Johnson v. New Destiny Christian Center Church, Inc. et al
Filing
131
ORDER granting in part and denying in part 86 Motion to dismiss for lack of jurisdiction; granting in part and denying in part 117 Motion ; denying without prejudice 119 Motion for Sanctions; terminating as moot 128 Motion. See Order for Complete Details. Signed by Judge Roy B. Dalton, Jr. on 3/23/2017. (VMF)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
SHIRLEY JN JOHNSON,
Plaintiff,
v.
Case No. 6:15-cv-1698-Orl-37GJK
NEW DESTINY CHRISTIAN CENTER
CHURCH, INC.; PAULA MICHELLE
MINISTRIES, INC.; PAULA MICHELLE
WHITE; and RESURRECTION LIFE
THC, INC.
Defendant.
_____________________________________
ORDER
In this action, Defendants seek dismissal of the operative complaint for lack of
subject matter jurisdiction. (Doc. 86.) Additionally, Defendants request that the Court
issue a “friendly contempt order,” so that they may appeal a recent discovery ruling.
(Doc. 117.) Plaintiff responded to both motions (Docs. 95, 119) and, in turn, seeks
default judgment against Defendants for their noncompliance with the contested
discovery ruling (Doc. 119). Defendants oppose Plaintiffs motion for default judgment.
(Doc. 121.) For the reasons set forth below, the Court finds that the motion to dismiss is
due to be granted in part and denied in part, the motion for a contempt order is due to
be granted in part, and the motion for default judgment is due to be denied.
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I.
OVERVIEW
This diversity action for malicious prosecution presents a multitude of disputes
between dueling preachers. The present squabbles include: (1) a-late-in-the-game
motion to procure dismissal of the complaint based on questions about the adequacy of
the amount in controversy (“AIC”) as plead; and (2) fervent efforts by Defendants to
avoid the production of financial information, despite compulsion by the Court.
Due to the nature of Plaintiff’s claim, the Court begins by addressing the parties’
contentious history. It then turns to the merits of Defendants’ motion to dismiss,
followed by the matter of contempt and sanctions.
II.
A.
BACKGROUND
Prior Copyright Suit
The instant suit arises from a copyright infringement action initiated by Paula
White Ministries (“PWM”) against Plaintiff Shirley Jn Johnson (“Johnson”) almost three
years ago. See Paula White Ministries v. Johnson, Case No. 6:14-cv-497-Orl-31DAB
(“Copyright Action”), Doc. 1. PWM describes itself as a global ministry that uses
television, radio, literature, public speaking, and the Internet to communicate its
message. (Id. ¶ 1.) In the Copyright Action, PWM alleged that Johnson knowingly
violated federal copyright laws by copying, modifying, and displaying PWM’s original
and creative works—photographs and videos—on her website for financial gain and
without permission or authorization from PWM. (Id. ¶¶ 8, 10, 13.) But, according to
Johnson, such allegations were not legitimate and were asserted maliciously. (See
Doc. 76.)
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Specifically, in the Copyright Action, Johnson alleged that PWM’s complaint was
brought in retaliation because Paula White had been exposed as a false preacher.
(Copyright Action, Doc. 16, p. 9.) Indeed, as set forth in her answer to the complaint,
Johnson operates a website and YouTube channel (“Online Platforms”) that seek to
“bring truth and clarity to the scriptures,” while exposing false preachers, “who pervert
the true meaning of Bible scriptures through purposeful misinterpretation in an effort to
manipulate viewers and congregants into giving money so that they . . . can live
extravagant lifestyles.” (Id. at 1.) In addition, Johnson denied any infringement, relying
on the doctrine of fair use and, alternatively, the statute of limitations. (Id. at 2, 5.)
On December 16, 2014, Johnson moved for summary judgment as to PWM’s
copyright claims. (Copyright Action, Doc. 32 (“MSJ”).) PWM did not respond to the MSJ;
rather, on January 2, 2015, PWM moved to dismiss its complaint without prejudice on
grounds of judicial economy and the best interests of the parties. (Id., Doc. 34.) Finding
that “[the] case was in a posture where the outcome should be res judicata,” U.S. District
Judge Gregory A. Presnell denied the motion to dismiss without prejudice and directed
PWM to either: (1) assert a motion to dismiss with prejudice; or (2) respond to Johnson’s
MSJ. (Id., Doc. 36.) PWM elected to dismiss its claims with prejudice (id., Doc. 37) and,
despite Johnson’s vehement opposition (see id., Doc. 38), Judge Presnell granted PWM’s
amended motion and dismissed the action with prejudice (id., Doc. 40). However, Judge
Presnell advised Johnson that, should she wish to pursue affirmative relief against
PWM for malicious prosecution, she could do so by filing a separate complaint. (Id.,
Doc. 40.)
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B.
Instant Action
Heeding Judge Presnell’s advice, Johnson filed the instant malicious prosecution
action six months later, invoking the Court’s diversity jurisdiction. (Doc. 1 (“Original
Complaint”).) The Original Complaint asserted claims against PWM, 1 New Destiny
Christian Center Church, Inc. (“New Destiny”), Paula Michelle Ministries, Inc.
