Mucerino v. Martin

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF TENNESSEE

NASHVILLE DIVISION

FRANK MUCERINO III and )

CREEKSIDE TERRACE LLC, )

)

Plaintiffs, )

)

v. ) Case No. 3:21-cv-00284

) Judge Aleta A. Trauger

CHARLES JOSHUA DALE MARTIN, )

)

Defendant. )

MEMORANDUM

Charles Joshua Dale Martin has filed three motions seeking the dismissal of the claims

against him: a Petition to Dismiss Pursuant to the Tennessee Public Participation Act (Doc. No.

13); a Rule 12(b)(1) Motion to Dismiss (Doc. No. 21); and a Rule 12(b)(6) Motion to Dismiss

(Doc. No. 23). Defendants Frank Mucerino III and Creekside Terrace, LLC (“Creekside”) have

filed a Response to each of the latter two motions (Doc. Nos. 29, 30), and Martin has filed Replies

(Doc. Nos. 31, 32.) With regard to the first motion, Mucerino and Creekside have, in lieu of a

response, filed a Motion to Strike (Doc. No. 18), to which Martin has filed a Response (Doc. No.

25), and Mucerino and Creekside have filed a Reply (Doc. No. 27). For the reasons set out herein,

the Motion to Strike and the Rule 12(b)(6) Motion will be granted, and the other motions will be

denied.

I. BACKGROUND

A. The Plaintiffs’ Allegations1

1 Unless otherwise indicated, these facts are from the Complaint (Doc. No. 1) and are taken as true for the

purposes of the non-jurisdictional motions to dismiss.

On March 22, 2021, Martin posted the following message to a Facebook group called the

“Residents of Camp Ravine Estates & Cottages at Sycamore Ridge”:

Hey neighbors, I’m sure all of you are aware that there are many unresolved issues

with our neighborhood that the developer is responsible for, but we know he has no

plans to fix them and is now reportedly moving away.

It seems to me the advice of the city attorney to lawyer up will be a waste of time

and money especially if Frank the developer claims bankruptcy.

In my opinion, the best course of action would be to schedule a time on the City

Hall agenda to have our case heard with all of the problems the engineer has noted

that Karla Cobbs has posted here previously. This will require everyone to

participate, attend, and compile evidence of the issues caused by the developer.

Please let me know your thoughts.

(Doc. No. 1 ¶ 3; Doc. No. 1-1.2) “Frank the developer” referred to Frank Mucerino, who developed

Martin’s neighborhood of Camp Ravine Estates (“Camp Ravine”) through Creekside, which

Mucerino owns. (Doc. No. 1 ¶ 9.) Mucerino claims that he “is not responsible for any of the

unresolved ‘issues’ . . . Martin mentions” and “has no intention of claiming bankruptcy.” (Id. ¶¶

16–18.) Mucerino claims that the text of Martin’s Facebook post “has been read by members of

the public and unjustly damaged . . . Mucerino’s reputation,” causing Mucerino to suffer

“economic losses, . . . humiliation, and emotional distress.” (Id. ¶ 26.)

On April 7, 2021, Mucerino and Creekside filed a Complaint in this court against Martin

based on the post. (Id.) The plaintiffs assert four claims: Count I is for defamation of Mucerino;

Count II is for false light invasion of Mucerino’s privacy; Count III is for defamation of Mucerino

“by implication”; and Count IV is for defamation of Creekside. (Id. ¶¶ 22–41.) The plaintiffs

collectively seek compensatory damages in excess of $100,000 and punitive damages in excess of

2 The court has taken the full name of the Facebook group, which is truncated in the screenshot included

with the Complaint, from the briefing, but it appears to be undisputed.

$200,000. (Id. at 8.) Martin has asked the court to dismiss the claims, either as meritless or because

the court lacks jurisdiction over this dispute.

B. Facts Related to Jurisdiction

“Federal courts are courts of limited jurisdiction,” meaning that “[t]hey possess only that

power authorized by Constitution and statute.” Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375,

377 (1994) (citations omitted). Based on that principle, it is initially “presumed that a cause lies

outside [the federal courts’] limited jurisdiction, and the burden of establishing the contrary rests

upon the party asserting jurisdiction.” Id. (citations omitted). Although many cases clear that bar

based on the fact that the underlying causes of action arise under federal law, the court also has

jurisdiction to consider claims, regardless of their legal provenance, filed by a citizen of one state

solely against citizens of other states. Specifically, under 28 U.S.C. § 1332, the court has so-called

diversity jurisdiction over cases between “citizens of different States,” so long as the “matter in

controversy exceeds the sum or value of $75,000.” 28 U.S.C. § 1332(a)(1). The Complaint, which

seeks an amount in excess of $75,000, asserts that Mucerino “is a citizen and resident of the State

of Florida” and that the only other two members of the Creekside LLC—also members of the

Mucerino family—are Florida residents as well, whereas Martin lives in Tennessee.3 (Doc. No. 1

¶¶ 4–6.)

