Bell v. Rosen
| Decision Date | 22 September 2015 |
| Docket Number | CIVIL ACTION NO.: CV214-127 |
| Court | U.S. District Court — Southern District of Georgia |
| Parties | RICHARD E. BELL, JR.; KAREN K. BELL; and BRANDEN R. BELL, Plaintiffs, v. FREDERIC A. ROSEN; and JOHNSON PUBLISHING COMPANY, LLC, Defendants. |
Plaintiffs Richard and Karen Bell, individually and as guardians of the property of their sons Brian and Branden Bell, filed this defamation action based on online articles written by Defendant Frederic A. Rosen ("Rosen") and published by Defendant Johnson Publishing Company, LLC ("Johnson Publishing"), as well as online interviews of Defendant Rosen. Presently before the Court is Defendants' fully briefed Motion to Dismiss, or in the Alternative, Motion to Transfer Venue. See Dkt. Nos. 26, 32, 34. The Court held a hearing on this Motion on February 24, 2015, see dkt. no. 38, and, at the Court's request, the partieshave filed supplemental briefs on the issue of venue, see dkt. nos. 40-41.
For the reasons set forth below, Defendants' Motion to Dismiss, or in the Alternative, Motion to Transfer Venue (dkt. no. 26) is GRANTED in part, DENIED in part, and REMAINS PENDING in part: it is granted as to Defendants' request to transfer this case to the United States District Court for the Middle District of Georgia, Valdosta Division; it is denied to the extent that Defendants urge a dismissal of this case based on improper venue; and it remains pending insofar as Defendants move for dismissal for failure to state a claim. Accordingly, this cause of action is hereby TRANSFERRED to the United States District Court for the Middle District of Georgia, Valdosta Division.
FACTUAL BACKGROUND
When Plaintiffs filed this action on August 27, 2014, they were residents of Valdosta, Lowndes County, Georgia. Dkt. No. 1, ¶ 1; Dkt. No. 23, ¶ 1. Plaintiffs' sons, Brian and Branden Bell, attended Lowndes County High School ("LCHS") in Valdosta. See Dkt. No. 23, ¶ 13. In January 2013, Brian Bell was a sophomore and star football player at LCHS, and Branden Bell was a senior and member of the school's wrestling team. See id. at ¶¶ 10, 13, 23; see also Dkt. No. 32, p. 3. Plaintiff Richard Bell was employed as an FBI agent, a position that heholds to this day. See Dkt. No. 23, ¶ 13; Dkt. No. 32, p. 6 n.1.
Defendant Johnson Publishing is a Delaware limited liability company, with its principal place of business in Delaware. Dkt. No. 23, ¶ 2. Defendant Johnson Publishing sells Ebony Magazine and other publications nationwide, including in the Southern District of Georgia, and runs the Web site www.ebony.com ("Ebony Web site"), which is accessible in the Southern District of Georgia. Id. at ¶¶ 5-7. Defendant Rosen is a resident of New York and works as a journalist. Id. at ¶¶ 3, 5, 7.
Between August 12, 2013, and April 9, 2014, Defendant Johnson Publishing published a series of fifteen articles on the Ebony Web site, twelve of which were written by Defendant Rosen. Id. at ¶ 7. The articles chronicled the events surrounding the death of LCHS student Kendrick Johnson ("KJ"), who was found dead inside of a rolled-up gym mat in the school's old gym on January 10, 2013. Id. at ¶¶ 7-8; see also Dkt. No. 40-1 (). Specifically, the articles suggest that KJ was "murdered" or "killed" and outline various "suspicious circumstances" that surrounded his death and the subsequent investigations. Dkt. No. 23, ¶¶ 8-9. Employing pseudonyms, two of the articles refer to a family called the "Martins," which Plaintiffs contend is an obvious reference to their own family.Id. at ¶¶ 10, 13. Though the KJ articles suggest several possible courses of events and motives, the overall implication is that one or both of the "Martin" sons was suspected of murdering KJ. See, e.g., id. at ¶¶ 10-12, 15. In addition, the articles generally suggest a mishandling of the subsequent investigation and a possible conspiracy between public officials and the "Martins" to cover up the alleged murder of KJ. See, e.g., id. at ¶¶ 15, 18-20. The articles mention that one of the "Martin" boys was a white football star, and the "Martin" father was an FBI agent. Id. at ¶¶ 10, 13.
