Claim: Spitzer’s floozy used my lost ID

by Walter Olson on July 18, 2008

New Jersey dental assistant Amber Arpaio found herself an asterisk-to-an-asterisk in the history of political scandals when it was reported that Ashley Dupre used Arpaio’s lost driver’s license to pass for more than 17 when she made a “Girls Gone Wild” video that later became notorious after the exposure of Dupre’s paid liaison with Gov. Eliot Spitzer. So now Arpaio is suing Dupre and Joe Francis, impresario of the “Girls Gone Wild” series. The news coverage of the lawsuit contains no indication that Arpaio suffered any damage to her credit record or other tangible interests from the affair, but she wants upwards of $10 million in cash solace for defamation and invasion of privacy, and, per her attorney, because “when someone searches her name on the Internet, pornographic material comes up.” Much better, when someone searches her name on the Internet, for intimations of litigiousness to come up. (Nancy Dillon, “Duped by Dupre: N.J. woman charges Spitzer call girl with identity theft”, New York Daily News, Jul. 17; AP/Comcast, Jul. 17)(& Prettier Than Napoleon). Plus: complaint at The Smoking Gun (h/t commenter VMS).

More 7/22: Thanks to commenter Eric Turkewitz for pointing out that Dupre had posed as Arpaio in actual news coverage, not just in the signing of film releases and the like, which makes the basis for the suit less unreasonable than I had hastily assumed.

{ 12 comments }

1 VMS 07.19.08 at 11:01 am

The Smoking gun posted a partial Complaint (It is missing the last few pages). The Complaint was filed in the US District Court for the District of NJ.

See http://www.thesmokinggun.com/archive/years/2008/0717081arpaio2.html

If the lawsuit is worth it, it is worth hiring a lawyer that knows what he is doing. For starters, teh case should have been filed in state rather than in federal court. It seems that Mr. Dunn, Arpaio’s attorney, did not pay attention during Civil Procedure 101, or he forgot what he learned.

The parties must be completely diverse in order to invoke the Court’s jurisdiction under 28 USC 1332. See paragraph 2 of the Complaint. [2. "This is a civil action...pursuant to Title 28 USC 1332 et seq., jurisdiction in this court is proper."].(sic) Paragraphs 3 and 4, however, show that the parties are not diverse. ["3. Plaintiff Amber Arpaio is a resident of the State of New Jersey. 4. Defendant Ashley Alexandra Dupre is a resident of the State of New Jersey."

Also, the complaint does not allege damages in excess of $75,000. The post on overlawyered.com or in the news article, claiming that the Plaintiff is seeking >$10,000,000.00 in damages does not confer jurisdiction on the court.

If I were the judge, I would dismiss this case sua sponte, and sanction the attorney for wasting the time of the federal court. Instead, the court did not seem to notice the fatal defects in Subject Matter Jurisdiction, and referred the matter to arbitration.

I'm sure that defendants' attorneys will file a Rule 12(b) motion. Or better yet, they could litigate the matter to near conclusion, hope that no one notices the lack of SJM, and then file a motion on the eve of trial which must be granted. [There is a US Supreme Court case, Lewis v Caterpiller, that holds that after trial such a challenge is not proper.] The Statute of Limitations for the causes of action will surely have expired by then, and Plaintiff will be out of luck.

2 Eric Turkewitz 07.21.08 at 7:00 am

Much better, when someone searches her name on the Internet, for intimations of litigiousness to come up.

Absolutely. The first links will show that she was a victim, not a pornographer. The extent of injury will be difficult to measure, but that is almost always the case with an injury to reputation.

Of course, as so often happens, the lawyer no doubt screwed up by putting a stupid number in the Complaint. But that is a slightly different issue.

3 Ted 07.21.08 at 8:02 am

Turkewitz is 100% wrong: no one reasonable would look at the Ashley Dupre link and think Arpaio had anything to do with it given that anyone looking at “Arpaio” is doing so because they want to look at Dupre. They will look at the ludicrous Arpaio lawsuit and see someone who brings meritless lawsuits at the drop of a hat, and signed off on seeking $10 million. I sure wouldn’t hire someone like that. This lawsuit has made her worse off.

The lawyer–Robert E. Dunn of Hanlon, Dunn, and Robertson–not only botched the jurisdictional question, but failed to comply with D.N.J. electronic filing rules.

(This isn’t unprecedented–in July 2007, there was a Texas lawsuit by a woman whose high-school classmate appropriated her name for her porn career. Alas, our guest bloggers didn’t cover it at the time. Someone should call the attorney and see what happened to that lawsuit.)

