Re: 3/22/05 - [UCSY] UCSY vs. Coughlin et al: Motion to Dismiss...
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Miami Division
MICHAEL J. ZWEBNER, UNIVERSAL
COMMUNICATIONS SYSTEMS, INC.,
and AIRWATER CORP.,
Plaintiffs,
CASE NO. 05-20168-dy-COOKE
V.
Magistrate Judge McAliIey
JAMES W. COUGHLIN a/k/a
“IrishJim44” and JOHN DOES 1-25,
Defendants.
_________________________________________________________________/
MOTION TO DISMISS COMPLAINT FOR LACK OF JURISDICTION OVER THE PERSON, LACK OF SUBJECT MATTER JURISDICTION, IMPROPER VENUE AND FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED AND MEMORANDUM OF LAW IN SUPPORT
Defendant JAMES W. COUGHLIN (“Coughlin”), pursuant to Rule 12, Fed. R. Civ. P., moves for the entry of an order dismissing the instant action brought by the Plaintiffs, MICHAEL J. ZWEBNER, UNIVERSAL COMMUNICATIONS SYSTEMS, INC., and AIR WATER CORP. (“Plaintiffs”). The grounds for this motion are as set forth in the following memorandum.
MEMORANDUM
The crux of the Plaintiffs’ Complaint is the allegation that the 26 defendants used the internet to post false and defamatory information about the Plaintiffs. By Plaintiffs’ own admission, Coughlin is a resident of California. (Complaint, ¶ 7). Plaintiffs further allege that Coughlin utilized the internet to post defamatory messages on a 24 hour message board. (Complaint, ¶ 9).
THIS COURT DOES NOT HAVE PERSONAL JURISDICTION OVER DEFENDANT
In order to determine whether personal jurisdiction exists over an out-of-state defendant, a court must conduct a two-pronged analysis. First, the court must assess whether there is jurisdiction under the state’s long-arm statute. Second, the court must decide whether the defendant has established sufficient minimum contacts with the state, such that the exercise of jurisdiction will satisfy the Fourteenth Amendment’s due process requirement by comporting with “traditional notions of fair play and substantial justice.” Sculptchair, Inc. v. Century Arts, Ltd., 94 F. 3d 623, 626 (1 1th Cir. 1996); Alternate Energy Corp. v. Redstone, 328 F. Supp. 2d 1379, 1381 (S.D.Fla. 2004); quoting International Shoe v. Washington, 326 U.S. 310, 316 (1945).
In the context of this two-pronged analysis, the plaintiff must plead sufficient facts establishing the basis for jurisdiction. Only if the plaintiff alleges sufficient facts in its complaint to initially support jurisdiction, does the burden shift to the defendant to make a prima facie showing that such jurisdiction does not exist. Upon such a showing by the defendant, the burden then shifts back to the plaintiff requiring him to substantiate the jurisdictional allegations in the complaint by affidavits or other competent proof, and not merely reiterate the factual allegations in the complaint. Future Tech. Today, Inc. v. OSF HealthcareSys., 218 F.3d 1247, 1249 (11th Cir. 2000).
A. Florida’s Long-Arm Statute (First Prong)
Florida’s long-arm statute, § 48.193, Fla. Stat., provides for personal jurisdiction over a nonresident defendant under two sets of circumstances. The first, contained in Fla. Stat. § 48.193(1), provides for specific personal jurisdiction when a claim “arises from” the defendant’s forum-related contacts. Actions that give rise to specific jurisdiction include carrying on a business in Florida, under § 48.193(l)(a); committing a tortious act within the State of Florida, under § 48.193(1 )(b); and causing injury to persons within the State of Florida by a defendant outside of the state if at the time of the injury the defendant was engaged in solicitation or service activities within the state or products of the defendant were used or consumed within the state, under § 48.193(1)(f). The second basis for jurisdiction, § 48.193(2), provides for general personal jurisdiction when the defendant’s forum-related contacts are sufficiently extensive, even though the case did not arise out of those contacts.
As set forth in the Declaration of Defendant James W. Coughlin, a copy of which is attached hereto as Exhibit 1, Coughlin did not have the requisite minimum contacts to establish either specific or general jurisdiction under Florida’s long-arm statute. In setting the outer limits of jurisdiction pursuant to Florida’s long-arm statute, the Florida Supreme Court has held that specific jurisdiction may exist where telephonic, electronic or written communications are directed into the State of Florida by an out-of—state defendant and the cause of action arises from those communications. However, where the communications are not directed into the state, the requirements of § 48.193(1) are not met and there is no jurisdiction under Florida’s long-arm statute. Wendt v. Horowitz, 822 So. 2d 1252, 1260 (Fla. 2002) (Making defamatory telephone calls into the State of Florida and mailing defamatory letter into the State of Florida are sufficient to establish long-arm jurisdiction where cause of action is directly related to the statements and words contained in such communications. However, where the communications are not directed into the State of Florida, there is no long-arm jurisdiction.)
Pursuant to the allegations of the Complaint, Coughlin made no electronic communication directed into the State of Florida. At best, he posted messages on an electronic bulletin board in California. These allegations fail to allege the requisite basis to bring this action within the court’s jurisdiction pursuant to Florida’s long-arm statute. Accordingly, this action is properly dismissed.
