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Saturday, December 03, 2011

Rony Joel Sham Lawsuit: Here’s Why


ARNON RONY JOEL, Plaintiff, Case No. 11-2840-CA




COMES NOW, MARIO SANCHEZ, by and through his undersigned attorney, in support of his Amended Motion to Dismiss, states:


I. Legal Standards

Florida Rule of Civil Procedure 1.140(b)(6) requires the Court to dismiss a claim when it fails to state a cause of action for which relief can be granted. The Court must examine the Complaint, restricting its view to the allegations contained in the Complaint and treating them as true, with all reasonable inferences resolved in favor of the pleader. Blumstein v. Sports Immortals, Inc., 36 Fla. L. Weekly D 1885 (Fla. 4th DCA 2011); Gladstone v. Smith, 729 So. 2d 1002, 1003 (Fla. 4th DCA 1999). "[W]here no viable cause of action is asserted […] dismissal is appropriate." Gladstone, 729 So. 2d at 1005.

Defendant's second basis for dismissal, Rule 1.140(b)(7), requires dismissal when an indispensable party is not joined as a defendant in the action. Fla. R. Civ. P. 1.140(b)(7); Kephart

v. Pickens, 271 So. 2d 163, 164 (Fla. 4th DCA 1972). An indispensable party is one whose interest in the subject matter of the action is such that if he is not joined, a complete and efficient determination of the equities and rights and liabilities of the other parties is not possible. Kephart, 271 So. 2d at 164, (citing Grammer v. Roman, 174 So.2d 443 (Fla.App.1965)). Where such a party is not joined, the Court shall dismiss the action. Id.

In the event that the Court determines that Plaintiff's complaint can be sustained in the face of Rules 1.140(b)(6) and (b)(7), then Defendant respectfully asserts that this case is currently pending before the wrong tribunal and should be transferred. Rule 1.140(b)(3) indicates that improper venue is a valid defense to a civil complaint, which may be raised at Defendant's option by either motion or in a responsive pleading. Tip Top Enters. v. Summit Consulting, Inc., 905 So. 2d 201, 202 (Fla. 3d DCA 2005); Host Marriott Tollroads, Inc. v. Petrol Enters., 810 So. 2d 1086, 1088 (Fla. 4th DCA 2002); Fla. R. Civ. P. 1.140(b)(3). If Defendant makes a proper showing of improper venue, the Court should, if possible, transfer the case to the correct venue, pursuant to Florida Rule of Civil Procedure 1.060(b). Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Nat'l Bank of Melbourne & Trust Co., 238 So. 2d 665, 667 (Fla. 4th DCA 1970) (citing Foy v. State Rd. Dep't, 166 So. 2d 688 (Fla. 3d DCA 1964)).


II. Argument

Mario Sanchez, a member of the media and a journalist with an obligation to deliver information and opinions on matters of public concern, has done no wrong. Yet, Plaintiff Arnon Joel has sued him for sharing information on matters of public concern – and his constitutionally protected opinion with his community. Joel's Complaint is typical of one filed in Strategic Litigation Against Public Participation, often referred to as "SLAPP" lawsuits, and seeks only to silence Sanchez, to punish him for exercising his First Amendment rights, and to impose a chilling effect on other speech that the plaintiff does not like (a desire clearly communicated by Plaintiff's request for an injunction against Sanchez's speech in the future).

From its inception, Plaintiff's lawsuit is besieged by fatal errors. Contravening Fla. Stat. § 770.01, Joel failed to provide Sanchez with adequate pre-suit notice specifying the defamatory statements at issue, before commencing this action. The Court must dismiss this action on that basis alone, but there are many more reasons to dismiss the instant action. Plaintiff has failed to allege a cause of action for defamation under either his libel per se or slander per se causes of action. Not only are Sanchez's statements matters of opinion or constitutionally protected rhetorical hyperbole, but Joel is a public figure who, as a matter of law, cannot be defamed by Defendant's statements.

Still, there are more deficiencies in Joel's Complaint. On the face of the document, Joel has not pled facts that justify this Court's award of an injunction against Sanchez. Joel has further failed to join an indispensible party to this action – Fox 4 News, the actual purveyor of the statements Joel believes to be defamatory. Absent the news channel's participation in this litigation, Joel cannot seek adequate relief for his harms, as the news station was as integral as the Defendant – if not more so – to the Plaintiff's perceived harms.

Together or individually, any one of these arguments are sufficient bases for this Court to dismiss Joel's claims. The fact that the case suffers from so many fatal flaws reveals the untenable footing of Joel's Complaint against the Defendant. Joel's Complaint against Sanchez is ripe for this Court's dismissal.


a.    Plaintiff failed to provide requisite pre-suit notice under § 770.01 and its defamation claims are therefore barred as a matter of law.

Florida law requires plaintiffs to send pre-suit notice to defendants in anticipation of all defamation and slander actions. At least five (5) days before commencing such action, the plaintiff must serve notice on the defendant identifying the broadcast or publication the plaintiff alleges to be false and defamatory. Fla. Stat. § 770.01 (2010). This provision, which is intended to allow corrections or retractions by publishers and foster settlements in lieu of legal action, applies to all civil litigants in defamation actions. Wagner, Nugent, et. al. v. Flanagan, 629 So.2d 113 (Fla. 1993) (Interpreting Fla. Stat. § 770.07, but holding that all of Chapter 770 is "broadly titled Civil Actions for Libel" and holding that Chapter 770 applies to all civil litigants in defamation actions).

