Case Information
UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION
GEORGE ZIMMERMAN,
Plaintiff, v. Case No: 8:20-cv-1077-CEH-CPT PETE BUTTIGIEG and ELIZABETH
WARREN,
Defendants.
___________________________________/
O R D E R
This matter comes before the Court upon Defendants' Motion to Dismiss Amended Complaint and Incorporated Memorandum of Law [Doc. 40], Plaintiff’s Opposition [Doc. 42], Defendants’ Reply [Doc. 45], and Plaintiff’s Reply in Opposition [Doc. 49]. Defendant argues that the Amended Complaint is a shotgun pleading, that personal jurisdiction over Defendants is lacking, and that Plaintiff fails to state a claim upon which relief can be granted. The Court, having considered the motion and being fully advised in the premises, will GRANT-IN-PART Defendants' Motion to Dismiss Amended Complaint and Incorporated Memorandum of Law.
I. BACKGROUND [1] The actions giving rise to this lawsuit occurred on February 5, 2020. [Doc. 39 ¶ 6]. That day, Defendant Pete Buttigieg, an American politician and a 2020 candidate for the Democratic Party nomination for President of the United States of America, made the following tweet:
Id. ¶¶ 6, 7. That same day, Elizabeth Warren, a nationally known public figure and 2020 candidate for the Democratic party nomination for President of the United States, also tweeted about Trayvon Martin. ¶ 13. She tweeted the following statement: Id. ¶ 14.
Buttigieg allegedly had 1,600,000 followers on the social media platform, Twitter, and tweeted multiple times per day in order to build political support. ¶ 9. In only three days, his tweet about Trayvon Martin received 42,000 likes, 13,300 replies, and 6,600 retweets. 12. Warren had 3,600,000 followers. ¶ 14. Her tweet received 7,300 likes and 1,000 retweets in only three days. Id. ¶ 15. Both tweets received national media coverage, including in the state of Florida, and were read by several residents of Florida. Id. ¶¶ 12, 15, 7, 16.
On February 18, 2020, Plaintiff George Zimmerman filed this action against Defendants. [Doc. 1-1]. [2] The Amended Complaint asserts the following claims against both Defendants: general defamation ( Count I ), defamation by implication ( Count II ), and defamation per se ( Count III ). [Doc. 39]. Zimmerman alleges that the tweets are referring to him because it is universally known that he shot Trayvon Martin. Id. ¶ 23. He alleges that on February 26, 2012, he discharged a single shot to stop then seventeen-year-old Trayvon Martin from assaulting him, following an incident between the two at the Retreat at Twin Lakes townhome community in Sanford, Florida, where he lived and was a member of the neighborhood watch. Id. ¶ 2. He was charged with second-degree murder and acquitted by a jury on July 13, 2013. ¶ 3. He alleges that his name is 100% synonymous with Trayvon Martin and the incident that resulted in Martin’s death, due to the massive publicity after the shooting, the nationwide protests demanding his arrest without cause, his 2013 trial and acquittal of all charges, and the acts of protest and violence that continue to this day in the name of Trayvon Martin. ¶ 5.
According to the Amended Complaint, Buttigieg’s tweet implied that Trayvon Martin’s death was a result of “ white supremacy, gun violence, prejudice, and fear,” all of which the public would understand as referring only to Zimmerman, who is known to have caused Trayvon Martin’s death by shooting him, even though Buttigieg knew that the 2013 trial jury acquitted Zimmerman of all charges. Id. ¶ 10. This disparaged Zimmerman and further subjected him to hate. Id. Likewise, Warren’s tweet was defamatory because it characterized Martin’s death as the result of gun violence, even though Warren was very knowledgeable of the facts surrounding the 2012 incident in which Trayvon Martin died and was aware that Zimmerman’s act was one of self- defense and he was acquitted of all charges. Id. ¶¶ 16, 17. As alleged by Zimmerman, both Buttigieg and Warren acted with actual malice in sending their respective tweet. Id. ¶ 18. They allegedly had a preconceived plan to discredit and destroy Zimmerman as part of their political agenda to garner votes in the black community before the 2020 election, having lacked the support of African American voters. Id. ¶¶ 19, 20.