B. Due Process - Minimum Contacts (Second Prong)
The due process prong involves constitutional analysis and imposes a more restrictive requirement than the statutory long-arm analysis. $ Miller v. Berman, 289 F. Supp. 2d 1327, 1332 (M.D. Fla. 2003) and cases cited therein. Courts must examine three factors to determine whether a defendant has established sufficient minimum contacts with the forum state to comport with the Fourteenth Amendment’s due process requirement: (1) whether the defendant has purposefully availed itself of the benefits of doing business in the forum state; (2) whether the cause of action arose out of the activities through which the defendant did so; and (3) whether the defendant could have reasonably anticipated being haled into court in the forum state. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475 (1985); Future Tech., 218 F.3d at 1250.
The leading case addressing whether internet communications constitute sufficient minimum contacts to satisfy due process requirements is Zippo Mfg. Co. v. Zippo Dot Comm., Inc., 952 F.Supp. 1119 (W.D.Pa. 1997). The Zippo precedent, which holds that merely posting information on the internet does not constitute sufficient minimum contacts to satisfy due process requirements, has been adopted by Florida courts. Alternate Energy Corp. 328 F. Supp. 2d at 1382; Miller v. Berman, 289 F.Supp. 2d 1327, 1335 (M.D.Fla. 2003) (citing Zippo Mfg. Co., 952 F.Supp. at 1124 (W.D.Pa. 1997)); Nida Corp. v. Nida, 118 F.Supp.2d 1223, 1229-30 (M.D.Fla. 2000).
The much cited and directly on point precedent established by the Zippo court is as follows:
At one end of the spectrum are situations where a defendant clearly does business over the Internet. If the defendant enters into contracts with residents of a foreign jurisdiction that involve the knowing and repeated transmission of computer files over the Internet, personal jurisdiction is proper. At the opposite end are situations where a defendant has simply posted information on an Internet Web site which is accessible to users in foreign jurisdictions. A passive Web site that does little more than make information available to those who are interested in it is not grounds for the exercise [of] personal jurisdiction. (emphasis added) Zippo Mfg. Co., 952 F.Supp. at 1124; Alternate Energy Corp., 328 F. Supp. 2d at 1382; Miller, 289 F.Supp. 2d at 1335; Hartoy Incorporated v. Thompson, 2003 WL 21468079, 4 (S.D.Fla. 2002); Nida Corporation, 118 F.Supp. 2d at 1229-1230 (M.D.Fla. 2000); JB Oxford Holdings, Inc., v. Net Trade, Inc., 76 F.Supp. 2d 1363, 1367 (S.D.Fla. 1999).
In analyzing the jurisdictional limits of the Zippo precedent, the Fifth Circuit has held that, where jurisdiction is being sought over an out-of-state defendant, even selling subscriptions, to residents of the state where jurisdiction is being sought, to view an informational website does not constitute sufficient commercial activity to invoke jurisdiction under Zippo for a defamation action, even when the cause of actions arises out of information posted on the site. Revell v. Lidov, 317 F.3d 467 (5th Cir. 2002). In the instant action, there is no allegation whatsoever of any commercial gain or activity on the part of Coughlin. Moreover, Coughlin’s alleged activities fall squarely within the scenario of posting to a passive Web site that does little more than make information available to those who are interested in it. Accordingly, there are no grounds for the exercise of personal jurisdiction over Coughlin.
In summary, this Court does not have jurisdiction pursuant to Florida’s long-arm statute. Moreover, even if this court finds that the allegations of the complaint are sufficient to establish long-arm jurisdiction, the exercise of personal jurisdiction over Coughlin, who is a resident of California and has no connection with Florida, would violate the Fourteenth Amendment to the United States Constitution by failing to comport with traditional notions of fair play and substantial justice as set forth in Zippo.
THIS COURT LACKS SUBJECT MATTER JURISDICTION AND/OR VENUE IS NOT PROPER IN THE SOUTHERN DISTRICT OF FLORIDA
Although not clearly pled, based upon the limited jurisdictional allegations contained in the Complaint, this action is purportedly being brought pursuant to this court’s diversity jurisdiction, 28 U.S.C. § 1332. In order to invoke this court’s diversity jurisdiction, in addition to the requirement that the matter in controversy exceed the sum of $75,000.00, the action must be between (1) citizens of different States; (2) citizens of a State and citizens of a foreign state; (3) citizens of different States and in which citizens or subjects of a foreign state are additional parties; or (4) a foreign state, defined in section 1603(a) of this title, as plaintiff and citizens of a State or of different States.
Only 28 U.S.C. §1332(a)(1), citizens of different States, is applicable to the instant action. However, the Plaintiff has also sued “John Does 1-25” (Complaint, case style) and has alleged that “Defendant(s) are doing business within this district and the State of Florida” (Complaint, ¶ 3). If the Plaintiffs are alleging that certain of the defendants are citizens of the State of Florida in support of Plaintiffs’ choice of venue, then this court lacks subject matter jurisdiction as diversity of citizenship is not present. Alternatively, if the allegation is properly interpreted as stating that none of the defendants are citizens of or reside in the State of Florida, then venue is not proper in this district (see below analysis). Either way, this matter is properly dismissed.
