The opinion
IN THE UNITED STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF TENNESSEE
COLUMBIA DIVISION
JOHN DOE, )
)
Plaintiff, ) NO. 1:23-cv-00002
)
v. ) JUDGE CAMPBELL
) MAGISTRATE JUDGE HOLMES
BRIAN SPENCER, et al. )
)
Defendants. )
MEMORANDUM and ORDER
On June 23, 2023, the Magistrate Judge issued a Report and Recommendation
recommending Defendant’s motions to dismiss (Doc. Nos. 28, 29, 30, 31) be denied and that
Defendant be required to answer the complaint. (Doc. No. 38). Noting the absence of any timely
objections to the Report and Recommendation, on July 14, 2023, the Court Adopted and Approved
the Report and Recommendation and Denied Defendant’s motions to dismiss. (See Order, Doc.
No. 42). Shortly thereafter, however, Defendant, who stated that he did not receive the Report and
Recommendation, filed a motion for extension of time to file objections. (Doc. No. 43). The Court
granted the motion. Now before the Court are the Defendant’s Objections to the Report and
Recommendation (Doc. Nos. 45, 46), the Plaintiff’s response (Doc. No. 47), and Defendant’s
response to Plaintiff’s response (Doc. No. 48).
For the reasons stated herein, Defendant’s objections to the Report and Recommendation
are OVERRULED.
I. BACKGROUND
The Complaint alleges that Defendant used the U.S. Mail to mail a total of nine envelopes
to Plaintiff, his ex-wife, his adult child, several of his neighbors, and his place of business at
addresses in Lewisburg, Tennessee, and Spring Hill, Tennessee. (Id., ¶¶ 16-22). Each envelope
contained at least one of four different versions of a collage that included photographs and screen
shots of sexually explicit images Plaintiff had sent to the Defendant’s wife during an extra-marital
on-line relationship. (Id.).
Before and after Defendant’s alleged mailing, the parties exchanged a series of online
messages. Notably, after the mailing, on December 16, 2022, Defendant sent an email to Plaintiff:
“Nice to know you knew about the email and completely Ignored a simple request of anything
regarding contact to be sent … I have ideas for days and can’t think of a better person. I am sorry
I upset your wife …” (Compl., Doc. No. 1, ¶ 24). Plaintiff’s attorney sent Defendant a cease-and-
desist letter on December 19, 2022. (Id.). On January 4, 2023, Plaintiff received a message from
Defendant’s Facebook account that stated: “Look who died, in an accident I think you know him
so sorry …” (Id., ¶ 25). Plaintiff construed this message as a threat.1 He filed this case on January
9, 2023, by filing a Verified Complaint.
Plaintiff alleges that Defendant’s distribution of intimate visual depictions of Plaintiff
without Plaintiff’s consent violates Section 1309 of the Violence Against Women Reauthorization
Act of 2022, 15 U.S.C. § 6851 (Counts I-X). He also brings state law tort claims for negligence
per se (Counts XI and XII), intentional infliction of emotional distress (Count XIII), and “publicity
given to private facts” (Count XIV).
1 The Court has recognized that it appears the Facebook message was sent to numerous people, likely the result
of hacking, and was not actually a threat from Defendant to Plaintiff. (See Order, Doc. No. 26 at 3 (citing Def. Resp.,
Doc. No. 14, Ex.3)).
Defendant filed four separate motions to dismiss arguing that the claims should be
dismissed because: (1) Plaintiff failed to verify that the alleged Facebook threat was an actual
threat; (2) Section 230(c) of the 1996 Telecommunications Act precludes liability for distributing
content provided by another information content provider through an interactive computer service;
(3) the Court does not have personal jurisdiction over him; and (4) requiring him to travel to
Tennessee to defendant this lawsuit violates his Fifth and Fourteenth Amendment rights. The
Magistrate Judge recommended that the motions to dismiss be denied. (Report and
Recommendation, Doc. No. 38).
