Doe v. Flores

Decision Date23 September 2022
Docket Number2021-CA-0314-MR
PartiesJOHN DOE 1; JOHN DOE 2; JOHNDOE 3; JOHN DOE 4; JOHN DOE 5; JOHN DOE 6; JOHN DOE 7; JOHNDOE 8; JOHN DOE 9; AND JOHN DOE 10 APPELLANTS v. ANA VIOLETA NAVARRO FLORES; ADAM EDELEN; CLARA JEFFERY; JEFFREY SHAUN KING; JODI JACOBSON; KATHY GRIFFIN; KEVIN M. KRUZE; MAGGIE HABERMAN; MATTHEW JOHN DOWD; AND REZA ASLAN[1] APPELLEES
CourtKentucky Court of Appeals

NOT TO BE PUBLISHED

BRIEFS FOR APPELLANTS: Robert E. Barnes Derek A. Jordan Los Angeles California Kevin L. Murphy Fort Mitchell, Kentucky

BRIEF FOR APPELLEE ADAM EDELEN: Alyson Beridon Cincinnati, Ohio Benjamin A. Gastel Nashville, Tennessee

BRIEF FOR APPELLEE CLARA JEFFERY: Tenaya Rodewald Menlo Park California Matthew G. Halgren San Diego, California Jason P Renzelmann Louisville, Kentucky Kevin T. Shook Columbus, Ohio

BRIEF FOR APPELLEES JODI JACOBSON AND KEVIN KRUZE: Jon L Fleischaker Michael P. Abate William R. Adams Louisville, Kentucky

BRIEF FOR APPELLEE KATHY GRIFFIN: Adam Siegler Los Angeles, California Michael J. Grygiel Albany, New York J. Stephen Smith Fort Mitchell, Kentucky John C. Greiner Cincinnati, Ohio

BRIEF FOR APPELLEE MAGGIE HABERMAN: Kevin T. Shook Columbus, Ohio Jason P. Renzelmann Louisville, Kentucky

BEFORE: CLAYTON, CHIEF JUDGE; COMBS AND DIXON, JUDGES.

OPINION

DIXON, JUDGE

John Does 1-10 appeal from the order of dismissal, amended order of dismissal, and order granting their motion to alter, amend, or vacate the orders of dismissal, entered by the Kenton Circuit Court on February 10, 2021, February 23, 2021, and March 12, 2021, respectively. Following review of the record, briefs, and law, we affirm.

FACTS AND PROCEDURAL BACKGROUND

John Does 1-10 ("Does") were minor students of Covington Catholic High School. On January 18, 2019, Does traveled with their classmates to Washington, D.C., to attend the March for Life. Afterward, Does and their classmates met at the Lincoln Memorial to await their bus. Members of the Black Hebrew Israelites were at the Lincoln Memorial and insulted the students. Native American activist leader Nathan Phillips was also at the Lincoln Memorial singing, chanting, and playing his drum. In response, some students engaged in school cheers, and performed a tomahawk chop "cheer." These encounters were filmed and uploaded with commentary to various forms of media. Many people took offense to the students' behavior and called for their punishment, shaming, and doxing.

Among a myriad of cases arising out of the same incident, Does 1-8 sued Ana Violeta Navarro Flores, Adam Edelen, Clara Jeffery, Jeffrey Shaun King, Jodi Jacobson, Kathy Griffin, Kevin M. Kruze, Maggie Haberman, Matthew John Dowd, and Reza Aslan[2] for defamation per se in state court. Thereafter, Does 1-10[3] amended their complaint adding claims of intrusion upon seclusion and negligent infliction of emotional distress against each defendant, as well as a claim of harassment against Kathy Griffin. Each defendant moved the trial court to dismiss Does' claims. All the defendants, except Adam Edelen, moved to dismiss Does' claims against them due to lack of personal jurisdiction. Edelen, a Kentucky resident, moved the trial court to dismiss Does' claims against him due to their failure to state a claim pursuant to CR[4] 12.02(f).

Eventually the trial court granted the defendants' motions to dismiss finding that Does had failed to establish personal jurisdiction over all defendants except Edelen and had failed to state claims for defamation, intrusion upon seclusion, and negligent infliction of emotional distress against Edelen.[5] This appeal followed.

STANDARD OF REVIEW

Appellees moved the trial court to dismiss the complaint under CR 12.02(b) for lack of personal jurisdiction and CR 12.02(f) for failure to state a claim upon which relief can be granted. Because the question of jurisdiction is an issue of law, our review is de novo. Caesars Riverboat Casino, LLC v. Beach, 336 S.W.3d 51, 54 (Ky. 2011).