Martin, however, draws the court’s attention to facts that complicate that picture. Records

from the Tennessee Secretary of State regarding Creekside and another Mucerino-owned company

continue to list addresses in Burns, Tennessee for Mucerino. (Doc. No. 21-1 at 2, 4.) A copy of

Mucerino’s contractor licensure record from the Tennessee Department of Licensure and

3 Under current caselaw, “a limited liability company . . . ha[s] the citizenship of each partner or member.”

Delay v. Rosenthal Collins Grp., LLC, 585 F.3d 1003, 1005 (6th Cir. 2009) (citing Carden v. Arkoma

Assocs., 494 U.S. 185, 187–92 (1990)). “The state of organization . . . [is] legally irrelevant.” Lincoln Ben.

Life Co. v. AEI Life, LLC, 800 F.3d 99, 105 (3d Cir. 2015) (citing Carden, 494 U.S. at 192).

Insurance also includes only a Tennessee address. (Doc. No. 21-3.) Martin has provided

depositions of Mucerino and his wife Sharon that include discussions of their move from

Tennessee to Florida, and those depositions confirm that, even by the version of the facts most

favorable to Mucerino, he moved to Florida barely in time for diversity jurisdiction to exist when

he filed his claims on April 7, 2021. (Doc. Nos. 21-2, -4.)

By Mucerino’s telling, he was born in and spent most of his life in Tennessee, but, in March

of 2021, he “started moving to Florida,” which included sending some of his personal property

ahead to that state and putting other property in storage in Tennessee.(Doc. No. 21-2 at 18.) On

March 31, 2021, he finalized the sale of his Tennessee residence, and he has testified that, after

that date, he no longer kept any personal belongings at his former home or went to the home for

any purpose other than to “go over some things” with the new owner. (Id. at 17–18.)

On a day no later than April 7, 2021, Mucerino purchased a home in Florida from his

parents, where he has since been living while working as an independent contractor in that state.4

(Id. at 8–10, 33.) Although Mucerino originally had difficulty, during his deposition, recalling

whether he was physically in Florida on April 7 itself, because he was traveling back and forth

often, he has filed a Declaration stating that he and his family were, in fact, in that state on that

day. (Doc. No. 29-1 ¶ 8.) By Mucerino’s admission, however, he had not, as of April 7, completed

many of the logistical steps that typically accompany a move from one state to another. He still

had a Tennessee driver’s license and no Florida driver’s license. His car registration was still in

Tennessee. One of his children was continuing to attend virtual school based out of Tennessee and

was not enrolled in Florida. (Doc. No. 21-2 at 26–27.) His personal bank account and the bank

4 It appears that at least some of the paperwork related to the purchase was completed two days earlier, on

April 5, 2021, although Mucerino himself characterizes April 7 as the purchase date. (See Doc. No. 24-2 at

18, 28–29.)

accounts of his businesses were held by banks in Tennessee. (Doc. No. 21-4 at 9.) The Mucerino

family also took part in a Tennessee-based yard sale, run by multiple families in their old

neighborhood, in mid-April, as a way of getting rid of items that they did not want to take to

Florida. (Id. at 13.)

II. LEGAL STANDARD

A. Rule 12(b)(1)

“If the court determines at any time that it lacks subject-matter jurisdiction, the court must

dismiss the action.” Fed. R. Civ. P. 12(h)(3). Although subject-matter jurisdiction is non-waivable

and can be considered by the court at any time, Rule 12(b)(1) provides a formal mechanism for a

defendant who wishes to contest subject-matter jurisdiction in a newly filed case. Motions to

dismiss for lack of subject matter jurisdiction fall into two general categories: facial attacks and

factual attacks. United States v. Ritchie, 15 F.3d 592, 598 (6th Cir. 1994). A facial attack under

Rule 12(b)(1) “questions merely the sufficiency of the pleading,” and the trial court therefore takes

the allegations of the complaint as true. Wayside Church v. Van Buren Cty., 847 F.3d 812, 816

(6th Cir. 2017) (quoting Ohio Nat’l Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir.

1990)). A factual attack is a challenge to the factual existence of subject matter jurisdiction. In the

case of a factual challenge, no presumption of truthfulness applies to the factual allegations. Glob.

Tech., Inc. v. Yubei (XinXiang) Power Steering Sys. Co., 807 F.3d 806, 810 (6th Cir. 2015).

When a Rule 12(b)(1) motion contests jurisdiction factually, as Martin’s does, the court

must weigh the evidence in order to determine whether it has the power to hear the case, without

presuming the challenged allegations in the complaint to be true. Genetek Bldg. Prods., Inc. v.

Sherwin-Williams Co., 491 F.3d 320, 330 (6th Cir. 2007); DLX, Inc. v. Kentucky, 381 F.3d 511,

516 (6th Cir. 2004). When the facts are disputed in this way, “[t]he district court has broad

discretion to consider affidavits, documents outside the complaint, and to even conduct a limited

evidentiary hearing if necessary,” without converting the motion into one for summary judgment.

