RendóN v. Bloomberg, L.P.
| Decision Date | 12 September 2019 |
| Docket Number | Case No. 17-21192-CIV-WILLIAMS/TORRES |
| Citation | 403 F.Supp.3d 1269 |
| Parties | Juan José RENDÓN, Plaintiff, v. BLOOMBERG, L.P., et al., Defendant. |
| Court | U.S. District Court — Southern District of Florida |
Dustin A. Pusch, Pro Hac Vice, Elizabeth M. Locke, Pro Hac Vice, Thomas A. Clare, Pro Hac Vice, Clare Locke, LLP, Alexandria, VA, Il Young Choi, Miami, FL, for Plaintiff.
Jeffrey B. Korn, Jonathan D. Waisnor, Pro Hac Vice, Willkie Farr & Gallagher, LLP, New York, NY, Thomas Richard Julin, Timothy John McGinn, Jr., Gunster, Yoakley & Stewart, P.A., Miami, FL, for Defendant.
THIS MATTER is before the Court on a motion to dismiss, (DE 52), filed by Defendants Bloomberg LP. ("Bloomberg"), Bloomberg Businessweek ("Businessweek"), Jordan Robertson ("Robertson"), and Michael Riley ("Riley"). Plaintiff, Juan José Rendón ("Rendón"), filed a response in opposition (DE 56), to which Defendants filed a reply (DE 60). For the reasons set forth below, Defendants' motion to dismiss (DE 52) is GRANTED.
Plaintiff Rendón's complaint arises from allegedly defamatory statements in an article published by Defendants, titled "How To Hack an Election" ("the Article"). (DE 43 at 1). The Article focuses on interviews with Andres Sepúlveda ("Sepúlveda"), a convicted hacker and cyberterrorist, in which he recounts his experience hacking political campaigns across Latin America. (DE 43 at 19). The Article states that Sepúlveda claimed to have committed cyber-attacks on campaigns at the behest of Rendón. (DE 43 at 76). Rendón denies this claim alleging that Sepúlveda's statement—that Rendón paid him cash to hack the private and public content of political opponents—is false and defamatory. (DE 56 at 12).
The Article was published online on March 31, 2016, (DE 43 at 40), and in print on April 4-10, 2016 (DE 43 at 45). On August 16, 2016 Rendón wrote to Defendants Bloomberg and Businessweek requesting a retraction. Rendón filed an amended complaint on September 14, 2018, alleging three counts of defamation for three publications of the Article: online, (DE 43 at 40), in print domestically (DE 43 at 44), and in print internationally, (DE 43 at 51), respectively.1 Additionally, Rendón brings four more counts of defamation for comments made in interviews by the Defendants while marketing the Article: CNN En Español on April 1, 2016, (DE at 43 at 56), Notiguía.TV Online Show on April 1, 2016, (DE 43 at 59), Radio Formula Show on April 1, 2016, (DE 43 at 62), and PRI Public International Radio Show on April 1, 2016 (DE 43 at 65). Finally, Rendón brings a count of Negligent Supervision of its employees against Defendants Bloomberg and Businessweek. (DE 43 at 68).
In ruling on a motion to dismiss for failure to state a claim under Rule 12(b)(6), the court assumes as true all well-pleaded factual allegations and determines whether they plausibly give rise to an entitlement for relief. Ashcroft v. Iqbal , 556 U.S. 662, 129 S. Ct. 1937, 1950, 173 L.Ed.2d 868 (2009). To survive a motion to dismiss, a complaint must contain sufficient facts to state a claim for relief that is plausible on its face. Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Plaintiffs make a facially plausible claim when they plead factual content from which the court can reasonably infer that defendants are liable for the misconduct alleged. Iqbal , 129 S. Ct. at 1949. "The plausibility standard is not akin to a ‘probability requirement’ but it asks for more than a sheer possibility that a defendant has acted unlawfully." In determining whether a complaint states a plausible claim for relief, the Court draws on its judicial experience and common sense. Id. at 1950.
Although the court resolves all doubts or inferences in the plaintiff's favor, the plaintiff bears the burden to frame the complaint with sufficient facts to suggest that he is entitled to relief. Twombly , 550 U.S. at 556, 127 S.Ct. 1955. A pleading that offers labels and conclusions, a formulaic recitation of the elements of a cause of action, or naked assertions devoid of further factual enhancement will not stand. Id. at 557, 127 S.Ct. 1955. Dismissal pursuant to a Rule 12(b)(6) motion is warranted "only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations of the complaint." Shands Teaching Hosp. and Clinics, Inc. v. Beech St. Corp. , 208 F.3d 1308, 1310 (11th Cir. 2000) (quoting Hishon v. King & Spalding , 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984) ).
