Parekh v. CBS Corporation et al

Filing 135

ORDER denying 133 motion to stay enforcement of judgment. Signed by Magistrate Judge Thomas B. Smith on 7/1/2019. (Smith, Thomas)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
NIKLESH PAREKH,
Plaintiff,
v.

Case No: 6:18-cv-466-Orl-40TBS

CBS CORPORATION and BRIAN
CONYBEARE,
Defendants.
ORDER
This matter comes before the Court on Plaintiff’s Motion to Stay the Court’s April
22, 2019 Judgment Pending Appeal (Doc. 133). The Court has also considered
Defendants’ Memorandum in Opposition to Plaintiff’s motion (Doc. 134).

Pro se Plaintiff Niklesh Parekh complained that Defendants CBS Corporation and
Brian Conybeare published a defamatory news report that portrayed him “as a scam or as
a man who lied for money.” (Doc. 1, ¶ 5). The Court granted Defendants’ motion to
dismiss Plaintiff’s complaint after finding that one of Defendants’ statements did “not
concern Parekh or imply any defamatory facts about Parekh,” and the other statement “is
not reasonably capable of a defamatory meaning.” (Doc. 104 at 7-8). The Court also
rejected Plaintiff’s claim of intentional infliction of emotional distress because it violated
Florida’s single action rule (Id., at 9-10). The Court subsequently awarded Defendants
their reasonable attorney’s fees and costs pursuant to Florida’s anti-SLAPP statute, FLA.
STAT. § 768.295(3), and judgment in the amount of $139,974.24 was entered against
Plaintiff and in favor of Defendants (Id.; Doc. 129). Plaintiff filed a notice of appeal and the
case material was transmitted to the United States Court of Appeals for the Eleventh

Circuit (Doc. 130; Doc. 131). Now, Plaintiff seeks a stay of the judgment during the
pendency of his appeal to the Eleventh Circuit (Doc. 133).
Federal Rule of Civil Procedure 62 advises that a district judge may stay the
enforcement of a judgment pending an appeal if the movant can show that (1) he is likely
to prevail on the merits of his appeal; (2) he will suffer irreparable harm if the stay is not
imposed; (3) the opposing party will not suffer substantial harm if the stay is imposed; and
(4) the stay is not adverse to public interest. Hilton v. Braunskill, 481 U.S. 770, 776
(1987); see also Breedlove v. Hartford Life & Acc. Ins. Co., No. 6:11-CV-991-ORL-28,
2013 WL 361825, at *1 (M.D. Fla. Jan. 30, 2013) (citing Allied Veterans of the World, Inc.
v. Seminole County, Fla., Case No. 6:11–cv–155–Orl–28DAB, 2011 WL 3958437 *1 (M.D.
Fla. Sept.8, 2011); Hernandez v. Dugger, 839 F. Supp. 849, 851 (M.D. Fla.1993)).

1. Likelihood of Success on the Merits
Plaintiff argues that he is likely to prevail on the merits of his appeal because the
district court erred in awarding fees under Florida’s anti-SLAPP statute (Doc. 133 at 3).
On January 9, 2019, the Court granted Defendants’ motion to dismiss and found the facts
of the case satisfied both requirements of Florida’s anti-SLAPP law:
Defendants asserts that Plaintiff’s complaint falls within
Florida’s anti-SLAPP statute and that they should be awarded
attorneys’ fees and costs incurred in defending it. (Doc. 19,
pp. 13–15). The anti-SLAPP statute prohibits anyone from
bringing a lawsuit that is “without merit and primarily because
such person or entity has exercised the constitutional right of
free speech in connection with a public issue.” Fla. Stat. §
768.295(3) (emphasis added). This case meets both
requirements of Florida’s anti-SLAPP law. First, as detailed
above, Plaintiff’s lawsuit is “without merit.” Id. Second, this
lawsuit arises out of Defendants’ exercise of their
“constitutional right of free speech in connection with a public
issue” because the News Report constitutes a “written or oral
statement that is protected under applicable law,” and was
“made in or in connection with” an “audiovisual work . . . news

