Lynch v. Bailey-Roka

• Docket Number: 22-cv-14338-Cann/McCabe
• Decision Date: 13 April 2023
• Parties: ALISA MARIE LYNCH and PETER JAMES LYNCH, Plaintiffs, v. TANISHA BAILEY-ROKA, MICHAEL DAVID HOLZKNECHT, LEE J. ROHN & ASSOCIATES LLC, and LEE JEANNETTE ROHN Defendants.
• Court: U.S. District Court — Southern District of Florida

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ALISA MARIE LYNCH and PETER JAMES LYNCH, Plaintiffs, v. TANISHA BAILEY-ROKA, MICHAEL DAVID HOLZKNECHT, LEE J. ROHN & ASSOCIATES LLC, and LEE JEANNETTE ROHN Defendants.

No. 22-cv-14338-Cann/McCabe

United States District Court, S.D. Florida

April 13, 2023

REPORT AND RECOMMENDATION

RYON M. MCCABE U.S. MAGISTRATE JUDGE.

This case arises from civil litigation and attorney grievance proceedings pending or formerly pending in the United States Virgin Islands (“Virgin Islands”). Defendants have filed a Joint Motion to Dismiss the Case or Transfer Venue (“Motion”) (DE 46), which has been referred to the undersigned by United States District Judge Aileen M Cannon (DE 48). Defendants seek dismissal on several grounds including lack of personal jurisdiction, improper venue, and immunity. For the reasons set forth below, the undersigned RECOMMENDS that the Motion be GRANTED.

I. BACKGROUND

Plaintiff Peter Lynch (hereafter “Husband”) is an attorney who resides in Florida but maintains a law practice in the Virgin Islands (DE 13 ¶¶ 2, 25). Defendant Lee Rohn is an attorney in the Virgin Islands, practicing law through her law firm Lee J. Rohn & Associates, LLC (hereafter collectively the “Rohn Defendants”) (DE 13 ¶¶ 7-8, 21). At some point in the past Husband became involved in litigation, as both opposing counsel and as an opposing party, against the Rohn Defendants (DE 13 ¶¶ 32, 60 n.1). At some point in the past the Rohn Defendants also advised one of Husband's former clients to file an attorney grievance against Husband in the Virgin Islands (DE 13 ¶ 32). Defendant Michael Holzknecht (hereafter “Bar Counsel 1”), an employee of the Office of Disciplinary Counsel for the Supreme Court of the Virgin Islands, handled the attorney grievance against Husband (DE 13 ¶¶ 54-55, 110). Bar Counsel 1 works remotely from the State of Missouri (DE 13 ¶ 52).

Separate and apart from these matters, in or around March 2021, Husband began divorce proceedings against his wife, Plaintiff Alisa Lynch (hereafter “Wife), in the Virgin Islands (DE 13 ¶ 29). Wife, who resides in Florida, retained the Rohn Defendants to represent her in the Virgin Islands divorce (DE 13 ¶ 35). Thereafter, on or about April 30, 2021, Husband dismissed the Virgin Islands divorce case (DE 13 ¶ 36).

Plaintiffs allege that the Rohn Defendants, who are not licensed to practice law in Florida, then agreed to assist Wife in filing a new divorce case in Florida (DE 13 ¶¶ 38, 41). Sometime in May 2021, Wife filed for divorce in Florida (DE 13 ¶ 44). The Rohn Defendants hired the process server to effect service on Husband and ghost-drafted the Notice of Proof of Service (DE 13 ¶ 44).

During the time period of the Rohn Defendants' legal representation, Wife disclosed confidential information to the Rohn Defendants about Husband (hereafter the “Confidential Information”) (DE 13 ¶¶ 46, 76). On April 27, 2021, the Rohn Defendants, who were located in the Virgin Islands at the time, emailed this Confidential Information to Bar Counsel 1 (DE 13 ¶¶ 46, 56). Thereafter, Bar Counsel 1 made a series of communications to Wife in Florida (by telephone, text, and email) concerning Husband (DE 13 ¶¶ 61, 65). During these communications, Bar Counsel 1 initially failed to disclose that he worked for the Virgin Islands Supreme Court, and Wife mistakenly believed he worked for the Rohn Defendants, i.e., her own lawyers (DE 13 ¶¶ 64, 66). During these communications, Wife disclosed additional Confidential Information to Bar Counsel 1 (DE 13 ¶¶ 70, 74; DE 13-1 at 39).

On May 25, 2021, Bar Counsel 1, who was in Missouri at the time, sent a letter to his supervisor, Tanisha Bailey-Roka (hereafter “Bar Counsel 2”), who was in the Virgin Islands at the time, relaying the Confidential Information (DE 13 ¶¶ 71, 76, Ex. D). On that same day, Bar Counsel 1 sent an email to Wife in Florida soliciting Wife to file a Virgin Islands attorney grievance against Husband (DE 13 ¶ 78).

Next, in February 2022, Bar Counsel 2 sent a certified mailing to another unnamed attorney in Florida, forwarding a copy of yet another Virgin Islands bar grievance (hereafter the “Third-Party Grievance”), which had been filed against that Florida attorney (DE 13 ¶ 108). The Third-Party Grievance related to Husband's earlier grievance and involved the same client (DE 13 ¶ 108). Plaintiffs allege that Exhibit 10 to the Third-Party Grievance consisted of a portion of a document that Bar Counsel 1 had earlier filed in connection with Husband's own grievance proceedings (DE 13 ¶ 110). Plaintiffs allege that Virgin Islands bar rules prohibited Bar Counsel 2 from allowing Exhibit 10 to be disclosed to the third-party Florida attorney who was the subject of the Third-Party Grievance (DE 13 ¶¶ 111-12). Plaintiffs further allege that Bar Counsel 2 violated bar rules and committed other misconduct by sending the certified mailing (DE 13 ¶¶ 11112).

