Opinion
CASE NO. 21-62527-CIV-COHN/HUNT
2022-12-02
Jeffrey Warren TOLL, Plaintiff, v. Levi NORTH and Bennett Reeber, Defendants.
Maurice Belmont VerStandig, The VerStandig Law Firm, LLC, Potomac, MD, for Plaintiff. Marc A. Burton, The Burton Firm, Aventura, FL, for Defendant Levi North. Michael Gulisano, Gulisano Law, PLLC, Boca Raton, FL, for Defendant Bennett Reeber.
Maurice Belmont VerStandig, The VerStandig Law Firm, LLC, Potomac, MD, for Plaintiff. Marc A. Burton, The Burton Firm, Aventura, FL, for Defendant Levi North. Michael Gulisano, Gulisano Law, PLLC, Boca Raton, FL, for Defendant Bennett Reeber. ORDER GRANTING DEFENDANT LEVI NORTH'S MOTION TO DISMISS JAMES I. COHN, United States District Judge
THIS CAUSE is before the Court upon Defendant Levi North's Motion to Dismiss and/or Strike ("Motion") [DE 19]. The Court has considered the Motion, Plaintiff Jeffrey Toll's Response [DE 35], Defendant's Reply [DE 38], and the record in this case, and is otherwise advised in the premises. For the reasons set forth below, the Court will grant the Motion, sever Plaintiff's claims against North, and transfer those claims to the United States District Court for the District of Colorado.
I. Background
In his Complaint, Plaintiff alleges that Defendants Levi North and Bennett Reeber orchestrated a "malicious campaign to impersonate, shame, harass, and defame Mr. Toll through several online platforms, including a website unlawfully masquerading as belonging to Mr. Toll." DE 1 at 1. Plaintiff is a professional gambler. Id. ¶ 13. He claims that in February 2018, Defendants acquired the domain name Jeffrey-WarrenToll.com (the "Website"). Id. ¶ 22. Defendants allegedly published several false statements about Plaintiff on the Website, including accusations related to his gambling activities, as well as, inter alia, mugshots of Plaintiff and five of his last known addresses. Id. ¶¶ 25-30. Plaintiff further claims that the Website lists an anonymous email address to solicit information about him from the Website's visitors. Id. ¶ 29.
A Final Default Judgment was entered against both North and Reeber on August 31, 2022. DE 19. On October 4, 2022, the Court granted North's unopposed Motion to Vacate the Default Judgment solely as to himself. DE 24. Reeber's opposed Motion to Vacate the Default Judgment remains pending and is set for an evidentiary hearing on January 12, 2023. DE 31. The instant Motion relates only to Plaintiff's claims against North, and references herein to the "Defendant" are solely to North.
In addition to the Website, Plaintiff alleges that Defendants impersonated him on Twitter "using doppelganger and unflattering handles, i.e. @JeffTollScammer, to post believed defamatory information." DE 1 ¶ 37. He also claims that Defendants have authored "countless blog posts" criticizing him. Id. ¶ 39. At one point, North allegedly communicated to Plaintiff that he would take down the Website and other internet postings in exchange for $50,000, which Plaintiff refused. Id. ¶ 44. Plaintiff alleges that Defendants' actions have irreparably harmed his reputation, his livelihood, and resulted in "lost business contacts, lost personal relationships, bans from casinos through which Mr. Toll had contractual relationships, and bars to casinos that Mr. Toll would have otherwise frequented." Id. ¶ 55.
Based on these allegations, Plaintiff asserts two claims against Defendants: violation of the Cyberpiracy Protection for Individuals Act ("CPI"), 15 U.S.C. § 8131 (Count I) and defamation per se (Count II). See DE 1. In his Motion, North seeks dismissal of the Complaint based on lack of personal jurisdiction and, alternatively, dismissal of Count II based on the statute of limitations. DE 29. For the reasons set forth below, the Court finds that North's alleged acts lack a sufficient connection to Florida to give rise to specific personal jurisdiction in Florida. Accordingly, the Court cannot reach the other issues raised in the Motion.
II. Legal Standard
A federal court sitting in diversity must conduct a two-step inquiry to determine if personal jurisdiction exists over the defendant. United Techs. Corp. v. Mazer, 556 F.3d 1260, 1274 (11th Cir. 2009). The court must first determine if jurisdiction is authorized by the state long-arm statute. If it is, the court must then decide whether the exercise of jurisdiction over the defendant would comport with due process. Id.
