Phillips v. Consol. Publ'g Co.
| Decision Date | 31 March 2014 |
| Docket Number | CV 213-069 |
| Court | U.S. District Court — Southern District of Georgia |
| Parties | EUGENE DEBBS PHILLIPS, III Plaintiff, v. CONSOLIDATED PUBLISHING COMPANY, INC., PUBLIX SUPERMARKETS INC., CARLTON FIELDS, P.A., H. BRANDT AYERS, BENJAMIN CUNNINGHAM, JASON BACAJ, WAYNE RUPLE, KENNETH A. TINKLER, and JOHN ALRED, Defendants. |
Presently before the Court are three Motions to Dismiss for Lack of Personal Jurisdiction. The first Motion to Dismiss (Dkt. No. 45) was filed by Defendants Consolidated Publishing Company, Inc. ("Consolidated"), Jason Bacaj ("Bacaj"), Wayne Ruple ("Ruple"), John Aired ("Aired"), and Benjamin Cunningham ("Cunningham"). The second Motion to Dismiss (Dkt. No. 59) was filed by H. Brandt Ayers ("Ayers"). The third such motion (Dkt. No. 71)was filed by H. Ray Allen ("Allen") and Kenneth A. Tinkler ("Tinkler"). Also before the Court is a Motion to Dismiss for Failure to State a Claim (Dkt. No. 70) filed by Defendants Allen, Tinkler, Carlton Fields, P.A. ("Carlton Fields"), and Publix Super Markets, Inc. ("Publix"). Carlton Fields and Publix do not contest personal jurisdiction. The first Motion to Dismiss for Lack of Personal Jurisdiction (Dkt. No. 45) is GRANTED in part and DENIED in part. The second Motion to Dismiss for Lack of Personal Jurisdiction (Dkt. No. 59) is GRANTED. The third Motion to Dismiss for Lack of Personal Jurisdiction (Dkt. No. 71) is GRANTED. The Motion to Dismiss for Failure to State a Claim (Dkt. No. 70) is GRANTED.
FACTUAL BACKGROUND
Plaintiff alleges various claims stemming from two articles published in The Anniston Star and The Cleburne Times, two Alabama newspapers owned by Consolidated. Plaintiff asserts that Defendant Bacaj, staff writer for The Anniston Star, obtained Plaintiff's sealed, confidential probate court records that he used in writing the articles. Dkt. No. 16, pg. 21. Bacaj retrievedPlaintiff's records from the DeKalb County courthouse. Dkt. No. 45, Exh. C. According to Bacaj, the documents were public record in Georgia. Id. The records were used in articles about an Alabama land deal for which the entire investigation was conducted in Alabama, with the exception of Bacaj retrieving records from DeKalb County, Georgia. Dkt. No. 45, Exhs. C, E. Plaintiff asserts that Consolidated and Bacaj are liable for the invasion of Plaintiff's privacy associated with the articles, as are Ayers, Publisher of The Anniston Star, Cunningham, Editor of The Anniston Star, Ruple, Editor of The Cleburne News, and Aired, Publisher of The Cleburne News. Id. at pgs. 13-20.
The Anniston Star is a newspaper published in Anniston, Alabama. Dkt. No. 45, Exh. A. Of the 18,000 copies of the newspaper delivered, five are delivered to Georgia addresses. Id. Both The Anniston Star and The Cleburne News claim not to conduct business in Georgia or solicit business from Georgia residents. Id.; Dkt. No. 45, Exh. D. Defendants submitted affidavit evidence stating that there are no racks from which The Anniston Star is sold inGeorgia. Dkt. No. 45, Exh. A. Plaintiff, however, alleges that he, while in Georgia, purchased advertising space from Consolidated's advertising department and that he purchased The Anniston Star from two locations in Georgia. Dkt. No. 60, Exh. C. Plaintiff also presented printouts from The Anniston Star website that show obituaries of Georgia residents and Georgia businesses from a directory search. Dkt. No. 60, Exhs. A, C.
Plaintiff further alleges that Publix's attorneys, Allen and Tinkler, working for the law firm Carlton Fields, are liable for finding the articles online and sending them to Plaintiff's employer, the Town of Campbellton, Florida. Dkt. No. 16, pg. 4. Plaintiff contends that Allen and Tinkler threatened to spread the articles throughout Florida to encourage Campbellton, Plaintiff's employer, to drop a legal action. Id. at pg. 5. Allen, Tinkler, Carlton Fields, and Publix allege that Plaintiff's claims fall within Florida's litigation privilege, and should therefore be dismissed. Dkt. No. 70, pg. 23-24.
