Doe v. Predator Catchers, Inc. et al

Filing 125

ORDER granting, in part, and denying, in part, 91 Defendants' Motion for Summary Judgment. The Motion is GRANTED as to Counts III and V of the Amended Complaint, and otherwise DENIED. See Order for details. Signed by Judge Marcia Morales Howard on 8/28/2024. (MHM)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
JOHN DOE,
Plaintiff,
v.

Case No. 3:22-cv-414-MMH-LLL

PREDATOR CATCHERS, INC.
and ERIC SCHMUTTE,
Defendants.

ORDER
THIS CAUSE is before the Court on Defendants’ Motion for Summary
Judgment and Incorporated Memorandum of Law (Doc. 91; Motion), filed on
January 19, 2024. Plaintiff John Doe filed a response in opposition to the
Motion on February 22, 2024.

See Plaintiff’s Response in Opposition to

Defendants’ Motion for Summary Judgment (Doc. 105; Response). Although
permitted to do so under the Local Rules of this Court, Defendants Predator
Catchers, Inc. (PCI) and Eric Schmutte did not file a reply in support of their
Motion and the time for doing so has passed. See Local Rule 3.01(d), United
States District Court, Middle District of Florida (Local Rule(s)). Accordingly,
this matter is ripe for review.

I.

Background1
In the spring of 2022, John Doe had an active profile on the online dating

application known as Tinder. See Affidavit of John Doe (Doc. 106-1; Doe Aff.)
¶¶ 3, 5. At the time, Doe was a thirty-eight-year-old man living in Atlantic
Beach, Florida.

See Deposition of John Doe (Doc. 98; Doe Dep.) at 209.

According to Doe, Tinder is a site for adults only and is “extremely clear about
it being a forum for adults only.” See Doe Dep. at 140-41, 138. On March 2,
2022, Doe “matched” on Tinder with a woman identified as “Jessie”—meaning
that he liked Jessie’s profile, and Jessie liked his. See Doe Dep. at 44-45, 47.
According to Doe, the age listed on Jessie’s Tinder profile was nineteen. Id. at
146. And although Jessie’s profile is not in the record, Doe recalls that her
interests included “something about road trip [sic].” Id. at 139. Doe initiated
a conversation with Jessie by sending her a message through Tinder’s
messaging platform at 11:09 p.m. on a Wednesday night. See Doe Dep. at 12930, Ex. F at 4.

Because the full context of Doe’s exchange with Jessie is

relevant to the claims in this case, the Court sets forth the entirety of the Tinder
messages below.

Unless otherwise noted, the facts recited here are undisputed. For the purposes of
resolving the Motion for Summary Judgment, the Court views all disputed facts and
reasonable inferences in the light most favorable to the Plaintiff, John Doe. However, the
Court notes that these facts may differ from those ultimately proved at trial. See Lee v.
Ferraro, 284 F.3d 1188, 1190 (11th Cir. 2002).
1

-2-

The messages exchanged on Wednesday night are:
Doe:
Jessie:
Doe:

Hey
Hey
Where was the last place you went on a road trip to?

See Doe Dep. at 129, Ex. F at 4.

The conversation continued Thursday

morning around 10:33 a.m.:
Jessie:
Doe:
Jessie:
Doe:
Jessie:
Doe:
Jessie:
Doe:
Jessie:

Here haha I’m from Ohio
So did you move here, or are you just visiting?
Just visiting
I’d be happy to help you create a very memorable experience
while you’re in town.
How
I’m sure we can come up with something that will make you
smile
Like what
Something along the lines of multiple, consecutive, kneeweakening orgasms . . .
Interested?
What’s ur number

See id., Ex. F at 4-5. At this point, Doe provided his phone number to Jessie
and their conversation resumed at 12:42 p.m. via text message:
Jessie:
Doe:
Jessie:
Doe:
Doe:
Jessie:
Doe:
Doe:
Jessie:
Doe:
Jessie:
Doe:

Hey [Doe] it’s Jessie from tinder
Hey
Wyd
Not much. Working from home. You?
But, I’d be happy to shift my focus from work to you if you’re
interested?
Send pic
[Sends picture]
Your turn
How old r ya again
38
So idk if you’re guna Wana talk to me
Why is that?

-3-

Jessie:
Doe:
Jessie:
Doe:
Jessie:
Doe:
Jessie:
Doe:

I’m yunger than 18
Ohh
Are you interested otherwise?
Ya just didn’t kno if u are
How old are you?
13
Doesn’t your profile say you’re over 18?? I feel like that’s a detail
I would have noticed
You can’t put that you’re 13 on there haha
Oh, got it. That makes perfect sense. I really appreciate you
being honest about your age before meeting up.
God knows I’m more than a little flattered that a beautiful young
woman, like yourself, would be interested in me.
Unfortunately, as much as it pains me to say, I’m going to have
to pass on what sounds like it would have been an amazing time.
You’re already gorgeous at your age, that I can’t even begin to
imagine the smoke show you’re going to be when you’re old
enough to meet up!

Jessie:
Doe:
Jessie:
Doe:
Doe:
Jessie:
Jessie:
Doe:
Jessie:
Doe:
Jessie:
Doe:

Please feel free to save my number & give me a call in about 5
or 6 years. I’ll probably be going through a mid-life crisis
around that time so the timing will work out perfectly!
Ah ok
The last paragraph was a joke . . .
Lol
You do still owe me a pic though. I sent you one, so I think it’s
only fair that you send me one
Are you staying out at the beaches?
[Sends picture2]
I’m in Atlantic beach area
For how long?
Leaving Sunday
Do other guys usually have an issue when you tell them how old
you are?
Some do some don’t
Just out of curiosity, are you busy this afternoon?

The picture is in the record as the first picture in Exhibit E to Doe’s deposition. See
Doe Dep. at 153-54, Ex. E.
2

-4-

Jessie:
Doe:
Jessie:
Doe:
Jessie:
Doe:
Doe:
Jessie:
Doe:
Jessie:
Doe:
Jessie:
Doe:
Jessie:
Doe:
Jessie:

Doe:
Jessie:
Doe:
Jessie:
Doe:
Jessie:
Doe:

Nope
I guess there’s nothing wrong with us hanging out. What time
would you be able to get together?
Not sure yet
What u tryna do
Maybe smoke and hang out for a little
What else u got in mind
What do you mean?
Depends on how well we got along I guess
Just asking if there anything else in ur mind lol
Possibly, but I think it would be better to meet before getting
into it
Y loo
Lol*
I’m sure you can figure that one out
Um no lol
Just prefer to tell you in person than by text, but if you don’t
want to get together we don’t have to
Y u scared or something
I prefer to think of it as being smart, but like I said-we don’t have
to get together if you’ve changed your mind
I didn’t change my mind lol
Wym smart?
No one goes through my phone. And I delete our messages
anyway
Just given the difference in age, I don’t see any need to write a
detailed account of everything I may be thinking about
Lol oook
So – you want to meet up?
Ya
What time will you be ready?
Maybe in like like 2 hrs
Ok

See Doe Dep. at 135-36, Ex. F at 6-20. The conversation continues at 5:24 p.m.:
Jessie:
Doe:
Jessie:
Doe:

What u Wana do? I’m honestly down for anything
I live in Atlantic Beach. Want to come smoke?
Idk I’ve never smoked b4
Then nevermind. Forgot I said that
You just want to come over and not smoke?

