M.D. Fla. Internet Jurisdiction Case – Internet Solutions Corporation v. Marshall

The Middle District of Florida ruled yesterday in Internet Solutions Corporation v. Marshall, dismissing the case for lack of personal jurisdiction. The plaintiff, a Florida corporation, was upset about blog postings by Ms. Marshall that criticized the company. The company filed a defamation suit in Florida, hoping to drag Ms. Marshall here to defend the case, and to take advantage of the fact that Florida law does not protect free speech any more than the federal Constitution forces it to.

While this case is not really a landmark case — it followed well-worn grooves in the law — it is important to publicize these cases as much as possible. Time and again, I see attorneys in this state ignore their oath of attorney and file defamation suits here, hoping to simply punish the defendant by making him or her defend the case here.

Plaintiffs attorneys who try and skirt the due process clause inevitably try to rely on Calder v. Jones. However, as the Middle District of Florida shows (and as have other courts), this is a pre-internet case, and does not apply to websites the way it applies to newspapers.

ISC contends that Marshall committed tortious acts by posting defamatory comments on her website and targeting individuals in Florida. ISC further alleges that Marshall’s conduct resulted in contact or communications “into” Florida. However, “the minimum contacts must be ‘purposeful’ contacts.” Goforit, 513 F. Supp. 2d at 1329 (citing Beverly Hills Fan Co. v. Royal Sovereign Corp., 21 F.3d 1558, 1565 (Fed. Cir. 1994)). In Calder v. Jones, the United States Supreme Court found that an alleged single tortious act by a National Enquirer editor and reporter in Florida was sufficient to satisfy minimum contacts with the forum state of California. Calder v. Jones, 465 US 783, 789-790 (1984). The two National Enquirer employees were Florida residents who were sued in California for libel.

The court reasoned that the writers purposefully availed themselves by specifically targeting a California audience, making large distributions into California, and publishing articles about a California resident. Id. The court further explained that the alleged tortious conduct was purposeful and calculated to cause injury in California and therefore the editors must have reasonably anticipated being haled into a California court. Id. at 790-791. Unlike Calder, in the case at bar there 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. Under the Calder analysis, even if Marshall’s alleged tortious conduct occurred or resulted in injury in Florida, the single tortious act would not be sufficient to satisfy minimum contacts absent a showing of purposeful availment. According to Marshall’s affidavit, her contacts with Florida were nearly nonexistent.3 (Doc. 5 at 2-4.) ISC has not provided evidence to the contrary. Besides the web site postings do not establish any Florida-specific postings or conduct by Marshall.

Time and again, when these cases are brought before intelligent, thoughtful, and reasonable judges, the judges side with the due process clause of the Constitution, and not plaintiffs’ attorneys who knew, or should have known, that bringing suit here was improper.

The decision is here. ISC v. Marshall, Case No. 6:07-cv-1740-Orl-22KRS (M.D. Fla. April 7, 2008).

For background on the case-in-chief take a trip over to the Citizen Medial Law Project post on the case.

8 Responses to M.D. Fla. Internet Jurisdiction Case – Internet Solutions Corporation v. Marshall

  1. Les Henderson says:

    While the outcome of this case was favorable to the defendant, victory did not come without a cost, both financial and peripheral. Ms. Marshall was but one of many individuals who posted information regarding the operations of this convicted-criminal-run company.

    Though she was sued separately, numerous other people were hit with a similar, but collective, action still before the same judge. Even more people were threatened into silence rather than risk being a named party.

    Following in the footsteps of Lou Pearlman and associates, who filed boilerplate defamation and racketeering actions like it was a monthly ritual, Alec Defrawy has no reservations about wielding such a club against consumer advocates or other detractors.

    As you note, he is not alone. Nor is the problem restricted to Florida. The combination of high consumer fraud activities and being a playground for unethical lawyers just makes the Sunshine State a statistical aberration.

  2. tokashi says:

    The “libel-proof” plaintiff. A plaintiff is “libel-proof” when his reputation has been irreparably stained by prior publications. At the point the challenged statements are published, then, plaintiff’s reputation is already so damaged that a plaintiff cannot recover more than nominal damages for subsequent defamatory statements. Marcone v. Penthouse Int’l Magazine for Men, 754 F.2d 1072, 1079 (3rd Cir. 1985).
    However, a court will not dismiss a defamation action merely because the plaintiff already has a bad reputation. Schiavone Construction Co. v. Time, Inc., 646 F. Supp. 1511, 1516 (D.N.J. 1986), rev’d, 847 F.2d 1069, 1072-73 (3rd Cir. 1988). Finklea, 742 S.W.2d at 516 (“[E]ven the public outcast’s remaining good reputation is entitled to protection.”) Rather the statement upon which the defamation claim is based should relate to the same matters upon which the prior bad reputation was founded, or to substantially similar matters.
    In extreme cases, a plaintiff’s general reputation may be so bad that a court will hold a plaintiff libel-proof on all matters. For example, Charles Manson or Adolph Hitler could not be damaged by defamatory statements. Langston v. Eagle Publishing Co., 719 S.W.2d 612, 623 (Tex. App. 1986).

