Response to Biased Ruling - Joel Lawsuit

IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT

IN AND FOR COLLIER COUNTY, FLORIDA

 

CIVIL ACTION

 

ARNON RONY JOEL,

 

    Plaintiff,

Case No. 11-2840-CA

v.

 

MARIO SÁNCHEZ

 

    Defendant.

                                                    

 

DEFENDANT'S VERIFIED MOTION
FOR RECONSIDERATION AND INCORPORATED
MEMORANDUM OF LAW

                                                    

 

COMES NOW Defendant, MARIO SÁNCHEZ and moves, by and through his undersigned attorney, for reconsideration of the Court's Order executed on December 20, 2011, which found in pertinent part that "venue is proper in Collier County, Florida." In support of his motion, Defendant states as follows:

1. Background
   

Dr. Mario Sánchez is a journalist, publishing his editorial and investigative reporting on his online newspaper to a significant audience of readers since as early as May of 2006. Dr. Sánchez has meticulously researched and written a number of pieces concerning the conduct of Marco Island's local government officials, and in particular the conduct of Plaintiff. Sánchez has personally made Freedom of Information Act ("FOIA") requests upon entities such as the U.S. Environmental Protection Agency, obtaining documents that he has used to confirm and support his truthful reporting of the sanctionable activities of Plaintiff. Needless to say, much of Dr. Sánchez's writing, which is highly critical of Plaintiff, is not very flattering. However, as a public figure, Plaintiff's actions are rightly held up to public scrutiny, and Dr. Sánchez's writing does precisely this, reporting accurately the goings on in Marco Island's Department of Public Works with Plaintiff at its helm.

In late fall/early summer of 2011, Dr. Sánchez's writings on Plaintiff caught the attention of a local television news reporter named Mike Mason in Lee County, where Plaintiff had recently been offered a position as director of the county's Department of Transportation. After reading Dr. Sánchez's online newspaper, the supporting FOIA documents (also available for download on Dr. Sánchez online newspaper), and a handful of conversations with Dr. Sánchez, Mr. Mason put together a piece that aired on television as a Fox 4 "In Your Corner" segment during the local news broadcast in Lee County. Plaintiff contends that the news report on Fox 4 resulted in him losing the at-will position that the Lee County local government had previously offered.

On July 8, 2011, shortly after Plaintiff's job offer was rescinded, Dr. Sánchez drafted and published an article entitled "Perennial Pursuit of Justice" on his online newspaper, in which he opined about the importance of documenting injustice and the misconduct of wrongdoers by the media. Plaintiff further contends that the "Perennial Pursuit of Justice" article comprises material that is defamatory.

Finally, Plaintiff has obtained a copy of a private email sent by Dr. Sánchez on August 19, 2011, notifying a number of individuals that Fox 4 in Lee County would be airing a follow-up piece concerning Plaintiff. Again, Plaintiff contends that the substance of the email is defamatory, claiming that Sánchez has damaged his reputation by sending the email.

In response to Plaintiff's complaint, Dr. Sánchez pointed out to the Court that Plaintiff's reliance on where Defendant maintains a residence for purposes of venue is improper for defamation claims, providing an affidavit of facts showing Collier County does not satisfy Florida's venue statute. Plaintiff took issue with Dr. Sánchez's evidence of venue, asserting that he had impermissibly put forth hearsay evidence concerning the location of first publication for the "Perennial Pursuit of Justice" article. In denying Dr. Sánchez's motion to transfer this action to a permissible venue, the Court adopted an Order drafted by Plaintiff, which affirmatively stated that "venue is proper in Collier County" – without any discussion of Florida's special venue statute for defamation actions.

In addition to his previously filed affidavit concerning the proper venue, Dr. Sánchez has, since this Court's oral ruling on his motion to transfer venue, compiled and submitted further sworn testimony and documentary evidence that conclusively establishes maintenance of venue in Collier County does not conform to the statutory standards for a defamation action. In response to Plaintiff's claims of hearsay, Dr. Sánchez has provided certified records of his regularly conducted activities, which overcome Plaintiff's objection. Now, based upon a more complete proffer, Dr. Sánchez moves this Court to reconsider its prior ruling, which cannot be supported on this record.