-5-

Jessie:
Doe:
Doe:
Jessie:
Doe:
Jessie:
Doe:
Doe:
Jessie:
Doe:
Jessie:
Doe:
Jessie:
Doe:
Jessie:
Doe:
Jessie:
Doe:
Jessie:
Doe:
Jessie:
Doe:
Jessie:
Doe:
Jessie:

What do u Wana do
Go for a bike ride, go to the beach, Netflix – take your pick
Maybe I’m going about this the wrong way. What would you like
to do?
Netflix is always good
What time?
When u say Netflix do u mean actually Netflix or Netflix and
chill haha
The second
Which did you mean?
Down for either
Surprised u want to. Didn’t think u wanted to hook up with me
What time are you going to be ready?
Prob in an hr
How about 8 PM?
Ya
Have u ever hooked up with someone my age
Nope
Why do you ask?
Jw
Have you ever hooked up with someone my age?
Not in their 30s
I’ve only had sex 4 times
Haha
Are you ready?
Not yet prob wait for my grandma go to sleep, is that ok?
She goes to bed early
Yeah, that’s ok.
Around what time do you think that will be?
Maybe an hr
Ok
So ur wanting to like …u know , do it
I have no expectations. Probably best to meet each other in
person, before making a decision like that
I mean u said u wanted to Netflix and chill

Id., Ex. F at 20-26 The conversation appears to have paused at this point and
then resumed at 10:56 p.m. as follows:
Jessie:

Guess not [grinning face with sweat emoji]

-6-

Doe:
Jessie:
Doe:
Jessie:
Doe:
Jessie:
Doe:
Jessie:
Doe:
Jessie:
Doe:
Jessie:
Doe:
Jessie:
Doe:
Jessie:
Doe:
Jessie:
Doe:
Jessie:

What do you mean? I thought you were going to let me know
when you were ready?
U never texted me back lol
Wyd
Just finishing up a project I’ve been working on.
What are you up to?
Just watching tv
Is it too late to hang out tonight?
What u Wana do?
Same plan, different time?
Netflix and chill?
Sounds like a plan
My grandma is still awake for some reason lol
How late u staying up
I’m gonna shower. Should I shave my legs lol
That’s up to you, but I think the majority of men, if asked, would
always say “yes”
I mean if we hookin up I Wana shave sooooo lol
If we not I won’t shave haha
I would say go for it, but if I don’t hear back from you for over an
hour I can’t guarantee I’ll still be awake
I understand haha
U free tomorrow if not tonight
I have plans for a friend’s birthday tomorrow evening, but I’ll
still be up for a while tonight
What about Saturday?
Sounds like you’re not planning to come over tonight anymore?
U said u might not be up still
If you took too long. How long do you need?
Haha my grandma got called into work, she a nurse. She said
they begged her to come in

Id., Ex. F at 26-30. The conversation then continues on Friday at 11:14 a.m.
Jessie:
Doe:
Jessie:
Doe:
Jessie:
Doe:
Jessie:

Hey
Hey
Wyd
Working
Cool
No, it’s not. But it is necessary . . . at least for now
Ya lol

-7-

Id., Ex. F at 30-31. At 11:03 p.m. that evening, Doe texts Jessie “What’s up?”
and receives no response. Id., Ex. F at 31. Doe texts her again at 1:32 a.m.
and the conversation resumes:
Doe:
Jessie:
Doe:
Jessie:
Doe:
Jessie:
Doe:
Jessie:
Doe:

Jessie:
Doe:
Jessie:
Doe:
Jessie:
Doe:
Jessie:

Doe:
Jessie:
Doe:
Jessie:

You still in Atlantic Beach?
Ya
Leaving Sunday
Cool – you able to get together now?
Really?
Yes
What u Wana do
Netflix
Idk it’s Soo late lol
U aren’t free tomorrow night?
Nope. It’s the perfect time!
You have to wait for your grandmother to go to sleep anyways.
She should be good and asleep by now.
It’ll be fun
What about in the morning
And r we just wat hing movie because should I shower lol
Watching movie*
You can come just like you are right now
My grandma is working actually lol
Perfect. How soon can you be ready?
U Wana just chill here? She won’t be back until 6:30
I’d rather come back to my house, so there’s no chance of
someone coming home early
She won’t. She always texts me when she’s leaving work. Lol no
one else lives here
I also have tv in my room so if she did come home you could just
climb out the window lol
Are you not willing to come here? I don’t live far away & you
wouldn’t have to climb out any windows
I also think there will be more fun things to do over here
Like what
You’ll have to see for yourself
Dude just tell me lol

-8-

Doe:

Jessie:

Doe:
Jessie:
Doe:
Jessie:
Doe:
Jessie:
Doe:
Jessie:
Doe:
Jessie:
Doe:
Jessie:
Doe:
Jessie:
Doe:

I honestly don’t know. I was just trying to convince you to come
here.
I would be much more comfortable if we can hang out at my
place, but if you don’t want to come over then I’m not going to
keep pressuring you to come here
I’m just a little nervous just jumping In ur car right away. Can
u come in and talk for just a sec so I know u aren’t crazy killer
lol
Gotcha
Wow that’s wack
What is?
Yeah I can talk for a minute or however long it takes you to
figure out that I’m not a crazy killer
Ok let me get up and get ready real quick.
Ok, how long until you’re ready?
10 min
1340 Roxie st
That’s a bit further away than I thought
How far
10-15 minutes
Bruh that ain’t far at all haha
Can you FaceTime real quick before I drive out there
[Sends picture3]
How far r u
Just leaving. I meant a more revealing pic
[Sends picture4]
How’s this lol
R u like close lol
Yeah
Y it feel like u [expletive] with me
Think I’m here

See Doe Dep., Ex. F at 31-42.

This picture is the third picture in Exhibit E to Doe’s deposition. See Doe Dep. at
204-05, Ex. E.
3

This picture is the second picture in Exhibit E to Doe’s deposition. See Doe Dep. at
207, Ex. E.
4

-9-

Unbeknownst to Doe, Jessie was a decoy profile and the individual
communicating with Doe as Jessie was actually Eric Schmutte, a man in his
mid-thirties who is the president and founder of PCI. See Deposition of Eric
Schmutte (Doc. 94; Schmutte Dep.) at 27-28, 30, 34, 49, 65; see also Deposition
of Samantha Syrus (Doc. 95; Syrus Dep.) at 25. PCI is a non-profit corporation
whose mission is to find and “help expose online predators . . . trying to meet
children.”

See Schmutte Dep. at 28, 34; see also Syrus Dep. at 21. Generally,

PCI operates by creating “decoy” profiles on social media websites or online
dating platforms. See Schmutte Dep. at 27. PCI is funded through donations.
Id. at 38.
Here, Schmutte created the “Jessie” profile.

Id. at 49.

The profile

identified Jessie as being over the age of eighteen because Tinder will not allow
a user to create a profile younger than eighteen. See id. at 64, 102, 117. The
pictures of Jessie are actually pictures of a person named Alexis Thomas who
has given PCI permission to use her photograph in decoy profiles. See id. at
24, 27-28, 30-31, 49, 52-54; see also Predator Catchers, Inc.’s Answers to Pl.’s
First Interrog. (Doc. 106-2), No. 10. Thomas was over the age of eighteen when
PCI first started using her photograph for decoy profiles, and twenty at the time

- 10 -

Schmutte was conversing with Doe, but Thomas’s age in the pictures
themselves is unclear on the current record. See Schmutte Dep. at 24, 52-54.5
According to Doe, when he asked Jessie to FaceTime with him, he
received a picture and a phone call instead. See Doe Dep. at 55; Doe Aff. ¶ 10.
He explains that, “[he] spoke with a woman who claimed to be ‘Jessie’ and who
was clearly over the age of eighteen (18).” See Doe Aff. ¶ 10. Doe recounts
that “[t]he woman with whom [he] spoke encouraged and pressured [him] to go
to the home where she was supposedly staying with her grandmother.” See id.
The person on the phone was actually Samantha Syrus, a thirty-year old
woman who volunteers with PCI. See Syrus Dep. at 5, 18, 42-43.
Doe arrived at the house where Jessie was purportedly staying at around
four o’clock in the morning.

The three PCI members present at the house

recorded their encounter with Doe and Doe filed those recordings with the
Court.

See Plaintiffs’ Notice of Filing (Doc. 104).