Cooley v. United States, 791 F. Supp. 1294, 1298 (E.D. Tenn. 1992), aff’d sub nom. Myers v.

United States, 17 F.3d 890 (6th Cir. 1994); see also Genetek, 491 F.3d at 330. It is then the

plaintiff’s burden to show that jurisdiction is appropriate. DLX, 381 F.3d at 511.

B. Rule 12(b)(6)

In deciding a motion to dismiss for failure to state a claim under Rule 12(b)(6), the court

will “construe the complaint in the light most favorable to the plaintiff, accept its allegations as

true, and draw all reasonable inferences in favor of the plaintiff.” Directv, Inc. v. Treesh, 487 F.3d

471, 476 (6th Cir. 2007); Inge v. Rock Fin. Corp., 281 F.3d 613, 619 (6th Cir. 2002). The Federal

Rules of Civil Procedure require only that a plaintiff provide “a short and plain statement of the

claim that will give the defendant fair notice of what the plaintiff’s claim is and the grounds upon

which it rests.” Conley v. Gibson, 355 U.S. 41, 47 (1957). The court must determine only whether

“the claimant is entitled to offer evidence to support the claims,” not whether the plaintiff can

ultimately prove the facts alleged. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511 (2002) (quoting

Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)).

The complaint’s allegations, however, “must be enough to raise a right to relief above the

speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). To establish the

“facial plausibility” required to “unlock the doors of discovery,” the plaintiff cannot rely on “legal

conclusions” or “[t]hreadbare recitals of the elements of a cause of action,” but, instead, the

plaintiff must plead “factual content that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009).

“[O]nly a complaint that states a plausible claim for relief survives a motion to dismiss.” Id. at

679; Twombly, 550 U.S. at 556.

III. ANALYSIS

A. Jurisdiction

The only reasonable reading of the available evidence is that Mucerino and his family now

live in Florida, while Martin lives in Tennessee. Diversity of citizenship, therefore, currently

exists. The Supreme Court, however, has long held that diversity jurisdiction “is tested by the facts

as they existed when the action [was] brought.” Smith v. Sperling, 354 U.S. 91, 93 n.1 (1957)

(emphasis added); accord White v. United States, 601 F.3d 545, 553 n.4 (6th Cir. 2010). While it

may be clear that the Mucerinos have, by now, relocated to Florida, it is at least less clear whether

they had done so when the plaintiffs filed their Complaint. The issue that determines whether this

case was appropriately filed in this district, therefore, is when, for jurisdictional purposes, the

Mucerinos’ relocation occurred.

“Citizenship,” in the context of diversity jurisdiction, “means domicile,” and an individual

party “can only have one domicile at a time.” Kendall v. DeLong, No. 20-5573, 2020 WL 9813548,

at *2 (6th Cir. Dec. 1, 2020) (quoting Stifel v. Hopkins, 477 F.2d 1116, 1120 (6th Cir. 1973));

Persinger v. Extendicare Health Servs., Inc., 539 F. Supp. 2d 995, 996 (S.D. Ohio 2008) (citing

Eastman v. Univ. of Mich., 30 F.3d 670, 672 (6th Cir. 1994); Von Dunser v. Aronoff, 915 F.2d

1071, 1072 (6th Cir. 1990)). That premise—combined with the fact that every individual party

must have some domicile—means that “[o]ne’s previous domicile is not lost until a new one is

acquired.” Bergenstein v. Sawhny, No. 1:04 CV 1373, 2007 WL 963305, at *1 (N.D. Ohio Mar.

28, 2007) (citing Von Dunser, 915 F.2d at 1072.) The fact that Mucerino sold his Tennessee home

before he filed his Complaint, therefore, does not necessarily establish that he had ceased to be a

Tennessee citizen for the purposes of this court’s jurisdiction.

The constitutional and statutory grants of diversity jurisdiction, insofar as they provide any

guidance to the courts at all, are mainly concerned with what diversity of citizenship is, not with

how a court should treat the specific, presumably rare situation of a plaintiff’s filing his claims

right in the middle of his moving from one state to another. The court, accordingly, must consult

the available caselaw for guidance in determining at what moment the Mucerinos of Tennessee

became the Mucerinos of Florida. If it happened after April 7, 2021, the court must dismiss the

claims; if it happened on or before that date, then the court can consider those claims on the merits.

“To acquire a domicile within a particular state, a person must be physically present in the

state and must have either the intention to make his home there indefinitely or the absence of an

intention to make his home elsewhere.” Kendall, 2020 WL 9813548, at *2 (6th Cir. Dec. 1, 2020)

(quoting Stifel, 477 F.2d at 1120) (emphasis omitted). “When a party’s domicile is in doubt, courts

must” take a “case-by-case approach” that considers the “totality of the circumstances, . . .

weighing a variety of relevant factors.” Woods v. Keith Titus Corp., No. 3:12-CV-112, 2013 WL

3324062, at *3 (E.D. Tenn. July 1, 2013) (quoting Ford Motor Co. v. Collins, No. 11-15011, 2011

WL 5877216, at *2 (E.D. Mich. Nov. 23, 2011)). Among the factors considered by courts are:

the party’s current residence; voter registration and voting practices; situs of

personal and real property; location of brokerage and bank accounts; membership

in unions, fraternal organizations, churches, clubs, and other associations; place of

employment or business; driver’s license and automobile registration; payment of

taxes; as well as several other aspects of human life and activity.

