Boulger v. Woods

Citation917 F.3d 471
Decision Date27 February 2019
Docket NumberNos. 18-3170/3220,s. 18-3170/3220
Parties Portia A. BOULGER, Plaintiff-Appellant/Cross-Appellee, v. James H. WOODS, Defendant-Appellee/Cross-Appellant.
CourtU.S. Court of Appeals — Sixth Circuit

COLE, Chief Judge.


Boulger filed an action for defamation and invasion of privacy based upon a tweet by James Woods, a well-known movie actor and producer. The district court denied Woods's motion for summary judgment, due to Boulger's lack of service, but granted his motion for judgment on the pleadings, finding that the tweet was not an actionable statement of fact under Ohio law. Boulger now appeals the grant of the motion for judgment on the pleadings as to her defamation claim, and Woods cross-appeals the denial of his motion for summary judgment. For the reasons that follow, we affirm.


On March 11, 2016, then-presidential candidate Donald Trump held a rally in Chicago, Illinois. That evening, the Chicago Tribune newspaper posted a photograph on its Twitter account of a woman at the rally, wearing a Trump T-shirt, and giving a Nazi salute—a salute with her right hand raised straight up in the air. On March 12, 2016, Twitter user @voxday posted the Nazi salute photograph, together with a photograph of Portia

Boulger and a caption identifying Boulger as an "Organizer (Women for Bernie)." (Def. Mot. for J. on the Pleadings, R. 7, PageID 61.) The two photographs and caption were accompanied by the (false) statement, "The ‘Trump Nazi’ is Portia Boulger, who runs the Women for Bernie Sanders Twitter account. It's another media plant." (Id .) Shortly thereafter, Woods tweeted the same two pictures, along with a short biography of Boulger, and added: "So-called #Trump ‘Nazi’ is a #BernieSanders agitator/operative?" (Comp., R. 1, PageID 3.) At the time, Woods had more than 350,000 followers on Twitter.

That same day, March 12, 2016, multiple news outlets identified the woman in the Nazi salute photograph as Birgitt Peterson, a Trump supporter residing in Yorkville, Illinois. Woods did not delete his original tweet, but instead tweeted a follow-up: "Various followers have stated that the Nazi Salute individual and the #Bernie campaign woman are NOT the same person. #Chicago #Trump." (Def. Mot. for J. on the Pleadings, R. 7, PageID 62.)

On March 22, 2016, counsel for Boulger wrote to Woods's attorney, asking that Woods delete his tweet and issue a retraction and apology. Woods deleted the tweet the next day, and posted three new tweets:

1. "I have an opportunity to clarify something I challenged immediately when it hit Twitter. Portia

A. Boulger was NOT the ‘Nazi salute lady.’ "

2. "Ms. Boulder [sic] has reached out to me and asked me to use my many followers to stop people from harassing her. I am more than happy to do so."

3. "Though she supports @BernieSanders, I am happy to defend her from abuse. I only wish his supporters would do the same for other candidates."

(Comp., R. 1, PageID 5.)

In the eleven days between Woods's initial tweet and the tweet's deletion, Boulger "received hundreds of obscene and threatening messages, including death threats," as well as numerous telephone calls. (Id. at 5–6.) Boulger stated that due to Woods's tweet, she suffered "severe emotional distress including sleeplessness, episodes of reasonable apprehension of personal assault or attack, anxiety and depression." (Id. at 8.)

Boulger subsequently filed the instant action against Woods on March 3, 2017, alleging defamation and invasion of privacy under Ohio law. On June 1, 2017, Boulger filed a motion for extension of time to complete service of process on Woods, arguing that, despite her best efforts, she had been unable to serve Woods properly. The district court granted Boulger's motion, extending the service deadline to August 7, 2017.

Despite the extension, Woods filed an answer to the complaint on June 7, 2017, asserting, inter alia , insufficient service of process and lack of personal jurisdiction (due to the lack of service). The same day, Woods also filed a motion for judgment on the pleadings, arguing that Boulger's claim for defamation failed as a matter of law because the tweet at issue was a question and not an actionable statement of fact. The next month, the parties filed a joint report under Federal Rule of Civil Procedure 26(f), in which they recommended that "discovery be stayed pending a Decision on the Motion for Judgment on the Pleadings." ( Rule 26(f) Report, R. 12, PageID 127.) Woods also noted in the Rule 26(f) report that he "contests personal jurisdiction" and "has not been served." (Id. )

Boulger still failed to serve Woods timely. Accordingly, on August 15, 2017, Woods filed a motion for summary judgment, or in the alternative, motion for dismissal, due to Boulger's failure to perfect service. The district court found, however, that Woods waived his jurisdictional defenses through his conduct and therefore denied his motion for summary judgment. But the court granted Woods's motion for judgment on the pleadings, finding that Woods's tweet could be interpreted as a question and not a statement of fact, and that the tweet was protected under Ohio's innocent construction rule.