1. Legal Standards
   

   1. Motions for Reconsideration
      

An interlocutory order may be modified or vacated by the trial court any time before final judgment unless the order has been affirmed by an appellate court during the proceeding. Alabama Hotel Co. v. J.L. Mott Iron Works, 98 So. 825 (Fla. 1924). A motion for reconsideration is the proper remedy to change an interlocutory order. Henry P. Trawick, Jr., Trawick's Florida Practice and Procedure § 15:4 (2011 ed.). The motion should detail the reasons why the movant believes the order to be erroneous. Fla. R. Civ. P. 1.100(b).

1. Transfer of Venue
   

Objections to venue may be made by motion to transfer the action before the answer is served or by affirmative defense in the answer. Fla. R. Civ. P. 1.140(b). "It is plaintiff's prerogative to initially select the venue in accordance with the applicable venue statute; the burden of pleading and proving that venue is improper is upon the defendant." Eth-Wha, Inc. v. Blankenship, 483 So. 2d 872, 873 (Fla. 2d DCA 1986); see also Sheffield Steel Prods. v. Powell Bros., 385 So.2d 161 (Fla. 5th DCA 1980); Perry Building Systems v. Hayes & Bates, Inc., 361 So.2d 443 (Fla. 1st DCA 1978); Velez v. Mell D. Leonard & Associates, 338 So.2d 896 (Fla. 2d DCA 1976). The defense must negate all possibilities that the venue laid is correct and give sufficient facts so the plaintiff can determine the proper venue. B & F of Clearwater, Inc. v. Wesley Constr. Co., 237 So. 2d 790, 792 (Fla. 2d DCA 1970) (citing Permenter v. Bank of Green Cove Springs, 136 So.2d 377, 379 (Fla. 1st DCA 1962)). If conflicting facts are presented by the parties concerning the whether the proper venue has been alleged by plaintiff, the issue should be tried at an evidentiary hearing. Permenter, 136 So.2d at 379-80.

Venue is governed by general statutes, e.g., Fla. Stat. § 47.011, except when the Florida Legislature has provided otherwise. Special venue statutes control in the situations to which they are applicable. See City of St. Petersburg v. Earle, 109 So.2d 388 (2d DCA 1959).

1. Florida's Statutory Venue Choices for Defamation Actions
   

Florida has a specific statute that governs choice of venue in defamation actions. See Fla. Stat. § 770.05 (2011) ("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 . . . ."). This statute limits actions arising out of a single publication or single cause of action to four choices of venue: (1) where the allegedly defamatory 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). None of the foregoing four choices include where the defendant maintains a residence, or where he claims a homestead property tax exemption.

1. Proffer of Business Records Under Fla. Stat. § 90.803(6)
   

Plaintiff took issue with Dr. Sánchez's testimony that his article, "Perennial Pursuit of Justice," was first read in California, claiming that his testimony concerning the IP address that first accessed the article was double hearsay. Hearsay is defined by Florida statute as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Fla. Stat. § 90.801 (2011). Hearsay is inadmissible, unless there exists an exception to the general rule that permits it. Id. § 90.802.

Records of a regularly conducted activity can be admitted as evidence, even where they constitute out-of-court statements. Id. § 90.803(6). In order to rely upon them as evidence, the party seeking to admit records of a regularly conduct activity must lay the proper foundation to authenticate such records. Id. § 90.902(11). Authentication of business records can be achieved by certification of the records' custodian that the proffered records: (1) were made at or near the time of the occurrence of the matters set forth by, or from information transmitted by, a person having knowledge of those matters; (2) were kept in the course of the regularly conducted activity; and (3) were made as a regular practice in the course of the regularly conducted activity. Id.

Dr. Sánchez has submitted certified business records into the record in this action that show the IP addresses of each internet user who read his online newspaper on the date his article, "Perennial Pursuit of Justice," appeared on the newspaper's front page. Further, Dr. Sánchez has requested that this Court take judicial notice of the fact that one IP address in particular, 64.255.180.84, corresponds to an internet user located in Mountain View, California.