Courts strictly construe § 770.01's language to require service on the defendant named in the action, whether the publication or network that produces the allegedly defamatory content or the author or speaker who individually created it. Mancini v. Personalized Air Conditioning & Heating, Inc., 702 So. 2d 1376, 1378 (Fla. 4th DCA 1997) (holding that § 770.01 cannot be construed to "exclude reporters, editorial writers and columnists from the protection of 770.01"). The language of § 770.01 requires service on all defendants where the allegedly defamatory statements appeared in any medium as defined by the statute and precedent surrounding it. See Wagner, Nugent, et. al., 629 So.2d at 113.

A plaintiff's failure to comply with § 770.01 compels the court to dismiss the complaint for failing to state a cause of action. Mancini v. Personalized Air Conditioning & Heating, 702 So. 2d 1376, 1377 (Fla. 4th DCA 1997), citing Gifford v. Bruckner, 565 So. 2d 887 (Fla. 2d DCA 1990); Davies v. Brossert, 449 So. 2d 418 (Fla. 3d DCA 1984); Cummings v. Dawson, 444 So. 2d 565 (Fla. 1st DCA 1984). Chapter 770 is inflexible and unforgiving. In Canonico v. Callaway, 26 So. 3d 53 (Fla. 2d DCA 2010), the appeals court upheld a dismissal of an action brought on the fourth day after proper notice was issued, rather than the fifth day, as specified in the statute, even where the statute of limitations operated to bar plaintiff from re-filing. Even a seemingly de minimis detour from 770's strict requirements mandates dismissal.

The fact that a publisher makes statements online does not excuse compliance with § 770.01, as the statute's "other medium" language has been held to apply to the Internet and online forums. Alvi Armani Medical, Inc. v. Hennessy, 629 F. Supp. 2d 1302, 1307 (S.D. Fla. 2008) citing Canonico v. Calloway, 35 Med. L. Rptr. 1549 (Fla. Cir. Ct. Feb. 22, 2007). In Holt

v. Tampa Bay Television, Inc., the trial court held that the phrase "other medium" in § 770.01 includes the Internet. 34 Med. L. Rptr. 1540, 1542 (Fla. Cir. Ct. March 17, 2005) aff'd 976 So. 2d 1106 (Fla. 2d DCA 2007). The court could find no justification for excluding the internet from the statute's reach, as it "has become a recognized medium for communication to the masses." Holt, 34 Med. L. Rptr. at 1542.

Most recently, the Ninth Judicial Circuit recognized the obvious --that § 770.01's "other medium" language applies to web logs, or "blogs." In that case, a blogger criticized a defamation plaintiff, and the plaintiff's refusal to adhere to § 770.01 mandated summary judgment in the defendant's favor. Comins v. Van Voorhis, Case No. 09-CA-015047-O, Order (Fla. Cir. Ct. June 29, 2011) (attached as Exhibit A). The Court determined that the Defendant's blog constituted a media defendant within the purview of the notice statute, which was entitled to pre-suit notice as a condition of the plaintiff bringing his suit. Id. When the Court found that Comins had not provided such notice, the entire case against Van Voorhis was resolved in the defendant's favor at summary judgment. The judgment included a tortious interference claim (which relied on Comins' underlying charges of defamation). Id.

In this case, Joel failed to provide pre-suit notice to Sanchez, whose allegedly defamatory statements were published in the Marco Island Blog. (Compl. Exh. A.) The Marco Island Blog is a "publication" or "other medium" within the purview of § 770.01 under Alvi, Canonico and Holt. Joel's Complaint does not specifically allege compliance with § 770.01 and, despite the language of Complaint Paragraph 11 – that "all conditions precedent have been performed, have been waived, or have occurred prior to the filing of this action" – the Plaintiff failed to provide the requisite pre-suit notice. Plaintiff has not, and cannot, produce evidence of such notice being provided, because doing so would constitute perjury. Sanchez's publication in the Marco Island Blog fits snugly into the protections of § 770.01, yet Plaintiff failed to comply with the statute. Accordingly, all of Plaintiff's claims – as each and every one of them sounds in the tort of defamation, which cannot be raised without proper pre-suit notice – must be dismissed.

b.    Plaintiff has failed to allege causes of action for defamation or libel, as Defendant's statements are neither defamatory nor libelous as a matter of law.

Plaintiff's Complaint is deficient in alleging claims of slander and libel per se – both forms of defamation – against Sanchez. To constitute defamation in Florida, a statement must be: 1) published, 2) false, 3) made with reckless disregard for the truth or knowledge of its falsity when concerning a public official, or negligently when concerning a private person, 4) the proximate cause of actual damages, and 5) defamatory (harmful to the target's character) in nature. Internet Solutions Corp. v. Marshall, 39 So. 3d 1201, 1214 n. 8 (Fla. 2010); Valencia v. Citibank Int'l, 728 So. 2d 330 (Fla. 3d DCA 1999). In this case, Plaintiff's Complaint fails to show that Defendant's statements are false, made with actual malice or reckless disregard for the truth, or defamatory. To the contrary, Sanchez made statements of opinion – not fact – about a public figure that were true. Such findings can be made on the face of the Plaintiff's Complaint and attached exhibits alone, rendering further discovery, and progress in this case, unnecessary.


