Internet Solutions Corp. v. Marshall

• Citation: 39 So.3d 1201
• Decision Date: 17 June 2010
• Docket Number: No. SC09-272.,SC09-272.
• Parties: INTERNET SOLUTIONS CORPORATION, Appellant,v.Tabatha MARSHALL, Appellee.
• Court: United States State Supreme Court of Florida

39 So.3d 1201

INTERNET SOLUTIONS CORPORATION, Appellant,v.Tabatha MARSHALL, Appellee.

No. SC09-272.

Supreme Court of Florida.

June 17, 2010.

Keith E. Kress and Myra P. Nicholson, Orlando, FL, and Kevin W. Shaughnessy and Caroline M. Landt of Baker and Hostetler, LLP, Orlando, FL, for Appellant.

Marc J. Randazza, Miami, FL, for Appellee.

Terry M. Sanks and Kevin W. Wimberly of Beusse, Wolter, Sanks, Mora, and Maire, P.A., Orlando, FL, on behalf of Media Bloggers Association, Inc.; and Lyrissa C. Barnett Lidsky of University of Florida College of Law, Gainesville, FL, and Gregory A. Beck of Public Citizen Litigation Group, Washington, D.C., on behalf of Public Citizen, as Amici Curiae.

PARIENTE, J.

Tabatha Marshall, a resident of the State of Washington, owns and operates a website on which she posts about consumer-related issues. According to Internet Solutions Corporation (ISC), Marshall made posts on her website in which she accused ISC, an employment and recruiting firm, of ongoing criminal activity. ISC, whose principal place of business is in Florida, sued Marshall for defamation in a federal district court in Florida. The only issue in this case is whether Marshall's allegedly defamatory posts on her website subject her to personal jurisdiction in Florida under this state's long-arm statute.¹

We rephrase the question certified to us by the Eleventh Circuit Court of Appeals to narrowly focus on the issue of whether defamatory posts about a Florida corporation on an out-of-state website by the operator of the website constitute the commission of a tortious act within Florida under the long-arm statute, specifically section 48.193(1)(b), Florida Statutes (2007). ² Accordingly, we rephrase the certified question as follows:

DOES A NONRESIDENT COMMIT A TORTIOUS ACT WITHIN FLORIDA FOR PURPOSES OF SECTION 48.193(1)(b) WHEN HE OR SHE MAKES ALLEGEDLY DEFAMATORY STATEMENTS ABOUT A COMPANY WITH ITS PRINCIPAL PLACE OF BUSINESS IN FLORIDA BY POSTING THOSE STATEMENTS ON A WEBSITE, WHERE THE WEBSITE POSTS CONTAINING THE STATEMENTS ARE ACCESSIBLE AND ACCESSED IN FLORIDA?

We answer the rephrased certified question in the affirmative. We conclude that posting defamatory material on a website alone does not constitute the commission of a tortious act within Florida for purposes of section 48.193(1)(b), Florida Statutes. Rather, the material posted on the website about a Florida resident must not only be accessible in Florida, but also be accessed in Florida in order to constitute the commission of the tortious act of defamation within Florida under section 48.193(1)(b).

FACTS AND PROCEDURAL HISTORY

ISC is a Nevada for-profit corporation, which alleged that its principal place of business is in Orlando, Florida. ISC operates a number of websites that deal with employment recruiting and Internet advertising. Tabatha Marshall is a private individual who resides in the State of Washington. Marshall owns and operates tabathamarshall.com, a noncommercial website on which she posts information about consumer-related issues. The website permits third parties to comment on Marshall's posts, with the comments appearing on the same webpage as the original post. In August 2007, Marshall made a post on her website about VeriResume, one of the websites operated by ISC, entitled “Something's VeriRotten with VeriResume ...” This post included a listing of affiliates of VeriResume, including ISC, and listed Florida addresses. Third parties posted comments on this post, and Marshall responded to some of the comments. From a review of the exhibits attached to the complaint, several of the commenters appeared to be from Florida (“Mrs. C near OrlandoFL,” “Suzanne C-Orlando, FL,” and “anonymous-Orlando, FL”). Contact information for VeriResume and other ISC affiliates also appeared to be listed on a separate part of the website, including Florida addresses for ISC. Printouts of these webpages were attached to ISC's complaint.

