MCLEOD v. INGRAM et al

Filing 48

ORDER granting 44 Motion to Dismiss. Ordered by US DISTRICT JUDGE HUGH LAWSON on 12/14/2017. (aks)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
VALDOSTA DIVISION

RICHARD JERRY MCLEOD,
Plaintiff,
v.

Civil Action No. 7:16-CV-185 (HL)

BILLY INGRAM, ET AL.,
Defendants.

ORDER
Before the Court is Defendant Rob Oglesby’s Motion to Dismiss (Doc. 44).
Defendant Rob Oglesby d/b/a Nate’s Honor Animal Shelter files this Motion on
behalf of himself and specially appearing for Fran Oglesby. For the following
reasons, Defendants’ motion is GRANTED.
I.

BACKGROUND

Plaintiff Jerry McLeod filed a pro se Complaint in this Court on October 11,
2016. (Doc. 1). Because Mr. McLeod is proceeding in forma pauperis, the Court
conducted a preliminary review of Plaintiff’s Complaint, as required by 28 U.S.C. §
1915A(a). Of relevance to the pending motion are the defamation claims which this
Court allowed to proceed against Defendants Rob and Fran Oglesby.
II.

DISCUSSION

Defendants move to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), arguing that
because Georgia’s long-arm statute specifically excludes defamation claims, this

Court lacks personal jurisdiction and dismissal of the claims against them is
warranted.
A. Claims Against Fran Oglesby
Plaintiff has sued Fran Oglesby as a Defendant in the above-styled matter. In
Defendants’ Motion to Dismiss (Doc. 44) it is asserted that they “are unaware of
the existence of a Fran Oglesby related to or involved with Nate’s Place, but
respond in an abundance of caution.” (Doc. 44, p. 1 n.1). However, whether or not
Fran Oglesby exists in relation to this action is immaterial, as Federal Rule of Civil
Procedure 4(m) states that a defendant that is not served within 90 days after the
complaint is filed is due to be dismissed. See Fed. R. Civ. P. 4(m). Here, dismissal
is appropriate because the docket reflects that Defendant Fran Oglesby has not
yet been served even though the 90-day window for service passed long ago. Even
if Defendant Fran Oglesby had been timely served, however, dismissal would still
be warranted for the reasons explained below. Thus, all remaining claims against
Fran Oglesby are DISMISSED.
B. Burden of Proof
In the context of a motion to dismiss for lack of personal jurisdiction in which
no evidentiary hearing is held, the plaintiff bears the burden of establishing a prima
facie case of jurisdiction over the nonresident defendant. Morris v. SSE, Inc., 843
F.2d 489, 492 (11th Cir. 1988). If, however, the defendant submits affidavits
challenging the allegations in the complaint, the burden shifts back to the plaintiff
to produce evidence supporting jurisdiction. Diamond Crystal Brands, Inc. v. Food
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Movers Intern., Inc., 593 F.3d 1249, 1257 (11th Cir. 2010); Meier v. Sun Int'l Hotels,
Ltd., 288 F.3d 1264, 1269 (11th Cir. 2002). If the plaintiff’s complaint and
supporting evidence conflict with the defendant’s affidavits, the court must
construe all reasonable inferences in favor of the plaintiff. Madara v. Hall, 916 F.2d
1510, 1514 (11th Cir. 1990).
“A federal court sitting in diversity undertakes a two-step inquiry in determining
whether personal jurisdiction exists: the exercise of jurisdiction must (1) be
appropriate under the state long-arm statute and (2) not violate the Due Process
Clause of the Fourteenth Amendment to the United States Constitution.” Diamond
Crystal, 593 F.3d at 1257–58 (quoting United Techs. Corp. v. Mazer, 556 F.3d
1260, 1274 (11th Cir. 2009)). This two-step inquiry is necessary because the longarm statute does not provide jurisdiction to federal courts in Georgia that is
coextensive with procedural due process. Id. at 1259. Rather, the statute “imposes
independent obligations that a plaintiff must establish for the exercise of personal
jurisdiction that are distinct from the demands of procedural due process. Id. In
short, jurisdiction that might appear to be conferred by statute might be negated
by due process concerns, and vice versa. See id. at 1261.
C. Analysis
Defendant contends that this Court lacks personal jurisdiction over him
because Georgia’s long-arm statute does not reach defamation actions, and as
Nate’s Honor Animal Shelter (also referred to as Nate’s Place and Nate’s Patch)