(“PMM”), 2 and Paula Michele Cain. (Id.) Following several amendments (Docs. 10, 22,
76), Johnson now seeks relief against New Destiny, PMM, Paula Michelle White
(“White”), and Resurrection Life THC, Inc. (“Resurrection Life”). (Doc. 76 (“Operative
Complaint”).) Importantly, Johnson seeks to pierce the corporate veil of PMM, New
Destiny, and Resurrection Life (collectively, “the Entity Defendants”) based on her
assertion that “through their directors and agents” they “initiated and actively
participated in an illegal scheme to fraudulently convey or conceal [New Destiny and
PWM’s] assets so that they could not be reached by this lawsuit.” (See generally id.
¶¶ 15–57.)
In support, Johnson alleges that:
(1)
(2)
(3)
(4)
White is the president and on the Board of Directors
(“BoD”) for New Destiny and PWM;
White is on the BoD for Resurrection Life;
White directly participated in initiating and
prosecuting the previous Copyright Action, which
she filed purely for personal reasons;
White used PMM and New Destiny as a shield to
Johnson now asserts that PWM is merely a fictitious name under which
Defendant New Destiny Christian Center Church, Inc. operates its online business.
(Doc. 1, ¶ 6.)
2 According to the operative complaint, PMM was dissolved on August 11, 2014,
during the pendency of the Copyright Action. (Doc. 76, ¶¶ 7, 33.)
1
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(5)
(6)
(7)
(8)
(9)
(10)
avoid personal liability and legal expenses;
Prior to PMM’s dissolution, PWM was registered to
PMM;
New Destiny is a successor corporation and a mere
continuance of PMM;
PWM is currently owned by New Destiny;
Resurrection Life is a sham corporation and an
instrumentality of New Destiny and PWM and “was
organized and incorporated with the fraudulent and
improper purpose of holding the assets of [New
Destiny and PWM], shielding [New Destiny and
PWM] from liability[,] and defrauding [Johnson] and
other creditors”;
The Entity Defendants have overlapping staff and
leadership; and
The Entity Defendants share a common business
address.
(Id. ¶¶ 15, 17, 19, 26, 29, 32, 33, 36, 38, 41, 45, 52–54.)
C.
Pending Motions
Despite having answered Johnson’s prior iteration of the Complaint (Doc. 48),
Defendants move to dismiss the Operative Complaint for lack of subject matter
jurisdiction. (Doc. 86 (“MTD”).) Concurrently, the parties fell into a bitter dispute over
the discoverability of Defendants’ financial information, which Johnson seeks in
furtherance of her demand for punitive damages. 3 (See Docs. 67–73.)
On August 19, 2016, U.S. Magistrate Judge Gregory J. Kelly entered an Order
partially granting Johnson’s motions to compel unanswered and unproduced
discovery. (Doc. 78 (“August 19 Order”).) Shortly thereafter, Defendants moved for
relief from the August 19 Order. (Doc. 83 (“Motion for Relief”).) Magistrate Judge
Defendants also contest Johnson’s entitlement to other information that they
deem confidential, including New Destiny’s organizational bylaws. (See Doc. 117, pp. 5,
9.)
3
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Kelly granted Defendants’ Motion for Relief in part on November 22, 2016, (Doc. 103
(“November 22 Order”), thereby limiting the scope of many of Johnson’s discovery
requests and denying others as vague, overbroad, unduly burdensome, or not
proportional to the issues in the case (id. at 9–13). However, the November 22 Order
denied the Motion for Relief in all other respects and directed Defendants to serve
answers to certain interrogatories and produce discovery responsive to Johnson’s
requests for production. (Id. at 14–15.)
Unhappy with this ruling, Defendants appealed the matter to the Undersigned
by filing objections. (Doc. 106.) Ultimately, the Undersigned: (1) overruled Defendants’
objections; (2) affirmed Magistrate Judge Kelly’s rulings; and (3) directed Defendants to
comply with the November 22 Order on or before February 8, 2017. (Doc. 115
(“Affirmance Order”).) Cognizant of Defendants’ concern that Johnson would
disseminate any disclosed financial information on the Internet (e.g., Doc. 106, pp. 18–
19), the Affirmance Order included the following restriction:
Absent further order, [Johnson] shall refrain from any
extrajudicial publication of the discovery material to any
source and shall not disclose the information to any person
or entity other than any expert witness or subsequently
retained counsel as necessary for the prosecution of this
action. Violation of this portion of the Court’s order will
result in sanctions. (“Nondisclosure Directive”).
(Doc. 115.)
Nonetheless, Defendants did not comply with the Affirmance Order; rather, on
February 8, 2017, Defendants filed a motion for a “friendly contempt order,” in order to
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trigger their appellate rights with respect to the discovery rulings. 4 (Doc. 117 (“Motion
for Contempt”).) As a countermeasure, Johnson moved for default judgment. (Doc. 119
(“Motion for Default Judgment”).) All pending motions have been fully briefed and
are ripe for the Court’s consideration.
II.