Pursuant to 28 U.S.C. § 1391(a), addressing venue,
A civil action wherein jurisdiction is founded only on diversity of citizenship may, except as otherwise provided by law, be brought only in (1) a judicial district where any defendant resides, if all defendants reside in the same state, (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated, or (3) a judicial district in which any defendant is subject to personal jurisdiction at the time the action is commenced, if there is no district in which the action may
otherwise be brought. (emphasis added)
As set forth above, if none of the defendants reside in the Southern District of Florida, or even the State of Florida, then this action must be dismissed, or at the very least transferred to the appropriate court. Much like the above analysis regarding due process/lack of personal jurisdiction, it is simply not proper to allow a Plaintiff to force a resident of California to litigate and defend an action brought in Florida by a Plaintiff who happens to reside in Florida. The venue statute is expressly designed to protect against just such an injustice and is properly invoked in this action.
FAILURE TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED
Count I — Defamation:
In order to state a cause of action for defamation, at a minimum, a plaintiff must allege that (1) the defendant published a false statement; (2) about the plaintiff; (3) to a third party and (4) that the falsity of the statement caused injury to the plaintiff. Bass v. Rivera, 826 So. 2d 534, 535 (Fla. 2d DCA 2002). The Plaintiffs have alleged that the “defendant(s) “IrishJim44/Coughlin” and the other John Doe defendants” have posted various postings. (Complaint, ¶ 20). However, the Plaintiffs have failed to specifically allege which, if any, of the listed alleged postings are directly attributable to Coughlin versus any of the other 25 defendants.
Accordingly, Count I of the complaint should be dismissed. Alternatively, the Plaintiffs should be required to serve a more definite statement, pursuant to Rule 12(e), Fed. R. Civ. P., expressly identifying which of the allegedly defamatory statements are attributable to Coughlin versus the other 25 defendants.
Count II — Intentional Infliction of Emotional Distress:
In order to state a cause of action for intentional infliction of emotional distress, at a minimum, a plaintiff must allege that (1) the wrongdoer’s conduct was intentional or reckless, that is, he intended his behavior when he knew or should have known that emotional distress would likely result; (2) the conduct was outrageous, that is, as to go beyond all bounds of decency, and to be regarded as odious and utterly intolerable in a civilized community; (3) the conduct caused emotional distress; and (4) the emotional distress was severe. LeGrande v. Emmanuel, 889 So. 2d 991, 994 (Fla. 3d DCA 2004); Clemente v. Home, 707 So. 2d 865, 866 (Fla. 3d DCA 1998).
As a matter of law, the requisite alleged conduct required to state a cause of action must be: so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, ‘Outrageous!’ LeGrande, 889 So. 2d at 995; Clemente, 707 So. 2d at 867. The relevant case law supports dismissal of Count II. The Defendant’s alleged conduct simply does not constitute the type of extreme andJor outrageous conduct required to support a claim for intentional infliction of emotional distress. Sçç LeGrande, 889 So. 2d at 995 (“Although we recognize that being branded a thief in front of one’s parishioners might certainly be unsettling, embarrassing, and/or humiliating for a member of the clergy, we do not believe that this alleged conduct is the type of extreme and outrageous conduct needed to support a claim for the intentional infliction of emotional distress as a matter of law.”); Clemente, 707 So. 2d at 867 (“The standard for ‘outrageous conduct’ is particularly high in Florida.” Where alleged conduct fails to rise to requisite level of extreme and outrageous conduct, action is properly dismissed as a matter of law.
“It is not enough that the intent is tortuous or criminal; it is not enough that the defendant intended to inflict emotional distress; and it is not enough if the conduct was characterized by malice or aggravation which would entitle the plaintiff to punitive damages for another tort.”)
Accordingly, Count II of the complaint should be dismissed. Alternatively, the Plaintiffs should be required to serve a more definite statement, pursuant to Rule 12(e), Fed. R. Civ. P., setting forth with more detail the extreme and outrageous nature of the alleged conduct at issue.
WHEREFORE, Defendant JAMES W. COUGHL1N, respectfully requests the entry of an order
(1) dismissing the instant action for:
(a) lack of jurisdiction over the subject matter;
(b) lack of jurisdiction over the person;
(c) improper venue; and/or
(d) failure to state a claim upon which relief can be granted;
(2) awarding the Defendant his costs, pursuant to Rule 54, Fed. R. Civ. P.; and (3) granting such other and further relief as the Court deems just and proper.
Respectfully submitted,
STACK FERNANDEZ ANDERSON
& HARRIS, P.A.
Attorneys for Defendant
1200 Brickell Avenue, Suite 950
Miami, Florida 33131
Tel: (305) 371-0001
Fax: (305) 371-0002
BriaiIJ. Stack
Fla. Bar No. 0476234
bstack@stackfernandez.com
John L. Urban
Fla. Bar No. 0175307
jurbanstackfernandez.com |
