McGlothlin v. Hennelly
Filing
23
OPINION AND ORDER granting 17 Motion to Dismiss for Lack of Jurisdiction. Plaintiff's Complaint is dismissed without prejudice to filing an Amended Complaint within fourteen (14) days of this Opinion and Order. Signed by Judge John E. Steele on 12/27/2017. (BLW)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
JAMES W. MCGLOTHLIN,
Plaintiff,
v.
Case No:
2:17-cv-519-FtM-99MRM
KEVIN N. HENNELLY,
Defendant.
OPINION AND ORDER
This matter comes before the Court on defendant’s Motion to
Dismiss for Lack of Personal Jurisdiction and Improper Venue (Doc.
#17) filed on November 9, 2017.
in support of the motion.
Defendant submitted his affidavit
(Doc. #17-2.)
Plaintiff filed a
Response in Opposition (Doc. #22) on November 29, 2017.
For the
reasons set forth below, the motion is granted with leave to amend
the Complaint.
I.
This is an action for defamation and libel based on two
statements allegedly published by defendant about plaintiff on the
social
media
Complaint
website,
(Doc.
#1)
www.facebook.com
alleges
two
(“Facebook”).
state
law
claims:
The
(1)
defamation/libel1, and (2) injunctive relief to enjoin defendant
Although not pled as a separate count, plaintiff
alternatively seeks damages for defamation and libel per se.
(Doc. #1, ¶ 20.)
1
from making and/or publishing any other false and defamatory
statements (Count II).
Plaintiff
James
McGlothlin
(plaintiff
or
McGlothlin),
a
Florida citizen, is a businessman and the founding member of The
United Company, which is the parent company of Scratch Golf, LLC.
(Doc. #1, ¶¶ 1-2.)
Scratch Golf owns real property in Beaufort
County, South Carolina, operated and commonly known as the Hilton
Head National Golf Course (the Property).
(Id. at ¶ 7.)
In or
around July 2016, Scratch Golf submitted an application to Beaufort
County to amend the zoning of the Property.
(Id. at ¶8.)
On May 14, 2017, defendant Kevin N. Hennelly (defendant or
Hennelly), a South Carolina citizen, published the first Facebook
post, criticizing Scratch Golf’s rezoning application and the
Property, stating that McGlothlin was a “crony capitalist” who
would “break every rule in the book to get a government favor or
handout.”
(Doc. #7-1.)
a “crook.”
denied.
(Id.)
The post also stated that plaintiff was
On May 22, 2017, the zoning application was
(Id. at ¶ 10.)
Plaintiff does not allege that the
application was denied as a result of defendant’s actions.
On May 23, 2017, Hennelly published the second allegedly
defamatory statement on Facebook, stating that plaintiff was “up
to [his] eyeballs in the recent scandals in Virginia with the
Governor and his wife.
McGlothin gave the Governors [sic] wife a
no show job at the heart of the ethical and criminal activity.”
- 2 -
(Doc. #4-1.)
Plaintiff alleges that the scandal involving the
Governor and his wife was highly publicized.
(Doc. #1, ¶13.)
Plaintiff alleges general damages; actual damages, including
injury to his reputation; mental suffering, anguish, and public
humiliation;
and
punitive
damages.
(Doc.
#1,
¶¶
19-21.)
Plaintiff further alleges that defendant is not only liable for
the initial publication of the two statements, but also for each
subsequent republication, as separate offenses.
(Id. at ¶ 22.)
II.
Hennelly moves to dismiss the Complaint for lack of personal
jurisdiction and improper venue.
Plaintiff opposes both aspects
of the motion.
Personal Jurisdiction
When ruling on a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(2), the Court must conduct a “two-step inquiry
when determining whether the exercise of personal jurisdiction
over a nonresident defendant is proper.”
Thomas v. Brown, 504 F.
App’x 845, 847 (11th Cir. 2013) (citing Horizon Aggressive Growth,
L.P. v. Rothstein-Kass, P.A., 421 F.3d 1162, 1166 (11th Cir.
2005)).
The Court first determines whether defendant’s activities
satisfy the Florida long-arm statute, and if so, whether the
extension
of
jurisdiction
comports
with
the
due
process
requirements of the Fourteenth Amendment of the United States
Constitution.
See Meier v. Sun Int’l Hotels, Ltd., 288 F.3d 1264,
- 3 -
1269 (11th Cir. 2002).
“A federal district court in Florida may
exercise personal jurisdiction over a nonresident defendant to the
same extent that a Florida court may, so long as the exercise is
consistent with federal due process requirements.
If both Florida
law and the United States Constitution permit, the federal district
may
exercise
jurisdiction
over
the
nonresident
defendant.”
Licciardello v. Lovelady, 544 F.3d 1280, 1283 (11th Cir. 2008)
(internal citation omitted).
The plaintiff “bears the initial
burden of alleging in the complaint sufficient facts to make out
a prima facie case of jurisdiction.”
United Techs. Corp. v. Mazer,
556 F.3d 1260, 1274 (11th Cir. 2009).
Defendant asserts that
neither component of this standard is satisfied in this case.