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is located in Bradenton, Florida, there is no other basis for the court’s personal
jurisdiction over Defendant.
As the Eleventh Circuit has stated, Georgia’s long-arm statute actually
“imposes independent obligations that a plaintiff must establish for the exercise of
personal jurisdiction that are distinct from the demands of procedural due process.”
Diamond Crystal, 593 F.3d at 1259. Thus, a defendant must have not only the
minimum contacts necessary to satisfy due process, but must also fall under one
of the specific provisions of the long-arm statute in order for this Court to have
jurisdiction. Id. at 1260 (“It is beyond cavil that the exercise of personal jurisdiction
in Georgia requires a court to find that at least one prong of the long-arm statute
is satisfied.”).
Subsection (2) of Georgia’s long-arm statute permits jurisdiction over a nonresident who “[c]ommits a tortious act or omission within [Georgia], except as to a
cause of action for defamation of character arising from the act.” O.C.G.A. § 9-1091(2). “The language of the statute is clear, unequivocal and unambiguous in
mandating the exclusion of an action predicated on defamation.” Worthy v. Eller,
265 Ga. App. 487, 488 (2004) (citation omitted).
Plaintiff’s only remaining claims against Defendant Rob Oglesby are
allegations of defamation in the form of slander. Plaintiff alleges that Rob Oglesby
made disparaging statements during a press conference at Rob Oglesby’s animal
shelter. Specifically, Plaintiff claims that Defendant stated that the dogs seized
from Plaintiff’s property were starving, that Plaintiff was mentally ill, and that
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Plaintiff was guilty of operating a puppy mill. Plaintiff claims that these statements
were false, that Defendant knew they were false, and that the statements caused
damage to Plaintiff. However, because Plaintiff alleges no other cause of action
against Defendant, Georgia’s long-arm statute does not permit this Court to have
personal jurisdiction over Defendant.
i.

Plaintiff’s Evidence of Jurisdiction

Plaintiff appears to allege in his response to Defendant’s Motion to Dismiss
(Doc. 47) that Defendant Nate’s Honor Animal Shelter has sufficient contacts with
the state of Georgia so as to allow the Court to exercise personal jurisdiction under
other provisions of Georgia’s long-arm statute. Specifically, Plaintiff argues that
Defendant satisfies the minimum contact requirement by receiving dogs from the
Thomasville-Thomas County Humane Society, which is located in Thomasville,
Georgia. Additionally, Plaintiff argues that “the Georgia Animal Protection Act
specifically mandates that defendant is subject to personal jurisdiction in the
Georgia Courts.” (Doc. 47, p. 7). The Court disagrees with both arguments.
Subsection (1) of Georgia’s long-arm statute would permit jurisdiction if the
Plaintiff’s claims arise out of the Defendant’s “transact[ion] of any business within
[Georgia].” Diamond Crystal, 593 F.3d at 1264 (alteration in original) (citing
O.C.G.A. § 9-10-91(1)). To “transact[] any business,” Defendant must have
“purposefully done some act or consummated some transaction” in Georgia.
Diamond Crystal, 593 F.3d at 1260 (quoting Aero Toy Store, LLC v. Grieves, 279
Ga. App. 515, 517 (2006). “‘Transact’ means ‘to prosecute negotiations,’ to ‘carry
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on business,’ ‘to carry out,’ or ‘to carry on.’” Id. But Plaintiff’s claims are not based
on any such transactions; rather, they are based on Defendant’s statements
allegedly made during an interview with a local Florida news station. Because
Plaintiff has failed to show that his defamation claim arises out of or is connected
to the Defendant’s business transactions in Georgia, the Court cannot exercise
personal jurisdiction under subsection (1) of Georgia’s long-arm statute.
Subsection (3) of Georgia’s long-arm statute permits jurisdiction over a
nonresident who “[c]ommits a tortious injury in this state caused by an act or
omission outside this state if the tort-feasor regularly does or solicits business, or
engages in any other persistent course of conduct, or derives substantial revenue
from goods used or consumed or services rendered in this state.” O.C.G.A. § 910-91(3). Defendant’s news interview is the only act which Plaintiff alleges has
caused tortious injury in Georgia.
As an initial matter, for this Court to have jurisdiction over Defendant under
subsection (3) of the long-arm statute, the tortious injury must have been
committed within the state. “A tortious act occurs either where the allegedly
negligent act or omission was made . . . or where the damage was sustained.”
Exceptional Marketing Group, Inc. v. Jones, 749 F. Supp. 2d 1352, 1363 (N.D. Ga.
2010) (citation omitted). Plaintiff has failed to show or even allege that Defendant’s
defamatory comments made during an interview with a Florida news station were
targeted towards, or even reached residents of the state of Georgia. The fact that
the interview may have been accessible to residents of Georgia via the internet is
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insufficient to “commit[] a tortious injury in this state” for purposes of personal
jurisdiction. O.C.G.A. § 9-10-91(3). Although Plaintiff is located in Georgia and
states that he “is suffering extreme mental anguish, anxiety and depression as
result of the vilification by Oglesby in these acts of defamation,” this statement,
without more, cannot support a finding that either a tort or damage resulting from
the tort occurred within the state. (Doc. 47, p. 5).
Further, even if the Court were to accept that a tortious injury had been
committed by Defendant in Georgia, Plaintiff has not met the second requirement
of subsection (3) by showing that Defendant has engaged in “regular,” “persistent,”
or “substantial” contact with Georgia. In a recent decision, the Northern District of
Georgia analyzed whether an out-of-state defendant had “transact[ed] any
business” in Georgia for purposes of personal jurisdiction. Kason Industries, Inc.
v. Dent Design Hardware, Ltd., 952 F. Supp. 2d 1334 (N.D. Ga. 2013). In holding
that it had not, the court noted that the defendant “has no offices, manufacturing
plants, or distribution facilities in Georgia, and it has never been registered to do
business here”; “it has no employees, distributors or sales representatives residing
or working in Georgia, and it pays no taxes here”; and it “does not target Georgia
through print, television, radio or Internet advertising.” Id. at 1345. The same is true
here. That Defendant has received dogs from Georgia at his shelter located in
Florida does not constitute a business transaction within the state of Georgia
simply because the dogs were sent from Georgia. Nor does receipt of money from

