Nassar v. Nassar
Filing
108
ORDER denying 66 Plaintiff's Motion to Take Judicial Notice; granting 63 Defendant's Motion to Dismiss; denying 98 Plaintiff's Renewed Motion for Leave to File Second Amended Complaint. The Amended Complaint is dismissed. The Clerk of the Court is directed to enter judgment in accordance with this Order and close the file. Signed by Judge Marcia Morales Howard on 1/3/2017. (JW)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
ROSANA BOULHOSA NASSAR,
Plaintiff,
v.
Case No. 3:14-cv-1501-J-34MCR
EDUARDO BOULHOSA NASSAR,
Defendant.
_____________________________________/
ORDER
THIS CAUSE is before the Court on (1) Defendant’s Motion to Dismiss Amended
Complaint and Memorandum in Support (Doc. 63; “Defendant’s Motion to Dismiss”), filed
on March 30, 2016; (2) Plaintiff’s Motion to [sic] Judicial Notice (Doc. 66; “Plaintiff’s Motion
for Judicial Notice”), filed on April 11, 2016; and (3) Plaintiff’s Renewed Motion for Leave
to File Second Amended Complaint (Doc. 98; “Plaintiff’s Motion to Amend”), filed on
September 8, 2016. On April 11, 2016, Plaintiff, Rosana Boulhosa Nassar, filed her
Opposition to Defendant’s Motion to Dismiss Amended Complaint (Doc. 65; “Plaintiff's
Response to Defendant's Motion to Dismiss”). Defendant, Eduardo Boulhosa Nassar,
filed Defendant’s Opposition to Plaintiff’s Motion Seeking Judicial Notice (Doc. 71;
“Defendant's Response to Plaintiff's Motion for Judicial Notice”) on April 28, 2016. On
May 31, 2016, Defendant filed Defendant’s Reply to Plaintiff’s Opposition to Defendant’s
Motion to Dismiss Amended Complaint (Doc. 81; “Defendant's Reply to Motion to
Dismiss”), and Plaintiff filed her Reply Brief to Defendant’s Opposition to Plaintiff’s Motion
to Take Judicial Notice (Doc. 82; “Plaintiff's Reply to Motion for Judicial Notice”).
Defendant filed Defendant’s Opposition to Plaintiff’s Renewed Motion for Leave to File
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Second Amended Complaint (Doc. 100; “Defendant's Response to Plaintiff's Motion to
Amend”) on September 26, 2016. With leave of Court, on October 11, 2016, Plaintiff filed
her Reply Brief to Defendant’s Opposition to Plaintiff’s Renewed Motion for Leave to File
Second Amended Complaint (Doc. 103; “Plaintiff's Reply to Motion to Amend”).
Accordingly, this matter is ripe for review.
I.
Background
A.
Plaintiff’s Factual Allegations1
Plaintiff alleges that Defendant, a Brazilian citizen and Plaintiff’s older brother,
sexually assaulted Plaintiff when she was a child. Amended Complaint (Doc. 61) at 1–2.
She asserts that Defendant also violated her privacy by entering her gynecologist’s
examination room without her permission when she was an adolescent. Id. at 2. “[T]o
recover from her childhood trauma,” in 1998 Plaintiff wrote a book in Portuguese titled (as
translated) “The Freeing Power of Speech,” in which she detailed “the abuse the
defendant committed against her.” Id. at 2–3. Since the publication of her book, Defendant
has published false statements about Plaintiff online, including in a 2010 review of
Plaintiff’s book on the website “Goodreads.com” in which he wrote that Plaintiff has
“serious psychological problems,” a “personality disorder,” and “paranoia.” Id. at 2–3, 5–
6, 9–10. Defendant also purchased the domain name “www.rosananassar.com” in 2010
and the domain name “www.newglobalpublishing.net” in 2005. Id. at 3, 11. The latter
domain name is a reference to Plaintiff’s publishing business, New Global Publishing;
1
In considering the motions to dismiss, the Court must accept all factual allegations in the complaint
as true, consider the allegations in the light most favorable to the plaintiff, and accept all reasonable
inferences that can be drawn from such allegations. Hill v. White, 321 F.3d 1334, 1335 (11th Cir. 2003);
Jackson v. Okaloosa Cnty., Fla., 21 F.3d 1531, 1534 (11th Cir. 1994). As such, the facts recited here are
drawn from the Amended Complaint, and may well differ from those that ultimately can be proved.
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Plaintiff has owned the domain name “www.newglobalpublishing.com” since 2004. Id. at
3–4.
Defendant
has
published
false
statements
on
rosananassar.com
and
newglobalpublishing.net similar to those published on Goodreads.com. Id. at 6, 10–11.
Since 2005, Defendant has, either directly or through an attorney, hired at least 35
private investigators and security officers from several different agencies “to stalk,
investigate, place … under surveillance, guard, protect, recover and follow” Plaintiff. Id.
at 4. In support of this allegation, Plaintiff includes her own research purportedly showing
“a match between the investigators['] and security officers' car registration records and
the professional licenses of the same investigators and security officers who have
followed the plaintiff and have been in front of her [two] residences.” Id. at 4–5. She
received an anonymous text message that read, “I'm gonna kill u!!! Don't give anybody
my cell number,” which she perceived to be a threat, and which she concludes was sent
by Defendant. Id. at 7, 18; see also Amended Complaint, Exh. J (images of text message).
Plaintiff’s publishing business has suffered as a result of Defendant’s actions because
Plaintiff “had to spend most of her time investigating the investigators and security officers
who the defendant has been hiring.” Id. at 4.
A Brazilian court issued a restraining order prohibiting Defendant from “hir[ing]
investigators, security officers or contractors to protect, guard, investigate, conduct
surveillance or to follow” Plaintiff. Id. at 7, 19. However, the order has since expired. Id.
at 19.
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B.
Prior Proceedings in State Court2
On July 16, 2012, Defendant3 filed a complaint in the Circuit Court in and for St.
Lucie County, Florida alleging that Plaintiff had published defamatory statements about
Defendant related to Plaintiff’s claims that Defendant had abused her and had hired
private investigators to stalk her. See Verified Complaint (Doc. 24-2; “State Court
Complaint”) ¶ 2. In response, Plaintiff filed a Counterclaim, seeking damages for (1) lost
wages “resulting from intense and repeated stalking and torture inflicted on” her; (2)
“emotional and physical distress” resulting from Defendant’s hiring of 35 investigators and
2
In the Motion, Defendant asks the Court to take judicial notice of the proceedings in an earlier
case he had filed in state court in St. Lucie County, Florida. See Defendant’s Motion to Dismiss at 2 n.1.
