Doe v. Predator Catchers, Inc.

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

JOHN DOE,

Plaintiff,

v. Case No. 3:22-cv-414-MMH-LLL

PREDATOR CATCHERS, INC.

and ERIC SCHMUTTE,

Defendants.

ORDER

THIS CAUSE is before the Court on Defendants’ Motion for Summary

Judgment and Incorporated Memorandum of Law (Doc. 91; Motion), filed on

January 19, 2024. Plaintiff John Doe filed a response in opposition to the

Motion on February 22, 2024. See Plaintiff’s Response in Opposition to

Defendants’ Motion for Summary Judgment (Doc. 105; Response). Although

permitted to do so under the Local Rules of this Court, Defendants Predator

Catchers, Inc. (PCI) and Eric Schmutte did not file a reply in support of their

Motion and the time for doing so has passed. See Local Rule 3.01(d), United

States District Court, Middle District of Florida (Local Rule(s)). Accordingly,

this matter is ripe for review.

I. Background1

In the spring of 2022, John Doe had an active profile on the online dating

application known as Tinder. See Affidavit of John Doe (Doc. 106-1; Doe Aff.)

¶¶ 3, 5. At the time, Doe was a thirty-eight-year-old man living in Atlantic

Beach, Florida. See Deposition of John Doe (Doc. 98; Doe Dep.) at 209.

According to Doe, Tinder is a site for adults only and is “extremely clear about

it being a forum for adults only.” See Doe Dep. at 140-41, 138. On March 2,

2022, Doe “matched” on Tinder with a woman identified as “Jessie”—meaning

that he liked Jessie’s profile, and Jessie liked his. See Doe Dep. at 44-45, 47.

According to Doe, the age listed on Jessie’s Tinder profile was nineteen. Id. at

146. And although Jessie’s profile is not in the record, Doe recalls that her

interests included “something about road trip [sic].” Id. at 139. Doe initiated

a conversation with Jessie by sending her a message through Tinder’s

messaging platform at 11:09 p.m. on a Wednesday night. See Doe Dep. at 129-

30, Ex. F at 4. Because the full context of Doe’s exchange with Jessie is

relevant to the claims in this case, the Court sets forth the entirety of the Tinder

messages below.

1 Unless otherwise noted, the facts recited here are undisputed. For the purposes of

resolving the Motion for Summary Judgment, the Court views all disputed facts and

reasonable inferences in the light most favorable to the Plaintiff, John Doe. However, the

Court notes that these facts may differ from those ultimately proved at trial. See Lee v.

Ferraro, 284 F.3d 1188, 1190 (11th Cir. 2002).

The messages exchanged on Wednesday night are:

Doe: Hey

Jessie: Hey

Doe: Where was the last place you went on a road trip to?

See Doe Dep. at 129, Ex. F at 4. The conversation continued Thursday

morning around 10:33 a.m.:

Jessie: Here haha I’m from Ohio

Doe: So did you move here, or are you just visiting?

Jessie: Just visiting

Doe: I’d be happy to help you create a very memorable experience

while you’re in town.

Jessie: How

Doe: I’m sure we can come up with something that will make you

smile

Jessie: Like what

Doe: Something along the lines of multiple, consecutive, knee-

weakening orgasms . . .

Interested?

Jessie: What’s ur number

See id., Ex. F at 4-5. At this point, Doe provided his phone number to Jessie

and their conversation resumed at 12:42 p.m. via text message:

Jessie: Hey [Doe] it’s Jessie from tinder

Doe: Hey

Jessie: Wyd

Doe: Not much. Working from home. You?

Doe: But, I’d be happy to shift my focus from work to you if you’re

interested?

Jessie: Send pic

Doe: [Sends picture]

Doe: Your turn

Jessie: How old r ya again

Doe: 38

Jessie: So idk if you’re guna Wana talk to me

Doe: Why is that?

Jessie: I’m yunger than 18

Doe: Ohh

Are you interested otherwise?

Jessie: Ya just didn’t kno if u are

Doe: How old are you?

Jessie: 13

Doe: Doesn’t your profile say you’re over 18?? I feel like that’s a detail

I would have noticed

Jessie: You can’t put that you’re 13 on there haha

Doe: Oh, got it. That makes perfect sense. I really appreciate you

being honest about your age before meeting up.

God knows I’m more than a little flattered that a beautiful young

woman, like yourself, would be interested in me.

Unfortunately, as much as it pains me to say, I’m going to have

to pass on what sounds like it would have been an amazing time.

You’re already gorgeous at your age, that I can’t even begin to

imagine the smoke show you’re going to be when you’re old

enough to meet up!

Please feel free to save my number & give me a call in about 5

or 6 years. I’ll probably be going through a mid-life crisis

around that time so the timing will work out perfectly!

Jessie: Ah ok

Doe: The last paragraph was a joke . . .

Jessie: Lol

Doe: You do still owe me a pic though. I sent you one, so I think it’s

only fair that you send me one

Doe: Are you staying out at the beaches?

Jessie: [Sends picture2]

Jessie: I’m in Atlantic beach area

Doe: For how long?

Jessie: Leaving Sunday

Doe: Do other guys usually have an issue when you tell them how old

you are?

Jessie: Some do some don’t

Doe: Just out of curiosity, are you busy this afternoon?

2 The picture is in the record as the first picture in Exhibit E to Doe’s deposition. See

Doe Dep. at 153-54, Ex. E.

Jessie: Nope

Doe: I guess there’s nothing wrong with us hanging out. What time

would you be able to get together?

Jessie: Not sure yet

What u tryna do

Doe: Maybe smoke and hang out for a little

Jessie: What else u got in mind

Doe: What do you mean?

Doe: Depends on how well we got along I guess

Jessie: Just asking if there anything else in ur mind lol

Doe: Possibly, but I think it would be better to meet before getting

into it

Jessie: Y loo

Lol*

Doe: I’m sure you can figure that one out

Jessie: Um no lol

Doe: Just prefer to tell you in person than by text, but if you don’t

want to get together we don’t have to

Jessie: Y u scared or something

Doe: I prefer to think of it as being smart, but like I said-we don’t have

to get together if you’ve changed your mind

Jessie: I didn’t change my mind lol

Wym smart?

No one goes through my phone. And I delete our messages

anyway

Doe: Just given the difference in age, I don’t see any need to write a

detailed account of everything I may be thinking about

Jessie: Lol oook

Doe: So – you want to meet up?

