Zimmerman v. Buttigieg

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

GEORGE ZIMMERMAN,

Plaintiff,

v. Case No: 8:20-cv-1077-CEH-CPT

PETE BUTTIGIEG and ELIZABETH

WARREN,

Defendants.

___________________________________/

ORDER

This matter comes before the Court upon the Defendants' Motion to Dismiss

Plaintiff’s Complaint [Doc. 17], Plaintiff’s Opposition [Doc. 20], and Defendants’

Reply [Doc. 27]. According to Defendants, the Court lacks personal jurisdiction in this

case and Plaintiff fails to state a claim on which relief can be granted. [Doc. 17].

Having considered the motion and being fully advised in the premises, the Court will

grant, without prejudice, Defendants' Motion to Dismiss Plaintiff’s Complaint.

I. BACKGROUND1

On February 26, 2012, twenty-nine year-old George Zimmerman discharged a

single shot to stop seventeen year-old Trayvon Martin from assaulting him, following

an incident between the two at the Retreat at Twin Lakes townhome community in

1 The following statement of facts is derived from Plaintiff’s Complaint [Doc. 1], the

allegations of which the Court must accept as true in ruling on the instant Motion to Dismiss.

See Linder v. Portocarrero, 963 F.2d 332, 334 (11th Cir. 1992); Quality Foods de Centro Am., S.A.

v. Latin Am. Agribusiness Dev. Corp. S.A., 711 F. 2d 989, 994 (11th Cir. 1983).

Sanford, Florida where Zimmerman lived and was a member of the neighborhood

watch. [Doc. 1-1 9§ 10, 11, 14]. Zimmerman was charged with second-degree murder

and acquitted by a jury on July 13, 2013. Id. □□ 16, 17. He and his family have been

the target of death threats ever since. Jd. § 17. Due to the massive publicity after the

shooting, the nationwide protests demanding his arrest without cause, the subsequent

2013 trial and his acquittal of all charges, and the acts of protest and violence that

continue to this day in the name of Trayvon Martin, Zimmerman alleges that hisname

is 100% synonymous with Trayvon Martin and the incident that resulted in Martin’s

death. Jd. § 21.

The actions giving rise to this lawsuit occurred on February 5, 2020. Id. J 22,

23. That day, defendant Pete Buttigieg made the following tweet:

€ Pete Buttigieg @ @PeteButtigieg - Feb 5

. Trayvon Martin would have been 25 today.

How many 25th birthdays have been stolen from us by white supremacy, gun

violence, prejudice, and fear?

#BlackLivesMatter &@

© 13.3K Tl) 5.6K QC) 42.1K it,

Id. 8, 22; p. 27. Buttigieg is an American politician and was a 2020 candidate for

the Democratic Party nomination for President of the United States of America. Id. J

5. He allegedly had 1,600,000 followers on the social media platform, Twitter, and

tweeted multiple times per day in order to build political support—among other things.

Id. Buttigieg’s tweet implied that Trayvon Martin’s death was a result of “white

supremacy, gun violence, prejudice, and fear,” all of which the public would understand as

referring only to George Zimmerman, who is known to have caused Trayvon Martin’s

death by shooting him, even though Buttigieg knew that the 2013 trial jury acquitted

Zimmerman of all charges. Id. ¶ 22. This disparaged Zimmerman and further subjected

him to hate. Id. In only three days, the tweet received 42,000 likes, 13,300 replies, and

6,600 retweets as well as national media coverage, including in the state of Florida—

which is the third largest state and crucial to win the 2020 presidential Democratic

primary and general presidential election. Id. ¶¶ 5, 8.

Elizabeth Warren, a nationally known public figure and 2020 candidate for the

Democratic party nomination for President of the United States, also tweeted about

Trayvon Martin that day. Id. ¶¶ 6, 9, 23. She tweeted the following statement to her

3,600,000 followers on Twitter:

Elizabeth Warren &

@ewarren

My heart goes out to @SybrinaFulton and Trayvon's

family and friends. He should still be with us today.

We need to end gun violence and racism. And we need

to build a world where all of our children—especially

young Black boys—can grow up safe and free.

8 Frederick Joseph @ @FredTJoseph - Feb 5

Today would have been Trayvon Martin's 25th birthday.

His memory should always have a place in our hearts, and his tragedy should always

have a place in our work. #HappyBirthdayTrayvon

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8:13 PM - Feb 5, 2020 - Twitter Web App

1K Retweets 7.4K Likes

Id. 99, 23; p. 29. In only three days, the tweet received 7,300 likes and 1,000 retweets,

as well as national media coverage, including in the state of Florida. Id. { 9. Like

Buttigieg, Warren was very knowledgeable of the facts surrounding the 2012 incident

in which Trayvon Martin died and that Zimmerman’s name was synonymous with

that incident. Jd. § 23. The tweet was defamatory because it characterized Martin’s

death as the result of gun violence, even though Warren was aware that Zimmerman’s

act was one of self-defense and that he was acquitted of all charges based on the

evidence. Id.