Previously in this Court, Defendant had filed a motion requesting that the Court take judicial notice of those
proceedings, see Defendant’s Renewed Motion to Take Judicial Notice and Incorporated Memorandum of
Law (Doc. 24), and Plaintiff opposed the request, but the Court denied it as moot after allowing Plaintiff to
amend her Complaint, see Order (Doc. 62). In responding to the Motion to Dismiss, Plaintiff did not respond
to the renewed request that the Court take judicial notice of the state court proceeding. Nevertheless, in an
abundance of caution, the Court considered Plaintiff’s previously filed Opposition to Defendant’s “Renewed”
Motion to Take Judicial Notice and Incorporated Memorandum of Law (Doc. 28). In opposing Defendant’s
motion to take judicial notice of the state court proceedings, Plaintiff argued that Defendant could not rely
on those proceedings to support his res judicata argument because the state court dismissed her
counterclaims for lack of jurisdiction. See generally id.
At any stage of a proceeding, a court “may judicially notice a fact that is not subject to reasonable
dispute because it: (1) is generally known within the trial court's territorial jurisdiction; or (2) can be
accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” Fed.
R. Evid. 201(b), (d). A court may take judicial notice on its own, but it “must take judicial notice if a party
requests it and the court is supplied with the necessary information.” Fed. R. Evid. 201(c)(1)–(2). “On timely
request, a party is entitled to be heard on the propriety of taking judicial notice and the nature of the fact to
be noticed.” Fed. R. Evid. 201(e). If a court takes judicial notice of a fact without notifying a party, that party
is entitled to be heard on request. Id. “Courts may take judicial notice of publicly filed documents, such as
those in state court litigation, at the Rule 12(b)(6) stage.” U.S. ex rel. Osheroff v. Humana, Inc., 776 F.3d
805, 811 n.4 (11th Cir. 2015).
Judicial notice of the prior state court proceedings is appropriate here because the nature of the
proceedings and the contents of the filings in that case may be accurately and readily determined from the
state court’s docket, the accuracy of which cannot reasonably be questioned. Although Plaintiff contends
that those proceedings do not support Defendant’s res judicata argument, that contention is misplaced.
Whether the documents ultimately support Defendant’s position is a different matter from whether the
documents are appropriate subjects of judicial notice. Having concluded that it may take judicial notice of
the prior state court proceedings, the Court summarizes those proceedings in this section.
3
Although the parties were in opposite roles in the state court litigation (in that Defendant was the
plaintiff in that case, while Plaintiff was the defendant), to avoid confusion the Court will continue to refer to
the parties based on their respective roles in this case.
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security
officers
to
conduct
newglobalpublishing.net,
surveillance;
rosananassar.com,
and
and
(3)
Defendant’s
a
third
purchase
domain
of
name,
www.thefirstlove.com (a purported reference to one of Plaintiff’s books). See
Counterclaim (Doc. 24-3; “State Court Counterclaim”) at 1–4. On March 17, 2014,
Defendant moved to dismiss Plaintiff’s Counterclaim, arguing that Plaintiff failed to clearly
and concisely plead her counterclaims, failed to establish that the state court had personal
jurisdiction over Defendant with respect to the counterclaims, and was in default because
she failed to respond to Defendant’s underlying claims. See [Defendant’s] Motion to
Dismiss Counterclaim and for Entry of Default Judgment (Doc. 24-4; “Motion to Dismiss
State Court Counterclaim”) at 2–6. Plaintiff amended her Counterclaim on May 20, 2014.
See Counter-Plaintiff’s Ammended [sic] Counter-Claim and Answer to CounterDefendant’s Claim (Doc. 24-5; “Amended State Court Counterclaim”). On June 26, 2014,
Defendant moved to dismiss that Counterclaim as well, again arguing that Plaintiff had
failed to clearly and concisely plead her counterclaims and had failed to adequately allege
a basis for personal jurisdiction over Defendant. See [Defendant’s] Motion to Dismiss
Amended Counterclaim (Doc. 24-6; “Motion to Dismiss Amended State Court
Counterclaim”). The state court granted Defendant’s motion on August 25, 2014,
dismissed Plaintiff’s Counterclaim, and granted Plaintiff leave to amend to allege “a short
and plain statement of the facts and appropriate jurisdictional allegations.” See Order
(Doc. 24-7; “State Court Order on Motion to Dismiss Amended Counterclaim”) at 1.
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Plaintiff filed a third4 amended counterclaim on August 27, 2014. See [Plaintiff’s]
Verified
Amended
Counter-Claim
(Doc.
24-8;
“Third
Amended
State
Court
Counterclaim”). In it, Plaintiff alleged that Defendant had “been stalking [Plaintiff] … since
2005 through Private investigators and security officers.” Id. at 2. She alleged that
Defendant had “made numerous offensive websites under [Plaintiff's] name, business
and books associated with her as a retaliation to her writings about the sexual abuse,”
including rosananassar.com and newglobalpublishing.net. Id. at 2–3. She alleged that
Defendant had falsely stated on those websites that Plaintiff suffered from “‘serious
psychological problems', ‘personality disorder', and paranoia.” Id. at 3. After spending
considerable time responding to Defendant’s argument that the state court lacked
personal jurisdiction over Defendant with respect to Plaintiff’s counterclaims, Plaintiff
raised four counterclaims against Defendant: (1) “[i]ntellectual [p]roperty [d]amage,”
based on Defendant’s purchase of the above-mentioned domain names; (2) defamation,
based on Defendant’s “derogatory comments,” including the above-mentioned
statements concerning Plaintiff’s mental health; (3) stalking, based on Defendant’s
alleged hiring of private investigators and security officers beginning in 2005; and (4)
intentional infliction of emotional distress, based on the same grounds as Plaintiff’s
stalking claim. See id. at 3–10.
On September 18, 2014, Defendant moved to dismiss Plaintiff’s Third Amended
State Court Counterclaim with prejudice, arguing that (1) Plaintiff had failed “to succinctly
plead ultimate facts” supporting any of her claims; (2) Plaintiff’s defamation claim was
4
Plaintiff filed her second amended counterclaim on August 25, 2014. See [Defendant’s] Motion to
Dismiss Third Amended (Fourth) Counterclaim With Prejudice (Doc. 24-9; “Motion to Dismiss Third
Amended State Court Counterclaim”) at 1–2. She filed her third amended counterclaim two days later.
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time-barred; (3) Plaintiff had failed to state a claim for defamation; and (4) Florida law
does not recognize a claim for “intellectual property damage.” See [Defendant’s] Motion
to Dismiss Third Amended (Fourth) Counterclaim With Prejudice (Doc. 24-9; “Motion to
Dismiss Third Amended State Court Counterclaim”) at 3–5. On November 24, 2014, the
Court granted Defendant’s motion “for the reasons contained in [the] motion which are
incorporated herein by reference” and precluded Plaintiff from further amending her
counterclaim. See Order (Doc. 24-10; “Order on Motion to Dismiss Third Amended State
Court Counterclaim”) at 1. Following the dismissal, on December 1, 2014, Defendant
voluntarily dismissed his lawsuit against Plaintiff. See Notice of Dismissal (Doc. 24-11;
“State Court Notice of Dismissal”). Plaintiff did not pursue an appeal.
C.