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the adoption of dogs that may have come to Defendant’s shelter from Georgia
constitute transacting business with Georgia as Plaintiff attempts to argue.
Lastly, Plaintiff’s argument that the Georgia Animal Protection Act gives this
Court a basis for personal jurisdiction is in error. Plaintiff states “O.C.G.A. § 4-116 and O.C.G.A. § 4-11-1 require that any animal Rescue organization receiving
dogs from a Georgia animal shelter must sign a ‘Consent to Jurisdiction’ form
agreeing that they will subject themselves to the jurisdiction of any court in any
county in the State of Georgia.” (Doc. 47, p. 6). However, the Georgia Animal
Protection Act is inapposite to the determination of personal jurisdiction in a federal
court. Further, the Georgia Animal Protection Act is inapplicable to Defendant as
it does not apply to animal shelters that are both located and operating outside the
state. Even if Defendant did operate within the state, however, the Act would still
be inapplicable as O.C.G.A. § 4-11-6 states that nonresidents who execute a
consent to jurisdiction are consenting only “for any action filed under this article.”
(emphasis added). As Plaintiff’s claims against Defendant are for defamation, the
action is not one filed under the Georgia Animal Protection Act, and the consent to
jurisdiction would not apply. Therefore, Plaintiff’s arguments based upon
provisions of the Georgia Animal Protection Act must fail.
Thus, Plaintiff has failed to meet his burden in producing evidence supporting
jurisdiction. As Plaintiff’s sole cause of action against Defendant is slander in the
form of defamation, the language of the long-arm statute is clear in mandating the
exclusion of the claim from this Court’s jurisdiction, which warrants dismissal.
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Accordingly, this Court concludes that it cannot exercise personal jurisdiction over
Defendant Rob Oglesby d/b/a Nate’s Honor Animal Shelter.
Because the Court finds that personal jurisdiction is not proper under Georgia’s
long-arm statute, the court need not analyze whether Defendant’s contacts with
the state satisfy the due process clause of the Fourteenth Amendment.
III.

CONCLUSION

For the reasons set forth above, this Court finds that no provision of Georgia’s
long-arm statute confers jurisdiction over Defendant. Defendant’s motion to
dismiss (Doc. 44) is GRANTED.
SO ORDERED this 14th day of December, 2017.

s/ Hugh Lawson________________
HUGH LAWSON, SENIOR JUDGE
ehm

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