Case 8:17-cv VMC-MAP Document 33 Filed 10/12/17 Page 1 of 13 PageID 549 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION

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1 Case 8:17-cv VMC-MAP Document 33 Filed 10/12/17 Page 1 of 13 PageID 549 RUGGERO SANTILLI, Plaintiff, UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION vs. CASE NO. 8:17-cv-1797-T-33MAP PEPIJN VAN ERP, et al., Defendants. / DEFENDANT FRANK ISRAEL S MOTION TO DISMISS SECOND AMENDED COMPLAINT AND SUPPORTING MEMORANDUM OF LAW Pursuant to Federal Rule of Civil Procedure 12(b)(2) and 12(b)(6), Defendant Frank Israel ( Israel ) respectfully moves this Court to dismiss the Second Amended Complaint against him. Israel is a resident of the Netherlands with essentially no ties to Florida and no role in the defamation alleged in this case. Accordingly, this Court lacks personal jurisdiction over Israel. In addition, the Second Amended Complaint fails to state a cause of action against Israel. The Second Amended Complaint against Israel, therefore, must be dismissed. Grounds for this motion are set forth more fully in the following memorandum. Memorandum of Law Plaintiffs, Ruggero Santilli ( Dr. Santilli ) and Carla Santilli (collectively Plaintiffs ), accuse Israel, Pepijn van Erp ( van Erp ) and John Doe d/b/a Hosting2Go of publishing three allegedly defamatory Internet articles. (D.E , 11-16) Israel, however, has insufficient ties to this action and to Florida to be subject to this Court s jurisdiction. The Second Amended Complaint alleges in a conclusory fashion that Israel purposely availed himself to the jurisdiction of Florida, that he purposely used and/or directed the use of the internet as a tool to reach into the state of Florida and publish disparaging and defaming (untrue) blogs/articles.

2 Case 8:17-cv VMC-MAP Document 33 Filed 10/12/17 Page 2 of 13 PageID 550 (D.E. 6) The Second Amended Complaint makes identical, conclusory allegations about the other Defendants. (D.E. 30 5, 7) The Second Amended Complaint also alleges that the challenged articles were published at the direction of and with assistance from Defendant ISRAEL. (D.E ) Beyond these conclusory statements, the Second Amended Complaint contains no specific allegations concerning Israel, and for good reason: The articles at issue, which are attached to the Second Amended Complaint as Exhibits A, B and C, are explicitly van Erp s writings. The articles were posted on van Erp s personal website, and the Second Amended Complaint does not explain how Israel has any role with regard to the articles or that website. To the contrary, and as Israel explains in the declaration being filed with this motion, he had no role in the publication of these articles. Admittedly, van Erp and Israel are not strangers; they are both directors of a not-forprofit Dutch foundation. But that relationship does not support suing Israel in Florida for van Erp s personal writings, any more than a partner at a law firm would be responsible for a colleague s personal Facebook post. As Israel s declaration explains, he had never even heard of Dr. Santilli until he received an from the account of Plaintiff Carla Santilli complaining about the primary article at issue. The facts simply do not support haling a Dutch resident into a Florida courtroom to answer for articles that are not in any way attributable to him. Israel should be dismissed from this case with prejudice. I. Personal jurisdiction over Israel is lacking. The legal standards applicable to personal jurisdiction are well-established. A plaintiff seeking the exercise of personal jurisdiction over a nonresident defendant bears the initial burden of alleging in the complaint sufficient facts to make out a prima facie case of jurisdiction. RMS Titanic, Inc. v. Kingsmen Creatives, Ltd., 579 Fed. Appx. 779, 783 (11th Cir. 2014). If a 2

