HOWARD v NANO

Filing 34

ORDER denying 28 Motion for Reconsideration ; denying 30 Motion for Leave to File. Signed by CHIEF JUDGE M CASEY RODGERS on August 25, 2012. (aow)

Page 1 of 6

UNITED STATES DISTRICT COURT FOR
THE NORTHERN DISTRICT OF FLORIDA
PENSACOLA DIVISION

RUSTIN HOWARD,
Plaintiff,

v.

Case No. 3:11cv366/MCR/CJK

JOHN B. NANO,
Defendant.
__________________________/
ORDER
Pending before the court is the plaintiff’s timely filed motion for relief from judgment
or to alter and amend the judgment (doc. 28), which the defendant opposes (doc. 29).1
See Fed. R. Civ. P. 60(b) & 59(e). Additionally, pursuant to the court’s request, the parties
have submitted briefs regarding the existence of the requisite amount in controversy for
subject matter jurisdiction. (See docs. 32 & 33). The court has now fully considered the
matter.
Motions to alter or amend a final judgment under Rule 59(e) are disfavored and
granted sparingly; relief is given only where there is newly-discovered evidence or to
correct manifest errors of law or fact upon which the judgment was based. See Krstic v.
Princess Cruise Lines, Ltd. (Corp.), 706 F. Supp. 2d 1271, 1282 (S.D. Fla. 2010); see also
11 CHARLES ALAN W RIGHT , ARTHUR R. MILLER , & MARY KAY KANE, FEDERAL PRACTICE AND
PROCEDURE § 2810.1 (2d ed. 1995). Even if errors have been committed, if the issues are
at least arguable, such errors do not constitute “the sort of clear and obvious error which

1

The plaintiff also requested leave to file a reply m em orandum , which the court now denies. The
court is satisfied that the m atter has been sufficiently briefed and that a reply is not necessary to aid the court’s
determ ination.

Case No. 3:11cv366/MCR/CJK

Page 2 of 6

the interests of justice demand that [the court] correct.” Am. Home Assur. Co. v. Glenn
Estess & Assocs., Inc., 763 F.2d 1237, 1239 (11th Cir. 1985). Moreover, a Rule 59(e)
motion may not be used to re-litigate old matters or to present new arguments or evidence
that could have been presented prior to judgment being entered. See Discrete Wireless,
Inc. v. Coleman Techs., Inc., 422 Fed. Appx. 777, 779 (11th Cir. 2011). The standard
generally is the same with regard to a Rule 60(b) motion, which typically is granted only to
correct a mistake of law or fact, see Fed. R. Civ. P. 60(b)(1); Nisson v. Lundy, 975 F.2d
802, 806 (11th Cir. 1992), but can prompt reconsideration for any “reason that justifies
relief,” see Fed. R. Civ. P. 60(b)(6).
In the complaint, the plaintiff alleged he and the defendant were members of the
board of directors for a company and the defendant was the chairman of the board and
president of the company.

The plaintiff alleged that the defendant had sent email

communications to other board members and the Securities and Exchange Commission
(“SEC”), making false accusations that the plaintiff was engaged in insider trading. Plaintiff
alleged that the statements constituted libel per se, which harmed his professional
reputation and his business interests in Florida.2 The court dismissed this cause of action
with prejudice (doc. 26), finding that the allegations and subsequently submitted affidavits
and exhibits related to the personal jurisdiction issue did not provide a basis for personal
jurisdiction because the email communications were not sent into, or accessed in, Florida.
Final judgment was entered the same day (doc. 27).
Plaintiff now argues that the court committed an error of law in determining that
personal jurisdiction was lacking, specifically contending that this court did not recognize
the Eleventh Circuit’s precedent of broadly construing Florida’s long-arm statute to apply
to defendants who commit torts outside the state that cause injury in Florida. The plaintiff
also argues that the court erroneously applied the Florida long-arm statute and the Florida
Supreme Court’s decision in Internet Solutions Corp. v. Marshall, 39 So. 3d 1201 (Fla.

2

In the com plaint, the plaintiff also alleged a claim of intentional infliction of em otional distress, but
the plaintiff has not argued for reconsideration with regard to that claim .

