Tate v. Jane Doe

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 9:23-CV-81150-ROSENBERG/REINHART

ANDREW TATE & TRISTAN TATE,

Plaintiffs,

v.

Jane Doe, et al.,

Defendants.

/

ORDER DISMISSING DEFENDANT LIAM DOE AND REMANDING CASE

THIS CAUSE is before the Court on the Plaintiffs’ Motion to Remand, DE 31; John

Doe, June Doe, and Liam Doe’s Motion to Dismiss, DE 50; Jane Doe’s Motion to Dismiss, DE

51; and Mary Doe’s Motion to Dismiss, DE 52. The Motions have been fully briefed. For the

reasons set forth below, the Plaintiffs’ Motion to Remand is DENIED1; John Doe, June Doe, and

Liam Doe’s Motion to Dismiss is GRANTED IN PART as to Liam Doe and DENIED

WITHOUT PREJUDICE as to John Doe and June Doe; Jane Doe’s Motion to Dismiss is

DENIED WITHOUT PREJUDICE; and Mary Doe’s Motion to Dismiss is DENIED

WITHOUT PREJUDICE. The Court DISMISSES Liam Doe from this suit WITH

PREJUDICE and REMANDS this case to the Fifteenth Judicial Circuit in and for Palm Beach

County, Florida.

1 The Court nonetheless exercises its discretion to remand the case because it dismisses Liam Doe and thus the Court

loses subject matter jurisdiction over the suit.

I. Procedural History

On July 11, 2023, the Plaintiffs, Andrew and Tristan Tate,2 filed an Amended Complaint

in state court alleging state law claims such as defamation, false imprisonment, tortious

interference of a business relationship, civil conspiracy, and negligent infliction of emotional

distress. See DE 1-1. The Plaintiffs raise those claims against the Defendants for their roles in

providing evidence that initiated the Romanian government’s current investigation and

prosecution of the Plaintiffs for human trafficking. See id. On August 14, 2023, the Defendants

filed a Notice of Removal, asserting that the Court had subject matter jurisdiction pursuant to 28

U.S.C. § 1332, which governs diverse parties asserting state law claims in federal court. DE 1.

Following review of the Notice, the Court issued an Order to Show Cause, requesting the

domiciles of the Plaintiffs and two Defendants. DE 6. On August 25, 2023, the Defendants filed

an Amended Notice of Removal and a Response to the Court’s Order. See DE 21 and 22. In the

Amended Notice of Removal, the Defendants proposed two additional bases for subject matter

jurisdiction. DE 22 at 3–4. The Plaintiffs filed a Motion to Remand in response to the Amended

Notice of Removal. See DE 31. On September 24, 2023, the Defendants filed three Motions to

Dismiss. DE 50, 51, 52.

II. Plaintiff’s Motion to Remand

The Court begins with the arguments regarding the Court’s jurisdiction. The Defendants

argue that there are three grounds for subject matter jurisdiction in this case: diversity

jurisdiction pursuant to 28 U.S.C. § 1332; armed forces jurisdiction under 28 U.S.C. § 1442(a),

2 The Amended Complaint attempts twice to include the Tate brothers’ “various businesses, including the War

Room and Hustlers University” as additional plaintiffs in this suit. DE 1-1 at ¶¶ 48, 132. But the named and

unnamed companies are not listed in the Amended Complaint’s caption or description about the parties in the

Amended Complaint. DE 1-1. Nor did the Plaintiffs include the named and unnamed companies as parties in the

case’s Civil Cover Sheet. Id. Since the represented Plaintiffs have not included the business entities as parties

pursuant to Fed. R. Civ. P. 10(a), have not included them in the Amended Complaint’s description of the parties, and

have continued to ignore the business entities in subsequent filings, the Court construes the Amended Complaint as

brought only by Andrew and Tristan Tate.

due to the inclusion of Sergeant Liam Doe, a member of the U.S. Marine Corps Reserves; and

public official jurisdiction under 28 U.S.C. § 1442, again as a result of the inclusion of Sergeant

Doe. DE 31.

A. Legal Standard

As the removing parties, the Defendants bear the burden of establishing subject matter

jurisdiction, and if a “court determines at any time that it lacks subject-matter jurisdiction, the

court must dismiss the action.” Fed. R. Civ. P. 12(h)(3); see also Beavers v. A.O. Smith Elec.

Prods. Co., 265 F. App’x 772, 779 (11th Cir. 2008) (“Federal courts are courts of limited

jurisdiction and have the duty to inquire into whether they have subject-matter jurisdiction.”).

Courts must also construe removal statutes narrowly, “with doubts resolved against removal.”

