search assistfunction displayed the phrase “bev stayart levitra.” Plaintiff does not explain how her namecame to be connected to Levitra on the internet. Nevertheless, in addition to her suitsagainst Yahoo, plaintiff has also brought a suit similar to this one against Google. SeeBeverly Stayart, a/k/a Bev Stayart v. Google, Inc. (Case No. 10-CV-0336 E.D. Wis.).The Communications Decency Act, 4 U.S.C. § 230, effectively immunizes searchengines like Yahoo and Google from claims that they displayed information created by thirdparties which presents an individual in an unfavorable light. Plaintiff tries to get around thisobstacle by alleging that Yahoo is wrongfully using her name for advertising purposes. SeeWis. Stat. § 995.50(2)(b) (prohibiting the use of a person’s name “for advertising purposesor for purposes of trade”); see also Hirsch v. S.C. Johnson & Son, 90 Wis. 2d 379, 398-99(1979).In its motion to dismiss, Yahoo contends that I lack subject matter jurisdictionbecause plaintiff does not satisfy the amount in controversy requirement of § 1332(a), and
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3that even if I have jurisdiction, she fails to state a claim upon which relief can be granted.I agree with both of Yahoo’s contentions.I first address the issue of jurisdiction. In order to establish diversity jurisdiction,plaintiff must show that the parties are diverse and that “the matter in controversy exceedsthe sum or value of $75,000, exclusive of interest and costs ...” § 1332(a). Plaintiff satisfies the first requirement because she is a Wisconsin citizen and Yahoo isincorporated in Delaware and its principal place of business is California. As to the amountin controversy requirement, when a defendant challenges whether a plaintiff hassatisfactorily alleged the jurisdictional minimum, the plaintiff must support the allegationwith competent proof and establish the jurisdictional minimum by a preponderance of theevidence. McMillian v. Sheraton Chicago Hotel & Towers, 567 F.3d 839, 844 (7th Cir.2009). To do this, the plaintiff must do more than “point to the theoretical availability of certain categories of damages.” Id.Plaintiff first points out that she has alleged that Yahoo obtains a pecuniary benefitfrom using her name to promote Levitra. However, plaintiff presents no facts indicatinghow this could possibly be so. She presents no evidence suggesting that her name hasany commercial value and no evidence suggesting how connecting her name to Levitracould possibly benefit Yahoo (or Levitra) much less provide a benefit in excess of $75,000.Secondly, plaintiff points out that she has alleged that she suffered emotionaldistress from discovering that her name was connected with Levitra on the internet.However, plaintiff presents no evidence indicating that her damages for emotional distresscould possibly exceed $75,000. She presents no evidence, for example, that she incurredany expenses as the result of her distress such as expenses for medication or therapy.
Case 2:10-cv-00043-LA Filed 03/08/11 Page 3 of 5 Document 19

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