Id. at *3 (quoting Ford Motor Co., 2011 WL 5877216, at *2).

All of the available evidence suggests that, by the time this case was filed, Mucerino had

developed the intention to remain in Florida as a resident. He sold his Tennessee home and emptied

it of his belongings, and he had begun moving those belongings to Florida, a state with which he

already had family connections. He had, moreover, established a physical presence in Florida by

buying a home. While the various formal records and licenses bearing a Tennessee address for

Mucerino certainly provide some evidence in favor of concluding that Mucerino’s domicile

remained in Tennessee as of April 7, 2021, all of those records can be easily explained by the fact

that Mucerino, like many individuals, was not perfectly efficient in terms of completing every task

associated with his move ahead of time. The court ultimately must ask itself which of the two

possible interpretations of events is more plausible: that Mucerino had moved to Florida by April

7 but had delayed in terms of updating all of the associated paperwork; or that Mucerino sold his

home, purchased a new home, and moved his belongings, despite the fact that he had not yet

developed an intent to live in the new state. In the court’s view, the former explanation makes far

more sense.

Martin, in essence, is asking the court to dismiss Mucerino’s claims by concluding that,

regardless of where Mucerino lives now, he had simply not checked enough boxes by April 7,

2021 to be considered a citizen of Florida. And there is nothing inherently wrong with such an

argument; sometimes a court’s jurisdiction really does hinge on minute, formal distinctions. The

court, however, will only dismiss a case for failure to comply with technical requirements if the

technical requirements at issue are actually requirements. Martin, however, has not identified any

caselaw—let alone any statutory or constitutional provision—stating that the steps that Mucerino

had failed to complete by April 7 were actual prerequisites for reestablishment of his domicile, as

opposed to merely data points that the court should consider in the context of all of the other

available information. To the contrary, the caselaw is effectively unanimous that the court must

look to the totality of the circumstances. Mucerino’s unfinished steps are merely pieces of evidence

to be considered, and the court finds that they are outweighed by the evidence suggesting that, as

of April 7, 2021, Mucerino had, in fact, physically relocated to Florida and intended to remain

there indefinitely. The court, accordingly, will not dismiss his claims for lack of jurisdiction.

B. Application of Tennessee Public Participation Act

The Tennessee Public Participation Act (“TPPA”) is Tennessee’s version of what is widely

known as an “anti-SLAPP statute”—”SLAPP” meaning, here, “strategic lawsuit against public

participation.” As the “anti-” in the description of the statute suggests, such lawsuits are strongly

disfavored, because the punitive and chilling effects that they impose on public discourse typically

far outweigh any benefits associated with allowing the underlying claims to proceed. Although

anti-SLAPP statutes have existed for some time, Tennessee’s TPPA itself “is a relatively new

creature of the legislature, having only been codified in 2019” and, thus far, has only been

interpreted by the courts in a relative handful of cases. Doe v. Roe, No. M2020-0127-7COA-R3-

CV, 2021 WL 2588394, at *2 (Tenn. Ct. App. June 24, 2021). The statute is, at least generally

speaking, “designed to ‘encourage and safeguard the constitutional rights of persons to petition, to

speak freely, to associate freely, and to participate in government to the fullest extent permitted by

law and, at the same time, protect the rights of persons to file meritorious lawsuits for demonstrable

injury.’” Id. (quoting Tenn. Code Ann. § 20-17-102).

The core feature of the TPPA is its creation of a unique procedural mechanism, distinct

from an ordinary motion to dismiss for failure to state a claim, through which a defendant may

seek an expeditious dismissal of the suit filed against him based on his participation in public

discourse. The structure of that procedural mechanism is set forth in Tenn. Code Ann. § 20-17-

104:

(a) If a legal action is filed in response to a party’s exercise of the right of free

speech, right to petition, or right of association, that party may petition the court to

dismiss the legal action.

(b) Such a petition may be filed within sixty (60) calendar days from the date of

service of the legal action or, in the court’s discretion, at any later time that the

court deems proper.

(c) A response to the petition, including any opposing affidavits, may be served and

filed by the opposing party no less than five (5) days before the hearing or, in the

court’s discretion, at any earlier time that the court deems proper.

(d) All discovery in the legal action is stayed upon the filing of a petition under this

section. The stay of discovery remains in effect until the entry of an order ruling on

the petition. The court may allow specified and limited discovery relevant to the

petition upon a showing of good cause.

