Facebook, Inc. v. K.G.S.
| Decision Date | 28 June 2019 |
| Docket Number | 1170244, 1170294, 1170336 |
| Parties | FACEBOOK, INC. v. K.G.S., individually, and as guardian and next friend of Baby Doe, a minor child Renee L. Gelin v. K.G.S., individually, and as guardian and next friend of Baby Doe, a minor child Kim McLeod v. K.G.S., individually, and as guardian and next friend of Baby Doe, a minor child |
| Court | Alabama Supreme Court |
Bruce F. Rogers and Jennifer A. Hanson of Bainbridge, Mims, Rogers & Smith, LLP, Birmingham; and Paven Malhotra and Sean M. Arenson of Keker, Van Nest & Peters LLP, San Francisco, California, for appellant Facebook, Inc.
James P. Pewitt, Birmingham, for appellant Renee L. Gelin.
John W. Gray II of Amari & Gray, Birmingham, for appellant Kim McLeod.
Andrew P. Campbell and Yawanna McDonald of Campbell Guin, LLC, Birmingham; and Joel A. Williams of Friedman Dazzio Zulanas & Bowling, PC, Birmingham, for appellee.
This case stems from the adoption of "Baby Doe" by his adoptive mother, K.G.S., which was contested by Baby Doe's birth mother, K.R. ("the birth mother"). Details of that contested adoption were reported by the Huffington Post, a Web-based media outlet, and were also disseminated through a Facebook social-media page devoted to having Baby Doe returned to the birth mother. K.G.S. filed an action in the Jefferson Circuit Court ("the trial court") seeking, among other things, an injunction against Facebook, Inc., and certain individuals to prohibit the dissemination of information about the contested adoption of Baby Doe. These appeals follow from the entry of a preliminary injunction granting K.G.S. the relief she seeks.
The preliminary injunction that is the basis of these appeals was entered on December 19, 2017. The appeals taken from that order were timely filed within 14 days of the entry of that order, see Rule 4(a)(1)(A), Ala. R. App. P., and on February 9, 2018, this Court received notice from the trial-court clerk certifying the record on appeal as complete on February 6, 2018. Since that time, K.G.S. has engaged in repeated efforts to have the record on appeal supplemented with matters that were not before the trial court at the time it entered the injunction at issue in these appeals, purportedly pursuant to Rule 10(f), Ala. R. App. P. The trial court has facilitated K.G.S.'s efforts by granting her motions to supplement the record to include matters that were not before the trial court at the time it entered the preliminary injunction, such as a second amended complaint filed by K.G.S. on March 12, 2018, transcripts of depositions taken long after the entry of the preliminary injunction at issue on appeal and after the record was certified as complete on February 6, 2018,2 and e-mails and letters from 2015 that, K.G.S. says, support the preliminary injunction.
It is well settled that Rule 10(f) cannot be used to supplement the record on appeal to include matters that were not before the trial court at the time the order being appealed was entered. See Cowen v. M.S. Enters., Inc., 642 So. 2d 453, 455 (Ala. 1994) (); and Houston Cty. Health Care Auth. v. Williams, 961 So. 2d 795, 810 n.8 (Ala. 2006) (). Accordingly, we conclude that the trial court erred by granting K.G.S.'s motions to supplement the record on appeal to include matters that were not before the trial court at the time it entered the preliminary injunction at issue in these appeals. For purposes of deciding the merits of these appeals, we have considered only the evidence and arguments that were presented to the trial court at the time the preliminary injunction was entered.
Additionally, K.G.S. filed a motion in this Court seeking leave to file a "sur-reply brief," purportedly for the purpose of "further assist[ing] the [Court] in its determination" of the issues presented by these appeals. After reviewing the briefs and arguments filed by the parties pursuant to Rule 28, Ala. R. App. P., and the proposed "sur-reply brief" from K.G.S., we deny K.G.S.'s request for leave to file a "sur-reply brief." See note 15, infra.