Allen v. Christenberry, 327 F.3d 1290, 1293 (11th Cir. 2003). As the Supreme Court has held:

“Due regard for the rightful independence of state governments, which should actuate federal

courts, requires that they scrupulously confine their own jurisdiction to the precise limits which

the statute has defined.” Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 109 (1941) (quoting

Healy v. Ratta, 292 U.S. 263, 270 (1934)).

B. Diversity Jurisdiction

Diversity jurisdiction pursuant to 28 U.S.C. § 1332 requires complete diversity between

plaintiffs and defendants. Cabalceta v. Standard Fruit Co., 883 F.2d 1553, 1557 (11th Cir.

1989). In suits against a U.S. citizen, a plaintiff who is “[a] United States citizen with no

domicile in any state of this country is ‘stateless’ and cannot satisfy the complete diversity

requirement.” King v. Cessna Aircraft Co., 505 F.3d 1160, 1170 (11th Cir. 2007) (quoting

Newman–Green, Inc. v. Alfonzo–Larrain, 490 U.S. 826, 828, (1989)). Since at least one

Defendant is a U.S. citizen, complete diversity is not satisfied if the Plaintiffs are domiciled

abroad. Understanding that the Plaintiffs’ domiciles are potentially dispositive to the presence of

complete diversity, the Defendants assert the need for an evidentiary hearing on the Plaintiffs’

domicile.

“For adults, domicile is established by physical presence in a place in connection with a

certain state of mind concerning one’s intent to remain there.” Molinos Valle Del Cibao, C. por

A. v. Lama, 633 F.3d 1330, 1341 (11th Cir. 2011) (quoting Miss. Band of Choctaw Indians v.

Holyfield, 490 U.S. 30, 48 (1989)). Stated differently, “[a] person’s domicile is the place of his

‘true, fixed, and permanent home and principal establishment, and to which he has the intention

of returning whenever he is absent therefrom.’” McCormick v. Aderholt, 293 F.3d 1254, 1257–58

(11th Cir. 2002) (quoting Mas v. Perry, 489 F.2d 1396, 1399 (5th Cir. 1974)).

To resolve the question of a plaintiff’s domicile, district courts have broad discretion and

can use “affidavits, interrogatories, depositions, oral testimony, or any combination of the

recognized methods of discovery.” Sunseri v. Macro Cellular Partners, 412 F.3d 1247, 1250

(11th Cir. 2005) (quoting Washington v. Norton Mfg., Inc., 588 F.2d 441, 443 (5th Cir. 1979)).

When the question turns on a credibility determination between theories of domicile, “the proper

exercise of discretion may be to hold an evidentiary hearing.” Id.

Here, there is not a credibility determination to be made and thus, the Court declines the

Defendant’s request for an evidentiary hearing. The Plaintiffs claim that they are not domiciled

in any state within the United States, and they have supported their position with evidence in the

record. The Defendants, on the other hand, have not rebutted the Plaintiffs’ evidence. Without

identifying a state of domicile, the Defendants argue the Plaintiffs might be domiciled in the

United States because they were born in the United States, have intentionally moved around

often to evade being subject to any one country’s laws, are international businessmen, and met

one of the Defendants when the Plaintiffs were in Florida for a month on a business trip. DE 21

at 2–7. None of these assertions contradict what the Plaintiffs state in their pleadings or

affidavits.

The Plaintiffs state that they are dual citizens of the United States and the United

Kingdom. DE 37-1 at 1; DE 37-2 at 1. Though they were both born in the United States—

Andrew Tate in Washington, D.C. and Tristan Tate in Chicago, Illinois— their parents moved

them around the U.S. Midwest until they moved to live with their mother full-time in the United

Kingdom after their parents’ divorce. DE 37-1 at 1; DE 37-2 at 1. In their Amended Complaint,

the Plaintiffs state they chose to become “full-time residents of Romania” in 2015 due to their

connection to its culture and values. DE 1-1 at 14. Though the Plaintiffs note they have

“previously owned properties globally and regularly travel[ed] to different countries for business

and recreation,” id. at 13, they both allege that they have not been U.S. residents since their

parents’ divorce, and they currently own no real estate in the United States. DE 37-1 at 1-2; DE

37-2 at 1-2.

The Defendants rely upon what they argue to be an analogous case, King v. Cessna

Aircraft, Co., in which the Eleventh Circuit found that the district court could properly conclude

that a deceased woman who was born and raised in California still maintained domicile there.

505 F.3d 1160, 1172 (11th Cir. 2007). In this case, the Eleventh Circuit credited the following

facts to support the decedent’s domicile in California: the decedent’s stints abroad were for her

career, she returned frequently to California while living abroad, and she always intended to

return according to her parents’ testimony. Id. (noting that “King may have left the ‘when’ of her

return open, she had decided the ‘whether’ of it, and in this context whether is what matters”).

