Deligdish v. Bender
| Docket Number | 6:23-cv-417-DCI |
| Decision Date | 07 August 2023 |
| Parties | CRAIG K. DELIGDISH, Plaintiff, v. DAVID BENDER, Defendant. |
| Court | U.S. District Court — Middle District of Florida |
FILED May 8, 2023
This cause comes before the Court for consideration without oral argument on the following motion:
MOTION Defendant's Motion to Dismiss (Doc. 31)
THEREON it is ORDERED that the motion is GRANTED in part and DENIED in part.
Craig K. Deligdish (Plaintiff) initiated this case against David Bender (Defendant) in state court and Defendant removed it to this Court. Doc. 1. Upon the parties' consent, the case was reassigned to the undersigned. Doc. 25. With leave of Court, Plaintiff filed a Second Amended Complaint against Defendant alleging four counts: Tortious Interference with Business Relationships (Count I); Defamation, Defamation Per Se, and Defamation by Implication (Count II); Trade Libel (Count III); and Fraud (Count IV). Doc. 28 (the Second Amended Complaint).
Pending before the Court is Defendant's Motion to Dismiss the Second Amended Complaint. Doc. 31 (the Motion). Plaintiff has filed a Response (Doc. 37, the Response) and Defendant has filed a Notice of Supplemental Authority. Doc. 39. The matter is ripe for review and for the reasons stated herein, the Motion is due to be granted in part to the extent that Count IV is dismissed.[1]
Plaintiff seeks damages and injunctive relief because Defendant allegedly made false and defamatory statements about Plaintiff and published them anonymously on the internet with the intent to injure Plaintiff's reputation and interfere with Plaintiff's business relationships. Doc. 28 at 1.[2] Plaintiff is a physician and the president and chief medical officer of Omni Healthcare, Inc (Omni)-a multi-specialty physician group practice with practicing physicians operating independent of Plaintiff. Id. at 1, 4. Defendant registered, created, and continually maintains the internet domain DeligdishWatch.com (the Website). Id. at 2. Defendant's identity is “concealed by a privacy service purchased by Defendant which operates out of Reykjavik, Iceland.” Id. at 4. Defendant designed and published the Website, and in January and February 2023, Defendant updated and included new content. Id. Attached to the Second Amended Complaint is a copy of the original Website prior to its “updates” and a copy of the Website in its current form. Id. at 45. Defendant revised the Website to remove false statements after receiving the original complaint. Id. at 11.
The Second Amended Complaint contains about five pages of allegedly defamatory statements from the Website, which “calls attention to ‘hundreds of separate cases filed in state, federal, and small claims courts between 2005 and the present' in which OMNI was a party.” Doc. 28 at 5-10. “The Website identifies Plaintiff by name and includes a recognizable photograph of Plaintiff which was reproduced, repurposed, and published by Defendant on the Website without Plaintiff's authorization or consent.” Id. at 5. “The Website falsely alleges that Plaintiff engages in various forms of unprofessional, unethical, immoral, and illegal activities, including, but not limited to falsification (‘creates false identities'), fraud (‘refuses to pay bills/violates contracts'), other criminal conduct (‘engages in predatory billing practices against patients'), vexatious litigation (‘sues his own lawyers,' ‘frequently sues his own physician employees,' and ‘sues deceased cancer patients'), and ‘other troubling/miscellaneous behaviors.'” Id. Through inaccurate reporting of facts and the omission of facts, the Website creates a defamatory implication that Plaintiff has direct involvement in every lawsuit or claim involving Omni. Id. at 10-11. Specifically, “[t]he defamatory implication of the Website is that Plaintiff is directly involved in and personally responsible for every claim or lawsuit that has been brought by or against Omni, and that adverse inference which can be drawn from each claim or lawsuit is true.” Id. at 12. Further, the Website is designed to and displays prominently in keyword and image search results for his name. Id. at 11.
As alleged, Defendant authorized and published the Website without a factual basis for the assertions and with the intent to damage Plaintiff's reputation. Id. at 11-12. Defendant admitted that he published the Website because he was upset with Plaintiff and Omni over sums he claimed were contractually owed and Defendant intended to harm Plaintiff and Omni. Id. at 11-12. Defendant “acted with malice in writing and publishing the Website, knowing the Statements and the intended implications created thereby were false or acting with reckless disregard as to falsity.” Id. at 17. At a minimum, Defendant's “fault amounts to negligence.” Id.
