United States District Court, M.D. Georgia, Columbus Division
ROBERT J. FREY, Plaintiff,
ANTHONY BINFORD MINTER and HAROLD BLACH, JR., Defendants.
D. LAND CHIEF U.S. DISTRICT COURT JUDGE.
J. Frey filed this defamation action against Anthony Binford
Minter and Harold Blach, Jr. in Florida state court. He
initially sought $15, 001.00 in compensatory damages, plus
punitive damages in an unspecified amount. Defendants moved
to dismiss the action for lack of personal jurisdiction in
Florida. The state court held a hearing and denied the motion
to dismiss. Frey then amended his Complaint to seek $15,
001.00 in compensatory damages and $10, 000, 000.00 in
punitive damages. Based on the Amended Complaint, Defendants
concluded that diversity jurisdiction existed and removed the
action to the U.S. District Court for the Middle District of
Florida. Defendants filed a motion to dismiss for failure to
state a claim (ECF No. 8) and a motion to transfer the action
to this Court (ECF No. 9). Frey filed a motion to remand (ECF
No. 16), and Defendants filed a motion for reconsideration of
the state court's order denying their motion to dismiss
(ECF No. 23). The Florida U.S. District Judge granted
Defendants' motion to transfer (ECF No. 9) the action to
this Court. See Order (Sept. 19, 2018), ECF No. 39.
The other motions remain pending. After the transfer, Frey
filed a motion to transfer (ECF No. 41), asking that this
action be transferred back to the U.S. District Court for the
Middle District of Florida if it is not remanded to the
Florida state court.
reasons set forth below, Frey's motion to remand (ECF No.
16) and motion to transfer (ECF No. 41) are denied.
Defendants do not challenge personal jurisdiction in this
Court, and their motion for reconsideration of the Florida
state court's order denying their motion to dismiss for
lack of personal jurisdiction (ECF No. 23) is moot. Finally,
Defendants' motion to dismiss for failure to state a
claim (ECF No. 8) is granted in part and denied in part.
Frey's Motion to Remand (ECF No. 16)
action is removed to federal court, the plaintiff may seek
remand to state court based on a “defect” with
the removal. 28 U.S.C. § 1447(c). “One such
defect, commonly referred to as litigating on the merits,
effectively waives the defendant's right to remove a
state court action to the federal court.”
Yusefzadeh v. Nelson, Mullins, Riley & Scarborough,
LLP, 365 F.3d 1244, 1246 (11th Cir. 2004) (per curiam).
Frey argues that this defect exists here because Defendants
litigated their motion to dismiss for lack of personal
jurisdiction in the state court. But the “litigating on
the merits” waiver of the right to remove can only
occur if the right to remove is apparent and the defendant
takes substantial action in the state court case. Litigation
before the right to removal becomes apparent does
not waive the right to remove.
Frey filed this action in state court on July 5, 2017. He
sought $15, 001.00 in compensatory damages and an unspecified
amount in punitive damages. Compl. 18, ECF No. 1-1 at 18.
Defendants propounded jurisdictional requests for admission
asking Frey to admit that he seeks damages in excess of $75,
000; Frey denied those requests. Notice of Removal Ex. D,
Pl.'s Resp. to Defs.' Jurisdictional Reqs. for Admis.
¶¶ 1-4, ECF No. 1-1 at 48-50. Thus, the initial
Complaint and Frey's jurisdictional discovery responses
did not suggest that the amount in controversy exceeded the
jurisdictional threshold of $75, 000.00. So, when Defendants
were litigating their motion to dismiss in the state court,
Defendants did not have any right to remove that could be
waived. This action was not removable until June 14, 2018,
when Frey filed a First Amended Complaint amending his prayer
for damages to seek $15, 001.00 in compensatory damages and
$10, 000, 000.00 in punitive damages. When the action became
removable, Defendants did not waive their right to
remove-they filed their notice of removal on July 2, 2018,
within one year of the commencement of this action and within
thirty days of receiving Frey's amended complaint. For
these reasons, Frey's Motion to Remand (ECF No. 16) is
Frey's Motion to Transfer (ECF No. 41)
asserts that this action should be transferred back to the
U.S. District Court for the Middle District of Florida under
28 U.S.C. § 1404. Two Florida District Judges thoroughly
analyzed the transfer factors and concluded that this case
should be litigated in the Middle District of
Georgia. The Court finds no reason to transfer the
action back to Florida. Frey's motion to transfer (ECF
No. 41) is denied.
Defendants' Motion to Dismiss (ECF No. 8)
Choice of Law
the Court reaches the merits of Defendants' motion to
dismiss, the Court must determine whether Florida or Georgia
law applies. Frey, who lives in Florida, commenced this
action in Florida contesting the publication of an article in
a Georgia legal newspaper regarding a Georgia lawyer's
comments on Frey's actions during Georgia litigation.
Frey argues that Florida law applies in this action and that
his Amended Complaint states a claim under Florida law.
Defendant argues that Georgia law applies and that Frey fails
to state a claim under Georgia law.
courts sitting in diversity apply the forum state's
choice-of-law rules.” Boardman Petroleum, Inc. v.
Federated Mut. Ins. Co., 135 F.3d 750, 752 (11th Cir.
1998). But, “when a case is transferred from one forum
to another, the transferor court's choice-of-law rules
apply to the transferred case even after the transfer
occurs.” Id. Thus, the Court must apply
Florida's choice-of-law rules.
resolves conflict-of-laws questions for tort cases using the
“significant relationships test” set forth in the
Restatement (Second) of Conflict of Laws. Bishop v. Fla.
Specialty Paint Co., 389 So.2d 999, 1001 (Fla. 1980)
(adopting significant relationships test and rejecting the
“traditional lex loci delicti rule”). The goal is
to determine which state “has the most significant
relationship to the occurrence and the parties under the
principles stated in § 6” of the
Restatement.Id. (quoting Restatement (Second)
of Conflict of Laws § 145(1) (Am. Law Inst. 1971)). When
“applying the principles of § 6 to determine the
law applicable to an issue, ” the courts consider
“(a) the place where the injury occurred, (b) the place
where the conduct causing the injury occurred, (c) the
domicil, residence, nationality, place of incorporation and
place of business of the parties, and (d) the place where the
relationship, if any, between the parties is centered.”
Id. (quoting Restatement (Second) of Conflict of
Laws § 145 (Am. Law Inst. 1971)); accord Michel v.
NYP Holdings, Inc., 816 F.3d 686, 694 (11th Cir. 2016)
(applying Florida law). These factors are considered
“according to their relative importance with respect to
the particular issue.” Michel, 816 F.3d at 694
(quoting Bishop, 389 So.2d at 1001). In addition,
the Restatement instructs that “[i]n an action for
defamation, the local law of the state where the publication
occurs determines the rights and liabilities of the parties,
” except in cases of multistate defamation. Restatement
(Second) of Conflict of Laws § 149 (Am. Law Inst. 1971).
In cases of multistate defamation, the Restatement instructs
that the applicable law is “the local law of the state
which, with respect to the particular issue, has the most
significant relationship to the occurrence and the
parties.” Id. § 150(1). For a natural