Leask v. Robertson, 2:21-cv-2367-DCN

• Docket Number: 2:21-cv-2367-DCN
• Decision Date: 07 March 2022
• Citation: 589 F.Supp.3d 506
• Parties: Noah LEASK and APC Data Analytics, LLC, Plaintiffs, v. Greg ROBERTSON, individually and d/b/a Vendor Alley, and Woolley Robertson Group Inc. d/b/a W+R Studios d/b/a Cloud CMA d/b/a Vendor Alley, Defendants.
• Court: U.S. District Court — District of South Carolina

589 F.Supp.3d 506

Noah LEASK and APC Data Analytics, LLC, Plaintiffs,

v.Greg ROBERTSON, individually and d/b/a Vendor Alley, and Woolley Robertson Group Inc. d/b/a W+R Studios d/b/a Cloud CMA d/b/a Vendor Alley, Defendants.

No. 2:21-cv-2367-DCN

United States District Court, D. South Carolina, Charleston Division.

Signed March 7, 2022

Amanda Davis McKendrick, Barrett R. Brewer, Brewer Law Firm LLC, Mt. Pleasant, SC, Edward Lee Phipps, Phipps Law Firm, Charleston, SC, for Plaintiffs.

Brian McKinley Underwood, Jr., Pro Hac Vice, Bryan Cave Leighton Paisner LLP, Atlanta, GA, Eric P. Schroeder, Pro Hac Vice, Bryan Cave Powell Goldstein, Atlanta, GA, Nickisha Moniece Woodward, Turner Padget Graham and Laney, Charleston, SC, Audra McCall Byrd, Turner Padget Graham and Laney, Myrtle Beach, SC, for Defendants.

ORDER

DAVID C. NORTON, UNITED STATES DISTRICT JUDGE

The following matter is before the court on defendants’ motion to dismiss, ECF No. 26. For the reasons set forth below, the court grants in part and denies in part the motion.

I. BACKGROUND

This defamation action arises out of a series of internet posts from the owner of a blog site. Defendant Greg Robertson ("Robertson") owns and manages a public blog site, vendoralley.com ("Vendor Alley"). The blog is named "Vendor Alley – Where Real Estate Gets Its Dirt." Vendor Alley allegedly "posts ‘dirt,’ or gossip, about the real estate industry" and "effectively serv[es] the purpose of a real estate industry tabloid." ECF No. 22, Amend. Compl. ¶¶ 7, 23.

Plaintiff APC Data Analytics, LLC ("APC") is a software development company that develops software tools for the real estate industry. Plaintiff Noah Leask ("Leask," together with APC, "plaintiffs") is one of the founders and owners of APC.

In addition to operating the blog, Robertson is also the co-founder of defendant Woolley Robertson Group Inc. d/b/a W+R Studios d/b/a Cloud CMA d/b/a Vendor Alley ("W+R Studios") (together with Robertson, "defendants"). W+R Studios provides "data analytic services regarding the sale of real property in South Carolina," making it a direct competitor of APC. Amend. Compl. ¶ 32. Against this backdrop, the complaint alleges five defamatory blog posts were published by defendants. Those posts are discussed below.

A. Blog Post One

On May 6, 2020, defendants published on Vendor Alley a post titled "Message to Noah T. Leask, CEO of APC Data Analytics" (the "May 6 post"). In the post, defendants included screenshots of private LinkedIn messages that Leask had sent to various owners and officers of W+M, although the screenshots purportedly excluded other parts of the messages that would have provided key context. Plaintiffs further allege the post stated that Leask "criminally harassed, intimidated, bullied, physically threatened, and/or attacked[ ] multiple ‘female employees’ [of W+M]." Amend. Compl. ¶ 44. The amended complaint does not specify the exact language used by defendants in the blog post nor does it include the post as an attachment. However, defendants attach each of the blog posts as exhibits.¹ The May 6 post begins with a screenshotted LinkedIn post by Leask wherein he states, in part: "Looks a lot like APC Residential Pricing & Analytics Tool since late 2016. This is a cheap poorly integrated knock off APC Data Analytics, LLC #innovations placed over the same thing you had for 10 years now. W+R Studios, marketing firm, let's see if you can keep it up." ECF No. 26-2, Underwood Decl. at 7. Following the screenshot, Robertson wrote, in relevant part:

But that's not why I'm writing this letter. Because as the owner of a company I can take criticism. I'm a big boy. I'm in the arena. But what you have done is quite something different. You are harassing and making personal attacks on my employees directly. Below are screenshots of the LinkedIn messages you sent to them .... [Screenshot omitted]

I'm not sure if you are aware of this but the father of the person you sent this message to recently died of cancer

. His mother was also recently diagnosed. Also, what's up with the fist and "We will see you soon!"? Is that a threat? I'm going to assume you are not such a terrible person but just another dumbshit with a keyboard.