Jessie: Ya

Doe: What time will you be ready?

Jessie: Maybe in like like 2 hrs

Doe: Ok

See Doe Dep. at 135-36, Ex. F at 6-20. The conversation continues at 5:24 p.m.:

Jessie: What u Wana do? I’m honestly down for anything

Doe: I live in Atlantic Beach. Want to come smoke?

Jessie: Idk I’ve never smoked b4

Doe: Then nevermind. Forgot I said that

You just want to come over and not smoke?

Jessie: What do u Wana do

Doe: Go for a bike ride, go to the beach, Netflix – take your pick

Doe: Maybe I’m going about this the wrong way. What would you like

to do?

Jessie: Netflix is always good

Doe: What time?

Jessie: When u say Netflix do u mean actually Netflix or Netflix and

chill haha

Doe: The second

Doe: Which did you mean?

Jessie: Down for either

Surprised u want to. Didn’t think u wanted to hook up with me

Doe: What time are you going to be ready?

Jessie: Prob in an hr

Doe: How about 8 PM?

Jessie: Ya

Have u ever hooked up with someone my age

Doe: Nope

Why do you ask?

Jessie: Jw

Doe: Have you ever hooked up with someone my age?

Jessie: Not in their 30s

I’ve only had sex 4 times

Haha

Doe: Are you ready?

Jessie: Not yet prob wait for my grandma go to sleep, is that ok?

She goes to bed early

Doe: Yeah, that’s ok.

Around what time do you think that will be?

Jessie: Maybe an hr

Doe: Ok

Jessie: So ur wanting to like …u know , do it

Doe: I have no expectations. Probably best to meet each other in

person, before making a decision like that

Jessie: I mean u said u wanted to Netflix and chill

Id., Ex. F at 20-26 The conversation appears to have paused at this point and

then resumed at 10:56 p.m. as follows:

Jessie: Guess not [grinning face with sweat emoji]

Doe: What do you mean? I thought you were going to let me know

when you were ready?

Jessie: U never texted me back lol

Wyd

Doe: Just finishing up a project I’ve been working on.

What are you up to?

Jessie: Just watching tv

Doe: Is it too late to hang out tonight?

Jessie: What u Wana do?

Doe: Same plan, different time?

Jessie: Netflix and chill?

Doe: Sounds like a plan

Jessie: My grandma is still awake for some reason lol

How late u staying up

I’m gonna shower. Should I shave my legs lol

Doe: That’s up to you, but I think the majority of men, if asked, would

always say “yes”

Jessie: I mean if we hookin up I Wana shave sooooo lol

If we not I won’t shave haha

Doe: I would say go for it, but if I don’t hear back from you for over an

hour I can’t guarantee I’ll still be awake

Jessie: I understand haha

U free tomorrow if not tonight

Doe: I have plans for a friend’s birthday tomorrow evening, but I’ll

still be up for a while tonight

Jessie: What about Saturday?

Doe: Sounds like you’re not planning to come over tonight anymore?

Jessie: U said u might not be up still

Doe: If you took too long. How long do you need?

Jessie: Haha my grandma got called into work, she a nurse. She said

they begged her to come in

Id., Ex. F at 26-30. The conversation then continues on Friday at 11:14 a.m.

Jessie: Hey

Doe: Hey

Jessie: Wyd

Doe: Working

Jessie: Cool

Doe: No, it’s not. But it is necessary . . . at least for now

Jessie: Ya lol

Id., Ex. F at 30-31. At 11:03 p.m. that evening, Doe texts Jessie “What’s up?”

and receives no response. Id., Ex. F at 31. Doe texts her again at 1:32 a.m.

and the conversation resumes:

Doe: You still in Atlantic Beach?

Jessie: Ya

Leaving Sunday

Doe: Cool – you able to get together now?

Jessie: Really?

Doe: Yes

Jessie: What u Wana do

Doe: Netflix

Jessie: Idk it’s Soo late lol

U aren’t free tomorrow night?

Doe: Nope. It’s the perfect time!

You have to wait for your grandmother to go to sleep anyways.

She should be good and asleep by now.

It’ll be fun

Jessie: What about in the morning

And r we just wat hing movie because should I shower lol

Watching movie*

Doe: You can come just like you are right now

Jessie: My grandma is working actually lol

Doe: Perfect. How soon can you be ready?

Jessie: U Wana just chill here? She won’t be back until 6:30

Doe: I’d rather come back to my house, so there’s no chance of

someone coming home early

Jessie: She won’t. She always texts me when she’s leaving work. Lol no

one else lives here

I also have tv in my room so if she did come home you could just

climb out the window lol

Doe: Are you not willing to come here? I don’t live far away & you

wouldn’t have to climb out any windows

I also think there will be more fun things to do over here

Jessie: Like what

Doe: You’ll have to see for yourself

Jessie: Dude just tell me lol

Doe: I honestly don’t know. I was just trying to convince you to come

here.

I would be much more comfortable if we can hang out at my

place, but if you don’t want to come over then I’m not going to

keep pressuring you to come here

Jessie: I’m just a little nervous just jumping In ur car right away. Can

u come in and talk for just a sec so I know u aren’t crazy killer

lol

Gotcha

Wow that’s wack

Doe: What is?

Yeah I can talk for a minute or however long it takes you to

figure out that I’m not a crazy killer

Jessie: Ok let me get up and get ready real quick.

Doe: Ok, how long until you’re ready?

Jessie: 10 min

1340 Roxie st

Doe: That’s a bit further away than I thought

Jessie: How far

Doe: 10-15 minutes

Jessie: Bruh that ain’t far at all haha

Doe: Can you FaceTime real quick before I drive out there

Jessie: [Sends picture3]

How far r u

Doe: Just leaving. I meant a more revealing pic

Jessie: [Sends picture4]

How’s this lol

R u like close lol

Doe: Yeah

Jessie: Y it feel like u [expletive] with me

Doe: Think I’m here

See Doe Dep., Ex. F at 31-42.

3 This picture is the third picture in Exhibit E to Doe’s deposition. See Doe Dep. at

204-05, Ex. E.

4 This picture is the second picture in Exhibit E to Doe’s deposition. See Doe Dep. at

207, Ex. E.