Defendants have moved to dismiss the Amended Complaint. [Doc. 40]. They argue that it must be dismissed as a shotgun pleading and because the Court lacks jurisdiction over them. at p. 7. They also specifically ask the Court to require resolution of any factual dispute as to whether Florida’s long-arm statute is satisfied before denying the motion to dismiss for lack of personal jurisdiction, because the Court lacks jurisdiction over Defendants if the tweets are not about Zimmerman. at p. 8. Additionally, they ask the Court to revisit the findings in its February 23, 2021 Order that Zimmerman had, in the original Complaint, plausibly alleged facts to support a finding of actual malice and a claim for defamation per se , given the dramatically different allegations in the Amended Complaint.
II. LEGAL STANDARD
The Federal Rules of Civil Procedure require a complaint to include, among
other things, “a short and plain statement of the claim showing that the pleader is
entitled to relief.” Fed. R. Civ. P. 8(a)(2). Similarly, “[a] party must state its claims or
defenses in numbered paragraphs, each limited as far as practicable to a single set of
circumstances.” Fed. R. Civ. P. 10(b). Complaints that violate either of these rules are
often referred to as “shotgun pleadings.”
Weiland v. Palm Beach Cnty. Sheriff’s Office
, 792
F.3d 1313, 1320 (11th Cir. 2015). When faced with a shotgun pleading, a court should
strike the complaint and instruct the plaintiff to file a more definite statement.
See Davis
v. Coca-Cola Bottling Co. Consol.
,
A court may also dismiss an action if it lacks personal jurisdiction over the
defendant(s) or if the plaintiff fails to state a claim upon which relief can be granted.
Fed. R. Civ. P. 12(b)(2), (6). Personal jurisdiction “concern[s] the extent of a
court's power over the parties and the fairness of requiring a party to defend itself in a
foreign forum.”
Delong Equip. Co. v. Washington Mills Abrasive Co.
,
On a motion to dismiss for failure to state a claim, the allegations in the
complaint must be accepted as true and construed in the light most favorable to the
plaintiff.
Michel v. NYP Holdings, Inc.
, 816 F.3d 686, 694 (11th Cir. 2016). It is well
established that “[a] complaint must not be dismissed unless it is shown that plaintiff
can prove no set of facts in support of this claim, which would entitle him to relief.”
Jackam v. Hosp. Corp. of Am. Mideast
, 800 F.2d 1577, 1579 (11th Cir. 1986). Labels,
conclusions, and formulaic recitations of the elements of a cause of action are not
sufficient to survive a motion to dismiss under Rule 12(b)(6).
Ashcroft v. Iqbal
, 556 U.S.
662, 678 (2009) (citing
Bell Atlantic Corp. v. Twombly
, 550 U.S. 544, 555 (2007)).
Furthermore, mere naked assertions are not sufficient.
Id
. A complaint must contain
sufficient factual matter, which, if accepted as true, would “state a claim to relief that
is plausible on its face.”
Id
. (quoting
Twombly
,
In ruling on a motion to dismiss, “[a] court is generally limited to reviewing
what is within the four corners of the complaint.”
Austin v. Modern Woodman of Am.
,
III. DISCUSSION
a. Shotgun Pleading
The Eleventh Circuit has identified four general types of shotgun pleadings.
Weiland
,
Defendants argue that the initial complaint failed to separate into a different count each cause of action against each defendant and that the Amended Complaint fails in the same exact way. The Court disagrees in part with this argument. Unlike in the prior complaint, Zimmerman now alleges that Defendants “acted together and . . . in concert.” [Doc. 38 ¶¶ 25, 35, 48]. The fact that defendants are accused collectively does not render the Amended Complaint deficient if it can be fairly read to aver that all defendants are responsible for the alleged conduct. Kyle K. v. Chapman , 208 F.3d 940, 944 (11th Cir. 2000). Thus, asserting each claim against both Buttigieg and Warren is not improper. [3]
However, the Court agrees that other shotgun defects subject the Amended Complaint to dismissal. The tweets at issue are not the same. Yet, each count incorporates allegations with respect to both tweets. As a result, the Amended Complaint does not separate each claim for relief into a different count. Weiland , 792 F.3d at 1321. Moreover, “each count adopts the allegations of all preceding counts, causing each successive count to carry all that came before and the last count to be a combination of the entire complaint.” at 1321. See Doc. 39 ¶¶ 24, 34, 47 (“Plaintiff Zimmerman repeats and re-alleges all of the previous allegations of the entirety of this Complaint with the same force and effect, as if fully set forth herein again at length.”). The forms of defamation alleged by Plaintiff require proof of different elements, such that it is not proper to reallege the entirety of the preceding counts in each subsequent count. For example, even though defamation by implication and defamation per se do not require proof that the statement was made with knowledge or reckless disregard as to falsity, Plaintiff incorporates this element in those claims by realleging the allegations for general defamation. ¶¶ 27, 29, 34, 37, 47, 50. Pleading claims in such form muddles the claims and is therefore unacceptable. As such, the Court will again dismiss the Amended Complaint as a shotgun pleading.