MOTION TO DISMISS
In their MTD, Defendants contend that Johnson has failed to allege any facts
from which the Court can plausibly infer that the AIC exceeds $75,000. 5 (Doc. 86, p. 2.)
In particular, Defendants argue that: (1) Johnson cannot rely on 17 U.S.C. § 512 to
support her claim for damages, as she has not filed a claim under that statute;
(2) Johnson’s request for nominal and non-economic damages is speculative; and
(3) Johnson’s request for punitive damages fails to satisfy the substantive pleading
standard of § 768.72 of the Florida Statutes. (Id. at 4–10.) While at least one of
Defendants’ arguments has merit, upon examination of the relevant authorities and the
allegations in the Operative Complaint, the Court finds that, on the whole, dismissal is
not warranted.
A.
Standards
In diversity cases, district courts have original jurisdiction over cases in which
the parties are completely diverse and the AIC exceeds $75,000. 28 U.S.C. § 1332(a).
Though
Hereinafter, the Court will collectively refer to the November 22 and
Affirmance Orders as “the Contested Discovery Orders.”
5 Johnson sufficiently alleges that the parties are diverse. (Doc. 76, ¶¶ 2, 5–9.)
Defendants do not contest this point.
4
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[t]he intent of Congress drastically to restrict federal
jurisdiction in controversies between citizens of different
states has always been rigorously enforced by the courts[,]
the rule governing dismissal for want of jurisdiction in cases
brought in the federal court is that, unless the law gives a
different rule, the sum claimed by the plaintiff controls if the
claim is apparently made in good faith.
St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 288 (1938). Thus, because a
plaintiff is “the master of his own claim,” Burns v. Windsor Ins. Co., 31 F.3d 1092, 1095
(11th Cir. 1994), “[i]t must appear to a legal certainty that the claim is really for less than
the jurisdictional amount to justify dismissal,” St. Paul, 303 U.S. at 289. Moreover,
“[w]here both actual and punitive damages are recoverable under a complaint, each
must be considered to the extent claimed in determining jurisdictional amount.” Cohen
v. Office Depot, Inc., 184 F.3d 1292, 1295 (11th Cir. 1999) (quoting Bell v. Preferred Life
Assur. Soc. of Montgomery, Ala., 320 U.S. 238, 240 (1943)), vacated on other grounds on reh’g,
204 F.3d 1069 (11th Cir. 2000).
B.
Purported Federal Claims
In her ad damnum clause, Johnson requests economic, non-economic, and
nominal damages pursuant to 17 U.S.C. § 512(f). (Doc. 76, pp. 16–17.) Additionally,
Johnson alleges that Defendant violated her rights under the First Amendment to the
U.S. Constitution by filing the Copyright Action and “making numerous false copyright
infringement complaints to YouTube, which caused the removal of videos from [her]
channel.” (Id. ¶¶ 61, 62.) But contrary to Johnson’s representations, she has not properly
plead any § 512 or First Amendment claims.
As an initial matter, the First Amendment prohibits Congress and the States from
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making any law abridging the freedom of speech. United Bhd. of Carpenters & Joiners of
Am. Local 610 v. Scott, 463 U.S. 825, 831 (1983). As such, the First Amendment protects
individuals against government action, not against wrongs by individuals or private
entities. See id. at 831–32. Thus, even if the Court were to permit Johnson to amend the
Operative Complaint, any attempt to assert a First Amendment claim against
Defendants would be futile.
Second, to the extent that Johnson intends to state a claim under
17 U.S.C. § 512(f), the Court finds that she has failed to do so. Specifically,
[s]ection 512, Title 17, of the United States Code lays out a
detailed process allowing a copyright owner who observes
infringing content on a website like YouTube to have the
content taken down. Under the statute, the copyright owner
must send a written communication to the service provider
identifying the offending video and asserting under penalty
of perjury that the sender is the copyright owner and has a
good faith belief that the video infringes the sender’s
copyright.
Big Cat Rescue Corp. v. Big Cat Rescue Entm’t Grp., No. 8:11-cv-2014-JDW-TBM,
2013 WL 12158980, at *10 (M.D. Fla. Jan. 15, 2013). In turn, subsection (f) “sets out a
private cause of action for anyone who is injured by a material representation that
content or activity is infringing when it is not.” Disney Enters., Inc. v. Hotfile Corp.,
No. 11-20427-CIV, 2013 WL 6336286, at *46 (S.D. Fla. Sept. 20, 2013). Verbatim, this
subsection provides that:
[a]ny person who knowingly materially misrepresents under
this section that material or activity is infringing shall be
liable for any damages, including costs and attorneys’ fees,
incurred by the alleged infringer . . . who is injured by such
misrepresentation, as the result of the service provider
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relying upon such misrepresentation in removing or
disabling access to the material or activity claimed to be
infringing, or in replacing the removed material or ceasing
to disable access to it.