Id. When filing such a petition, “[t]he petitioning party has the burden of making a prima facie

case that a legal action against the petitioning party is based on, relates to, or is in response to that

party’s exercise of the right to free speech, right to petition, or right of association.” Tenn. Code

Ann. § 20-17-105(a). Once the defendant makes out a prima facie case that he was exercising his

First Amendment rights, however, the TPPA directs that “the court shall dismiss the legal action

unless the responding party [the plaintiff] establishes a prima facie case for each essential element

of the claim in the legal action.” Tenn. Code Ann. § 20-17-105(a).

As well-intentioned as those provisions may be, their self-evidently procedural nature

poses an obstacle to simply importing the TPPA in its unvarnished entirety into a case filed in

federal court. The Federal Rules of Civil Procedure already set forth specific procedures pursuant

to which a district court shall consider whether to dismiss a plaintiff’s claims, and those

procedures—mostly covered by Rule 12, until the Rule 56 summary judgment phase of the case—

differ from the procedures set out in the TPPA. Particularly stark is the difference in the burden on

the plaintiff, who, under the TPPA, must actually “establish” elements of his claim instead of

simply pleading his claims adequately to defeat a motion to dismiss pursuant to Rule 12(b)(6). The

TPPA, moreover, expressly acknowledges that parties may rely on affidavits, which Rule 12(b)(6)

does not allow. Compare Tenn. Code Ann. § 20-17-105(d) (“The court may base its decision on

supporting and opposing sworn affidavits stating admissible evidence upon which the liability or

defense is based and on other admissible evidence presented by the parties.”) with Fed. R. Civ. P.

12(d) (“If, on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are presented

to and not excluded by the court, the motion must be treated as one for summary judgment under

Rule 56.”). There is, in other words, “a ‘direct collision’ between the Federal Rule[s] and . . . state

law,” at least in terms of how the court should consider requests for dismissal filed immediately

after the filing of a complaint. Walker v. Armco Steel Corp., 446 U.S. 740, 749 (1980) (quoting

Hanna v. Plumer, 380 U.S. 460, 469 (1965)). Indeed, this very case demonstrates that arguable

collision. Martin has filed motions pursuant to Rule 12(b)(1) and Rule 12(b)(6)—which is what a

person in his position should do under the Rules—but he has also filed a separate “petition”

pursuant to the TPPA, which certainly seems, on its face, to be a means of circumventing the

ordinary allocation of burdens imposed by Rule 12(b) and developed, in federal caselaw, over

many years and countless incremental decisions.

Federal law is abundantly clear with regard to what must happen when a duly adopted

Federal Rule of Civil Procedure collides with a state procedural edict in a federal court: the state

requirement yields, and the Federal Rule prevails. See, e.g., ISpine, PLLC v. Allstate Prop. & Cas.

Ins. Co., No. 19-CV-11458, 2020 WL 5769086, at *3 (E.D. Mich. Sept. 28, 2020) (discussing

Hanna, 380 U.S. at 471 and subsequent cases). Judge Richardson of this court considered this

principle in the context of another state’s anti-SLAPP statute in Lampo Grp., LLC v. Paffrath, No.

3:18-CV-01402, 2019 WL 3305143 (M.D. Tenn. July 23, 2019), and concluded that, because

“both the [anti-SLAPP statute] and [the] federal rules purport to answer the same question—the

applicable standard for granting pre-trial judgment to defendants in federal court”—then the state

provision was “in direct conflict with the Federal Rules of Civil Procedure” and “cannot apply in

federal court.” Id. at *3. This court agrees with Judge Richardson’s analysis and finds it equally

compelling with regard to the TPPA. Admittedly, the TPPA, as Martin points out, is arguably less

contrary to the Federal Rules of Civil Procedure than the California statute at issue in Lampo was—

in that the standard pursuant to which a TPPA petition is to be evaluated is closer to, though still

distinct from, the standard governing a Rule 12(b)(6) motion—but the determinative issue here is

not the degree of the conflict between state and federal law but the existence of that conflict in the

first place. If the court were to resolve the plaintiffs’ claims pursuant to the procedures set forth in

the TPPA, it would be adjudicating those claims in a manner not contemplated or authorized by

the Federal Rules. The court will therefore deny Martin’s petition by granting the plaintiffs’ motion

to strike that petition.

Martin protests that the court should not treat the TPPA as wholly pre-empted by the

Federal Rules, because portions of the TPPA can be construed as setting forth substantive

propositions of Tennessee law, particularly the substantive law of defamation and immunity for

defamation. Insofar as Martin is correct on that front, the court will consider any such substantive

rules, if necessary, in the context of considering his Rule 12(b)(6) motion. His reliance on the

procedural framework imposed by the TPPA, however, is misplaced in this court, and the motion

seeking to invoke that procedural framework must be stricken.