Both Buttigieg and Warren, in sending the respective tweets, acted with actual

malice towards Zimmerman, because—among other things—they knew of his

acquittal. Id. ¶¶ 25-33. According to Zimmerman, they had a preconceived plan to

discredit and destroy him as part of their political agenda to garner votes in the black

community before the 2020 election. Id. ¶ 33. In fact, Buttigieg had expressed concern

over the well-documented lack of electoral support for his candidacy among African

American voters in polling and Warren also lacked the support of African American

voters, which she was seeking. Id. ¶¶ 1, 5-6.

Zimmerman filed this action against Buttigieg and Warren2 asserting three

claims—general defamation, defamation by implication, and defamation per se—

against both. Id. Defendants, moving jointly, seek dismissal of the complaint for lack

of personal jurisdiction and for failure to state a claim. [Doc. 17]. Among other things,

they contend that the tweets contain no statement against Zimmerman personally, are

pure opinion and that Zimmerman has not plausibly alleged malice. Id. at p. 3.

Zimmerman, however, argues that personal jurisdiction exists because the tweets were

accessible in Florida. [Doc. 20 at p. 3]. Additionally, he argues that it is clear that the

tweets were of and concerning him as it is universally known that he shot Trayvon

2 The action was filed in the Circuit Court of the Tenth Judicial Circuit in and for Polk County,

Florida, but removed to this Court by Defendants pursuant to 28 U.S.C. § 1332(a). [Doc. 1].

Martin. Id. at p. 2. In reply, Buttigieg and Warren argue that the accessibility of tweets

in Florida does not satisfy the long-arm statute nor comport with the requirements of

due process. [Doc. 27 at p. 2]. They also raise various arguments as to the sufficiency

of the allegations to plausibly state a claim for relief, including that the tweets do not

concern Zimmerman’s role in Martin’s death. Id. at p. 4.

II. LEGAL STANDARD

The Federal Rules of Civil Procedure require a complaint to include, among

other things, “a short and plain statement of the claim showing that the pleader is

entitled to relief.” Fed. R. Civ. P. 8(a)(2). Similarly, “[a] party must state its claims or

defenses in numbered paragraphs, each limited as far as practicable to a single set of

circumstances.” Fed. R. Civ. P. 10(b). Complaints that violate either of these rules are

often referred to as “shotgun pleadings.” Weiland v. Palm Beach Cnty. Sheriff’s Office, 792

F.3d 1313, 1320 (11th Cir. 2015). When faced with a shotgun pleading, a court should

strike the complaint and instruct the plaintiff to file a more definite statement. See Davis

v. Coca-Cola Bottling Co. Consol., 516 F.3d 955, 984 (11th Cir. 2008) (collecting cases),

abrogated on other grounds by Ashcroft v. Iqbal, 556 U.S. 662 (2009).

Federal Rule of Civil Procedure 12(b) sets forth additional grounds on which a

court may dismiss an action. Pursuant to that rule, a court may dismiss an action if,

among other reasons, the Court lacks personal jurisdiction over the defendant(s) or if

the plaintiff fails to state a claim upon which relief can be granted. Fed. R. Civ. P.

12(b)(2), (6).

Personal jurisdiction “concern[s] the extent of a court's power over the parties

and the fairness of requiring a party to defend itself in a foreign forum.” Delong Equip.

Co. v. Washington Mills Abrasive Co., 840 F.2d 843, 857 (11th Cir. 1988). It “represents

a restriction on judicial power ... as a matter of individual liberty.” Ruhrgas AG v.

Marathon Oil Co., 526 U.S. 574, 584, 119 S. Ct. 1563, 1570, 143 L. Ed. 2d 760 (1999)

(quoting Insurance Corp. of Ireland v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702,

(1982)). “In the context of a motion to dismiss for lack of personal jurisdiction in

which no evidentiary hearing is held, the plaintiff bears the burden of establishing a

prima facie case of jurisdiction over the movant, non-resident defendant.” Morris v.

SSE, Inc., 843 F.2d 489, 492 (11th Cir. 1988). A two-step analysis is required; the court

must first determine whether the exercise of jurisdiction is appropriate under the forum

state's long-arm statute and then examine whether the exercise of personal jurisdiction

over the defendant would violate the Due Process Clause of the Fourteenth

Amendment to the United States Constitution. Mut. Serv. Ins. Co. v. Frit Indus., Inc.,

358 F.3d 1312, 1319 (11th Cir. 2004). A plaintiff seeking to subject a nonresident

defendant to jurisdiction of the court through the long-arm statute must do more than

allege facts that show a possibility of jurisdiction.” Lawson Cattle & Equip., Inc. v. Pasture

Renovators LLC, 139 F. App'x 140, 142 (11th Cir. 2005) (quoting Jet Charter Serv., Inc.

v. Koeck, 907 F.2d 1110, 1112 (11th Cir.1990)). However, a defendant contesting the

complaint’s allegations concerning jurisdiction must present affidavits in support of

his position. Id. (quoting Acquadro v. Bergeron, 851 So.2d 665, 671 (Fla.2003)). “The

district court must construe the allegations in the complaint as true, to the extent they

are uncontroverted by defendant's affidavits or deposition testimony.” Morris, 843 F.2d

at 492.