Procedural History of this Case
Plaintiff filed her Verified Complaint (Doc. 1; “Complaint”) against Defendant on
December 17, 2014. Although she initially sought leave to proceed in forma pauperis, see
Docs. 2–4, she paid the $400 filing fee in January 2015. Defendant then filed Defendant’s
Motion to Dismiss and Memorandum in Support (Doc. 16; “First Motion to Dismiss”). After
responding to the First Motion to Dismiss, Plaintiff filed an Amended Complaint which was
stricken because she did not obtain Defendant’s consent or leave of Court, and the
Amended Complaint was untimely if filed as a matter of right. See Order (Doc. 43).
Thereafter, Plaintiff sought, and was given, leave to file an Amended Complaint, see
Order (Doc. 57), which she filed on March 18, 2016.5 In her Amended Complaint, Plaintiff
5
The docket shows that Plaintiff first filed an Amended Complaint on March 16, 2016, the same day
the Court granted her motion for leave to amend the Complaint. See Doc. 60. Because the Amended
Complaint filed on March 18 includes various attachments Plaintiff references in the Amended Complaint,
and because it is otherwise identical to the document filed on March 16, the Court will cite the Amended
Complaint filed on March 18.
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asserts three claims. In Count I, Plaintiff brings a claim for “Cyberpiracy and
Cybersquatting in Connection with Internet Domain Names” pursuant to 15 U.S.C. §
1125(d),
based
on
Defendant’s
alleged
purchase
of
rosananassar.com
and
newglobalpublishing.net.6 Amended Complaint at 7–8. In Count II, she brings a claim for
defamation based on the statements Defendant allegedly published on Goodreads.com
and the unlawfully purchased domain names. Id. at 9–12. In Count III, Plaintiff brings a
claim for intentional infliction of emotional distress based on Defendant’s alleged hiring of
private investigators and security officers to follow and observe Plaintiff, which Plaintiff
contends amounts to criminal stalking. Id. at 12–20.
On March 30, 2016, Defendant filed Defendant’s Motion to Dismiss, arguing that
all of Plaintiff’s claims are barred by res judicata, her defamation claim is barred by the
statute of limitations, and the Amended Complaint fails to allege facts sufficient to state a
claim for intentional infliction of emotional distress. See generally Defendant’s Motion to
Dismiss. On April 11, 2016, Plaintiff filed Plaintiff’s Motion for Judicial Notice, in which she
asks the Court to take judicial notice of “information contained within the archives of
www.waybackmachine.org” with respect to rosananassar.com, newglobalpublishing.net,
and Goodreads.com. See Plaintiff’s Motion for Judicial Notice at 1–2. Most recently, on
September 8, 2016, Plaintiff filed Plaintiff’s Motion to Amend, in which she requests leave
to file a second amended complaint to include newly discovered evidence, “[d]escribe in
detail” specific incidents underlying her claims, eliminate her defamation claim, and add
an additional “cyberpiracy” claim and a claim for invasion of privacy. See Memorandum
6
Although Plaintiff appears to refer exclusively to newglobalpublishing.net, in an abundance of
caution, the Court assumes she also intends to base her claim in Count I on Defendant’s purchase of
rosananassar.com.
-8-
in Support of Plaintiff’s Renewed Motion for Leave to File Second Amended Complaint
(Doc. 98-1) at 1–2. Defendant opposes the Motion to Amend. See Defendant’s Response
to Plaintiff’s Motion to Amend. The Court will consider Plaintiff’s Motion for Judicial Notice
before turning to Defendant’s Motion to Dismiss.
II.
Analysis
A.
Plaintiff’s Motion for Judicial Notice
Plaintiff asks the Court to take judicial notice of the appearance of certain websites
on particular dates. See Plaintiff’s Motion for Judicial Notice at 1–2. She asks that the
Court “register and acknowledge the existence of these webpages contained within their
archives for evidentiary reasons, as the internet is a very volatile environment.” Id. at 1.
Defendant responds that the contents of the websites cannot be readily and accurately
determined from sources whose accuracy cannot reasonably be questioned, as even
waybackmachine.org disclaims any guarantee as to the accuracy of the information it
displays. See Defendant’s Response to Plaintiff’s Motion for Judicial Notice at 1–4.
As previously discussed, at any stage of a proceeding, the Federal Rules of
Evidence provide that a court “may judicially notice a fact that is not subject to reasonable
dispute because it: (1) is generally known within the trial court's territorial jurisdiction; or
(2) can be accurately and readily determined from sources whose accuracy cannot
reasonably be questioned.” Fed. R. Evid. 201(b), (d). Further, a court “must take judicial
notice if a party requests it and the court is supplied with the necessary information.” Fed.
R. Evid. 201(c)(2).
Plaintiff does not indicate whether she believes judicial notice is appropriate under
subsection (b)(1) or subsection (b)(2) of Federal Rule of Evidence 201. See generally
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Plaintiff’s Motion for Judicial Notice. However, the Court readily concludes that the
information Plaintiff asks the Court to judicially notice is not generally known in this or any
other jurisdiction, because it relates to the historical contents of privately owned websites
as they appeared on particular dates more than six years ago. As such, judicial notice
would be appropriate only if that information “can be accurately and readily determined
from sources whose accuracy cannot reasonably be questioned.” The Court concludes
that the historical appearance of the three websites Plaintiff identifies simply is not the
type of information that the Court may judicially notice. In general, non-governmental
websites are not proper subjects of judicial notice. See Gaza v. LTD Fin. Servs., L.P., No.
8:14-cv-1012-T-30JSS, 2015 WL 5009741, at *2 (M.D. Fla. Aug. 24, 2015) (citing Lodge
v. Kondaur Capital Corp., 750 F.3d 1263, 1274 (11th Cir. 2014)). Moreover, the
organization that maintains waybackmachine.org7 itself disclaims any guarantee that the
results it produces are accurate. See Internet Archive Wayback Machine, Internet
Archive’s Terms of Use, Privacy Policy, and Copyright Policy, dated Dec. 31, 2014,
available at http://archive.org/about/terms.php (last visited October 13, 2016) (“You
understand and agree that the Archive makes no warranty or representation regarding
the accuracy, currency, completeness, reliability, or usefulness of the content in the
Collections.”). In light of that, and because Plaintiff otherwise has made no showing that
the accuracy of the Internet archive cannot reasonably be questioned, judicial notice of
the historical contents of the websites is inappropriate.
In any event, even if judicial notice were appropriate, the Court would not need to
do so in order to evaluate Defendant’s Motion to Dismiss or Plaintiff’s Motion to Amend.
7
Entry of the URL “http://www.waybackmachine.org” redirects to the URL “http://archive.org.”
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At this stage of the proceedings, the Court must accept Plaintiff’s allegations as to the
contents of those websites as true. Nevertheless, for the reasons discussed in Parts II.B
and II.C of this Order, even accepting Plaintiff’s representations as to the content of the
websites, Plaintiff’s claims related to rosananassar.com, newglobalpublishing.net, and
Goodreads.com are due to be dismissed.
B.
Defendant’s Motion to Dismiss
Defendant seeks dismissal of Plaintiff’s Amended Complaint, contending that res
judicata bars her claims because she already litigated them in an earlier state-court case.