By contrast, the Plaintiffs have not been full-time U.S. residents since they were children,

and, even then, their childhood domicile was in the U.S. Midwest. Their next domicile was in

the United Kingdom. And since 2015, the Plaintiffs have used Romania as their home base,

returning to Romania after temporary stints of absence. A work trip to Miami or other U.S. cities

would not establish a new domicile; according to King, traveling for career purposes does not

establish domicile when a person intends to remain elsewhere. See id. The evidence before the

Court is that the Plaintiffs, though U.S. citizens, are domiciled abroad in Romania. Because

Plaintiffs can only have one domicile and that domicile is in Romania, they do not have a

domicile in the United States. That conclusion makes the Plaintiffs stateless under King and,

hence, unable to satisfy complete diversity requirements pursuant to 28 U.S.C. § 1332.

C. Armed Forces Jurisdiction

The Defendants also assert that the Plaintiffs’ claims against Liam Doe, a Civil Affairs

Reconnaissance Specialist Sergeant in the United States Marine Corps on Reserve status since

June 6, 2020, provide subject matter jurisdiction pursuant to 28 USC § 1442a. The statute

provides, in relevant part:

A civil or criminal prosecution in a court of a State of the United States against a

member of the armed forces of the United States on account of an act done under

color of his office or status, . . . , may at any time before the trial or final hearing

thereof be removed for trial into the district court of the United States for the

district where it is pending in the manner prescribed by law, and it shall thereupon

be entered on the docket of the district court, which shall proceed as if the cause

had been originally commenced therein and shall have full power to hear and

determine the cause.

28 U.S.C.A. § 1442a (West).

As a threshold matter, the Court considers whether a Marine Corps Reservist qualifies

under this statute. Title 28 of the U.S. Code provides no definition for “member of the armed

forces of the United States.” Courts have referred to Title 10 of the U.S. Code, entitled “Armed

Forces,” for guidance. See, e.g., Howard v. Sikula, 627 F. Supp. 497, 499 (S.D. Ohio 1986)

(discussing subject matter jurisdiction pursuant to 28 U.S.C.A. § 1442a for a member of the Air

Force Reserves). Congress has defined the Armed Forces to include “the Army, Navy, Air

Force, Marine Corps, Space Force, and Coast Guard,” 10 U.S.C.A. § 101 (West), and the Marine

Corps to include “the Regular Marine Corps, the Fleet Marine Corps Reserve, and the Marine

Corps Reserve.” 10 U.S.C.A. § 8001 (West). Like in Howard, the Court finds that Sergeant Doe

is a member of the U.S. Armed Forces.

28 U.S.C. § 1442a requires the suit against the member of the Armed Forces to be “on

account of an act done under color of his office or status.” Due to the dearth of cases analyzing

this jurisdictional statute’s requirements, courts have borrowed from analysis of similar language

in 28 U.S.C. § 1442(a),3 a removal statute conferring federal jurisdiction in certain cases against

federal officials. See, e.g., State of Fla. v. Simanonok, 850 F.2d 1429, 1430 (11th Cir. 1988) (The

defendant based removal on 28 U.S.C. § 1442a, but the Eleventh Circuit used a color of office

analysis from Maryland v. Soper (No. 1), 270 U.S. 9 (1926), which is a case arising under 28

U.S.C. § 1442(a)); State of Georgia v. Westlake, 929 F. Supp 1516, 1518–19 (M.D. Ga. 1996)

(listing multiple 28 U.S.C. § 1442a cases that borrow the 28 U.S.C. § 1442(a) color of office

analysis). Therefore, the Court concludes it can use the more abundant precedent interpreting 28

U.S.C. § 1442(a) to determine whether 28 U.S.C. § 1442a applies.

Importantly, the standard for interpreting Armed Force Removal is not the strict

construction standard applicable to removals. Instead, the Supreme Court has emphasized that

3 Section 1442(a) states, in relevant part:

(a) A civil action or criminal prosecution that is commenced in a State court and that is against or directed to

any of the following may be removed by them to the district court of the United States for the district and

division embracing the place wherein it is pending:

(1) The United States or any agency thereof or any officer (or any person acting under that officer) of the

United States or of any agency thereof, in an official or individual capacity, for or relating to any act under

color of such office or on account of any right, title or authority claimed under any Act of Congress for the

apprehension or punishment of criminals or the collection of the revenue.

28 U.S.C. § 1442(a) represents Congress’ decision “that federal officers, and indeed the Federal

Government itself, require the protection of a federal forum.” Willingham v. Morgan, 395 U.S.