1.    Defendant's statements were matters of opinion, not fact, and therefore incapable of being defamatory.

Only statements of fact, and not opinions, can be defamatory under Florida law. The Supreme Court has held that there "is no such thing as a false idea," ensuring that individual opinions are protected by the U.S. Constitution. Gertz v. Robert Welch, Inc., 418 U.S. 323 33940 (1974). Constitutionally protected statements of opinion are made based on information known or available to the speaker as a member of the public. Town of Sewall's Point v. Rhodes, 852 So. 2d 949, 951 (Fla. DCA 4th 2003); Morse v. Ripken, 707 So. 2d 921, 922 (Fla. 4th DCA 1998). Whether a statement is one of opinion or fact is left to the court, not a jury. Morse, 707 So. 2d at 922; Zambrano v. Devanesan, 484 So. 2d 603, 606 (Fla. 4th DCA 1986).

Florida's courts have found these types of statements to constitute opinions in the past, such as a claims that a prominent businessman owed more than $500,000 in taxes and was under investigation by the federal government – even when the statements were erroneous. Dockery v. Fla. Democratic Party, 799 So. 2d 291, 296-97 (Fla. 2d DCA 2001). Similarly, a newspaper's allegations of a country club tennis pro's poor skills and inability to assist members, were not defamatory, as they constituted the author's opinions regarding the pro's abilities and performance. From v. Tallahassee Democrat, 400 So. 2d 52, 58 (Fla. 1st DCA 1981). In both cases, courts determined that no reasonable person would interpret the speakers' statements as factual, and anything other than opinion.

Sanchez's statements about Plaintiff fit cleanly within this precedent and convey opinions

– not facts. As in Dockery, Plaintiff's employer, the City of Marco Island, was under investigation by the Environmental Protection Agency ("EPA") as a result of various alleged violations of federal environmental protection statutes during the Plaintiff's tenure as Marco Island's director of public works.1 During this investigation, the city was accused of violating the Clean Air Act and other environmental protection laws.2 The dispute was eventually settled with a consent decree between the EPA, the city and another party.3

There is no dispute that those events specified in the EPA's public statement occurred. What is at issue is the Defendant's statements about them, found in Exhibit A to the Plaintiff's Complaint. Sanchez characterizes the occurrences listed in page 2 of Complaint Exhibit A as "abuses" and "a plethora of issues." The Defendant's statement goes on to describe the harms others suffered as a consequence of these events, and criticizes the city of Marco Island for conducting a "faux investigation" of individuals "fraudulently accused" of dumping asbestos-bearing materials into the environment during Plaintiff's tenure as a public official. The Defendant further mentions "sworn depositions that did not match reality." (Compl. Exh. A at 2)

These statements are not factual determinations made by a Court or arbitration panel, but the opinion statements of a citizen, taxpayer, and member of the media. Based on the information available to him, he had the right (under the fair comment doctrine) – and as a journalist, the duty – to inform others of what he knew, and his observations derived therefrom. Sanchez's statements made on that basis are not, and cannot be, defamatory. Town of Sewall's Point, 852 So. 2d at 951; Morse, 707 So. 2d at 922. The statements contained in Complaint Exhibit A represent Sanchez's opinions, founded on what he did know of the city of Marco Island's relationship with the EPA, and his reaction to the information available to the public concerning the same. As a matter of law, his statements could not be anything more than

1 EPA, City of Marco Island and Quality Enterprises USA, Inc. Agree to pay Penalty to Resolve Clean Air Act
Violations (June 24, 2010),
28d!OpenDocument (
last accessed Sept. 23, 2011).

opinion, based on what he knew. As such, they are not falsifiable statements of fact actionable as defamation, but rather constitutionally protected expressions of opinion.

2.    Sanchez's statements would not be interpreted as statements of fact by a reasonable viewer, and are protected as "Rhetorical Hyperbole."

The extreme language Sanchez used in his article (Compl. Exh. A) does not affect his statements' status as matters of opinion. Even if the words used by the speaker are incendiary and inflammatory, they still are protected as rhetorical hyperbole, as no objective recipient would interpret the statements as factual. Greenbelt Coop. Pub. Ass'n v. Bresler, 893 U.S. 6, 14 (1970). In Seropian v. Forman, a letter sent to 400 people accusing Plaintiff of being an "influence peddler" and receiving unlawful compensation was held to be rhetorical hyperbole, as none who read the letter would believe it to be a representation of fact. 652 So. 2d 490, 492-93, 496, 498 (Fla. 4th DCA 1995). Indeed, to establish his claims for defamation, Joel must meet the burden of proving that Sanchez's statements of fact (if any) were false. Milkovich v. Lorain Journal Co., 497 U.S. 1, 11-17 (1990) (A plaintiff in a defamation case bears the burden of proving the falsity of the defendant's statements); Zorc v. Jordan, 765 So. 2d 768, 772 (Fla. 4th DCA 2000) (same). Joel will never be able to meet this burden, given the statements' legal status.