3 Case 8:17-cv VMC-MAP Document 33 Filed 10/12/17 Page 3 of 13 PageID 551 defendant responds to a complaint with contradictory affidavit evidence to challenge jurisdiction, the plaintiff must produce evidence supporting the existence of long arm jurisdiction. RMS Titanic, 579 Fed. Appx. at 783. In other words, once a defendant sufficiently challenges plaintiff's assertions, then the plaintiff must affirmatively support its jurisdictional allegations and may not merely rely upon the factual allegations set forth in the complaint. Structural Panels, Inc. v. Texas Aluminum Indus., Inc., 814 F. Supp. 1058, 1064 (M.D. Fla. 1993). See also Mey v. Enterprise Financial Group, Inc., 2:15-CV-463-FTM-99-MRM, 2016 WL , at *3 (M.D. Fla. Dec. 19, 2016) (plaintiff must substantiate the jurisdictional allegations in the complaint by affidavits or other competent proof, and not merely reiterate the factual allegations in the complaint ) (quoting Future Tech. Today, Inc. v. OSF Healthcare Sys., 218 F.3d 1247, 1249 (11th Cir. 2000)). Thus, the plaintiff bears the ultimate burden of establishing that personal jurisdiction is present. Oldfield v. Pueblo De Bahia Lora, S.A., 558 F.3d 1210, 1217 (11th Cir. 2009). If that burden is not met and the court finds a lack of personal jurisdiction, the court is obligated to dismiss the action against that defendant. Paws Aboard, LLC v. DiDonato, 8:11-CV-1978-T-33EAJ, 2012 WL , at *2 (M.D. Fla. Apr. 13, 2012); Hilltopper Holding Corp. v. Estate of Cutchin, 955 So. 2d 598, 602 (Fla. 2d DCA 2007) ( If the plaintiff fails to come forward with sworn proof to refute the allegations in the defendant's affidavit and to prove jurisdiction, the defendant's motion to dismiss must be granted. ). Determining whether a court in Florida has personal jurisdiction over a defendant involves two steps. The first asks whether the Florida long-arm statute provides a basis for personal jurisdiction. Rogers v. Nacchio, 241 Fed. Appx. 602, 605 (11th Cir. 2007). In Florida, long-arm statutes are strictly construed. Verizon Trademark Services, LLC v. Producers, Inc., 810 F. Supp. 2d 1321, 1328 (M.D. Fla. 2011). See also Greystone Tribeca Acquisition, L.L.C. v. 3

4 Case 8:17-cv VMC-MAP Document 33 Filed 10/12/17 Page 4 of 13 PageID 552 Ronstrom, 863 So. 2d 473, 475 (Fla. 2d DCA 2004) ( we are required to strictly construe Florida s long-arm statute ). Consequently, the person invoking long-arm jurisdiction has the burden of proving facts which clearly justify the use of this method of service of process. Lauzon v. Joseph Ribkoff, Inc., 77 F. Supp. 2d 1250, 1253 (S.D. Fla. 1999). If the long-arm statute provides a basis for jurisdiction, the Court turns to whether sufficient minimum contacts exist between the defendants and the forum state so as to satisfy traditional notions of fair play and substantial justice under the Due Process Clause of the Fourteenth Amendment. Id. (quotation marks omitted). Specifically, under this second prong of the analysis, it must be shown that the defendant s contacts with the forum proximately result from actions by the defendant himself that create a substantial connection with the forum state. Madara v. Hall, 916 F.2d 1510, 1516 (11th Cir. 1990) (emphasis in original) (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475 (1985)). Therefore, each defendant s contacts with the forum state must be weighed individually. Verizon Trademark Services, 810 F. Supp. 2d at 1324 (citing Calder v. Jones, 465 U.S. 783, 790 (1984)). In this case, the facts regarding Israel do not satisfy the Florida long-arm statute or the Due Process Clause. Israel had no role in the publications at issue and has no material ties to Florida. Thus, he did not commit a tort within this state, and he lacks sufficient minimum contacts to subject him to this Court s jurisdiction. These facts are supported by evidence specifically, Israel s declaration challenging jurisdiction and Plaintiffs lack evidence to the contrary. Accordingly, the Second Amended Complaint against Israel must be dismissed. A. Florida s long-arm statute does not reach Israel. The Second Amended Complaint purports to accuse Israel of defamation. (D.E ) Thus, although the Second Amended Complaint does not cite a specific provision of the Florida long-arm statute, the pleading seems intended to accuse Israel of committing a tortious 4