Unbeknownst to Doe, Jessie was a decoy profile and the individual

communicating with Doe as Jessie was actually Eric Schmutte, a man in his

mid-thirties who is the president and founder of PCI. See Deposition of Eric

Schmutte (Doc. 94; Schmutte Dep.) at 27-28, 30, 34, 49, 65; see also Deposition

of Samantha Syrus (Doc. 95; Syrus Dep.) at 25. PCI is a non-profit corporation

whose mission is to find and “help expose online predators . . . trying to meet

children.” See Schmutte Dep. at 28, 34; see also Syrus Dep. at 21. Generally,

PCI operates by creating “decoy” profiles on social media websites or online

dating platforms. See Schmutte Dep. at 27. PCI is funded through donations.

Id. at 38.

Here, Schmutte created the “Jessie” profile. Id. at 49. The profile

identified Jessie as being over the age of eighteen because Tinder will not allow

a user to create a profile younger than eighteen. See id. at 64, 102, 117. The

pictures of Jessie are actually pictures of a person named Alexis Thomas who

has given PCI permission to use her photograph in decoy profiles. See id. at

24, 27-28, 30-31, 49, 52-54; see also Predator Catchers, Inc.’s Answers to Pl.’s

First Interrog. (Doc. 106-2), No. 10. Thomas was over the age of eighteen when

PCI first started using her photograph for decoy profiles, and twenty at the time

Schmutte was conversing with Doe, but Thomas’s age in the pictures

themselves is unclear on the current record. See Schmutte Dep. at 24, 52-54.5

According to Doe, when he asked Jessie to FaceTime with him, he

received a picture and a phone call instead. See Doe Dep. at 55; Doe Aff. ¶ 10.

He explains that, “[he] spoke with a woman who claimed to be ‘Jessie’ and who

was clearly over the age of eighteen (18).” See Doe Aff. ¶ 10. Doe recounts

that “[t]he woman with whom [he] spoke encouraged and pressured [him] to go

to the home where she was supposedly staying with her grandmother.” See id.

The person on the phone was actually Samantha Syrus, a thirty-year old

woman who volunteers with PCI. See Syrus Dep. at 5, 18, 42-43.

Doe arrived at the house where Jessie was purportedly staying at around

four o’clock in the morning. The three PCI members present at the house

recorded their encounter with Doe and Doe filed those recordings with the

Court. See Plaintiffs’ Notice of Filing (Doc. 104). The following facts are

based on the Court’s review of the four videos in the record. When Doe arrives,

he is greeted at the door by Syrus who is playing the role of “Jessie,” and they

5 In the Response, Doe asserts that Thomas “was over the age of 18 when each of the

photographs were taken” and cites to Schmutte’s Deposition testimony at pages fifty-two

through fifty-four. See Response at 8. The Court has reviewed the cited testimony and it

does not support this contention. Doe’s counsel asks Schmutte how old Thomas was at the

time Schmutte posed as a decoy for the operation involving Doe (around 20), and he asks if

Thomas was over the age of eighteen when PCI started using her photographs (yes). See

Schmutte Dep. at 53-54. But Thomas’s age at the time the photographs were taken is not

addressed.

sit down on the couch. See Schmutte Dep. at 78-79. Less than a minute after

his arrival, Doe is confronted by PCI member Brooklyn Beeman who briefly

pretends to be Jessie’s grandmother before dropping the affectation altogether.

See Deposition of Brooklyn Beeman (Doc. 96; Beeman Dep.) at 38-39.

Schmutte enters the room soon thereafter. Schmutte and Beeman interrogate

Doe about “Jessie’s” age and accuse him of soliciting a minor. Doe and

Schmutte stand at the front door arguing for a few minutes about Jessie’s age

and the meaning of “Netflix and chill.” Eventually, Doe opens the door to

leave. Doe is inside the house for less than five minutes.

Schmutte makes no attempt to physically stop Doe from opening the door

but follows Doe outside, walking closely behind him while mocking and

insulting Doe. Schmutte escalates his tone and language, shouting expletives

at Doe. Beeman or Syrus can be heard in the background yelling insults and

accusations at Doe as well. At one point, Schmutte adopts a calmer demeanor,

referring to Doe as “dude” and “sir,” and asks Doe if he thinks it is acceptable

for a guy in his thirties to meet a thirteen-year-old girl. Doe responds that she

was on a dating website for adults. As Doe drives away, Schmutte shouts

insults and expletives at him again.

At no point in the encounter does Schmutte, Syrus, or Beeman verbally

threaten to strike Doe. Schmutte does not raise his hand or fist to Doe, nor

does he make any sudden movements suggesting he is about to hit, shove, or

otherwise physically attack Doe. Indeed, Schmutte is recording the

confrontation such that throughout the entire encounter he is steadily holding

a raised cellphone in his right hand. Nevertheless, when Schmutte is shouting

at Doe he is standing so close to Doe that Doe can feel Schmutte’s spit hitting

his face. See Doe Dep. at 110, 118. In his Affidavit, Doe states that during

this encounter he “felt trapped and thought [Schmutte] may hit me . . . .” See

Doe Aff. ¶ 11. After Doe leaves, Schmutte states on the video that he “wanted

to punch [Doe] so bad.” The PCI members also discuss Doe’s apparent fear

during the encounter. The entire confrontation, from Doe’s arrival at the

house until he drives away, lasts less than seven minutes.

Significantly, PCI broadcasted the encounter with Doe via a livestream

on the PCI YouTube channels and Facebook pages. See Schmutte Dep. at 77-

78. On the video, Schmutte, Syrus and Beeman read and respond to comments

posted by people following the livestream and periodically thank people for

making donations to PCI. After Doe leaves, Schmutte, Syrus, and Beeman

continue the livestream by discussing their interactions with Doe and

responding to viewer comments. Schmutte observes that Doe was “really

careful in the chats,” called him a “beat around the bush type of predator,” and

expressed his view that “unfortunately, a guy like that, if the cops got involved,

he wouldn’t . . . get charged, just ‘cause of the chats, how the chats were, he was

too cautious.” Schmutte then reads aloud the messages exchanged between

Doe and Jessie, adding his commentary throughout. Notably, Schmutte

expresses his opinion that Doe would not be charged and convicted for this

conduct based on the term “Netflix and chill,” although “we all know” what it

means. On the recordings, the PCI members refer to Doe as a “cho-mo”6 and

a predator. One likens him to Jeffrey Epstein, and another states that he was

“creepy as hell” with “serial killer vibes.” During the recording, one of the PCI

members holds up a phone displaying Doe’s LinkedIn account showing his full

name and photograph.

