Nassar v. Nassar, Case No. 3:14-cv-1501-J-34MCR
| Decision Date | 03 January 2017 |
| Docket Number | Case No. 3:14-cv-1501-J-34MCR |
| Parties | ROSANA BOULHOSA NASSAR, Plaintiff, v. EDUARDO BOULHOSA NASSAR, Defendant. |
| Court | U.S. District Court — Middle District of Florida |
THIS CAUSE is before the Court on (1) Defendant's Motion to Dismiss Amended Complaint and Memorandum in Support (Doc. 63; "Defendant's Motion to Dismiss"), filed on March 30, 2016; (2) Plaintiff's Motion to [sic] Judicial Notice (Doc. 66; "Plaintiff's Motion for Judicial Notice"), filed on April 11, 2016; and (3) Plaintiff's Renewed Motion for Leave to File Second Amended Complaint (Doc. 98; "Plaintiff's Motion to Amend"), filed on September 8, 2016. On April 11, 2016, Plaintiff, Rosana Boulhosa Nassar, filed her Opposition to Defendant's Motion to Dismiss Amended Complaint (Doc. 65; "Plaintiff's Response to Defendant's Motion to Dismiss"). Defendant, Eduardo Boulhosa Nassar, filed Defendant's Opposition to Plaintiff's Motion Seeking Judicial Notice (Doc. 71; "Defendant's Response to Plaintiff's Motion for Judicial Notice") on April 28, 2016. On May 31, 2016, Defendant filed Defendant's Reply to Plaintiff's Opposition to Defendant's Motion to Dismiss Amended Complaint (Doc. 81; "Defendant's Reply to Motion to Dismiss"), and Plaintiff filed her Reply Brief to Defendant's Opposition to Plaintiff's Motion to Take Judicial Notice (Doc. 82; "Plaintiff's Reply to Motion for Judicial Notice"). Defendant filed Defendant's Opposition to Plaintiff's Renewed Motion for Leave to File Second Amended Complaint (Doc. 100; "Defendant's Response to Plaintiff's Motion to Amend") on September 26, 2016. With leave of Court, on October 11, 2016, Plaintiff filed her Reply Brief to Defendant's Opposition to Plaintiff's Renewed Motion for Leave to File Second Amended Complaint (Doc. 103; "Plaintiff's Reply to Motion to Amend"). Accordingly, this matter is ripe for review.
Plaintiff alleges that Defendant, a Brazilian citizen and Plaintiff's older brother, sexually assaulted Plaintiff when she was a child. Amended Complaint (Doc. 61) at 1-2. She asserts that Defendant also violated her privacy by entering her gynecologist's examination room without her permission when she was an adolescent. Id. at 2. "[T]o recover from her childhood trauma," in 1998 Plaintiff wrote a book in Portuguese titled (as translated) "The Freeing Power of Speech," in which she detailed "the abuse the defendant committed against her." Id. at 2-3. Since the publication of her book, Defendant has published false statements about Plaintiff online, including in a 2010 review of Plaintiff's book on the website "Goodreads.com" in which he wrote that Plaintiff has "serious psychological problems," a "personality disorder," and "paranoia." Id. at 2-3, 5-6, 9-10. Defendant also purchased the domain name "www.rosananassar.com" in 2010 and the domain name "www.newglobalpublishing.net" in 2005. Id. at 3, 11. The latter domain name is a reference to Plaintiff's publishing business, New Global Publishing;Plaintiff has owned the domain name "www.newglobalpublishing.com" since 2004. Id. at 3-4. Defendant has published false statements on rosananassar.com and newglobalpublishing.net similar to those published on Goodreads.com. Id. at 6, 10-11.
Since 2005, Defendant has, either directly or through an attorney, hired at least 35 private investigators and security officers from several different agencies "to stalk, investigate, place ... under surveillance, guard, protect, recover and follow" Plaintiff. Id. at 4. In support of this allegation, Plaintiff includes her own research purportedly showing "a match between the investigators['] and security officers' car registration records and the professional licenses of the same investigators and security officers who have followed the plaintiff and have been in front of her [two] residences." Id. at 4-5. She received an anonymous text message that read, which she perceived to be a threat, and which she concludes was sent by Defendant. Id. at 7, 18; see also Amended Complaint, Exh. J (images of text message). Plaintiff's publishing business has suffered as a result of Defendant's actions because Plaintiff "had to spend most of her time investigating the investigators and security officers who the defendant has been hiring." Id. at 4.
A Brazilian court issued a restraining order prohibiting Defendant from "hir[ing] investigators, security officers or contractors to protect, guard, investigate, conduct surveillance or to follow" Plaintiff. Id. at 7, 19. However, the order has since expired. Id. at 19.