1. Verified Facts
   

By his signature below, Dr. Mario Sánchez verifies the accuracy of the following relevant facts to the best of his knowledge, which facts are consistent with the evidence that is currently in the record, and Plaintiff has not refuted the same with any evidence:

1. Dr. Sánchez does not have an office for conducting the business of his online newspaper in Collier County.
   
2. Dr. Sánchez does have an office for conducting the business of his online newspaper in Miami-Dade County.
   
3. Dr. Sánchez does not keep an office for distribution of his online newspaper in Collier County.
   
4. Dr. Sánchez does keep an office for distribution of his online newspaper in Miami-Dade County.
   
5. Dr. Sánchez first made all statements concerning Plaintiff to Mike Mason by phone.
   
6. During the phone conversations between Dr. Sánchez and Mike Mason concerning Plaintiff, Dr. Sánchez was in Miami-Dade County, Florida.
   
7. During the phone conversations between Dr. Sánchez and Mike Mason concerning Plaintiff, Mike Mason was in Lee County, Florida.
   
8. Statements made by Dr. Sánchez to Mike Mason concerning Plaintiff were not first made in Collier County, Florida.
   
9. The article, "Perennial Pursuit of Justice," which is cited in Plaintiff's complaint, was first published at 3:09 p.m. on July 8, 2011, via Dr. Sánchez's online newspaper located at http://marcoislandblog.blogspot.com.
   
10. Internet users regularly read Dr. Sánchez's online newspaper.
    
11. Dr. Sánchez's online newspaper is regularly sent electronically to internet users who request it.
    
12. Internet users request a copy of Dr. Sánchez's online newspaper by submitting the uniform resource locator ("URL") http://marcoislandblog.blogspot.com, via their web browser, to their internet service provider.
    
13. Requests submitted by internet users for delivery of Dr. Sánchez's online newspaper are received by the internet server where the online newspaper is stored.
    
14. The internet server that stores Dr. Sánchez's online newspaper is located in Santa Clara County, California.
    
15. The internet server that stores Dr. Sánchez's online newspaper is not located in Collier County, Florida.
    
16. Requests received from internet users seeking delivery of Dr. Sánchez's online newspaper include the IP address where each requesting user is located, which makes possible delivery of the online newspaper to the user's web browser. As such, IP addresses can be considered the digital equivalent of a shipping address written on an order form requesting delivery of a purchased good.
    
17. Dr. Sánchez's online newspaper is regularly sent via the Internet to the IP addresses provided by each user who requests a copy.
    
18. Dr. Sánchez's has knowledge that his online newspaper is sent to the IP address provided by each user who requests a copy.
    
19. Transmission of Dr. Sánchez's online newspaper to requesting users is a regularly conducted activity.
    
20. Dr. Sánchez records the IP addresses to which his online newspaper is sent at the time that each copy is transmitted.
    
21. Dr. Sánchez records each IP address to which his online newspaper is sent in the course of transmitting his online newspaper to each user who request such transmission.
    
22. It is Dr. Sánchez's regular practice to record the IP addresses to which his online newspaper is sent.
    
23. The first request after publication of "Perennial Pursuit of Justice" for delivery of Dr. Sánchez's online newspaper was made at 6:00 p.m. on July 8, 2011.
    
24. The article, "Perennial Pursuit of Justice," was first read at 6:00 p.m. on July 8, 2011.
    
25. The user who first request for Dr. Sánchez's article, "Perennial Pursuit of Justice," provided an IP address located in Mountain View, California, as the place for delivery.
    
26. Dr. Sánchez's article, "Perennial Pursuit of Justice," was first read in Mountain View, California.
    
27. Dr. Sánchez's article, "Perennial Pursuit of Justice," was not first read in Collier County, Florida.
    
28. Dr. Sánchez's August 19th email, which is cited in Plaintiff's complaint, was not drafted in in Collier County, Florida.
    