II. STANDARD OF REVIEW
Under 28 U.S.C. § 636(b)(1) and Local Rule 72.03(b)(3), a district court reviews de novo
any portion of a report and recommendation to which a specific objection is made. United States
v. Curtis, 237 F.3d 598, 603 (6th Cir. 2001). General or conclusory objections are insufficient. See
Zimmerman v. Cason, 354 F. App’x 228, 230 (6th Cir. 2009); Lea v. United States Dep’t of Agric.,
2018 WL 721381, at *1 (M.D. Tenn. Feb. 6, 2018) (“A general objection, or one that merely
restates the arguments previously presented, does not sufficiently identify alleged errors on the
part of the magistrate judge.”). Thus, “only those specific objections to the magistrate’s report
made to the district court will be preserved for appellate review.” Id. (quoting Smith v. Detroit
Fed’n of Teachers, 829 F.2d 1370, 1373 (6th Cir. 1987)). Additionally, arguments not raised
before the Magistrate Judge are not properly raised in an objection to a Report and
Recommendation. Swain v. Comm’r of Soc. Sec., 379 F. App’x 512, 517-18 (6th Cir. 2010) (citing
Ward v. United States, 208 F. 3d 216 (6th Cir. 2000)) (table) (“[A] claim raised for the first time
in objections to a magistrate judge’s report is deemed waived.”). In conducting the review, the
court may “accept, reject, or modify, in whole or in part, the findings or recommendations made
by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C).
III. ANALYSIS
Defendant has raised a number of objections to the Report and Recommendation, which
take the form of refiling the entire Report and Recommendation with a “response” in italics on any
point on which the Defendant disagrees. For purposes of this review of Defendants objections,
the Court addresses only those objections that were first raised before the Magistrate Judge and
that are relevant to issues raised in the motions to dismiss.2
A. Motion to Dismiss – Federal Rule of Civil Procedure 11(b)(3)
Defendant argues dismissal is warranted under Federal Rule of Civil Procedure 11(b)(3)
because the verified complaint involved an allegation that Defendant had threated his life by
sending a Facebook message on January 4, 2023, without first engaging in due diligence to verify
the message was an actual threat. (Doc. No. 28).
The Magistrate Judge recommended dismissal on these grounds be denied. (Doc. No. 38
at 7). First, she noted that Defendant failed to comply with the mandatory safe harbor filing
requirement of Rule 11 prior to filing his motion. (Id.). Second, she found Plaintiff’s inclusion of
the Facebook message was neither a violation of Rule 11(b)(3) or fraud because “Plaintiff’s
perception of the message as a threat on his life was within the realm of reasonableness given the
content of the message and the alleged actions of Defendant in this case that preceded the
message.” (Id.). Finally, the Magistrate Judge stated that Defendant’s contention that Plaintiff’s
2 For this reason, the Court does not consider the applicability of contributory negligence, which
Defendant raised in the Objections. (See Doc. No. 46 at 2). The Court will note that to the extent Defendant
seeks to raise the affirmative defense of contributory negligence, the appropriate place to do so is in the
answer to the Complaint.
lawsuit is “centered upon only the threat” is “nonsensical,” noting that the Facebook messages is
linked to only one of multiple claims. (Id. at 8).
Defendant objects to the Magistrate Judge’s conclusions on grounds that: (1) he was
unaware of the safe harbor in Rule 11 and had no time to comply with the safe harbor; (2) Plaintiff’s
perception of the Facebook message as an actual threat was not reasonable; and (3) he did not
claim that the lawsuit was “centered” on the alleged death threat, only that it was the “tipping
point” in Plaintiff bringing the lawsuit.
The Court finds the objections without merit. Defendant’s failure to comply with the safe
harbor of Rule 11(b)(3) is not excused by his lack of familiarity with the Rules or by the timing of
the motion to dismiss. As the Magistrate Judge states, the safe harbor is mandatory. See Ridder v.