Your next masterpiece is a doozy. You sent it to a female employee of mine. She doesn't need my help, she's been handling stupid men like you her entire career. But I feel if I don't tell you this isn't appropriate then who will? [Screenshot omitted]

First off, she has no idea who you are. Now again, I am going to assume you are not another "macho man" thinking that you can bully women just by sending them an intimidating message. I'm going to assume again, you had a dumbshit moment with a keyboard.

....

So, instead of posting pictures of gangsters, fists, making personal attacks on my employees and trying to intimidate my female employees, if you got a beef with me then be a man and pick up the phone.

ECF No. 26-2, Underwood Decl. at 8–10. In the comment section of the blog post, Robertson later wrote:

@Jamie Lee Derrickson It boggles my mind that you would classify sending intimidating messages to a female staff member be the result of someone who is "full of passion." If you, Noah, or anyone else contacts her, or anyone else from my company again I have the number of the Mount Pleasant, SC Police station, 843-884-4176 and will report you.

Id. at 13 (referenced at Amend. Compl. ¶ 46).

B. Blog Post Two

On May 8, 2020, defendants published another blog post, titled "Thank you" (the "May 8 post"). In the post, Robertson wrote: "I just wanted to end the week and thank everyone for their support. It was the biggest single day of traffic in Vendor Alley history." Underwood Decl. at 21. The May 8 post included a hyperlink back to the May 6 post embedded in the words "for their support."

C. Blog Post Three

On May 12, 2020, defendants published a blog post titled "Noah T Leask of APC Data Analytics is still sending me threatening messages" (the " ‘Threatening Messages’ post"). The post begins with a screenshot of what appears to be an email with a LinkedIn private message from Leask within it. The private message included three emoticons, including a fist, and the words, "See you at the next event!" Underwood Decl. at 27.

Under the screenshot, Robertson wrote, in relevant part:

One week later. No phone call. No apologies for sending my employees threatening messages. No mea culpa for trying to intimidate my female employees. Instead, Noah T. Leask, the creepy CEO of APC Data Analytics decides to send me an emoji of a fist and the message "See you at the next event!"

What is wrong with this guy? Does he want to fight me? Are you still in 5th grade? The industry was very clear on how they felt about your behavior and now you are going to "double-down"?

And to anyone working at APC Data Analytics, none of whom I've ever met. You may have a great product or produce crappy software, I have no idea. How is it you condone this behavior? Your silence speaks volumes.

Underwood Decl. at 28. The underlined text above was a link back to the May 6 post.

Robertson also left a comment in the comment section below the post: "@Jennifer. Yeah, I hadn't really thought of that scenario. It might make the most sense. Or maybe a drug problem? That would be pretty sad. Still perplexed on why no formal communication from anyone at his company." Underwood Decl. at 29. The complaint further discusses comments by non-parties to this action "questioning whether Leask has a brain injury

," Amend. Compl. ¶ 54, but the comment left by Robertson was the only one made by defendants.

D. Blog Post Four

On the same day, May 12, 2020, defendants published another blog post. This post was titled "Noah T Leask appears to have been fired as CEO of APC Data Analytics for his inappropriate behavior" (the " ‘Fired’ post"). The post begins with a snippet from APC's press release announcing that co-founder and chief innovation officer Anton Roeger IV would be taking over as president and CEO. Robertson then wrote:

Another odd thing is that Noah T Leask's LinkedIn profile has completely disappeared. I'm not sure if this is due to my and other reporting of his inappropriate behavior to LinkedIn or part of a larger PR strategy from APC Data Analytics, LLC. [Update: This may be due to the fact I blocked him]

It's good to know that LinkedIn doesn't find Noah T Leask's behavior of sending inappropriate and threatening messages acceptable.

When I first wrote about Noah T Leask sending intimating emails to a female employee at my company, Jamie Lee Derrickson and Anton Roeger IV defended Noah T Leask by saying "He is an incredibly talented and intelligent man, and obviously full of passion!"

Underwood Decl. at 33–34. The underlined text was a link to the May 6 post.

E. Blog Post Five

On May 14, 2020, defendants published a blog post entitled "Based on a true story ..." (the "May 14 post"). In the post, Robertson wrote "UNHINGED" and then embedded a YouTube trailer for a movie called "Unhinged," starring Russell Crowe ("Crowe"). Below the trailer, Robertson wrote, "The guy in the truck reminds me of someone. I just can't put my finger on who it is though ..."

According to the complaint, "Unhinged" depicts a man, played by Crowe, who engages in various "criminal activities," including assault and attempted vehicular homicide; breaking and entering; domestic abuse; arson; theft, stalking, and reckless driving; assault and battery; murder; and "[b]eing mentally unstable and psychotic." Amend. Compl. ¶¶ 63–64. The complaint alleges that defendants attempt to "draw a physical resemblance" between Leask and Crowe's character, both who have beards, and alleges that a reader would reasonably draw the conclusion that "Crowe[ ] is based on Leask, stemming from Leask's alleged criminal conduct[ ] and mental instability." Id. ¶ 64. Plaintiffs allege that defendants’ actions caused damage to plaintiffs’ reputation and mental wellbeing, as well special damages—including...