C. Motion to Dismiss for Failure to State a Claim

1. Defamation Claims

To establish a defamation claim under Tennessee law, a plaintiff must demonstrate that the

defendant published a false and defamatory statement with knowledge of the statement’s falsity,

reckless disregard for the statement’s truth, or negligence in failing to ascertain the statement’s

truth. Sullivan v. Baptist Mem’l Hosp., 995 S.W.2d 569, 571 (Tenn. 1999); Press, Inc. v. Verran,

569 S.W.2d 435, 442 (Tenn. 1978) (citing Restatement (Second) of Torts § 580B (1977)). The

particular state of mind that is required to sustain a defamation claim varies depending on the

identity of the parties involved. See West v. Media Gen. Convergence, Inc., 53 S.W.3d 640, 645

(Tenn. 2001). “[O]nly statements that are false are actionable,” and, to establish any type of

defamation claim, the plaintiff must prove that the defamation resulted in injury to his character

and reputation. Brown v. Christian Bros. Univ., 428 S.W.3d 38, 50 (Tenn. Ct. App. 2013).

Martin argues that the court should dismiss the plaintiffs’ defamation claims because his

statements on Facebook were non-defamatory as a matter of law. As Martin points out, “[a]

published statement is not libelous because the subject of the publication finds it annoying,

offensive or embarrassing. Rather, the statement must reasonably be construable as holding the

plaintiff up to public hatred, contempt or ridicule[] and convey an element of disgrace.” Grant v.

Commercial Appeal, No. W2015-00208-COA-R3-CV, 2015 WL 5772524, at *9 (Tenn. Ct. App.

Sept. 18, 2015) (quoting Aegis Scis. Corp. v. Zelenik, No. M2012-00898-COA-R3CV, 2013 WL

175807, at *5 (Tenn. Ct. App. Jan. 16, 2013)) (internal quotation marks omitted). A negative

statement about another person, moreover, is not defamatory merely because it was made out of

“personal ill will, hatred, spite, or [a] desire to injure.” Hibdon v. Grabowski, 195 S.W.3d 48, 63

(Tenn. Ct. App. 2005) (quoting McWhorter v. Barre, 132 S.W.3d 354, 365 (Tenn. Ct. App. 2003)).

It is, therefore, not enough merely for Mucerino to assert that the Facebook post was uncharitable

or that Martin intended to portray Mucerino negatively; Mucerino must plead facts plausibly

showing a wrongful, meaningful threat to his actual reputation.

“The question of whether [a writing] was understood by its readers as defamatory is a

question for the jury, but the preliminary determination of whether the [writing] is ‘capable of

being so understood is a question of law to be determined by the court.’” Seaton v. TripAdvisor

LLC, 728 F.3d 592, 597 (6th Cir. 2013) (quoting McWhorter v, 132 S.W.3d at 364). In conducting

that analysis, the court is permitted to—and indeed should—draw on a full, reasonable

understanding of how human beings communicate, including an acknowledgment of the fact that

some statements should be understood as employing “loose, figurative, [and/or] hyperbolic

language which would negate the impression that the” statement should be construed as literally

true. Milkovich v. Lorain J. Co., 497 U.S. 1, 21 (1990). At the same time, however, the court’s

acknowledgment of the ordinary norms and contingencies of communication does not always

operate in the defendant’s favor. While the court may, in one case, determine that literally false

language was, in context, hyperbolic and non-defamatory, the same court might conclude, in a

different case, that a “seemingly innocuous statement” is, in context, an instance of actionably

defamatory innuendo. Hunt v. Tangel, No. 01A01-9705-CV-00199, 1997 WL 778989, at *3 (Tenn.

Ct. App. Dec. 19, 1997).

When a court considers an allegedly defamatory statement, it should read the statement “as

a person of ordinary intelligence would understand [it] in light of the surrounding circumstances.”

Loftis v. Rayburn, No. M2017-01502-COA-R3-CV, 2018 WL 1895842, at *5 (Tenn. Ct. App. Apr.

20, 2018) (quoting Grant, 2015 WL 5772524, at *10). Because the court is considering these issues

in the context of Rule 12(b)(6), however, what matters is not the full actual context of the

statements, but the context as plausibly alleged in the Complaint. That Complaint, the court notes,

is unusually brief, consisting of just eight pages, half of which are devoted to setting out the

specific civil counts and prayers for relief. The Complaint makes no meaningful effort to explain

the context of Martin’s allegations or even what they are about—despite the fact that the plaintiffs’

boilerplate assertions that the statements are false suggest that they know what Martin was

referring to. Martin has provided a great deal of additional context, and the facts that he has

provided would seemingly be appropriate for consideration under the TPPA procedural

framework. Under the Rules of Civil Procedure, however, the court cannot consider those

extraneous facts without converting Martin’s motion into one for summary judgment—which, as

the plaintiffs note, would then raise potentially serious issues regarding whether the plaintiffs have

had a sufficient chance to engage in discovery and offer facts in rebuttal.5 The court, accordingly,

will consider only the Complaint, pursuant to Rule 12(b)(6), and will limit its analysis to

consideration of the relatively few facts stated therein.6

By the court’s reading, the Facebook post at the heart of this case suggested the following

negative facts about Mucerino and/or Creekside Terrace: 1) that Camp Ravine, which they

developed, has “many unresolved issues,” which the Complaint does not identify; 2) that

5 “If, on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are [1] presented to and [2]

not excluded by the court, the motion must be treated as one for summary judgment under Rule 56.” Fed.