b. Personal Jurisdiction
In
assessing personal
jurisdiction,
the Court
first
considers
whether personal jurisdiction exists over a nonresident defendant under Florida's
long-arm statute, and, if so, whether that exercise of jurisdiction would violate the Due
Process Clause of the Fourteenth Amendment to the U.S. Constitution.
Louis Vuitton
Malletier, S.A. v. Mosseri
,
i. Long-arm Jurisdiction As to the reach of Florida’s long-arm statute, it is well established that federal courts are required to construe it as would the Florida Supreme Court as it involves a question of Florida law. The Eleventh Circuit has explained that:
A defendant can be subject to personal jurisdiction under Florida's long-arm statute in two ways: first, section 48.193(1)(a) lists acts that subject a defendant to specific personal jurisdiction—that is, jurisdiction over suits that arise out of or relate to a defendant's contacts with Florida, Fla. Stat. § 48.193(1)(a); and second, section 48.193(2) provides that Florida courts may exercise general personal jurisdiction—that is, jurisdiction over any claims against a defendant, whether or not they involve the defendant's activities in Florida—if the defendant engages in “substantial and not isolated activity” in Florida, id. § 48.193(2).
Carmouche v. Tamborlee Mgmt., Inc.
, 789 F.3d 1201, 1203–04 (11th Cir. 2015).
“[S]pecific personal jurisdiction authorizes jurisdiction over causes of action arising
from or related to the defendant's actions within Florida and concerns a nonresident
defendant's contacts with Florida only as those contacts related to the plaintiff's cause
of action.”
Louis Vuitton
,
“[A] nonresident defendant is subject to personal jurisdiction in Florida ‘
for any
cause of action arising from
...
[c]omitting a tortious act within [Florida]
.’ ”
Louis Vuitton
, 736
F.3d at 1353 (quoting Fla. Stat. § 48.193(1)(a)(2)). “[T]he tort of defamation is
committed in the place where the defamatory material is published.”
Internet Sols. Corp.
v. Marshall
,
By posting allegedly defamatory material on the Web about a Florida resident, the poster has directed the communication about a Florida resident to readers worldwide, including potential readers within Florida.
When the posting is then accessed by a third party in Florida, the material has been “published” in Florida and the poster has communicated the material “into” Florida, thereby committing the tortious act of defamation within Florida.
However, Defendants contend that a factual question exists as to whether the tweets were about Zimmerman and that this should be resolved before the Court denies the argument that personal jurisdiction is lacking. [Doc. 40 at p. 21]. They also request limited discovery on the factual question of whether “George Zimmerman’s name is 100% synonymous with Trayvon Martin and the incident that resulted in [his] death,” and, therefore, whether the alleged defamatory implications of the tweets are about a Florida resident. at p. 25. Zimmerman responds that Defendants have given no reason for limited discovery and that allowing this would not expedite or narrow the proceeding.
As the Court explained in its prior order, a defendant contesting the complaint’s
allegations concerning jurisdiction must present affidavits in support of his position,
Lawson Cattle & Equip., Inc. v. Pasture Renovators LLC
,
Furthermore, the Court acknowledges that the merits and jurisdiction will
sometimes be intertwined,
Comparelli v. Republica Bolivariana De Venezuela
, 891 F.3d
1311, 1328 (11th Cir. 2018), and that parties have a qualified right to discovery when
that is the case,
Am. Civ. Liberties Union of Fla., Inc. v. City of Sarasota
,
ii. Due Process
The second prong requires the Court to consider whether the exercise of
jurisdiction would offend “the Due Process Clause of the Fourteenth Amendment to
the United States Constitution, which requires that the defendant have minimum
contacts with the forum state and that the exercise of jurisdiction over the defendant
does not offend ‘traditional notions of fair play and substantial justice.’ ”
Horizon
Aggressive Growth, L.P. v. Rothstein-Kass, P.A.