On September 26, 2022, Plaintiffs filed the instant action in the Southern District of Florida (DE 1). Plaintiffs thereafter filed a First Amended Complaint on October 17, 2022 (DE 9), and a Second Amended Complaint on October 21, 2022 (“SAC”) (DE 13). The SAC alleges fifteen (15) counts as follows:

Count

Action

Plaintiffs

Defendants

I

Malpractice & Breach of Fiduciary Duty

Wife

Rohn Defendants

II

Fraud & Concealment

Wife

Rohn Defendants

III

Malpractice & Breach of Fiduciary Duty

Wife

Bar Counsel 1, individually

IV

Fraud & Concealment

Wife

Bar Counsel 1, individually

V

Fraud & Concealment

Wife

Bar Counsel 2 individually

VI

Invasion of Privacy by Intrusion

Wife & Husband

Rohn Defendants, Bar Counsel 1 & 2, individually

VII

Declaratory Judgment-Violation of Florida's Right to Privacy

Wife & Husband

Bar Counsel 1 & 2, official capacity

VIII

Intentional Infliction of Emotional Distress

Wife & Husband

Rohn Defendants, Bar Counsel 1, individually

IX

Negligence, Breach of Confidentiality

Husband

Bar Counsel 2, individually

X

42 U.S.C. § 1983, Fourth Amendment Violation

Wife & Husband

Rohn Defendants, Bar Counsel 1, individually

XI

42 U.S.C. § 1983, Commerce Clause Violation

Husband

Bar Counsel 1 & 2, individually

XII

42 U.S.C. § 1985, Fourteenth Amendment Violation of Equal Protection

Husband

Rohn Defendants, Bar Counsel 1 & 2, individually

XIII

Defamation, per se

Husband

Rohn Defendants, Bar Counsel 1, individually

XIV

Abuse of Process

Husband

Rohn Defendants, Bar Counsel 1, individually

XV

Declaratory Judgment

Husband & Wife

Rohn Defendants, Bar Counsel 1 & 2, individually & official capacity

(DE 13).

This Motion followed (DE 46), seeking dismissal on multiple grounds. The Court will address each argument in turn.

II. PERSONAL JURISDICTION

Defendants first urge dismissal based on lack of personal jurisdiction. To determine personal jurisdiction, this Court must look to Florida's long-arm statute, Fla. Stat. § 48.193, which requires the application of a two-pronged test. First, the Court must determine whether the statute itself authorizes personal jurisdiction. Sculptchair, Inc. v. Century Arts, Ltd., 94 F.3d 623, 626 (11th Cir. 1996). In making this determination, the Court must construe the language of the long-arm statute “strictly.” Id. at 627. Next, if the long-arm statute has been satisfied, the Court must determine whether the exercise of jurisdiction satisfies the Fourteenth Amendment's Due Process Clause, including an analysis of the non-resident defendants' “minimum contacts” with the forum state. Id. at 626.

In applying this two-pronged test, the Court follows a burden-shifting analysis. First, Plaintiffs bear the initial burden of alleging sufficient facts to make out a prima facie case of personal jurisdiction. Louis Vuitton Malletier, S.A. v. Mosseri, 736 F.3d 1339, 1350 (11th Cir. 2013). Next, the burden shifts to Defendants to submit affidavits to contradict Plaintiffs' allegations. Id. The burden then returns to Plaintiffs to produce counter-affidavits supporting personal jurisdiction. Id. If possible, the Court must reconcile the affidavits. Id. Where the parties' affidavits cannot be reconciled, however, the Court must conduct an evidentiary hearing to resolve the jurisdictional issue. Abramson v. Walt Disney Co., 132 Fed.Appx. 273, 275 (11th Cir. 2005) (citing Venetian Salami Co. v. Parthenais, 554 So.2d 499, 503 (Fla. 1989)).

The Court finds no evidentiary hearing necessary in this case. Rather, based on the allegations of the SAC and the parties' respective affidavits, the Court finds Plaintiffs cannot satisfy the first prong necessary for personal jurisdiction, i.e., Florida's long-arm statute does not authorize personal jurisdiction over Defendants. Plaintiffs rely on two sections of the statute to support jurisdiction, each of which the Court will address in turn.

A. Fla. Stat. § 48.193(1)(a)(2) - Committing a Tort Within this State

Plaintiffs first point to § 48.193(1)(a)(2), which provides:

(1)(a) A person, whether or not a citizen or resident of this state, who personally or through an agent does any of the acts enumerated in this subsection thereby submits himself or herself and, if he or she is a natural person, his or her personal representative to the jurisdiction of the courts of this state for any cause of action arising from any of the following acts:

.....

2. Committing a tortious act within this state.

Plaintiffs argue this provision authorizes jurisdiction because Defendants reached into the State of Florida by telephone, text, and mail to commit torts (DE 47 at 13). As set forth below, the Court disagrees.

As the Eleventh Circuit has recognized, “[f]or personal jurisdiction to attach under the ‘tortious activity' provision of the Florida long-arm statute, the plaintiff must demonstrate that the...