552 F.3d 1290 (11th Cir. 2008), 07-14966, Adventure Outdoors, Inc. v. Bloomberg

Docket Nº:07-14966, 07-15951.
Citation:552 F.3d 1290
Party Name:ADVENTURE OUTDOORS, INC., a Georgia Corporation, Wallace and Wallace, Inc., a Georgia Corporation, et al., Plaintiffs-Appellees, v. Michael BLOOMBERG, Mayor of the City of New York, in His Capacity as Mayor of New York City, and individually, New York City, a New York Corporation, et al., Defendants-Appellants.
Case Date:December 19, 2008
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

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552 F.3d 1290 (11th Cir. 2008)

ADVENTURE OUTDOORS, INC., a Georgia Corporation, Wallace and Wallace, Inc., a Georgia Corporation, et al., Plaintiffs-Appellees,


Michael BLOOMBERG, Mayor of the City of New York, in His Capacity as Mayor of New York City, and individually, New York City, a New York Corporation, et al., Defendants-Appellants.

Nos. 07-14966, 07-15951.

United States Court of Appeals, Eleventh Circuit.

December 19, 2008

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[Copyrighted Material Omitted]

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Peter Canfield, Michael Kovaka, Matthew Crawford, Dayna Brooke Harmelin, Dow Lohnes, PLLC, Atlanta, GA, Kenneth W. Taber, Pillsbury, Winthrop, Shaw & Pittmann, LLP, Eric Proshansky, New York City Law Dept., New York City, for Defendants-Appellants.

Edwin Marger, Jasper, GA, for Plaintiffs-Appellees.

Appeal from the United States District Court for the Northern District of Georgia.

Before DUBINA, HULL and FAY, Circuit Judges.

DUBINA, Circuit Judge:

In this state-law libel and negligence action, the Appellants-officials from New York City and various investigators hired by the City to conduct investigations in Georgia-appeal the district court's order concluding that Georgia privilege law applies to this case and that Georgia's anti-SLAPP (Strategic Lawsuits Against Public Participation) statute does not apply in federal court. Because we conclude from the record that this state-law tort action does not provide a sufficient basis for the exercise of federal subject matter jurisdiction, we do not reach the issues raised by the Appellants. We reverse the district

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court's finding of federal subject matter jurisdiction and remand this case to the district court with instructions that the district court remand this case to the state court from which it was removed.


This lawsuit stems from a wide-reaching investigation of firearms dealers conducted by New York City officials concerned about the use of illegally purchased firearms in New York. These officials believed that a handful of gun dealers were engaging in illegal practices, such as knowingly permitting straw purchase transactions, and that a large number of the guns purchased in these illegal transactions were transferred to New York City. Straw purchase transactions involve the purchase of a firearm by an individual legally eligible to make the purchase (the straw) with the intent to immediately transfer the gun to another individual who is legally ineligible to purchase the weapon (the actual purchaser). In order to ascertain whether certain gun dealers were willing to participate in such illegal sales, New York officials hired private investigators to simulate straw purchases.

On April 8, 2006, two investigators hired by the City of New York, one male and one female, entered Adventure Outdoors, a Georgia firearms dealer, and simulated a straw purchase. The male investigator consulted with an Adventure Outdoors salesperson and selected a Glock 9 mm handgun for purchase. At that time, the male investigator summoned the female investigator, who had not participated in the selection of the firearm, and she filled out the required paperwork, including Bureau of Alcohol, Tobacco, Firearms, and Explosives (" ATF" ) Form 4473. The store ran a background check on the female investigator, and the transaction was completed.

Following their investigation, the New York City officials held a press conference to announce the filing of a civil action against numerous gun dealers, including Adventure Outdoors. At this press conference, the New York officials accused the gun dealers of violating federal law, making statements such as the following:

• " -and most are sold by a small [group] of rogue gun dealers who refuse to obey federal laws ."

• " caught them ... breaking the Federal laws regulating gun Sales. "

• " group of bad apples who routinely ignore federal regulations. "

• " stop your illegal conduct or you too will face this kind of penalty" ; and

• " ... holding gun dealers who break the law accountable ...."

Adventure Outdoors v. Bloomberg, 519 F.Supp.2d 1258, 1282 (N.D.Ga.2007).

