UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
JAYNE A. HITCHCOCK,
WOODSIDE LITERARY AGENCY, JAMES LEONARD,
JOHN LAWRENCE, and URSULA SPRACHMANN
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
Case No. 97 Civ. 0166 (NG)
SECOND AMENDED COMPLAINT
Plaintiff, by her attorney, John A. Young, for her complaint herein, alleges:
1. This Court has jurisdiction over this action by virtue of 18 U.S.C. sec. 1964(c) and 28 U.S.C. sec. 1332.
2. Identification and citizenship of plaintiff: Plaintiff, Jayne A. Hitchcock, is a citizen of the State of Maryland.
3. Identification and citizenship of defendants:
a. Upon information and belief, defendant Woodside Literary Agency ("Woodside"), is an enterprise owned and operated by defendants, James Leonard, John Lawrence, and Ursula Sprachmann (the "individual defendants").
b. Upon information and belief, defendant Woodside is owned operated and directed principally by the individual defendants. Upon information and belief, said defendants also use names other than their own in the operation of Woodside.
c. Upon information and belief, defendant Woodside has its principal place of business in the State of New York, within the Eastern District of New York.
d. Upon information and belief, the fact that the individual defendants are principal owners, operators and directors of the Woodside enterprise is evidenced, among other things, by the facts that:
(1) The telephone numbers advertised and used by defendant Woodside are assigned and billed to various of the individual defendants:
(a) Records from the New York Telephone Company indicate that the telephone number listed by defendant Woodside as the number at its principal place of business in Woodside, New York, is billed to defendant John Lawrence ("Lawrence") at the address of that place of business.
(b) Telephone company records link the telephone number advertised and used by Woodside for its place of business in Florida, and the address thereof, to defendant Ursula Sprachmann ("Sprachmann"), who, according to those telephone billing records, is the mother of defendant Lawrence.
(c) Records from Citizens Telecommunications Company demonstrate that the telephone number advertised and used by defendant Woodside for its Adirondack, New York place of business, is assigned and billed to defendant Lawrence at the address of that place of business.
(2) Bank accounts into which checks solicited by defendant Woodside were deposited and collected show one or more of the individual defendants as signatories.
(3) Defendant Sprachmann owns real property which she uses and makes available to the other defendants for the purpose of its being the principal place of business of defendant Woodside.
e. Upon information and belief, each of the defendants is a citizen of the State of New York or of the State of Florida.
4. The matter in controversy exceeds, exclusive of interest and costs, the sum of seventy-five thousand dollars.
5. Plaintiff is a professional author and, at all times hereinafter mentioned, was a Teaching Assistant at the University of Maryland.
6. Plaintiff makes extensive use of electronic mail ("E-mail") and other internet services for her business and professional activities. Plaintiff also uses internet services including E-mail for personal purposes.
7. Plaintiff frequently reads and posts articles to an internet news group called "misc.writing" which is followed by many authors and would-be authors.
8. Since at least as early as January 1996, defendants have posted or caused to be posted messages to the "misc.writing" news group and other internet news groups numerous advertisements on behalf of "Woodside Literary Agency" soliciting writing samples from published and unpublished authors.
9. The posting of advertisements to internet news groups (other than a few groups which exist specifically for that purpose) is generally considered an abuse of the internet and of the readers of the news groups.
10. The posting of the same, or virtually the same, message to many news groups or many times, a practice generally known as "spamming", is also generally considered an abuse of the internet and of the readers of the news groups.
11. Upon information and belief, the said Woodside advertisements were false and deceptive, in violation of applicable state and federal laws.
12. Literary agents are a recognized and respected part of the publishing industry. The regular course of business for a normal literary agent is to represent the author in business discussions and negotiations with potential publishers of the author's work in exchange for a fee which is earned upon the sale of a work and paid out of a modest portion of the proceeds of such sale.
13. Notwithstanding Woodside's inappropriate posting of its advertisements on the "misc.writing" newsgroup, plaintiff responded to one of them in early 1996. Woodside replied with a letter praising the sample of her work and suggesting that she send it the full manuscript together with $75 as a "reading and market evaluation fee".
14. Wanting to be sure that said reply was not an isolated exception, plaintiff responded again to Woodside's advertisement, this time using her maiden name. Woodside's reply was virtually identical, except that it now asked for a "reading and market evaluation fee" of $150, and stated:
"The agent assigned to your submission is interested and would like to review the entire manuscript, re: When Will I See You Again. Please make a check out to Mr. John Lawrence (the agent reviewing your work) for $150.00. This reading and market evaluation fee is refundable upon the sale of your work and bank clearance of publisher's advance.
"Please be advised that less than 5% of the authors contacting us are lucky enough to catch our interest. Obviously, Mr. Lawrence thinks you've got something good.
"Kindly send the material to our NY main office by August 5th: (I advise you to Fed-X it on August 2nd so Mr. Lawrence gets it on the 3rd). From August 7th until the end of August he will be at the Florida branch. You may send your manuscript there anytime after August 7th-not before.
Dr. Richard Bell"
15. From this, plaintiff concluded that Woodside was operated in a manner substantially different from that of a normal and legitimate literary agency.