17 U.S.C. § 512(f)(1). A critical element of a § 512(f) claim is the existence of an injury
caused by the misrepresentation. Hotfile Corp., 2013 WL 6336286, at *48. As such, to
properly state a claim under this subsection, Johnson must allege that Defendants’
misrepresentation to YouTube, and YouTube’s reliance on that misrepresentation,
proximately caused her damages. See id. (citing Lenz v. Universal Music. Corp.,
No. C 07-3783 JF, 2010 WL 702466, at *10 (N.D. Cal. Feb. 25, 2010)).
A review of the Operative Complaint reveals that each factual allegation related
to Johnson’s damages stems from the prosecution of the Copyright Action rather than
the removal of her videos from YouTube. This omission is fatal to a § 512(f) claim, and it
also underscores the Court’s conclusion that Johnson intended only to assert a
malicious prosecution claim in this action. Notably, the Operative Pleading is titled
“Plaintiff’s Third Amended Verified Complaint for Malicious Prosecution” and the
opening paragraph states only that Johnson is suing Defendants for malicious
prosecution. (Doc. 76, p. 1.) Moreover, Johnson uses headings throughout her pleading
to identify jurisdictional allegations (id. at 2), the parties (id. at 3), the underlying facts
(id. at 4), grounds for piercing the corporate veil of the Entity Defendants (id. at 5), and
her malicious prosecution claim (id. at 11). Yet nowhere in her pleading does Johnson
identify either a First Amendment or § 512(f) misrepresentation claim in this manner.
Finally, Johnson invokes the Court’s jurisdiction on grounds of diversity jurisdiction,
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not federal question jurisdiction. (Doc. 76, ¶ 1.)
Further, under Rule 10(b), “[a] party must state its claims or defenses in
numbered paragraphs, each limited as far as practicable to a single set of
circumstances.” And “[i]f doing so would promote clarity, each claim founded on a
separate transaction or occurrence—and each defense other than a denial—must be
stated in a separate count or defense.” Fed. R. Civ. P. 10(b). Here, Johnson’s malicious
prosecution claim and any alleged § 512(f) violations would be based on separate
occurrences: (1) the prosecution of the Copyright Action; and (2) representations made
to YouTube that caused Johnson’s videos to be taken down. Therefore, any purported
federal claims should have been alleged in separate counts.
With the exception of damages, there are factual allegations in the Operative
Complaint to support a § 512 claim. Nonetheless, at this late stage of the litigation, it
would be unfair to allow Johnson to amend her pleading a fourth time to state a claim
that was neither within the contemplation of Defendants nor the Court. Indeed,
notwithstanding her response to the MTD, Johnson seems to have been under the
mistaken impression that § 512(f) provided a basis for the recovery of discrete damages,
not a wholly separate cause of action. In any event, Johnson’s claimed economic,
non-economic, and nominal damages are recoverable under state law. 6
See, e.g., Ware v. Untied States, 971 F. Supp. 1442, 1471 (M.D. Fla. 1997)
(recognizing reasonable out-of-pocket expenses and non-economic damages as
“legitimate grounds for monetary relief in an action for malicious prosecution”); S.H.
Kress & Co. v. Powell, 180 So. 757, 763 (1938) (discussing the availability of compensatory
damages arising from “actual and indirect pecuniary loss, mental suffering, value of
time, actual expenses, and bodily pain and suffering” in the context of an action for
6
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C.
Asserted Speculative Damages
Defendants’ next argument is that Johnson’s asserted nominal, non-economic,
and punitive damages are too speculative to be considered in the Court’s assessment of
the AIC. (Doc. 86, pp. 6–10.) Not so.
With respect to damages, Federal Rule of Civil Procedure 8(a)(3) requires only
that a complaint “contain a demand for the relief sought, which may include relief in
the alternative or different types of relief.” Beginning with non-economic damages,
Johnson requests $500,000. (Doc. 76, p. 16.) In support, Johnson alleges that: (1) PMM
and White brought the Copyright Action “with the ulterior motive of using (or
misusing) the Judicial System to intimidate, punish, shame, harass, and attempt to
extort millions of dollars from [her];” (2) “[a]s a direct and proximate result of
[Defendants’] willful and wanton conduct, [she] has suffered unnecessary psychological
and emotional distress”; (3) “due to the criminal nature of the claims, had Defendant
White’s scheme succeeded, [Johnson] would have suffered millions of dollars in
damages, and potentially faced five (5) years in prison for criminal copyright
infringement”; (4) “[a]s a direct and proximate result of [Defendants’] actions, for ten
(10) months [she] was plagued with thoughts of incarceration”; (5) “[f]or ten (10)
malicious prosecution and false imprisonment); see also Stoler v. Levinson, 394 So. 2d 462,
463 (Fla. 3d DCA 1981) (concluding that items of damages with respect to, inter alia,
nominal damages were sufficient to send the case to the jury as to the plaintiff’s
malicious prosecution and abuse of process claims); Adler v. Segal, 108 So. 2d 773, 775
(Fla. 3d DCA 1959) (“[T]here is substantial authority that a malicious prosecution is
actionable per se, and certain kinds of damage necessarily follow from the wrongful
prosecution itself, and so will be assumed by the law to exist.”); Fla. Standard Jury
Instructions – Civil Cases [Reorganized], Instruction No. 406.12 (providing instructions for
malicious prosecution damages).