City of Springfield, 109 F.3d 288, 297 (6th Cir. 1997). The Court also agrees with the Magistrate
Judge that, given the alleged acts of the Defendant that preceded the message, it was not outside
the realm of reasonableness for Plaintiff to construe the message as an actual threat. In any event,
inclusion of the fact that he received the message was neither a violation of Rule 11 nor fraud.
B. Motion to Dismiss – Telecommunications Act
Next, Defendant moves to dismiss the complaint based on the Communications Decency
Act of 1996, 47 U.S.C. § 230(c). The Magistrate Judge recommended Defendant’s motion be
denied because he had provided no legal support that Section 230(a) of the Communications
Decency Act immunizes him from legal liability for disclosing sexually explicit pictures of
Plaintiff. (Doc. No. 38 at 8-10). The Magistrate Judge examined the specific statutory language
and concluded that it does not apply to the claims in this case. (Id.).
In his objections, Defendant restates his argument to the Magistrate Judge: “I would again
here refer to the above Laws in regards to ‘Copies’ and that the Alleged explicit material was
created by Plaintiff himself it was posted to an interactive site…” (Doc. No. 46 at 20). Defendant
concedes he has not provided case law to support his argument, but argues that the Magistrate
Judge also did not provided case law. (Id.).
These objections are without merit. The Magistrate Judge did, in fact, provide case law
regarding the Communications Decency Act. (See Doc. No. 38 at 8-10). The Court is not
persuaded that Section 230(c) of the Communications Decency Act has any application to this
case.
C. Motion to Dismiss – Fifth and Fourteenth Amendment to the United States
Constitution and Personal Jurisdiction
Defendant’s third and fourth motions to dismiss argue that this case should be dismissed
for lack of personal jurisdiction and, relatedly, because requiring Defendant to answer to claims in
Tennessee violates his right to due process. (Doc. Nos. 30, 31).
The Magistrate Judge found that Defendant is subject to specific personal jurisdiction in
Tennessee by virtue of his contacts with the forum – mailing intimate visual depictions of Plaintiff
to addresses of residents and businesses in Tennessee. (Doc. No. 38 at 10-11). The Magistrate
Judge explained:
Defendant engaged in no less than nine actions to create contacts with
Tennessee when he mailed nine envelopes containing the offending materials
to Tennessee residents and a business address within Tennessee. These were
not random or fortuitous, or attenuated contact Defendant had with
Tennessee. These were targeted, purposeful actions specifically directed at
Tennessee and intended to cause specific harm to Plaintiff within Tennessee
by disclosing the offending materials to Tennessee residents within this State.
(Id.).
Defendant objects to the Magistrate Judge’s conclusion that he is subject to personal
jurisdiction in Tennessee. He contends that under Walden v. Fiore, 571 U.S. 277 (2014), he is not
subject to personal jurisdiction in this forum because “minimum contacts analysis looks to the
defendant’s contact with the form State itself, not the defendant’s contacts with persons who
reside there.” (Doc. No. 46 at 25 (emphasis in original)). He also argues it was not foreseeable
that he would be subject to personal jurisdiction in Tennessee, in part because Massachusetts does
not have a “revenge porn law,” and he never availed himself of “any of the protections or other
services of Tennessee law or any other services provided by the state.” (Id. at 10-11, 26).
Defendant also cites International Shoe Co. v. Washington, 326 U.S. 310 (1945), at length. (Doc.
No. 46 at 21). Finally, Defendant objects to the Magistrate Judge’s consideration of the effects of
the mailing on persons other than the Plaintiff. He contends this “enter[ed] facts that are not in
evidence,” and argues “there is no mention of any other recipient coming forward with suit of
looking to the court for relief.” (Doc. No. 46 at 24). In sum, Defendant asks the Court to reconsider
the recommendation to exercise personal jurisdiction. (Id. at 25).