402, 407 (1969). Therefore: “This policy should not be frustrated by a narrow, grudging

interpretation” of the removal statute. Id. The same policy justification is present here for 28

U.S.C. § 1442a. See State of Georgia v. Westlake, 929 F. Supp. 1516, 1520 (M.D. Ga. 1996)

(considering the policy rationales and concluding “[t]he federal government has an acute interest

in protecting the individual for acts taken pursuant to properly bestowed federal authority”).

1. Causal Connection Under Asserted Official Authority

A successful color of office claim requires “a causal connection between what the officer

has done under asserted official authority” and the suit against him. See Mesa v. California, 489

U.S. 121, 131 (1989) (quoting State of Maryland v. Soper (No. 1), 270 U.S. 9, 33 (1926)). In

civil suits, it is “sufficient for petitioners to have shown that their relationship to respondent

derived solely from their official duties.” Willingham v. Morgan, 395 U.S. 402, 409 (1969). Put

simply, “[i]t is enough that his acts or his presence at the place in performance of his official

duty constitute the basis” of the suit against him. Soper, 270 U.S. at 33. But say, at time of

seeking removal, the petitioner cannot indisputably prove that they were on duty and not

engaged in “some kind of ‘frolic of their own’ in relation to respondent”? Willingham, 395 U.S.

at 409. “[T]hen they should have the opportunity to present their version of the facts to a federal,

not a state, court.” Id. (ultimately holding that the Court of Appeals “erred when it held that

petitioners had not adequately demonstrated a right to have their case decided in the federal

courts”). Having a federal defendant defend themselves in federal court “is exactly what the

removal statute was designed to accomplish.” Id.

The Court concludes, based on a review of the full record, that Sergeant Doe’s actions

have a potential causal connection with his performance of an official duty. The Plaintiffs’

Amended Complaint states Jane Doe texted Sergeant Doe that she was being “human trafficked,”

and his alleged defamatory act was in communicating Jane Doe’s message to the U.S. Embassy

in Romania “and/or several other third parties.” DE 1-1 at ¶ 45. In an affidavit, Sergeant Doe

clarified that he called his immediate superior in the Marine Corps Reserves about Jane Doe’s

situation and was given the contact information for the U.S. Embassy in Romania, through which

he ultimately relayed Jane Doe’s claims to another Marine who was part of the security detail for

that embassy. DE 21-2 at 3–4. Then, when U.S. Embassy personnel followed up on his report,

he provided more information. Id. at 4. The issue here is one of a Marine’s communication with

other Marines and U.S. government officials about suspected human trafficking.

The Defendants argue this act involves Sergeant Doe’s official duties by asserting that

one of his duties was to report suspicions of human trafficking, and that in reporting his

suspicions to the U.S. Embassy in Romania, he carried out that duty. DE 21 at 13. The Plaintiffs

respond that Sergeant Doe’s actions were not official duties because “they did not contribute to

the efficient operation of the United States Marine Corps” nor were “related to his official

training and title of Field Artillery Cannoneer.” DE 31 at 14. They argue that Sergeant Doe’s

status as a Marine “does not give him the ability to recklessly defame,” analogizing this situation

to cases where federal government employees who violated state law in operating government

vehicles negligently failed in trying to assert removal jurisdiction. Id. But, unlike those cases,

the instant case involves a U.S. government employee who claims that if he violated state law, he

had a directive from a superior officer or federal policy to do so. See State of Oklahoma v.

Willingham, 143 F. Supp. 445, 448 (E.D. OK 1956) (“[N]o law of the United States authorizes a

rural mail carrier, while engaged in delivering mail on his route, to violate the state law enacted

for the protection of those who use the highways.”); State of Georgia v. Westlake, 929 F. Supp.

1516, 1519 (M.D. Ga. 1996) (“Defendant does not contend that he was under orders to disobey

local traffic laws or that the accident was the result of any order given to him by his superiors.”).

The parties agree that Sergeant Doe was trained in accordance with the U.S.

government’s strong policy against trafficking in persons (TIP) and that the Department of

Defense (DoD) protocol required reporting suspicions to his superior officer first. Sergeant Doe

avers that he receives training to this effect every nine months and is required to report

suspicions of TIP. DE 21-2 at 1-2. The Plaintiffs presented a DoD PowerPoint presentation

instructing DoD personnel: “If you suspect a trafficking in persons situation, REPORT IT

IMMEDIATELY TO THE APPROPRIATE AUTHORITY. Report to: Chain of Command,

Department of Defense Inspector General . . . , National Human Trafficking Resource Center.”