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months, [she] was forced to set aside her own work to spend countless hours
researching and studying in order to defend against [Defendants’] false claims, which
resulted in the loss of sleep”; (6) “[o]n many occasions [her] research lasted all night and
well into the following day[,] which resulted in mental confusion, bouts of shortterm memory loss and forgetfulness”; and (7) “[she] was compelled to expend
money, time, energy and resources in order to defend against [Defendants’]
unjustifiable and baseless claims.” (Doc. 76, ¶¶ 77, 82–85, 87–88.)
Here, not only has Johnson complied with Rule 8(a)(3), but she has also asserted
factual allegations that support her demand for non-economic damages. That being so,
the determination as to the amount of such damages is within the unique purview of
the factfinder at a trial on the merits. Adler, 108 So. 2d at 775. While she may not actually
recover $500,000, the Court cannot say that, when added to her other claimed
damages—which, contrary to Defendant’s contentions, properly include a claim for
punitive damages—there is a legal certainty that Johnson will recover less than $75,000.
See
Terry
v.
United
States,
No.
3:06-cv-204-J-32TEM,
2008 WL
619317,
at *9
(M.D. Fla. Mar. 4. 2008) (recognizing the subjective nature of non-economic damages
and that “there’s no quantifiable way to quantify somebody’s pain and suffering”); see
also Golden v. Dodge-Markham Co., 1 F. Supp. 2d 1360, 1366 (M.D. Fla. 1998)
(“Compensatory damages are extremely nebulous.”). The same analysis applies in
assessing the sufficiency of Johnson’s claim for $10,000 in nominal damages. See Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007) (“[A] well-pleaded complaint may
proceed even if it strikes a savvy judge that actual proof of those facts is improbable,
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and that a recovery is very remote and unlikely.”).
Defendants’ argument as to punitive damages, however, requires a less
straight-forward analysis. Federal courts sitting in diversity follow substantive state law
in determining what factual allegations a plaintiff must plead to seek punitive damages.
Dunn v. Koehring Co., 546 F.2d 1193, 1201 (5th Cir. 1977), clarified on reh’g, Hyde Constr.
Co. v. Koehring Co., 551 F.2d 73 (5th Cir. 1977). 7 Under Florida law, “[p]unitive damages
are recoverable in a malicious prosecution action, where actual malice and want of
probable cause are shown, or where the legal proceedings complained of were
commenced under circumstances of oppression, wantonness, or a reckless disregard of
plaintiff’s rights.” Adler, 108 So. 2d at 776 (quoting S.H. Kress, 180 So. at 763).
“Allegations that the defendant perpetrated a fraud with willful and wanton disregard
of the rights of the plaintiff have been held sufficient to plead an adequate predicate for
punitive damages.” Harris v. Lewis State Bank, 482 So. 2d 1378, 1385 (Fla. 1st DCA 1986).
Section 768.72(1) of the Florida Statues, however, purports to impose additional
requirements on plaintiffs, as follows:
In any civil action, no claim for punitive damages shall be
permitted unless there is a reasonable showing by evidence
in the record or proffered by the claimant[,] which would
provide a reasonable basis for recovery of such damages.
The claimant may move to amend her or his complaint to
assert a claim for punitive damages as allowed by the rules
of civil procedure. The rules of civil procedure shall be
liberally construed so as to allow the claimant discovery of
evidence [that] appears reasonably calculated to lead to
All decisions handed down by the U.S. Court of Appeals for the Fifth Circuit
prior to the close of business on September 30, 1981, are binding precedent in the
Eleventh Circuit. Bonner v. City of Prichard, Ala., 661 F.2d 1206, 1207 (11th Cir. 1981).
7
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admissible evidence of punitive damages. No discovery of
financial worth shall proceed until after the pleading
concerning punitive damages is permitted.
Relying on this provision, Defendant argues that Johnson’s demand for punitive
damages is speculative because she has not satisfied the substantive pleading
requirements of § 768.72(1).
In evaluating the applicability of this statute in diversity cases, the Eleventh
Circuit has divided it into two separate components: (1) the pleading component, which
requires a plaintiff to obtain leave of court before including a prayer for punitive
damages in his complaint (“Pleading Component”); and (2) the discovery component,
which requires a plaintiff who has made a claim for punitive damages to produce
evidence or make a proffer of evidence that shows a reasonable basis for the punitive
damages claim (“Discovery Component”). Porter v. Ogden, Newell & Welch, 241 F.3d
1334, 1340 (11th Cir. 2001). Due to its conflict with Rule 8(a)(3), the Eleventh Circuit has
held that the Pleading Component of § 768.72 is inapplicable in federal diversity cases.
Cohen, 184 F.3d at 1299. However, courts within this Circuit have held that the
Discovery Component remains viable and is satisfied where a plaintiff pleads specific
acts committed by a defendant that provide a reasonable basis to support a punitive
damages claim. 8
See
Porter,
241 F.3d
at 1340–41;
Collins
v.