On a Rule 12(b)(2) motion, the plaintiff bears the initial burden of pleading facts sufficient to demonstrate a prima facie case of personal jurisdiction over a non-resident defendant. A prima facie case requires enough evidence to withstand a motion for a directed verdict. Meier ex rel. Meier v. Sun Int'l Hotels, Ltd., 288 F.3d 1264, 1268-69 (11th Cir. 2002). If the defendant offers affidavits contesting jurisdiction, the burden shifts back to the plaintiff to submit countervailing evidence. Id. at 1269. The burden does not shift, however, if the defendant's affidavits contain only conclusory assertions that the defendant is not subject to jurisdiction. Id. If the plaintiff's allegations and supporting evidence conflict with the defendant's evidence, the court must construe all reasonable inferences in favor of the plaintiff. Id.
III. Discussion
It is not uncommon for a plaintiff to bring suit in a forum that lacks a strong connection to the litigation simply because the plaintiff resides in that forum. Here, not only is the relationship between this litigation and Florida tenuous at best, but none of the parties reside in Florida. Plaintiff is a New Jersey citizen. DE 1 ¶ 5. North resides in Colorado, DE 29-1 ¶ 5, and Reeber resides in California. And as explained above, Plaintiff's claims are based on online activity visible throughout the world. Plaintiff argues, however, that Defendant is subject to specific personal jurisdiction in Florida because: (1) Defendant's conduct was "cognizantly directed at [Plaintiff's] gambling activities within the Southern District of Florida;" DE 35 at 3, and (2) Plaintiff was injured in Florida. Id. at 8. These allegations could conceivably establish personal jurisdiction over Defendant under the "effects test," articulated by the Supreme Court in Calder v. Jones, 465 U.S. 783, 104 S.Ct. 1482, 79 L.Ed.2d 804 (1984). But, as set forth below, the Calder effects test does not confer jurisdiction here because Plaintiff offers no support for his conclusion that Defendant specifically targeted Plaintiff's gambling activities in Florida, nor does he show that Defendant could have anticipated that Plaintiff would suffer the brunt of the harm from the alleged misconduct in Florida.
A. Florida's Long-Arm Statute
While the Court's inquiry would typically begin with determining whether jurisdiction is authorized by Florida's long-arm statute, here, Defendant does not appear to challenge Plaintiff's assertion that personal jurisdiction attaches under the "tortious act" provision of the long-arm statute. See DE 1 ¶ 9 (citing Fla. Stat. § 48.193(1)(a)(2)). Accordingly, the Court assumes for purposes of the instant Motion that the tortious act provision of the long-arm statute is satisfied. See Estes v. Rodin, 259 So. 3d 183, 191 (Fla. 3d DCA 2018) (citing Internet Solutions Corp. v. Marshall, 39 So. 3d 1201, 1214 (Fla. 2010)) ("The Florida Supreme Court has held that a defendant need not be physically present in Florida to commit a tortious act under the long-arm statute, as committing a tortious act can occur when a nonresident defendant posts electronic communications on a website accessible and accessed in Florida.").
B. Due Process
Plaintiff fails to show, however, that the exercise of jurisdiction over Defendant would comport with due process. The due process analysis requires a court to consider whether: (1) the plaintiff's claims "arise out of or relate to" at least one of the defendant's contacts with the forum; (2) the non-resident defendant "purposefully availed" itself of the privilege of conducting activities within the forum; and (3) the exercise of personal jurisdiction comports with "traditional notions of fair play and substantial justice." Louis Vuitton Malletier, S.A. v. Mosseri, 736 F.3d 1339, 1355 (11th Cir. 2013). "The plaintiff bears the burden of establishing the first two prongs, and if the plaintiff does so, a defendant must make a compelling case that the exercise of jurisdiction would violate traditional notions of fair play and substantial justice." Id. (internal quotation marks omitted).
The first prong of the due process analysis "focus[es] on the direct causal relationship between the defendant, the forum, and the litigation." Id. at 1355-56 (internal quotation marks omitted). For specific personal jurisdiction, a plaintiff's claim must "arise out of or relate to at least one of the defendant's contacts with the forum." Id. at 1355 (internal quotation marks and citations omitted). While the parties do not address this prong of the due process analysis, it appears to be satisfied given that Plaintiff's claims relate to online posts accessible in Florida.