DE 31-10 at 31.4 The next slide further emphasizes that the training participant’s role is to

“[r]eport anything suspicious that [he or she] see[s] to [his or her] Chain of Command” and to

“Never act ALONE.” Id. at 31. Sergeant Doe followed that policy, reporting his suspicions to

his superior officer who told him to reach out to U.S. government personnel located

geographically closer to Jane Doe. Although the Court cannot ascertain conclusively whether

Sergeant Doe was on duty when he made the report, the strong directives from the DoD would

suggest that reservists should not wait until they are on duty to report suspicions of TIP.

Following the permissive standard set forth by the Supreme Court as to the causal

connection between an official’s action and duties, the Court finds these facts are sufficient to

4 The Court notes that slide 17 of the DoD Presentation discusses the effects of human trafficking on the DoD’s

“[m]isson [r]eadiness,” specifically noting that human trafficking is used to fund enemy groups and provide child

soldiers, and that human traffickers target service employees and may be military contractors. DE 31-10 at 17. But

it is clear from the language on slide 31, that the DoD sees its personnel as reporting trafficking wherever

encountered.

show a potential causal connection between the defamation allegations and Sergeant Doe’s

authority as a member of the Armed Forces.

2. Existence of a Colorable Federal Defense

The Supreme Court also requires a person asserting they were acting under the color of

office to put forth a federal defense. Mesa v. California, 489 U.S. 121, 131 (1989). Indeed,

“[o]ne of the primary purposes of the removal statute—as its history clearly demonstrates—was

to have such defenses litigated in the federal courts.” Willingham v. Morgan, 395 U.S. 402, 407

(1969). Claimants need not raise “a clearly sustainable defense,” merely “a colorable defense

arising out of their duty to enforce federal law.” Id. at 407. Congress intended that an officer

“need not win his case before he can have it removed” but that the validity of the federal defense

be tried in federal court. Id.

At this stage of the litigation, the Court need only consider whether decide Liam Doe has

plausibly raised a federal defense. See Ruppel v. CBS Corp., 701 F.3d 1176, 1182 (7th Cir. 2012)

(“The validity of the defense will present ‘complex issues, but the propriety of removal does not

depend on the answers.’ Venezia v. Robinson, 16 F.3d 209, 212 (7th Cir. 1994). Instead, the

claimed defense need only be ‘plausible.’ Id.”). The Defendants assert four federal defenses

relating to Liam Doe’s actions: official immunity, qualified immunity, federal supremacy

immunity, and immunity under 28 U.S.C. § 2679. DE 21 at 16-18, DE 47 9-15. Sergeant Doe

need only assert one plausible federal defense, so the Court begins its analysis with qualified

immunity.

“Qualified immunity offers complete protection for individual public officials performing

discretionary functions ‘insofar as their conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have known.’” Sherrod v. Johnson, 667

F.3d 1359, 1363 (11th Cir. 2012) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). To

receive the doctrine’s protection, “the public official must first prove that he was acting within

the scope of his discretionary authority when the allegedly wrongful acts occurred.” Kingsland v.

City of Miami, 382 F.3d 1220, 1232 (11th Cir. 2004). Somewhat misnamed, the term

“discretionary authority” includes “actions that do not necessarily involve an element of choice.”

McCoy v. Webster, 47 F.3d 404, 407 (11th Cir. 1995). More accurately, “discretionary

authority” considers “whether the government employee was (a) performing a legitimate job-

related function (that is, pursuing a job-related goal), (b) through means that were within his

power to utilize.” Holloman ex rel. Holloman v. Harland, 370 F.3d 1252, 1265 (11th Cir. 2004).

Once the public official has met his or her burden, the burden shifts to a plaintiff to show that the

doctrine is inapplicable because the facts alleged show the public official “violated a

constitutional right” and that “the right violated was clearly established.” Id.

The Plaintiffs’ sole argument that Sergeant Doe’s assertion of qualified immunity is

implausible is that the U.S. Air Force’s requirement to report human trafficking makes an action

under that requirement non-discretionary. DE 53 at 9-10. But whether a public official must

carry out a certain act does not dispose of whether he acted within his discretionary authority.

See McCoy, 47 F.3d at 407. Further, Sergeant Doe retained discretion in deciding whether the

information he received from Jane Doe qualified as constituting human trafficking. Sergeant

Doe argues that his report of suspected human trafficking according to procedure was within his

duties and through appropriate means. The Court finds this to be a plausible assertion such that

Sergeant Doe’s qualified immunity defense should be litigated in federal court.

Since Sergeant Doe has at least one plausible federal immunity defense, the Court has

jurisdiction pursuant to 28 USC § 1442a.5 Thus, the Court DENIES the Plaintiffs’ Motion to

Remand.