, 421 F.3d 1162, 1166 (11th Cir. 2005)
(quoting
Int'l Shoe Co. v. Washington,
326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95
(1945));
Mut. Serv. Ins. Co. v. Frit Indus., Inc.
, 358 F.3d 1312, 1319 (11th Cir. 2004)
(same). “The Due Process Clause of the United States Constitution protects an
individual's liberty interest in not being subject to the binding judgments of a forum
with which he has established no meaningful contacts, ties, or relations.”
Thomas v.
Brown
,
Where a forum seeks to assert specific personal jurisdiction over a nonresident
defendant, due process requires the defendant have “fair warning” that a particular
activity may subject him to the jurisdiction of a foreign sovereign.
Madara
, 916 F.2d at
1516. This requirement is satisfied if the defendant has “purposefully directed” his
activities at the forum and the litigation results from alleged injuries that “arise out of
or relate to” those activities. (citing cases). Once this has been established, the court
considers various factors in determining whether the exercise of jurisdiction would
comport with “fair play and substantial justice.” at 1517 (quoting
Burger King Corp.
v. Rudzewicz,
the burden on the defendant in defending the lawsuit, the forum state's interest in adjudicating the dispute, the plaintiff's interest in obtaining convenient and effective relief, the interstate judicial system's interest in obtaining the most efficient resolution of controversies and the shared interest of the states in furthering fundamental substantive social policies.
Id.
(citing
Burger King,
Defendants argue that “[b]ecause the Amended Complaint does not so much as allege that the tweets were directed at Florida, asserting personal jurisdiction over [them] . . . would offend the constitutional strictures of due process.” [Doc. 40 at pp. 12-13]. In fact, they point out that the Amended Complaint “alleges the opposite— that the tweets were not directed at Florida but instead were directed at Defendants’ respective millions of followers . . . .” Id. at p. 11. Defendants also argue that the Due Process Clause would still require dismissal even had Zimmerman attempted to allege that the tweets were directed at Florida, but they do not explain why. at p. 13. Zimmerman contends that due process’s fair warning requirement is satisfied because Defendants purposefully directed their activities at the forum and the litigation results from the alleged injuries that arise out of or relate to those activities. [Doc. 42 at p. 9]. In reply, Defendants argue that Zimmerman’s passing reference to the Due Process Clause is not a substantive response and that Zimmerman effectively concedes that he has not pleaded sufficient facts to establish that the exercise of jurisdiction would satisfy Due Process. [Doc. 45 at pp. 2-3].
Defendants tweeted about Trayvon Martin to commemorate his birthday. [Doc. 39 ¶¶ 6, 14]. In his tweet, Buttigieg posed the question: “How many 25th Birthdays have been stolen from us by white supremacy, gun violence, prejudice, and fear?” ¶ 6. In her tweet, Warren remarked that “He should still be with us today” and that “We need to end gun violence and racism.” Id. ¶ 14. According to the Amended Complaint, Martin was shot and Killed by Zimmerman, following an incident at the community where Zimmerman lived in Florida. Id. ¶ 2. Zimmerman was charged with second-degree murder and acquitted by a jury. ¶ 3. The Amended Complaint also alleges that “Zimmerman’s name is 100% synonymous with Trayvon Martin and the incident that resulted in Martin’s death,” that the tweets are referring to Zimmerman, and that Defendants “had a preconceived plan to discredit and destroy him as part of their political agenda to garner votes in the black community before the 2020 election,” created a false impression of him, and did so knowing the falsity of their statements or without regard to their truth. ¶¶ 5, 16, 19, 20, 42, 52. Taking these allegations as true, and in the absence of evidence to the contrary, Defendants have “purposefully directed” their activities at the state of Florida—and towards Zimmerman—and this action results from the alleged injuries that “arise out of or relate to” those activities. Morris , 843 F.2d at 492 (“The district court must construe the allegations in the complaint as true, to the extent they are uncontroverted by defendant's affidavits or deposition testimony.”).