Defendant's statements were constitutionally protected statements of opinion – hyperbolic comparisons and analogues that a reasonable reader would not interpret as statements of fact. The evidence submitted to the Court in Plaintiff's Complaint shows the rhetoric Sanchez used to make his point. (Compl. Exh. A) Sanchez invoked rhetorical comparisons to Argentina's Dirty War, Ronald Reagan's 1988 law that granted reparations to Americans of Japanese ancestry who were interned during World War II, and even Simon Wiesenthal, a famous hunter and persecutor of the Nazis. In that same vein, Sanchez criticized Joel for his conduct as a government official for the city of Marco Island and its role in a controversy concerning a massive asbestos abatement project that potentially affected thousands of people's health.

Sanchez's choice of language makes it abundantly clear that his statements are First Amendment protected opinionated rhetorical hyperbole. Describing how the city erected complicated systems to obfuscate the tangible environmental problems facing Marco Island, Sanchez invokes the name of Rube Goldberg, a famous designer of over-complicated machines that required many intricate and complex steps to achieve simple tasks. (Compl. Exh. A) There is nothing defamatory about that. Sanchez also uses baroque language to convey his constitutionally protected contempt for city officials – rather than statements of fact – when describing its actions as "faux investigations," "fraudulent[]," and "Machiavellian," and its victims as "septuagenarians." (Id.)

Defendant's use of such language does not constitute verifiably false facts, nor does such language color the facts, if any, relayed in his statement. Sanchez does not even accuse Plaintiff of taking such actions, but instead uses these descriptions to characterize the municipality's actions during Plaintiff's tenure as a public officer. Moreover, Sanchez conveys only his reaction to the events with words that capture his response, rather than the underlying events themselves. No objective reader of Sanchez's statements would believe, as a matter of indisputable fact, that the Plaintiff acted in a "Machiavellian" way, or that the city's investigation was "faux" by any means – these statements did not even address or identify the Plaintiff. (Id.) Sanchez chose this language specifically because it would be interpreted as his opinionated rhetoric, and simply would convey his reaction to the actual, underlying facts of Plaintiff's conduct. As such, the Defendant's statements are not untrue statements of fact, and cannot properly be the basis of Plaintiff's defamation claims.


3.    Defendant's statements were substantially true, and therefore protected by the substantial truth doctrine.

In order to be defamatory, a statement must be false – a high threshold reaching beyond inconsequential inaccuracies. Florida courts have recognized the substantial truth doctrine as a defense to defamation claims, which protects statements where their "gist" is factual, even if not wholly accurate. Cap Publ'ns. v. Reakes, 840 So. 2d 277, 280 (Fla. 5th DCA 2003); Smith v. Cuban Am. Nat'l Fdn., 731 So. 2d 702, 705-06 (Fla. 3d DCA 1999), rev denied 753 So. 2d 563 (Fla. 2000). The directive of this precedent is clear: So long as a statement communicates true facts, it is not defamatory if it does so without perfect accuracy.

The statements Plaintiff complains of, found in Complaint Exhibit A, comport with public documents created by a government agency, which are judicially noticeable. In a statement released on June 24, 2010, the EPA acknowledged that the city of Marco Island had been accused of violating the Clean Air Act and other federal laws.4 The EPA detailed the allegations against the city of Marco Island as follows:

  • •    failure to conduct a thorough inspection for asbestos prior to the excavation of asbestos-containing cement piping;
  • •    failure to provide timely written notification to the Florida Department of Environmental Protection prior to beginning the construction project;
  • •    failure to remove the excavated asbestos-containing piping prior to conducting construction activity that would break up, dislodge or disturb the asbestos material;
  • •    failure to adequately wet and keep wet the excavated asbestos-containing piping until disposed;
  • •    failure to have on-site a supervisor properly trained in the asbestos regulations; and
  • •    failure to properly dispose of the excavated asbestos-containing piping and asbestos-contaminated debris as soon as practical.


    4 See EPA, supra, n. 1.

    Defendant's statements comport with these allegations as reported by the EPA, and merely claim that such issues "came to light." (Compl. Exh. A) Sanchez's statements then list a series of wrongs allegedly committed by the city of Marco Island, which included "findings by the EPA that the Clean Water Act and Clean Air Act were violated." (Id.) As the city entered into a consent decree with the EPA concerning those exact issues, it was not untrue for Sanchez to claim that the EPA had made findings that the Clean Water Act and Clean Air Act were violated – after all, the city of Marco Island agreed to pay a penalty of $81,722 to partially resolve these claims.5

    Sanchez's statements mirrored those found on the public record as well. In Sanchez v. EPA, Case No. 2:09-cv-00624 (Doc. # 1) (M.D. Fla. Sept. 18, 2009), the Defendant commemorated the events that occurred during Plaintiff's tenure as Marco Island's director of public works. In response to the EPA not supplying information to Sanchez pursuant to his FOIA request, Sanchez filed suit against the agency, seeking information relating to a host of events memorialized in his Complaint (Doc. # 1 ¶ 6a-j). Though the events contained in Sanchez's Complaint are not verified as true, their existence on the public record is indisputable, and Sanchez is justified in pointing out the existence of such allegations – especially in light of the city's consent decree with the EPA. Speakers have a qualified privilege to report accurately on information contained in official documents – such as civil complaints – so long as the account is reasonably accurate and fair. See Rasmussen v. Collier County Publ'g Co., 946 So. 2d 567, 570-71 (Fla. 2d DCA 2006); Carson v. News-Journal Corp., 790 So. 2d 1120 (Fla. 5th DCA 2001).