III. Sergeant Liam Doe’s Motion to Dismiss

Since the presence of Sergeant Doe as a defendant provides the Court with jurisdiction,

the Court next analyzes Sergeant Doe’s 12(b)(6) Motion for the Plaintiffs’ failure to state a claim

against him. The Court concludes that Sergeant Doe’s allegedly defamatory statements are

shielded by qualified immunity under Florida law, and thus the Court DISMISSES WITH

PREJUDICE the claims against him. Because the Court declines to exercise supplemental

jurisdiction over the remaining state-law claims in the Amended Complaint, the Court

REMANDS the case to the state court and DISMISSES all other pending motions WITHOUT

PREJUDICE FOR LACK OF SUBJECT MATTER JURISDICTION.

A. The Parties’ Arguments

The Plaintiffs allege claims of defamation, defamation per se, and commercial

defamation against Sergeant Doe for his comments to John Doe, June Doe, and various U.S.

government employees at the U.S. Embassy in Romania and elsewhere. DE 1-1 at ¶¶ 10, 91, 96,

101. Sergeant Doe argues the Amended Complaint against him should be dismissed against him

for four reasons. DE 50 at 4. First, because the Plaintiffs are public figures, their Amended

Complaint lacks the required element of actual malice on the part of Sergeant Doe. Id. Second,

Florida’s qualified privilege doctrine protects Sergeant Doe from liability in this case. Id. Third,

the federal supremacy and official duty doctrines protect Sergeant Doe from liability. Id. Fourth

5 The Defendants’ last asserted subject matter jurisdiction basis is 28 U.S.C. § 1442(a), a removal statute for public

officers. However, the Court’s finding of a jurisdictional basis in 28 U.S.C. § 1442a renders it unnecessary for the

Court to decide whether Liam Doe is also an officer of the United States.

and finally, Sergeant Doe raises a counterclaim pursuant to Fla. Stat. § 768.295, also known as

Florida's Anti Strategic Lawsuits Against Public Participation (“Anti-SLAPP”) statute. Id.

The Plaintiffs respond that they are not public figures, and thus, not subject to the actual

malice pleading requirement. DE 71 at 4. However, if they are, the Amended Complaint

sufficiently raises facts to show Sergeant Doe’s actual malice. Id. at 8. The Plaintiffs further

contend that immunity doctrine and the Anti-SLAPP statute do not apply. Id. at 11–18.

B. Relevant Facts

According to their Amended Complaint, the Plaintiffs are “major social media

influencers,” former champion kickboxers, investors, and international businessmen who share a

“collective business identity and reputation.” DE 1-1 at ¶¶ 13, 17–19. They “first garnered press

attention in 2008” through their kickboxing careers and then “parlayed that fame” into

appearances on British reality TV shows for both brothers and sports commentating bookings for

Tristan Tate. Id. at ¶ 29. “Their massive social media presence” numbered in the tens of millions

at one point, “putting them in the top 1% of social media personalities” worldwide. Id. at ¶ 22.

They emphasize that “young men worldwide” look to them for “inspiration and practical

instruction for legitimate ways to rise above class and race-based injustice.” Id. at ¶ 26.

The Plaintiffs have “generate[d] income from multiple business ventures,” with

“revenues estimated in hundreds of millions of dollars.” Id. at ¶ 21. One of the businesses in

which they participated was the webcam modeling industry, through which they engaged women

“in partnerships” where the women would model on Tik Tok or OnlyFans and the brothers

would reap some of the rewards. Id. at ¶ 30. The Plaintiffs have “long since moved on from this

industry” but have “occasionally advised women looking to make careers in lawful webcam

modeling, social media, or other modeling sites . . . after being solicited to do so.” Id. at ¶ 30.

It is through the Plaintiffs’ continuing ties to the e-modeling industry that they met Jane

Doe and allowed her to stay with them in Romania. Id. at ¶ 34–35, 83. Instead of “pursu[ing]

opportunities in Romania as an e-model,” the Plaintiffs claim that she sought to exploit them by

falsely accusing them of human trafficking. Id. at ¶ 83.

The Plaintiffs accuse all the Defendants of spreading lies to the Plaintiffs’ detriment. The

Complaint cites to and includes portions of a series of messages between Jane Doe and others to

suggest that Jane Doe and Mary Doe were not victims and never believed they were in real

danger. Id.

As to Sergeant Doe specifically, the Amended Complaint alleges that Jane Doe sent

“distressing messages” to him that she and Mary Doe were being “human trafficked.” Id. at ¶ 89.

In the text messages attached to the Amended Complaint, those distressing messages include that

Jane Doe had to make a plan to leave using her “hidden” passport; that “the hard thing [was]

getting out the house;” that “groomers and handlers” were present; and that if those handlers saw

women leave, “they [would] call the brothers [and] then [the] brothers [would] call airports and

stop [them] from leaving.” DE 31-4 at 5.

