Henriquez v. El Pais Q'Hubocali.com et al

Filing 33

ORDER GRANTING 9 Defendants Motion to Dismiss Pursuant to Federal Rule of Civil Procedure 12(b)(2). The Court DENIES as moot all other motions, namely: Plaintiffs 10 Request for Entry of Default; Plaintiffs 15 Motion to Call a Conference Pursua nt to Federal Rule of Civil Procedure 26(f)(1); Plaintiffs 19 Motion to Reaffirm or Declare, Invocate and Establish and Assert Personal Jurisdiction over Defendants Pursuant to 28 U.S.C. § 1331, 28 U.S.C. § 1332(a)(2), 28 U.S.C. § 13 91(a)(2), and Federal Rule of Civil Procedure 4(k)(1)(A), O.C.G.A. § 9-10-91(3) or Federal Rule of Civil Procedure 4(k)(2); Plaintiffs 21 Motion for Leave to File Amended Complaint Pursuant to Federal Rule of Civil Procedure 15(a)(2); Plaintif fs 24 Motion to Compel Disclosure Pursuant to LR 37.1 and Federal Rule of Civil Procedure 37(a)(3)(A); Plaintiffs 30 Motion for Summary Judgment; and, finally, Defendants 32 Motion to Stay Proceedings Pending Ruling on Defendants [sic] Motion to Dismiss. Signed by Judge Richard W. Story on 2/21/2012. (vld)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
GAINESVILLE DIVISION
CARLOS H. HENRIQUEZ,
Plaintiff,
v.
EL PAIS Q’HUBOCALI.COM,
RODRIGO LLOREDA MENA,
ALFREDO DOMINGUEZ
BORRERO, and MARIA LUCIA
LLOREDA GARCES,
Defendants.

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CIVIL ACTION NO.
2:11-CV-191-RWS

ORDER
This case comes before the Court on Defendants’ Motion to Dismiss
Plaintiff’s Complaint Pursuant to Federal Rules of Civil Procedure 12(b)(2) and
12(b)(6) [9]; Plaintiff’s Request for Entry of Default [10]; Plaintiff’s Motion to
Call a Conference Pursuant to Federal Rule of Civil Procedure 26(f)(1) [15];
Plaintiff’s Motion to Reaffirm or Declare, Invocate and Establish and Assert
Personal Jurisdiction over Defendants Pursuant to 28 U.S.C. § 1331, 28 U.S.C.
§ 1332(a)(2), 28 U.S.C. § 1391(a)(2), and Federal Rule of Civil Procedure
4(k)(1)(A), O.C.G.A. § 9-10-91(3) or Federal Rule of Civil Procedure 4(k)(2)
[19]; Plaintiff’s Motion for Leave to File Amended Complaint Pursuant to

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Federal Rule of Civil Procedure 15(a)(2) [21]; Plaintiff’s Motion to Compel
Disclosure Pursuant to LR 37.1 and Federal Rule of Civil Procedure
37(a)(3)(A) [24]; Plaintiff’s Motion for Summary Judgment [30]; and, finally,
Defendants’ Motion to Stay Proceedings Pending Ruling on Defendant’s [sic]
Motion to Dismiss [32].
After considering the Record, the Court enters the following Order.
Background
This is an action for defamation arising out of statements made in online
newspapers owned and/or operated by Defendants–all of whom are citizens of
Colombia. (See generally Compl., Dkt. No. [1].) As stated in the Complaint,
Defendant El Pais Q’Hubocali.com is a corporation incorporated under the laws
of Colombia and having its principal office in Cali-Valle, Colombia. (Id. ¶ 5;
see also Br. in Supp. Pl.’s Resp. in Opp’n to Def.’s Mot. to Dismiss (“Pl.’s
Opp’n”), Dkt. No. [12-1] at 2 (“El Pais and el Q’Hubo are two newspapers that
circulate daily in hard copy and on the Internet . . . .”).) The individual
Defendants are citizens and residents of Colombia. (Pl.’s Opp’n, Dkt. No. [121] at 2.) Plaintiff is a resident of the state of Georgia. (Compl., Dkt. No. [1] ¶

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4.) Defendants have moved to dismiss for lack of personal jurisdiction pursuant
to Federal Rule of Civil Procedure 12(b)(2).1
Discussion
I.