R. Civ. P. 12(d). In other words, when a party filing or opposing a Rule 12(b)(6) or 12(c) motion brings up

facts that are outside the four corners of the pleadings and not subject to either judicial notice or

incorporation by reference into the pleadings, the court has two choices: it can ignore the non-pleaded facts

on the ground that they are, by definition, irrelevant to the pending motion, which is confined to testing the

pleadings; or, in the alternative, the court can consider some or all of the additional, non-pleaded facts, in

which case the court is required to convert the motion to one for summary judgment under Rule 56. If the

court chooses the second option, however, “[a]ll parties must be given a reasonable opportunity to present

all the material that is pertinent to the motion.” Fed. R. Civ. P. 12(d). As long as a district court limits itself

to one of the two options contemplated by Rule 12(d), the decision to convert or not to convert a motion is

within that court’s reasonable discretion. See Miller v. Mearns, 643 F. App’x 552, 554 (6th Cir. 2016)

(citing Wysocki v. Int’l Bus. Mach. Corp., 607 F.3d 1102, 1104 (6th Cir. 2010)).

6 The court notes that, regardless of the disposition of the current motions, there may have been reasonable

strategic considerations that favored such a short Complaint. Although the lack of more contextual

information may work against the plaintiffs in some ways, it is noteworthy that it is Martin, not the

plaintiffs, who actually wishes to expand the facts under consideration, because, as Martin’s briefing

demonstrates, the full context of this situation arguably reveals additional viable defenses. The court notes

the length of the Complaint merely to highlight what the court does and does not have to work with.

Mucerino, as the developer, is “responsible for” those “issues”; 3) that he had “no plans to fix” the

“issues”; and 4) that there was some meaningful possibility that Mucerino would “claim[]

bankruptcy” if Camp Ravine’s residents sought money damages. Although Martin has provided

some information regarding what those “issues” were—they apparently involve matters related to

drainage, erosion, and/or sidewalks—all that matters at this stage is what the Complaint itself

states. That Complaint contains no meaningful information regarding what the “issues” cited were

or how a short, vague Facebook post about those “issues” could harm Mucerino’s reputation, let

alone harm it enough to actually injure him economically, as he claims.

Every neighborhood has issues. There is, moreover, nothing remarkable about the fact that

some of a neighborhood’s issues might be attributable to a neighborhood’s developer. Developing

a neighborhood involves tradeoffs, including, potentially, tradeoffs between costs and amenities.

Whether a particular feature of a neighborhood is a problem and whether the developer should be

faulted for his decisions regarding that feature are, at least in significant part, questions of opinion,

unless the developer has failed to live up to contractual obligations—which the Facebook post in

question here does not actually assert. While there is, as the plaintiffs point out, no categorical bar

to premising liability on a statement with an opinion component, the opinion-based nature of a

statement does render that statement less likely to have a defamatory impact. See Milkovich, 497

U.S. at 21 (discussing issues related to supporting a claim for defamation based on a statement of

opinion). This court finds that particularly true where, as here, the text of the statement at issue

makes clear that it is alluding to underlying facts that would require additional investigation to

understand. Any reasonable reader of Martin’s Facebook post would note its lack of specific

allegations and understand that he was reading merely Martin’s characterization of a possibly

complex, underlying situation that might be subject to other interpretations.

The Complaint’s cursory recitation of the facts—little more, in essence, than allowing the

Facebook post to speak for itself—is simply not sufficient to state a claim for defamation under

Rule 8 of the Federal Rules of Civil Procedure. Based on the facts set forth in the Complaint, a

member of the public who saw Martin’s Facebook post would know only the unremarkable fact

that some residents of Camp Ravine were unhappy for undisclosed reasons and were considering

litigation but had concerns that Mucerino might, as developers sometimes do, resort to bankruptcy

if faced with large civil liabilities. It is understandable that Mucerino would be unhappy with such

a message and believe that it was unfair. The tort of defamation, however, does not exist to

transform every bit of public interpersonal unfairness into a court case. Defamation exists only to

address the narrow set of situations in which a false statement “constitute[s] a serious threat to the

plaintiff’s reputation.” Davis v. The Tennessean, 83 S.W.3d 125, 128 (Tenn. Ct. App. 2001)

(quoting Stones River Motors, Inc. v. Mid-S. Pub. Co., 651 S.W.2d 713, 719 (Tenn. Ct. App.

1983)). The Complaint simply fails to plausibly describe such a situation here. What it describes,

rather, is simply ordinary griping that comes with the territory of residential property development.

