Brannies v. Internet ROI, Inc.

Filing 37

ORDER granting 7 Motion to Dismiss; denying 30 Motion to Amend/Correct. Signed by Judge William T. Moore, Jr on 3/13/15. (bcw)

IN THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION

MICHAEL W. BRANNIES,
Plaintiff,
CASE NO. CV4 14 - 155

V.

INTERNET ROl, INC., d/b/a
American Overlook,
Defendant.

ORDER

Before the Court is Defendant Internet ROI, Inc.'s Motion
to Dismiss. (Doc. 7.) For the following reasons, Defendant's
motion is GRANTED and Plaintiff's complaint is

DISMISSED.

Plaintiff's Motion to Amend Complaint is DENIED.' The Clerk of
Court is DIRECTED to close this case.
BACKGROUND
In this case, Defendant owns and operates an online newsbased website. According to Plaintiff's complaint, Defendant's
website included a photograph of Plaintiff above the headline
"VIDEO: Homeless Man Does the Unthinkable to 10-Year-Old Girl
in Public." (Doc. 1, Compi. ¶ 5.) A link under the photograph

' The Court reviewed the proposed amendment to Plaintiff's
complaint. (Doc. 30, Ex. B.) The proposed factual allegations
are nothing more than legal conclusions and would still fail
to establish personal jurisdiction. See Brandt v. Dupree, 252
F.3d 1161, 1163 (11th Cir. 2001) (citing Forman v. Davis, 371
U.S. 178, 182 (1962)) (permitting court to disallow amendment
of complaint where amendment would be futile).

showed a grainy video of an "unkempt and confused looking
individual entering a restaurant." (Id. ¶ 6.) The video
describes a sexual assault the individual in the video
allegedly committed against a ten-year-old girl. (Id.) While
Plaintiff's photograph appeared above the headline, he was not
the individual depicted in the video. (Id.)
According to Plaintiff, the photo and associated headline
inferred that Plaintiff was the individual who committed the
sexual assault. (Id.) Based on Defendant's use of the photo,
Plaintiff filed a complaint in the State Court of Chatham
County alleging libel per se and negligent infliction of
emotional distress. (Id.

¶I 4-14.) Defendant timely removed

the case to this Court. (Doc. 1.)
In its Motion to Dismiss, Defendant argues that it is not
subject to personal jurisdiction in this Court because it has
never transacted any business in and has no contacts with the
state of Georgia. (Doc. 7 at 3-7.) In this regard, Defendant
reasons that its news-based website, which includes
advertisements, is not sufficient under Georgia law to subject
it to personal jurisdiction in this state. (Id. at 3-6.) In
response, Plaintiff argues this Court has personal
jurisdiction because Defendant transacts and solicits business

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in Georgia given that some Georgia residents either access the
website or follow its advertising links .2 (Doc. 13 at 5-7.)
ANALYSIS

I.

STANDARD OF REVIEW
In response to a motion to dismiss for lack of personal

jurisdiction when no evidentiary hearing is held, the
plaintiff has the burden of proving a prima facie case of
jurisdiction with respect to the contesting defendant.
Robinson v. Giarmarco & Bill, P.C., 74 F.3d 253, 255 (11th
Cir. 1996) (quoting Madara v. Hall, 916 F.2d 1510, 1514 (11th
Cir. 1990)) . To meet this standard, the plaintiff must present
sufficient evidence concerning jurisdiction to survive a
motion for directed verdict. Id. The complaint's allegations
that are uncontroverted by affidavit are accepted as true, but
when the evidence conflicts, all reasonable inferences are
construed in favor of the plaintiff. Id.
II.