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report, or other similar work. Id. § 768.295(2)(a). Under the
anti-SLAPP law, an award of reasonable attorneys’ fees and
costs is mandatory in these circumstances. See id. §
768.295(4) (“The Court shall award the prevailing party
reasonable attorney fees and costs incurred in connection
with a claim that an action was filed in violation of this
section.”); see also Boling v. WFTV, LLC, 2018 Fla. Cir. LEXIS
1860 (Fla. Orange County Ct. Feb. 28, 2018).
(Doc. 104 at 10). Plaintiff asserts that on appeal he will show that the anti-SLAPP statute
is not applicable to cases in federal court (where Federal Rules of Civil Procedure 12 and
56 should be applied) and “Defendants failed to show that the suit was based on some
activity that would qualify as an exercise of the [Defendants] First Amendment right.”
(Doc. 133 at 8-9).
Contrary to Plaintiff’s assertions, the law is clear that Florida’s anti-SLAPP statute
is a “supplement,” not a substitute for the federal rules. Davis v. McKenzie, 2017 U.S.
Dist. LEXIS 183519, at*7-8 (S.D. Fla. Nov. 3, 2017). Moreover, the Court’s dismissal of
Plaintiff’s claim was only partly based on Florida’s anti-SLAPP statute (Doc. 104 at 10).
The Court also determined that dismissal was warranted because (1) Plaintiff failed to
sustain a cause of action for defamation under Florida law, and (2) Plaintiff’s intentional
infliction of emotional distress claim violated Florida’s single action rule and was therefore
insufficient (Id. at 5-10).
Plaintiff has failed to demonstrate that his challenge to the applicability of Florida’s
anti-SLAPP statute is likely to result in the appeals court overturning the dismissal order.
So, Plaintiff has failed to show the likelihood of his successful challenge to the merits of
the district court’s order.
This Court also rejects Plaintiff’s contention that he is likely to succeed on his
argument that he was denied a rightful opportunity to amend his complaint. The district

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judge addressed the possibility of amendment in the dismissal order and determined that
“due to the deficiencies exhibited in Plaintiff’s Complaint, amendment would be futile
because the underlying facts are incapable of stating a defamation claim.” (Id. at 11)
(citing Corsello v. Lincare, Inc., 428 F.3d 1008, 1014 (11th Cir. 2005)). The district court
enjoys “extensive discretion” in deciding whether to grant a plaintiff leave to amend when
the amendment would be futile. Quillet v. Jain, 2013 WL 12385345, at *2 (M.D. Fla. Sept.
17, 2013) (citing Campbell v. Emory Clinic, 166 F.3d 1157, 1162 (11th Cir. 1999)). On this
record, Plaintiff has not shown that he is likely to succeed in his challenge to the Court’s
exercise of discretion.
Accordingly, this factor weighs against Plaintiff.

2. Likelihood of Irreparable Injury
Plaintiff argues that he will sustain irreparable harm if the Court refuses to stay the
judgment pending his appeal (Doc. 133 at 12-13). Plaintiff explains that enforcement of
the judgment would render him bankrupt (Id. at 13). He maintains that to enforce the
$139,974.24 judgment, Defendants would be required to seize his assets; examine him in
court to locate unknown assets; suspend his driver’s license; suspend his professional
license; and place a lien on his “land, buildings, or residence” (Id.). Plaintiff’s assertions
are insufficient. Plaintiff has not explained why his driver’s license would be suspended or
why the imposition of the judgment would affect any professional licenses he may
possess (the Court is unaware of any). Plaintiff has also not demonstrated that he owns
any land, buildings or residence or why, if he has a residence, it is not protected by the
Florida homestead exemption. Consequently, Plaintiff has failed to satisfy his burden of
providing specific proof in support of his conclusions. See FTC v. Publishing Clearing

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House, CV-S094-623-PMP (LRL), 1995 U.S. Dist. LEXIS 21150, at * (D. Nev. July 12,
1995). This factor weighs against Plaintiff.

3. Remaining Hilton Factors
Plaintiff has failed to address the remaining Hilton factors, and has therefore failed
to meet his burden of proving that the Court should stay the execution of a judgment. See
Hand v. Scott, 888 F.3d 1206, 1221 (11th Cir. 2018).
For the foregoing reasons, Plaintiff’s motion to stay the judgment is DENIED.
DONE and ORDERED in Orlando, Florida on July 1, 2019.

Copies furnished to:
Counsel of Record
Pro se Plaintiff

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