The following facts are

based on the Court’s review of the four videos in the record. When Doe arrives,
he is greeted at the door by Syrus who is playing the role of “Jessie,” and they

In the Response, Doe asserts that Thomas “was over the age of 18 when each of the
photographs were taken” and cites to Schmutte’s Deposition testimony at pages fifty-two
through fifty-four. See Response at 8. The Court has reviewed the cited testimony and it
does not support this contention. Doe’s counsel asks Schmutte how old Thomas was at the
time Schmutte posed as a decoy for the operation involving Doe (around 20), and he asks if
Thomas was over the age of eighteen when PCI started using her photographs (yes). See
Schmutte Dep. at 53-54. But Thomas’s age at the time the photographs were taken is not
addressed.
5

- 11 -

sit down on the couch. See Schmutte Dep. at 78-79. Less than a minute after
his arrival, Doe is confronted by PCI member Brooklyn Beeman who briefly
pretends to be Jessie’s grandmother before dropping the affectation altogether.
See Deposition of Brooklyn Beeman (Doc. 96; Beeman Dep.) at 38-39.
Schmutte enters the room soon thereafter. Schmutte and Beeman interrogate
Doe about “Jessie’s” age and accuse him of soliciting a minor.

Doe and

Schmutte stand at the front door arguing for a few minutes about Jessie’s age
and the meaning of “Netflix and chill.”

Eventually, Doe opens the door to

leave. Doe is inside the house for less than five minutes.
Schmutte makes no attempt to physically stop Doe from opening the door
but follows Doe outside, walking closely behind him while mocking and
insulting Doe. Schmutte escalates his tone and language, shouting expletives
at Doe. Beeman or Syrus can be heard in the background yelling insults and
accusations at Doe as well. At one point, Schmutte adopts a calmer demeanor,
referring to Doe as “dude” and “sir,” and asks Doe if he thinks it is acceptable
for a guy in his thirties to meet a thirteen-year-old girl. Doe responds that she
was on a dating website for adults.

As Doe drives away, Schmutte shouts

insults and expletives at him again.
At no point in the encounter does Schmutte, Syrus, or Beeman verbally
threaten to strike Doe. Schmutte does not raise his hand or fist to Doe, nor
does he make any sudden movements suggesting he is about to hit, shove, or

- 12 -

otherwise physically attack Doe.

Indeed, Schmutte is recording the

confrontation such that throughout the entire encounter he is steadily holding
a raised cellphone in his right hand. Nevertheless, when Schmutte is shouting
at Doe he is standing so close to Doe that Doe can feel Schmutte’s spit hitting
his face. See Doe Dep. at 110, 118. In his Affidavit, Doe states that during
this encounter he “felt trapped and thought [Schmutte] may hit me . . . .” See
Doe Aff. ¶ 11. After Doe leaves, Schmutte states on the video that he “wanted
to punch [Doe] so bad.” The PCI members also discuss Doe’s apparent fear
during the encounter.

The entire confrontation, from Doe’s arrival at the

house until he drives away, lasts less than seven minutes.
Significantly, PCI broadcasted the encounter with Doe via a livestream
on the PCI YouTube channels and Facebook pages. See Schmutte Dep. at 7778. On the video, Schmutte, Syrus and Beeman read and respond to comments
posted by people following the livestream and periodically thank people for
making donations to PCI. After Doe leaves, Schmutte, Syrus, and Beeman
continue the livestream by discussing their interactions with Doe and
responding to viewer comments.

Schmutte observes that Doe was “really

careful in the chats,” called him a “beat around the bush type of predator,” and
expressed his view that “unfortunately, a guy like that, if the cops got involved,
he wouldn’t . . . get charged, just ‘cause of the chats, how the chats were, he was
too cautious.” Schmutte then reads aloud the messages exchanged between

- 13 -

Doe and Jessie, adding his commentary throughout.

Notably, Schmutte

expresses his opinion that Doe would not be charged and convicted for this
conduct based on the term “Netflix and chill,” although “we all know” what it
means. On the recordings, the PCI members refer to Doe as a “cho-mo”6 and
a predator. One likens him to Jeffrey Epstein, and another states that he was
“creepy as hell” with “serial killer vibes.” During the recording, one of the PCI
members holds up a phone displaying Doe’s LinkedIn account showing his full
name and photograph.
PCI posted the videos on its YouTube channels and Facebook pages, and
posted a shorter clip on Instagram. See Predator Catchers, Inc.’s Answers to
Pl.’s First Interrog. (Doc. 106-2) No. 15; see also Schmutte Dep. at 75-76. The
record contains a screenshot of a post on a PCI Facebook page that identifies
Doe by name and location and remains accessible on PCI’s Facebook page. See
Doe Dep., Ex. G (the Facebook Post); Doe Aff. ¶ 13, Ex. C. The Facebook Post
states that Doe, “38 of Atlantic Beach, FL came to meet whom he believed to be
a 13 yo child at 4am.

He came to ‘Netflix and Chill’ and also asked for a

suggestive photo from the child before meeting.” See Doe Dep. at 209-11, Ex.
G. On the Facebook Post, PCI includes a Wikipedia definition for “Netflix and
Chill” as follows:

It is the Court’s understanding that the slang term “cho-mo” is an abbreviation for
child molester.
6

- 14 -

an Internet slang term used as a euphemism for sexual activity,
either as part of a romantic partnership, as casual sex, or as a
groupie invitation. Since its first recorded, nonsexual use in a
tweet posted in 2009, . . . the phrase has gained popularity within
the Twitter community and other social media sites like Facebook
and Vine. By 2015, “Netflix and chill” had become an Internet
meme and its use on teenage social media was commonly described
as “sexual.”
Id.
On March 10, 2022, Schmutte and Doe exchanged text messages. See
Doe Aff. ¶ 12, Ex. B. Schmutte told Doe that he was uploading the video to
multiple social media websites and informed Doe that “getting videos taken
down only makes us uploaded [sic] it to more platforms now.” Id., Ex. B. Doe
responded that he had retained counsel to initiate a lawsuit against Schmutte
and PCI. Id., Ex. B. Around this same time, Doe filed a complaint against
PCI and Schmutte with the Jacksonville Sheriff’s Office. See Doe Dep. at 6870.
Doe presents evidence that friends and family members have seen PCI’s
video of the encounter.

In his deposition, Doe explains that a “friend of a

friend” posted about the incident online, that Doe’s friend saw the post and
commented on it, and they “tagged every other friend that we had in common .
. . .” See Doe Dep. at 76-77. Doe also testifies that several people have sent
him links to “the form or something posted on [PCI’s] Facebook page” and asked
him if he was aware of it. Id. at 78. And he identifies two friends who have

- 15 -

cut off communication with him. Id. at 90-91. Doe also states that his brother
refused to allow contact between Doe and his niece and nephew beginning “a
week or two following the incident” in March of 2022, until “a few months”
before his December 29, 2023 deposition. See id. at 88-89. In his Affidavit,
Doe states that he has “anxiety that people will continue to send me links to the
Facebook post and that anyone I try to get close to or date will not trust me, or
it will at least be in the back of their mind.” See Doe Aff. ¶ 14. Indeed, Doe
states that “[i]f anyone Google’s [sic] my name, they still see the Defendants’
Facebook post about me,” and he attaches the Google search results for his
name that “prominently shows the post and claims about the encounter . . . .”
See Doe Aff. ¶ 13, Ex. C. Doe also asserts that “[f]rom the comments on the
social media posts, and from seeing news stories and tropes from TV shows or
movies, I am fearful my safety is at risk due to people having the wrong idea
about me.” Id.
On April 12, 2022, Doe initiated this action against Schmutte and PCI.
See Complaint (Doc. 1; Original Complaint). The operative pleading at this
time is the Amended Complaint (Doc. 69), filed July 14, 2023. In the Amended
Complaint, Doe sets out five counts identifying the following claims: 1)
Defamation, 2) Invasion of Privacy, 3) Intentional Infliction of Emotional
Distress (IIED), 4) Assault, and 5) Civil Remedy for Cyber Crimes. In the
instant Motion, Defendants seek summary judgment in their favor on all claims

- 16 -

pursuant to Rule 56, Federal Rules of Civil Procedure (Rule(s)). Defendants
also assert that the Court lacks subject matter jurisdiction over this action.
For the reasons that follow, the Court finds that the Motion is due to be granted,
in part, and denied, in part.
II.

