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Frey v. Minter

United States District Court, M.D. Georgia, Columbus Division

December 4, 2018

ROBERT J. FREY, Plaintiff,
v.
ANTHONY BINFORD MINTER and HAROLD BLACH, JR., Defendants.

          ORDER

          CLAY D. LAND CHIEF U.S. DISTRICT COURT JUDGE.

         Robert 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.

         For the 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.

         DISCUSSION

         I. Frey's Motion to Remand (ECF No. 16)

         If an 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.

         Here, 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 denied.

         II. Frey's Motion to Transfer (ECF No. 41)

         Frey 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.[1] The Court finds no reason to transfer the action back to Florida. Frey's motion to transfer (ECF No. 41) is denied.

         III. Defendants' Motion to Dismiss (ECF No. 8)

         A. Choice of Law

         Before 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.

         “Federal 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.

         Florida 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.[2]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. ยง 150(1). For a natural ...


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