Defendant’s Motion to Dismiss at 2–20. Defendant also argues that Plaintiff’s defamation
claim is untimely, and her claim of intentional infliction of emotional distress is due to be
dismissed because she fails to allege facts sufficient to state a plausible claim. Id. at 20–
24. Plaintiff responds that res judicata does not apply because, in her view, the state court
lacked personal jurisdiction over Defendant with respect to Plaintiff’s counterclaims and
dismissed those counterclaims on that basis. Plaintiff’s Response to Defendant’s Motion
to Dismiss at 1–3. Additionally, she asserts that the state court’s decision was not a “final
judgment on the merits” because it did not follow a trial. Id. at 4. She also contends that
the causes of action in this case are not identical to those she asserted in the state court
case. Id. She argues that her defamation claim is not barred by the statute of limitations,
and that she adequately alleges a claim for intentional infliction of emotional distress. Id.
at 4–11. In his Reply, Defendant asserts that his final motion to dismiss Plaintiff’s
counterclaims in the state court action did not raise lack of jurisdiction as a basis for
dismissal, so the state court’s dismissal order on which Defendant relies for his res
judicata argument constitutes a judgment on the merits. Defendant’s Reply to Motion to
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Dismiss at 1–2. He also contends that no trial was necessary for the state court’s order
to constitute a judgment on the merits. Id. at 2–3. Last, he asserts that Plaintiff’s alleged
newly discovered evidence does not affect the outcome of the case. Id. at 3–4.
In ruling on a motion to dismiss brought pursuant to Rule 12(b)(6) of the Federal
Rules of Civil Procedure (Rule(s)), the Court must accept the factual allegations set forth
in the complaint as true. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Swierkiewicz v.
Sorema N.A., 534 U.S. 506, 508 n.1 (2002); see also Lotierzo v. Woman’s World Med.
Ctr., Inc., 278 F.3d 1180, 1182 (11th Cir. 2002). In addition, all reasonable inferences
should be drawn in favor of the plaintiff. See Omar ex rel. Cannon v. Lindsey, 334 F.3d
1246, 1247 (11th Cir. 2003) (per curiam). Nonetheless, the plaintiff must still meet some
minimal pleading requirements. Jackson v. Bellsouth Telecomm., 372 F.3d 1250, 126263 (11th Cir. 2004) (citations omitted). Indeed, while “[s]pecific facts are not necessary[,]”
the complaint should “‘give the defendant fair notice of what the . . . claim is and the
grounds upon which it rests.'” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam)
(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Further, the plaintiff
must allege “enough facts to state a claim to relief that is plausible on its face.” Twombly,
550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556).
A “plaintiff's obligation to provide the grounds of his entitlement to relief requires
more than labels and conclusions, and a formulaic recitation of the elements of a cause
of action will not do.” Twombly, 550 U.S. at 555 (internal quotations omitted); see also
Jackson, 372 F.3d at 1262 (explaining that “[c]onclusory allegations, unwarranted
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deductions of facts or legal conclusions masquerading as facts will not prevent dismissal”)
(internal citation and quotations omitted). Indeed, “the tenet that a court must accept as
true all of the allegations contained in a complaint is inapplicable to legal conclusions,”
which simply “are not entitled to [an] assumption of truth.” See Iqbal, 556 U.S. at 678,
680-81. Thus, in ruling on a motion to dismiss, the Court must determine whether the
complaint contains “sufficient factual matter, accepted as true, to ‘state a claim to relief
that is plausible on its face.'” Id. at 678 (quoting Twombly, 550 U.S. at 570).
In determining whether to give preclusive effect to a state court judgment, a federal
court sitting in diversity jurisdiction must apply the res judicata principles of the state court.
Amey, Inc. v. Gulf Abstract & Title, Inc., 758 F.2d 1486, 1509 (11th Cir. 1985); Arthur v.
JP Morgan Chase Bank, NA, 569 F. App’x 669, 676 (11th Cir. 2014) (“When evaluating
the effect of a state court judgment, we apply the preclusion law of the rendering state.”).
As such, because the Order on Motion to Dismiss Third Amended State Court
Counterclaim was issued by a Florida Court, the Court looks to Florida law. Under Florida
law,
A judgment on the merits rendered in a former suit between the same
parties or their privies, upon the same cause of action, by a court of
competent jurisdiction, is conclusive not only as to every matter which was
offered and received to sustain or defeat the claim, but as to every other
matter which might with propriety have been litigated and determined in that
action.
Fla. Dep’t of Transp. v. Juliano, 801 So. 2d 101, 105 (Fla. 2001) (emphasis omitted).
Thus, for res judicata to apply under Florida law, there must be:
(1) identity of the thing sued for; (2) identity of the cause of action; (3) identity
of the persons and parties to the action; (4) identity of the quality or capacity
of the persons for or against whom the claim is made; and (5) the original
claim was disposed on the merits.
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Lozman v. City of Riviera Beach, Fla., 713 F.3d 1066, 1074 (11th Cir. 2013) (internal
quotation marks and alteration omitted).8 “Importantly, the doctrine of res judicata not only
bars issues that were raised, but it also precludes consideration of issues that could have
been raised but were not raised in the first case.” Juliano, 801 So. 2d at 105. “The policy
‘underlying res judicata is that if a matter has already been decided, the petitioner has
already had his or her day in court, and for purposes of judicial economy, that matter
generally will not be reexamined again in any court (except, of course, for appeals by
right).'” See Zikofsky v. Marketing 10, Inc., 904 So. 2d 520, 523 (Fla. 4th Dist. Ct. App.
May 25, 2005) (quoting Topps, 865 So. 2d at 1255).
Two cases involve the same “thing sued for” if the party against whom res judicata
is invoked is seeking the same relief requested in the previous action. AMEC Civil, LLC
v. State, Dep’t of Transp., 41 So. 3d 235, 242 (Fla. 1st DCA 2010); Jenkins v. Lennar
Corp., 972 So. 2d 1064, 1066 (Fla. 3d DCA 2008); see also Amey, Inc. v. Gulf Abstract
& Title, Inc., 758 F.2d 1486, 1509 (11th Cir. 1985) (finding, where plaintiff sued for $2500
in damages in first case and $35,000 in damages in second case, “[i]dentity of the thing
sued for exists—damages”). “Claims are considered the ‘same cause of action' if the facts
essential to the maintenance of both actions are the same, that is, if the evidence in both
cases is in essence the same.” Madura v. Countrywide Home Loans, Inc., 344 F. App’x
8
Citing Twigg v. Sears, Roebuck & Co., 153 F.3d 1222, 1225 (11th Cir. 1998), Defendant asserts
the elements for res judicata are “(1) a final judgment on the merits; (2) rendered by a court of competent
jurisdiction; (3) identity of the parties; and (4) identity of the causes of action.” Defendant’s Motion to Dismiss
at 12. However, Twigg did not address the elements of res judicata under Florida law, instead citing Kemp
v. Birmingham News Co., 608 F.2d 1049, 1052 (5th Cir. 1979), which applied federal res judicata principles
for the general elements of claim preclusion. Twigg, 153 F.3d at 1225.