Subject Matter Jurisdiction
In the Motion, Defendants assert that the Court lacks subject matter

jurisdiction over this action and seek summary judgment on this basis. See
Motion at 13-17.7 Specifically, Defendants maintain that Doe fails to present
evidence sufficient to meet the $75,000 amount in controversy threshold as
necessary to invoke this Court’s diversity jurisdiction under 28 U.S.C. § 1332(a).
See id. at 15-17. Defendants contend that “Plaintiff has failed to provide any
evidence of compensatory damages, has failed to disclose through mandatory
disclosures what his damages are, and has failed to provide clear and
convincing evidence to support an award for punitive damages.” Id. at 17.
Doe does not directly respond to this argument in the Response. Nevertheless,

Defendants’ request for summary judgment based on a lack of subject matter
jurisdiction is procedurally improper. “[S]ummary judgment pursuant to Rule 56 is not the
correct procedure for dismissing based on lack of subject matter jurisdiction because ‘a grant
of summary judgment is a decision on the merits . . . [but] a court must dismiss a case without
ever reaching the merits if it concludes that it has no jurisdiction.’” See Goodman ex rel.
Goodman v. Sipos, 259 F.3d 1327, 1331 n.6 (11th Cir. 2001) (second and third alterations in
original) (quoting Capitol Leasing Co. v. Fed. Deposit Ins. Corp., 999 F.2d 188, 191 (7th Cir.
1993)). If the Court lacks subject matter jurisdiction, then the Court must dismiss the action
without prejudice. See Stalley ex rel. U.S. v. Orlando Regional Healthcare Sys., Inc., 524
F.3d 1229, 1232 (11th Cir. 2008) (“A dismissal for lack of subject matter jurisdiction is not a
judgment on the merits and is entered without prejudice.”).
7

- 17 -

Doe does summarize the evidence of his damages and briefly discusses the types
of damages that are available in defamation actions. See Response at 15-16,
22-23.
Significantly, this is the second time Defendants have challenged the
amount in controversy in this action. Defendants previously filed a motion to
dismiss the Original Complaint in which they raised a lack of subject matter
jurisdiction, among other arguments.

See Defendants’ Motion to Dismiss

Plaintiff’s Complaint, or in the Alternative, for a More Definite Statement (Doc.
42; Motion to Dismiss). On June 21, 2023, the Court entered an Order finding
that Doe had failed to meet his burden to show that the amount in controversy
threshold was met and granting Defendants’ motion to dismiss on that basis.
See Order (Doc. 64) at 11-12. Notably, the Court found inadequate support for
damages in excess of $75,000 in part because Doe had failed to either allege or,
when challenged, present any evidence that “Defendants or anyone else
identified him online in the recording, photograph, internet posts, or
comments,” or that he “believes someone has otherwise connected him to the
incident.”

See Order at 10.

Ultimately, the Court dismissed Doe’s claims

without prejudice but provided him with the opportunity to file an amended
complaint, which he did, and that Amended Complaint is the operative pleading
at this time. See id. The Court presumes the reader’s familiarity with the
June 21, 2023 Order and the legal principles set forth there.

- 18 -

A. Applicable Law
“The party seeking to invoke federal diversity jurisdiction under 28
U.S.C. § 1332 must prove that the claim meets the threshold jurisdictional
amount of $75,000 by a preponderance of the evidence.” See Wineberger v.
RaceTrac Petro., Inc., 672 F. App’x 914, 917 (11th Cir. 2016).8 In determining
whether the amount in controversy requirement is met, courts may make
reasonable deductions and inferences, and may rely on “‘judicial experience and
common sense.’” Id. at 917 (quoting Roe v. Michelin N. Am., Inc., 613 F.3d
1058, 1061-62 (11th Cir. 2010)). Moreover, the amount in controversy is not “a
prediction of ‘how much the plaintiffs are ultimately likely to recover,’” but
rather “an estimate of how much will be put at issue during the litigation . . . .”
See S. Fla. Wellness, Inc. v. Allstate Ins. Co., 745 F.3d 1312, 1315 (11th Cir.
2014); McDaniel v. Fifth Third Bank, 568 F. App’x 729, 730 (11th Cir. 2014)
(“When determining whether the amount in controversy requirement has been
met, district courts should only consider the amount the plaintiff has placed in
controversy, not the amount the plaintiff is likely to recover.”).9
In the June 21, 2023 Order, the Court found that the “legal certainty” test does not
apply because Doe sought indeterminate damages in the original Complaint (Doc. 1). See
Order at 5-9. In the Response, Doe makes no effort to argue that the Court should apply the
legal certainty test at this time and as such, the Court will not revisit that determination.
8

The Court does not rely on unpublished opinions as binding precedent; however, they
may be cited in this Order when the Court finds them persuasive on a particular point. See
McNamara v. GEICO, 30 F.4th 1055, 1060–61 (11th Cir. 2022); see generally Fed. R. App. P.
32.1; 11th Cir. R. 36–2 (“Unpublished opinions are not considered binding precedent, but they
may be cited as persuasive authority.”).
9

- 19 -

Although Doe asserts several causes of action, both parties focus their
damages analysis on Doe’s defamation claim so the Court will do the same.
“Florida law recognizes two categories of compensatory damages for
defamation: general and special.” Grayson v. No Labels, Inc., 601 F. Supp. 3d
1251, 1256 (M.D. Fla. 2022). 10

Special damages are “actual, out of pocket

losses; that is, realized or liquidated loss.” Id. at 1257 (citing Daniels v. HSN,
Inc., No. 8:18-cv-3088, 2020 WL 533927, at *3 (M.D. Fla. Feb. 3, 2020)). Special
damages are not at issue in this case.11 See Doe Dep., Ex. H: Pl.’s Unverified
Resp. to Defs.’ First Set of Interrog.; see also Doe Dep., Ex. I: Pl.’s Resp. to Defs.’
First Req. for Produc. To Pl.
Aside from special damages, Florida law also permits an award of
“general damages to the victim of defamation to compensate him for the
reputational damage and emotional anguish caused by the defamation.” See
Sirer v. Aksoy, No. 21-cv-22280-BLOOM/Otazo-Reyes, 2023 WL 3166453, at *7

The Court notes that although decisions of other district courts are not binding, they
may be cited as persuasive authority. See Stone v. First Union Corp., 371 F.3d 1305, 1310
(11th Cir. 2004) (noting that, “[a]lthough a district court would not be bound to follow any
other district court’s determination, the decision would have significant persuasive effects”).
10

Although Florida law requires a plaintiff to plead and prove special damages when
asserting a claim for defamation per quod, Doe asserts a claim of defamation per se. See
Daniels v. HSN, Inc., No. 8:18-cv-3088-T-24 JSS, 2020 WL 533927, at *3 (M.D. Fla. Feb. 3,
2020) (discussing difference between defamation per se and defamation per quod); see also
Boyles v. Mid-Fla. Television Corp., 431 So. 2d 627, 633-35 (Fla. 5th DCA 1983) (discussing
meaning of the term “innuendo” when distinguishing between defamation per se and
defamation per quod).
11

- 20 -

(S.D. Fla. May 1, 2023). “A plaintiff may recover such general damages ‘even
if there is no evidence that assigns an actual dollar value to the injury.’” Id.
(citation omitted). Significantly,
When it comes to general damages “[t]here is no exact standard for
fixing the compensation to be awarded on account of such elements
of damage. Any award should be fair and just in the light of the
evidence.” “The injured party may recover damages resulting
from impaired reputation and standing in the community,
humiliation, mental anguish, and suffering.”
Grayson, 601 F. Supp. 3d at 1256-57 (internal citations omitted) (quoting Army
Aviation Heritage Found. & Museum, Inc. v. Buis, 504 F. Supp. 2d 1254, 1261
(N.D. Fla. Mar. 28, 2007)).
B. Discussion
Here, Defendants contend that Doe fails to meet the amount in
controversy requirement because he does not seek any special damages and his
general damages, in Defendants’ view, are simply not that severe. See Motion
at 15-17. Defendants attempt to minimize Doe’s evidence of reputational harm
and emotional anguish by arguing that “only” two people known to Doe
commented on the video and “only” six individuals sent the video to Doe
privately. Id. at 15-16. Defendants assert that these people either were not
close friends to Doe or have remained friends with him since.