De
Los
Santos,
No. 6:16-cv-852-Orl-31TBS, 2016 WL 4194033, at *1–2 (M.D. Fla. Aug. 9, 2016); Gerlach v.
Cincinnati
Ins.
Co.,
No.
2:12-cv-322-FtM-29DNF,
2012 WL 5507463, at *2
(M.D. Fla. Nov. 14, 2012); Woolington v. 1st Orlando Real Estate Servs., Inc.,
No. 6:11-cv-1107-Orl-31GJK, 2011 WL 3903252, at *2 (M.D. Fla. Sept. 6, 2011). But see
Shiver v. Bridgestone Ams. Tire Operations, LLC, No. 3:11-cv-1256-J-25JBT,
8
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Upon consideration, the Court finds that Johnson’s factual allegations are
sufficient “to raise a right to relief above the speculative level.” 9 See Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007). In the November 22 Order, Magistrate Judge Kelly
also concluded that Johnson’s allegations satisfied the Discovery Component. (Doc. 103,
p. 7–8 (finding that Johnson is entitled to discovery of some financial information from
Defendants based on the specific, factual allegations in the Operative Complaint, which
demonstrate a reasonable basis for her punitive damages demand).) The Undersigned
previously affirmed that ruling (Doc. 115) and continues to do so.
In sum, Defendants have failed to show that Johnson’s damage claim was not
made in good faith, nor have they proven to a legal certainty that Johnson would
recover less than $75,000 if she prevailed. As such, their MTD is due to be denied.
IV.
MOTION FOR CONTEMPT
In their Motion for Contempt, Defendants seek to trigger their right to appeal the
Contested Discovery Orders by requesting a “friendly contempt order.” (Id.) As
2013 WL 937599, at *2 (M.D. Fla. Mar. 11, 2013) (rejecting the defendants’ argument that
any specificity requirement to pleading punitive damages exists in federal diversity
cases).
9 Specifically, Johnson alleges that: (1) on October 13, 2013, White told her
congregation and online viewers that she intended to stop the enemy because she felt
mocked and reproached by Johnson; (2) that same day, White stated that she “intended
to do damage and be a menace” to the enemy (Johnson); (3) five months after making
these statements, White filed the Copyright Action; (4) White filed the Copyright Action
(a) to silence Johnson’s criticism of her and her biblical teachings, and (b) in retaliation
because she was angry that she had been exposed by Johnson’s videos; (4) in the
Copyright Action, Defendants falsely alleged to be the legal and beneficial copyright
owners of videos which Johnson created and displayed on her Online Platforms; and
(5) all of the allegations asserted in the Copyright Action were false, save for the
allegation that Johnson is the registered owner of her website and responsible for its
content. (Doc. 76, ¶¶ 16, 81, 62, 60, 66–67, 69.)
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aforementioned, Defendants’ main concern is that Johnson will disseminate their
financial information via her Online Platforms. (Doc. 117.) In support of their motion,
Defendants represent that: (1) given their status as non-profit religious organizations,
the Affirmance Order “poses a significant threat to [their] privacy expectations
concerning their tax returns and other financial information”; (2) Johnson has little
incentive to comply with the Nondisclosure Directive because she is judgment proof;
(3) “there is little doubt that [Johnson] will violate the Court’s directive in furtherance of
her divine mission” to expose White’s preaching as “a big money making scam” [sic];
and (4) “[o]nce Defendants’ tax returns and other financial documents are disseminated
on [the] Internet, the devastating harm to Defendants will be irreparable.” (Id. at 1–2, 3.)
Contrary to Defendants’ suggestion, the Court has more tools with which to
sanction the violation of its Orders than monetary fines alone. Indeed, contempt of
court—even by a judgment-proof party—is punishable by coercive incarceration or the
initiation of criminal contempt proceedings. See Citronelle-Mobile Gathering v. Watkins,
943 F.2d 1297, 1304 (11th Cir. 1991); Fed. R. Crim. P. 42. Moreover, in spite of her pro se
status, Johnson has consistently complied with the Court’s rules and deadlines in
prosecuting this action and shown no propensity to violate the Court’s rulings. Hence
the Court finds that Defendants have failed to demonstrate good cause for their
noncompliance with the Contested Discovery Orders.
In a similar vein, the Court has numerous options at its disposal in selecting an
appropriate sanction for Defendants’ violation. For example, under Rule 37(b)(2)(A), if a
party fails to obey a discovery order, the Court may, inter alia, issue orders:
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(1) prohibiting the disobedient party from supporting or opposing designated claims or
defenses; (2) rendering a default judgment against the disobedient party; or (3) treating
the failure to obey the order as contempt of court. 10 Here, Defendants’ failure to comply
with the Affirmance Order has brought the instant action to a standstill. Notably,
Johnson will be unable to move forward with her claim for punitive damages until such
discovery is produced. Johnson is also unable to pursue any other information she
hoped to glean from the information requested. Meanwhile, the discovery and
dispositive motion deadlines are imminent. (See Docs. 56, 116.) Thus, having halted
Johnson’s prosecution of this action, Defendants will be prohibited from advancing
their defenses or opposing Johnson’s claim until they comply with the Court’s
discovery rulings or obtain favorable appellate relief. As such, Defendant may not
proceed with any dispositive motions.