4 Deoxy 07.21.08 at 9:57 am

Actually, Ted, I have to disagree with you (which is unuual). If I were Arpaio, and the choice was “be known for stupid lawsuit” or “be believed to be a porn ‘actress’”, I would choose the lawsuit every day of the week and twice on Sunday (as the old saying goes).

You clearly value your reputation less than some, or at least weight certain things VERY differently.

5 Ted 07.21.08 at 12:08 pm

Deoxy, you misunderstand. Arpaio’s name only comes up in a google search as a pseudonym for someone much more famous than Arpaio. No reasonable person would draw any conclusions about Arpaio herself, any more than anyone thinks my domestic partner has herpes because Paris Hilton used her name as a pseudonym to get prescription medication. Arpaio suffers no loss of reputation; no rational employer is going to say “Ashley Dupre used this person’s name in a GGW video and therefore it is problematic to hire her.”

On the other hand, with this lawsuit, one can draw accurate conclusions about likely consequences of hiring Arpaio.

6 Eric Turkewitz 07.21.08 at 9:19 pm

no one reasonable would look at the Ashley Dupre link and think Arpaio had anything to do with it given that anyone looking at “Arpaio” is doing so because they want to look at Dupre.

Try Googling her name Ted, and you will see she pops up at the top in association with Dupre. So that is the first thing any future employer, for example, will see. And this will lead them to wonder how (if at all) she may be related to Dupre or Girls Gone Wild.

Now that doesn’t mean the lawsuit was well done, but that is, as I indicated, a separate issue from the idea of bringing one. One might have a perfectly good claim regarding a busted widget, for example, and see the lawsuit botched.

7 Richard Nieporent 07.21.08 at 11:10 pm

Try Googling her name Ted, and you will see she pops up at the top in association with Dupre.

Speaking about a self-fulfilling prophecy Eric, when I google her name, all of the hits deal with her lawsuit against Dupre.

So that is the first thing any future employer, for example, will see. And this will lead them to wonder how (if at all) she may be related to Dupre or Girls Gone Wild.

Is that because dentists are unable to read and understand English? Of course given the proclivities of some dentists, this may enhance her chances of getting a job. :)

8 Eric Turkewitz 07.21.08 at 11:26 pm

Richard:

I found this article on the first page of Google, with her name in it at a Girls Gone Wild party:
http://www.orlandosentinel.com/orl-archive-girlsgonewildstory03192003,0,3030962.story

So before the suit, how high up on page one do you think this was? It’s kind of silly to argue that without the suit she wouldn’t have a damaged reputation.

Trying to repair a Google reputation is, I think you would agree, pretty tricky to do. A victim can easily be left with picking between two lousy options; in this case having litigation supplant porn/prostitution.

Whether her suit is any good (even if it were in good hands) is another matter. But Walter’s theory that being litigious is worse than being linked to the porn stuff is something that I don’t think should simply be accepted at face value.

9 Walter Olson 07.22.08 at 7:24 am

I want to thank Eric Turkewitz for directing my attention to the Orlando Sentinel clip, which does cause me to rethink my earlier remarks. I had wrongly assumed that all the press coverage using Arpaio’s name came after the Spitzer scandal broke, presenting her as someone whose name had been stolen. I didn’t realize Dupre had appeared in a news feature about GGW under the stolen name. Opinions may still differ about the wisdom of the latest suit — I’m pretty sure I would have advised the real-life Arpaio not to file it — but it’s not as unreasonable in its basis as I assumed, and I ought not to have adopted the snarky tone.

10 Deoxy 07.22.08 at 9:47 am

One other thing that Ted, at least, completely leaves out of his analysis is “person on the street” reactions. Just because most employers (at least, most employers one would want to work for) would be able to see the distinction, showing ID (for any reason) or introducing yourself and having the other person say, “Oh, hey, you were on GGW, weren’t you?” would simply suck (and having them think it but not mention it and give you a chance to correct them would often be worse). A lawsuit like this does not necessarily educate all of those people, but it should help.

Eric’s point about a valid lawsuit that gets botched by the lawyer is also good.

11 Richard Nieporent 07.22.08 at 10:26 am

Eric, I missed that reference. I Googled her name again and the article you mentioned was the last one on the first page. The article referenced is from the Orlando Sentinel’s archives of a story they ran in March 11, 2003. Although they indicate in the caption of the picture that the girl shown is Ashley Dupre, the article itself only uses the name Amber Apario, and does not state that the person mentioned in the article was actually Ashley Dupre who was using Amber’s ID. So my question is as follows. Since the paper now knows that the person identified in the article as Amber Apario is actually Ashley Dupre, are they legally responsible for republishing this false information at this time?

12 Ted 07.22.08 at 11:34 am

If Eric’s account is correct, I stand corrected, though I have to wonder about statute-of-limitations problems given that the article in question was published in 2003. I continue to question the merits of the suit.

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