Id.

And

Defendants brush aside that Doe’s brother refused to allow Doe to see his niece
and nephew for over a year because Doe “has been permitted to see them in the

- 21 -

last few months.”

Id. at 16.

The Court wholly rejects these self-serving

arguments.
Defendants have publicly identified Doe by name, location, and image, as
a child predator.

Doe presents evidence that members of the community,

including his friends and family, have seen the video PCI posted of the
encounter. And the evidence shows that the Facebook Post about him remains
easily accessible online. Thus, Doe reasonably fears that anyone new he meets
will uncover the accusation simply by searching his name on the internet. If
Doe prevails on his claim that this accusation is false and defamatory, judicial
experience and common-sense dictate that even absent special damages, the
general damages stemming from such conduct could easily exceed $75,000.
See Coton v. Televised Visual X-Ography, Inc., 740 F. Supp. 2d 1299, 1314 (M.D.
Fla. 2010); see also Sirer, 2023 WL 3166453, at *7-8.
controversy requirement is satisfied.

The amount in

The Court has subject matter

jurisdiction over this action. Thus, the Court tuns to the merits of the Motion.
III.

Summary Judgment
A. Standard of Review
Under Rule 56 of the Federal Rules of Civil Procedure (Rule(s)), “[t]he

court shall grant summary judgment if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law.” Rule 56(a). The record to be considered on a motion for

- 22 -

summary judgment may include “depositions, documents, electronically stored
information, affidavits or declarations, stipulations (including those made for
purposes of the motion only), admissions, interrogatory answers, or other
materials.” Rule 56(c)(1)(A).12 An issue is genuine when the evidence is such
that a reasonable jury could return a verdict in favor of the nonmovant. See
Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742 (11th Cir. 1996) (quoting
Hairston v. Gainesville Sun Publ’g Co., 9 F.3d 913, 919 (11th Cir. 1993)). “[A]
mere scintilla of evidence in support of the non-moving party’s position is
insufficient to defeat a motion for summary judgment.” Kesinger ex rel. Est. of
Kesinger v. Herrington, 381 F.3d 1243, 1247 (11th Cir. 2004) (citing Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)).
The party seeking summary judgment bears the initial burden of
demonstrating to the court, by reference to the record, that there are no genuine
issues of material fact to be determined at trial. See Clark v. Coats & Clark,

Rule 56 was revised in 2010 “to improve the procedures for presenting and deciding
summary-judgment motions.” Rule 56 Advisory Committee’s Note 2010 Amends.
12

The standard for granting summary judgment remains unchanged. The
language of subdivision (a) continues to require that there be no genuine
dispute as to any material fact and that the movant be entitled to judgment
as a matter of law. The amendments will not affect continuing development
of the decisional law construing and applying these phrases.
Id. “[A]lthough the interpretations in the advisory committee[’s] notes are not binding, they
are highly persuasive.” Campbell v. Shinseki, 546 F. App’x 874, 879 n.3 (11th Cir. 2013). Thus,
case law construing the former Rule 56 standard of review remains viable and is applicable
here.

- 23 -

Inc., 929 F.2d 604, 608 (11th Cir. 1991). “When a moving party has discharged
its burden, the non-moving party must then go beyond the pleadings, and by its
own affidavits, or by depositions, answers to interrogatories, and admissions on
file, designate specific facts showing that there is a genuine issue for trial.”
Jeffery v. Sarasota White Sox, Inc., 64 F.3d 590, 593–94 (11th Cir. 1995)
(internal citations and quotation marks omitted). Substantive law determines
the materiality of facts, and “[o]nly disputes over facts that might affect the
outcome of the suit under the governing law will properly preclude the entry of
summary judgment.” Anderson, 477 U.S. at 248; see also McCormick v. City of
Ft. Lauderdale, 333 F.3d 1234, 1243 (11th Cir. 2003) (“The mere existence of
some factual dispute will not defeat summary judgment unless the factual
dispute is material to an issue affecting the outcome of the case.”). In
determining whether summary judgment is appropriate, a court “must view all
evidence and make all reasonable inferences in favor of the party opposing
summary judgment.” Haves v. City of Miami, 52 F.3d 918, 921 (11th Cir. 1995)
(citing Dibrell Bros. Int’l, S.A. v. Banca Nazionale Del Lavoro, 38 F.3d 1571,
1578 (11th Cir. 1994)).
B. Discussion
1. Defamation
To prevail on his defamation claim under Florida law, Doe must establish
these five elements: “(1) publication; (2) falsity; (3) the statement was made

- 24 -

with knowledge or reckless disregard as to the falsity on a matter concerning a
public official, or at least negligently on a matter concerning a private person;
(4) actual damages; and (5) the statement must be defamatory.” See Turner v.
Wells, 879 F.3d 1254, 1262 (11th Cir. 2018) (citing Jews For Jesus, Inc. v. Rapp,
997 So. 2d 1098, 1106 (Fla. 2008)).

In the Motion, Defendants raise two

arguments in support of their request for summary judgment on this claim.
First, Defendants contend that Doe fails to specifically identify any defamatory
statements. See Motion at 18. Second, Defendants appear to argue that Doe
lacks evidence to support the third element of a defamation claim concerning
fault. Id.
The Court considers first Defendants’ argument that summary judgment
is warranted because Doe fails to specifically identify any defamatory
statements. Doe does not appear to directly respond to this argument in his
Response. Significantly, as to the videos, Doe makes no effort to identify any
specific statements on the recordings that he contends are defamatory, nor does
he argue that it is the depiction of him in the video as a whole that is
defamatory. See Response at 17-21. It is not the Court’s burden to make
arguments on Doe’s behalf or search the record and consider every statement
which Doe may or may not contend constitutes actionable defamation. See
Schiller v. Viacom, Inc., No. 1:15-cv-22129-UU, 2016 WL 9280239, at *8 (S.D.
Fla. Apr. 4, 2016).

As such, the statements in the recordings will not be

- 25 -

considered. Id. Nevertheless, Doe does assert that posting this video and his
image on PCI’s social media sites “improperly associates him with sexual
predators.” See Response at 20; see also Predator Catchers, Inc.’s Answers to
Pl.’s First Interrog., No. 15 (identifying PCI social media pages where video
posted). Absent any argument from Defendants to the contrary, the Court is
satisfied that this juxtaposition—posting Doe’s image on websites identifying
child predators—may convey to an ordinary viewer that Doe is a child predator
and constitute a defamatory statement. See Brown v. Tallahassee Democrat,
Inc., 440 So. 2d 588, 590 (Fla. 1st DCA 1983); see also Miami Herald Pub. Co.
v. Brown, 66 So. 2d 679, 679-81 (Fla. 1953).
In addition, Doe specifically identifies the text of the Facebook Post as
defamatory.

See Response at 17, 18, 21; see also Doe Dep., Ex. G.

substance of the Facebook Post is shown here:

- 26 -

The

See Doe Dep., Ex. G. Doe contends the statement that he “came to meet whom
he believed to be a 13 yo child at 4am” is false because he did not believe that
“Jessie” was thirteen years old. See Response at 21; see also Doe Aff. ¶¶ 8-10;
Doe Dep. at 209-10.