Defendants move to dismiss the complaint on several grounds. First, Defendants argue that this Court lacks subject matter jurisdiction over Rendón's claims. Second, Defendants argue that Rendón failed to satisfy the condition precedent created by Section 770.01 of the Florida Statutes. Finally, Defendants argue that the Complaint fails to state a claim upon which relief can be granted because (1) the Article is protected by the neutral reporting privilege; (2) the Complaint does not plausibly allege that Defendants acted with actual malice; and (3) Counts IV, V and VI are time-barred. The Court agrees that Rendón failed to satisfy the condition precedent required by Section 770.01 of the Florida Statutes and that the Article is protected by the neutral reporting privilege.
Defendants contend that Rendón did not satisfy the condition precedent created by Florida Statutes, Section 770.01. (DE 52 at 26). Defendants first argue that Counts I, II, and III should be dismissed because Rendón's notice "did not identify the alleged false and defamatory statements with requisite specificity." (DE 52 at 27). Next, Defendants submit that Counts IV, V, VI, and VII should be dismissed because "Rendón's retraction notice did not identify the interviews as false and defamatory." (DE 52 at 28). Third, Defendants argue that all counts against Robertson and Riley should be dismissed because "Rendón did not serve a retraction notice on either of them." (DE 52 at 29).2
Florida Statutes Section 770.01 provides newspapers and publications with the "opportunity in every case to make a full and fair retraction," serving the ultimate purpose of protecting the free dissemination of news to the public. See Ross v. Gore , 48 So. 2d 412, 415 (Fla. 1950). The statute reads as follows:
Before any civil action is brought for publication or broadcast, in a newspaper, periodical, or other medium, of a libel or slander, the plaintiff shall, at least 5 days before instituting such action, serve notice in writing on the defendant specifying the article or broadcast and the statements therein which he or she alleges to be false and defamatory.
FLA. STAT. § 770.01. The statute and its supporting case law establish that written notice on the defendant is a condition precedent to a claim for defamation. See Ross , 48 So. 2d at 415 (); see also Orlando Sports Stadium v. Sentinel Star Company , 316 So.2d 607 (Fla. 4th DCA 1975) (). "If the time to comply with the statutory precondition has expired, the action should be dismissed with prejudice."3 City of Coconut Creek v. City of Deerfield Beach , 840 So.2d 389, 393 (Fla. 4th DCA 2003) ; see Bayliss v. Cox Radio, Inc. , No. 8:10-CV-1030-T27MAP, 2010 WL 4023459 (M.D. Fla. Oct. 13, 2010) ().
First, the Court grants Defendants Bloomberg and Businessweek's Motion to Dismiss Counts I, II, and III because the retraction letter submitted by Rendón did not provide sufficient notice to the Defendants under Section 770.01, Florida Statutes. The pre-suit statute requires that the retraction letter specify the statements within the subject article which the plaintiff alleges to be false or defamatory. FLA. STAT. ANN. § 770.01 (West). Plaintiff maintains that his retraction letter was compliant because it "explicitly identified the article in question," and "the article's entire thesis serves as the basis of Mr. Rendón's defamation claim." (DE 56 at 23). Defendants argue that the retraction letter fails because it does not include verbatim quotation of the allegedly defamatory material, and therefore does not provide the "best possible notice." (DE 52 at 17) (citing Nelson v. Associated Press , 667 F. Supp 1468, 1474–1475 (S.D. Fla. 1987)). The Court agrees that the retraction letter does not meet the specificity standard set forth for in Florida Statutes Section 770.01 and Florida common law.
Where the subject article is in print, the best possible notice under Florida Statutes Section 770.01 would include reference to the subject article and verbatim quotes from it. See Nelson , 667 F. Supp at 1474 ( ); see also Gannett Florida Corp. v. Montesano , 308 So.2d 599 (Fla. 1st DCA 1975) ().
In the instant case, Rendón's retraction letter does refer to the article "How to hack an election." (DE 52-1 "Exhibit 19" at 99). However, the only statement that the retraction...
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