DARRIN P. GAYLES, District Judge.
Plaintiff Maritime Executive, LLC ("Maritime" or "Plaintiff") filed this action against Defendants Larson Electronics, LLC ("Larson"), and Robert Bresnahan ("Bresnahan") (collectively, "Defendants") for defamation and defamation per se [ECF No. 1-2]. Maritime is a Florida limited liability company. Larson is a Texas limited liability company and Bresnahan is domiciled in and a citizen of Texas. Bresnahan is sole shareholder of Controlling Factor, Inc., which is the sole member of Larson.
According to the Complaint, in or around January of 2016, Maritime entered into a written agreement with Larson where Maritime would publish advertisements for Larson's products in Maritime's email marketing lists and newsletter. Maritime alleges it published the agreed upon advertisements but Larson failed to pay for its services. Maritime alleges that after it attempted to collect on the debts owed by Larson, Defendants began publishing defamatory statements about Maritime on Larson's website. See [ECF No. 1-2, ¶ 11]. Maritime also alleges that Defendants purchased Google AdWords advertisements that referred to Maritime as a "scam," and appeared as the first link on Google when users entered certain search terms associated with Maritime. See [Id. ¶ 12].
Following removal from the Seventeenth Judicial Circuit in and for Broward County, Florida, Defendants moved to dismiss, arguing that this Court does not have personal jurisdiction over them. Bresnahan also moved to dismiss arguing that Plaintiff has failed to state a claim against him for defamation and defamation per se. Maritime filed a Response in Opposition [ECF No. 16] addressing Defendants' personal jurisdiction arguments, but did not respond to Bresnahan's arguments concerning a failure to state a claim against him for defamation and defamation per se.
"To survive a motion to dismiss, a complaint must contain sufficient factual matter, ac-cepted as true, to `state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Although this pleading standard "does not require `detailed factual allegations,' . . . it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Id. (quoting Twombly, 550 U.S. at 555).
Pleadings must contain "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555 (citation omitted). In-deed, "only a complaint that states a plausible claim for relief survives a motion to dismiss." Iq-bal, 556 U.S. at 679 (citing Twombly, 550 U.S. at 556). To meet this "plausibility standard," a plaintiff must "plead[] factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. at 678 (alteration added) (citing Twombly, 550 U.S. at 556). When reviewing a motion to dismiss, a court must construe the complaint in the light most favorable to the plaintiff and take the factual allegations therein as true. See Brooks v. Blue Cross & Blue Shield of Fla. Inc., 116 F.3d 1364, 1369 (11th Cir. 1997).
"A plaintiff seeking to establish 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.'" Louis Vuitton Malletier, S.A. v. Mosseri, 736 F.3d 1339, 1350 (11th Cir. 2013) (quoting United Techs. Corp. v. Mazer, 556 F.3d 1260, 1274 (11th Cir. 2009)). When a defend-ant submits evidence in support of its challenge to personal jurisdiction, "the burden tradition-ally shifts back to the plaintiff to produce evidence supporting jurisdiction." Id. (quoting Madara v. Hall, 916 F.2d 1510, 1514 (11th Cir. 1990)). "Where the plaintiff's complaint and supporting evidence conflict with the defendant's affidavits, the court must construe all reasonable infer-ences in favor of the plaintiff," Diamond Crystal Brands, Inc. v. Food Movers Int'l, Inc., 593 F.3d 1249, 1257 (11th Cir. 2010) (citation omitted), and still must "accept the facts alleged in the complaint as true, to the extent they are uncontroverted by the defendant's affidavits." Madara, 916 F.2d at 1514.
A federal court sitting in diversity undertakes a two-step inquiry in determining whether personal jurisdiction over a nonresident defendant exists. First, the court must determine whether the exercise of jurisdiction is appropriate under Florida Statute § 48.193, Florida's long-arm statute. Second, the court must determine whether personal jurisdiction over the defendant violates the Due Process Clause of the Fourteenth Amendment to the United States Constitution. Mutual Serv. Ins. Co. v. Frit Indus., Inc., 358 F.3d 1312, 1319 (11th Cir. 2004).
