Re: 4/29/05 - [UCSY] UCSY vs. Coughlin: Order Granting Defendant's Motion to Dismiss
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION
Case No.: 05-CIV-20168-COOKE/BROWN
MICHAEL J. ZWEBNER, UNIVERSAL
COMMUNICATIONS SYSTEMS, INC.,
and AIR WATER CORP
Plaintiffs,
VS.
JAMES W. COUGHLIN a/k/a
“IrishJim441’ and JOHN DOES 1-25,
Defendants.
______________________________________________/
ORDER GRANTING DEFENDANT’S MOTION TO DISMISS COMPLAINT FOR LACK OF JURISDICTION OVER THE PERSON, LACK OF SUBJECT MATTER JURISDICTION, IMPROPER VENUE AND FAILURE TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED
THIS CAUSE came before the Court upon Defendant, James W. Coughlin’s Motion to Dismiss Complaint for Lack of Jurisdiction Over the Person, Lack of Subject Matter Jurisdiction, improper Venue and FaIlure to State a Claim Upon Which Relief Can Be Granted [D.E. 7], filed March 22, 2005. The Court having reviewed the Defendant’s Motion and supporting memorandum of law and the Plaintiff’s memorandum in opposition, and being otherwise advised of the premises, it is
ORDERED AND ADJUDGED that the Defendant’s Motion to Dismiss Complaint for Lack of Personal Jurisdiction is GRANTED [1],
[1] As the Court has found that the Defendant’s Motion to Dismiss be granted on the basis that this Court lacks personal jurisdiction over the Defendant, it is unnecessary to address other issues in the Defendant’s Motion to Dismiss.
I. Factual Background
On January 20, 2005, the Plaintiffs filed a Complaint for Defamation alleging that the Defendant James W. Coughlin a/k/a “IrishJim44” as well as several unnamed individuals used the Internet to post defamatory messages on a message board. The Plaintiffs allege that the messages began to appear on the message board on or about December, 2002. The posts appeared primarily on Plaintiff Universal Communications, Systems, Inc.’s chat line and Talk Visual Corporation’s (n/k/a “TVCE”) chat line.
Plaintiff Michael J. Zwebner, Chairman of Talk Visual Corporation alleges that he notified the posters via the Internet and by other means that the information posted on the message board, is false and in some cases defamatory. On March 22, 2005, the Defendant James W. Coughlin filed the instant Motion to Dismiss.
II. Legal Standard
On a motion to dismiss for lack of personal jurisdiction, the motion “should be denied if the plaintiff alleges sufficient facts to support a reasonable inference that the defendant can be subjected to the jurisdiction of the court,” Jackman v. Hasp. Corp. of Am. Mideast, Ltd., 800 F.2d 1577, 1579 (11th Cir. 1986). Where a district court does not hold an evidentiary hearing on a motion to dismiss for lack of personal jurisdiction, the plaintiff must establish a prima facie case for personal jurisdiction over a nonresident defendant by presenting enough evidence to withstand a motion for directed verdict. Consol. Day. Corp. v Skerritt, Inc., 216 F.3d 1286, 1291 (11th Cir. 2000). In determining whether a prima facie case exists, the plaintiffs allegations in the complaint must be accepted as true, but only to the extent that they are uncontroverted by the defendant’s affidavits. Id. Where a defendant’s affidavits conflict with evidence presented by the plaintiff, the court is required to construe all reasonable inferences in favor of the plaintiff. Cable/Home Communication Corp. v. Network Prods., Inc., 902 F.2d 829, 855 (11th Cir. 1990). “‘When there is a battle of affidavits placing different constructions on the facts, the court is inclined to give greater weight, in the context of a motion to dismiss, to the plaintiffs version ...,‘ particularly when ‘the jurisdictional questions are apparently intertwined with the merits of the case.” Delong Equip. Co. J’ Wash. Mills Abravise Co., 840 F.2d 843, 845 (11th Cir. 1988)(quoting Psychological Res. Support Sys. v. Gerlemen, 624 F. Supp. 483, 484 (N.D. Ga. 1985)).[2]
In order to determine whether personal jurisdiction exists over an out-of-state defendant, a court must conduct a two-pronged analysis. Sculptchair, Inc. v. Century Arts, Ltd., 94 F.3d 623, 626 (11th Cir. 1996). The court must first assess whether there is jurisdiction under the state’s long-arm statute. Id. 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.” Id. (quoting Int'l Shoe v. Washington, 326 U.S. 310, 316 (1945)). In this context, the Plaintiff is required to plead facts that establish the basis for jurisdiction. Future Tech. Today, Inc. v. OSF Healthcare Sys., 218 F.3d 1247, 1249 (11th Cir. 2000). If the plaintiff does so, the burden shifts to the defendant to challenge the plaintiff’s facts through affidavits or other evidence. Id. If the defendant meets this burden, the burden reverts to the plaintiff to substantiate the allegations in the complaint with affidavits or other evidence.
