Brannies v. Internet ROI, Inc.

Filing 27

ORDER denying 25 Motion to Compel. Signed by Magistrate Judge G. R. Smith on 12/4/2014. (loh)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
MICHAEL W. BRANNIES,
Plaintiff
Case No. CV414-155
INTERNET ROT, INC., D/B/A
AMERICAN OVERLOOK,
Defendant.

ORDER
In this defamation case plaintiff Michael W. Brannies contends that
defendant Internet ROT, Inc. (ROT) published an image falsely implying
that he had sexually assaulted a minor. Doc. 1-1, ¶11 5-11; doe. 7 at 1 . 1
The image could be seen by Georgia residents on the internet, doc. 1-1 ¶
8, though ROT says it was generated and internet-published in
Massachusetts. Doe. 26 at 6. Having removed the matter from state
court under diversity jurisdiction, doe. 1 at 2, ROT, an out-of-state

"On or about January 13, 2014, the Defendant on its webpage
http://americanoverlook.com published a picture of the Plaintiff above a heading
which claimed 'VIDEO: Homeless Man Does the Unthinkable to 10-Year-Old Girl in
Public.' The obvious inference is that the Plaintiff had committed an unthinkable
act against a 10 year old girl in public." Doc. 1-1 at 7. Brannies also raises an
intentional infliction of emotional distress claim. Id. at 8-9.
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resident, moves to dismiss for lack of personal jurisdiction and
insufficient service. Doc. 7. That motion is before the district judge.
Before the undersigned is plaintiff's motion to compel ROT to
respond to a jurisdictional discovery request. Doc. 25; see also doe. 19
(court order authorizing only "personal jurisdiction discovery"). To
establish personal jurisdiction over ROT based on its Georgia contacts,
doe. 25 at 4, Brannies wants data on ROT's website pricing for thirdparty advertisers.

Id. at 9-10; doe. 29 at 3. He says he has shown

between 49,000 and 150,000 monthly ROT website visitors from Georgia.
Doc. 25 at 5 n. 6. And ROT has already admitted that it derives its
revenue from the sale of advertising on its site. Id. at 7.
ROT's website, plaintiff further maintains, "interacts with each
user, collecting information regarding all of the viewers, and translating
that information into income." Id. at 6. ROl's Georgia-based income,
Brannies insists, is relevant to the showing he must make under the
personal jurisdiction standards set forth below. He reminds that ROT
deliberately sends news and information onto the internet that it knows
will be viewed by Georgians, and those viewers fuel at least part of ROT's
ad revenue. Id. at 7-8. Ad revenue reflects viewer visit to ROT's site. Id.

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at 8. So pricing is relevant to establishing contacts with Georgia.

Id.

ROT disagrees. Doe. 29.
I. GOVERNING STANDARDS
A. Motions To Compel
The discovery rules "require the disclosure of all relevant
information so that ultimate resolution of disputed issues in any civil
action may be based on a full and accurate understanding of the true
facts. . . ." Gonzalez v. ETourandTravel, Inc., 2014 WL 1250034 at * 2
(M.D. Fla. Mar. 26, 2014) (quotes and cite omitted). Hence, "[t]he scope
of discovery under [Fed. R. Civ. P. 26(b)(1)] is broad and includes
'discovery regarding any matter, not privileged, which is relevant to the
claims or defense of any party involved in the pending action.' Hickman

v. Taylor, 329 U.S. 495, 507-08, 67 S. Ct. 385, 91 L. Ed. 451 (1947)." Id.
Those resisting discovery must "show specifically how the objected-to
request is unreasonable or otherwise unduly burdensome." Id.
Claims and defenses determine discovery's scope.

Chudasama v.

Mazda Mortor Corp., 123 F.3d 1353, 1368 (11th Cir. 1997). "Evidence is
relevant if it has any tendency to make the existence of any fact or
consequence more or less probable than it would be without the

3

evidence.' United States v. Capers, 708 F.3d 1286, 1308 (11th Cir. 2013)."
Gonzalez, 2014 WL 1250034 at * 2. Here, the principles by which
personal jurisdiction is established inform the relevancy determination of
ROT's pricing data.
B. Personal Jurisdiction
"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."
United Techs. Corp. v. Mazer, 556 F.3d 1260, 1274 (11th Cir. 2009);
Sterling Currency Group LLC v. Maurer, 2013 WL 4011063 at * 3 (N.D.
Ga. Aug. 5, 2013). Where Georgia's long-arm statute is invoked for that
purpose, the Court must first determine whether the exercise of
jurisdiction under it violates the Due Process Clause. Henriquez v. El
Pais Q'Hubocali.com, 500 F. Apptx 824, 827-28 (11th Cir. 2012). Finally,
"a district court may properly refuse or limit jurisdictional discovery if
the plaintiff has not made a sufficient showing that there may be a basis
for exercise of jurisdiction, or if the proposed discovery seems unlikely to
shed light on the jurisdictional question.' Cold Smoke Capital, LLC v.
Gross, No. 1:11—CV-3558—WSD, 2012 WL 3612626, at *8 (N.D.Ga. Aug.