Defendants’ Motion to Dismiss Pursuant to Federal Rule of Civil
Procedure 12(b)(2) [9]2
Plaintiff alleges personal jurisdiction over Defendants on grounds that

“the false and defamatory statements made by Defendants were published in
hard copy and the Internet at Web Page of Defendants that is seen in Georgia
and the Plaintiff-target of the defamatory statement was and remains a resident

1

If the Court finds personal jurisdiction to be lacking, it must dismiss the suit
and cannot consider the merits of Plaintiff’s claims or the other motions before the
Court. See Read v. Ulmer, 308 F.2d 915, 917 (5th Cir. 1962) (“It would seem
elementary that if the Court has no jurisdiction over a defendant, the defendant has an
unqualified right to have an order granting its motion to dismiss.”). (In Bonner v. City
of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the court adopted as
binding precedent all decisions of the former Fifth Circuit decided before October 1,
1981.)
2

The Court notes that Defendants also move to dismiss for failure to state a
claim upon which relief can be granted, pursuant to Rule 12(b)(6). However, courts
are to rule on jurisdictional issues before considering the merits of a complaint.
Posner v. Essex Ins. Co., 178 F.3d 1209, 1214 (11th Cir. 1999) (“[A] court should
decide a 12(b)(2) motion to dismiss before a 12(b)(6) motion because ‘a court without
[12(b)(2)] jurisdiction lacks power to dismiss a complaint for failure to state a
claim.’”) (quoting Arrowsmith v. United Press Int’l, 320 F.2d 219, 221 (2d Cir.
1963)). Thus, the Court first considers Defendants’ Motion to Dismiss on 12(b)(2)
grounds.
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of the State of Georgia.” (Compl., Dkt. No. [1] ¶ 2.) This is the only allegation
concerning personal jurisdiction that can be found in the Complaint.
Defendants argue that Georgia’s long-arm statute, O.C.G.A. § 9-10-91, does not
authorize the assertion of jurisdiction over these Defendants, and thus that the
Court must dismiss the suit for lack of personal jurisdiction. (Defs.’ Br. in
Supp. Defs.’ Mot. to Dismiss (“Defs.’ Mot. to Dismiss”), Dkt. No. [9-1] at 2-5.)
In response, Plaintiff argues that personal jurisdiction is authorized under the
long-arm statute, specifically, under Section 9-10-91(3). (Pl.’s Opp’n, Dkt. No.
[12-1] at 3.)
When a federal court sits in diversity, it properly may exercise personal
jurisdiction over the defendant “only if two requirements are met: (1) the state
long-arm statute, and (2) the Due Process Clause of the Fourteenth
Amendment.” Posner v. Essex Ins. Co., 178 F.3d 1209, 1214 (11th Cir. 1999).
Thus, the Court uses a “two-step inquiry in determining whether the exercise of
personal jurisdiction over a non-resident defendant is proper.” Internet
Solutions Corp. v. Marshall, 557 F.3d 1293, 1295 (11th Cir. 2009). First,
courts must consider whether the exercise of personal jurisdiction of the
defendant would comport with Georgia’s long-arm statute. Id. If so, courts
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then consider whether the defendant has sufficient minimum contacts with the
state such that the exercise of jurisdiction would not offend Due Process notions
of “fair play and substantial justice.” Id. (citation omitted). Finally, “‘[a]
plaintiff seeking the exercise of personal jurisdiction over a nonresident
defendant bears the initial burden of alleging in the complaint sufficient facts to
make out a prima facie case of jurisdiction.’” Scutieri v. Chambers, 386 F.
App’x 951, 956 (11th Cir. 2010) (emphasis in original) (quoting United Techs.
Corp. V. Mazer, 556 F.3d 1260, 1274 (11th Cir. 2009)). However, motions to
dismiss for lack of personal jurisdiction filed at the pleading stage should be
“treated with caution” and granted only if the plaintiff has failed to allege
“sufficient facts . . . to support a reasonable inference that the defendant can be
subjected to jurisdiction . . . .” Bracewell v. Nicholson Air Servs., Inc., 680
F.2d 103, 104 (11th Cir. 1982).
Under the Georgia long-arm statute, “A court of this state may exercise
personal jurisdiction over any nonresident . . . as to a cause of action arising
from any of the acts . . . enumerated in this Code section, in the same manner as
if he or she were a resident of this state, if in person or though an agent, he or
she:
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(1)