According to the Amended Complaint, Sergeant Doe advised her to contact the U.S.

Embassy in Romania and stated that he would call his U.S. government contacts himself. Id.

Though Jane Doe asked Sergeant Doe to refrain from calling anyone and said she wanted to go

to London instead, her messages increased in tenor. Id. Jane Doe disclosed that “they,”

presumably the Plaintiffs, “know everyone” and have mob ties. Id. at 6. Jane Doe shared that the

Plaintiffs “are actually evil,” making “women cut themselves” and “sell their bodies” through

coercion and threats of abduction or death. Id. Jane Doe attributed her lack of injuries to her

short tenure at the house and not yet being suspected of wanting to leave. Id. Sergeant Doe again

encouraged Jane Doe to contact the U.S. Embassy but she did not “feel safe doing that” and also

wanted to go on her trip instead of being shipped back stateside. Id. at 7. She continued, stating

that she and Mary Doe would be fine and would “get out” if they “face[d] any issues.” Id. at 8.

Then, Sergeant Doe decided to call the Embassy.

C. Legal Standard

A plaintiff must provide a “short and plan statement of the claim showing that the pleader

is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Though “a complaint ‘does not need detailed factual

allegations,’ it must provide ‘more than labels and conclusions, and a formulaic recitation of the

elements of a cause of action will not do.’” Navarro v. City of Riviera Beach, 192 F. Supp. 3d

1353, 1359 (S.D. Fla. 2016) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

In analyzing motions to dismiss, a court must accept as true a plaintiff’s factual

allegations and grant all plausible inferences in favor of a plaintiff. Chaparro v. Carnival Corp.,

693 F.3d 1333, 1337 (11th Cir. 2012). A court must also limit its review to the “pleadings and

exhibits attached thereto.” Thaeter v. Palm Beach Cnty. Sheriff’s Off., 449 F.3d 1342, 1352 (11th

Cir. 2006) (quoting Grossman v. Nationsbank, N.A., 225 F.3d 1228, 1231 (11th Cir. 2000)).

“[D]ismissal is proper when, ‘on the basis of a dispositive issue of law, no construction of the

factual allegations will support the cause of action.’” Allen v. USAA Cas. Ins. Co., 790 F.3d

1274, 1278 (11th Cir. 2015) (quoting Marshall Cnty. Bd. of Educ. v. Marshall Cnty. Gas Dist.,

992 F.2d 1171, 1174 (11th Cir. 1993)).

D. Florida Qualified Immunity Analysis

Florida law encompasses “a broad range of [conditionally] privileged occasions” during

which a person’s statements, within certain parameters, are protected from liability. Nodar v.

Galbreath, 462 So. 2d 803, 809 (Fla. 1984). A court may determine the existence of a privilege

as a question of law when “the circumstances surrounding a defamatory communication are

undisputed, or are so clear under the evidence as to be unquestionable.” Id. at 810. The Florida

Supreme Court has articulated the broadest expression of this privilege:

A communication made in good faith on any subject matter by one having an

interest therein, or in reference to which he has a duty, is privileged if made to a

person having a corresponding interest or duty, even though it contains matter

which would otherwise be actionable, and though the duty is not a legal one but

only a moral or social obligation.

Id. at 809 (emphasis added).

Florida courts have applied this privilege to parents speaking about the welfare of their

child to “one having the power or duty to take action for the benefit of the child;” statements

made to an employer about the performance of its employee; and a statement “to a political

authority regarding matters of public concern, i.e., the school curriculum and the performance of

a public employee” Id. Florida courts also have extended this qualified privilege to purportedly

defamatory statements from “private individuals to the police or the state’s attorney prior to the

institution of criminal charges are presumptively qualifiedly privileged.” Fridovich v. Fridovich,

598 So. 2d 65, 69 (Fla. 1992).

To overcome this qualified privilege, “a plaintiff would have to establish by a

preponderance of the evidence that the defamatory statements were false and uttered with

common law express malice—i.e., that the defendant’s primary motive in making the

statements was the intent to injure the reputation of the plaintiff.” Id. (emphasis added) (citing

Nodar, 462 So. 2d at 806). The “mode, manner, or purpose of the communication” factors into

whether a person has abused or forfeited the privilege.” Nodar, 462 So. 2d at 809 (emphasis

added).

The circumstances surrounding Sergeant Doe’s defamatory communication are easy to

distill to their basic parts. The Plaintiffs claim that Sergeant Doe received a series of text

messages about Jane Doe being a victim of human trafficking and then reported those claims to

various members of the U.S. government, including U.S. Embassy personnel and members of the

Armed Forces. DE 1-1. Sergeant Doe has since supplied that he is a member of the U.S. Armed

Forces. DE 21-2 at 3–4.