IR

21 7 2012) (quoting
AND PROCEDURE §

CHARLES ALAN WRIGHT ET AL.,

8

FEDERAL PRACTICE

2008.3 (2010))." Maurer, 2013 WL 4011063 at *9•

Brannies relies on Georgia's long-arm statute to support personal
jurisdiction over ROT. He specifically invokes O.C.G.A. § 9-10-91(1) &
(3). Doc. 25 at 4. In pertinent part that statute provides:
A court. . . 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 through an agent,
he or she: (1) Transacts any business within this state; (2) Commits
a tortious act or omission within this state . . .; (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 course of conduct, or derives
substantial revenue from goods used or consumed or services
rendered in this state.
O.C.G.A. § 91091.2
When § 9-10-91(1) is invoked, the Court must "examine all of a
nonresident's tangible and intangible conduct and ask whether it can

2

When the tortious conduct occurs over an Internet website, "the situs of this tort is
considered to be where the website, or servers which maintain the website, are
located." Gucci Am., Inc. v. Frontline Processing Corp., 721 F.Supp.2d 228, 241
(S.D.N.Y. 2010); Jordan Outdoor Enterprises, Ltd. v. That 70's Store, LLC, 819
F.Supp.2d 1338, 1345 (M.D. Ga. 2011) ("Even if infringement occurred in Georgia as
a result of Georgia residents viewing the infringing marks on Defendants' websites
the conduct giving rise to the infringement occurred in Arkansas, where Defendants
created the websites."); Emory Group LLC v. ID Solutions, LLC, 2014 WL 1415021 at
* 3-4 (N.D. Ga. Apr. 10, 2014). Evidently ROl's servers are not located in Georgia,
which would explain why Brannies has not relied upon § 9-10-91(2).

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fairly be said that the nonresident has transacted any business within
Georgia." Diamond Crystal Brands, Inc. v. Food Movers Intern., Inc.,
593 F.3d 1249, 1264 (11th Cir. 2010). Also,
Subsection (1) applies to business transactions "conducted
through ... Internet contacts." ATCO Sign & Lighting Co., LLC
v. Stamm Mfg., Inc., 298 Ga.App. 528, 534, 680 S.E.2d 571
(2009); see also [Innovative Clinical & Consulting Servs., LLC v.
First Nat. Bank of Ames, 279 Ga. 672, 675 (2005)] ("[N]othing in
subsection (1) requires the physical presence of the nonresident
in Georgia or minimizes the import of a nonresident's intangible
contacts with the State."). The defendant must have
"purposefully done some act or consummated some transaction
in this state." Aero Toy Store, LLC v. Grieves, 279 Ga.App. 515,
517, 631 S.E.2d 734 (2006).
Emory Group LLC, 2014 WL 1415021 at * 2 (emphasis added). However,
"it is not enough to show that the [d]efendant transacted business in
Georgia. The [p]laintiff must also show that its cause of action arises out
of those transactions. See ATCO Sign & Lighting Co., 298 Ga. App. at
529, 680 S.E.2d 571 ('Jurisdiction exists if. . . the cause of action arises
from or is connected with the act or transaction.')." Id. at * 3.
In Emory Group LLC, where the plaintiff ("A") sued the defendant
("B," a non-state defendant) for selling trademark-infringing clothing, A
failed to establish personal jurisdiction because, even though two
customers bought B's merchandise in Georgia, A failed to show that they

31

purchased any of the infringing garments. A thus failed on the § 9-1091(1) ("Transacts any business within this state") jurisdictional peg. Nor
did A satisfy § 9-10-91(2) & (3). Id., 2014 WL 1415021 at *
II. ANALYSIS
ROT wasn't selling anything here. It merely published news
content viewable online by Georgians, and there is no allegation that its
servers, much less its publication's origin, were in Georgia. In

Henriquez, a Georgia resident failed to establish that his defamation
action arose from or was connected with some act or transaction
consummated in Georgia for purposes of § 9-10-91(1). He never showed
that the defamation arose out of, or was connected to, any business
transaction in Georgia. The defendants' only alleged Georgia contacts
consisted of displaying ads for various companies on their Internet Web
sites, including advertisements for a company based in Georgia. Yet,
there was no showing that they secured those ads directly through
Georgia companies, or through any contact with any company in
Georgia. And the mere fact that a particular website displays an ad that
can be viewed in Georgia, or shows a company that does business in
Georgia does not, by itself, equate to contact with Georgia.

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Henriquez,

500 F. App'x at 829 (citing Smith v. Air Ambulance Network, 207

Ga.