Although the elements Defendant identifies are similar to the formulation from Juliano, the Court will
evaluate his res judicata argument under the elements listed above, which accord with the Florida Supreme
Court’s more recent formulation of the doctrine. See The Florida Bar v. St. Louis, 967 So. 2d 108, 119 (Fla.
2007); Topps v. State, 865 So. 2d 1253, 1255 (Fla. 2004). In any event, the Court’s decision would be the
same under either formulation.
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509, 517 (11th Cir. 2009) (citing Gordon v. Gordon, 59 So. 2d 40, 44 (Fla. 1952)). A
subsequent case satisfies the requirement of “identity of the quality in the person for or
against whom the claims are made” when the defendant in that case is being sued “in the
same capacity vis-à-vis” the plaintiff as in the previous action. Jenkins, 972 So. 2d at
1066.
1.
Identity of the Thing Sued For
Neither party addresses this requirement. See generally Defendant’s Motion to
Dismiss; Plaintiff’s Response to Motion to Dismiss. Nevertheless, in this case, Plaintiff
seeks the same relief she sought through her State Court Counterclaims: a permanent
injunction prohibiting Defendant from hiring people to conduct surveillance of her, and
$243,000 in damages for loss of her business income.9 See Amended Complaint at 20;
Third Amended State Court Counterclaim at 10–11. As such, this requirement is satisfied.
See AMEC, 41 So. 3d at 242; Jenkins, 972 So. 2d at 1066.
2.
Identity of the Causes of Action
Plaintiff argues that her federal cybersquatting claim “was not stated in” her Third
Amended State Court Counterclaim, so there is no “identity of the causes of action” as to
that claim. Plaintiff’s Response to Motion to Dismiss at 4. She also asserts that she has
recently discovered that Defendant’s allegedly defamatory contents are still retrievable
online through Internet archives. Id. at 4–5. As to her claims for intentional infliction of
9
That Plaintiff also seeks “[a]dditional damages for pain and suffering that the court may deem just,”
see Amended Complaint at 20, does not affect the Court’s analysis because those damages, like her
damages for lost wages, flow from the same allegedly tortious conduct. See AMEC, 41 So. 3d at 242
(finding identity of the thing sued for where, in both cases, the plaintiff sought “money damages allegedly
sustained by AMEC as a result of the Department's breach of the indivisible contract”).
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emotional distress, Plaintiff apparently does not dispute that she previously raised
identical claims in her State Court Counterclaims. See generally id.
As previously discussed, claims involve “the ‘same cause of action' if the facts
essential to the maintenance of both actions are the same, that is, if the evidence in both
cases is in essence the same.” Madura, 344 F. App’x at 517. Plaintiff previously raised a
claim for “[i]ntellectual [p]roperty [d]amage” in her Third Amended State Court
Counterclaim. See Third Amended State Court Counterclaim at 8–9. Although Plaintiff’s
theory of recovery as to that claim remains unclear, she alleged, in support of the claim,
that Defendant had “purchased online domain names which were of commercial and
personal value to” her. Id. at 8. To the extent that Plaintiff’s state court counterclaim for
intellectual property damage was based on Defendant’s purchase of a domain name—
newglobalpublishing.net—that referenced the name of her business, the “facts essential
to the maintenance of” that claim are identical to the “facts essential to the maintenance
of” her federal cybersquatting claim.10 To state a claim for cybersquatting under 15 U.S.C.
§ 1125(d), a plaintiff must show, among other things, that the defendant “register[ed],
traffic[ked] in, or use[d] a domain name that … is identical or confusingly similar to” the
plaintiff’s trademark. 15 U.S.C. § 1125(d)(1)(A)(i)–(ii). Thus, Plaintiff’s cybersquatting
claim in her Amended Complaint requires “in essence” the same evidence on which she
relied to support her intellectual property damage counterclaim in state court. Moreover,
Plaintiff’s cybersquatting claim, which is based on the exact same conduct underlying her
10
Although Plaintiff alleges in her Amended Complaint that Defendant also wrongfully purchased
the rosananassar.com domain, she apparently does not base her cybersquatting claim on that domain
name. See Amended Complaint at 7–9. In any event, Plaintiff had based her intellectual property
counterclaim in state court on Defendant’s alleged purchase of that domain name as well, so the same
analysis would apply even if she had asserted Defendant’s alleged purchase of the rosananassar.com
domain as a basis for her cybersquatting claim in this case.
-16-
intellectual property damage counterclaim, indisputably “could have been raised” during
the state court proceedings. See Juliano, 801 So. 2d at 105.11
Plaintiff does not directly challenge Defendant’s assertion that her defamation
claim in this case is based on the same evidence underlying her defamation counterclaim
in the state court proceedings. Instead, she simply observes that she only recently
learned that the allegedly defamatory statements are still visible through Internet archives.
See Plaintiff’s Response to Motion to Dismiss at 4–5. However, that purportedly newly
discovered evidence does not change the fact that Plaintiff is attempting to base a
defamation claim on the exact same allegedly defamatory statements on which she based
her prior defamation counterclaim. In both cases, she asserted that Defendant allegedly
defamed her by stating that Plaintiff suffers from serious psychological problems, a
personality disorder, and paranoia. See Third Amended State Court Counterclaim at 9;
Amended Complaint at 10. Because Plaintiff previously sought and was denied relief
based on those statements, the identity of the cause of action requirement is satisfied as
to her defamation claim.12
11
To the extent Plaintiff’s intellectual property damage counterclaim in state court was based in part
on allegedly defamatory statements on newglobalpublishing.net and rosananassar.com, the counterclaim
overlapped with her defamation counterclaim, which the Court addresses separately.
12
The Court observes that some aspects of Plaintiff’s previous and current defamation claims are
unclear. Specifically, it is unclear (1) whether both claims are based on alleged defamatory statements on
both rosananassar.com and Goodreads.com; and (2) whether Plaintiff alleged that statements other than
those previously discussed are defamatory. Plaintiff’s state court counterclaim for defamation appears to
be based only on the alleged statements on rosananassar.com, although she also attaches as an exhibit
the alleged statements from Goodreads.com. See Third Amended State Court Counterclaim at 9. Plaintiff’s
defamation claim in this case, by contrast, references statements on Goodreads.com as well as statements
on rosananassar.com and newglobalpublishing.net. See Amended Complaint at 9–11.
Because it is difficult to determine which allegedly defamatory statements underlie Plaintiff’s state
court counterclaim and her claim in this case, it is possible that she bases her defamation claim in this case,
at least in part, on alleged statements that were not addressed in her state court counterclaim, such that
res judicata would not necessarily bar her claim. However, to the extent that is the case, her defamation
claim nevertheless is barred by the applicable statute of limitations. As plaintiff acknowledges, defamation
claims are subject to a two-year statute of limitations. See Fla. Stat. § 95.11(4)(g); see also Amended
Complaint at 10 (acknowledging two-year statute of limitations). But Plaintiff fails to acknowledge that the
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Finally, although not challenged by Plaintiff, the Court concludes that Plaintiff’s
claim for intentional infliction of emotional distress in this case is the same cause of action
she raised in state court. Plaintiff previously raised a counterclaim for intentional infliction
of emotional distress based on Defendant’s “hiring [of] investigators and security officers.”