    To the extent that Sanchez's statements may not have been fully accurate, this does not

    5 See EPA, supra n.1.

    change their level of protection under the First Amendment, as their general meaning was truthful: The city of Marco Island was investigated, and it incurred liability, for numerous violations of federal environmental protection laws. In light of the EPA's own press release on the issue, as well as its touted consent decree with the city of Marco Island, Sanchez's statement concerning the city's conduct – and the EPA's consequences – is non-falsifiable. The misstatement of minor details is not sufficient to convert Sanchez's substantially true statement into one that is defamatory due to formalistic inaccuracies.

    4.    Defendant's statements concern a public figure, who must allege actual malice or reckless disregard for the truth in order to establish defamation, and has not done so.

    As a public official, Plaintiff is held to a higher standard in pursuing defamation actions against individuals. To prove defamation, a public figure must show that the false information was published with actual malice – knowledge that the statement was false – or a reckless disregard for the truth. N.Y. Times Co. v. Sullivan, 376 U.S. 254 (1964). In Florida, a two-step approach is used to determine whether an individual is a public figure: First, the court must determine whether the person is involved in a "public controversy," or a matter that reasonable people would expect to affect people beyond its immediate participants, Gertz, 418 U.S. at 323; Mile Marker Incorporated v. Peterson Publishing, LLC, 881 So. 2d 841, 845-46 (Fla. 4th DCA 2002); Second, after defining a public controversy, the court must further determine whether the Plaintiff played a sufficiently central role in the controversy to be considered a public figure. Gertz, 418 U.S. at 323; Mile Marker, 881 So. 2d at 846; Della-Donna v. Gore Newspapers Co., 480 So. 2d 72, 75 (Fla. 4th DCA 1986).

    Plaintiff's Complaint establishes, through its Exhibits, that Joel was a public figure. In Exhibit A, he is referred to as Marco Island's "public works director[]," and then identified by name in Exhibit B. Plaintiff clearly is the individual at issue in Defendant's statements and, as a public official embroiled in a scandal involving numerous violations of federal environmental protection laws with far-reaching consequences, is a public figure under Florida law. Gertz, 418

    U.S. at 323; Mile Marker, 881 So. 2d at 846; Della-Donna, 480 So. 2d at 75. As such, Plaintiff must establish – and the Court must independently decide on the record before it – whether Defendant's statements were made with actual malice or reckless disregard for the truth. Bose Corp. v. Consumers Union of the U.S., Inc., 466 U.S.C 485, 511 (1984).

    Moreover, as a media defendant, Plaintiff's burden in establishing the falsity of Sanchez's statements is constitutionally heightened. Milkovich, 497 U.S. at 11-17. Where a media defendant's standards involve a matter of public concern, the burden of proving the falsity of each statement falls on the Plaintiff. Id. at 14. As detailed supra, only statements of fact, rather than hyperbole or expressions of opinion, are actionable as bases for defamation – but still subject to the Plaintiff's heightened burden of proof. Id. at 19-20.

    Plaintiff vaguely articulates this standard in its Complaint, alleging that Sanchez made his statements "knowingly, or in the alternative, with reckless disregard for the truth." (Compl. ¶¶ 14-15) Sanchez, however, did not make the statements complained of in the Fox News telecast referenced in the Complaint. (Id. ¶¶ 5-6) Nor were the statements Sanchez actually made defamatory. Most of Sanchez's statements were matters of opinion or rhetorical hyperbole about Joel's actions as they concerned Marco Island's violation of environmental protection statutes. To the extent any of Sanchez's statements were factual in nature, Plaintiff has not specifically alleged – nor can he show – that each of them were made with specific knowledge of their falsity or reckless disregard for their truth. In fact, Sanchez's statements were true, or substantially so, and can be verified with judicially noticeable information.6 An erroneous interpretation of the facts neither meets the standard for actual malice, nor reckless disregard for the truth. Schiavone 6 See EPA, supra, n.1.

    Const. Co. v. Time, Inc., 847 F.2d 1069, 1090 (3d Cir. 1988) citing Time v. Pape, 401 U.S. 279, 292 (1971).

    Despite alleging that Sanchez acted with actual malice or reckless disregard for the truth, Florida law compels the dismissal of Joel's claims against Sanchez. As a matter of law discussed supra, Sanchez's statements are non-defamatory as statements of opinion and hyperbole, and are factually true as they relate to the Plaintiff. Despite Joel's allegations, he is a public figure and public official who, by operation of law, cannot show that Sanchez's statements are defamatory. Counts I and II of the Complaint must therefore be dismissed on this basis with prejudice.


    c.    Failing to establish Defamation or Libel occurred, Plaintiff's Tortious Interference Claim must be dismissed, as there is no underlying tort.

    Defendant's exercise of his free speech rights did not result in tortious interference with Plaintiff's business relationships or expectancies. To prevail on his tortious interference claim, Joel must prove four elements: 1) Existence of a business relationship (not necessarily evidenced by contract); 2) Defendant's knowledge of the relationship; 3) Intentional and unjustified interference with that relationship by Defendant, and; 4) Plaintiff's damages as a result of that relationship's breach. Tamiami Trail Tours, Inc. v. Cotton, 463 So. 2d 1126, 1127 (Fla. 1995); Linafelt v. Beverly Enterprises-Florida, Inc., 745 So. 2d 386, 389 (Fla. 1st DCA 1999). As established supra, there is no defamation underlying the Plaintiff's tortious interference claim, and it must fail for that want of unlawful interference.