Doe also argues PCI’s assertion that he “asked for a

suggestive photo from the child before meeting” is false because he “did not ask
for a suggestive photo, did not believe he was communicating with a child, and

- 27 -

in fact was not communicating with a child.” See Response at 21; Doe Dep. at
210-11. And more globally, Doe contends that the depiction of him in this Post
as a predator who intended to meet a child to engage in sexual contact is false.
Significantly, Defendants do not raise any argument that the statements in this
Post constitute non-actionable opinion or are otherwise not defamatory. And
plainly, whether they are false is an issue of fact that turns on Doe’s credibility
and cannot be resolved at this stage of the proceedings. As such, to the extent
Defendants seek summary judgment on Doe’s defamation claim based on a
failure to specifically identify any defamatory statements, this argument fails.
Assuming Doe is not a child predator, as the Court must at this stage in
the proceedings, the Court turns next to Defendants’ argument concerning
fault. See Motion at 18. As recited above, to state a claim for defamation, a
plaintiff must establish, among other things, that the actor acted “with
knowledge or reckless disregard as to the falsity on a matter concerning a public
official, or at least negligently on a matter concerning a private person . . . .”
See Johnston v. Borders, 36 F.4th 1254, 1275 (11th Cir. 2022). This is the
“fault” element of a defamation claim. See Log Creek, L.L.C. v. Kessler, 717 F.
Supp. 2d 1239, 1247 (N.D. Fla. 2010); see also Porter v. Sanchez, No. 6:16-cv1379-Orl-37DCI, 2017 WL 5157898, at *3 (M.D. Fla. Nov. 7, 2017).
entirety of Defendants’ argument on this point is as follows:

- 28 -

The

Furthermore, element number three of defamation requires
known falsity or reckless disregard as to the falsity by Defendants,
and Plaintiff admits that he could see how some of his messages—
or omissions—during his text conversation with Jessie could seem
like he was being purposefully sexual with someone whom he
believed to be 13 years of age.
See Response at 18 (internal record citations omitted). This undeveloped and
conclusory argument misses the mark. Doe is undoubtedly a private person,
not a public figure. See Porter, 2017 WL 5157898, at *3. As such, he is not
required to establish Defendants’ knowledge or reckless disregard as to the
falsity of the statements. Id. At most, Doe need only show that Defendants
acted negligently. Id.
Upon review of the record, the Court is satisfied that, if the jury finds Doe
credible, there is evidence from which a jury could find that Defendants acted
negligently. For example, Defendants knew that Doe had found Jessie’s profile
on an adult dating website, and Defendants knew that prior to arriving at the
house, the person Doe spoke to on the phone posing as Jessie was a thirty-yearold woman. The same thirty-year old woman greeted Doe at the door. And
the jury may also agree with Doe that the person in the pictures of Jessie that
Defendants sent to Doe is “clearly” over the age of eighteen. See Doe Dep. at
54, Ex. E. Defendants also knew that Doe had not been charged with any crime
and indeed, Schmutte expressed his view that Doe would not be charged or
convicted for his actions given the ambiguity in the text messages. The Court

- 29 -

expresses no view on whether these facts will persuade the jury or whether Doe
will ultimately prevail. But on this record, and absent any argument to the
contrary, whether Defendants acted negligently in publicly identifying Doe as
a child predator is an issue of fact for the jury to determine.

Defendants’

request for summary judgment as to the defamation claim is denied.
2. Invasion of Privacy
In Count II of the Amended Complaint, Doe asserts a claim for invasion
of privacy. Significantly,
Florida recognizes three categories of privacy torts: “(1)
appropriation—the unauthorized use of a person’s name or
likeness to obtain some benefit; (2) intrusion—physically or
electronically intruding into one’s private quarters; [and] (3) public
disclosure of private facts—the dissemination of truthful private
information which a reasonable person would find objectionable.”
See Oppenheim v. I.C. Sys., Inc., 695 F. Supp. 2d 1303, 1308 (M.D. Fla. 2010)
(quoting Allstate Ins. Co. v. Ginsberg, 863 So. 2d 156, 162 (Fla. 2003)). In the
Motion, Defendants interpret Doe’s claim as one based on public disclosure of
private facts and seek summary judgment in their favor on that claim. See
Motion at 19-20. In the Response, Doe asserts that his invasion of privacy
claim encompasses all three versions of the tort and maintains that he has
presented sufficient evidence as to each type of claim. See Response at 23.
Thus, as an initial matter, the Court must determine which forms of invasion
of privacy are at issue here.

- 30 -

Upon careful review of the Amended Complaint, the Court finds that
Count II raises only a claim of invasion of privacy by public disclosure of private
facts. This Count is titled simply “Invasion of Privacy” and, after the wholesale
reincorporation of all previous factual allegations, includes one substantive
allegation:
As a result of the actions of Defendant Schmutte and Predator
Catchers of establishing a Tinder profile of a fictional person
named “Jessie” who used sexually suggestive comments to lure
Plaintiff to a location where he was confronted and verbally
assaulted by Defendants Schmutte and Predator Catchers,
followed by the subsequent posting of the Recording and the
Plaintiff’s photograph and caption, followed yet again by
Defendant Schmutte’s initiating contact with Plaintiff and
threatening to continue to post defamatory material constitutes an
invasion of Plaintiff [sic] Plaintiff’s privacy.
See Amended Complaint ¶ 49. All that follows is an allegation that Doe was
damaged by this invasion of privacy and a demand for judgment. Id. ¶ 50.
Significantly, there are no references to commercial appropriation within this
Count, nor does Doe include any mention of an intrusion into Doe’s private
quarters in this Count.13 Even if some of Doe’s general factual allegations in

Notably, in their earlier Motion to Dismiss, Defendants argued, in pertinent part,
that Doe had failed to specify which type of invasion of privacy claim he was asserting and
expressed their understanding that his claim was one for public disclosure of private facts.
See Motion to Dismiss at 15-16. Remarkably, in response to the Motion to Dismiss, Doe noted
the argument but did not assert that Defendants were wrong to view his invasion of privacy
claim as solely based on public disclosure of private facts. See Plaintiff’s Response to
Defendants’ Motion to Dismiss Plaintiff’s Complaint, or in the Alternative, for a More Definite
Statement (Doc. 55) at 2, 6. In fact, nowhere in his Response to the Motion to Dismiss did
Doe assert that in Count II he raised all three forms of invasion of privacy. Ultimately, the
Court decided the Motion to Dismiss on subject matter jurisdiction grounds and thus, did not
reach this issue. See Order (Doc. 64). But it is telling that in drafting the Amended
13

- 31 -

the background section of the Amended Complaint might be relevant to these
theories of relief, such allegations are insufficient to give Defendants notice that
Doe

is

asserting

these

additional

claims,

reincorporation of all facts into all Counts.

particularly

given

Doe’s

If Doe intended to assert

appropriation or intrusion claims, he should have articulated that he was
making those claims in the Amended Complaint and asserted them in separate
counts. See Palmer v. Albertson’s LLC, 418 F. App’x 885, 889-90 (11th Cir.
2011). Indeed, had the Court understood on its initial review of the Amended
Complaint that Count II encompassed three separate theories of relief, the
Court would have sua sponte struck the filing as an impermissible shotgun
pleading. See Weiland v. Palm Beach Cnty. Sheriff’s Off., 792 F.3d 1313, 1321
n.10 & 1322-23 (11th Cir. 2015) (identifying one type of shotgun pleading as one
“that commits the sin of not separating into a different count each cause of
action or claim for relief” and noting a district court’s obligation to “take the
initiative to dismiss or strike the shotgun pleading” where a defendant fails to
do so); see also Rothenberg v. United Parcel Serv., Inc., No. 3:23-cv-94-MMHLLL, 2023 WL 7282887, at *2 n.4 (M.D. Fla. Nov. 3, 2023). At this time, Doe

Complaint, Doe still made no effort to clarify that his invasion of privacy claim was premised
on all three forms of the tort. Indeed, Doe’s claim in Count II of the Amended Complaint is
virtually identical to Count II of the Original Complaint. It is unclear whether this failure
was due to sloppy drafting or gamesmanship, but either way, in the Amended Complaint Doe
provides no notice to Defendants or the Court that he intends to raise invasion of privacy
claims premised on appropriation or intrusion and he cannot assert those theories now.

- 32 -

cannot add new causes of action against Defendants in his response to their
summary judgment motion.