The second prong looks to whether the defendant's contacts with the forum state satisfy a constitutionally prescribed minimum threshold. Louis Vuitton, 736 F.3d at 1356. Under the "minimum contacts test," the court must determine whether these contacts: "(1) are related to the plaintiff's cause of action; (2) involve some act by which the defendant purposefully availed himself of the privilege of doing business within the forum; and (3) are such that the defendant should reasonably anticipate being haled into court in the forum." Id. at 1357. In intentional tort cases, there are two tests to determine whether purposeful availment has occurred: the effects test articulated in Calder v. Jones, 465 U.S. 783, 104 S.Ct. 1482, 79 L.Ed.2d 804 (1984), and the traditional minimum contacts test for purposeful availment. Id. Plaintiff satisfies neither of these tests.
Under the traditional minimum contacts test for purposeful availment, the court must "identify all contacts between a nonresident defendant and a forum state" and determine whether, individually or collectively, those contacts are related to the plaintiff's cause of action, show that the defendant has "purposefully availed himself of the privilege of doing business within the forum; and are such that the defendant should reasonably anticipate being haled into court in the forum." Id. Alternatively, under the effects test, a nonresident defendant's single tortious act can establish purposeful availment when the tort: "(1) [was] intentional; (2) [was] aimed at the forum state; and (3) caused harm that the defendant should have anticipated would be suffered in the forum state." Id. at 1356 (quoting Licciardello v. Lovelady, 544 F.3d 1280, 1286 (11th Cir. 2008)).
Plaintiff first argues that he satisfies the effects test because he has alleged "a conscious targeting of Mr. Toll, within the State of Florida." DE 35 at 9. But he fails to support that conclusory allegation with any explanation as to how Defendant's conduct was aimed at Florida more than any other state. Plaintiff does not, for instance, claim that the Website contained any statements about his gambling activities in Florida, his relationship with Florida casinos, or that it targeted a Florida audience in any way. In his Complaint, Plaintiff merely alleges that Defendant's online campaign of defamation was "directed, in part, toward Florida web browsers and, in particular, Florida casinos and gaming communities resulting in harm to [Plaintiff] within the state." DE 1 ¶ 9 (emphasis added). In other words, Defendant's conduct was partly directed at Florida, and partly directed at everywhere else in the world with internet access. This is clearly not the type of "express aiming" that would satisfy the effects test. See, e.g., Vision Media TV Grp., LLC v. Forte, 724 F. Supp. 2d 1260, 1266 (S.D. Fla. 2010) (dismissing libel suit for lack of personal jurisdiction where there was no evidence "showing that the website at issue targeted Florida or that Defendants acted to aim their conduct at a Florida audience").
As to the harm that Plaintiff allegedly suffered in Florida, he vaguely refers to "strained and lost relationships with members of the gaming and gambling circles within the state, including established casinos." Id. ¶ 56. He concedes, however, that "[t]his harm has materialized elsewhere," including in Las Vegas where he was allegedly detained in a casino because security guards were made aware of the Website. Id. ¶ 57. He has also presumably suffered harm in New Jersey where he resides. In short, unlike in Calder, there is no indication that Defendant had any reason to believe the "brunt" of Plaintiff's injury would be felt in Florida. See Calder, 465 U.S. at 789, 104 S.Ct. 1482; see also Bioheart, Inc. v. Peschong, No. 13-60304-CIV, 2013 WL 1729278, at *5 (S.D. Fla. Apr. 22, 2013) (finding defendant who posted allegedly defamatory statements about Bioheart on website message board did not purposefully direct his tortious acts toward Florida because there was "no reason for [defendant] to have thought that Bioheart's investors would be located in Florida, as opposed to any other state").
In support of his argument that he satisfies the effects test, Plaintiff relies heavily on Freedom Mentor, LLC v. Saeger, No. 6:18-1235-CIV, 2019 WL 313788 (M.D. Fla. Jan. 24, 2019). Freedom Mentor, however, is completely distinguishable from the instant case. For one, the plaintiff in Freedom Mentor had its principal place of business in Florida. Id. at * 1. This permitted the court to conclude that "Defendants' conduct 'was calculated to cause injury to [Plaintiff] in Florida.' " Id. at *4. Here, as Plaintiff is a New Jersey citizen, the Court cannot reach the same conclusion. Moreover, the Freedom Mentor court was "principally guided by Licciardello." Id. In Licciardello, the Eleventh Circuit was "careful to limit its holding to the specific circumstances of that case," id., and held
only that where the internet is used as a vehicle for the deliberate, intentional misappropriation of a specific individual's trademarked name or likeness and that use is aimed at the victim's state of residence, the victim may hale the infringer into that state to obtain redress for the injury. The victim need not travel to the state where the website
was created or the infringer resides to obtain relief.Licciardello, 544 F.3d at 1288 n.8 (emphasis added).