After the press conference and the filing of the New York City officials' lawsuit in the Eastern District of New York (" the New York action" ), Adventure Outdoors, Inc.; Jay Wallace; and Cecilia Wallace (referred to collectively as " plaintiffs" ) filed suit in the Superior Court of Cobb County, Georgia (" the Georgia action" ) against New York City; Michael Bloomberg, the mayor of New York City; Michael A. Cardozo, Corporation Counsel of the City of New York; Raymond Kelly, Chief of Police of the New York Police Department; and John Feinblatt, Criminal Justice Coordinator of New York City (referred to collectively as " New York defendants" and " defendants" ). In the Georgia action, the plaintiffs also named as defendants Nooner Investigative Group; Tanya Marie Nooner, a Georgia resident and the principal of Nooner Investigative Group; Melissa Merced, of Nooner Investigative Group; Joseph Tounsel, of Nooner Investigative Group; James Mintz, principal of

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The James Mintz Group; and The James Mintz Group (referred to collectively as " Georgia defendants" and " defendants" ).

The complaint in the Georgia action contains six counts. Count One sets forth a number of allegedly defamatory statements made by the defendants. Counts Two and Three state identical claims for gross negligence and negligence, respectively. In the negligence-related counts, the plaintiffs contend that the New York defendants should have consulted their lawyers to ascertain the alleged illegality of their investigative scheme. The plaintiffs also claim that the New York defendants easily could have discovered the legality of the plaintiffs' operations by (a) investigating whether 21 guns used in New York crimes were negligently or unlawfully sold by Adventure Outdoors; (b) contacting the ATF to inquire into the plaintiffs' previous cooperation with law enforcement efforts; (c) contacting the plaintiffs directly to inquire into the safeguards that were in place at Adventure Outdoors to prevent unlawful firearms sales; and (d) debriefing the Georgia defendants to determine why the Adventure Outdoors salesperson asked the female investigator to initial the straw purchaser paragraph of ATF Form 4473 during the simulated straw purchase. Count Four contains allegations of aiding and abetting, and Count Five alleges that Mayor Bloomberg committed " special violations" that were both defamatory and grossly negligent when he met with the mayor of Atlanta to enlist her support for the New York City investigation. While not labeled as such, the complaint also contains what amounts to a sixth count, an allegation of tortious interference with business relations.

The defendants removed the Georgia action to the United States District Court for the Northern District of Georgia where they sought to have the action dismissed on a number of different grounds, or in the alternative, transferred to the Eastern District of New York. In response, the plaintiffs filed a motion to remand and opposed the defendants' motion to dismiss. The district court found that federal jurisdiction was proper, dismissed the plaintiffs' negligence-related claims, denied dismissal on the claims for tortious interference with business relations and defamation, and declined to transfer the case. In addition, the court concluded that Georgia's anti-SLAPP statute does not apply to an action removed to federal court and that Georgia's privilege law governs the plaintiffs' claims. This court granted the defendants an interlocutory appeal on the anti-SLAPP and privilege rulings.


We review subject matter jurisdiction de novo. Pintando v. Miami-Dade Hous. Agency, 501 F.3d 1241, 1242 (11th Cir.2007). Likewise, we review de novo federal-versus-state, or Erie, 1 choice-of-law questions, Esfeld v. Costa Crociere, S.P.A., 289 F.3d 1300, 1306 (11th Cir.2002), and state-versus-state choice-of-law questions, AIG Baker Sterling Heights, L.L.C. v. Am. Multi-Cinema, Inc., 508 F.3d 995, 999 (11th Cir.2007).


A . Applicable Law

" A removing defendant bears the burden of proving proper federal jurisdiction." Leonard v. Enter. Rent a Car, 279 F.3d 967, 972 (11th Cir.2002). Any doubts about the propriety of federal jurisdiction should be resolved in favor of remand to state court. Diaz v. Sheppard, 85 F.3d 1502, 1505 (11th Cir.1996). The existence

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of federal jurisdiction is tested at the time of removal. Whitt v. Sherman Int'l Corp., 147 F.3d 1325, 1332 (11th Cir.1998). In determining whether jurisdiction exists under 28 U.S.C. § 1331, a court must look to the well-pleaded complaint alone. Louisville & Nashville R. Co. v. Mottley, 211 U.S. 149, 152, 29 S.Ct. 42, 43, 53 L.Ed. 126 (1908). Thus, to meet their burden, the defendants must show that the plaintiffs' complaint, as it existed at the time of removal, provides an adequate basis for the exercise of federal jurisdiction. Although the plaintiffs bring claims solely under state law, the defendants argue that federal jurisdiction nonetheless is proper under the substantial-federal-question jurisdiction doctrine.

In Merrell Dow Pharmaceuticals, Inc. v. Thompson, 478 U.S. 804, 805-06, 106 S.Ct. 3229, 3231, 92 L.Ed.2d 650 (1986), the plaintiffs brought a state-law tort claim against a drug manufacturer, alleging that the defendant's failure to comply with the branding provision of the federal Food, Drug, and Cosmetic Act (" FDCA" ) constituted negligence. In determining that federal jurisdiction was not appropriate, the Supreme Court placed special emphasis on the...

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