PCI posted the videos on its YouTube channels and Facebook pages, and

posted a shorter clip on Instagram. See Predator Catchers, Inc.’s Answers to

Pl.’s First Interrog. (Doc. 106-2) No. 15; see also Schmutte Dep. at 75-76. The

record contains a screenshot of a post on a PCI Facebook page that identifies

Doe by name and location and remains accessible on PCI’s Facebook page. See

Doe Dep., Ex. G (the Facebook Post); Doe Aff. ¶ 13, Ex. C. The Facebook Post

states that Doe, “38 of Atlantic Beach, FL came to meet whom he believed to be

a 13 yo child at 4am. He came to ‘Netflix and Chill’ and also asked for a

suggestive photo from the child before meeting.” See Doe Dep. at 209-11, Ex.

G. On the Facebook Post, PCI includes a Wikipedia definition for “Netflix and

Chill” as follows:

6 It is the Court’s understanding that the slang term “cho-mo” is an abbreviation for

child molester.

an Internet slang term used as a euphemism for sexual activity,

either as part of a romantic partnership, as casual sex, or as a

groupie invitation. Since its first recorded, nonsexual use in a

tweet posted in 2009, . . . the phrase has gained popularity within

the Twitter community and other social media sites like Facebook

and Vine. By 2015, “Netflix and chill” had become an Internet

meme and its use on teenage social media was commonly described

as “sexual.”

Id.

On March 10, 2022, Schmutte and Doe exchanged text messages. See

Doe Aff. ¶ 12, Ex. B. Schmutte told Doe that he was uploading the video to

multiple social media websites and informed Doe that “getting videos taken

down only makes us uploaded [sic] it to more platforms now.” Id., Ex. B. Doe

responded that he had retained counsel to initiate a lawsuit against Schmutte

and PCI. Id., Ex. B. Around this same time, Doe filed a complaint against

PCI and Schmutte with the Jacksonville Sheriff’s Office. See Doe Dep. at 68-

70.

Doe presents evidence that friends and family members have seen PCI’s

video of the encounter. In his deposition, Doe explains that a “friend of a

friend” posted about the incident online, that Doe’s friend saw the post and

commented on it, and they “tagged every other friend that we had in common .

. . .” See Doe Dep. at 76-77. Doe also testifies that several people have sent

him links to “the form or something posted on [PCI’s] Facebook page” and asked

him if he was aware of it. Id. at 78. And he identifies two friends who have

cut off communication with him. Id. at 90-91. Doe also states that his brother

refused to allow contact between Doe and his niece and nephew beginning “a

week or two following the incident” in March of 2022, until “a few months”

before his December 29, 2023 deposition. See id. at 88-89. In his Affidavit,

Doe states that he has “anxiety that people will continue to send me links to the

Facebook post and that anyone I try to get close to or date will not trust me, or

it will at least be in the back of their mind.” See Doe Aff. ¶ 14. Indeed, Doe

states that “[i]f anyone Google’s [sic] my name, they still see the Defendants’

Facebook post about me,” and he attaches the Google search results for his

name that “prominently shows the post and claims about the encounter . . . .”

See Doe Aff. ¶ 13, Ex. C. Doe also asserts that “[f]rom the comments on the

social media posts, and from seeing news stories and tropes from TV shows or

movies, I am fearful my safety is at risk due to people having the wrong idea

about me.” Id.

On April 12, 2022, Doe initiated this action against Schmutte and PCI.

See Complaint (Doc. 1; Original Complaint). The operative pleading at this

time is the Amended Complaint (Doc. 69), filed July 14, 2023. In the Amended

Complaint, Doe sets out five counts identifying the following claims: 1)

Defamation, 2) Invasion of Privacy, 3) Intentional Infliction of Emotional

Distress (IIED), 4) Assault, and 5) Civil Remedy for Cyber Crimes. In the

instant Motion, Defendants seek summary judgment in their favor on all claims

pursuant to Rule 56, Federal Rules of Civil Procedure (Rule(s)). Defendants

also assert that the Court lacks subject matter jurisdiction over this action.

For the reasons that follow, the Court finds that the Motion is due to be granted,

in part, and denied, in part.

II. Subject Matter Jurisdiction

In the Motion, Defendants assert that the Court lacks subject matter

jurisdiction over this action and seek summary judgment on this basis. See

Motion at 13-17.7 Specifically, Defendants maintain that Doe fails to present

evidence sufficient to meet the $75,000 amount in controversy threshold as

necessary to invoke this Court’s diversity jurisdiction under 28 U.S.C. § 1332(a).

See id. at 15-17. Defendants contend that “Plaintiff has failed to provide any

evidence of compensatory damages, has failed to disclose through mandatory

disclosures what his damages are, and has failed to provide clear and

convincing evidence to support an award for punitive damages.” Id. at 17.

Doe does not directly respond to this argument in the Response. Nevertheless,

7 Defendants’ request for summary judgment based on a lack of subject matter

jurisdiction is procedurally improper. “[S]ummary judgment pursuant to Rule 56 is not the

correct procedure for dismissing based on lack of subject matter jurisdiction because ‘a grant

of summary judgment is a decision on the merits . . . [but] a court must dismiss a case without

ever reaching the merits if it concludes that it has no jurisdiction.’” See Goodman ex rel.

Goodman v. Sipos, 259 F.3d 1327, 1331 n.6 (11th Cir. 2001) (second and third alterations in

original) (quoting Capitol Leasing Co. v. Fed. Deposit Ins. Corp., 999 F.2d 188, 191 (7th Cir.

1993)). If the Court lacks subject matter jurisdiction, then the Court must dismiss the action

without prejudice. See Stalley ex rel. U.S. v. Orlando Regional Healthcare Sys., Inc., 524

F.3d 1229, 1232 (11th Cir. 2008) (“A dismissal for lack of subject matter jurisdiction is not a

judgment on the merits and is entered without prejudice.”).

Doe does summarize the evidence of his damages and briefly discusses the types

of damages that are available in defamation actions. See Response at 15-16,

22-23.

Significantly, this is the second time Defendants have challenged the

amount in controversy in this action. Defendants previously filed a motion to

dismiss the Original Complaint in which they raised a lack of subject matter

jurisdiction, among other arguments. See Defendants’ Motion to Dismiss

Plaintiff’s Complaint, or in the Alternative, for a More Definite Statement (Doc.