  3. tokashi says:

    One can conclude or argue that Mr. Difrawi actions (Lawsuits and Threats of Lawsuit) and past associations and activities have made him and his websites that of a public figure

    Who is a Public Official or Public Figure?
    Public Official. Governmental policy-makers are public officials, while public employees generally are not public officials. The Minnesota Supreme Court has laid out a test to determine who is, and is not, a public official:
    (1) whether plaintiff performs governmental duties directly related to the public interest;
    (2) whether plaintiff holds a position to influence significantly the resolution of public issues; and
    (3) whether the plaintiff has, or appears to the public to have, substantial responsibility for or control over the conduct of government affairs.
    Britton v. Koep, 470 N.W.2d 518, 522 (Minn. 1991). In Britton, the Minnesota Supreme Court held that a public roads department supervisor was not a public official, and did not have to prove actual malice.
    Public Figure. A “public figure” is a person who is publicly prominent, so much so that discussion or commentary about that person amounts to a “public concern.” However, such persons are not necessarily public figures for any purpose: status as a public figure may only extend to the particular area in which they are publicly prominent. Examples: Michael Jordan or Donald Trump. The extent of a person’s status as a public figure will be subject to extensive litigation in each case.
    The U.S. Supreme has established some guidelines on who constitutes a public figure:
    (1) Involuntary Public Figure: become public figure through no purposeful action of their own, including those who have become especially prominent in the affairs of society;
    (2) Always Public Figures: those who occupy position of such persuasive power and influence that they are deemed public figures for all purposes;
    (3) Public Figures on Specific Issues: “those who have thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved.”
    Gertz v. Robert Welch, Inc., 418 U.S. 323, 345 (1974).

  4. This case appears far from being over. Although dismissed at the district court level, the 11th Circuit has remanded the case with a certified question to the Florida Supreme Court to make a determination, whether the Florida Long Arm Statue would require ISC to answer personally to the complaint.

    I am more concerned however for the small businesses that are adversely affected by the tortuous posting of individuals who disseminate information with a malicious intent to directly harm a company. This could be done by competitors or other disgruntled employees, and the company has no recourse to tell its side of the story or even to have the information removed. To say that these companies who provide such a public forum to post such information are without fault and should not be liable for at least the reckless operation of their business is more than a dangerous proposition to me. I for one will be watching the outcome of this case with a close eye. There has to be some level of professional and responsibility imputed to these companies.

    • omg! REALLY? It is STILL going on? /end sarcasm.

      I’m aware of that, after Internet Solutions Corporation filed an appeal, Ms. Marshall hired me to defend the appeal.

      I like your posting though. Sounds like it was taken right out of the plaintiff’s briefs.

  5. This case appears far from being over. Although dismissed at the district court level, the 11th Circuit has remanded the case with a certified question to the Florida Supreme Court to make a determination, whether the Florida Long Arm Statue would require ISC to answer personally to the complaint.

    I am more concerned however for the small businesses that are adversely affected by the tortuous posting of individuals who disseminate information with a malicious intent to directly harm a company. This could be done by competitors or other disgruntled employees, and the company has no recourse to tell its side of the story or even to have the information removed. To say that these companies who provide such a public forum to post such information are without fault and should not be liable for at least the reckless operation of their business is more than a dangerous proposition for me. I for one will be watching the outcome of this case with a close eye. There has to be some level of professionalism and responsibility imputed to these companies.

  6. I’m not even sure that Calder generalizes well. The situation there was that the bulk of the audience was in California, and that’s going to be fairly unusual outside of newspapers.

    Internet jurisdiction is problematic. Even in Zippo, the defendant had contracts with Pennsylvania corps. What happens if I say something disparaging about Coca-Cola, which surely has contracts in every state? If I announce that another brand is better, do I face fifty suits?

  7. tokashi says:

    Michael L. Kidd,

    Help me understand what you will be watching and your argument here.

    A business or individual engage in deceptive business practices is immune from public criticisms and should be protected by the courts?

    Is this your argument? I am confused.

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