On a motion to dismiss for failure to state a claim, the allegations in the

complaint must be accepted as true and construed in the light most favorable to the

plaintiff. Michel v. NYP Holdings, Inc., 816 F.3d 686, 694 (11th Cir. 2016). It is well

established that “[a] complaint must not be dismissed unless it is shown that plaintiff

can prove no set of facts in support of this claim, which would entitle him to relief.”

Jackam v. Hosp. Corp. of Am. Mideast, 800 F.2d 1577, 1579 (11th Cir. 1986). To survive

a motion to dismiss under Rule 12(b)(6), a pleading must include a “short and plain

statement of the claim showing that the pleader is entitled to relief.” Ashcroft v. Iqbal,

556 U.S. 662, 677–78 (2009) (internal quotation marks omitted) (quoting Fed. R. Civ.

P. 8(a)(2)). Labels, conclusions and formulaic recitations of the elements of a cause of

action are not sufficient. Id. at 678 (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544,

555 (2007)). Furthermore, mere naked assertions are not sufficient. Id. A complaint

must contain sufficient factual matter, which, if accepted as true, would “state a claim

to relief that is plausible on its face.” Id. (quoting Twombly, 550 U.S. at 570). “A claim

has facial plausibility when the plaintiff pleads factual content that allows the court to

draw the reasonable inference that the defendant is liable for the misconduct alleged.”

Id. (citation omitted). The Court, however, is not bound to accept as true a legal

conclusion stated as a “factual allegation” in the complaint. Id.

In ruling on a motion to dismiss, “[a] court is generally limited to reviewing

what is within the four corners of the complaint.” Austin v. Modern Woodman of Am.,

275 F. App'x 925, 926 (11th Cir. 2008) (quoting Bickley v. Caremark RX, Inc., 461 F.3d

1325, 1329 n.7 (11th Cir.2006)). This includes attachments or exhibits provided with

the complaint. See Gill as Next Friend of K.C.R. v. Judd, 941 F.3d 504, 511 (11th Cir.

2019) (“The Civil Rules provide that an attachment to a complaint generally becomes

“part of the pleading for all purposes,” Fed. R. Civ. P. 10(c), including for ruling on

a motion to dismiss.”); Hoefling v. City of Miami, 811 F.3d 1271, 1277 (11th Cir. 2016)

(noting that attached exhibits to a complaint can be considered on a motion to

dismiss). “[W]hen exhibits attached to a complaint ‘contradict the general and

conclusory allegations of the pleading, the exhibits govern.’ ” Gill, 941 F.3d at 514. A

document outside the four corners of the complaint may still be considered if it is

central to the plaintiff's claims and is undisputed in terms of authenticity. FindWhat

Inv'r Grp. v. FindWhat.com, 658 F.3d 1282, 1297 n.15 (11th Cir. 2011) (citing Maxcess,

Inc. v. Lucent Techs., Inc., 433 F.3d 1337, 1340 n. 3 (11th Cir.2005)).

III. DISCUSSION

Zimmerman alleges claims for defamation generally, defamation by

implication, and defamation per se. Defendants contend that they are not subject to the

jurisdiction of Florida courts. They also assert various grounds on which the complaint

should be dismissed with prejudice, for failing to state a claim on which relief can be

granted. “As a general rule, courts should address issues relating to personal

jurisdiction before reaching the merits of a plaintiff's claims.” Republic of Panama v.

BCCI Holdings (Luxembourg) S.A., 119 F.3d 935, 940 (11th Cir. 1997); Oriental Imports

& Exports, Inc. v. Maduro & Curiel's Bank, N.V., 701 F.2d 889, 890 (11th Cir. 1983)

(“Since the district court was without in personam jurisdiction, we do not reach

the merits of the negligence issue or the cross-appeal.”). Before the Court addresses

these issues raised in the motion to dismiss, it will address, sua sponte, Zimmerman’s

failure to comply with Rules 8(a)(2) and 10(b) of the Federal Rules of Civil Procedure,

which transforms the complaint into a shotgun pleading and subjects it to dismissal.

a. Shotgun Pleading

The Eleventh Circuit has identified four general types of shotgun pleadings.

Weiland, 792 F.3d at 1322–23. They include: “(1) those in which “each count adopts

the allegations of all preceding counts;” (2) those that do not re-allege all preceding

counts but are “replete with conclusory, vague, and immaterial facts not obviously

connected to any particular cause of action”; (3) those that do not separate each cause

of action or claim for relief into a different count; and (4) those that

assert multiple claims against multiple defendants without specifying which applies to

which.” Yeyille v. Miami Dade Cty. Pub. Sch., 643 F. App'x 882, 884 (11th Cir. 2016)

(citing Weiland, 792 F.3d at 1321–23). Ultimately, “[t]he unifying characteristic of all

types of shotgun pleadings is that they fail to one degree or another, and in one way

or another, to give the defendants adequate notice of the claims against them and the

grounds upon which each claim rests.” Weiland, 792 F.3d at 1323; see also Lampkin-

Asam v. Volusia Cnty. Sch. Bd., 261 F. App’x 274, 277 (11th Cir. 2008) (“A complaint

that fails to articulate claims with sufficient clarity to allow the defendant to frame a

responsive pleading constitutes a ‘shotgun pleading.’”).