ISC filed a diversity action against Marshall in the Middle District of Florida, alleging several causes of action, including a claim for defamation. ISC contended that the court had personal jurisdiction over Marshall because she had entered into the State of Florida to commit a tortious act ³ and should have known that her repeated defamatory statements would subject her to litigation in Florida. Regarding the allegedly defamatory statements, ISC asserted that Marshall's posts contained statements alleging that ISC “was, and is, engaged in on-going criminal activity, specifically ‘phishing’ ^[4] and consumer fraud through ‘scamming’ and other actionable conduct to defraud consumers,” that Marshall posted statements alleging that ISC “is engaged in on-going criminal activity of obtaining consumers' personal information and illegally selling it to third parties,” and that Marshall's websites “contain numerous defamatory statements designed to expose [ISC] to public contempt and ridicule and injure [ISC] in its businesses.... Particularly ... [ISC's] businesses are ‘scams' and are ‘phishing’ operations utilize [sic] to steal personal information for the purposes of identity theft.” ISC further asserted that the individual statements contained in the posts, “when taken as a whole, inculpate [ISC] with moral turpitude and charge [ISC] with unfitness and lack of integrity in the performance of its businesses.” Id. ISC asserted that Marshall knowingly published these statements with the intent to harm ISC's business reputation.

Marshall filed a motion to dismiss the complaint for lack of personal jurisdiction. Specifically, she contended that she had not committed a tortious act in Florida for purposes of Florida's long-arm statute. She also asserted that even if ISC could satisfy Florida's long-arm statute, subjecting her to personal jurisdiction in Florida would violate federal due process. As part of this motion, Marshall filed a declaration detailing her lack of contacts with Florida.⁵

The district court granted Marshall's motion and dismissed the case for lack of personal jurisdiction. Internet Solutions Corp. v. Marshall, No. 6:07-cv-1740-Orl-22KRS, 2008 WL 958136 (M.D.Fla. Apr.8, 2008). The court recognized that the determination of personal jurisdiction over a nonresident defendant consists of a two-part inquiry: (1) whether the exercise of jurisdiction is appropriate under Florida's long-arm statute; and (2) whether the exercise of personal jurisdiction would violate due process. Id. at *2. In determining whether Marshall was subject to personal jurisdiction under section 48.193(1)(b) of the long-arm statute, the district court noted that the Eleventh Circuit had established that an out-of-state defendant's commission of a tort that produces an injury in Florida was sufficient for purposes of section 48.193(1)(b). Id. at *2 (citing Horizon Aggressive Growth, L.P. v. Rothstein-Kass, P.A., 421 F.3d 1162, 1168 (11th Cir.2005)). The court assumed that the tortious conduct element had been satisfied and held that Marshall had not adequately rebutted ISC's allegations that a tort was committed in Florida that resulted in injury in Florida. Id. at *3.

However, the district court determined that the exercise of personal jurisdiction would violate due process. The court stated that the minimum contacts required for due process must be purposeful contacts and concluded:

[T]here is no evidence that Marshall specifically targeted Florida residents. Marshall's website was not only made available to Florida residents, but the website was equally accessible to persons in all states.... In addition, the postings do not specifically mention Florida or its residents nor do they amount to purposeful availment.... Marshall has not made Florida-specific contacts. The mere fact that Marshall's website was accessible to residents everywhere and a resident of Florida responded does not amount to purposeful availment.

Id. at *4. The district court further concluded that “[t]he fact that Marshall posted comments on her website ..., which were accessible to residents everywhere does not indicate that Marshall could reasonably anticipate being haled into a Florida court.” Id. The district court did not address the specific issue of whether the fact that ISC alleged that its principal place of business was in Florida or the fact that Marshall listed Florida addresses for ISC on her website would be evidence of targeting a Florida resident, but rather concluded that “there is no evidence that Marshall specifically targeted Florida residents.” Id. at *4. The district court then dismissed the case for lack of personal jurisdiction. Id. at *3-5. ISC appealed the district court's dismissal.

On appeal, the Eleventh Circuit Court of Appeals set out the two-step inquiry to determine whether the exercise of personal jurisdiction over a nonresident defendant is proper:

First, we examine whether the exercise of jurisdiction would be appropriate under that state's long-arm statute. “Second, we examine whether the exercise of personal jurisdiction over the defendant would violate the Due Process Clause of the Fourteenth Amendment to the United States Constitution.” The due process inquiry requires us to determine whether “the defendant ha[s] minimum contacts with the forum state” and if the district court's exercising of jurisdiction over that defendant would “offend traditional notions of fair play and substantial justice.”

Internet Solutions Corp., 557 F.3d at 1295-96 (citations omitted) (quoting Horizon Aggressive Growth, 421 F.3d at 1166).

Regarding the first part of the inquiry, the Eleventh Circuit stated that Florida's long-arm statute permits the exercise of jurisdiction over a cause of action arising out of a tortious act committed within Florida. Id. at 1296 (citing § 48.193(1)(b), Fla. Stat. (2008)). The Eleventh Circuit recognized that Florida law provides that, for purposes of the statute, the defendant does not have to be physically present...