42; Motion to Dismiss). On June 21, 2023, the Court entered an Order finding

that Doe had failed to meet his burden to show that the amount in controversy

threshold was met and granting Defendants’ motion to dismiss on that basis.

See Order (Doc. 64) at 11-12. Notably, the Court found inadequate support for

damages in excess of $75,000 in part because Doe had failed to either allege or,

when challenged, present any evidence that “Defendants or anyone else

identified him online in the recording, photograph, internet posts, or

comments,” or that he “believes someone has otherwise connected him to the

incident.” See Order at 10. Ultimately, the Court dismissed Doe’s claims

without prejudice but provided him with the opportunity to file an amended

complaint, which he did, and that Amended Complaint is the operative pleading

at this time. See id. The Court presumes the reader’s familiarity with the

June 21, 2023 Order and the legal principles set forth there.

A. Applicable Law

“The party seeking to invoke federal diversity jurisdiction under 28

U.S.C. § 1332 must prove that the claim meets the threshold jurisdictional

amount of $75,000 by a preponderance of the evidence.” See Wineberger v.

RaceTrac Petro., Inc., 672 F. App’x 914, 917 (11th Cir. 2016).8 In determining

whether the amount in controversy requirement is met, courts may make

reasonable deductions and inferences, and may rely on “‘judicial experience and

common sense.’” Id. at 917 (quoting Roe v. Michelin N. Am., Inc., 613 F.3d

1058, 1061-62 (11th Cir. 2010)). Moreover, the amount in controversy is not “a

prediction of ‘how much the plaintiffs are ultimately likely to recover,’” but

rather “an estimate of how much will be put at issue during the litigation . . . .”

See S. Fla. Wellness, Inc. v. Allstate Ins. Co., 745 F.3d 1312, 1315 (11th Cir.

2014); McDaniel v. Fifth Third Bank, 568 F. App’x 729, 730 (11th Cir. 2014)

(“When determining whether the amount in controversy requirement has been

met, district courts should only consider the amount the plaintiff has placed in

controversy, not the amount the plaintiff is likely to recover.”).9

8 In the June 21, 2023 Order, the Court found that the “legal certainty” test does not

apply because Doe sought indeterminate damages in the original Complaint (Doc. 1). See

Order at 5-9. In the Response, Doe makes no effort to argue that the Court should apply the

legal certainty test at this time and as such, the Court will not revisit that determination.

9 The Court does not rely on unpublished opinions as binding precedent; however, they

may be cited in this Order when the Court finds them persuasive on a particular point. See

McNamara v. GEICO, 30 F.4th 1055, 1060–61 (11th Cir. 2022); see generally Fed. R. App. P.

32.1; 11th Cir. R. 36–2 (“Unpublished opinions are not considered binding precedent, but they

may be cited as persuasive authority.”).

Although Doe asserts several causes of action, both parties focus their

damages analysis on Doe’s defamation claim so the Court will do the same.

“Florida law recognizes two categories of compensatory damages for

defamation: general and special.” Grayson v. No Labels, Inc., 601 F. Supp. 3d

1251, 1256 (M.D. Fla. 2022).10 Special damages are “actual, out of pocket

losses; that is, realized or liquidated loss.” Id. at 1257 (citing Daniels v. HSN,

Inc., No. 8:18-cv-3088, 2020 WL 533927, at *3 (M.D. Fla. Feb. 3, 2020)). Special

damages are not at issue in this case.11 See Doe Dep., Ex. H: Pl.’s Unverified

Resp. to Defs.’ First Set of Interrog.; see also Doe Dep., Ex. I: Pl.’s Resp. to Defs.’

First Req. for Produc. To Pl.

Aside from special damages, Florida law also permits an award of

“general damages to the victim of defamation to compensate him for the

reputational damage and emotional anguish caused by the defamation.” See

Sirer v. Aksoy, No. 21-cv-22280-BLOOM/Otazo-Reyes, 2023 WL 3166453, at *7

10 The Court notes that although decisions of other district courts are not binding, they

may be cited as persuasive authority. See Stone v. First Union Corp., 371 F.3d 1305, 1310

(11th Cir. 2004) (noting that, “[a]lthough a district court would not be bound to follow any

other district court’s determination, the decision would have significant persuasive effects”).

11 Although Florida law requires a plaintiff to plead and prove special damages when

asserting a claim for defamation per quod, Doe asserts a claim of defamation per se. See

Daniels v. HSN, Inc., No. 8:18-cv-3088-T-24 JSS, 2020 WL 533927, at *3 (M.D. Fla. Feb. 3,

2020) (discussing difference between defamation per se and defamation per quod); see also

Boyles v. Mid-Fla. Television Corp., 431 So. 2d 627, 633-35 (Fla. 5th DCA 1983) (discussing

meaning of the term “innuendo” when distinguishing between defamation per se and

defamation per quod).

(S.D. Fla. May 1, 2023). “A plaintiff may recover such general damages ‘even

if there is no evidence that assigns an actual dollar value to the injury.’” Id.

(citation omitted). Significantly,

When it comes to general damages “[t]here is no exact standard for

fixing the compensation to be awarded on account of such elements

of damage. Any award should be fair and just in the light of the

evidence.” “The injured party may recover damages resulting

from impaired reputation and standing in the community,

humiliation, mental anguish, and suffering.”

Grayson, 601 F. Supp. 3d at 1256-57 (internal citations omitted) (quoting Army

Aviation Heritage Found. & Museum, Inc. v. Buis, 504 F. Supp. 2d 1254, 1261

(N.D. Fla. Mar. 28, 2007)).

B. Discussion

Here, Defendants contend that Doe fails to meet the amount in

controversy requirement because he does not seek any special damages and his

general damages, in Defendants’ view, are simply not that severe. See Motion

at 15-17. Defendants attempt to minimize Doe’s evidence of reputational harm

and emotional anguish by arguing that “only” two people known to Doe

commented on the video and “only” six individuals sent the video to Doe

privately. Id. at 15-16. Defendants assert that these people either were not

close friends to Doe or have remained friends with him since. Id. And

Defendants brush aside that Doe’s brother refused to allow Doe to see his niece

and nephew for over a year because Doe “has been permitted to see them in the

last few months.” Id. at 16. The Court wholly rejects these self-serving

arguments.