Maritime argues that the Court has jurisdiction over Defendants under Florida's long-arm statute. The long-arm statute provides, in pertinent part:
(2) A defendant who is engaged in substantial and not isolated activity within this state, whether such activity is wholly interstate, intrastate, or otherwise, is subject to the jurisdiction of the courts of this state, whether or not the claim arises from that activity.
Fla. Stat. §§ 48.193(1)(a)(1)-(2),(6), 48.193(2). Maritime contends that jurisdiction is proper under all of these provisions. The Court addresses each in turn.
The reach of the general jurisdiction provision of the Florida long-arm statute is co-extensive with the limits of the Due Process Clause, so the Court need only ascertain whether its exercise of jurisdiction over the Defendants "would exceed constitutional bounds." Carmouche v. Tamborlee Mgmt., Inc., 789 F.3d 1201, 1204 (11th Cir. 2015) (quoting Fraser v. Smith, 594 F.3d 842, 846 (11th Cir. 2010)). The Due Process clause permits personal jurisdiction so long as the nonresident defendant has certain minimum contacts with the forum such that maintenance of the suit does not offend "traditional notions of fair play and substantial justice." Int'l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) (quoting Milliken v. Meyer, 311 U.S. 457, 463 (1940)).
There are two bases for general jurisdiction over a corporation: its place of incorporation and its principal place of business. Daimler AG v. Bauman, 134 S.Ct. 746, 760 (2014) (citation and alterations omitted).
To support the exercise of general jurisdiction pursuant to section 48.193(2), Maritime al-leges that Larson conducts substantial business in the state of Florida and that Bresnahan is the owner and managing member of Larson. [ECF No. 1-2, ¶¶ 3-4]. Plaintiff also submitted an affi-davit of its President, Tony Munoz, which states that "[Defendants] otherwise advertise in the State of Florida as well as sell and distributes [sic] products to the State of Florida." [ECF No. 16, Exhibit C ¶ 14]. Such conclusory allegations are insufficient to meet Maritime's burden as they do not point to any specific continuous or systematic contacts with Florida that would justi-fy the exercise of general jurisdiction. Snow v. DirecTV, Inc., 450 F.3d 1314, 1318 (11th Cir. 2006). Indeed, Maritime does not allege that Larson has an office, post office box, registered agent, or any employees in Florida. In regards to Bresnahan, a resident of Texas, he was not served in and did not consent to jurisdiction in Florida. Accordingly, the Court finds that there is no general jurisdiction over Defendants in Florida.
Specific jurisdiction "authorizes jurisdiction over causes of action arising from or related to the defendant's actions within Florida and concerns a nonresident defendant's contacts with Florida only as those contacts related to the plaintiff's cause of action." Louis Vuitton, 736 F.3d at 1352 (citing Oldfield v. Pueblo de Bahia Lora, S.A., 558 F.3d 1210, 1120 n.27 (11th Cir. 2009)). Maritime alleges that Defendants have committed a tort in Florida.
The "tortious acts within Florida" provision of the long-arm statute, provides that a non-resident defendant is subject to personal jurisdiction in Florida "for any cause of action arising from . . . [c]omitting a tortious act within Florida." Fla. Stat. § 48.193(1)(a)(2). Accordingly, Maritime must show that its defamation claims arose from Defendants committing "a tortious act within Florida." Courts in the Eleventh Circuit apply a broad construction of subsection (1)(a)(2) and consistently hold that the physical presence of a defendant in Florida is not required for long-arm jurisdiction if the plaintiff suffered harm in Florida. See, e.g., Louis Vuitton, 736 F.3d at 1354; Licciardello v. Lovelady, 544 F.3d 1280, 1283 (11th Cir. 2008); Brennan v. Roman Catholic Dio-cese of Syracuse N.Y., Inc., 322 F. App'x 852, 854 (11th Cir. 2009); You Fit, Inc. v. Pleasanton Fitness, LLC, No. 12-01917, 2012 WL 12905186, at *3 (M.D. Fla. Dec. 20, 2012); Enviracarbon, Inc. v. Couch, 6:10-CV-1886-ORL-35, 2011 WL 4501058, at *2 (M.D. Fla. June 20, 2011). Nev-ertheless, the Florida long-arm statute mandates that the tort be committed in Florida.