The complaint here is a shotgun pleading as it fails to separate into a different

count each cause of action or claim for relief against each defendant. Based on the

facts alleged, Buttigieg and Warren tweeted from their individual twitter accounts. In

addition, while the tweets both commemorate Trayvon Martin’s birthday and

addressed societal issues surrounding his death, they are not the same. Nevertheless,

Zimmerman has asserted each count against both defendants. In doing so, the

complaint lumps all allegations against each defendant together. This is an

unacceptable form of establishing a claim for relief. Additionally, Rule 10(b) mandates

that “each claim founded on a separate transaction or occurrence ... be stated in a

separate count ....” Fed. R. Civ. P. 10(b). The Court will therefore dismiss the

complaint as a shotgun pleading.3

b. Personal Jurisdiction

Zimmerman has also failed to establish personal jurisdiction over Buttigieg and

Warren. In assessing personal jurisdiction, the Court first considers

whether personal jurisdiction exists over a nonresident defendant under Florida's

long-arm statute, and, if so, whether that exercise of jurisdiction would violate the Due

Process Clause of the Fourteenth Amendment to the U.S. Constitution. Louis Vuitton

3 The Court also questions whether these defendants should even be joined in the same

lawsuit as there is no indication that the tweets arose out of the same transaction or

occurrence. It is too early to determine if the questions of law or fact will be common to

both defendants. See Rule 20, Fed. R. Civ. P.

Malletier, S.A. v. Mosseri, 736 F.3d 1339, 1350 (11th Cir. 2013). “Only if both prongs of

the analysis are satisfied may a federal or state court exercise personal jurisdiction over

a nonresident defendant.” Madara v. Hall, 916 F.2d 1510, 1514 (11th Cir. 1990).

i. Long-arm Jurisdiction

As to the reach of Florida’s long-arm statute, it is well established that federal

courts are required to construe it as would the Florida Supreme Court as it involves a

question of Florida law. Id. The Eleventh Circuit has explained that:

A defendant can be subject to personal jurisdiction under

Florida's long-arm statute in two ways: first, section

48.193(1)(a) lists acts that subject a defendant

to specific personal jurisdiction—that is, jurisdiction over

suits that arise out of or relate to a defendant's contacts with

Florida, Fla. Stat. § 48.193(1)(a); and second, section

48.193(2) provides that Florida courts may

exercise general personal jurisdiction—that is, jurisdiction

over any claims against a defendant, whether or not they

involve the defendant's activities in Florida—if the

defendant engages in “substantial and not isolated activity”

in Florida, id. § 48.193(2).

Carmouche v. Tamborlee Mgmt., Inc., 789 F.3d 1201, 1203–04 (11th Cir. 2015).

“[S]pecific personal jurisdiction authorizes jurisdiction over causes of action arising

from or related to the defendant's actions within Florida and concerns a nonresident

defendant's contacts with Florida only as those contacts related to the plaintiff's cause

of action.” Louis Vuitton, 736 F.3d at 1352. General jurisdiction, on the other hand,

exists when a defendant “is engaged in substantial and not isolated activity within this

state ... whether or not the claim arises from that activity.” Id. (quoting Fla. Stat. §

48.193(2)).

ii. Due Process

If long-arm jurisdiction exists, the Court must then consider whether the

exercise of jurisdiction would offend “the Due Process Clause of the Fourteenth

Amendment to the United States Constitution, which requires that the defendant have

minimum contacts with the forum state and that the exercise of jurisdiction over the

defendant does not offend ‘traditional notions of fair play and substantial justice.’ ”

Horizon Aggressive Growth, L.P. v. Rothstein-Kass, P.A., 421 F.3d 1162, 1166 (11th Cir.

2005) (quoting Int'l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed.

95 (1945)); Mut. Serv. Ins. Co. v. Frit Indus., Inc., 358 F.3d 1312, 1319 (11th Cir. 2004)

(same). “The Due Process Clause of the United States Constitution protects an

individual's liberty interest in not being subject to the binding judgments of a forum

with which he has established no meaningful contacts, ties, or relations.” Thomas v.

Brown, 504 F. App'x 845, 848 (11th Cir. 2013) (quotation omitted).

Where a forum seeks to assert specific personal jurisdiction over a nonresident

defendant, due process requires the defendant have “fair warning” that a particular

activity may subject him to the jurisdiction of a foreign sovereign. Madara, 916 F.2d at

1516. This requirement is satisfied if the defendant has “purposefully directed” his

activities at the forum and the litigation results from alleged injuries that “arise out of

or relate to” those activities. Id. (citing cases). Once this has been established, the court

considers various factors in determining whether the exercise of jurisdiction would

comport with “fair play and substantial justice.” Id. at 1517 (quoting Burger King Corp.

v. Rudzewicz, 471 U.S. 462, 476 (1985)). These factors include:

the burden on the defendant in defending the lawsuit, the

forum state's interest in adjudicating the dispute, the

plaintiff's interest in obtaining convenient and effective

relief, the interstate judicial system's interest in obtaining

the most efficient resolution of controversies and the shared

interest of the states in furthering fundamental substantive

social policies.