On July 16, 2012, Defendant3 filed a complaint in the Circuit Court in and for St. Lucie County, Florida alleging that Plaintiff had published defamatory statements about Defendant related to Plaintiff's claims that Defendant had abused her and had hired private investigators to stalk her. See Verified Complaint (Doc. 24-2; "State Court Complaint") ¶ 2. In response, Plaintiff filed a Counterclaim, seeking damages for (1) lost wages "resulting from intense and repeated stalking and torture inflicted on" her; (2) "emotional and physical distress" resulting from Defendant's hiring of 35 investigators andsecurity officers to conduct surveillance; and (3) Defendant's purchase of newglobalpublishing.net, rosananassar.com, and a third domain name, www.thefirstlove.com (a purported reference to one of Plaintiff's books). See Counterclaim (Doc. 24-3; "State Court Counterclaim") at 1-4. On March 17, 2014, Defendant moved to dismiss Plaintiff's Counterclaim, arguing that Plaintiff failed to clearly and concisely plead her counterclaims, failed to establish that the state court had personal jurisdiction over Defendant with respect to the counterclaims, and was in default because she failed to respond to Defendant's underlying claims. See [Defendant's] Motion to Dismiss Counterclaim and for Entry of Default Judgment (Doc. 24-4; "Motion to Dismiss State Court Counterclaim") at 2-6. Plaintiff amended her Counterclaim on May 20, 2014. See Counter-Plaintiff's Ammended [sic] Counter-Claim and Answer to Counter-Defendant's Claim (Doc. 24-5; "Amended State Court Counterclaim"). On June 26, 2014, Defendant moved to dismiss that Counterclaim as well, again arguing that Plaintiff had failed to clearly and concisely plead her counterclaims and had failed to adequately allege a basis for personal jurisdiction over Defendant. See [Defendant's] Motion to Dismiss Amended Counterclaim (Doc. 24-6; "Motion to Dismiss Amended State Court Counterclaim"). The state court granted Defendant's motion on August 25, 2014, dismissed Plaintiff's Counterclaim, and granted Plaintiff leave to amend to allege "a short and plain statement of the facts and appropriate jurisdictional allegations." See Order (Doc. 24-7; "State Court Order on Motion to Dismiss Amended Counterclaim") at 1.
Plaintiff filed a third4 amended counterclaim on August 27, 2014. See [Plaintiff's] Verified Amended Counter-Claim (Doc. 24-8; "Third Amended State Court Counterclaim"). In it, Plaintiff alleged that Defendant had "been stalking [Plaintiff] ... since 2005 through Private investigators and security officers." Id. at 2. She alleged that Defendant had "made numerous offensive websites under [Plaintiff's] name, business and books associated with her as a retaliation to her writings about the sexual abuse," including rosananassar.com and newglobalpublishing.net. Id. at 2-3. She alleged that Defendant had falsely stated on those websites that Plaintiff suffered from "'serious psychological problems', 'personality disorder', and paranoia." Id. at 3. After spending considerable time responding to Defendant's argument that the state court lacked personal jurisdiction over Defendant with respect to Plaintiff's counterclaims, Plaintiff raised four counterclaims against Defendant: (1) "[i]ntellectual [p]roperty [d]amage," based on Defendant's purchase of the above-mentioned domain names; (2) defamation, based on Defendant's "derogatory comments," including the above-mentioned statements concerning Plaintiff's mental health; (3) stalking, based on Defendant's alleged hiring of private investigators and security officers beginning in 2005; and (4) intentional infliction of emotional distress, based on the same grounds as Plaintiff's stalking claim. See id. at 3-10.
On September 18, 2014, Defendant moved to dismiss Plaintiff's Third Amended State Court Counterclaim with prejudice, arguing that (1) Plaintiff had failed "to succinctly plead ultimate facts" supporting any of her claims; (2) Plaintiff's defamation claim wastime-barred; (3) Plaintiff had failed to state a claim for defamation; and (4) Florida law does not recognize a claim for "intellectual property damage." See [Defendant's] Motion to Dismiss Third Amended (Fourth) Counterclaim With Prejudice (Doc. 24-9; "Motion to Dismiss Third Amended State Court Counterclaim") at 3-5. On November 24, 2014, the Court granted Defendant's motion "for the reasons contained in [the] motion which are incorporated herein by reference" and precluded Plaintiff from further amending her counterclaim. See Order (Doc. 24-10; "Order on Motion to Dismiss Third Amended State Court Counterclaim") at 1. Following the dismissal, on December 1, 2014, Defendant voluntarily dismissed his lawsuit against Plaintiff. See Notice of Dismissal (Doc. 24-11; "State Court Notice of Dismissal"). Plaintiff did not pursue an appeal.
Plaintiff filed her Verified Complaint (Doc. 1; "Complaint") against Defendant on December 17, 2014. Although she initially sought leave to proceed in forma pauperis, see Docs. 2-4, she paid the $400 filing fee in January 2015. Defendant then filed Defendant's Motion to Dismiss and Memorandum in Support (Doc. 16; "First Motion to Dismiss"). After responding to the First Motion to Dismiss, Plainti...
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