[2] Defendant Coughlin’s Motion to Dismiss sets forth several grounds upon which the Court may dismiss the instant Complaint. When a defendant moves to dismiss for failure to state a claim, pursuant to Fed. R. Civ. P. 12(b)(6) and for lack of personal jurisdiction, pursuant to Fed. R. Civ, P. 12(b)(2), the Court should address the personal jurisdiction question first. Madara v. Hall, 916 F.2d 1510, 1513-14 (11th Cir. 1990).
III. Discussion
A. Florida ‘s Long-Arm Statute
Federal courts are required to construe the Florida long-arm statute as would the Florida Supreme Court. Oriental Imports & Exports, Inc. v. Maduro & Curiel’s, N V., 701 F.2d 889, 890-91 (11th Cir. 1983). As discussed supra, the Plaintiff bears the burden of alleging facts sufficient to demonstrate the application of Florida’s long-arm statute. See Taylor Forge Int,l Inc. v. Specialty Maintenance & Construction, inc., 685 So.2d 1360, 1361 (Fla. 2nd DCA 1996). Pursuant to FLA. STAT. Arm4. § 48.193, there are two (2) types of personal jurisdiction: specific and general. Section 48.193 (1) addresses specific jurisdiction that permits jurisdiction over a non-resident defendant who is engaged in certain enumerated acts. L.O.T.I Group Productions v. Lund, 907 F.Supp. 1528, 1531 (S.D. Fla. 1995). Section 48.193(2) addresses general jurisdiction that permits jurisdiction over a non-resident defendant where the party has engaged in substantial and not isolated activity in the State of Florida, but those contacts with the forum state are unrelated to the litigation.
B. Minimum Contacts
In determining whether a defendant has established sufficient minimum contacts with the forum state to comport with the Fourteenth Amendment’s due process requirement, it must examine three (3) factors: (1) whether the defendant has purposefully availed himself 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 held into court in the forum state. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475 (1985); Future Tech., 218 F.3d at 1250.
In determining whether internet contacts satisfy these factors, Florida courts follow the precedent set in Zippo, that holds that while engaging in commercial activity over the internet constitutes sufficient minimum contacts to satisfy due process requirements, merely posting information on the Internet, does not. E.g., Miller v. Berman, 289 F.Supp.2d 1327, 1335 (M.D. Fla. 2003)(citing Zippo Mfg. Co. v. Zippo Dot Comm., Inc., 952 F.Supp. 1119, 1124 (W.D. 1997).
In the instant matter, the Plaintiff alleges that personal jurisdiction exists over the Defendant pursuant to FLA. STAT. AN1s.. § 48.193(b), which provides that jurisdiction may be exercised over non-resident defendant who has committed a tortious act in the State of Florida. The Plaintiff alleges that the Defendant (1) is employed by a Florida-based corporation, and (2) that the posting of the posting of the allegedly false and defamatory information on these internet message boards, constitute sufficient minimum contacts to satisfy the Fourth Amendment’s due process requirements. The Court disagrees.
As an initial matter, the Plaintiff failed to provide the Court with affidavits or other evidence in support of his contention that personal jurisdiction exists over the Defendant. To meet his burden of proof, the Plaintiff must to do so. Future Tech., 218 F.3d 1249. As such, the Courts finds that a non-resident employee who is employed by a Florida-based company and posts statements on a message board, without more, does not meet the requirements for carrying on business in the State of Florida under FLA. STAT. ANN. § 48.193(a) and does not meet the requirements of committing a tortious act in the State of Florida, pursuant to FLA. STAT. ANN. § 48.193(b).
With that said, had the Court found the Florida Long-Ann Statute, applicable, the Defendant simply did not possess the requisite minimum contacts with the State of Florida to satisfy the due process requirement. As discussed supra, the mere posting of information on a website is insufficient to invoke the Courts jurisdiction under Zippo.
The Plaintiff cites Becker v. Hooshmand, 841 So.2d 561 (Fla. 4th DCA 2003), for the proposition that the Court’s jurisdiction may be invoked where it is alleged that a non-resident defendant has defamed a Florida resident by merely posting information on a message board. This case is factually inapposite to the matter at hand. The defendant in Becker specifically targeted his actions toward the State of Florida. There was no affidavit or other similar proof provided to the Court by the Plaintiffs that controvert the Defendant’s affidavit that avers that he did not specifically target the Plaintiffs.
Accordingly, after careful review of the record and the Court being otherwise advised of the premises, it is
ORDERED and ADJUDGED that the Defendant’s Motion for lack of Personal Jurisdiction be, and the same is hereby GRANTED.
DONE and ORDERED in chambers in Miami, Florida this 29 day of April, 2005.
THE HONORABLE MARCIA G. COOKE
UNITED STATES DISTRICT COURT JUDGE
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All Counsel of Record |