Case No. 3:11cv366/MCR/CJK

Page 3 of 6

2010), to conclude that personal jurisdiction was lacking where a Florida resident claimed
injury from a tort committed out of the state.
Contrary to the plaintiff’s contention, the court’s order did recognize that the
Eleventh Circuit has broadly and consistently “held that § 48.193(1)(b) permits jurisdiction
over the non-resident defendant who commits a tort outside of the state that causes injury
inside the state.” Licciardello v. Lovelady, 544 F.3d 1280, 1283 (11th Cir. 2008) (citing
Posner v. Essex Ins. Co., 178 F.3d 1209, 1216 (11th Cir. 1999)). However, the Eleventh
Circuit also has recognized that personal jurisdiction over a nonresident who commits a tort
outside of the state is conferred on the basis of injury in the state of Florida only “in certain
instances” where the requisite “connexity” is shown between the cause of action and a
communication “into Florida.” Horizon Aggressive Growth, L.P. v. Rothstein-Kass, P.A.,
421 F.3d 1162, 1168 (11th Cir. 2005) (citing Wendt v. Horowitz, 822 So. 2d 1252, 1253 n.2
(Fla. 2002) (holding that an electronic communication into the state triggers the long-arm
statute); and Acquadro v. Bergeron, 851 So. 2d 665, 671 (Fla. 2003) (holding jurisdiction
existed where out-of-state resident defamed a Florida resident during a phone call made
into Florida)).3 A communication into Florida is absent in this case.
Also, as the plaintiff recognizes, application of the Florida long-arm statute is a
matter of state law, and federal courts must construe state law as would the state’s
supreme court. See Lockard v. Equifax, Inc., 163 F.3d 1259, 1265 (11th Cir. 1998). The
Florida Supreme Court in Internet Solutions concluded that an out-of-state resident’s
actions of posting an allegedly defamatory comment on a website constituted an electronic
communication into Florida and thus was a tortious act in Florida where the website was
not only accessible but actually accessed in Florida, reasoning that the tort of defamation

3

See also Casita, L.P. v. Maplewood Equity Partners L.P., 960 So. 2d 854, 857 (Fla. 3d DCA 2007)
(holding personal jurisdiction was lacking where defam ation was com m itted outside of Florida but injured a
resident because the tort of defam ation is com m itted in the place where it is published, distinguishing other
cases as involving torts with som e aspect of them taking place in Florida); Korman v. Kent, 821 So. 2d 408,
410-11 (Fla. 4th DCA) (“The gist of the action for defam atory falsehood lies in the publication of the falsehood,
not in the m ere m aking of it.”), rev. dismissed, 829 So. 2d 918 (Fla. 2002).

Case No. 3:11cv366/MCR/CJK

Page 4 of 6

requires publication and that it occurs where the defamatory material is published.4 See
Internet Solutions, 39 So. 2d at 1214-16. Although the Florida Supreme Court noted in that
case that it had not been asked to consider and thus did not comment on whether injury
to a resident alone satisfies the long-arm statute, see id. at 1206 n.6, the distinction drawn
between communications accessible and communications actually accessed in Florida,
emphasizes that personal jurisdiction based on torts arising from communications by
nonresidents not present in the state must involve communications into Florida. There
would be no need for the distinction drawn in Internet Solutions between internet sites
accessed or merely accessible if presumed injury to a Florida resident from defamation per
se over the internet satisfied the Florida long-arm statute regardless of where publication
occurred. See generally Jackson-Bear Group, Inc. v. Amirjazil, No. 2:10cv332, 2011 WL
1232985, at *5-6 (M.D. Fla. 2011) (considering Internet Solutions and noting that the
posting of defamatory material alone did not satisfy the long-arm statute). The Eleventh
Circuit has recognized this as well. See Internet Solutions Corp. v. Marshall, 611 F.3d
1368, 1370 (11th Cir. 2010) (applying the Florida Supreme Court’s answer to its certified
question); see also Horizon Aggressive Growth, 421 F.3d at 1168 & n.7 (citing with
approval Korman v. Kent, 821 So. 2d 408, 411 (Fla. 4th DCA 2002), for the proposition that
the Florida Supreme Court’s precedent in Wendt, which found personal jurisdiction based
on a communication into Florida, cannot be construed to grant jurisdiction under Fla. Stat.
§ 48.193(1)(b) “in every situation where a tort was completed out-of-state but caused injury
in Florida”).
In dismissing the present suit, this court did not ignore Eleventh Circuit precedent
but instead acknowledged it and found that Florida law in this unique context requires
publication in Florida through a communication into Florida in order to satisfy the long-arm
4