Given the allegations in the Amended Complaint, due process would not be offended by the exercise of jurisdiction over Defendants. If, as Zimmerman contends, his name is 100% synonymous with Trayvon Martin and the incident that resulted in Martin’s death, the tweets are referring to him, and Defendants had a preconceived plan to discredit and destroy him as part of their political agenda, then Defendants were on fair warning that they could be subject to jurisdiction in this state for any alleged injury arising from their tweets and should have foreseen being haled into court in Florida.
Moreover, the substantial justice and fair play factors weigh in favor of the
exercise of jurisdiction. Defendants are national political figures so the Court does not
expect that the burden in defending the lawsuit will be overwhelming; in fact, they
have not alleged any.
Madara
,
c. Sufficiency of Claims
i. General Defamation and Defamation by Implication Defendants argue that the claims for general defamation and defamation by implication should be dismissed as Zimmerman has failed to sufficiently plead actual malice. [Doc. 40 at p. 14]. Specifically, Defendants contend that Zimmerman has not plausibly alleged a factual basis that would allow the jury to determine they knew their statements were false or acted recklessly. at pp. 15-16. They further argue that even assuming the tweets imply what Zimmerman alleges, the fact that Zimmerman was acquitted of second-degree murder and manslaughter charges by a jury is immaterial to whether they acted with actual malice because the only awareness they could have definitively gained from knowledge of Zimmerman’s acquittal is that a jury of six individuals, could not conclude, beyond a reasonable doubt , that Zimmerman unjustifiably and intentionally caused the death of Trayvon Martin. Id. at pp. 16-18.
Zimmerman responds that the Amended Complaint alleges facts sufficient to give rise to a reasonable inference Defendants made their statements with knowledge of their falsity or with reckless disregard of whether the statements were false, because Defendants must have known that he did not engage in “gun violence” since he was acquitted of all charges, and he would have been convicted if he had acted out of white supremacy or racism. [Doc. 42 at p. 15]. In reply, Defendants state that there is no charge of “gun violence” under Florida law and Zimmerman could not have been acquitted of racism, white supremacy prejudice, or fear. [Doc. 45 at p. 5]. Again, they argue that the acquittal of manslaughter and second-degree murder means nothing more than that six people could not conclude beyond a reasonable doubt that Zimmerman intentionally and unjustifiably caused the death of Trayvon Martin, and that “knowledge of acquittal alone cannot raise serious reason to doubt that Zimmerman is a racist, white supremacist who engaged in gun violence,” even assuming that is what was said. at pp. 4-5. They further argue that Zimmerman does not allege that they knew any facts to doubt the veracity of their statements.
Malice is an element of both the general defamation and defamation by
implication claims.
See Jews For Jesus, Inc. v. Rapp
,
Again, the Court must accept the allegations in the Amended Complaint as true,
Michel
,
Further, Defendants argue that an allegation of racism or white supremacy is a
matter of opinion and therefore not even actionable. [Doc. 40 at p. 20]. “[S]tatements
of pure opinion are protected from defamation actions by the First Amendment.”
Turner
,
ii. Defamation Per Se
Defendants also argue the claim for defamation
per se
should be dismissed.
Statements are defamatory per se, if “when, ‘considered alone without innuendo,’ they
contain (i) charges that a person has committed an infamous crime, or (ii) has
contracted an infectious disease, or (iii) they carry statements tending to subject a
person to hatred, distrust, ridicule, contempt or disgrace, or (iv) to injure a person in
his trade or profession.”
Adams v. News-Journal Corp.
,
As to the argument that Count III, defamation
per se
, must be dismissed because
defamation by implication and defamation
per se
are mutually exclusive causes of
action, the Court notes that Federal Rule of Civil Procedure 8(d) allows a plaintiff
to plead in the alternative.” Fed. R. Civ. P. 8(d)(2). That rule states that “[i]f a party
makes alternative statements, the pleading is sufficient if any one of them is sufficient.”
