United States District Court, M.D. Florida, Fort Myers Division
JAMES W. MCGLOTHLIN, Plaintiff,
KEVIN N. HENNELLY, Defendant.
OPINION AND ORDER
E. STEELE, SENIOR UNITED STATES DISTRICT JUDGE.
matter comes before the Court on defendant's Motion to
Dismiss for Lack of Personal Jurisdiction and Improper Venue
(Doc. #17) filed on November 9, 2017. Defendant submitted his
affidavit in support of the motion. (Doc. #17-2.) Plaintiff
filed a Response in Opposition (Doc. #22) on November 29,
2017. For the reasons set forth below, the motion is granted
with leave to amend the Complaint.
an action for defamation and libel based on two statements
allegedly published by defendant about plaintiff on the
social media website, www.facebook.com
(“Facebook”). The Complaint (Doc. #1) alleges two
state law claims: (1) defamation/libel, and (2)
injunctive relief to enjoin defendant from making and/or
publishing any other false and defamatory statements (Count
James McGlothlin (plaintiff or McGlothlin), a Florida
citizen, is a businessman and the founding member of The
United Company, which is the parent company of Scratch Golf,
LLC. (Doc. #1, ¶¶ 1-2.) Scratch Golf owns real
property in Beaufort County, South Carolina, operated and
commonly known as the Hilton Head National Golf Course (the
Property). (Id. at ¶ 7.) In or around July
2016, Scratch Golf submitted an application to Beaufort
County to amend the zoning of the Property. (Id. at
14, 2017, defendant Kevin N. Hennelly (defendant or
Hennelly), a South Carolina citizen, published the first
Facebook post, criticizing Scratch Golf's rezoning
application and the Property, stating that McGlothlin was a
“crony capitalist” who would “break every
rule in the book to get a government favor or handout.”
(Doc. #7-1.) The post also stated that plaintiff was a
“crook.” (Id.) On May 22, 2017, the
zoning application was denied. (Id. at ¶ 10.)
Plaintiff does not allege that the application was denied as
a result of defendant's actions.
23, 2017, Hennelly published the second allegedly defamatory
statement on Facebook, stating that plaintiff was “up
to [his] eyeballs in the recent scandals in Virginia with the
Governor and his wife. McGlothin gave the Governors
[sic] wife a no show job at the heart of the ethical
and criminal activity.” (Doc. #4-1.) Plaintiff alleges
that the scandal involving the Governor and his wife was
highly publicized. (Doc. #1, ¶13.)
alleges general damages; actual damages, including injury to
his reputation; mental suffering, anguish, and public
humiliation; and punitive damages. (Doc. #1, ¶¶
19-21.) Plaintiff further alleges that defendant is not only
liable for the initial publication of the two statements, but
also for each subsequent republication, as separate offenses.
(Id. at ¶ 22.)
moves to dismiss the Complaint for lack of personal
jurisdiction and improper venue. Plaintiff opposes both
aspects of the motion.
ruling on a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(2), the Court must conduct a “two-step
inquiry when determining whether the exercise of personal
jurisdiction over a nonresident defendant is proper.”
Thomas v. Brown, 504 Fed.Appx. 845, 847 (11th Cir.
2013) (citing Horizon Aggressive Growth, L.P. v.
Rothstein-Kass, P.A., 421 F.3d 1162, 1166 (11th Cir.
2005)). The Court first determines whether defendant's
activities satisfy the Florida long-arm statute, and if so,
whether the extension of jurisdiction comports with the due
process requirements of the Fourteenth Amendment of the
United States Constitution. See Meier v. Sun Int'l
Hotels, Ltd., 288 F.3d 1264, 1269 (11th Cir. 2002).
“A federal district court in Florida may exercise
personal jurisdiction over a nonresident defendant to the
same extent that a Florida court may, so long as the exercise
is consistent with federal due process requirements. If both
Florida law and the United States Constitution permit, the
federal district may exercise jurisdiction over the
nonresident defendant.” Licciardello v.
Lovelady, 544 F.3d 1280, 1283 (11th Cir. 2008) (internal
citation omitted). The plaintiff “bears the initial
burden of alleging in the complaint sufficient facts to make
out a prima facie case of jurisdiction.” United
Techs. Corp. v. Mazer, 556 F.3d 1260, 1274 (11th Cir.
2009). Defendant asserts that neither component of this
standard is satisfied in this case.
Long Arm Statute
response, plaintiff relies upon subsection (1)(a)(2) of the
Florida “long arm” statute related to specific
jurisdiction, which permits the exercise of jurisdiction over
actions arising out of tortious acts committed ...