In June 2015, K.G.S. filed a petition in the Mobile Probate Court to adopt Baby Doe, and, shortly thereafter, the birth mother filed a contest to K.G.S.'s petition for adoption.4 The birth mother subsequently came in contact with Mirah Riben, "a well-known critic of the United States' adoption system" and a contributor to the Huffington Post. The birth mother shared with Riben her version of the events that led her to contest K.G.S.'s petition to adopt Baby Doe. On July 7, 2015, the Huffington Post, which K.G.S. describes as "a prominent media outlet," published two online articles about Baby Doe's adoption that included the full name of the birth mother; identified K.G.S. by her full name as the prospective adoptive mother of Baby Doe; identified Baby Doe by the name the birth mother had given Baby Doe; and included photographs of Baby Doe. The articles detailed how, after signing a pre-birth consent to allow K.G.S. to adopt Baby Doe, the birth mother notified K.G.S. and K.G.S.'s attorney, before Baby Doe was born, that she had changed her mind about allowing Baby Doe to be adopted; the birth mother, however, never legally withdrew the pre-birth consent to adoption, and K.G.S. obtained custody of and filed a petition to adopt Baby Doe approximately three weeks after Baby Doe was born.
The day after the articles were published, Claudia D'Arcy, a resident of New York state, created a page on Facebook's social-media Web site dedicated to reuniting the birth mother and Baby Doe ("the Facebook page"), which "attached" the articles published by the Huffington Post. The Facebook page also included K.G.S.'s full name and a "number" of photographs of Baby Doe, who was then in the custody of K.G.S. See note 4, supra. After the creation of the Facebook page, K.G.S. was "inundated with appallingly malicious and persistent cyber-bullying." In a letter dated July 28, 2015, K.G.S.'s attorney notified Facebook that the Facebook page needed to be removed because it was in violation of the Alabama Adoption Code, § 26-10A-1 et seq., Ala. Code 1975 ("the Adoption Code"), which, the attorney said, prohibits the disclosure of "any matters concerning an adoption, including parties' actual names." Facebook removed the "cover photo, but refused to delete the [Facebook] page or otherwise prevent it from disseminating its harmful and false message."
On July 7, 2017, approximately two years after the Huffington Post published the articles about Baby Doe's adoption and D'Arcy created the Facebook page, K.G.S., individually and as the guardian and next friend of Baby Doe, filed an action in the trial court naming Facebook, D'Arcy, Kim McLeod, and Renee Gelin as defendants.5 K.G.S. filed her first amended complaint on October 20, 2017, adding Jennifer L. Wachowski as a defendant. The first amended complaint alleged that, after K.G.S. filed her adoption petition, D'Arcy, McLeod, Gelin, and Wachowski (hereinafter referred to collectively as "the individual defendants") realized the birth mother was unlikely to succeed in her adoption contest based on Alabama law; that the individual defendants then "conspired to create a sensationalized, salacious, and scandal-driven trial in the court of public opinion to pressure K.G.S. into relinquishing her custody of Baby Doe"; and that Riben "quickly ran with [the birth mother]'s tale of events that combined [Riben]'s biased agenda ... [with the] nefarious publicity-stunt strategy" of the individual defendants. K.G.S. alleged that McLeod, Gelin, and Wachowski were instrumental in "publicizing" the Facebook page created by D'Arcy and that Gelin and Wachowski, "through their respective blogs ..., various Facebook posts, and ... YouTube videos, further publicized the private, confidential adoption of Baby Doe." K.G.S. further alleged that the Facebook page is "persistently updated with various posts, news articles, and YouTube videos at K.G.S.'s expense" and that several videos streamed online by YouTube and posted on the Facebook page include Gelin, McLeod, and Wachowski, "all of whom attended and/or participated in filming that took place in Jefferson County." K.G.S. further claimed that the individual defendants, through the Facebook page, have made her "the poster-child for ‘predatory’ adoptions in the United States."
K.G.S. brought claims alleging negligence per se based on each defendants' violation of certain provisions of the Adoption Code that, she said, "explicitly or implicitly prohibit the public disclosure of matters concerning adoptions"; two counts of invasion of privacy (misappropriation and false light) against the individual defendants only; the tort of outrage/intentional infliction of emotional distress; conspiracy; negligence; and wantonness. The complaint further alleged that Facebook is incorporated in Delaware with its principal place of business in Menlo Park, California; that Gelin is a resident of Pasco County, Florida; that McLeod is a resident of Mobile County; and that Wachowski is a resident of Waupaca County, Wisconsin.
McLeod and Gelin filed separate motions to dismiss the complaint pursuant to Rule 12(b)(6), Ala. R. Civ. P., arguing that K.G.S.'s complaint failed to state a claim against them. Facebook filed a motion to dismiss pursuant to Rule 12(b)(2), (3), and (6), Ala. R. Civ. P., arguing...
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