Feitosa v. Keem ( 2023 )

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK DENNIS FEITOSA, Plaintiff, DECISION AND ORDER v. 22-CV-377S DANIEL M. KEEM, Defendant. I. INTRODUCTION In this action, Plaintiff Dennis Feitosa alleges that Defendant Daniel Keem defamed him when he tweeted that “Def Noodles,” Feitosa’s YouTube persona, had been accused of grooming 12- to 15-year-old girls. Before this Court is Keem’s motion to dismiss the amended complaint for lack of subject-matter jurisdiction and for failure to state a claim. Because this Court finds both that it has jurisdiction and that Feitosa has stated a claim for defamation, it will deny Keem’s motion to dismiss. II. BACKGROUND The following is a summary of facts as contained in Feitosa’s amended complaint. This Court assumes the truth of the factual allegations contained therein. See Hosp. Bldg. Co. v. Trs. of Rex Hosp., 425 U.S. 738, 740, 96 S. Ct. 1848, 48 L. Ed. 2d 338 (1976); see also Hamilton Chapter of Alpha Delta Phi, Inc. v. Hamilton Coll., 128 F.3d 59, 63 (2d Cir. 1997). Plaintiff Dennis Feitosa is a “YouTube personality” and the creator of a YouTube show called “Def Noodles.” (Amended Complaint, Docket No. 11, ¶ 7.) On Feitosa’s YouTube channel, it clearly states, “My name is Dennis Feitosa and Def Noodles is a 1 show I created.” (Id.) Feitosa posts content on Twitter and other social media accounts under the handle “Def Noodles.” (Id.) People familiar with Feitosa understand that references to “Def Noodles” actually are to Feitosa himself. (Id.) Feitosa is domiciled in Los Angeles, California. (Id., ¶ 1.) Defendant Daniel Keem is a YouTube personality who posts content under the name “Keemstar.” (Id., ¶ 8.) Keem is domiciled in the Eastern District of New York.1 (Id., ¶ 2.) Feitosa and Keem are direct competitors in the “social media/influencer industry.” (Id., ¶ 9.) On March 31, 2021, Keem sent a direct message to Feitosa on Twitter related to Feitosa’s relationship with a social media personality with whom Keem was unfriendly. (Id.) Keem wrote: “The day has come Dennis! And when it comes I want you to know it was me;” “what no comment?;” “WHY ARE YOU WORKING FOR ETHAN AND TRISHA?” (Id.) Then on April 2, 2021, Keem wrote, “Bro you are messing up so bad” and “I want a full written apology.” (Id.) Feitosa alleges that in these messages, Keem was threatening Feitosa for his social media postings. (Id., ¶ 10.) On May 21, 2021, Keem posted the following to his over 2.5 million Twitter followers and linked it to Feitosa’s Twitter handle (“the Tweet”): “Def Noodles has allegedly groomed2 girls from ages 12-15. Big YouTuber Source: ‘Victims are scared of 1 The amended complaint alleges that Keem may be served with process at an address in Orchard Park, New York, a town located in the Western District of New York. (Docket No. 11, ¶ 2.) 2 In common parlance, “grooming” is understood to be “a tactic where someone methodically builds a trusting relationship with a child or young adult, their family, and community to manipulate, coerce, or force the child or young adult to engage in sexual activities. The person grooming identifies vulnerabilities, erodes the child's or young adult's boundaries, and builds up to acts of sexual abuse and control while convincing the world around the child or young adult that they are safe in their care. “What is Grooming.” https://www.google.com/url?sa=i&rct=j&q=&esrc=s&source=web&cd=&cad=rja&uact=8&ved=0CDMQw7 AJahcKEwiwybadk9X8AhUAAAAAHQAAAAAQAg&url=https%3A%2F%2Fportal.ct.gov%2F- %2Fmedia%2FDCF%2FGTF-CJA%2FHB-6113%2FGrooming_Connecticut-Safe-Sport-Policy-Child- 2 him & wish to stay anonymous but may come forward soon’ #DramaAlert.” (Id., J] 10.) A photograph of Feitosa appears below the text of the Tweet. (Id.) Under the text and the picture, Keem states, “Def Noodles has declined to give us a comment on these allegations made against him.” (Id.) Qe BR ACNSSUSUN EPPA \Kerere|[=t-m al-lome-I|(-¥oX-10| aed cele)aat-te [alma ce)anl Fe¥oi= aa Lo Site AolUM NU] ol-1ansXel0 | cel-FaMA (ed tse- omcver-1¢-10 Re) aliaam-"MW eMs) k= hVar- Tale) abyipacele (om oleh mnnt-\ymere)ani-) aWielae Bcxele) al ya A □ 1] om \, rg | : 2) mas |) \ CoXeye | □□□□□□□□□□□□□□□□□□□□□□□□ MolhoMULoa ofola al □□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□ reee- Tas] mala Clase CMEC RON oy AU T-(- Pa P 1esm-von i ole}>1e-1e [omAy 2121 mane) inneXei.@lal Pan Vara □□□ =\YA-1 8/0) dale) □□□ 4 alfom oie (e),Comnar- 1 maaan Tele)