Transacts any business within this state;

(2)

Commits a tortious act or omission within this state, except
as to a cause of action for defamation of character arising
from the act;3 [or]

(3)

Commits 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
cource of conduct, or derives substantial revenue from
goods used or consumed or services rendered in this state . .
. .4

O.C.G.A. § 9-10-91 (emphasis added). As stated above, Plaintiffs contend that
personal jurisdiction over Defendants is proper in this case pursuant to subsection (3) of this statute. (Pl.’s Opp’n, Dkt. No. [12-1] at 3.)
Under the plain language of this provision, however, personal jurisdiction
may be exercised over a non-resident defendant only where that defendant
“regularly does or solicits business,” “engages in any other persistent source of
conduct,” or “derives substantial revenue from goods used or consumed or

3

As this provision explicitly does not apply to defamation actions, it is clearly
inapplicable in this case.
4

The other provisions of this code section, §§ 9-10-91(4)-(6), are not relevant
to this action as they pertain to ownership of real property (sub-section (4)) and to
domestic relations (subsections (5) and (6)).
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services rendered in” the state of Georgia. Plaintiff has alleged no facts in the
Complaint showing that Defendants do or have done any of these things in
Georgia. As stated above, the only factual allegations raised in the Complaint
regarding personal jurisdiction are that Defendants, in the country of Colombia,
published the allegedly defamatory statements on a website that is accessible
from Georgia and that Plaintiff is a resident of Georgia. (Dkt. No. [1] ¶ 2.)
These allegations are plainly insufficient to raise a reasonable inference that
Defendants are subject to personal jurisdiction under sub-section (3) of the
long-arm statute.5
Having found that personal jurisdiction is not permitted under Georgia’s
long-arm statute, the Court need not consider whether the exercise of
jurisdiction would comport with federal due process. Accordingly, the Court
hereby GRANTS Defendants’ 12(b)(2) Motion to Dismiss.6 In light of this
ruling, the Court DENIES as moot all other motions before the Court.

5

They are similarly insufficient to establish jurisdiction under sub-section (1).

6

The Court notes that it has considered the additional allegations of fact raised
in Plaintiff’s proposed Amended Complaint [21-1], which do not alter the Court’s
conclusion that personal jurisdiction is lacking in this case.
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Conclusion
In accordance with the foregoing, the Court hereby GRANTS
Defendants’ Motion to Dismiss Pursuant to Federal Rule of Civil Procedure
12(b)(2) [9].
The Court DENIES as moot all other motions, namely: Plaintiff’s
Request for Entry of Default [10]; Plaintiff’s Motion to Call a Conference
Pursuant to Federal Rule of Civil Procedure 26(f)(1) [15]; Plaintiff’s Motion to
Reaffirm or Declare, Invocate and Establish and Assert Personal Jurisdiction
over Defendants Pursuant to 28 U.S.C. § 1331, 28 U.S.C. § 1332(a)(2), 28
U.S.C. § 1391(a)(2), and Federal Rule of Civil Procedure 4(k)(1)(A), O.C.G.A.
§ 9-10-91(3) or Federal Rule of Civil Procedure 4(k)(2) [19]; Plaintiff’s Motion
for Leave to File Amended Complaint Pursuant to Federal Rule of Civil
Procedure 15(a)(2) [21]; Plaintiff’s Motion to Compel Disclosure Pursuant to
LR 37.1 and Federal Rule of Civil Procedure 37(a)(3)(A) [24]; Plaintiff’s
Motion for Summary Judgment [30]; and, finally, Defendants’ Motion to Stay
Proceedings Pending Ruling on Defendant’s [sic] Motion to Dismiss [32].

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SO ORDERED, this 21st day of February, 2012.

________________________________
RICHARD W. STORY
United States District Judge

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