The Court also finds Defendants in contempt of court. Ordinarily, “[a] finding of
civil contempt must be supported by clear and convincing evidence that the allegedly
violated order was valid and lawful, the order was clear and unambiguous, and the
alleged violator had the ability to comply with the order.” Fed. Trade Comm’n v. Leshin
(Leshin I), 618 F.3d 1221, 1232 (11th Cir. 2010) (quoting Riccard v. Prudential Ins. Co.,
307 F.3d 1277, 1296 (11th Cir. 2002). “Once this prima facie showing of a violation is
made, the burden then shifts to the alleged contemnor to produce evidence explaining
his noncompliance at a ‘show cause’ hearing.” Id. (quoting Chairs v. Burgess,
But a court may not impose a contempt sanction for the violation of an order
directing a party to submit to a physical or mental examination.
Fed. R. Civ. P. 37(b)(2)(A)(vii).
10
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143 F.3d 1432, 1436 (11th Cir. 1998).
On these facts, the requisite prima facie showing is easily met. Though
Defendants object to the findings and conclusions reached in the Contested Discovery
Orders, such orders constitute a valid and lawful application of the Federal Rules of
Civil Procedure, the Court’s Case Management and Scheduling Order (Doc. 56), and
both controlling and persuasive federal case law. (See Docs. 103, 115.) The Contested
Discovery Orders also clearly and unambiguously direct Defendants to respond to
delineated items in Johnson’s discovery requests. (Doc. 103, pp. 9–15; Doc. 115.) And
finally, all the information requested by Johnson is within Defendants’ possession, thus
demonstrating Defendants’ ability to comply with the Court’s discovery rulings.
Nonetheless, the unique posture of the current action warrants a slight deviation
from the ordinary contempt framework. In one fell swoop, the Motion for Contempt:
(1) notifies the Court of Defendants’ noncompliance with the Affirmance Order;
(2) requests that the Court find Defendants in contempt; and (3) explains Defendants’
reasons for noncompliance. (Doc. 117.) Additionally, the November 22 Order warned
Defendants of the possibility of sanctions for noncompliance. (Doc. 103, p. 15.) The
foregoing, therefore, obviates the need for the issuance of a show cause order and a
hearing.
Here, Defendants have admittedly refused to comply with the Court’s discovery
rulings based on their belief that: (1) such information is confidential and sensitive; and
(2) Johnson will not adhere to the Court’s Nondisclosure Directive. (Doc. 117.) While
Defendants represent that they have partially complied with the Affirmance Order by
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timely producing documents “sufficient to establish their respective net worth”11 (id.
at 117), the Eleventh Circuit is clear that “substantial, diligent, or good faith efforts [to
comply] are not enough.” 12 Leshin I, 618 F. 3d at 1232 (“We do not focus on the
subjective beliefs or intent of the alleged contemners in complying with the order, but
whether in fact their conduct complied with the order at issue.”(quoting Ga. Power Co.
v. Nat’l Labor Relations Bd., 484 F.3d 1288, 1291 (11th Cir. 2007))). Moreover, the Court’s
own examination of the financial documents produced for New Destiny—which
Johnson attached to her Motion for Default Judgment (Doc. 119-1)—reveals a woefully
inadequate production. Thus, the Court finds Defendants in contempt for
noncompliance with the Affirmance Order.
Turning now to the matter of sanctions, the Court is afforded “wide discretion in
fashioning an equitable remedy in civil contempt.” Leshin I, 618 F. 3d at 1237. “Sanctions
in civil contempt proceedings may be employed for either or both of two purposes: to
coerce the defendant into compliance with the court’s order, and to compensate the
complainant for losses sustained.” Fed. Trade Comm’n v. Leshin (Leshin II), 719 F.3d 1227,
According to Defendants, they produced the following documents to Johnson:
(1) Defendant White’s personal tax returns from 2012–2015; (2) New Destiny’s
Statement of Activities Sheet from July 2013 to July 2016, which they contend are
analogous to profit and loss statements given that, as a nonprofit entity, New Destiny
does not file tax returns; and (3) PMM’s Statement of Activities for 2014. (Doc. 117,
pp. 9–10.)
12 Seemingly at odds with such case law is the Eleventh Circuit’s statement in
Watkins that “[p]arties subject to a court’s order demonstrate an inability to comply only
by showing that they have made in good faith all reasonable efforts to comply.”
943 F.2d at 1301. As the Undersigned has already determined that Defendants had the
ability to comply with the Contested Discovery Orders and chose not to, the Court finds
that Defendants have not, in good faith, made all reasonable efforts to comply.