Allen and Tinkler are attorneys licensed to practice law in Florida, and neither transacts business in Georgiaor owns property in Georgia. Dkt. Nos. 71-1, pg. 1, 71-2, pg. 1. Allen and Tinkler were retained by John Attaway, General Counsel for Publix, to represent the interests of Publix and its stockholders in a condemnation proceeding filed by the Town of Campbellton, Florida. Dkt. No. 71-1, pg. 1. Allen and Tinkler contend that the case was sealed by the time they were retained, which prevented them from attaining information relating to the proceeding from the presiding judge, clerk's office, or attorneys. Id. at pg. 2. Allen claims that he attempted to obtain a copy of the sealed complaint, but that part-time attorney for Campbellton, Casey Bigelow, the Jackson County Clerk of the Court, and the Clerk of the Court's attorney all refused to provide him with the complaint because the case was sealed. Dkt. No. 71, pg. 2. Allen and Tinkler sent public records requests to the Town of Campbellton, but both went unanswered. Dkt. Nos. 71-1, pg. 2, 71-2, pgs. 2-3. According to Tinkler, he requested information concerning people and entitles mentioned within the newspaper articles. Dkt. No. 71-2, pg. 2. When Tinkler's request went unanswered, he contacted the Mayor of Campbellton andrequested a response from his office in Tampa, Florida. Dkt. No. 71-2 at pg. 2. Allen contends that he emailed Bigelow the two newspaper articles published on the Internet from Allen's office in Tampa, Florida after Bigelow refused to send a copy of the complaint to Allen. Dkt. No. 71-1, at pg. 3. In March 2011, Carlton Fields filed a Motion to Intervene in the proceeding on behalf of Publix. Dkt. No. 71-1, pg. 2. Campbellton voluntarily dismissed the case the following day. Id. In May 2011, Judge Christopher Patterson issued an Order to Show Cause regarding the necessity for the condemnation to be sealed. Id. The sealed file was subsequently unsealed. Id.
Plaintiff alleges that Allen and Tinkler are responsible for disseminating the newspaper articles "containing Plaintiff's psychiatric information to Campbellton." Dkt. No. 16, pg. 28. Plaintiff accuses Allen and Tinkler of "dissemination of Plaintiff's intangible personal property." Id. at pg. 29. Plaintiff also contends that Allen and Tinkler threatened to further disseminate the articles to the Florida press in order to embarrass Campbellton, Plaintiff's employer, and to encourage theTown Council to withdraw a case "for limited agent authority over voting rights." Id. at pg. 31. Plaintiff alleges that Publix and Carlton Fields are vicariously liable for the actions of Allen and Tinkler. Id. at pgs. 14, 16. Plaintiff believes that Allen and Tinkler's motivation for emailing the articles to Campbellton was to "coerc[e] Campbellton to remove the legal action from the court." Id. at pg. 37.
LEGAL STANDARD
A plaintiff bears the burden of establishing a prima facie case of personal jurisdiction over a nonresident defendant. Cable/Home Commc'n. Corp. v. Network Prods., Inc., 902 F.2d 829, 855 (11th Cir. 1990). The burden returns to the plaintiff to produce evidence of jurisdiction if "the defendant challenges jurisdiction by submitting affidavit evidence in support of its position." Diamond Crystal Brands, Inc. v. Food Movers Int'l Inc., 593 F.3d 1249, 1257 (11th Cir. 2010) (quoting United Techs. Corp. v. Mazer, 556 F.3d 1260, 1274 (11th Cir. 2009). The district court is required to accept facts the plaintiffputs forth in the complaint as true, if they are undisputed by the defendant's affidavits. Cable/Home Commc'n Corp., 902 F.2d at 855. Further, "[w]here the plaintiff's complaint and supporting evidence conflict with the defendant's affidavits, the court must construe all reasonable inferences in favor of the plaintiff." Diamond Crystal Brands, Inc., 593 F.3d at 1257 (quoting Meier ex rel. Meier v. Sun Int'l Hotels, Ltd., 288 F.3d 1264, 1269 (11th Cir. 2002).
A motion to dismiss brought pursuant to Federal Rule of Civil Procedure 12(b)(6) challenges the adequacy of the complaint. "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ^state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 '(2009)(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Although "detailed factual allegations" are not required to survive a 12(b)(6) motion, "factual allegations must be enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555. In assessing a 12(b)(6)motion to dismiss, the Court is "limited primarily to the face of the complaint and attachments thereto." Brooks v. Blue Cross & Blue Shield of Fla., Inc., 116 F.3d 1364, 1368 (11th Cir. 1997). The Court must "construe[] the complaint in the light most favorable to the plaintiff and accept [] all well-pled facts alleged . . . in the complaint as true." Sinaltrainal v. Coca-Cola Co., 578 F.3d 1252, 1260 (11th Cir. 2009). A court should only grant a Rule 12(b)(6) motion to dismiss if the plaintiff is unable to plead facts sufficient "to raise a right to relief above the speculative level." Twombly, 550 U.S. at 545.
DISCUSSION
Assessing whether a court has personal jurisdiction over a nonresident defendant entails a two-part analysis: 1) analyzing jurisdiction under the state long-arm statute, and 2) analyzing whether the nonresident defendant has minimum contacts with the forum state sufficient to satisfy the Due Process Clause of the Fourteenth Amendment. Cable/Home Commc'n Corp., 902 F.2d at 855. The Court must first assess whether there is a basis for personaljurisdiction under the Georgia long-arm statute before performing the minimum contacts analysis. Madara v. Hall...
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