29. Dr. Sánchez's August 19th email was drafted in Miami-Dade County, Florida.
    
30. Dr. Sánchez's August 19th email was not sent from Collier County, Florida.
    
31. Dr. Sánchez's August 19th email was sent from Miami-Dade County, Florida.
    
32. Dr. Sánchez's August 19th email was first read at or before 11:15 a.m.
    
33. Dr. Sánchez's August 19th email was not first read in Collier County, Florida.
    

34. Argument
    

Plaintiff has chosen the wrong venue for his claims and has attempted to co-opt this Court in his error. Plaintiff has proceeded under Florida's general venue statute, Section 47.011, for a defamation action, which is undeniably improper. If this were a contract dispute, or a negligence case, Dr. Sánchez does not dispute that the choice of venue based on where Defendant maintains a residence would be appropriate. See Fla. Stat. § 47.011 (2011) ("Actions shall be brought only in the county where the defendant resides, where the cause of action accrued, or where the property in litigation is located.").

Where Dr. Sánchez claims a homestead may be relevant to this Court's jurisdiction over him, or the subject matter of this action, neither of which has been disputed – jurisdiction is the power to determine a cause of action. However, not every place where jurisdiction exists over a defendant can serve as the proper venue for claims against him. Venue, unlike jurisdiction, is the geographical place where the cause of action can be determined. McGowin v. McGowin, 165 So. 274 (Fla. 1936); Deeb, Inc. v. Board of Public Instruction of Columbia County, 196 So.2d 22 (Fla. 2d DCA 1967). In defamation actions, residence of the defendant is irrelevant to the question of which geographical place is proper for determining the cause of action. See Fla. Stat. § 770.05 (2011) ("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 . . . .").

As interpreted by the Florida Supreme Court, the "single publication rule" limits actions for defamation. In particular, Plaintiff can only maintain an action against Dr. Sánchez for an allegedly defamatory publication in the county where the defamation was completed. In practical terms, this means that Plaintiff has only four options for venue with respect to each alleged defamation: (1) where the allegedly defamatory 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).

Dr. Sánchez has now submitted record evidence that negatives Collier County as the venue for all defamations alleged by Plaintiff:

Alleged Defamation	Statutory Venue Choice	County Established on Record
Statements to Fox 4 news reporter	(1) where the allegedly defamatory material was first published;	Lee County, Florida
	(2) the county or counties where the publisher has an office used for conducting business;	Miami-Dade County, Florida
	(3) where the publisher keeps an office for distribution; or	Miami-Dade County, Florida
	(4) where the cause of action came into existence.	Lee County, Florida
"Perennial Pursuit of Justice" article	(1) where the allegedly defamatory material was first published;	Santa Clara County, California
	(2) the county or counties where the publisher has an office used for conducting business;	Miami-Dade, Florida
	(3) where the publisher keeps an office for distribution; or	Miami-Dade, Florida
	(4) where the cause of action came into existence.	Miami-Dade, Florida
August 19th Email	(1) where the allegedly defamatory material was first published;	Transylvania County, North Carolina
	(2) the county or counties where the publisher has an office used for conducting business;	Miami-Dade, Florida
	(3) where the publisher keeps an office for distribution; or	Miami-Dade, Florida
	(4) where the cause of action came into existence.	Miami-Dade, Florida

 

It bears mentioning that Plaintiff's non-defamation claims – Count III (Tortious Interference with a Business Relationship) and Count IV (Injunctive Relief) – cannot be maintained on their own, as both stand or fall on the validity of Plaintiff's defamation claims, which are not properly brought in this venue. See Ovadia v. Bloom, 756 So. 2d 137, 141 (Fla. 3d DCA 2000) ("[T]he single publication/single action rule does not permit multiple actions to be maintained when they arise from the same publication upon which a failed defamation claim is based."); and Orlando Sports Stadium, Inc. v. Sentinel Star Co., 316 So. 2d 607, 609 (Fla. 4th DCA 1975) (same).

1. Conclusion
   

Having provided evidence that shows that Collier County, Florida, does not satisfy any of the available choices for Plaintiff's claims, Dr. Sánchez has now shifted the burden onto Plaintiff to present evidence to the contrary. Should Plaintiff succeed in providing contradictory evidence, this matter should be properly resolved by evidentiary hearing.

WHEREFORE, Defendant MARIO SÁNCHEZ respectfully moves for reconsideration of the Court's Order executed on December 20, 2011, which found in pertinent part that "venue is proper in Collier County, Florida."