United States District Court, M.D. Florida, Orlando Division
B. SMITH UNITED STATES MAGISTRATE JUDGE
matter comes before the Court on Plaintiff's Motion to
Stay the Court's April 22, 2019 Judgment Pending Appeal
(Doc. 133). The Court has also considered Defendants'
Memorandum in Opposition to Plaintiff's motion (Doc.
se Plaintiff Niklesh Parekh complained that Defendants
CBS Corporation and Brian Conybeare published a defamatory
news report that portrayed him “as a scam or as a man
who lied for money.” (Doc. 1, ¶ 5). The Court
granted Defendants' motion to dismiss Plaintiff's
complaint after finding that one of Defendants'
statements did “not concern Parekh or imply any
defamatory facts about Parekh, ” and the other
statement “is not reasonably capable of a defamatory
meaning.” (Doc. 104 at 7-8). The Court also rejected
Plaintiff's claim of intentional infliction of emotional
distress because it violated Florida's single action rule
(Id., at 9-10). The Court subsequently awarded
Defendants their reasonable attorney's fees and costs
pursuant to Florida's anti-SLAPP statute, Fla. Stat.
§ 768.295(3), and judgment in the amount of $139, 974.24
was entered against Plaintiff and in favor of Defendants
(Id.; Doc. 129). Plaintiff filed a notice of appeal
and the case material was transmitted to the United States
Court of Appeals for the Eleventh Circuit (Doc. 130; Doc.
131). Now, Plaintiff seeks a stay of the judgment during the
pendency of his appeal to the Eleventh Circuit (Doc. 133).
Rule of Civil Procedure 62 advises that a district judge may
stay the enforcement of a judgment pending an appeal if the
movant can show that (1) he is likely to prevail on the
merits of his appeal; (2) he will suffer irreparable harm if
the stay is not imposed; (3) the opposing party will not
suffer substantial harm if the stay is imposed; and (4) the
stay is not adverse to public interest. Hilton v.
Braunskill, 481 U.S. 770, 776 (1987); see also
Breedlove v. Hartford Life & Acc. Ins. Co., No.
6:11-CV-991-ORL-28, 2013 WL 361825, at *1 (M.D. Fla. Jan. 30,
2013) (citing Allied Veterans of the World, Inc. v.
Seminole County, Fla., No. 6:11-cv-155-Orl-28DAB, 2011
WL 3958437 *1 (M.D. Fla. Sept.8, 2011); Hernandez v.
Dugger, 839 F.Supp. 849, 851 (M.D. Fla.1993)).
Likelihood of Success on the Merits
argues that he is likely to prevail on the merits of his
appeal because the district court erred in awarding fees
under Florida's anti-SLAPP statute (Doc. 133 at 3). On
January 9, 2019, the Court granted Defendants' motion to
dismiss and found the facts of the case satisfied both
requirements of Florida's anti-SLAPP law:
Defendants asserts that Plaintiff's complaint falls
within Florida's anti-SLAPP statute and that they should
be awarded attorneys' fees and costs incurred in
defending it. (Doc. 19, pp. 13-15). The anti-SLAPP statute
prohibits anyone from bringing a lawsuit that is
“without merit and primarily because such person or
entity has exercised the constitutional right of free speech
in connection with a public issue.” Fla. Stat. §
768.295(3) (emphasis added). This case meets both
requirements of Florida's anti-SLAPP law. First, as
detailed above, Plaintiff's lawsuit is “without
merit.” Id. Second, this lawsuit arises out of
Defendants' exercise of their “constitutional right
of free speech in connection with a public issue”
because the News Report constitutes a “written or oral
statement that is protected under applicable law, ” and
was “made in or in connection with” an
“audiovisual work . . . news report, or other similar
work. Id. § 768.295(2)(a). Under the anti-SLAPP
law, an award of reasonable attorneys' fees and costs is
mandatory in these circumstances. See Id. §
768.295(4) (“The Court shall award the prevailing party
reasonable attorney fees and costs incurred in connection
with a claim that an action was filed in violation of this
section.”); see also Boling v. WFTV, LLC, 2018
Fla. Cir. LEXIS 1860 (Fla. Orange County Ct. Feb. 28, 2018).
(Doc. 104 at 10). Plaintiff asserts that on appeal he will
show that the anti-SLAPP statute is not applicable to cases
in federal court (where Federal Rules of Civil Procedure 12
and 56 should be applied) and “Defendants failed to
show that the suit was based on some activity that would
qualify as an exercise of the [Defendants] First Amendment
right.” (Doc. 133 at 8-9).
to Plaintiff's assertions, the law is clear that
Florida's anti-SLAPP statute is a “supplement,
” not a substitute for the federal rules. Davis v.
McKenzie, 2017 U.S. Dist. LEXIS 183519, at*7-8 (S.D.
Fla. Nov. 3, 2017). Moreover, the Court's dismissal of
Plaintiff's claim was only partly based on Florida's
anti-SLAPP statute (Doc. 104 at 10). The Court also
determined that dismissal was warranted because (1) Plaintiff
failed to sustain a cause of action for defamation under
Florida law, and (2) Plaintiff's intentional infliction
of emotional distress claim violated Florida's single
action rule and was therefore insufficient (Id. at
has failed to demonstrate that his challenge to the
applicability of Florida's anti-SLAPP statute is likely
to result in the appeals court overturning the dismissal
order. So, Plaintiff has failed to show the likelihood of his
successful challenge to the merits of the district
Court also rejects Plaintiff's contention that he is
likely to succeed on his argument that he was denied a
rightful opportunity to amend his complaint. The district
judge addressed the possibility of amendment in the dismissal
order and determined that “due to the deficiencies
exhibited in Plaintiff's Complaint, amendment would be
futile because the underlying facts are incapable of stating
a defamation claim.” (Id. at 11) (citing
Corsello v. Lincare, Inc., 428 F.3d 1008, 1014 (11th
Cir. 2005)). The district court enjoys “extensive
discretion” in deciding whether to grant a plaintiff
leave to amend when the amendment would be futile.
Quillet v. Jain, 2013 WL 12385345, at *2 (M.D. Fla.
Sept. 17, 2013) (citing Campbell v. Emory Clinic,
166 F.3d 1157, 1162 (11th Cir. 1999)). On this record,
Plaintiff has not shown that he is likely to succeed in his
challenge to the Court's exercise of discretion.
this factor weighs against Plaintiff.
Likelihood of Irreparable Injury
argues that he will sustain irreparable harm if the Court
refuses to stay the judgment pending his appeal (Doc. 133 at
12-13). Plaintiff explains that enforcement of the judgment
would render him bankrupt (Id. at 13). He maintains
that to enforce the $139, 974.24 judgment, Defendants would
be required to seize his assets; examine him in court to
locate unknown assets; suspend his driver's license;
suspend his professional license; and place a lien on his
“land, buildings, or residence” (Id.).
Plaintiff's assertions are insufficient. Plaintiff has
not explained why his driver's license would be suspended
or why the imposition of the judgment would affect any
professional licenses he may possess (the Court is unaware of
any). Plaintiff has also not demonstrated that he owns any
land, buildings or residence or why, if he has a residence,
it is not protected by the Florida homestead exemption.