    Yet, even if considering other factors, Plaintiff's tortious interference claim fails on its face as a matter of law. When determining whether a defendant's conduct is an intentional interference with a plaintiff's business relationship, courts consider the following factors:

    1)    the nature of the actor's conduct;

    2) the actor's motive;
    3) the interests of the other with which the actor's conduct interferes;
    4) the interests sought to be advanced by the actor;
    5) the social interests in protecting the freedom of action of the actor and the

    contractual interests of the other;

    6) the proximity or remoteness of the actor's conduct to the interference; and

    7) the relations between the parties. Seminole Tribe v. Times Publ'g Co., 780 So. 2d 310, 315 (Fla. DCA 2001); Smith v. Emery Air Freight Corp., 512 So. 2d 229, 230 (Fla. 3d DCA 1987); McCurdy v. Collis, 508 So. 2d 380, 383 (Fla. 1st DCA 1987). Central to this analysis is whether the interference is improper or not under the circumstances of the case. Seminole Tribe, 780 So. 2d at 315.

    In Seminole Tribe, the court found that the paper did not engage improperly and unjustifiably interfere with the tribe's business relationships. Id. at 318. The court in that case reached its conclusion after balancing the business, social and political concerns represented by the plaintiff's and defendant's respective activities. Id. at 316-17. Similarly, in Smith, the court held that the defendant's motion for directed verdict should have been granted as a matter of law. 512 So. 2d at 230. The defendant's exclusion of the plaintiff from the defendant's workplace was justified under the circumstances and served the purpose of preventing workplace altercations, rather than depriving the plaintiff of a business advantage. Id.

    In this case, the Court may evaluate the legal sufficiency of Plaintiff's tortious interference claim based solely on the materials presently before it. As established in the Plaintiff's Complaint and supporting Exhibits, the Defendant runs an online publication that addresses issues of public concern for the Marco Island community. (Compl. Exh. A) Among these issues is the diffusion of asbestos into the Marco Island environment as a result of the local government's actions, jeopardizing the health and wellbeing of the community's residents. As is clear from the Complaint, this is the sole relationship Sanchez had with Joel, and there is no allegation that Sanchez acted against Joel out of spite or for any improper purpose – Sanchez was merely discharging his duty to inform the community as a member of the media. The information distributed by Sanchez related to community and individual health in a direct and immediate way, as the dangers of asbestos are well known. Sanchez was not scoring points against Joel with cheap tabloid sensationalism about trivial shortcomings by Joel, but informing his community of a serious health risk – one that, incidentally, fell on Joel's shoulders.

    As in Seminole Tribe and Smith, Sanchez's actions did not intentionally interfere with Joel's employment, nor did they interfere with his career to a degree greater than necessary as a consequence of disseminating Sanchez's message. Sanchez distributed information of grave social importance and concern. He made his statements directly to the public in order to inform them, rather than to Joel's superiors in order to incite a reprimand. These facts are immutable as alleged in the Plaintiff's Complaint and, when balanced by the standard enunciated in Seminole Tribe, compel dismissal of Count III of Plaintiff's Complaint as a matter of law.


    d.    As a matter of law, Plaintiff has not alleged irreparable harm sufficient to warrant issuance of an injunction.

    Plaintiff's request for an injunction is premised on the erroneous assumption that Defendant's statements have defamed him. As demonstrated supra, this belief is inconsistent with the law. As his defamation claims fail, so too must Joel's request for an injunction, as there is no underlying unlawful conduct justifying the imposition of an injunction. Moreover, the relief Joel seeks – a muzzle on Sanchez's fundamental right to free speech, and to speak on matters of public concern – is so extraordinary and abhorrent in response to the Defendant's exercise of his First Amendment rights that such relief must be denied. Joel has not shown any evidence of harm, let alone irreparable harm. As Judge Moxley stated in a similar SLAPP suit hearing, "Injunctive relief is unavailable to redress a past harm or to restrain an actual or threatened defamation." eAppraiseit v. Crowley, Case No. 05-2007-CA027976 (Fla. Cir. 2007) (oral statements of Court).7 In that case, Moxley was not simply speaking from the gut. He was citing well-established law. See Rodriguez v. Ram Systems, Inc., 466 So.2d 412 (Fla. 3d DCA 1985); Animal Rights Fdn. Of Florida, Inc. v. Siegel, 867 So.2d 451 (5th DCA 2004); Demby v. English, 667 So.2d 350, 355 (Fla. 1st DCA 1995) ("It is a "well established rule that equity will not enjoin either an actual or a threatened defamation."); United Sanitation Services, Inc. v. City of Tampa, 302 So. 2d 435 (Fla. 2d DCA 1974) (same).

    The reason that equity will not provide such relief is that it would constitute a prior restraint. The Supreme Court has roundly rejected prior restraint since Near v. Minnesota, 283

    U.S. 697 (1931), A prior restraint is "one of the most extraordinary remedies known to our jurisprudence," are "presumptively unconstitutional." Republican Party of Fla. v. Fla. Elections Com'n, 658 So. 2d 653, 657 (Fla. 1st DCA 1995); Post-Newsweek Stations v. Guetzloe, 968 So. 2d 608, 610-11 (Fla. 5th DCA 2007) (finding that classic prior restraints, such as temporary and permanent injunctions, are prohibited "even when substantial competing interests are at stake") (quoting Alexander v. United States, 509 U.S. 544, 550 (1993)). Demby, 667 So. 2d at 355; United Sanitation Svcs, 302 So. 2d at 435.