Defendants have publicly identified Doe by name, location, and image, as

a child predator. Doe presents evidence that members of the community,

including his friends and family, have seen the video PCI posted of the

encounter. And the evidence shows that the Facebook Post about him remains

easily accessible online. Thus, Doe reasonably fears that anyone new he meets

will uncover the accusation simply by searching his name on the internet. If

Doe prevails on his claim that this accusation is false and defamatory, judicial

experience and common-sense dictate that even absent special damages, the

general damages stemming from such conduct could easily exceed $75,000.

See Coton v. Televised Visual X-Ography, Inc., 740 F. Supp. 2d 1299, 1314 (M.D.

Fla. 2010); see also Sirer, 2023 WL 3166453, at *7-8. The amount in

controversy requirement is satisfied. The Court has subject matter

jurisdiction over this action. Thus, the Court tuns to the merits of the Motion.

III. Summary Judgment

A. Standard of Review

Under Rule 56 of the Federal Rules of Civil Procedure (Rule(s)), “[t]he

court shall grant summary judgment if the movant shows that there is no

genuine dispute as to any material fact and the movant is entitled to judgment

as a matter of law.” Rule 56(a). The record to be considered on a motion for

summary judgment may include “depositions, documents, electronically stored

information, affidavits or declarations, stipulations (including those made for

purposes of the motion only), admissions, interrogatory answers, or other

materials.” Rule 56(c)(1)(A).12 An issue is genuine when the evidence is such

that a reasonable jury could return a verdict in favor of the nonmovant. See

Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742 (11th Cir. 1996) (quoting

Hairston v. Gainesville Sun Publ’g Co., 9 F.3d 913, 919 (11th Cir. 1993)). “[A]

mere scintilla of evidence in support of the non-moving party’s position is

insufficient to defeat a motion for summary judgment.” Kesinger ex rel. Est. of

Kesinger v. Herrington, 381 F.3d 1243, 1247 (11th Cir. 2004) (citing Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)).

The party seeking summary judgment bears the initial burden of

demonstrating to the court, by reference to the record, that there are no genuine

issues of material fact to be determined at trial. See Clark v. Coats & Clark,

12 Rule 56 was revised in 2010 “to improve the procedures for presenting and deciding

summary-judgment motions.” Rule 56 Advisory Committee’s Note 2010 Amends.

The standard for granting summary judgment remains unchanged. The

language of subdivision (a) continues to require that there be no genuine

dispute as to any material fact and that the movant be entitled to judgment

as a matter of law. The amendments will not affect continuing development

of the decisional law construing and applying these phrases.

Id. “[A]lthough the interpretations in the advisory committee[’s] notes are not binding, they

are highly persuasive.” Campbell v. Shinseki, 546 F. App’x 874, 879 n.3 (11th Cir. 2013). Thus,

case law construing the former Rule 56 standard of review remains viable and is applicable

here.

Inc., 929 F.2d 604, 608 (11th Cir. 1991). “When a moving party has discharged

its burden, the non-moving party must then go beyond the pleadings, and by its

own affidavits, or by depositions, answers to interrogatories, and admissions on

file, designate specific facts showing that there is a genuine issue for trial.”

Jeffery v. Sarasota White Sox, Inc., 64 F.3d 590, 593–94 (11th Cir. 1995)

(internal citations and quotation marks omitted). Substantive law determines

the materiality of facts, and “[o]nly disputes over facts that might affect the

outcome of the suit under the governing law will properly preclude the entry of

summary judgment.” Anderson, 477 U.S. at 248; see also McCormick v. City of

Ft. Lauderdale, 333 F.3d 1234, 1243 (11th Cir. 2003) (“The mere existence of

some factual dispute will not defeat summary judgment unless the factual

dispute is material to an issue affecting the outcome of the case.”). In

determining whether summary judgment is appropriate, a court “must view all

evidence and make all reasonable inferences in favor of the party opposing

summary judgment.” Haves v. City of Miami, 52 F.3d 918, 921 (11th Cir. 1995)

(citing Dibrell Bros. Int’l, S.A. v. Banca Nazionale Del Lavoro, 38 F.3d 1571,

1578 (11th Cir. 1994)).

B. Discussion

1. Defamation

To prevail on his defamation claim under Florida law, Doe must establish

these five elements: “(1) publication; (2) falsity; (3) the statement was made

with knowledge or reckless disregard as to the falsity on a matter concerning a

public official, or at least negligently on a matter concerning a private person;

(4) actual damages; and (5) the statement must be defamatory.” See Turner v.

Wells, 879 F.3d 1254, 1262 (11th Cir. 2018) (citing Jews For Jesus, Inc. v. Rapp,

997 So. 2d 1098, 1106 (Fla. 2008)). In the Motion, Defendants raise two

arguments in support of their request for summary judgment on this claim.

First, Defendants contend that Doe fails to specifically identify any defamatory

statements. See Motion at 18. Second, Defendants appear to argue that Doe

lacks evidence to support the third element of a defamation claim concerning

fault. Id.

The Court considers first Defendants’ argument that summary judgment

is warranted because Doe fails to specifically identify any defamatory

statements. Doe does not appear to directly respond to this argument in his

Response. Significantly, as to the videos, Doe makes no effort to identify any

specific statements on the recordings that he contends are defamatory, nor does

he argue that it is the depiction of him in the video as a whole that is

defamatory. See Response at 17-21. It is not the Court’s burden to make

arguments on Doe’s behalf or search the record and consider every statement

which Doe may or may not contend constitutes actionable defamation. See

Schiller v. Viacom, Inc., No. 1:15-cv-22129-UU, 2016 WL 9280239, at *8 (S.D.

Fla. Apr. 4, 2016). As such, the statements in the recordings will not be

considered. Id. Nevertheless, Doe does assert that posting this video and his

image on PCI’s social media sites “improperly associates him with sexual

predators.” See Response at 20; see also Predator Catchers, Inc.’s Answers to

Pl.’s First Interrog., No. 15 (identifying PCI social media pages where video

posted). Absent any argument from Defendants to the contrary, the Court is

satisfied that this juxtaposition—posting Doe’s image on websites identifying

child predators—may convey to an ordinary viewer that Doe is a child predator

and constitute a defamatory statement. See Brown v. Tallahassee Democrat,

Inc., 440 So. 2d 588, 590 (Fla. 1st DCA 1983); see also Miami Herald Pub. Co.

v. Brown, 66 So. 2d 679, 679-81 (Fla. 1953).