Florida Long Arm Statute
In his response, plaintiff relies upon subsection (1)(a)(2)
of the Florida “long arm” statute related to specific jurisdiction,
which permits the exercise of jurisdiction over actions arising
out of tortious acts committed within Florida.
48.193(1)(a)(2).
Fla. Stat. §
This portion states:
(1)(a) A person, whether or not a citizen or resident of
this state, who personally or through an agent does any
of the acts enumerated in this subsection thereby
submits himself or herself and, if he or she is a natural
person, his or her personal representative to the
jurisdiction of the courts of this state for any cause
of action arising from the doing of any of the following
acts:
. . .
- 4 -
2. Committing a tortious act within this state.
Id.
Physical presence in Florida is not required to commit a
tortious act in Florida.
Internet Sols. Corp. v. Marshall, 39 So.
3d 1201, 1207 (Fla. 2010).
Committing a tortious act within the
state for purposes of the long arm statute can occur through the
nonresident
defendant’s
electronic,
telephonic,
or
written
communications into Florida, as long as the cause of action arises
from the communications.
Wendt v.
Horowitz, 822 So. 2d 1252,
1260 (Fla. 2002); Internet Sols. Corp. v. Marshall, 557 F.3d 1293,
1296 (11th Cir. 2009).
“[f]or
personal
The Eleventh Circuit has recognized that
jurisdiction
to
attach
under
the
‘tortious
activity’ provision of the Florida long-arm statute, the plaintiff
must demonstrate that the non-resident defendant ‘committed a
substantial aspect of the alleged tort in Florida’ by establishing
that the activities in Florida ‘w[ere] essential to the success of
the tort.’”
Cable/Home Commc’ns Corp. v. Network Productions,
Inc., 902 F.2d 829, 857 (11th Cir. 1990) (quoting Williams Elec.
Co. v. Honeywell, Inc., 854 F.2d 389, 394 (11th Cir. 1988)).
Eleventh
Circuit
48.193(1)(a)(2)
has
held
“permits
that
what
jurisdiction
is
now
over
Fla.
the
Stat.
The
§
nonresident
defendant who commits a tort outside of the state that causes
injury inside the state.”
Licciardello, 544 F.3d at 1283 (citing
Posner v. Essex Ins. Co., 178 F.3d 1209, 1216 (11th Cir. 1999)).
- 5 -
Defendant argues that personal jurisdiction fails because
neither of the two Facebook posts were directed to individuals in
Florida, nor sent to individuals in Florida, and the proposed
rezoning involves property located in South Carolina.
Defendant
emphasizes that other than plaintiff’s state of residence, there
is no other mention of a connection to Florida in the Complaint.
In response, plaintiff states that courts
have found that a
defendant commits a tortious act within the state for purposes of
the long arm statute when making defamatory remarks on the Internet
which
is
accessible
in
Florida.
Plaintiff’s
only
factual
allegations in this regard state: “Upon information and belief,
the internet website www.facebook.com was accessible in Florida at
the time the statements were made and was accessed in this State.”
(Doc. #1, ¶ 12.)
Although the posting of defamatory material about a Florida
resident on a website does not alone constitute the commission of
a tortious act under Florida’s long arm statute, “the posting of
such that was both accessible in Florida and accessed in Florida
constituted the commission of a tortious act of defamation within
Florida” under the long arm statute.
Marshall, 611 F.3d at 1370
(emphasis in original) (quoting Internet Sols., 39 So. 3d at 1203,
1214-15).
Here, the Complaint does not allege that the defamatory
material
was
accessed
in
Florida.
- 6 -
Rather,
it
alleges
on
information and belief that the website Facebook was accessible in
Florida at the time the statements were made and the website was
accessed in Florida.
Yet, the Florida Supreme Court and the
Eleventh Circuit have determined that the defamatory material must
be accessed in Florida to constitute the commission of a tortious
act of defamation within Florida for purposes of the long arm
statute.
Marshall, 611 F.3d at 1370; Internet Sols., 39 So. 3d
at 1203, 1214-15.
information
or
The Complaint and exhibits are devoid of any
allegations
that
the
themselves were accessed in Florida.
defamatory
statements
Thus, the Court concludes
that plaintiff has not met his burden nor provided sufficient
evidence to support a finding of personal jurisdiction under
Florida’s long arm statute.
As a result, the Court need not
determine whether exercising personal jurisdiction over Hennelly
comports with Due Process, or whether dismissal for improper venue
is proper.
Plaintiff will be allowed to amend his Complaint.
Accordingly, it is hereby
ORDERED AND ADJUDGED:
Defendant’s
Motion
to
Dismiss
for
Lack
of
Personal
Jurisdiction and Improper Venue (Doc. #17) is GRANTED and the
Complaint (Doc. #1) is DISMISSED without prejudice to filing an
Amended Complaint within FOURTEEN (14) DAYS of this Opinion and
Order.
- 7 -
DONE and ORDERED at Fort Myers, Florida, this _27th_ day of
December, 2017.
Copies:
Counsel of Record
- 8 -
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?