Concerning failure to state a claim, Kentucky's highest court has observed:

A motion to dismiss for failure to state a claim upon which relief may be granted "admits as true the material facts of the complaint." So a court should not grant such a motion "unless it appears the pleading party would not be entitled to relief under any set of facts which could be proved. . . ." Accordingly, "the pleadings should be liberally construed in the light most favorable to the plaintiff, all allegations being taken as true." This exacting standard of review eliminates any need by the trial court to make findings of fact; "rather, the question is purely a matter of law. Stated another way, the court must ask if the facts alleged in the complaint can be proved, would the plaintiff be entitled to relief?" Since a motion to dismiss for failure to state a claim upon which relief may be granted is a pure question of law, a reviewing court owes no deference to a trial court's determination; instead, an appellate court reviews the issue de novo.

Fox v. Grayson, 317 S.W.3d 1, 7 (Ky. 2010) (footnotes omitted).

ANALYSIS

On appeal, Does raise multiple arguments. We will address each in turn.

First, Does argue the trial court erred in finding no personal jurisdiction over all defendants, except Edelen. For those defendants, Does admit that the allegedly defamatory statements at issue in the case herein were "published out-of-state"; however, they argue the statements were "accessible in the Commonwealth [of Kentucky] through social media[.]" They contend that this satisfies Kentucky's long-arm statute under KRS[6] 454.210(2)(a)3., which provides "[a] court may exercise personal jurisdiction over a person who acts directly or by an agent, as to a claim arising from the person's . . . [c]ausing tortious injury by an act or omission in this Commonwealth[.]"

Does argue that, because the tort of libel occurs wherever the offending material is circulated, the circulation of the offending material in Kentucky subjects those defendants to personal jurisdiction under KRS 454.210(2)(a)3. They rely on Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 777, 104 S.Ct. 1473, 1479, 79 L.Ed.2d 790 (1984) (citing Restatement (Second) of Torts § 577A, Comment a (1977)), which held, "The tort of libel is generally held to occur wherever the offending material is circulated." However, at least in Kentucky, print circulation - such as that discussed in Keeton - is treated differently than internet circulation for jurisdictional purposes. Just as the means and methods of communication have evolved, so have the corresponding legal analyses as to what actions will subject an actor to personal jurisdiction in our courts.

A separate case concerning the same incident as herein recently analyzed this issue in Kentucky in Blessing v. Chandrasekhar, 988 F.3d 889 (6th Cir. 2021). Blessing involved formerly anonymous plaintiffs and out-of-state defendants - including Kathy Griffin, one of the defendants in the case now before us, and the same two online posts (or "tweets") made by Griffin to Twitter. Id. at 893.

In Blessing, plaintiffs claimed Griffin's tweets were "acts" committed in Kentucky for jurisdictional purposes since they called for others to act against plaintiffs in Kentucky, thereby causing "tortious and harmful consequences" in Kentucky. Unfortunately for Does, that is not consistent with Kentucky law. Id. at 901.

Since Pierce v. Serafin, 787 S.W.2d 705, 706 (Ky. App. 1990), Kentucky courts have dismissed the notion that an out-of-state defendant commits an "act" in Kentucky by sending a tortious communication into the state. Blessing, 988 F.3d at 901-02. In so doing, Kentucky courts have "distinguished between tortious acts and tortious consequences." Id. at 901 (emphasis added). Kentucky courts have further recognized that the phrase causing a "tortious injury in this Commonwealth by an act or omission outside this Commonwealth" would have no meaning if plaintiffs' theory was accepted. Id. at 902 (emphasis omitted). Our courts also acknowledge that if the legislature desires to broaden the long-arm statute to bring claims such as these within its reach, it certainly may; however, it is not the court's place to rewrite this statute. Id. at 902-04.

The Blessing court ultimately determined that, in solely relying on their own flawed statutory interpretation, its plaintiffs failed to establish personal jurisdiction over its defendants. For similar reasons, we must affirm the trial court's dismissal of Griffin and her nonresident codefendants herein. Does have failed to allege that these defendants acted within Kentucky to confer specific personal jurisdiction over them through the long-arm statute or that they had sufficient contacts with Kentucky to grant our courts general jurisdiction over them.

Next, Does turn to the merits of their claims. We will only review the claims against Edelen as he is the only defendant that was not dismissed for lack of personal jurisdiction. First, however, we must address the elephant in the room: is it even possible to make an anonymous claim for defamation? It defies logic to think anyone could present proof of defamation anonymously. The notion is so preposterous that Does have not pointed to any case law that allows them to proceed in this manner, nor have we found any.

Additionally, CR 10.01 requires complaints to include the names of all the parties. Yet, it is accepted that:

the court may recognize an exception to this rule and permit plaintiffs to proceed pseudonymously. Doe v. Shakur, 164 F.R.D. 359, 360 (S.D.N.Y. 1996). Several factors guide the analysis of whether a plaintiff's privacy interest
...

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