Id. (citing Burger King, 471 U.S. at 477).

iii. Analysis

Defendants argue that neither of them has a sufficient personal connection to

the State of Florida as the posting of defamatory material on a website, by itself, does

not constitute the commission of a tortious act within Florida under that state’s law.

[Doc. 17 at p. 8]. Zimmerman contends that the long-arm statute has been satisfied as

the tweets were widely covered in the national media, including in Florida, and

accessed in Florida. [Doc. 20 at p. 3]. In response, Defendants argue that Zimmerman

has not alleged that the tweets were accessed by a third party in Florida. [Doc. 27 at

p. 2 n.1].

“Section 48.193(1)(a)(2) provides that a nonresident defendant is subject to

personal jurisdiction in Florida ‘for any cause of action arising from ... [c]omitting a tortious

act within [Florida].’ ” Louis Vuitton, 736 F.3d at 1353 (quoting Fla. Stat. §

48.193(1)(a)(2)). “[T]he alleged tortfeasor's ‘physical presence [in Florida] is not

required.’ ” Horizon, 421 F.3d at 1168 (quoting Wendt v. Horowitz, 822 So.2d 1252,

1260 (Fla.2002)). Jurisdiction under the long–arm statute may be triggered where there

are allegations about an out-of-state defendant's electronic or written communications

into Florida and the cause of action arises from those communications. Id. (citing

Wendt, 822 So.2d at 1260 and Acquadro v. Bergeron, 851 So.2d 665, 671 (Fla.2003)).

The parties have both discussed the Florida Supreme Court’s ruling on a very

similar case, Internet Sols. Corp. v. Marshall, 39 So. 3d 1201 (Fla. 2010). In that case,

defendant, operator of a noncommercial website—on which she posts information

about consumer-related issues—made a post about one of the websites operated by

plaintiff employment recruiting and internet advertising company. Id. at 1203. The

post included a listing of affiliates of plaintiff and listed Florida addresses. Id.

Additionally, exhibits attached to the complaint indicated that several of the

comments posted by third parties appeared to be from Florida. Id. Plaintiff brought

suit against Defendant in federal court in Florida, and Defendant—a resident of the

State of Washington—moved to dismiss for lack of personal jurisdiction. Id. at 1204.

The court granted the motion, concluding that “there is no evidence that Marshall

specifically targeted Florida residents.” Id. at 1205. The dismissal was appealed, and

the Eleventh Circuit certified the following question to the Florida Supreme Court:

whether a nonresident commits a tortious act within Florida

for purposes of the long-arm statute when he or she makes

allegedly defamatory statements about a company with its

principal place of business in Florida by posting those

statements on a website, where the website posts containing

the statements are accessible and accessed in Florida

Id. at 1206.

The court answered in the affirmative, concluding that “allegedly defamatory

material about a Florida resident placed on the Web and accessible in Florida

constitutes an ‘electronic communication into Florida’ when the material is accessed

(or ‘published’) in Florida.” Id. In doing so, the Court pointed out that the question of

whether a posting on a website constituted an electronic communication into Florida

was a more difficult one than presented by telephone calls, e-mails, chat rooms, and

facsimiles—which are all directed by the alleged tortfeasor into a specific forum. Id. at

1210. The Court reasoned further:

In the context of the World Wide Web, given its

pervasiveness, an alleged tortfeasor who posts allegedly

defamatory material on a website has intentionally made

the material almost instantly available everywhere the

material is accessible. By posting allegedly defamatory

material on the Web about a Florida resident, the poster has

directed the communication about a Florida resident to

readers worldwide, including potential readers within

Florida. When the posting is then accessed by a third party

in Florida, the material has been “published” in Florida and

the poster has communicated the material “into” Florida,

thereby committing the tortious act of defamation within

Florida.

Id. at 1214–15. Thus, the court explained, it was necessary to review the complaint to

determine whether it stated a cause of action for libel, including publication of the

statement in Florida. Id. at 1214.

The Eleventh Circuit has since followed this reasoning, though in an unreported

decision, in finding that personal jurisdiction did not exist based on the plaintiff’s

allegations as to defamation. In that case, Catalyst Pharm., Inc. v. Fullerton, 748 F. App'x

944 (11th Cir. 2018), the “amended complaint alleged that Fullerton ‘published ...

defamatory Statements in Florida to Catalyst and third parties in Florida via [the

Message Board] dedicated to discussions regarding Catalyst,’ ” and that “these

Statements were accessed by Catalyst and others in Florida.’ ” Id. at 947. The Eleventh

Circuit affirmed the district court’s dismissal for lack of personal jurisdiction,

reasoning that the complaint failed to make a showing on an essential element of its

case, that is, that the statements were accessed in Florida. Id. at 947. According to the

appellate court, “[w]hile the[] allegations may establish that Fullerton’s statements

were accessible in Florida, they do not point to any facts showing the statements were

accessed in Florida.” Id.