The elements of a defamation claim are: "(1) publication; (2) falsity; (3) actor must act with knowledge or reckless disregard as to the falsity on a matter concerning a public official, or at least negligently on a matter concerning a private person; (4) actual damage; and (5) statement must be defamatory." Internet Solutions Corp. v. Marshall, 39 So.3d 1201, 1214 n.8 (Fla. 2010) (internal quotation marks omitted) (quoting Jews for Jesus, Inc. v. Rapp, 997 So.2d 1098, 1106 (Fla. 2008)). In Florida, the tort of defamation is considered incomplete until the statements are pub-lished. See id. at 1214 (citing Silver v. Levinson, 648 So.2d 240, 242 (Fla. 4th DCA 1997)); Ca-sita, L.P. v. Maplewood Equity Partners, L.P., 960 So.2d 854, 857 (Fla. 3d DCA 2007) (the tort of defamation "is committed in the place where the defamatory material is published.").
In a situation where a nonresident defendant has posted an allegedly defamatory statement on the Internet, it can be said that "the poster has directed the communication about a Florida resi-dent to readers worldwide, including potential readers within Florida." Internet Solutions Corp., 39 So. 3d at 1215. For the purposes of a defamation action, "[a] nonresident defendant commits the tortious act of defamation in Florida for purposes of Florida's long-arm statute when the nonresi-dent makes allegedly defamatory statements about a Florida resident by posting those statements on a website, provided that the website posts containing the statements are accessible in Florida and
Maritime alleges that Defendants published an article containing defamatory statements on Larson's website [ECF No. 1-2, ¶ 11], which was accessible to residents in the State of Florida. See [ECF No. 16, Exhibit C ¶ 10]. Maritime also alleges that Defendants purchased a Google AdWords advertisement that referred to Maritime's business as a "scam," and that this adver-tisement was also accessible in the State of Florida. See [Id. ¶ 11]. Maritime alleges the defama-tory statements were published in "other maritime news journals," but does not provide any addi-tional facts regarding the circulation or readership of these other alleged journals.
Accepting the factual allegations as true, while the alleged defamatory statements were arguably accessible in Florida, Maritime has not established that the alleged defamatory state-ments were published or accessed by a third-party in Florida. Howard v. Nano, 3:11CV366/MCR/CJK, 2012 WL 3668045, at *2 (N.D. Fla. Aug. 25, 2012) (noting that Internet Solutions would not have drawn a distinction between internet sites accessed or merely accessi-ble in Florida if online defamation satisfied the Florida long-arm statute regardless of where pub-lication occurred). Indeed, the only person specifically identified as having accessed the alleged defamatory materials in Florida is Maritime's President, Tony Munoz, who does not constitute a third-party for purposes of defamation. See [ECF No. 16, Exhibit C ¶¶ 10-11].
Once a party has failed to meet the first prong of the personal jurisdiction analysis, the Court "need not reach the issue of whether . . . the exercise of jurisdiction comports with due pro-cess." Maale v. Kirchgessner, 08-80131-CIV, 2010 WL 11506095, at *6 n.9 (S.D. Fla. May 27, 2010), aff'd sub nom. Maale v. Caicos Beach Club Charter, Ltd., 420 F. App'x 895 (11th Cir. 2011); PVC Windoors, Inc. v. Babbitbay Beach Const., N.V., 598 F.3d 802, 807 (11th Cir. 2010) ("Because the federal courts are duty bound to avoid a constitutional question if answering the question is unnecessary to the adjudication of the claims at hand," . . . "[o]nly where the long-arm statute provides jurisdiction do we proceed to the second step and determine whether the defendant ha[s] minimum contacts with the forum state") (internal quotations omitted).
Because Maritime has not sufficiently alleged that Defendants published defamatory ma-terial that was accessed by a third-party in Florida, the Court concludes that it may not exercise personal jurisdiction over Defendants. Accordingly, it is
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