BASIS OF JURISDICTIONAL POWER AND DUE PROCESS LIMITATIONS
Two separate concepts restrict this Court's exercise of

personal jurisdiction in diversity cases. The first limitation
is that district courts can only assert personal jurisdiction

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Defendant generates revenue from advertisers based on the
number of visitors to the site and the number of individuals
that follow an advertising link. (Doc. 13 at 5.)
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over nonresident defendants if doing so would be consistent
with the long-arm statute of the state in which the court
= sits. Nippon Credit Bank, Ltd. v. Matthews, 291 F.3d 738, 746
(11th Cir. 2002). Accordingly, this Court has personal
jurisdiction over a nonresident defendant only if the Georgia
long-arm statute, O,C.G.A § 9-10-91, so provides.
The second limitation is that the exercise of personal
jurisdiction under Georgia's long-arm statute must comport
with the requirements of constitutional due process. Diamond
Crystal Brands, Inc. v. Food Movers Int'l, Inc., 593 F.3d 1249
(11th Cir. 2010) . If minimum contacts are sufficiently
established, other factors are examined to determine the
ultimate fairness of asserting personal jurisdiction, such as
"the burden on the defendant; the forum State's interest in
adjudicating the dispute; the plaintiff's interest in
obtaining convenient and effective relief; the interstate
judicial system's interest in obtaining the most efficient
resolution of controversies; and the shared interest of the
several States in furthering fundamental substantive social
policies." World-Wide Volkswagen Corp. v. Woodson, 444 U.S.
286, 292, (1980) (citations and quotations omitted)

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The Georgia Court of Appeals has made clear that the
exercise of general jurisdiction under the Georgia long-arm
statute requires a "continuous and systematic business
contact" with the State of Georgia. Mitsubishi Motors Corp. v.
Colemon, 290 Ga. App. 86, 89, 658 S.E.2d 843, 847 (2008)
Colemon stated the importance of additional factors over and
above the mere minimum contacts required to constitutionally
exercise personal jurisdiction, noting that
[w] hen the suit does not arise out of the
defendant's contacts with the forum, the state is
said to exercise general jurisdiction, and factors
relevant to the existence of such jurisdiction
include regularly doing business in the state,
deriving substantial revenue from goods or services
in the state, having agents or employees in the
state, maintaining an office in the state, and
having subsidiaries or business affiliates in the
state.
Id.

In this case, the complaint makes no allegations that

would allow this Court to find that Defendant is subject to
general jurisdiction in the State of Georgia.
Because Defendant is not subject to general jurisdiction,
this Court must now determine whether any aspect of the
Georgia long-arm statute will permit the exercise of specific
personal jurisdiction in this case. The Georgia long-arm
statute provides for specific personal jurisdiction "as to a
cause of action arising from any of the acts [or] omissions,
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• . . enumerated" in the statute. O.C.G.A. § 9-10-91. Georgia
courts applying this language have required that "the cause of
action arise [1

from or [be] connected with the act or

transaction" that forms the basis for haling the defendant
into a Georgia court. ATCO Sign & Lighting Co. v. Stamm Mfg.,
298 Ga. App. 528, 529, 680 S.E.2d 571, 573 (2009); accord
Gateway Atlanta Apartments v. Harris, 290 Ga. App. 772, 779,
660 S.E.2d 750, 757 (2008) . The statute operates with
subsections that specify the types of activities that subject
nonresidents to personal jurisdiction in Georgia's courts.
The exercise of personal jurisdiction in Georgia requires a
court to find that at least one prong of the long-arm statute
is satisfied." Diamond Crystal, 593 F.3d at 1259. Although
Georgia's statute contains six subsections providing for
jurisdiction, Plaintiff argues only that O.C.G.A. § 9-10-91(1)
and (3) provide this Court with personal jurisdiction over
Defendant. (Doc. 13 at 5-9.)
Subsection one of the Georgia long-arm statute grants
personal jurisdiction over a nonresident if he or she
"transacts any business within this state," O.C.G.A. § 9-1091(1), while subsection three provides for personal
jurisdiction where a nonresident "[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," id. § 9-10-91 (3) . A nonresident
"transacts any business" in Georgia if
(1) the nonresident defendant has purposefully
done some act or consummated some transaction
in [Georgia],
if the cause of action arises from or is
(2)
connected with such act or transaction, and
(3) if the exercise of jurisdiction by the courts
of this state does not offend traditional
fairness and substantial justice.
Aero Toy Store, LLC v. Grieves, 279 Ga. App. 515, 517-18, 631
S.E.2d 734, 737 (2006) . In this case, Plaintiff cannot
establish that his claim arose from or was connected to some
act or consummated transaction that occurred in Georgia. The
alleged misconduct arose out of Defendant's placement of the
photo on its news-based website, not the advertisements
included on that website. See Henriguez

V.