5 Case 8:17-cv VMC-MAP Document 33 Filed 10/12/17 Page 5 of 13 PageID 553 act within this state (1)(a)(2), Fla. Stat. Israel did not. Rather, as explained in the declaration being filed with this motion, Israel did not publish the articles at issue. He also has no substantial ties to Florida. Consequently, Israel is beyond the jurisdiction of Florida s courts. 1. Israel did not commit a tortious act in Florida, and specific jurisdiction is lacking. Under Florida's long-arm statute, a person submits himself or herself to the jurisdiction of the Florida courts for any cause of action arising out of certain acts he or she personally commits. Liste v. Cedar Financial, 8:13-CV-3001-T-30AEP, 2015 WL , at *5 (M.D. Fla. Feb. 3, 2015) (emphasis in original), adhered to on reconsideration, 8:13-CV-3001-T-30AEP, 2015 WL (M.D. Fla. Mar. 10, 2015). So, in order to satisfy Section (1)(a)(2) in this case, Plaintiffs must present evidence that Israel personally committed a tort in this state. This requires proof that Israel committed a substantial aspect of the alleged tort in Florida, and that the activities in Florida were essential to the success of the tort. Live Face on Web, LLC v. Tweople, Inc., 6:14-CV-44-ORL-22TBS, 2014 WL , at *2 (M.D. Fla. May 21, 2014) (emphasis added) (quoting Cable/Home Communication Corp. v. Network Productions, Inc., 902 F.2d 829, 857 (11th Cir. 1990)). See also NHB Advisors, Inc. v. Czyzyk, 95 So. 3d 444, 448 (Fla. 4th DCA 2012) ( In analyzing whether tortious conduct has occurred within Florida, courts have looked to whether the nonresident defendant committed a substantial aspect of the alleged tort in Florida. ) (internal citation omitted). The personal involvement requirement was applied in Liste, 2015 WL , in which the plaintiff accused a debt collection company and its founder (who was also its president and managing director) of violating debtor-protection statutes and intentionally inflicting emotional distress. The company s founder submitted an affidavit stating that he did not personally do anything in Florida and did not personally participate in the collection of the plaintiff s account. 5

6 Case 8:17-cv VMC-MAP Document 33 Filed 10/12/17 Page 6 of 13 PageID 554 Id. at *5. In granting the founder s motion to dismiss, the court explained that the founder was not by virtue of his position subject to personal jurisdiction. Id. (quoting Doe v. Thompson, 620 So. 2d 1004, 1006 (Fla. 1993)). United Credit Recovery, LLC v. Bexten, 6:11-CV-1714-ORL-31, 2012 WL (M.D. Fla. Oct. 18, 2012) is similar. In that business dispute, the plaintiff ( UCR ) sued a company and several individuals. One of the individual defendants ( Schneider ) submitted an affidavit denying any knowledge of or involvement in the alleged misconduct. Id. at *5. In response, UCR submitted affidavits stating that Schneider was a primary contact between the companies, and that Schneider was among one or more people who downloaded UCR account information. Id. The court found these allegations insufficient, explaining that UCR s witness was simply hazarding a guess as to the most likely culprits, not providing testimony based on personal knowledge. Id. Because UCR had no evidence of Schneider s personal involvement in wrongdoing, his motion to dismiss on personal jurisdiction grounds was granted. Id. This Court applied a similar rule in White Wave Int l. Labs, Inc. v. Lohan, 8:09-CV T-33MAP, 2010 WL (M.D. Fla. Sept. 29, 2010), finding that Section s provision concerning breach of a contract in this state did not subject a member of a limited liability company to Florida jurisdiction based upon the company s breach of a contract. Being a member of that company was not sufficient to create personal jurisdiction. Id. at *5. These decisions together compel the conclusion that Plaintiffs claims against Israel must be dismissed. Israel s declaration demonstrates that he had no role concerning the statements at issue in the Second Amended Complaint. He did not publish the articles at issue and does not publish or control the pepijnvanerp.nl website. (Israel Decl. 4) Israel s relationship with van Erp does not extend to any control or authority over van Erp s personal website. (Id. 4, 5, 7) 6