See Gilmour v. Gates, McDonald and Co., 382

F.3d 1312, 1315 (11th Cir. 2004) (“At the summary judgment stage, the proper
procedure for plaintiffs to assert a new claim is to amend the complaint in
accordance with [Rule 15(a)]. A plaintiff may not amend [his] complaint
through argument in a brief opposing summary judgment.”) (citation omitted));
see also Flintlock Constr. Servs., LLC v. Well-Come Holdings, LLC, 710 F.3d
1221, 1226-28 (11th Cir. 2013). Thus, having determined that Doe has not
asserted claims for appropriation and intrusion in the Amended Complaint, the
Court will not consider them now.
The Court turns next to Defendants’ contention that they are entitled to
summary judgment on Doe’s claim for public disclosure of private facts. The
elements of this tort under Florida law are: “1) the publication, 2) of private
facts, 3) that are offensive, and 4) are not of public concern.” See Spilfogel v.
Fox Broadcasting Co., 433 F. App’x 724, 725 (11th Cir. 2011). The conduct at
issue here appears to be Defendants’ publication of the videorecording of the
encounter at the house, which includes a segment where Schmutte reads the
text messages exchanged between Doe and Jessie. See Motion at 19 (citing
Doe Dep. at 95); Response at 27. In the Motion, Defendants argue that Doe’s
invasion of privacy claim fails because:

- 33 -

Nowhere does [Doe] state Defendants have publicized private facts
about him that are both offensive and not of public concern.
Furthermore, Defendants’ publication of Plaintiff’s pursuit of a
minor constitutes a matter of public concern. Plaintiff has
presented no record evidence in the alternative, thus defeating the
fourth element of public disclosure of private facts and warranting
the entry of summary judgment in favor of Defendants.
See Motion at 20.
argument.

Defendants cite no legal authority in support of this

In the Response, Doe argues that publicizing both his private

conversation with Jessie and the confrontation at the house is “highly offensive
to a reasonable person . . . .” See Response at 27. As to whether it constitutes
a matter of public concern, Doe maintains that the public’s right to know does
not extend to “vigilante-attempted sting operations.”

Id.

Remarkably,

Defendants declined to file a reply to respond to these arguments.
Upon review, the Court finds that Defendants’ conclusory and
undeveloped arguments as to this tort are inadequate to raise the matter for
the Court’s review.

Significantly, Defendants do not cite any authority to

support their contention that the publication at issue here was not offensive,
nor do they cite any authority addressing the law in Florida on what constitutes
a matter of public concern. Compounding the problem, Defendants made no
attempt to reply to Doe’s arguments on these points, essentially leaving Doe’s
contentions uncontroverted.

The Court will not craft arguments for

Defendants nor conduct legal research on Defendants’ behalf. To the extent

- 34 -

Defendants seek summary judgment on Doe’s invasion of privacy claim, the
Motion will be denied.
3. Intentional Infliction of Mental Distress
To state a cause of action for intentional infliction of emotional distress
under Florida law, Doe must establish: “‘(1) deliberate or reckless infliction of
mental suffering; (2) by outrageous conduct; (3) which conduct must have
caused the suffering; and (4) the suffering must have been severe.’” See Colon
v. Smith, No. 22-14106, 2024 WL 3898011, at *9 (11th Cir. Aug. 22, 2024)
(quoting Hart v. United States, 894 F.2d 1539, 1548 (11th Cir. 1990)).
Significantly, Defendants assert, and Doe does not dispute, that Doe’s IIED
claim must be premised on conduct independent from the defamation claim.
See Motion at 20-21; Response at 28; see also Maletta v. Woodle, No. 2:20-cv1004-JES-MRM, 2021 WL 1894023, at *5 (M.D. Fla. May 11, 2021) (“‘Florida
courts have held that the outrageous conduct supporting a claim for IIED must
be separate from, or independent of, the alleged defamation.’” (quoting Porter,
2017 WL 5157898, at *4)).

According to Doe, his IIED claim satisfies this

requirement because it is based on “the distress Defendants intentionally
caused through the confrontation at the home itself, as well as subsequent text
messages from Schmutte, threatening to further disseminate the video.” See
Response at 28.

- 35 -

Nevertheless, Defendants contend that that they are entitled to summary
judgment on Doe’s IIED claim because Doe fails to present evidence of severe
emotional distress. See Motion at 20-21. In support, Defendants assert that
Doe “has not been suicidal, he has seen no medical professionals, he has taken
no medication, he has not been forced to move or to get a new vehicle, and he
has not felt compelled to get a security system.” See Motion at 21; see also Doe
Dep. at 12, 25, 83-84, 94. In the Response, Doe maintains that “[a]ll elements
of this tort are sufficiently established in this Response.” See Response at 28.
In support, Doe argues that he
felt tremendous shock and fear by realizing he was set up, that he
was being filmed, that his reputation would forever be tarnished,
and that his physical safety may forever be at risk by these false
accusations. [Doe] also felt tremendous shock and fear for his
physical safety by Defendants’ words, movements, size, demeanor,
feeling ganged up on, and feeling trapped in the home.
See id. Although he does not cite to any evidence in this section of the brief, in
the background section, Doe asserts that he was damaged by the
“approximately 7 minutes of the actual Encounter itself, even without
publication” and cites portions of his deposition testimony and his Affidavit in
support. See Response at 16. The Court has reviewed this evidence and in it,
Doe describes Schmutte’s aggressive behavior, states that he was “kind of
thrown for a loop when all this happened,” explains that he “wanted to get out
of there, someplace I felt safe,” and asserts that he felt threatened with physical

- 36 -

harm. See Doe Dep. at 26-27, 62-63, 230, 232. In his Affidavit, Doe states
that the encounter was “traumatizing,” that he felt “trapped,” and that he is
certain “the memory of that encounter will never go away.” See Doe Aff. ¶ 11.
Doe summarizes his emotional harm as follows:
Relationships with many of my friends and family have
deteriorated or basically gone away. I have anxiety that people
will continue to send me links to the Facebook post and that
anyone I try to get close to or date will not trust me, or it will at
least be in the back of their mind. From the comments on the
social media posts, and from seeing news stories and tropes from
TV shows or movies, I am fearful my safety is at risk due to people
having the wrong idea about me.
See id. ¶ 14.
“Under Florida law, ‘severe emotional distress means emotional distress
of such a substantial quality or enduring quality that no reasonable person in
a civilized society should be expected to endure it.’”

See Colon, 2024 WL

3898011, at *9 (quoting Kim v. Jung Hyun Chang, 249 So. 3d 1300, 1305 (Fla.
2d DCA 2018)). It is Doe’s burden to show “‘both the existence of emotional
distress and the quality of that emotional distress such that a factfinder may
reasonably infer both that the distress in fact happened and that the quality of
that distress was too much for a reasonable person to be expected to bear.’” See
id. (quoting Kim, 249 So. 3d at 1306). “‘[T]he intensity and the duration of the
distress are factors to be considered in determining its severity.’” See Bezzaz
v. Moore, No. 6:21-cv-528-JA-DAB, 2022 WL 4290709, at *10 (M.D. Fla. Sept.

- 37 -

16, 2022) (quoting Kim, 249 So. 3d at 1305). “Outrageous conduct, standing
alone, cannot prove severe emotional distress.” See Colon, 2024 WL 3898011,
at *9. Indeed, “significant feelings of fright, shame, worry, and humiliation—
and others beside—occasioned by the acts of others” are not enough and merely
“an unavoidable part of living in society.” See Kim, 249 So. 3d at 1306. This
“high standard for determining what kind of emotional distress is remediable
in a claim for intentional infliction is necessary to prevent the tort from
becoming a venue for litigation over every emotional injury.” Id.
Here, the evidence shows that Doe is experiencing ongoing anxiety about
his reputation and fear for his physical safety. See Doe Aff. ¶ 14. However, it
is evident from Doe’s Affidavit that his anxiety and fears stem from the
allegedly defamatory information published about him on the Internet, the
conduct which Doe maintains is not the basis of his IIED claim. See Response
at 14, 28; see also Doe Aff. ¶ 14. The evidence of Doe’s emotional distress from
the less than seven-minute encounter at the house itself is sparse.14
The record shows that Doe experienced surprise and fear during the
encounter, describes the event as “traumatizing,” and is certain he will never
forget it. But fear, even significant fear, is not enough. And Doe offers no