App. 75, 75 (1993) (the "mere placement of advertisements in Georgia"
was insufficient to show that a defendant purposefully transacted
business in the state, such as to establish personal jurisdiction"). 3

The following cases found sufficient contacts to support personal jurisdiction: Aero,
279 Ga. App. At 523-24 ("[T]he defendant operated an interactive Web site through
which it has reached out to, and done business with, persons in Georgia. This case...
involves the sale of an automobile with the transaction worth thousands of dollars
and involving shipment of an automobile to be operated in Georgia . . . . [TJhe car
was shipped into Georgia by the nonresident seller and not by a carrier acting as the
resident buyer's agent. Although [defendant] does not have officers, employees,
offices, or business affiliates in Georgia, and although the revenue it derives from
goods sold here may not be substantial in relation to its overall revenue, it does
regularly solicit business in Georgia through the Internet, and the revenue it has
derived from shipping cars to [plaintiff] and other persons in Georgia is substantial
enough to establish sufficient minimum contacts with the state of Georgia in a case
involving the exercise of specific jurisdiction. . . . [T]he state court did not err in
determining that [defendant] has established sufficient minimum contacts with this
state to warrant exercise of personal jurisdiction over it in this case."); Peridyne
Technology Solutions, LLC v. Matheson Fast Freight, Inc., 117 F. Supp. 2d 1366,
1372 (N.D. Ga. 2000) (Georgia plaintiff contracted with California defendants to
provide computer consulting services and materials. After defendants terminated the
contract, on one or more occasion defendant illegally hacked into several of the
plaintiffs servers and directories in Georgia in order to download and delete files.
The defendants never entered Georgia, but "allegedly manipulated their way into
private files stored on the plaintiffs computers, servers, and databases based in
Georgia. Thus, they deliberately directed their activities at Georgia and purposefully
directed their activities at its residents, so "the instant litigation results from and/or
is sufficiently related to those activities for this court to have personal jurisdiction
over them."), abrogated on other grounds by Diamond Crystal, 593 F. 3d at 1249.
Compare those cases with Barton Southern Co., Inc. v. Manhole Barrier Systems,
Inc., 318 F. Supp, 2d 1174, 1177 (N.D. Ga. 2004) ("Although the Web site allows
customers to fill out an electronic order form, it does not allow customers to make
payments or complete orders. Additionally, the [defendant's] Web site has never
received any e-mail from anyone in Georgia, nor has [defendant] sent any e-mail via
its Web site to anyone in Georgia. There is nothing on the Web site showing an intent
to reach out to persons living in Georgia, and there is no evidence that any Georgia

Henriquez and Barton Southern Co. effectively exemplify the
"Zippo sliding scale" (see supra n. 2) that the district judge likely will
apply in ruling that no personal jurisdiction exists over ROT. At most
plaintiff alleges (and discovery thus far has shown) a no-jurisdiction
position (passive web site where information is posted and users can only

residents have done business with [defendant], either through the Internet or
otherwise. Under these circumstances, the Court concludes that the [defendant's]
Web site fails to furnish a Georgia contact adequate to support personal jurisdiction.
."); Gorman v. Jacobs, 597 F. Supp. 2d 541, 545-51 (E.D. Pa. 2009) (because one can
access web sites from anywhere, a defendant's Internet activity, be it website
operation or use, must evince an intent to interact with the forum to justify the
exercise of personal jurisdiction; hence, comments on website were insufficient
contacts with forum state to support exercise of personal jurisdiction over
defendants); Zippo Mfg. Co. v. Zippo Dot Corn., Inc., 952 F. Supp. 1119, 1123-25
(W.D. Pa. 1997) (courts deploy a sliding scale for the exercise of personal jurisdiction
based on how the particular website works; at one end, where jurisdiction is proper,
are commercial interactive web sites that "involve the knowing and repeated
transmission of computer files over the Internet," and through which individuals
actively engage in business with residents of a foreign jurisdiction; at the other end
are passive web sites where information is posted and users can only view it).
One other, non-Georgia case, is useful here: Blumenthal v. Drudge, 992 F. Supp. 44
(D.C. 1998). There the defendant was the author of "The Drudge Report" gossip web
site that published matters online from and distributed same through electronic mail
subscriptions. It also appeared on America Online, an Internet service provider that
provided its own content. According to the plaintiff White House employees,
Drudge's August 10, 1997 report (originating from California) defamed them, so they
sued both Drudge and AOL. Drudge moved to dismiss for lack of personal
jurisdiction. Held, personal jurisdiction over Drudge was proper because he had
persistent contacts with the District of Columbia. His internet ties with the forum,
including the distribution of his column via electronic mail to DC residents and his
solicitation of contributiOns from them, were persistent contacts. The court also
considered his non—internet connections, including his reliance on district residents
as sources for his column, plus his travel to and from DC for interviews. All of those"
contacts warranted the exercise of personal jurisdiction over him, and that did not
offend due process concerns. Id. at 53-57.

view it) on the Zippo scale. That, in turn, justifies (on futility grounds)
the denial of his motion to compel.

III. CONCLUSION
Accordingly, plaintiff's Motion to Compel (doe. 25) is DENIED.

SO ORDERED this

day of December, 2014.

UNITED SffATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA

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