7 Case 8:17-cv VMC-MAP Document 33 Filed 10/12/17 Page 7 of 13 PageID 555 Plaintiffs, therefore, have not alleged and cannot identify substantial tortious acts by Israel in Florida essential to their causes of action. Plaintiffs have not and cannot establish that his claims arise out of Israel s activities in Florida, because there are no such activities. Like the plaintiff in United Credit Recovery, Plaintiffs are simply hazarding a guess that Israel had some role in connection with the articles on van Erp s website WL , at *5. But Israel s testimony is specific and unequivocal: He has no control whatsoever over van Erp s website or articles. (Israel Decl. 4) Plaintiffs cannot demonstrate that Israel committed any tort in the state of Florida, or that Israel caused harm within Florida. 2. General jurisdiction is lacking. The record also establishes that Israel is not subject to general jurisdiction in Florida. General jurisdiction arises as a result of a party s substantial or continuous and systematic contacts with the forum state that are unrelated to the litigation. Lauzon, 77 F. Supp. 2d at 1253 (internal quotation marks omitted). The continuous and systematic contacts sufficient to confer general jurisdiction present a much higher threshold than those contacts necessary to support specific jurisdiction. Verizon Trademark Services, 810 F. Supp. 2d at Israel does not own or lease any property in Florida, have a personal address or telephone number in Florida, have any bank accounts in Florida, or travel to Florida regularly. (Israel Decl. 9-10) He has never paid taxes in Florida, filed a lawsuit in Florida, ever before been involved in a lawsuit in Florida, been licensed to do business in Florida, committed a tort in Florida, had any employees, representatives, or agents in Florida (except his attorneys in this action), had any business relationship with any business in Florida (except the law firm representing him in this action), invested in a Florida business, solicited business via television or radio advertisements in 7

8 Case 8:17-cv VMC-MAP Document 33 Filed 10/12/17 Page 8 of 13 PageID 556 Florida, or purchased advertising in any Florida publication. (Id. 11) There is no basis, therefore, for general jurisdiction over this Dutch resident in this case. B. Permitting this case to proceed against Israel would abridge Due Process. Plaintiffs attempt to sue Israel in Florida is not only a violation of state law. Pursuit of this case against Israel also offends Due Process, because Israel lacks the requisite minimum contacts with Florida. The constitutional touchstone of the minimum contacts analysis is foreseeability. Lauzon, 77 F. Supp. 2d at 1255 (citing Burger King, 471 U.S. at, 474). Thus, the Due Process Clause requires that Israel had fair warning that his particular activity would subject him to Florida jurisdiction. Madara, 916 F.2d at 1516; L.O.T.I. Group Productions v. Lund, 907 F. Supp. 1528, 1533 (S.D. Fla. 1995). Weighing foreseeability requires consideration of whether Israel s Florida contacts (if any) were: (1) related to Plaintiffs causes of action or have given rise to them; (2) involved some act by which Israel purposefully availed himself of the privilege of conducting activities within Florida; and (3) were such that Israel should have reasonably anticipated being haled into court in Florida. Rubber Resources, Ltd., LLP v. Press, 8:08-CV T-27TBM, 2009 WL , at *5 (M.D. Fla. Jan. 27, 2009) (citing McGow v. McCurry, 412 F.3d 1207, 1214 (11th Cir. 2005)). In analyzing whether minimum contacts exist, the Court is called upon to examine Israel s own affiliation with the State, not random, fortuitous, or attenuated contacts he makes by interacting with other persons affiliated with the State. Walden v. Fiore, 134 S. Ct. 1115, 1123 (2014) (quoting Burger King, 471 U.S. at 475). In other words, personal jurisdiction exists only if the defendant's contacts with the forum proximately result from actions by the defendant himself that create a substantial connection with the forum state. Madara, 916 F.2d at 1516 (emphasis in original) (quoting Burger King, 471 U.S. at 475). In addition to this 8