In addition, Doe specifically identifies the text of the Facebook Post as

defamatory. See Response at 17, 18, 21; see also Doe Dep., Ex. G. The

substance of the Facebook Post is shown here:

< Comments

@ PCI: Predator Catchers Indianapolis = **"

Mar 5, 2022: @

GE 38 of Atlantic Beach, FL came to

meet whom he believed to be a 13 yo child at

4am. He came to “Netflix and Chill” and also

asked for a suggestive photo from the child

before meeting.

According to Wikipedia “Netflix and Chill” is an

Internet slang term used as a euphemism for

sexual activity, either as part of a romantic

partnership, as casual sex, or as a groupie

invitation. Since its first recorded, nonsexual use

in a tweet posted in 2009,[1][2] the phrase has

gained popularity within the Twitter community

and other social media sites like Facebook and

Vine. By 2015, "Netflix and chill” had become an

Internet meme and its use on teenage social

media was commonly described as “sexual.”

Video: https://youtu.be/YslammT_fk8

CATCH STARTS AT 12 minute mark!

SHARE! SHARE! SHARE!

Have these conversations with your children.

Check your kids devices! And as always join us in

our fight for the change so needed within our

justice system.

Donations always welcomed and appreciated!

Write a comment

See Doe Dep., Ex.G. Doe contends the statement that he “came to meet whom

he believed to be a 18 yo child at 4am” is false because he did not believe that

“Jessie” was thirteen years old. See Response at 21; see also Doe Aff. 4 8-10;

Doe Dep. at 209-10. Doe also argues PCI’s assertion that he “asked for a

suggestive photo from the child before meeting” is false because he “did not ask

for a suggestive photo, did not believe he was communicating with a child, and

in fact was not communicating with a child.” See Response at 21; Doe Dep. at

210-11. And more globally, Doe contends that the depiction of him in this Post

as a predator who intended to meet a child to engage in sexual contact is false.

Significantly, Defendants do not raise any argument that the statements in this

Post constitute non-actionable opinion or are otherwise not defamatory. And

plainly, whether they are false is an issue of fact that turns on Doe’s credibility

and cannot be resolved at this stage of the proceedings. As such, to the extent

Defendants seek summary judgment on Doe’s defamation claim based on a

failure to specifically identify any defamatory statements, this argument fails.

Assuming Doe is not a child predator, as the Court must at this stage in

the proceedings, the Court turns next to Defendants’ argument concerning

fault. See Motion at 18. As recited above, to state a claim for defamation, a

plaintiff must establish, among other things, that the actor acted “with

knowledge or reckless disregard as to the falsity on a matter concerning a public

official, or at least negligently on a matter concerning a private person . . . .”

See Johnston v. Borders, 36 F.4th 1254, 1275 (11th Cir. 2022). This is the

“fault” element of a defamation claim. See Log Creek, L.L.C. v. Kessler, 717 F.

Supp. 2d 1239, 1247 (N.D. Fla. 2010); see also Porter v. Sanchez, No. 6:16-cv-

1379-Orl-37DCI, 2017 WL 5157898, at *3 (M.D. Fla. Nov. 7, 2017). The

entirety of Defendants’ argument on this point is as follows:

Furthermore, element number three of defamation requires

known falsity or reckless disregard as to the falsity by Defendants,

and Plaintiff admits that he could see how some of his messages—

or omissions—during his text conversation with Jessie could seem

like he was being purposefully sexual with someone whom he

believed to be 13 years of age.

See Response at 18 (internal record citations omitted). This undeveloped and

conclusory argument misses the mark. Doe is undoubtedly a private person,

not a public figure. See Porter, 2017 WL 5157898, at *3. As such, he is not

required to establish Defendants’ knowledge or reckless disregard as to the

falsity of the statements. Id. At most, Doe need only show that Defendants

acted negligently. Id.

Upon review of the record, the Court is satisfied that, if the jury finds Doe

credible, there is evidence from which a jury could find that Defendants acted

negligently. For example, Defendants knew that Doe had found Jessie’s profile

on an adult dating website, and Defendants knew that prior to arriving at the

house, the person Doe spoke to on the phone posing as Jessie was a thirty-year-

old woman. The same thirty-year old woman greeted Doe at the door. And

the jury may also agree with Doe that the person in the pictures of Jessie that

Defendants sent to Doe is “clearly” over the age of eighteen. See Doe Dep. at

54, Ex. E. Defendants also knew that Doe had not been charged with any crime

and indeed, Schmutte expressed his view that Doe would not be charged or

convicted for his actions given the ambiguity in the text messages. The Court

expresses no view on whether these facts will persuade the jury or whether Doe

will ultimately prevail. But on this record, and absent any argument to the

contrary, whether Defendants acted negligently in publicly identifying Doe as

a child predator is an issue of fact for the jury to determine. Defendants’

request for summary judgment as to the defamation claim is denied.

2. Invasion of Privacy

In Count II of the Amended Complaint, Doe asserts a claim for invasion

of privacy. Significantly,

Florida recognizes three categories of privacy torts: “(1)

appropriation—the unauthorized use of a person’s name or

likeness to obtain some benefit; (2) intrusion—physically or

electronically intruding into one’s private quarters; [and] (3) public

disclosure of private facts—the dissemination of truthful private

information which a reasonable person would find objectionable.”

See Oppenheim v. I.C. Sys., Inc., 695 F. Supp. 2d 1303, 1308 (M.D. Fla. 2010)

(quoting Allstate Ins. Co. v. Ginsberg, 863 So. 2d 156, 162 (Fla. 2003)). In the

Motion, Defendants interpret Doe’s claim as one based on public disclosure of

private facts and seek summary judgment in their favor on that claim. See

Motion at 19-20. In the Response, Doe asserts that his invasion of privacy

claim encompasses all three versions of the tort and maintains that he has

presented sufficient evidence as to each type of claim. See Response at 23.

Thus, as an initial matter, the Court must determine which forms of invasion

of privacy are at issue here.