In the Response, Doe identifies Schmutte’s text messages threatening to further
disseminate the video as part of his IIED claim as well. See Response at 28. However, Doe
cites to no evidence of any emotional distress caused by those threats. See id. at 15-16, 28;
see also Doe Aff. ¶ 12 (describing Schmutte’s text messages without any reference to resulting
emotional distress).
14

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evidence concerning the intensity or duration of this distress. Given the high
standard applicable to claims for IIED, the Court finds that no reasonable juror
could conclude on this record that Doe’s distress is too much for a reasonable
person to bear, particularly given the evidence that Doe has not sought the help
of a medical professional or started taking any medication as a result of this
trauma. Compare Bostick v. McGuire, No. 6:15-cv-1533-Orl-37GJK, 2017 WL
897308, at *5 (M.D. Fla. Mar. 7, 2017) (finding insufficient evidence of severe
distress where the only evidence was plaintiff’s testimony that he was paranoid
around police and does not go outside much) with Bezzaz, 2022 WL 4290709, at
*11 (finding sufficient evidence of severe distress where plaintiff, although not
regularly seeing a therapist or taking medication, testified about her
depression, anxiety, panic attacks, difficulty sleeping, hair loss, and inability to
work); see also Kim, 249 So. 3d at 1306-07. Accordingly, the Court will grant
summary judgment in Defendants’ favor as to Doe’s claim for intentional
infliction of emotional distress. See Andrews v. Marshall, 845 F. App’x 849,
857 (11th Cir. 2021) (affirming grant of summary judgment in part based on a
lack of evidence that the conduct at issue caused severe emotional distress);
Moore v. Pederson, 806 F.3d 1036, 1054 (11th Cir. 2015) (affirming grant of
summary judgment where plaintiff failed to “point to any facts evidencing that
he suffered severe emotional distress”); see also Rubio v. Lopez, 445 F. App’x

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170, 175 (11th Cir. 2011); Frias v. Demings, 823 F. Supp. 2d 1279, 1289 (M.D.
Fla. 2011).
4. Assault
Next, Defendants move for summary judgment as to Doe’s claim for
assault. Under Florida law, “[a]n ‘assault’ is an intentional, unlawful offer of
corporal injury to another by force, or exertion of force directed toward another
under such circumstances as to create a reasonable fear of imminent peril.”
See Sullivan v. Atl. Fed. Sav. & Loan Ass’n, 454 So. 2d 52, 54 (Fla. 4th DCA
1984). An assault claim “must be premised upon an affirmative act—a threat
to use force, or the actual exertion of force.” Id. Indeed, “[m]ere words or
threats are not assault; they must be accompanied by acts or circumstances to
put one in reasonable apprehension of imminent harmful or offensive contact to
the person.’”

See Henning v. Felty, No. 6:15-cv-927-Orl-40DCI, 2017 WL

9398641, at *6 (M.D. Fla. June 28, 2017) (quoting Newman v. Gehl Corp., 731
F. Supp. 1048, 1051 (M.D. Fla. 1990)) adopted by 2017 WL 3405646, at *3 (M.D.
Fla. Aug. 9, 2017).
In the Motion, Defendants assert that no one with PCI verbally
threatened Doe or raised a hand or fist to him. See Motion at 23. In addition,
Defendants maintain that “nothing in the record shows Defendants gave the
appearance or took any actions that would reasonably create a well-founded
fear that any imminent harm would be inflicted on Plaintiff.” See id. And

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Defendants observe that Doe did not call the police during the encounter and
waited four days to file a police report. Id. However, Defendants’ arguments
are unavailing in that they fail to view the facts in the light most favorable to
Doe as the Court must at this stage in the proceedings.
Upon review of the videos of this encounter, and viewing the facts in the
light most favorable to Doe, the Court is satisfied that a reasonable juror could
conclude that the surrounding circumstances and Schmutte’s acts put Doe in
reasonable apprehension of imminent harmful contact. See Di Preta v. Taylor,
675 F. App’x 880, 883 (11th Cir. 2017). Specifically, late at night, Schmutte
invited Doe to the house under false pretenses, confronted Doe by surprise, and
when Doe moved to leave, followed closely behind him aggressively shouting
expletives and insults. Indeed, Schmutte screamed so closely in Doe’s face that
Doe felt his spit. According to Doe, he felt threatened by Schmutte’s behavior
and was afraid that Schmutte would hit him. See Doe Dep. at 62, 231-32; see
also Doe Aff. ¶ 11. Under these circumstances, the Court finds that whether
Doe was afraid of imminent bodily harm and if so, the reasonableness of this
apprehension, are questions for the jury.
5. Civil Remedy for Cyber Crime
In Count V of the Amended Complaint, Doe asserts a claim pursuant to
section 815.06 of the Florida Statutes.

See Amended Complaint ¶¶ 60-65.

This statute addresses certain computer-related crimes.

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See Fla. Stat. §

815.06(2). Although criminal in nature, the statute “provides a civil remedy
for compensatory damages against a person who has already been criminally
convicted under the statute.”

See Mortg. Now, Inc. v. Stone, No.

3:09cv80/MCR/MD, 2009 WL 4262877, at *6 (N.D. Fla. Nov. 24, 2009) (citing
Fla. Stat. § 815.06(4)(a)); see also Harvey v. Seminole Cnty., Sheriff, No. 6:16cv-56-Orl-41TBS, 2016 WL 922548, at *3 (M.D. Fla. Feb. 4, 2016) adopted by
2016 WL 916560, at *2 (M.D. Fla. Mar. 10, 2016).

Here, Doe presents no

evidence that Schmutte or PCI have been criminally convicted under section
815.06. 15

As such, Doe’s civil claim necessarily fails and Defendants are

entitled to summary judgment in their favor on Count V of the Amended
Complaint.16
In light of the foregoing, the Court will grant the Motion as to Counts III
and V, and otherwise deny the Motion.17 The case is set for a final pretrial

Remarkably, although Defendants raise this argument in the Motion, see Motion at
24, Doe does not respond to it. See Response at 29. Given the plain language of the statute
and Doe’s failure to offer any argument on this point, the Court questions how Doe’s counsel
can represent, consistent with his obligations under Rule 11, that “[a]ll elements of this crime
and resulting civil remedy are sufficiently established.” See id. at 29.
15

Defendants also appear to request their attorneys’ fees as the prevailing party on
this claim. See Motion at 24. However, to seek attorneys’ fees, Defendants must file an
appropriate motion in accordance with the Court’s Local Rules. See Local Rule 7.01.
16

The Court notes that in the Response, Doe “encourages” the Court to sua sponte
enter summary judgment in his favor. See Response at 30. This request borders on the
absurd. If Doe believes he is entitled to summary judgment, it is incumbent upon Doe to
move for such relief setting forth the law and the facts that support the request. The Court
declines to do the work of Doe’s counsel. Regardless, as is evident from the foregoing, the
remaining claims present myriad disputes of fact which require resolution by a jury.
17

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conference on September 23, 2024. See Order (Doc. 112). Because this case
is proceeding to trial, the Court intends to revisit whether Doe should be
permitted to litigate this case anonymously. As the Magistrate Judge noted
when she granted Doe’s request, the analysis is subject to change at different
stages in the litigation. See Order (Doc. 60) at 9 n.2. At the final pretrial
conference, the parties should be prepared to address whether Doe’s privacy
rights continue to outweigh the public’s legitimate and constitutionally
protected interest in knowing the identity of the parties.18
Accordingly, it is
ORDERED:
1. Defendants’ Motion for Summary Judgment and Incorporated
Memorandum of Law (Doc. 91) is GRANTED, in part, and DENIED,
in part.
A. The Motion is GRANTED to the extent Defendants seek summary
judgment in their favor as to Counts III and V of the Amended
Complaint.
B. In all other respects, the Motion is DENIED.

By separate notice, the Court intends to reschedule the final pretrial conference due
to the need to address criminal matters on the morning of September 23rd.
18

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2. The Court defers entry of final judgment until after final resolution of
this case.
DONE AND ORDERED in Jacksonville, Florida this 28th day of
August, 2024.

lc11
Copies to:
Counsel of Record

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