See Third Amended State Court Counterclaim at 10. Likewise, in this case, Plaintiff has
brought a claim for intentional infliction of emotional distress based on the allegation that
Defendant “hired investigators and security officers to place [her] under ‘surveillance', to
stalk, harass, and threaten her.” Amended Complaint at 12. Because her claim in this
case is identical to her counterclaim in the state court proceedings, the identity of the
cause of action requirement is satisfied as to this claim as well.13
statute of limitations begins to run at the time of the first publication of an alleged defamatory statement.
See Wagner, Nugent, Johnson, Roth, Romano, Erikson & Kupfer, P.A. v. Flanagan, 629 So. 2d 113, 114–
15 (Fla. 1993); Fla. Stat. § 95.031 (“[T]he time within which an action shall be begin under any statute of
limitations runs from the time the cause of action accrues.”); Fla. Stat. § 770.07 (“The cause of action for
damages founded upon a single publication or exhibition or utterance … shall be deemed to have accrued
at the time of the first publication or exhibition or utterance thereof in [Florida].”).
In any event, in Plaintiff’s Motion to Amend, discussed infra at pages 24-27. Plaintiff has indicated
her intention to drop her defamation claim from this case. See Doc. 98-1 at 2; see generally Proposed
Second Amended Complaint. Accordingly, the Court considers it abandoned.
13
Notably, in her Amended Complaint Plaintiff alleges that she received an anonymous “life
threatening” text message on an unidentified date. Amended Complaint at 18. The message stated, “I am
gonna kill u! Don't give anybody my cell number.” Id.; see also Amended Complaint, Exh. J (Doc. 61-10)
(images of text message). She concludes that the message must have been sent by Defendant because it
was sent “from area code ‘91' which is from [Defendant's] city of Belem, State of Para, country of Brazil,
where [D]efendant lives.” Id. at 18–19. However, Plaintiff misreads the telephone number from which the
message was sent. The full number has a country code of “1,” indicating a United States telephone number,
whereas the country code for Brazil is 55. Although this reading conflicts with Plaintiff’s allegation that the
message originated from a telephone number associated with Brazil, the Court may rely on the exhibit
instead of Plaintiff’s allegation. See Hoefling v. City of Miami, 811 F.3d 1271, 1277 (11th Cir. 2016) (“A
district court can generally consider exhibits attached to a complaint in ruling on a motion to dismiss, and if
the allegations of the complaint conflict with the exhibit itself, the exhibit controls. The classic example is
when a plaintiff attaches a document to his complaint but his allegations about what the document is or
says contradict the document itself.”). As such, Plaintiff’s only allegation linking the alleged threatening
message to Defendant is a conclusion which appears to be based on a misreading of the sender’s
telephone number. This allegation, to the extent it could support a claim not previously raised during the
state court proceedings, fails to state a claim as to Defendant because Plaintiff fails to allege any facts
linking the message to Defendant.
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3.
Identity of the Parties
Plaintiff does not dispute that the State Court Action involved the same parties.
See Plaintiff’s Response to Motion to Dismiss at 1. As such, this requirement is satisfied.
4.
Identity of the Quality or Capacity of the Persons for or Against
Whom the Claim Is Made
Neither party addresses the fourth requirement. See generally Defendant’s Motion
to Dismiss; Plaintiff’s Response to Motion to Dismiss. Upon review of the relevant
pleadings, the Court readily concludes the parties are suing and being sued in the same
capacity as in the State Court Action—that is, Plaintiff, individually, is suing Defendant in
his individual capacity based on actions Defendant is alleged to have taken in his
individual capacity. Thus, this requirement is satisfied. See Jenkins, 972 So. 2d at 1066.
5.
Final Judgment on the Merits
As to this requirement, the parties strongly disagree. This is not surprising as the
Court acknowledges some ambiguity as to the nature of the state court’s dismissal of
Plaintiff’s counterclaims. Although Defendant is correct that his Motion to Dismiss
Plaintiff’s Third Amended State Court Counterclaim focused on merits-based arguments,
the motion nevertheless reiterated Defendant’s position that Plaintiff had failed to
establish the state court’s personal jurisdiction over Defendant with respect to Plaintiff’s
counterclaims. See Motion to Dismiss Third Amended State Court Counterclaim at 2–3.
Further complicating the issue is the fact that the state court did not independently state
the reasons for its decision for dismissal of Plaintiff’s counterclaims; instead, it adopted
and incorporated Defendant’s assertions into its order. Additionally, the Court did not
independently state whether its dismissal was with or without prejudice.
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Nevertheless, the Court concludes that the circumstances of the state court’s
dismissal of Plaintiff’s counterclaims reflect with sufficient clarity that the state court
dismissed the counterclaims with prejudice, and its order constitutes a final judgment on
the merits. Upon review of the relevant motion in the state court, the Court concludes that
Defendant did not seek dismissal of Plaintiff’s Third Amended State Court Counterclaim
based on lack of personal jurisdiction, but instead sought dismissal of her counterclaims
on the merits. See generally Motion to Dismiss Third Amended State Court Counterclaim
at 1. In doing so, Defendant specifically moved to dismiss Plaintiff’s counterclaims with
prejudice. See id. Notably, a dismissal for lack of personal jurisdiction is not an
adjudication on the merits. See Fla. R. Civ. P. 1.420(b). Indeed, in moving to dismiss
Plaintiff’s earlier counterclaims based in part on lack of personal jurisdiction, Defendant
did not request dismissal with prejudice. See Motion to Dismiss State Court Counterclaim;
Motion to Dismiss Amended State Court Counterclaim. Moreover, Defendant’s Motion to
Dismiss the Third Amended State Court Counterclaim, although mentioning the purported
absence of personal jurisdiction, stated more than once the reasons underlying
Defendant’s request for dismissal, none of which included lack of personal jurisdiction.
See Motion to Dismiss Third Amended State Court Counterclaim at 3–5. Indeed, no
reading of Defendant’s motion would support a conclusion that it raised lack of jurisdiction
as a basis for dismissal. Additionally, because the state court appears to have granted
the specific relief Defendant requested—dismissal with prejudice—and did not in any way
suggest that the dismissal was without prejudice or was not based on the merits, the
Court determines the state court’s order to be a final judgment on the merits. See Fla. R.
Civ. P. 1.420(b) (“Unless the court in its order for dismissal otherwise specifies, a
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dismissal under this subdivision and any dismissal not provided for in this rule, other than
a dismissal for lack of jurisdiction or for improper venue or for lack of an indispensable
party, operates as an adjudication on the merits.”).