In the plaintiffs’ Response, they point out that there is a history, in Tennessee law, of

treating assertions of a plaintiff’s insolvency as having a defamatory meaning per se. See, e.g.,

Cont’l Nat. Bank v. Bowdre, 23 S.W. 131, 134 (Tenn. 1893) (“Of merchants, tradesmen, and others

in occupations where credit is essential to successful prosecution, any language is actionable,

without proof of special damages, which imputes a want of credit or responsibility, or suggests a

charge of insolvency.”) (citation omitted). Even the plaintiffs themselves admit, however, that

Tennessee has long since abolished any such presumption. (See Doc. No. 30 at 4 n.3 (admitting

that the plaintiffs “no longer enjoy the presumption of injury” associated with suggestions of

insolvency). Indeed, the caselaw on which the presumption was based has not merely been

superseded but, in the words of the Tennessee Supreme Court, “no longer has any practical

meaning” at all. Memphis Pub. Co. v. Nichols, 569 S.W.2d 412, 419 (Tenn. 1978). The Tennessee

Supreme Court even approvingly quoted scholarly criticism of the per se defamation framework

as based on “often illogical distinctions, most of them relics from centuries past.” Id. (citations

omitted). Statements regarding insolvency are now, like all other statements, subject to the

“uniform requirement” that their defamatory nature actually be supported by facts. Id. (citations

omitted).

In any event, the Facebook post does not suggest that Mucerino or Creekside Terrace is

insolvent or will imminently be so; it suggests, instead, that Mucerino might ultimately escape

satisfaction of a judgment through a future bankruptcy—which is, of course, something that

happens fairly often, as unfortunate as that may be for plaintiffs and creditors. Indeed, even a

company with exemplary financial health can be driven to the bankruptcy process by litigation,

particularly if the claims are big enough and the company small enough. Expressing concern for

that future possibility is not the same thing as suggesting that a company is presently in financial

distress.

Characterizing Martin’s statements as defamation by implication does not solve the

Complaint’s problems. The court has already considered the contents of the Facebook post in the

context of the most damning implications that one could draw from it, particularly with regard to

the reference to bankruptcy. The plaintiffs are correct that the post implied more than it explicitly

asserted, but even those implications, like the literal content of the message, are simply too vague

and unremarkable to give rise to liability. The idea that a developer facing lawsuits might file for

bankruptcy is hardly shocking; indeed, such considerations come into play in many instances of

contemplated litigation, including, in particular, litigation against small businesses in fields with

significant downside risks, like property development. Without some greater explanation of why

the Facebook post posed a serious threat to the plaintiffs’ reputations, neither its express content

nor its implication is actionable.

2. False Light Invasion of Privacy

Tennessee recognizes the claim of false light invasion of privacy to protect the rights of

plaintiffs who “have had attributed to them certain qualities, characteristics, or beliefs that, while

not injurious to their reputation, place those persons in an undesirable light.” West v. Media Gen.

Convergence, Inc., 53 S.W.3d 640, 645 (Tenn. 2001). In Tennessee, a false light claim requires

that the defendant gave publicity to the plaintiff that places the plaintiff in a false light, that the

false light is highly offensive to a reasonable person (as determined objectively), and that the

defendant acted with knowledge or reckless disregard for the falsity of the publicized matter (as

determined subjectively). Id. at 643–44 (quoting the Restatement (Second) of Torts (1977), §

625E).

Although a claim for false light invasion of privacy is separate and distinct from a claim

for defamation, Tennessee courts, “[i]n recognition of the kinship between” the two types of claim,

have often “defined the contours of the tort of false light with reference to the Tennessee law on

defamation.” Gallagher v. E.W. Scripps Co., No. 08-2153-STA, 2009 WL 1505649, at *7 (W.D.

Tenn. May 28, 2009) (citing West, 53 S.W.3d at 645–49). That kinship is apparent here, in that the

vague nature of the Facebook post and the lack of any extenuating context—which proved fatal to

the plaintiffs’ claims for defamation—also support dismissal of the plaintiffs’ claims for false light

invasion of privacy. The Facebook post depicts a garden-variety dispute between residents and a

developer and notably omits any details that might amount to accusing Mucerino of particular

wrongdoing or breach of any contractual obligations. The only message that a member of the

general public could take from the post was that some Camp Ravine residents were unhappy with

Mucerino about something and were considering either a lawsuit or entreaties to “city hall” about

the situation. There is nothing in the post that could plausibly be considered—aunder an objective,

reasonable-person standard—to be “highly offensive.” The court therefore will dismiss the claims

for false light invasion of privacy.

Ill. CONCLUSION

For the foregoing reasons, the plaintiffs’ Motion to Strike (Doc. No. 18) will be granted

and Martin’s Petition to Dismiss Pursuant to the Tennessee Public Participation Act (Doc. No. 13)

will be denied. Martin’s Rule 12(b)(1) Motion to Dismiss (Doc. No. 21) will also be denied, but

his Rule 12(b)(6) Motion to Dismiss (Doc. No. 23) will be granted in full, and the claims will be

dismissed.

An appropriate order will enter.

United States District Judge

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