Florida’s qualified privilege doctrine could apply to Sergeant Doe’s alleged defamatory

communications in at least two ways. One is that, if Sergeant Doe was acting outside his duties

as a Reservist, the privilege established in Fridovich v. Fridovich would protect allegedly

defamatory statements made to the authorities “prior to the institution of criminal charges.” 598

So. 2d 65, 69 (Fla. 1992). But if Sergeant Doe was acting within his duties, he was speaking

with other U.S. government officials about stopping human trafficking. And these U.S

government officials all shared at least a moral interest in combatting trafficking, if not an

interest based on the duty to combat trafficking. Therefore, the general privilege in Nodar v.

Galbreath would apply. Whether acting within or outside his Reservist duties, in reporting his

suspicions to relevant government personnel, Sergeant Doe shared valuable information to help

investigative authorities carry out their duty.

Moreover, the Plaintiffs’ rendition of the facts does not support a finding of express

malice that would render the qualified privilege inapplicable. By way of example, the mode of

Sergeant Doe’s communication does not support any reasonable inference of express malice;

Sergeant Doe first consulted his supervising officer in the U.S. military for advice and then

followed that advice to alert U.S. authorities in Romania. In reporting a suspected crime to U.S.

authorities, he did what the legal system encourages people who suspect criminal activity to

do—alert authorities with the power to investigate and act. As for Sergeant’s Doe’s primary

motive, the texts that he received were very concerning. The Court cannot conclude that any

reasonable inference of express malice can be read into Sergeant Doe’s actions, even if he

personally disliked the Plaintiffs. Stated differently, the text messages that Sergeant Doe

received were so concerning and involved a situation so serious that any reasonable person

would have acted to save the potential trafficking victim, and the Court cannot conclude that

Sergeant Doe’s primary motive “was to injure the reputation of the plaintiff[s].” Id. Therefore,

Florida’s qualified immunity doctrine applies to the statements made by Sergeant Doe, and

further amendment on this subject would be futile.

E. Anti-SLAPP Claims

The Eleventh Circuit has not settled “whether Florida’s Anti-SLAPP statute can be

applied to actions in federal court.” Condo. Ass’n of Parker Plaza Ests., Inc. v. Moreff, No. 22-

61638-CIV, 2023 WL 3600495, at *1 (S.D. Fla. Mar. 2, 2023) (noting that the Eleventh Circuit

came close to addressing this topic in Parekh v. CBS Corp., 820 F. App’x 827, 836 (11th Cir.

2020) but ultimately refrained because the appellant had waived the argument). Neither party

has addressed the threshold question of whether Florida’s Anti-SLAPP statute applies in federal

court and to what extent. Therefore, the Court refrains from ruling on the merits of the Anti-

SLAPP claim.6

F. Conclusion

For the foregoing reasons, the Court concludes that the Plaintiffs’ own construction of the

facts renders amendment as to Sergeant Doe futile. Therefore, the Court DISMISSES WITH

PREJUDICE every claim against Sergeant Doe. Without Sergeant Doe, there is no longer a

basis for federal court jurisdiction in this case. Under 28 U.S.C. § 1367, district courts “may

decline to exercise supplemental jurisdiction” over remaining claims once it has “dismissed all

6 The Court also believes this issue would be better addressed by the state court judge with the remainder of the

Defendants.

claims over which it has original jurisdiction.” Accordingly, the Court elects to decline

jurisdiction over the remainder of these claims. Therefore, the Court issues no decision on the

merits of the Motions to Dismiss from the remaining Defendants and REMANDS this case.

It is therefore ORDERED AND ADJUDGED that:

e The Plaintiffs’ Motion to Remand, DE 11, is DENIED.

e John Doe, June Doe, and Liam Doe’s Motion to Dismiss, DE 50, is GRANTED IN

PART and DENIED WITHOUT PREJUDICE IN PART. The Court DISMISSES

WITH PREJUDICE Liam Doe from this suit.

e The case is REMANDED to the Fifteenth Judicial Circuit, in and for Palm Beach

County, and the Clerk of Court is instructed to CLOSE THE CASE and DENY ALL

PENDING MOTIONS WITHOUT PREJUDICE FOR LACK OF SUBJECT

MATTER JURISDICTION.

DONE AND ORDERED in Chambers, West Palm Beach, Florida, this 18th day of

January, 2024.

Copies furnished to: ROBIN L. ROSENBERG

Counsel of record UNITED STATES DISTRICT JUDGE

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