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Royalty Network, Inc. v. Harris

United States Court of Appeals, Eleventh Circuit

July 10, 2014

THE ROYALTY NETWORK, INC., FRANK LIWALL, STEVEN WEBER, Plaintiffs-Appellees,
v.
CARL HARRIS, d.b.a. Phat Groov Music, PHAT GROOV MUSIC, PHAT GROOV MUSIC LLC, WWW.ROYALTYNETWORK.COM LLC, .COM,WWW.ROYALTYNETWORK, LLC, WWW.ROYALTYNETWORK.COM, Defendants-Appellants

Page 1352

Appeal from the United States District Court for the Northern District of Georgia. D.C. Docket No. 1:12-cv-03133-RLV.

For The Royalty Network, Inc., Frank Liwall, Steven Weber, Plaintiffs - Appellees: Alan S. Clarke, Alan S. Clarke & Associates, LLC, Atlanta, GA; Anthony Motta, Anthony Motta, Esq., New York, NY.

For Carl Harris, d.b.a.: Phat Groov Music, Phat Groov Music, Phat Groov Music Llc, Www.Royaltynetwork.Com Llc, Com,Www.Royaltynetwork, Llc, Www.Royaltynetwork.Com, Defendants - Appellants: Sidney Leighton Moore III, Summerville Moore, PC, Atlanta, GA.

Before WILSON, JORDAN and BLACK, Circuit Judges. JORDAN, Circuit Judge, concurring.

OPINION

Page 1353

BLACK, Circuit Judge

Appellants Carl Harris and his company, Phat Groov Music, appeal the district court's order denying their motion to dismiss a complaint filed by Appellees The Royalty Network, Frank Liwall, and Steven Weber. Harris sought to dismiss the complaint because the Appellees failed to comply with Georgia's anti-SLAPP (Strategic Lawsuits Against Public Participation) statute by not filing verifications with their complaint, as required by O.C.G.A. § 9-11-11.1(b). The district court denied the motion, and Harris pursued this interlocutory appeal. We conclude we have appellate jurisdiction under the collateral order doctrine and we affirm the district court's order because § 9-11-11.1 does not apply in federal court in a diversity action.

I. BACKGROUND

The Royalty Network, Inc. is a New York corporation involved in music publishing and administration. Liwall is the president of The Royalty Network and Weber is the company's west coast director. Harris, a Georgia resident, provided consulting services to The Royalty Network and would recruit songwriters, music artists, and producers on behalf of the corporation. The record indicates Harris worked for The Royalty Network since at least 2005, but the parties' relationship ended in January 2011 when Liwall terminated Harris's consulting agreement. Harris disputed the termination, and, following several communications between the parties, The Royalty Network filed a lawsuit in New York state court on May 12, 2011, alleging various causes of action and seeking a declaratory judgment that the consulting agreement had been terminated.

On May 27, 2011, Harris filed a complaint in the Fulton County Superior Court in Georgia, alleging causes of action against The Royalty Network and Liwall related to the company's alleged failure to

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pay him under the consulting agreement. On August 26, 2011, the Fulton County Superior Court stayed Harris's action pending resolution of the New York lawsuit.

In September 2011, Harris, acting through Phat Groov Music LLC, created and activated the website " www.theroyaltynetwork.com" (the website). The website contains numerous statements denouncing the Appellees and their litigation tactics and providing copies of documents as well as commentary about documents filed in the lawsuits between the parties.

On December 22, 2011, the New York trial court dismissed The Royalty Network's lawsuit for lack of personal jurisdiction over Harris. Subsequently, on February 21, 2012, Appellees filed a complaint against Harris in the U.S. District Court for the District of Arizona alleging causes of action stemming from Harris's statements on the website.

On May 31, 2012, a state appellate court affirmed the trial court's dismissal of Appellees' New York lawsuit. In August 2012, the Arizona federal district court dismissed Appellees' lawsuit for lack of personal jurisdiction.

On September 6, 2012, Appellees filed the instant complaint against Harris and his company in the U.S. District Court for the Northern District of Georgia. In the complaint, Appellees alleged that Harris and Phat Groov Music published false and defamatory statements on the website and that they intended to prevent others from doing business with the company. Appellees asserted causes of action for libel per se, " injurious falsehood," and intentional infliction of emotional distress. Appellees requested damages of not less than $1 million, punitive damages of $3 million, and an injunction requiring Harris to take down the website.

Harris filed a pro se motion to dismiss the complaint because it did not contain the verifications required by O.C.G.A. § 9-11-11.1(b). Section 9-11-11.1(b) requires that for any claim relating to an act that could be construed as having been done in furtherance of the right of free speech or the right to petition the government, both a plaintiff and plaintiff's counsel must file a written verification certifying that the claim is well grounded in fact, is warranted under existing law, and that the claim is not made for an improper purpose. O.C.G.A. § 9-11-11.1(b).

The district court denied Harris's motion to dismiss, finding in pertinent part that the statute did not apply to the case. Harris filed a counseled motion for reconsideration, arguing the district court was wrong on the merits or, alternatively, urging the district court to either certify its order for interlocutory review by this Court or to certify a question to the Georgia Supreme Court. The next day, Harris filed a notice of appeal from the district court's order denying his motion to dismiss.

The district court denied Harris's motion for reconsideration and also declined to certify the appeal for interlocutory review by this Court or to certify a question to the Georgia Supreme Court. The district court stayed further proceedings pending this Court's resolution of Harris's appeal.

II. STANDARD OF REVIEW

We review de novo questions concerning our jurisdiction. Weatherly v. Ala. State Univ., 728 F.3d 1263, 1269 (11th Cir. 2013). We also review de novo federal-versus-state choice of law questions, Adventure Outdoors, Inc. v. Bloomberg, 552 F.3d 1290, 1294 (11th Cir. 2008), as well as the district court's interpretation and application of a statute, Williams v. Sec'y, U.S. Dep't of Homeland Sec., 741 F.3d 1228, 1231 (11th Cir. 2014).

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III. DISCUSSION


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