9 Case 8:17-cv VMC-MAP Document 33 Filed 10/12/17 Page 9 of 13 PageID 557 minimum contacts analysis, courts weighing personal jurisdiction also consider whether the exercise of jurisdiction would satisfy traditional notions of fair play and substantial justice. International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945). 1. Israel does not have minimum contacts with Florida. Israel s essentially non-existent connections to Florida fall below the constitutional minimum. As his declaration explains, Israel has virtually no contacts with this state, let alone contacts (i) related to Plaintiffs cause of action; (ii) such that Israel has purposefully availed himself of the privileges of conducting activities in Florida; or (iii) that would permit Israel to reasonably anticipate being haled into a Florida court. This case concerns articles van Erp is alleged to have published on a personal website. Israel had nothing to do with those articles and has been to Florida only three times, for unrelated purposes. (Israel Decl. 1-9) Israel has done nothing to purposefully avail himself of the privilege of conducting activities within Florida. And Israel has done nothing such that he should have reasonably anticipated being haled into court in Florida. Dismissal of Israel from this case is consistent with the effects test in Calder v. Jones, 465 U.S. 783 (1984). In order to establish personal jurisdiction under Calder, Plaintiffs would have to show (among other things) that Israel committed an intentional tort and expressly aimed this tort at Plaintiffs in Florida. Licciardello v. Lovelady, 544 F.3d 1280, (11th Cir. 2008). Plaintiffs cannot establish that any action by Israel was expressly aimed at Plaintiffs in Florida, or that Israel even knew of van Erp s articles prior to publication. Plaintiffs unsupported allegations that Israel had some role in the publications at issue are without merit. 9

10 Case 8:17-cv VMC-MAP Document 33 Filed 10/12/17 Page 10 of 13 PageID The exercise of jurisdiction over Israel would offend traditional notions of fair play and substantial justice. Finally, requiring Israel to defend this case would offend traditional notions of fair play and substantial justice. This requirement from the U.S. Supreme Court s decision in International Shoe, 326 U.S. at 310, calls upon the Court to balance the burdens on the [foreign defendant] in litigating in the forum state against various countervailing considerations, which include (1) the interests of the forum state; (2) the plaintiff's interest in obtaining relief; (3) judicial economy; and (4) social policy. Verizon Trademark Services, 810 F. Supp. 2d at In this case, a balancing of those burdens weighs in Israel s favor. Florida has no interest in permitting Plaintiffs to pursue a defendant who had no role in the publication of the articles at issue. And Plaintiffs interest in obtaining relief (if they were able to state a claim) would be adequately served by his claims against the other Defendants. Judicial economy and social policy would be served by removing Israel, an unnecessary litigant, from this case. Moreover, the burden this case poses upon Israel, a resident of the Netherlands, would be significant. For these reasons, traditional notions of fair play and substantial justice compel that this action against Israel be dismissed. II. Plaintiffs have failed to state a claim against Israel. The Second Amended Complaint also must be dismissed against Israel because Plaintiffs have failed to state a claim against him. In that regard, and without waiving his jurisdictional arguments, Israel incorporates the arguments set forth in van Erp s forthcoming Motion to Dismiss the Second Amended Complaint. Specifically, van Erp s forthcoming arguments concerning counts one, four and seven of the Second Amended Complaint apply equally to counts two, five and eight against Israel. In addition, Plaintiffs have failed to plead facts that 10