The Court finds the Magistrate Judge’s analysis of personal jurisdiction to be sound.
Because Defendant focuses only on due process limits to personal jurisdiction, the Court will limit
its analysis to that issue.
The Fourteenth Amendment’s Due Process Clause limits state courts’ ability to exercise
jurisdiction over an out-of-state defendant. Walden v. Fiore, 571 U.S. 277, 283 (2014). “Due
process requires the defendant to possess ‘certain minimum contacts with’ the forum State ‘such
that the maintenance of the suit does not offend traditional notions of fair play and substantial
justice.’” Johnson v. Griffith, 85 F.4th 429, 432 (6th Cir. 2023) (citing Int’l Shoe Co. v.
Washington, 326 U.S. 310, 316 (1945) (internal quotation omitted)). Here, the Court considers
whether Defendant’s “case-related contact” with Tennessee are sufficient for specific personal
jurisdiction over Defendant.
The Sixth Circuit has recently explained that specific jurisdiction over an out-of-state
defendant requires that the defendant’s “suit-related conduct” show a “substantial connection with
the forum State.” Johnson, 85 F.4th at 433 (citing Walden, 571 U.S. at 284). “Tortious conduct
satisfies this requirement when the defendant intentionally cultivates contacts with the forum State,
as opposed to forming ‘random, fortuitous, or attenuated contacts.’” Id.
In Johnson, the Sixth Circuit considered whether Kathy Griffith was subject to personal
jurisdiction in Tennessee based on “a series of tweets to her two million Twitter followers asserting
that [a Tennessee resident] had engaged in homophobic conduct.” Id. at 431. “She encouraged her
followers to make him ‘online famous’ and tagged his company. She then asked his employer to
‘remove[]’ him from the Board of Directors” and threatened that the “nation w[ould] remain
vigilant.” Id. The Court found Griffith was subject to personal jurisdiction in Tennessee because
her conduct concerned the Tennessee activities of a Tennessee resident, impugned the
professionalism of the Tennessee resident whose career was in Tennessee, and Griffith “intended
the ‘brunt of the harm’ would befall” the Tennessee resident in Tennessee. Id.
Defendant argues that under Walden, he is not subject to personal jurisdiction in Tennessee
because his contacts are limited to contact with people who reside in the state, not the state itself.
Defendant is mistaken. His conduct in mailing the offensive materials to Tennessee residents in
Tennessee, the very conduct from which the claims arise, is what subjects him to personal
jurisdiction in this forum.3
3 The Magistrate Judge’s recognition that individuals in Tennessee are alleged to have received the
mailing does not “inject facts not in evidence.” The complaint alleges the mailings were sent to and
received by individuals in Tennessee. However, Defendant is correct that the complaint does not assert
claims on behalf of individuals other than Plaintiff.
The circumstances in Walden are distinguishable. 571 U.S. at 281. In that case, professional
gamblers from Nevada sued an officer for seizing their cash at a Georgia airport. Id. at 281.
Although the officer knew the gamblers lived in Nevada, he had never conducted activities in or
contacted anyone in Nevada, and his alleged torts against the Nevada residents occurred in
Georgia, not Nevada. Id. at 288. If Defendant had mailed the offensive materials to Plaintiff’s
friends and family in a state other than Tennessee, Waldon would be more applicable, and the
personal jurisdiction analysis would likely have a different result. Under the circumstances here,
however, personal jurisdiction over Defendant in Tennessee does not violate due process.
IV. CONCLUSION
For the reasons stated, Plaintiff’s objections are overruled and the Court’s order adopting
and approving the Report and Recommendation and denying the motions to dismiss (Doc. No. 42)
is hereby amended to incorporate the Court’s consideration of Defendant’s Objections as stated in
this Memorandum. The ultimate disposition, however, is unchanged.
It is so ORDERED.
____________________________________
WILLIAM L. CAMPBELL, JR.
UNITED STATES DISTRICT JUDGE