    Injunctive relief restricting Sanchez's free speech rights is inappropriate because he has made no defamatory remarks. Even if he had, the weight of precedent strongly counterbalances Joel's request for an injunction. Assuming arguendo that Sanchez's statements were defamatory, issuance of an injunction by this Court would constitute an impermissible prior

    7 Hearing transcript available at http://www.citmedialaw.org/sites/citmedialaw.org/files/2007-06-28-Transcript_of_Hearing_on_Plaintiffs_Emergency_Motion_for_Injunctive_Relief.pdf

    restraint on Sanchez's right of free expression. Guetzlow, 968 So. 2d at 610-11. Finally, Joel has not produced any evidence to establish the propriety of an injunction. Though Joel non-specifically alleges harm arising from Sanchez's speech, he non-specifically alleges that he has been harmed by Joel's speech (Compl. ¶¶ 9-11), Joel has not introduced any evidence of this harm, let alone sufficient evidence to warrant this Court impounding Sanchez's rights to free expression under the First Amendment. Accordingly, Count IV should be dismissed with prejudice. Furthermore, this Count is so patently frivolous, so counter to every star in our Constitutional constellation, that it must be not only dismissed – but attorneys' fees must be assessed against the Plaintiff for bringing such a patently frivolous claim.

    e.    Plaintiff has failed to join an indispensable party to this action – Fox News Channel 4 – and must have its Complaint dismissed, as Sanchez cannot individually accord full and proper relief.

    Plaintiff's Complaint fails to name an indispensible party, Fox News Channel 4 ("Fox"), to this action, and the Court should dismiss this action accordingly. By the Plaintiff's own Complaint, it was Fox that made the statements Plaintiff finds objectionable – including many specific statements that were not even made by Sanchez. To the extent Joel alleges that Sanchez made those statements, his allegations are in error. Yet, to obtain redress for their publication – if they are even defamatory – Plaintiff must join Fox to the action.

    The Florida Rules of Civil Procedure require a Plaintiff to join indispensible parties to the litigation, or face dismissal. Fla. R. Civ. P. 1.140(b)(7); State Dep't of Health & Rehabilitative Svcs. ("DHRS") v. State, 472 So. 2d 790, 792 (Fla. 1st DCA 1985); Kephart, 271 So. 2d at 164. An indispensable party "is generally defined as one whose interest is such that a complete and efficient determination of the cause may not be had absent joinder." DHRS, 472 So. 2d at 792, citing Kephart, 271 So. 2d at 163; Bernstein v. Dwork, 320 So. 2d 472, 474 (Fla. 3d DCA 1975).

    Where two or more parties share an interest in the outcome of litigation, or have a stake in the pending matter that affects the rights of each proper defendant, they are deemed indispensable to the litigation. In Aronovitz v. Stein Properties, the Third District Court of Appeals held that the trial court erred by not dismissing a case where every entity with an interest in a deposit receipt had not been joined as a defendant. 322 So. 2d 74, 75 (Fla. 3d DCA 1975). Similarly, in DHRS, the First District Court of Appeal found that the appellee's equal protection claim arising from a reclassification of their public sector employment positions should have been dismissed because it failed to join the state agency that could accord them their desired relief. 472 So. 2d at 792. See also Troso v. Florida Ins. Guaranty Assn., 538 So. 2d 103, 104 (Fla. 4th DCA 1989) (noting propriety of trial court dismissing Complaint where plaintiff had named insurer as defendant, but not owner of premises where underlying injury occurred); Roberts v. Nationwide Mut. Fire Ins. Co., 355 So. 2d 219, 220 (Fla. 1st DCA 1978) (affirming dismissal with prejudice in case where plaintiff did not join insured as defendant with insurer).

    This case presents the Court with an analogous scenario. Plaintiff has accused Fox of committing a wrong for which Defendant is not liable. To the extent any statements on Fox's newscast could be defamatory, no such statements were made by nor attributed to Defendant – yet Plaintiff seeks to hold Defendant liable for them. To the extent Plaintiff claims that Fox's statements harmed him, then it is Fox – and Fox alone – that may provide Plaintiff with adequate relief for those harms.8 If Fox contributed to Plaintiff's alleged harms, then Fox must be joined to this action for it to progress, as both parties caused the Plaintiff's alleged harms. The weight of Florida precedent shows that attempting to hold one party liable for actions taken together – normally when insurers are pursued individually as easy targets or deep pockets – the Plaintiff

    8 To the extent Plaintiff has suffered any harm due to the alleged defamation; Defendant submits that Plaintiff has not suffered any harm at all, as the statements at issue are not defamatory.

    has failed to join an indispensable party. See Troso, 538 So. 2d at 104; Roberts, 355 So. 2d at 220. Accordingly, as Plaintiff claims that Fox has caused his harm, his Complaint cannot proceed without Fox's participation as a defendant. Only then will all the parties that allegedly harmed Plaintiff be joined to the action, enabling Plaintiff to be made whole for its alleged harms.9 The Court should dismiss Plaintiff's entire Complaint as an appropriate response to this failure.


    f.    Even if Plaintiff's claims were sufficient to survive this Motion to Dismiss, Fla. Stat. § 770.05 mandates that venue is improper in Collier County.