Plaintiff asserts that the state court’s Order Dismissing the Third Amended State
Court Counterclaim cannot constitute a final judgment because it did not follow a “full
trial.” She is incorrect. Preliminarily, the Court observes that it is unclear whether Plaintiff’s
counterclaims were permissive or compulsory. If permissive, the state court’s dismissal
of Plaintiff’s counterclaims would be “a final order subject to appeal, provided” it otherwise
met the test of finality. Cunningham v. MBNA Am. Bank, N.A., 8 So. 3d 438, 440 (Fla. 2d
DCA 2009). If compulsory, the state court’s dismissal of Plaintiff’s counterclaims would
not be “an appealable final order until a final disposition of the underlying case.” Id. Here,
it makes no difference whether Plaintiff’s counterclaims were permissive or compulsory
because Defendant voluntarily dismissed his case on December 1, 2014, rendering the
state court’s order dismissing Plaintiff’s counterclaims final and appealable even if those
counterclaims were compulsory. See Johnson v. Allen, Knudsen, DeBoest, Edwards &
Rhodes, P.A., 621 So. 2d 507, 509 (Fla. 2d DCA 1993) (finding counter-plaintiffs could
appeal order dismissing counterclaims with prejudice following counter-defendant’s
voluntary dismissal of original claim). As such, the state court’s order constitutes a final
judgment on the merits for purposes of the res judicata analysis.
6.
Court of Competent Jurisdiction
As previously discussed, only a final judgment on the merits rendered by a court
of competent jurisdiction may bar a subsequent suit raising the same claims. See Juliano,
801 So. 2d at 105. Plaintiff contends that the state court lacked personal jurisdiction over
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Defendant with respect to her counterclaims, so that court was not a “court of competent
jurisdiction.” Plaintiff’s Response to Motion to Dismiss at 1–3. However, because the
Court previously concluded that Defendant did not seek dismissal of Plaintiff’s Third
Amended State Court Counterclaim based on lack of personal jurisdiction, Defendant
implicitly consented to the state court’s personal jurisdiction over him in the prior
proceedings by submitting to that court’s jurisdiction and arguing only the merits of
Plaintiff’s counterclaims. See Snider v. Metcalfe 157 So. 3d 422, 424–25 (Fla. 4th DCA
2015) (observing that a defendant may waive defense of lack of personal jurisdiction by
“tak[ing] any steps in the proceeding constituting submission to the court's jurisdiction”;
finding defendant had taken no such steps). Although Defendant initially challenged the
state court’s personal jurisdiction over him, the state court permitted Plaintiff to amend
her counterclaims, and she did so. Her Third Amended State Court Counterclaim
contained additional allegations and argument supporting her assertion that the state
court had personal jurisdiction over Defendant. Defendant then declined to challenge the
state court’s personal jurisdiction over him based on the amended allegations, and
instead sought dismissal on the merits.
Moreover, the Court observes that the state court had personal jurisdiction over
Defendant with respect to Plaintiff’s counterclaims. For a court in Florida to exercise
personal jurisdiction over a defendant not located in Florida, Florida’s long-arm statute,
Florida Statutes section 48.193, must reach the defendant and the defendant must have
sufficient contacts with the state such that the exercise of jurisdiction would not offend
due process. Louis Vuitton Malletier, S.A. v. Mosseri, 736 F.3d 1339, 1350 (11th Cir.
2013). Florida’s long-arm statute provides for two types of jurisdiction. Id. at 1352. While
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subparagraph two of section 48.193 confers general jurisdiction over defendants
“engaged in substantial and not isolated activity within [Florida]” irrespective of any nexus
between the defendant’s activity and the cause of action, subparagraph one confers
jurisdiction over specific causes of action “arising from” one of the enumerated acts. See
id.; Fla. Stat. § 48.193(1), (2). As relevant here, section 48.193(1) provides that a nonresident is subject to the jurisdiction of Florida courts to the extent that the cause of action
arises from a defendant’s “[c]ommi[ssion of] a tortious act within th[e] state.” Fla. Stat.
§ 48.193(1)(a)(2). In Plaintiff’s Third Amended State Court Counterclaim Plaintiff alleged
that Defendant defamed Plaintiff through internet postings, hired investigators located in
Florida to “stalk” Plaintiff in Florida, and purchased domain names bearing Plaintiff’s name
and her business’s name to harm Plaintiff’s personal and business reputation in Florida.
Those allegations are sufficient to support that Plaintiff’s state court counterclaims arose
from Defendant’s alleged commission of tortious acts in Florida such that Florida’s longarm statute is satisfied. Additionally, the Court observes that, under those circumstances
(where Plaintiff alleges that Defendant committed serious intentional torts against Plaintiff
in Florida), the exercise of personal jurisdiction over Defendant with respect to Plaintiff’s
counterclaims would not offend due process. Cf. Silver v. Levinson, 648 So. 2d 240, 243–
44 (Fla. 4th DCA 1994) (finding exercise of personal jurisdiction did not offend due
process where defendant had “committed an intentional act directly aimed at Florida and
made accusations targeted at a Florida resident,” so he “purposefully directed his
activities at Florida.”).
The Court’s conclusion that the state court had personal jurisdiction over
Defendant is not inconsistent with the basis for Defendant’s initial challenge to the state
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court’s personal jurisdiction over him. He argued only that Plaintiff’s counterclaims were
not compulsory, and so the state court did not automatically have personal jurisdiction
over him as to those claims. See [Defendant’s] Motion to Dismiss Counterclaim and for
Entry of Default Judgment (Doc. 24-4) at 5–6; [Defendant’s] Motion to Dismiss Amended
Counterclaim (Doc. 24-6) at 3–5.14
In consideration of the foregoing, the Court determines that Defendant has
established that all of the requirements for application of res judicata are satisfied here.
As such, the Motion is due to be granted to the extent that the Court finds the claims set
forth in the Amended Complaint are barred by res judicata and due to be dismissed.
C.
Plaintiff’s Motion to Amend
Plaintiff has filed a motion to amend her Amended Complaint. See generally
Plaintiff’s Motion to Amend. In that motion, Plaintiff seeks leave to amend her claims in
this action to (1) account for “new evidence”; (2) provide more detailed allegations and
more clearly identify which facts support each claim; (3) eliminate her defamation claim;
(4) add a claim for invasion of privacy; and (5) add a claim under 15 U.S.C. § 813115
based on Defendant’s alleged purchase of the rosananassar.com domain. See
Memorandum in Support of Plaintiff’s Renewed Motion for Leave to File Second
Amended Complaint at 1–2. Because the Court has already concluded that the claims
raised in Plaintiff’s Amended Complaint are due to be dismissed based on res judicata,
the Court must consider whether Plaintiff’s proposed amendments would be futile.
14
15
Significantly, Defendant does not challenge this Court’s personal jurisdiction over him.
Plaintiff cites 15 U.S.C. § 1129, but that provision has been moved to § 8131.
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Pursuant to Fed. R. Civ. P. 15(a)(2), the Court “should freely give leave [to amend
a pleading] when justice so requires.” While such leave is not an automatic right, see
Reese v. Herbert, 527 F.3d 1253, 1263 (11th Cir. 2008); Wagner v. Daewoo Heavy Indus.