11 Case 8:17-cv VMC-MAP Document 33 Filed 10/12/17 Page 11 of 13 PageID 559 would adequately give Israel notice as to the facts underlying the claims brought against him. In particular, the Second Amended Complaint does not connect any specific statements to Israel. Basic pleading rules require that factual allegations must give each defendant fair notice of the nature of the claim and the grounds on which the claim rests. Scott v. Yellon, 2:13-CV-157-FTM-38, 2013 WL , at *1 (M.D. Fla. July 11, 2013) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 n. 3 (2007)). Therefore, mere labels and conclusions or a formulaic recitation of the elements of a cause of action will not do, and a plaintiff cannot rely on naked assertions devoid of further factual enhancement. Franklin v. Curry, 738 F.3d 1246, 1251 (11th Cir. 2013) (internal quotations omitted). The Second Amended Complaint merely alleges the existence of the three articles without any actual allegations that implicate Israel or tie him to specific defamatory statements. The articles themselves identify Pepijn van Erp as their author and his personal website as the source. (D.E. 30-pages 2, 22 & 63) The articles contain no attribution to Israel. The Second Amended Complaint also incorporates all factual allegations, most of which pertain to other Defendants, as a basis for the claims against Israel. A basic requirement for any defamation claim, however, is that the pleader identify statements actually published by each particular defendant. The Second Amended Complaint fails to do so. This basic pleading requirement is well established. To state a cause of action, a plaintiff must link a particular remark to a particular defendant. Asa Accugrade, Inc. v. Am. Numismatic Ass' n., No. 6:05 cv 1285 ORL 19-DAB, 2006 WL , at *10 (M.D. Fla. 2006). So, for example, in Five for Entertainment S.A. v. Rodriguez, 877 F. Supp. 2d 1321 (S.D. Fla. 2012), allegations that statements in a press release were made with the knowledge, consent and approval of all of the Defendants were deemed insufficient, and a motion to dismiss was 11

12 Case 8:17-cv VMC-MAP Document 33 Filed 10/12/17 Page 12 of 13 PageID 560 granted. Id. at See also Five for Entertainment S.A. v. Rodriguez, CIV, 2013 WL , at *6 (S.D. Fla. Aug. 15, 2013) ( Because Plaintiffs have not clearly established that [any defendant] made the statements contained in the third-party web posts, Plaintiffs have not established that Defendants published the statements, a required element of their claim. ); Ransom v. Equifax Inc., 2009 WL at *3 (S.D. Fla. Sept. 30, 2009) (dismissing defamation claim that lumps allegations of publication of defamatory statements together among two defendants). The Second Amended Complaint in this case does not identify any statements that are attributable to Israel. Instead, Plaintiffs simply attach articles from van Erp s personal website without any attempt to identify statements that Israel particularly caused to be published. Because each statement constitutes a separate instance of alleged defamation with attendant defenses based inter alia upon the First Amendment and Florida s common law privileges Plaintiffs are permitted to assert claims against each individual defendant only based upon statements each defendant published. Because the Second Amended Complaint does not attribute particular statements to Israel, it must be dismissed against him. Moreover, because this is now the third attempt to state a claim against Israel, dismissal should be with prejudice. Conclusion Frank Israel is a resident of the Netherlands. He has no meaningful connection to the events at issue in this case or to Florida. Even if Israel were subject to jurisdiction in Florida, Plaintiff has failed to state a claim against him. For these reasons, and as explained in the foregoing motion and memo and his accompanying declaration, Israel respectfully requests that the Court dismiss the Second Amended Complaint as to Israel with prejudice. 12

13 Case 8:17-cv VMC-MAP Document 33 Filed 10/12/17 Page 13 of 13 PageID 561 Request for oral argument Pursuant to Local Rule 3.01(j), Defendant Frank Israel requests oral argument on this motion and estimates that one hour will be required for the argument. Respectfully submitted, THOMAS & LOCICERO PL /s/ James B. Lake James B. Lake Florida Bar No James J. McGuire Florida Bar No Allison Kirkwood Simpson Florida Bar No South Boulevard Tampa, FL Tel: (813) Fax: (813) Attorneys for Frank Israel CERTIFICATE OF SERVICE I HEREBY CERTIFY that on October 12, 2017, a true and correct copy of the foregoing is being filed with the Court s CMECF system, which will serve a copy electronically on Joseph E. Parrish, Esq., The Parrish Law Firm, P.A., PO Box 1307, Brandon, FL (jparrish@theparrishfirm.com). /s/ James B. Lake Attorney 13