El Pais

Q'Hubocali.com, 500 Fed. App'x 824, 828 (11th Cir. 2012)
("Henriquez's defamation claims arose out of the defendants'
publication of defamatory news articles on their websites, not
the defendants' placement of advertisements from U.S. companies
on their websites. Thus, the district court could not exercise
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personal jurisdiction under subsection (1) of Georgia's longarm statute . . . •"). Even prior to the advent of the
internet, Georgia courts recognized that circulation of
advertisements in Georgia was insufficient to confer personal
jurisdiction under subsection one of Georgia's long-arm
statute, even where the advertiser later negotiated and
contracted with a Georgia resident. See Flint v. Gust, 180 Ga.
App. 904, 905-06, 351 S.E.2d 95, 96 (1986) ("It is well settled
that an out-of-state defendant will not be deemed to have
engaged in purposeful business activity in this state merely
because he has advertised products for sale in national trade
magazines circulating in this state and has accepted orders for
such products which have been transmitted to him from this
state by mail, telephone, or other instrumentality of
interstate commerce in response to such advertisements.");
Phears v. ]Joyne, 220 Ga. App. 550, 551, 470 S.E.2d 236, 237
(1996). Certainly if advertising and actually selling products
to Georgia residents does not confer personal jurisdiction, the
mere inclusion of third-party advertising directed toward
Georgia residents on a news-based website is woefully
insufficient to subject the website's content provider to
personal jurisdiction in Georgia.
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Similarly, O.C.G.A. § 9-10-91(3) fails to confer this
Court personal jurisdiction over Defendant. Subsection three of
the long-arm statute requires Plaintiff to show that Defendant
'regularly' conducted or solicited business in Georgia, or
derived 'substantial revenue from goods used or consumed or
services rendered' in Georgia." Henriquez, 500 Fed. App'x at
828-29 (quoting O.C.G.A. § 9-10-91(3)). A website owner placing
advertisements on its website that are viewable in Georgia, or
even advertise Georgia businesses, still lacks sufficient
contacts with Georgia to establish personal jurisdiction under
subsection three. Id. at 829. In this case, Plaintiff has
failed to establish that Defendant "actually conducted or
solicited business in Georgia, much less on a regular basis, or
that [Defendant] derived substantial revenue from goods used or
services rendered in Georgia." Id. Because Plaintiff has not
proved even a prima facie case of personal jurisdiction,
Defendant's Motion to Dismiss must be GRANTED.
In his response, Plaintiff relies on Aero Toy Store for
the notion that deriving revenue from Georgia residents based
on website advertisements is sufficient to confer personal
jurisdiction. (Doc. 13 at 8-9.) In Aero Toy Store, the
defendant operated an interactive website designed to sell

automobiles that it personally shipped. 279 Ga. App. at 523,
631 S.E.2d at 740. Based on the interactive nature of the
website, the substantial revenue generated, and the defendant's
shipping of the vehicle to Georgia, the court in Aero Toy Store
concluded that the defendant had "sufficient minimum contacts
with this state to warrant exercise of personal jurisdiction
over it in this case." Id. at 523-24, 631 S.E.2d at 741.
However, the defendant's activities in Aero Toy Store are
grossly dissimilar from Defendant's conduct in this case. Here,
Defendant simply operates a news-based website that includes
third-party advertising. Defendant neither transacts any direct
business in Georgia nor sells any products to Georgia
residents. Even assuming that some of Defendant's revenue is
based on Georgia residents following advertising links and that
the website includes advertisements for Georgia businesses,
Defendant still does not have sufficient minimum contacts with
Georgia to subject it to personal jurisdiction. See Henriguez,
500 Fed. App'x at 828-29.
CONCLUSION

For the foregoing reasons, Defendant's Motion to Dismiss
(Doc. 7) is GRANTED and Plaintiff's complaint is DISMISSED.

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Plaintiff's Motion to Amend Complaint is DENIED. The Clerk of
Court is DIRECTED to close this case.
SO ORDERED this /3day of March 2015.

WILLIAM T. MOORE,
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA

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