16. Upon information and belief, throughout a period beginning at least as early as January 1996 and ending (if at all) no earlier than October 1997, Woodside responded to virtually every submission of a writing sample by a potential client with a letter lauding the quality of the writing; representing that "less than 5% of the authors contacting our agency are invited to submit their entire manuscript" or words to similar effect; and requesting a $75 or $150 fee for "reading" and/or "market research" or "market evaluation".
17. Upon information and belief, at least the representation about "less than 5% of the authors" described in the preceding paragraph was known by defendants to be false, at the time each instance of it was deposited in the mail or otherwise dispatched to a prospective Woodside client.
18. Upon information and belief, throughout said period Woodside was in the business of collecting such "reading fees" and, contrary to its repeated representations, not in the business of representing authors in business discussions and negotiations with potential publishers.
19. After learning the manner in which Woodside did business, plaintiff posted articles in response to Woodside's advertisements in internet news groups, in which articles she advised would-be authors of the facts that the normal and legitimate literary agencies did not charge "reading fees" or other fees in advance of making a sale; but that Woodside did so. She also objected to Woodside's spamming of newsgroups with advertisements and voiced her opinion that Woodside was a scam and not a legitimate literary agency.
20. Thereafter, defendants committed the acts complained of herein.
21. Plaintiff also reported the activities of Woodside to the Attorney General of the State of New York. Upon information and belief, the New York State Department of Law conducted an investigation, and the Attorney General has commenced legal action against the defendants.
22. The defendants have published or caused to be published numerous messages on internet news groups falsely accusing Jayne Hitchcock of being a "bored housewife" who was attacking Woodside because her writings were "PORN" which had been rejected and who was attempting to make collect telephone calls to Woodside. Such messages included, without limitation:
a. Message directed at plaintiff posted to the "alt.books.reviews" newsgroup:
"From: ZKPT22A@prodigy-.com (James Leonard) Newsgroups:alt.books.reviews WRITERS SEEKING PUBLICATION DATE:17 Aug 1996 01:01:56 GMT Organization: Prodigy Services Company 1-800-PRODIGY This author demands that literary agencies accept his Porno, Porno Porno. They all keep saying No,No,No, that this author should try selling the questionable, Quote: "Great Literature" in the dark corners of sewers. This author says that no one is a better writer. All writers should take insult to this. From what I see on the internet, this author, this author who is after all literary agencies, seriously needs to go back to school."
b. Message, also directed at plaintiff, cross-posted to at least three newsgroups (misc.writing, misc.writing.screenplays, and rec.arts.books):
"From: Oakwood (105222.1250@CompuServe.COM) Newsgroups: misc.writing,misc.writing.screenplays,rec.arts.books Subject: Hitch's beef needs Maalox Date: 5 Sep 1996 17:48:05 GMT Message-ID: firstname.lastname@example.org So, Hitchcock, you got the beef, but you don't want to share it with us? Why don't you go back into your "bored-housewife world" and peddle your international books which in our opinion you have printed yourself, and finally shut up. While we certainly have made a typo here and there (our secretaries are better in this regard) you are genuinely ignorant, crying out on the internet how smart you are and then flaunting that you do not know the difference between slander (verbal) and libel (in writing). And sorry, we still don't take your collect phone calls, but maybe we should talk to your hubby Chris."
23. Said messages were untrue when posted; defendants knew or should have known when they were posted that they were untrue; and the defendants posted said messages with actual malice.
24. Said statements exposed plaintiff to public scorn, hatred, contempt and/or ridicule, thereby injuring plaintiff's reputation and causing plaintiff emotional distress.
25. The defendants have threatened to have Jayne Hitchcock blacklisted by publishers.
26. The defendants have harassed plaintiff and interfered with her ability to conduct business and personal communications by way of E-mail or other internet services or by telephone. The means of such harassment have included:
a. Flooding plaintiff's E-mail accounts with hundreds of meaningless or abusive messages, many of which have been very lengthy, a practice known as "mail-bombing";
b. Posting messages in various internet news groups calculated to inflame most readers of those news groups ("flame-bait") and forging the origination information on those messages to make it appear that they were posted by Jayne Hitchcock, thereby generating a negative reputation for plaintiff among the readers of those news groups and inducing inflamed readers to send her E-mail complaints; and
c. Posting the messages described in the following paragraph of this complaint.
27. The defendants have placed Jayne Hitchcock in imminent danger of sexual assault, of other bodily harm, and of her very life, by posting to many internet news groups devoted to the topics of sex, and particularly of deviant sex, messages forged to appear to have originated from her such as the following:
"Female International Author, no limits to imagination and fantasies, prefers group macho/sadistic interaction, including lovebites and indiscriminate scratches. Invites you to write or call to exchange exciting phantasies with her which will be the topic of her next book. No fee or hidden expenses for talented participants. Contact me at misc.writing or stop by my house at [plaintiff's actual home address]. Will take your calls day or night at [plaintiff's actual home telephone number]. I promise you everything."
28. The defendants have also attempted to interfere with plaintiff's business affairs by mail-bombing the University of Maryland and her own literary agent and by sending E-mail to them, forged to appear as though such E-mail had originated with her, and written in a manner calculated to disrupt her relationship with each of those institutions.
29. Upon information and belief,