Applying the rationale of the Florida Supreme Court in Internet Sols., the Court

finds that Zimmerman has not pleaded sufficient facts to show that Defendants

committed a tortious act within Florida such that long-arm jurisdiction exists. The

complaint alleges merely that Defendants’ tweets received national media coverage,

and in particular in the state of Florida, including but not limited to Polk County.

[Doc. 11 ¶¶ 8, 9, 52, 63, 76]. There is not one allegation that either tweet was directed

to a specific person in Florida4 or accessed by a person in this forum. The mere fact

that the material was accessible in Florida is not enough to plead the publication

element of defamation, and therefore, the commission of a tortious act in this state. As

such, the claim fails at this threshold level and provides an additional basis for

4 The Court notes that Warren’s tweet is specifically directed to Trayvon Martin’s mother,

Sybrina Fulton, by use of “@SybrinaFulton,” which is in blue font and indicates she is a user

of the platform. [Doc. 1-1 at p. 29]. Additionally, “Trayvon’s family and friends” are also

referenced in the tweet. This distinguishes Warren’s Tweet from that of Buttigieg, which does

not reference any specific person or group. However, there is still no indication that Sybrina

Fulton and/or Trayvon’s family and friends were residing in Florida at the time of the tweets,

and the Court will not infer such.

dismissal, without prejudice. See Morris v. SSE, Inc., 843 F.2d 489, 496 n.11 (11th Cir.

1988) (“Dismissal for lack of personal jurisdiction is without prejudice and the

plaintiff still may sue the defendant in a forum where personal jurisdiction can be

obtained.”). Having determined that long-arm jurisdiction does not exist, the Court

need not address whether the exercise of jurisdiction would offend the Due Process

Clause of the Fourteenth Amendment to the United States Constitution.

c. Stating a cause of action

Even if the Court had personal jurisdiction over Defendants, and Zimmerman

had complied with Rules 8(a)(2) and 10(b) of the Federal Rules of Civil Procedure, the

Court finds that he has failed to state a claim against Buttigieg and Warren for

defamation. Under Florida law, defamation generally has these five elements: “(1)

publication; (2) falsity; (3) the statement was made with knowledge or reckless

disregard as to the falsity on a matter concerning a public official, or at least negligently

on a matter concerning a private person; (4) actual damages; and (5) the statement

must be defamatory.” Turner v. Wells, 879 F.3d 1254, 1262 (11th Cir. 2018) (citing Jews

For Jesus, Inc. v. Rapp, 997 So.2d 1098, 1106 (Fla. 2008)). Defamation by implication

is deemed to occur (i) where there is a juxtaposition of a series of facts so as to imply

a defamatory connection between them, or (ii) where a defamatory implication is

created by omitting facts. Id. at 1269 (quoting Rapp, 997 So. 2d at 1108; Klayman v.

City Pages, 650 F. App'x 744, 749 (11th Cir. 2016) (stating same). This form of

defamation “also requires proof of actual malice because it is subsumed within the tort

of defamation ... [so] all of the protections of defamation law ... [are] extended to

[it].” Klayman, 650 F. App'x at 749 (quotation marks omitted) (first two alterations in

original). Lastly, defamatory statements are of a per se character, if “when, ‘considered

alone without innuendo,’ they contain (i) charges that a person has committed an

infamous crime, or (ii) has contracted an infectious disease, or (iii) they carry

statements tending to subject a person to hatred, distrust, ridicule, contempt or

disgrace, or (iv) to injure a person in his trade or profession.” Adams v. News-Journal

Corp., 84 So. 2d 549, 551 (Fla. 1955); Loeb v. Geronemus, 66 So. 2d 241, 244 (Fla. 1953)

(“Only certain well-defined classes of imputation as to crime, disease, particular

unfitness for office, etc., or unchastity, have been deemed [defamatory] per se.”);

Nodar v. Galbreath, 462 So. 2d 803, 805 (Fla. 1984). “[W]ith defamation per se ‘the law

presumes malice in their utterance’ making it unnecessary to prove express malice.”

Lawnwood Med. Ctr., Inc. v. Sadow, 43 So. 3d 710, 727 (Fla. 4th DCA 2010)

(quoting Abraham v. Baldwin, 52 Fla. 151, 42 So. 591, 592 (1906)); Scott v. Busch, 907

So. 2d 662, 666 (Fla. 5th DCA 2005) (“defamation per se presumes malice”). Having

addressed the various species of defamation alleged by Zimmerman, the Court now

turns to the specific grounds for dismissal.

i. Lack of Publication

The lack of allegation that the tweets were published renders the complaint

insufficient to state a claim for defamation and subjects the complaint to dismissal.

“Because the publication of a statement is a necessary element in a defamation action,

only one who publishes can be subject to this form of tort liability.” Doe v. Am. Online,

Inc., 783 So. 2d 1010, 1017 (Fla. 2001). Publication requires that the statement be

“communicated to a third person.” Am. Airlines, Inc. v. Geddes, 960 So. 2d 830, 833

(Fla. 3d DCA 2007); Tyler v. Garris, 292 So. 2d 427, 429 (Fla. 4th DCA 1974) (‘the

defamatory matter must have been communicated to some third person in order for

same to be actionable.”). For instance, in Owner's Adjustment Bureau, Inc. v. Ott, 402 So.