Additionally, “[a] party may state as many separate claims or defenses as it has,
regardless of consistency.” Fed. R. Civ. P. 8(d)(3). “[S]eparate counts of the complaint
must be read separately.”
Wagner v. First Horizon Pharm. Corp.
,
Defendants are correct that the Amended Complaint expressly alleges that the
statements are defamatory
per se
because they falsely accuse Plaintiff of having
committed a felony crime. [Doc. 40 at p. 21; Doc. 39 ¶¶ 49-50]. Having reviewed the
actual tweets, the Court agrees with Defendants that to get to the conclusion that
Zimmerman pleads in the Amended Complaint, one must make certain inferences.
Again, only the words used may be considered in deciding whether statements are
defamatory
per se
.
Wolfson
,
However, the Amended Complaint also alleges that “Zimmerman has been severely harmed and damaged by the[] false and misleading defamatory statements because they subject him to hatred, distrust, ridicule, contempt, and disgrace.” [Doc. 39 ¶ 61]. This presents another method of establishing defamation per se . The Amended Complaint also alleges that Zimmerman was responsible for gun violence, prejudice, fear, and racism. ¶¶ 49-50. In fact, these are words taken from Buttigieg’s and Warren’s tweets. ¶¶ 6, 14. Though inartful, the Court agrees with Zimmerman that the Amended Complaint pleads an additional basis for liability based on defamation per se .
Lastly, Defendants’ argument that “the implication that someone has racist or a white supremacist attributes is not defamatory at all, let alone defamatory per se ” is without merit. [Doc. 40 at p. 21]. As explained above, the Court cannot determine at this stage of the proceedings whether the statements are pure opinion, and thus not defamatory, because it is not clear whether all the facts on which the statements are based are known to the public. Moreover, “statements tending to subject a person to hatred, distrust, ridicule, contempt or disgrace, or (iv) to injure a person in his trade or profession” are defamatory per se , Adams v. News-Journal Corp. , 84 So. 2d at 551. Zimmerman alleges the tweets have just that effect.
IV. CONCLUSION
Because the Amended Complaint is a shotgun pleading, it is subject to dismissal. However, it alleges sufficient facts to establish jurisdiction over Defendants. As requested, Zimmerman will be given one final opportunity to plead claims, which comply with the Federal Rules of Civil Procedure and which state plausible claims for defamation against Defendants.
Accordingly, it is hereby ORDERED :
1. Defendants' Motion to Dismiss Amended Complaint and Incorporated Memorandum of Law [Doc. 40] is GRANTED-IN-PART . The Amended Complaint is dismissed, without prejudice, as a shotgun pleading. Plaintiff may file a Second Amended Complaint on or before January 5, 2022, which cures the deficiencies discussed in this Order. Failure to file the amended complaint within the time provided will result in dismissal of this action without further notice.
DONE AND ORDERED in Tampa, Florida on December 22, 2021. Copies to:
Counsel of Record and Unrepresented Parties, if any
Notes
[1] The following statement of facts is derived from Plaintiff’s Amended Complaint [Doc. 39],
the allegations of which the Court must accept as true in ruling on the instant Motion to
Dismiss.
See Linder v. Portocarrero
,
[2] The action was filed in the Circuit Court of the Tenth Judicial Circuit in and for Polk County, Florida, and removed by Defendants. [Doc. 1].
[3] Although Plaintiff alleges that the Defendants acted together and in concert, there is little factual support for this assertion in the Amended Complaint. The Amended complaint identifies two different tweets, which were made from two different twitter accounts by two different individuals.
[4] This lawsuit in that case arose from an online post made by defendant about a website operated by plaintiff, an employment recruiting and internet advertising company. at 1203. The court explained that it was necessary to review the complaint to determine whether it stated a cause of action for libel, including publication of the statement in Florida. at 1214. Exhibits attached to the complaint indicated that several of the comments posted by third parties appeared to be from Florida.
[5] Moreover, the Court notes that only one of the cases cited by Defendants applies Florida law, which controls the outcome of this case. That case, Berisha v. Lawson , 378 F. Supp. 3d 1145, 1161 (S.D. Fla. 2018), does not involve an analysis of a motion to dismiss and, more importantly, does not address protections granted to “pure opinion,” which is the basis for dismissal raised in the relevant argument.