Finally, for essentially the same reasons set forth above, Plaintiff also fails to satisfy the traditional minimum contacts test for purposeful availment. The sole relevant contact between Defendant and Florida is his alleged online activity visible in Florida. Additionally, it is notable that Plaintiff does not claim that Defendant operated the Website even partially for commercial purposes. As such, the Court cannot conclude that Plaintiff purposefully availed himself of the Florida forum in such a way that he could reasonably foresee being haled into a Florida court. See, e.g., DCS Real Estate Invs., LLC v. Bella Collina Events, LLC, No. 5:14-678-CIV, 2015 WL 628586, at *3 (M.D. Fla. Feb. 12, 2015) (finding the defendant's "online presence on websites accessible in Florida," without more, inadequate to satisfy the minimum contacts inquiry and noting that defendant "did not utilize its online presence to actively solicit business from Florida residents").
C. Transfer
Having found that Plaintiff failed to establish that the exercise of jurisdiction over Defendant would comport with due process, all that remains is for the Court to determine whether Plaintiff's claims against Defendant should be dismissed or transferred to the District of Colorado. Defendant opposes transfer for two reasons. First, he argues that Plaintiff's claims should not be transferred "because Plaintiff failed to file a motion requesting any such relief." DE 38 at 6. Next, he argues that a transfer "would not be in furtherance of the interests of justice." Id. at 8.
28 U.S.C. § 1631 states that "[w]henever a civil action is filed in a court . . . and that court finds that there is a want of jurisdiction, the court shall, if it is in the interest of justice, transfer such action or appeal to any other such court in which the action or appeal could have been brought at the time it was filed." (emphasis added). Given that transfer is mandatory if it is in the interest of justice, courts have found motions to transfer unnecessary. See Miller v. Hambrick, 905 F.2d 259, 262 (9th Cir. 1990) (quoting In re McCauley, 814 F.2d 1350, 1352 (9th Cir. 1987)) ("Although Miller did not move the district court to transfer the case, we have held that '[a] motion to transfer is unnecessary because of the mandatory cast of section 1631's instructions.' "). Accordingly, Plaintiff's failure to file a separate motion to transfer is irrelevant.
As for the interest of justice, "where a statute of limitations defense may arise, the 'interest of justice' may require that the complaint not be dismissed but rather that it be transferred in order that the plaintiff not be penalized by . . . 'time-consuming and justice-defeating technicalities.' " Margulis v. Stryker Corp., 377 F. Supp. 3d 1367, 1369 (S.D. Fla. 2019) (quoting Goldlawr, Inc. v. Heiman, 369 U.S. 463, 467, 82 S.Ct. 913, 8 L.Ed.2d 39 (1962)). See also Erwin v. Ford Motor Co., No. 8:16-01322-CIV, 2016 WL 9525590, at *2 (M.D. Fla. Sept. 27, 2016) ("If the Court were to outright dismiss Plaintiff's claim without granting Plaintiff's motion to transfer, it would have effectively adjudicated Plaintiff's claim without giving him the opportunity to have the merits of his claim heard by a court—the exact result 28 U.S.C. § 1631 seeks to avoid.").
Here, Plaintiff's defamation claim may be barred by the statute of limitations if he is forced to re-file in a different court. See DE 35 at 14. Accordingly, the Court finds that in this case it is in the interest of justice to: (1) sever Plaintiff's claims against Defendant under Federal Rule of Civil Procedure 21 such that the severed claims become, in effect, a separate civil action, and (2) transfer the action to the District of Colorado, which has personal jurisdiction over the Defendant and in which venue properly lies.
IV. Conclusion
For the foregoing reasons, it is ORDERED and ADJUDGED as follows:
1. Defendant Levi North's Motion to Dismiss and/or Strike ("Motion") [DE 19] is GRANTED;
2. Plaintiff's claims against Defendant North are SEVERED from the current matter; and
3. The Clerk shall TRANSFER only Plaintiff's claims against Defendant North, to the United States District Court for the District of Colorado. Plaintiff's claims against Defendant Bennett Reeber shall remain pending before this Court.
DONE AND ORDERED in Chambers at Fort Lauderdale, Broward County, Florida, this 2nd day of December, 2022.