2d 466, 467 (Fla. 3d DCA 1981), the court reversed a final judgment and summary

judgment on liability, finding there was “no proof of publication, a necessary predicate

to a finding of defamation and liability.” The court reasoned that there was “absolutely

no showing in the record that the persons and entity to which the copies [of the

defamatory letter] were purportedly sent ever received the letter and, it necessarily

follow[ed], no showing that they read the letter.” Id. According to the court:

Since the interest protected is that of reputation, it is

essential to tort liability for either libel or slander that the

defamation be communicated to some one other than the

person defamed. . . . It is not enough that the words are

uttered in the presence of others unless they are in fact

overheard.

Id. As this Court noted in its discussion on personal jurisdiction, the complaint does

not contain any allegation that either Buttigieg or Warren’s tweet was communicated

to a third-party. Though each tweet was accessible to millions of twitter users that

followed each defendant, just as the words uttered in the presence of others was not

enough unless overheard, it is not enough unless they were accessed by a third-party.

Again, all three counts fail to state a cause of action for this reason.

ii. Lack of specific reference to Zimmerman

Defendants argue that their tweets are not about Zimmerman, do not mention

his name at all, nor imply anything about him. [Doc. 17 at p. 13]. This argument relates

to the second element of the tort, falsity, as the false statement must be of or concerning

the plaintiff. See Lopez v. Ingram Micro, Inc., No. 95-2004-CIV-NESBITT, 1997 WL

401585, at *4 (S.D. Fla. Mar. 18, 1997) (noting that defamation in Florida requires

that the defendant publish a false statement of fact of or concerning the plaintiff); Baker

v. McDonald's Corp., 686 F. Supp. 1474, 1484 (S.D. Fla. 1987) (stating that in Florida

“the plaintiff must show that the defendant made a false statement of

fact of or concerning the plaintiff”), aff'd, 865 F.2d 1272 (11th Cir. 1988). Certainly,

this element applies to all forms of the tort.

The Court agrees that Zimmerman’s name is nowhere mentioned in either

tweet. [Doc. 1-1 pp. 27, 29]. However, it does not appear that there is a strict

requirement, in Florida, that the author of the defamatory publication specifically

identify a person by name for the statement to be actionable. The case law merely

indicates that the statement must concern a public official or a private person. See Jews

For Jesus, 997 So. 2d at 1106. In fact, defamation by implication is premised not on

direct statements. Id. at 1107-08. Certainly, a tortfeasor could juxtapose a series of facts

in such a way that a specific person is identifiable even though that person’s name has

not been used. The claim for defamation by implication in Count II is therefore not

subject to dismissal on this basis. Moreover, the Court will not impose such a

requirement, in the absence of Florida authority on the issue, as to either the claim for

general defamation in Count I or defamation by implication in Count II. Even then,

the complaint alleges generally that “[t]he name ‘George Zimmerman’ is 100%

synonymous with Trayvon Martin and the incident that resulted in the death of

Trayvon Martin.” [Doc. 1-1 ¶¶ 21, 23]. Taking this allegation as true, Zimmerman

plausibly alleges that the tweets, when considered as a whole, included an implied or

indirect reference to him due to the incident resulting in Trayvon Martin’s death. As

such, the Court disagrees that the failure to name Zimmerman in the tweets subjects

the claims to dismissal.

iii. True Statements, Questions, and Pure Opinions

Defendants’ next argument, that the tweets are true statements, questions, and

pure opinion, is a challenge to the falsity element of defamation. “True statements,

statements that are not readily capable of being proven false, and statements of pure

opinion are protected from defamation actions by the First Amendment.” Turner, 879

F.3d at 1262. Reviewing the tweets, the Court agrees that they both make truthful

statements regarding the untimely nature of Trayvon Martin’s death and the need to

end societal issues that plague this country. [Doc. 1-1 at pp. 27, 29]. However,

Zimmerman alleges that because of his role in Martin’s death, these tweets promote

the idea that he killed Trayvon Martin because of racism or white supremacy. Id. ¶¶

22, 24. He also alleges that a jury acquitted him based on evidence he was acting in

self-defense. Id. While the statements, taken alone, are true, the complaint plausibly

alleges that when taken together they could suggest what Zimmerman contends. See

Rapp, 997 So. 2d at 1106 (“literally true statements can be defamatory where they

create a false impression.”).

Moreover, construing the allegations of the complaint as true, it is not clear that

the tweets constitute pure opinion.

Under Florida law, a defendant publishes a “pure opinion”

when the defendant makes a comment or opinion based on

facts which are set forth in the publication or which are

otherwise known or available to the reader or listener as a

member of the public. From v. Tallahassee Democrat, Inc., 400

So.2d 52, 57 (Fla. Dist. Ct. App. 1981). Mixed expression

of opinion occurs when an opinion or comment is made

which is based upon facts regarding the plaintiff or his

conduct that have not been stated in the publication or

assumed to exist by the parties to the

communication. Id.; Stembridge v. Mintz, 652 So.2d 444, 446

(Fla. Dist. Ct. App. 1995).