11
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1235 (11th Cir. 2013) (quoting Local 28 of Sheet Metal Workers’ Int’l Ass’n v. Equal Emp’t
Opportunity Comm’n, 478 U.S. 421, 443 (1986)). “Where compensation is intended, a fine
is imposed, payable to the complainant. Such fine must of course be based upon
evidence of [the] complainant’s actual loss, and his right, as a civil litigant, to the
compensatory fine is dependent on the outcome of the basic controversy.” United States
v. United Mine Workers of Am., 330 U.S. 258, 304 (1947). “But where the purpose is to
make the defendant comply, the court’s discretion is otherwise exercised. It must then
consider the character or magnitude of the harm threatened by continued contumacy,
and the probable effectiveness of any suggested sanction in bringing about the result
desired.” Id. In fixing the amount of a fine, the court must “consider the amount of
defendant’s financial resources and the consequent seriousness of the burden to that
particular defendant.” Id.
After considering its various options, see, e.g., Watkins, 943 F.2d at 1304, the
Court concludes that the imposition of a coercive daily fine is the most appropriate
sanction under the circumstances. 13 The Court finds that neither coercive imprisonment
nor criminal sanctions are warranted, and it is unable to fashion a compensatory fine
where, as here, the pro se plaintiff will not incur attorney fees, and the merits of the
instant action have not yet been resolved. 14 The Court has already determined that the
Ironically, due to Defendants’ contempt, the Court is unable to precisely assess
Defendant’s financial resources; nonetheless, in fashioning this sanction, the Court
specifically contemplated the potential extent of the burden to Defendants.
14 At this time, the Court also declines to impose Johnson’s requested sanction of
default judgment. However, the Court rejects Defendants’ contention that their
noncompliance was not willful. Defendants consciously decided not to fully comply
13
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information requested may be properly compelled and that Defendants’ refusal has
impeded the progression of this action. And, as explained below, Defendants’
contention that a contempt order is per se appealable is incorrect. Hence, going
forwarded, the Court will require Defendant to pay Johnson $100.00 for each day of
noncompliance with the Affirmance Order. 15
Defendants are advised that this sanction is not appealable through ordinary
channels. Relying on out-of-Circuit case law, Defendants mistakenly contend that “to
appeal a discovery order, an individual or entity must first defy it and be held in
contempt.” (Doc. 117.) But a closer examination of controlling Eleventh Circuit
authority reveals that “contempt orders resulting from discovery disputes are not
appealable final orders unless the contempt order imposes a fine or penalty that may
not be avoided by some other form of compliance.” Carpenter v. Mohawk Indus.,
541 F.3d 1048, 1054 (11th Cir. 2008) (citing Combs v. Ryan’s Coal Co., 785 F.2d 970, 976
(11th Cir. 1986)), aff’d, 558 U.S. 100 (2009). “Thus, in order for [a] contempt order to be
immediately appealable, there must be both a finding of contempt and a noncontingent
order of sanction.” Id. (citing Combs, 785 F.2d at 977). Because the Court has imposed
coercive civil sanctions, such order would not be immediately appealable. 16 However,
with the Affirmance Order; this is the definition of willful. Willful, BLACK’S LAW
DICTIONARY (9th ed. 2009) (defining “willful” as “[v]oluntary and intentional, but not
necessarily malicious”).
15 Defendants may purge such sanction by compliance. See Leshin I, 618 F.2d
at 1239 (“A contemnor need only be afforded the opportunity to purge his sanction of a
fine, in the civil context, where a fine is not compensatory.”).
16 By definition, civil contempt sanctions are merely coercive and avoidable
through obedience. (Leshin II), 719 F.3d at 1235.
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Defendants are free to seek mandamus review of the Contested Discovery Orders. See
id. at 1053–54. Should Defendants chose to pursue this avenue in lieu of compliance,
they will be fined $100.00 for each day that their petition is pending, the sum of which
will be payable to Johnson upon any disposition in her favor.
Accordingly, it is ORDERED AND ADJUDGED as follows:
1.
Defendants’ 12(b)(1) Motion to Dismiss Plaintiff’s Third Amended
Complaint for Lack of Subject Matter Jurisdiction (Doc. 86) is GRANTED
IN PART AND DENIED IN PART.
a.
To the extent that Defendants seek dismissal of any purported
federal claims under 17 U.S.C. § 512(f) or the First Amendment, the
Motion is GRANTED. Such dismissal is without prejudice.
b.
2.
In all other respects, the Motion is DENIED.
Plaintiff’s embedded motion for leave to amend her Complaint (Doc. 95,
pp. 14–15) is DENIED. 17
3.
Defendant’s
Motion
for
Friendly
Contempt
Order
for
Partial
Non-Compliance with the Court’s February 1, 2017 Discovery Order and
Request for Oral Argument (Doc. 117) is GRANTED IN PART to the
extent set forth in this Order. In all other respects, the Motion is DENIED.
4.
Pursuant to Federal Rule of Civil Procedure 37(b)(1)(A)(ii), Defendants are
Though the Court addressed the propriety of amendment in resolving the
MTD, Johnson’s request for leave to amend the Operative Complaint was improperly
raised. “Filing a motion is the proper method to request leave to amend a complaint”;
thus, Johnson should not have embedded this request in her response to the MTD. Long
v. Satz, 181 F.3d 1275, 1279 (11th Cir. 1999).
17
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Copies to:
Pro Se Party
Counsel of Record
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