Around the time that the KJ articles were published, Defendant Rosen made a number of media appearances to discuss and comment on the content of the articles. Id. at ¶¶ 2 6-27. In one such instance, occurring on January 30, 2014, Defendant Rosen was interviewed on the Dan Zupanzky Blog Radio show. Id. at ¶ 26. During the interview, Defendant Rosen discussed the "Martin" brothers being a football player and wrestler at LCHS; insinuated that one or both of the brothers had a motive and opportunity to kill KJ; and represented that the "Martin" brothers, as well as their father, an FBI agent, were interviewed in the investigation of KJ's death. Id. Defendant Rosen's interview is available on the Internet. See id. at ¶¶ 40-41.
On August 27, 2014, Plaintiffs filed suit against Defendants in this Court on the basis of diversity, claiming libel and slander in violation of Georgia state law. Dkt. No. 1; Dkt. No. 23, ¶¶ 4, 30-45 (citing O.C.G.A. §§ 51-5-1, -4). Plaintiffs contend that the details in the KJ articles and the Dan Zupanzky Blog Radio show interview were sufficient to reveal their identities to those in the Valdosta area. Dkt. No. 23, ¶¶ 36, 40. Plaintiffs further maintain that there is no basis in fact for many of Defendants' suggestions regarding their sons' involvement in KJ's death, the family's participation in the investigation, and the conduct of the investigation itself. See id. at ¶¶ 30-45. In particular, Plaintiffs allege that at the time of KJ's death, Branden Bell was on a bus traveling to a wrestling match in Macon, Georgia, and Brian Bell was either in class, or walking to class, at LCHS; however, Plaintiffs assert that Defendants never made any effort to verify the alibis of the brothers. Id. at ¶¶ 22-23. As a result of Defendants' allegedly untrue statements, Plaintiffs claim that their personal reputations, as well as Plaintiff Richard Bell's professional reputation as an FBI agent, have been permanently damaged. Id. at ¶¶ 38, 45.
DISCUSSION
Defendants now move pursuant to Federal Rule of Civil Procedure 12(b)(3) ("Rule 12(b)(3)") for an order dismissingPlaintiffs' Amended Complaint for improper venue. Dkt. No. 26, pp. 5-6. Alternatively, if the Court determines that venue in this District is proper, Defendants request that the Court nevertheless transfer this case to the United States District Court for the Middle District of Georgia, Valdosta Division, "[f]or the convenience of the parties and witnesses [and] in the interest of justice." Id. at pp. 6-8 (alterations in original) (quoting 28 U.S.C. § 1404(a)). Finally, Defendants submit that if the Court retains jurisdiction over this case, Plaintiffs Richard and Karen Bell's claims of defamation per se should be dismissed with prejudice for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). Id. at pp. 8-13.
Under Rule 12(b)(3), a party may assert improper venue as a defense to a claim for relief. Fed. R. Civ. P. 12(b)(3). When a defendant objects to venue, "[t]he plaintiff has the burden of showing that venue in the forum is proper." Pinson v. Rumsfeld, 192 F. App'x 811, 817 (11th Cir. 2006). In considering a motion filed pursuant to Rule 12(b)(3), a court accepts the facts in the plaintiff's complaint as true. Simbaqueba v. U.S. Dep't of Def., No. CV 309-066, 2010 WL 2990042, at *2 (S.D. Ga. May 28, 2010). "However, when a Rule 12(b)(3) motion is predicated upon key issues of fact, the court may consider matters outside the pleadings." Id. (citing Curry v. Gonzales, No. 105-2710, 2006WL 3191178, at *2 (N.D. Ga. Oct. 31, 2006)). Where conflicts exist between the allegations in the complaint and the evidence outside of the pleadings, the court "must draw all reasonable inferences and resolve all factual conflicts in favor of the plaintiff." Wai v. Rainbow Holdings, 315 F. Supp. 2d 1261, 1268 (S.D. Fla. 2004); see also Simbaqueba, 2010 WL 2990042, at *2.
A court presiding over a case "laying venue in the wrong division or district" must "dismiss, or if it be in the interest of justice, transfer such case to any district or division in which it could have been brought." 28 U.S.C. § 1406(a).
Plaintiffs' Amended Complaint states that "[v]enue is proper in this Court pursuant to 28 U.S.C. § 1391 in that[Defendant] Johnson [Publishing] sells Ebony Magazine and other publications in the Southern District of Georgia, including the Brunswick Division." Dkt. No. 23, ¶ 6 (emphasis added). Further, the Amended Complaint avers that venue is proper as to Defendant Rosen, because "he also published the defamatory statements in this matter for profit in the Southern District . . . of Georgia, and this Court may exercise pendent venue over him." Id.
Defendants contend that none of the venue criteria in Section 1391(b) are met for this case in the Southern District of Georgia, and that Section 1391(b)(2) applies to this case only to show that venue would be proper in the Middle District of Georgia. Dkt. No. 26, p. 5. Plaintiffs initially attempted to show that...
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