Boulger now appeals the decision on the merits, and Woods cross-appeals the jurisdictional issue.

A. Jurisdiction

We must first decide whether we have jurisdiction to review the merits of Boulger's claim. In the absence of "proper service of process, consent, waiver, or forfeiture, a court may not exercise personal jurisdiction over a named defendant." King v. Taylor , 694 F.3d 650, 655 (6th Cir. 2012) (citations omitted). And without personal jurisdiction, a federal court is "powerless to proceed to an adjudication." Id. (quoting Ruhrgas AG v. Marathon Oil Co. , 526 U.S. 574, 584, 119 S.Ct. 1563, 143 L.Ed.2d 760 (1999) ).

It is undisputed that Woods was never properly served. In the district court, Boulger sought to excuse her service failure, arguing that Woods waived his defenses in two ways: (1) by failing to include the defenses in his motion for judgment on the pleadings and (2) through his conduct. The district court rejected Boulger's first argument, but found that Woods had waived his ability to challenge service through his conduct.

We review a district court's ruling on waiver for an abuse of discretion. King , 694 F.3d at 659. "An abuse of discretion occurs if the district court relies on clearly erroneous findings of fact, applies the wrong legal standard, misapplies the correct legal standard when reaching a conclusion, or makes a clear error of judgment." Id. at 660 (quoting In re Whirlpool Corp. Front-Loading Washer Prods. Liability Litig. , 678 F.3d 409, 416 (6th Cir. 2012) ).

1. Waiver Through Failure to Include Defenses in Rule 12 Motion

Under the Federal Rules of Civil Procedure, a defendant who files a motion under Rule 12 and fails to raise the defense of insufficient service of process "waives" that defense. King , 694 F.3d at 656 (citing Fed. R. Civ. P. 12(b)(1), (g)(2), (h)(1)(A) ).1 A defendant cannot be deemed to have waived defenses, however, that "were not ... available at the time they could first have been made." Holzsager v. Valley Hosp. , 646 F.2d 792, 796 (2d Cir. 1981).

While Woods challenged the sufficiency of service in his answer, he acknowledges that he failed to include the defense in his motion for judgment on the pleadings. But as Woods notes, he filed his motion for judgment on the pleadings in June 2017, two months prior to the service deadline. Accordingly, any argument made by Woods in June 2017 regarding insufficient service of process would have been premature. See King , 694 F.3d at 661 ("[A] motion to dismiss on the basis of improper service made during the period for service may properly be denied as premature."). The district court was therefore correct in holding that Woods did not waive his insufficient service of process and lack of personal jurisdiction defenses by failing to include them in his motion for judgment on the pleadings because, at the time of filing, the defenses were not yet available.

2. Waiver Through Conduct

"Even where a defendant properly preserves a Rule 12(b) defense by including it in an answer"—as Woods did here—"he may forfeit the right to seek a ruling on the defense at a later juncture through his conduct during the litigation." King , 694 F.3d at 658 (footnote omitted) (citing Hamilton v. Atlas Turner, Inc. , 197 F.3d 58, 60 (2d Cir. 1999) ). Put simply, a defendant's appearances, filings, and actions in the district court may constitute "legal submission to the jurisdiction of [that] court." Gerber v. Riordan , 649 F.3d 514, 519 (6th Cir. 2011) (quoting Days Inns Worldwide, Inc. v. Patel , 445 F.3d 899, 905 (6th Cir. 2006) ). But not all conduct serves as constructive consent to personal jurisdiction. Instead, courts must ask whether a defendant's conduct "has given the plaintiff ‘a reasonable expectation’ that the defendant will defend the suit on the merits or whether the defendant has caused the court to ‘go to some effort that would be wasted if personal jurisdiction is later found lacking.’ " King , 694 F.3d at 659 (quoting Gerber , 649 F.3d at 519 ).

"Determining what constitutes waiver by conduct is more [an] art than a science ... and there is no bright line rule." State Auto Ins. Co. v. Thomas Landscaping & Constr., Inc. , No. 2:09-cv-735, 2011 WL 3475376, at *6 (S.D. Ohio Aug. 9, 2011) (quoting Pruco Life Ins. Co. v. Wilmington Trust Co. , 616 F.Supp.2d 210, 216 (D.R.I. 2009), aff'd in relevant part , 494 F. App'x 550 (6th Cir. 2012) ). We note though that "it is relatively easier to find forfeiture of a service defense[,]" as opposed to a personal-jurisdiction defense. King , 694 F.3d 650 (noting "that service of process is simply the means by which a defendant receives notice of an action and is formally brought within a court's jurisdiction, whereas personal jurisdiction concerns...

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