Am. Corp., 314 F.3d 541, 542 (11th Cir. 2002), the “decision whether to grant leave to
amend is within the sound discretion of the trial court.” Jameson v. Arrow Co., 75 F.3d
1528, 1534 (11th Cir. 1996). If a more carefully drafted complaint might state a claim, a
court must give a pro se party at least one chance to amend the complaint before
dismissing it with prejudice. Bryant v. Dupree, 252 F.3d 1161, 1163 (11th Cir. 2001). Here,
Plaintiff has already been given an opportunity to amend her complaint. After Plaintiff filed
this action, Defendant filed his First Motion to Dismiss. Plaintiff responded to that motion,
and also filed an Amended Complaint which the Court struck. See Order (Doc. 43).
Thereafter, Plaintiff sought and was given leave to file the Amended Complaint, see Order
(Doc. 57), which is the operative pleading. Thus, Plaintiff was given the opportunity to
replead after having the benefit of reviewing Defendant’s arguments in support of
dismissal. As such, it does not appear that leave to amend, yet again, would be required
here. Nevertheless, leave to amend is not warranted where amendment would be futile.
Cockrell v. Sparks, 510 F.3d 1307, 1310 (11th Cir. 2007). An amendment is futile if the
complaint as amended would still be subject to dismissal. Id.16
16
Because Plaintiff seeks leave to amend both to provide additional detail and allege additional
claims concerning events occurring before she filed her original Complaint and to allege new incidents that
occurred after she filed her Complaint, her motion is both a motion to amend under Rule 15(a) and a motion
to supplement under Rule 15(d). However, in either circumstance the decision as to whether to allow the
new pleading is left to the Court’s discretion. See Fed. R. Civ. P. 15(d), Advisory Cmte. Note to 1963
Amendment. Moreover, the standards for ruling on each type of request are essentially the same. See Glatt
v. Chicago Park Dist., 87 F.3d 190, 194 (7th Cir. 1996); Lewis v. Knutson, 699 F.2d 230, 239 (5th Cir. 1983).
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Plaintiff’s Proposed Second Amended Complaint alleges in much greater detail the
specific incidents underlying her claim for intentional infliction of emotional distress. See
Proposed Second Amended Complaint (Doc. 98-2) at 2–21. To the extent that those
alleged incidents predate the filing of Plaintiff’s Third Amended State Court Counterclaim,
Plaintiff’s claims would remain barred by res judicata. Simply providing more detailed
allegations does not cure the defect in Plaintiff’s Amended Complaint: that she previously
sought and was denied relief based on the alleged incidents. Any allegations of “stalking”
by individuals purportedly hired by Defendant before August 27, 2014, would necessarily
have been encompassed in Plaintiff’s counterclaims for intentional infliction of emotional
distress and stalking because those counterclaims were based on Plaintiff’s allegation
that Defendant had “been [s]talking [her] unmercifully [sic] since 2005 through private
investigators and security officers.” See Third Amended State Court Counterclaim at 9–
10. Additionally, for the reasons discussed supra with respect to Plaintiff’s cybersquatting
claim, Plaintiff’s proposed claim under 15 U.S.C. § 8131 is barred by res judicata because
Plaintiff previously sought relief based on Defendant’s alleged purchase of
rosananassar.com. Thus, any amendment to allege new facts or claims based on events
predating Plaintiff’s Third Amended State Court Counterclaim would be futile.
To the extent that Plaintiff alleges incidents that postdate the filing of her Third
Amended State Court Counterclaim, her claims based on those allegations would not be
barred by res judicata. “[C]ourts customarily have treated requests to supplement under
Rule 15(d) liberally.” U.S. ex rel. Gadbois v. PharMerica Corp., 809 F.3d 1, 7 (1st Cir.
2015); see also United States v. One Piece of Real Property Located at 5800 SW 74th
Ave., Miami, Fla., 182 F. App’x 921, 924–25 (11th Cir. 2006) (“We have accepted a policy
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of liberal amendments and supplements to the pleadings under Rule 15.”). However, a
motion to supplement a pleading may be denied if the totality of the circumstances weigh
against allowing supplementation. For instance, granting leave to supplement a pleading
may be denied where allowing supplementation would “unduly delay resolution of the
case,” or when the party unreasonably delayed in attempting to supplement. Gadbois,
809 F.3d at 7 (internal quotation marks omitted). Moreover, Rule 15(d), by its terms,
permits supplementation only to “set[ ] out any transaction, occurrence, or event that
happened after the date of the pleading to be supplemented.” Fed. R. Civ. P. 15(d). A
court’s ultimate consideration in deciding whether to allow a party to supplement a
pleading is whether the proposed supplementation would promote the efficient
administration of justice. See W. Ala. Women’s Ctr. v. Miller, No. 2:15cv497-MHT, 2016
WL 3621273, at *4 (M.D. Ala. July 5, 2016).
Considering the totality of the circumstances, the Court concludes that permitting
Plaintiff to supplement her Amended Complaint would not promote the efficient
administration of justice. As an initial matter, it appears that none of the newly alleged
incidents occurred after she filed her Amended Complaint. See Proposed Second
Amended Complaint ¶¶ 49–50, 53, 56–58, 75. Thus, under the terms of Rule 15(d),
supplementation is inappropriate. See Fed. R. Civ. P. 15(d) (stating that a party may
supplement a pleading to “set[ ] out any transaction, occurrence, or event that happened
after the date of the pleading to be supplemented.” (emphasis added)). Moreover, most
of the new events allegedly occurred a year or more before Plaintiff moved to supplement
-27-
her Amended Complaint.17 In light of that fact, it is apparent that Plaintiff has unreasonably
delayed in requesting leave to supplement her pleading with those allegations.
Additionally, permitting Plaintiff to supplement her pleading at this stage would unduly
delay the proceedings. This case has been pending for nearly two years. Because the
Court concludes that Plaintiff’s Amended Complaint is due to be dismissed in its entirety
based on res judicata, permitting Plaintiff to supplement would, in effect, result in starting
the case over entirely. Such a result would not promote the interests of justice.
Accordingly, Plaintiff’s Motion to Amend will be denied.
III.
Conclusion
In light of the foregoing, Plaintiff’s Motion to Take Judicial Notice is due to be
denied; Defendant’s Motion to Dismiss is due to be granted; Plaintiff’s Motion to Amend
is due to be denied, and this action is due to be dismissed. Accordingly, it is hereby
ORDERED:
1.
Plaintiff’s Motion to [sic] Judicial Notice (Doc. 66) is DENIED.
2.
Defendant’s Motion to Dismiss Amended Complaint and Memorandum in
Support (Doc. 63) is GRANTED, and the Amended Complaint is
DISMISSED.
3.
Plaintiff’s Renewed Motion for Leave to File Second Amended Complaint
(Doc. 98) is DENIED.
17
The only relatively recent allegation states that “in the first quarter of 2016,” Plaintiff noticed that
she was being followed by a car apparently associated with a security agency and confronted the driver.
See Proposed Second Amended Complaint ¶ 57.
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4.
The Clerk of the Court is directed to enter judgment in favor of Defendant
Eduardo Boulhosa Nassar, terminate all pending motions, and close the file.
DONE AND ORDERED in Jacksonville, Florida, this 3rd day of January, 2017.
lc21
Copies to counsel of record and pro se parties
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