The Eleventh Circuit’s case of Licciardello v. Lovelady, 544 F.3d 1280 (11th Cir. 2008), in which the
court held that accessibility of a website in Florida was sufficient for purposes of the long-arm statute, involved
a tradem ark infringem ent by a nonresident placing infringing m aterial on a website that was accessible in
Florida, and the tradem ark owner resided in Florida. Licciardello was decided two years prior to the Florida
Suprem e Court’s decision in Internet Solutions clarifying that a website with defam atory m aterial m ust be
accessible and actually be accessed in Florida to satisfy the long-arm statute. See Internet Solutions Corp.
v. Marshall, 611 F.3d 1368, 1370 (11th Cir. 2010) (applying the answer to its certified question).

Case No. 3:11cv366/MCR/CJK

Page 5 of 6

statute. The plaintiff has not demonstrated manifest error of fact or law to require
reconsideration of the personal jurisdiction issue.5

The complaint and other record

materials show that not one of the allegedly defamatory email communications was sent
into Florida or accessed in Florida. The court considered and addressed the plaintiff’s
arguments; no facts or law have changed; and the court did not misapprehend an
argument. It is not appropriate merely to ask the court to “rethink what the Court already
thought through – rightly or wrongly.” Z.K. Marine Inc. v. M/V Archigetis, 808 F. Supp.
1561, 1563 (S.D. Fla. 1992) (internal marks omitted). At best, even assuming the issue
at hand is arguable under Florida or Eleventh Circuit law, errors on issues that are arguable
are “not the sort of clear and obvious error which the interests of justice demand that [the
court] correct” on a motion to alter the judgment. Am. Home Assur. Co., 763 F.2d at 1239.
The court finds no valid ground for altering the judgment under Rule 59(e) or Rule 60(b).6
Accordingly,
1.

The motion for relief from judgment (doc. 28) is DENIED.

5

The plaintiff has also argued that the court com m itted error in holding alternatively that he did not
adequately plead the elem ent of actual dam ages. The plaintiff asserts that dam ages are presum ed as
defam ation per se where an allegedly false statem ent charged another with the com m ission of a crim e or
im proper business practices. See Spears v. Albertson’s, Inc., 848 So. 2d 1176, 1179 (Fla. 1st DCA 2003).
The court concludes that it is not necessary to reach this argum ent because even assum ing error, it was an
alternate holding which does not provide grounds to alter or am end the judgm ent in light of the court’s
conclusion that personal jurisdiction is lacking in this case under the long-arm statute analysis.
6

Additionally, even if personal jurisdiction were satisfied, the court finds that subject m atter
jurisdiction is lacking. The court requested briefing on the issue of subject m atter jurisdiction because the
com plaint alleges defam ation per se and resulting injury from the defam atory nature of the em ails without
alleging any facts dem onstrating injury. W hile this m ay be acceptable pleading for purposes of stating a claim
under Florida law, the court m ust be satisfied that its subject m atter jurisdiction is properly invoked. The
com plaint alleges no facts that could support a plausible inference that the court's jurisdictional am ount in
controversy is m et – there is no factual allegation of any particular injury to a Florida business interest; there
is no allegation that anyone in Florida was aware of the content of the em ail com m unications; and there is no
allegation that anyone at all knew the content of the em ails other than a handful of people on the board of the
com pany, which took no adverse action against the plaintiff, and the SEC, which undertook no investigation.
Thus, the court concludes that even if personal jurisdictional requirem ents were satisfied in this case, the
am ount in controversy requirem ent is not.

Case No. 3:11cv366/MCR/CJK

Page 6 of 6

2.

The motion for leave to file a reply (doc. 30) is DENIED.

DONE AND ORDERED on this 25th day of August, 2012.

s/

M. Casey Rodgers

M. CASEY RODGERS
CHIEF UNITED STATES DISTRICT JUDGE

Case No. 3:11cv366/MCR/CJK