    Florida has specific statutes that govern choice of venue in defamation actions. These statutes limit actions arising out of a single publication or single cause of action to four choices of venue: (1) where the allegedly libelous material was first published; (2) the county or counties where the publisher has an office used for conducting business; (3) where the publisher keeps an office for distribution; or (4) where the cause of action came into existence. Perdue v. Miami Herald Publishing Co., 291 So. 2d 604, 607 (Fla. 1974). In this case, Collier County is clearly not a proper venue for Plaintiff's claims under the law.10

    With respect to the allegedly defamatory statements cited in Plaintiff's Complaint, none was first published in Collier County, meaning that this county does not fall within the first venue choice. See Affidavit of Mario Sanchez dated November 23, 2011 (hereinafter, Sanchez Affidavit) ¶¶ 13, 19, 29. In fact, the statements that Plaintiff claims as the basis for his defamation action were first published in San Francisco, California, Lee County, Florida, and North Carolina. Id. Under the second and third possible venue choices for a defamation action,

    9 Defendant again refutes Plaintiff's contention that the complained-of statements are libelous, but notes only the allegations contained in Plaintiff's complaint. 10 On November 29, 2011, the Plaintiff asked the court to take judicial notice of the fact that Sanchez owns property in Collier County. Sanchez does not dispute this fact. However, it is clear that the rationale for this request is to try and establish jurisdiction. The Plaintiff is seemingly conflating the issues of jurisdiction and venue. Jurisdiction is not challenged in this Motion. On the other hand, Florida has very specific rules with respect to venue in defamation actions, and the Plaintiff has violated those rules.

    Defendant published all statements cited in Plaintiff's Complaint from his residence, which is in Miami-Dade County. See Sanchez Affidavit ¶¶ 1, 5, 15, 21. Accordingly, Miami-Dade County is the only venue that could be asserted as a location where Defendant has an office for conducting business or for distribution. In any case, Defendant does not keep an office of any kind in Collier County.

    Moving to the fourth option for proper venue of Plaintiff's defamation claims, an action based on Defendant's statements did not come into existence in Collier County. In defamation cases arising out of Internet communications, the tort accrues where the defendant's allegedly harmful acts first took effect. Fla. Gamco, Inc. v. Fontaine, 68 So. 3d 923, 929 (Fla. 4th DCA 2011). The location of the defendant during publication is determinative of proper venue for a defamation claim. Id. As noted above, each of the statements cited in Plaintiff's Complaint first took effect in places other than Collier County. See Sanchez Affidavit ¶¶ 13, 19, 29.

    Section 770.05 of Florida Statutes, by codifying the so-called "single publication rule" for defamation cases, specifically limits the choice of venue for defamation actions. In relevant part, the statute states:

    No person shall have more than one choice of venue for damages for libel or slander, invasion of privacy, or any other tort founded upon any single publication . . . . Recovery in any action shall include all damages for any such tort suffered by the plaintiff in all jurisdictions.

    Fla. Stat. § 770.05 (2011). Accordingly, Plaintiff in this suit may not sustain a cause of action in this county based on allegedly defamatory statements made outside this county, by a speaker who does not maintain an office in this county, and which statements were first heard by parties not located in this county. If this honorable Court does not agree that Plaintiff's defamation claims should be dismissed, then it must – at a minimum – transfer those claims to a permitted venue, as mandated by Florida law. Defendant respectfully submits that Miami-Dade County satisfies at least one of the prescribed venue choices for a defamation action, such that Plaintiff's claims could be transferred to that county.


    III. Conclusion

    Plaintiff's Complaint, and the manner in which he has pursued this litigation, are deeply flawed. As a prefatory matter, Plaintiff did not serve pre-suit notice on Sanchez, as required by Fla. Stat. § 770.01, and is thus barred from bringing suit. Even if Plaintiff's claims are allowed to proceed, each and every count fails for separate and individual reasons.

    First, Plaintiff has failed to allege causes of action for slander and libel, both forms of defamation. As a matter of law, Sanchez's statements are non-defamatory for numerous reasons, and recognized as protected speech under several overlapping legal doctrines. Because Sanchez's statements were non-defamatory, there is no tortious conduct underlying Joel's tortious interference claim, and that cause of action also fails. Similarly, the absence of defamation from this case denudes Joel of his ambitions to seek an injunction against Sanchez. Even if Sanchez's statements were defamatory, Joel has not demonstrated his entitlement to an injunction on Sanchez's free speech rights – a classic prior restraint – based on facts on the record. Finally, Plaintiff declined to name Fox as a defendant in this action – despite the Plaintiff's complaint accusing Fox of much of his alleged harm. Based on the Complaint's many allegations based on Fox's statements, Sanchez is incapable of providing adequate relief on his own for statements made by a third person and published by Fox. For all of these reasons, this Court must dismiss Plaintiff's Complaint.

    Alternatively, should the Court determine that Plaintiff's claims are sufficient to survive Sanchez's Motion to Dismiss, then this Action must be transferred to a venue that is permitted under the law. Defendant asserts that Miami-Dade County is a proper venue that satisfies the statutory requirements for defamation claims in Florida.


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