Turner, 879 F.3d at 1262-63. “[A] speaker cannot invoke a ‘pure opinion’ defense,

[however,] if the facts underlying the opinion are false or inaccurately presented.” Deeb

v. Saati, 778 F. App'x 683, 687–88 (11th Cir. 2019).

Florida’s Second District Court of Appeal has further explained that:

In determining whether an alleged [defamatory] statement

is pure opinion, the court must construe the statement in its

totality, examining not merely a particular phrase or

sentence, but all of the words used in the publication. The

court must consider the context in which the statement was

published and accord weight to cautionary terms used by

the person publishing the statement. All of the

circumstances surrounding the publication must be

considered, including the medium by which it was

disseminated and the audience to which it was published.

Hay v. Indep. Newspapers, Inc., 450 So. 2d 293, 295 (Fla. 2d DCA 1984). In this case,

Zimmerman alleges that the American public is very knowledgeable of the facts

surrounding the 2012 incident in which Trayvon Martin died. [Doc. 1-1 ¶ 21]. This

appears to support a finding that Buttigieg and Warren offered their opinions based on

facts available to members of the public. However, it is not clear at this stage of the

litigation that the facts underlying the conclusions as to white supremacy, racism,

prejudice, and fear are available to the public, such that they transform the entirety of

the statements into ones of mixed expression. Because the Court must construe the

statements in their totality, including the circumstances surrounding the publication,

and must examine all the words used in the publication, this issue is best determined

on a motion for summary judgment. Hay, 450 So. 2d at 295.

iv. Plausibility of Malice

Buttigieg and Warren also allege that Zimmerman has not and cannot plead

facts rendering plausible the allegations as to malice. [Doc. 17 at p. 18]. Malice is an

element of both the general defamation and defamation by implication claims and is

presumed for claims of defamation per se. Rapp, 997 So. 2d at 1108; Klayman, 650 F.

App'x at 749; Lawnwood Med. Ctr., 43 So. 3d at 727. A defamatory statement is made

with “actual malice” if it was made with knowledge of its falsity or with a reckless

disregard as to whether it was true or not. Miami Herald Pub. Co. v. Ane, 458 So. 2d

239, 241 (Fla. 1984) (quoting New York Times Co. v. Sullivan, 376 U.S. 254, 279-

80 (1964)). The complaint alleges that Buttigieg and Warren’s tweets implied that

Zimmerman had killed Trayvon Martin because Zimmerman is racist or a white

supremacist, or due to other like reasons, even though both were aware that he was

acquitted of all charges based on evidence that he acted out of self-defense. [Doc. 1-1

¶¶ 20, 21, 22, 23, 24, 33]. Based on the allegations of the complaint, taken as true,

Count I and Count II sufficiently plead that Buttigieg and Warren knew the falsity of

what their respective tweets implied and therefore acted with malice in publishing

them.

v. Defamation Per Se Claim

Lastly, Defendants argue that the defamation per se claim should fail because it

requires too many inferential steps to get to the conclusion that the tweets accuse him

of murder. Admittedly, the complaint expressly states that “[t]hese statements are per

se defamatory because they falsely accuse . . . Zimmerman of having committed a

felony crime.” [Doc. 1-1 ¶ 79]. However, the complaint also states that the “statements

. . . subject him to hatred, distrust, ridicule, contempt, and disgrace.” Id. ¶ 78]. As the

Court noted above, defamation per se is not confined to statements that someone

committed a crime, as statements that tend to subject a person to hatred, distrust,

ridicule, contempt or disgrace can suffice. Adams, 84 So. 2d at 551. Certainly, a

statement that attributes racist and white supremacist attributes to someone could

subject that person to such harm. According to the complaint, Buttigieg’s tweet

suggests that Trayvon Martin’s death resulted from either “white supremacy, gun

violence, prejudice, or fear.” [Doc. 1-1 at p. 27]. Warren’s tweet allegedly places blame

for Trayvon Martin’s death on “gun violence and racism.” Id. at pp. 29. The complaint

therefore pleads an additional basis for defamation per se liability.

IV. CONCLUSION

In sum, the complaint contains deficiencies that subject it to dismissal as a

shotgun pleading. Personal jurisdiction over Defendants has not been established, as

Zimmerman has not sufficiently alleged that either Buttigieg or Warren committed a

tortious act in this state. Additionally, Zimmerman has failed to state a cause of action

by failing to sufficiently allege publication, an essential element of defamation. The

complaint will be dismissed, without prejudice, for these reasons. Accordingly, it is

ORDERED:

1. Defendants’ Motion to Dismiss Plaintiff's Complaint [Doc. 17] is

GRANTED, without prejudice. Plaintiff may file an Amended

Complaint on or before March 9, 2021, which cures the deficiencies

discussed 1n this Order. Failure to file the amended complaint within the

time provided will result in dismissal of this action without further notice.

DONE AND ORDERED in Tampa, Florida on February 23, 2021.

Chak tries Ochudtandx: Mone Ap el

Charlene Edwards Honeywell

United States District Judge

Copies to:

Counsel of Record and Unrepresented Parties, ifany

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