JOHN E. STEELE, Senior District Judge.
This matter comes before the Court on defendant's Motion to Dismiss for Lack of Personal Jurisdiction and Improper Venue (Doc. #17) filed on November 9, 2017. Defendant submitted his affidavit in support of the motion. (Doc. #17-2.) Plaintiff filed a Response in Opposition (Doc. #22) on November 29, 2017. For the reasons set forth below, the motion is granted with leave to amend the Complaint.
This is an action for defamation and libel based on two statements allegedly published by defendant about plaintiff on the social media website, www.facebook.com ("Facebook"). The Complaint (Doc. #1) alleges two state law claims: (1) defamation/libel
Plaintiff James McGlothlin (plaintiff or McGlothlin), a Florida citizen, is a businessman and the founding member of The United Company, which is the parent company of Scratch Golf, LLC. (Doc. #1, ¶¶ 1-2.) Scratch Golf owns real property in Beaufort County, South Carolina, operated and commonly known as the Hilton Head National Golf Course (the Property). (
On May 14, 2017, defendant Kevin N. Hennelly (defendant or Hennelly), a South Carolina citizen, published the first Facebook post, criticizing Scratch Golf's rezoning application and the Property, stating that McGlothlin was a "crony capitalist" who would "break every rule in the book to get a government favor or handout." (Doc. #7-1.) The post also stated that plaintiff was a "crook." (
On May 23, 2017, Hennelly published the second allegedly defamatory statement on Facebook, stating that plaintiff was "up to [his] eyeballs in the recent scandals in Virginia with the Governor and his wife. McGlothin gave the Governors [sic] wife a no show job at the heart of the ethical and criminal activity." (Doc. #4-1.) Plaintiff alleges that the scandal involving the Governor and his wife was highly publicized. (Doc. #1, ¶13.)
Plaintiff alleges general damages; actual damages, including injury to his reputation; mental suffering, anguish, and public humiliation; and punitive damages. (Doc. #1, ¶¶ 19-21.) Plaintiff further alleges that defendant is not only liable for the initial publication of the two statements, but also for each subsequent republication, as separate offenses. (
Hennelly moves to dismiss the Complaint for lack of personal jurisdiction and improper venue. Plaintiff opposes both aspects of the motion.
When ruling on a motion to dismiss under Federal Rule of Civil Procedure 12(b)(2), the Court must conduct a "two-step inquiry when determining whether the exercise of personal jurisdiction over a nonresident defendant is proper."
In his response, plaintiff relies upon subsection (1)(a)(2) of the Florida "long arm" statute related to specific jurisdiction, which permits the exercise of jurisdiction over actions arising out of tortious acts committed within Florida. Fla. Stat. § 48.193(1)(a)(2). This portion states:
Defendant argues that personal jurisdiction fails because neither of the two Facebook posts were directed to individuals in Florida, nor sent to individuals in Florida, and the proposed rezoning involves property located in South Carolina. Defendant emphasizes that other than plaintiff's state of residence, there is no other mention of a connection to Florida in the Complaint. In response, plaintiff states that courts have found that a defendant commits a tortious act within the state for purposes of the long arm statute when making defamatory remarks on the Internet which is accessible in Florida. Plaintiff's only factual allegations in this regard state: "Upon information and belief, the internet website www.facebook.com was accessible in Florida at the time the statements were made and was accessed in this State." (Doc. #1, ¶ 12.)
Although the posting of defamatory material about a Florida resident on a website does not alone constitute the commission of a tortious act under Florida's long arm statute, "the posting of such that was both accessible in Florida and accessed in Florida constituted the commission of a tortious act of defamation within Florida" under the long arm statute.
Here, the Complaint does not allege that the defamatory material was accessed in Florida. Rather, it alleges on information and belief that the website Facebook was accessible in Florida at the time the statements were made and the website was accessed in Florida. Yet, the Florida Supreme Court and the Eleventh Circuit have determined that the defamatory material must be accessed in Florida to constitute the commission of a tortious act of defamation within Florida for purposes of the long arm statute.
Accordingly, it is hereby
Defendant's Motion to Dismiss for Lack of Personal Jurisdiction and Improper Venue (Doc. #17) is