As to publishing, Defendant paid a third-party to publish the Website using Defendant's credit card. Id. at 12-13. Defendant has admitted to being involved in the creation, publication, and maintenance of the Website, and discovery revealed that Defendant used Plaintiff's name and Plaintiff's son-in-law's name as “registrants or other individuals related to the Website to make it appear as though Plaintiff and/or his son-in-law created, published and/or maintained the Website.” Id. at 13. Despite notice to Defendant, Defendant has failed or refused to take down the Website. Id. at 14. Plaintiff has “incurred considerable expense attempting to mitigate the damage caused by the Website, and Plaintiff has been substantially damaged, both economically and otherwise, by the Website.” Id. at 12.
Pursuant to Federal Rule of Civil Procedure 12(b)(6), Defendant now moves to dismiss the Second Amended Complaint for failure to state a claim. Doc. 31.
In reviewing a complaint on a Rule 12(b)(6) motion to dismiss, “courts must be mindful that the Federal Rules require only that the complaint contain ‘a short and plain statement of the claim showing that the pleader is entitled to relief.'” United States v. Baxter Int'l, Inc., 345 F.3d 866, 880 (11th Cir. 2003) (citing Fed.R.Civ.P. 8(a)). This is a liberal pleading requirement, one that does not require a plaintiff to plead with particularity every element of a cause of action. Roe v. Aware Woman Ctr. for Choice, Inc., 253 F.3d 678, 683 (11th Cir. 2001). However, a plaintiff's obligation to provide the grounds for his or her entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 554-55, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Further, “conclusory allegations, unwarranted factual deductions or legal conclusions masquerading as facts will not prevent dismissal.” Davila v. Delta Air Lines, Inc., 326 F.3d 1183, 1185 (11th Cir. 2003). The complaint's factual allegations “must be enough to raise a right to relief above the speculative level,” id. at 555, and cross “the line from conceivable to plausible.” Ashcroft v. Iqbal, 556 U.S. 662, 680, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).
The primary thrust of Defendant's Motion is that the Court should dismiss Count II, the defamation claim. Doc. 31 at 4-21. In support of dismissal, Defendant asserts that: (1) the statements on the Website are protected by the fair report privilege; (2) Plaintiff did comply with a condition precedent to filing a defamation claim, i.e., presuit notice pursuant Florida statute; and (3) the statements on the Website are non-actionable pure opinion or are otherwise reasonable and supported by court records. Id. The Court will consider these arguments, and Plaintiff's responses to them, in turn.
Defamation is a state cause of action. Under Florida law, “[d]efamation has the following five elements: ‘(1) publication; (2) falsity; (3) [the] actor must act with knowledge or reckless disregard as to the falsity on a matter concerning a public official, or at least negligently on a matter concerning a private person; (4) actual damages; and (5) [the] statement must be defamatory.'” Jews for Jesus, Inc. v. Rapp, 997 So.2d 1098, 1106 (Fla. 2008). A court “may not hold a defendant liable for defaming a public figure about a matter of public concern unless he is shown to have acted with actual malice.” Jacoby v. CNN, Inc., 2021 WL 5858569, at *3 (11th Cir. Dec. 10, 2021) (citing Berisha v. Lawson, 973 F.3d 1304, 1310 (11th Cir. 2020)).
Defamation by implication arises in instances in which “the defendant juxtaposes a series of facts so as to imply a defamatory connection between them, or creates a defamatory implication by omitting facts, [the defendants] may be held responsible for the defamatory implication unless it qualifies as an opinion, even though the particular facts are correct.” Id. at 1108 (internal quotation marks omitted).
“Under Florida law, ‘[f]alse statements which suggest that someone has committed a dishonest or illegal act are defamatory per se.'” Colbert v Anheuser-Busch, Inc., (M.D. Fla. Mar. 5, 2013) (quoting Shaw v. R.J. Reynolds Tobacco Co., 818 F.Supp. 1539, 1541-42 (M.D. Fla. 1993)). “‘Per se defamatory statements are ‘so obviously defamatory' and damaging to [one's] reputation that they ‘give[] rise to an absolute presumption of both malice and damage.'” Maletta v. Woodle, 2021 WL 1894023, at * at 3 (M.D. Fla. May 11, 2021) (quoting Bernath v. Seavey, 2017 WL 3268481, at *7 (M.D. Fla. May 18, 2017)). Defendant argues that Plaintiff has failed to state a claim pursuant to Rule 12(b)(6). Whether a statement is...
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