Upon careful review of the Amended Complaint, the Court finds that

Count II raises only a claim of invasion of privacy by public disclosure of private

facts. This Count is titled simply “Invasion of Privacy” and, after the wholesale

reincorporation of all previous factual allegations, includes one substantive

allegation:

As a result of the actions of Defendant Schmutte and Predator

Catchers of establishing a Tinder profile of a fictional person

named “Jessie” who used sexually suggestive comments to lure

Plaintiff to a location where he was confronted and verbally

assaulted by Defendants Schmutte and Predator Catchers,

followed by the subsequent posting of the Recording and the

Plaintiff’s photograph and caption, followed yet again by

Defendant Schmutte’s initiating contact with Plaintiff and

threatening to continue to post defamatory material constitutes an

invasion of Plaintiff [sic] Plaintiff’s privacy.

See Amended Complaint ¶ 49. All that follows is an allegation that Doe was

damaged by this invasion of privacy and a demand for judgment. Id. ¶ 50.

Significantly, there are no references to commercial appropriation within this

Count, nor does Doe include any mention of an intrusion into Doe’s private

quarters in this Count.13 Even if some of Doe’s general factual allegations in

13 Notably, in their earlier Motion to Dismiss, Defendants argued, in pertinent part,

that Doe had failed to specify which type of invasion of privacy claim he was asserting and

expressed their understanding that his claim was one for public disclosure of private facts.

See Motion to Dismiss at 15-16. Remarkably, in response to the Motion to Dismiss, Doe noted

the argument but did not assert that Defendants were wrong to view his invasion of privacy

claim as solely based on public disclosure of private facts. See Plaintiff’s Response to

Defendants’ Motion to Dismiss Plaintiff’s Complaint, or in the Alternative, for a More Definite

Statement (Doc. 55) at 2, 6. In fact, nowhere in his Response to the Motion to Dismiss did

Doe assert that in Count II he raised all three forms of invasion of privacy. Ultimately, the

Court decided the Motion to Dismiss on subject matter jurisdiction grounds and thus, did not

reach this issue. See Order (Doc. 64). But it is telling that in drafting the Amended

the background section of the Amended Complaint might be relevant to these

theories of relief, such allegations are insufficient to give Defendants notice that

Doe is asserting these additional claims, particularly given Doe’s

reincorporation of all facts into all Counts. If Doe intended to assert

appropriation or intrusion claims, he should have articulated that he was

making those claims in the Amended Complaint and asserted them in separate

counts. See Palmer v. Albertson’s LLC, 418 F. App’x 885, 889-90 (11th Cir.

2011). Indeed, had the Court understood on its initial review of the Amended

Complaint that Count II encompassed three separate theories of relief, the

Court would have sua sponte struck the filing as an impermissible shotgun

pleading. See Weiland v. Palm Beach Cnty. Sheriff’s Off., 792 F.3d 1313, 1321

n.10 & 1322-23 (11th Cir. 2015) (identifying one type of shotgun pleading as one

“that commits the sin of not separating into a different count each cause of

action or claim for relief” and noting a district court’s obligation to “take the

initiative to dismiss or strike the shotgun pleading” where a defendant fails to

do so); see also Rothenberg v. United Parcel Serv., Inc., No. 3:23-cv-94-MMH-

LLL, 2023 WL 7282887, at *2 n.4 (M.D. Fla. Nov. 3, 2023). At this time, Doe

Complaint, Doe still made no effort to clarify that his invasion of privacy claim was premised

on all three forms of the tort. Indeed, Doe’s claim in Count II of the Amended Complaint is

virtually identical to Count II of the Original Complaint. It is unclear whether this failure

was due to sloppy drafting or gamesmanship, but either way, in the Amended Complaint Doe

provides no notice to Defendants or the Court that he intends to raise invasion of privacy

claims premised on appropriation or intrusion and he cannot assert those theories now.

cannot add new causes of action against Defendants in his response to their

summary judgment motion. See Gilmour v. Gates, McDonald and Co., 382

F.3d 1312, 1315 (11th Cir. 2004) (“At the summary judgment stage, the proper

procedure for plaintiffs to assert a new claim is to amend the complaint in

accordance with [Rule 15(a)]. A plaintiff may not amend [his] complaint

through argument in a brief opposing summary judgment.”) (citation omitted));

see also Flintlock Constr. Servs., LLC v. Well-Come Holdings, LLC, 710 F.3d

1221, 1226-28 (11th Cir. 2013). Thus, having determined that Doe has not

asserted claims for appropriation and intrusion in the Amended Complaint, the

Court will not consider them now.

The Court turns next to Defendants’ contention that they are entitled to

summary judgment on Doe’s claim for public disclosure of private facts. The

elements of this tort under Florida law are: “1) the publication, 2) of private

facts, 3) that are offensive, and 4) are not of public concern.” See Spilfogel v.

Fox Broadcasting Co., 433 F. App’x 724, 725 (11th Cir. 2011). The conduct at

issue here appears to be Defendants’ publication of the videorecording of the

encounter at the house, which includes a segment where Schmutte reads the

text messages exchanged between Doe and Jessie. See Motion at 19 (citing

Doe Dep. at 95); Response at 27. In the Motion, Defendants argue that Doe’s

invasion of privacy claim fails because:

Nowhere does [Doe] state Defendants have publicized private facts

about him that are both offensive and not of public concern.

Furthermore, Defendants’ publication of Plaintiff’s pursuit of a

minor constitutes a matter of public concern. Plaintiff has

presented no record evidence in the alternative, thus defeating the

fourth element of public disclosure of private facts and warranting

the entry of summary judgment in favor of Defendants.

See Motion at 20. Defendants cite no legal authority in support of this

argument. In the Response, Doe argues that publicizing both his private

conversation with Jessie and the confrontation at the house is “highly offensive

to a reasonable person . . . .” See Response at 27. As to whether it constitutes

a matter of public concern, Doe maintains that the public’s right to know does

not extend to “vigilante-attempted sting operations.” Id. Remarkably,

Defendants declined to file a reply to respond to these arguments.

Upon review, the Court finds that Defendants’ conclusory and

undeveloped arguments as to this tort are inadequate to raise the matter for

the Court’s review. Significantly, Defendants do not cite any authority to

support their contention that the publication at issue here was not offensive,

nor do they cite any authority addressing the law in Florida on what constitutes

a matter of public concern. Compounding the problem, Defendants made no

attempt to reply to Doe’s arguments on these points, essentially leaving Doe’s

contentions uncontroverted. The Court will not craft arguments for

Defendants nor conduct legal research on Defendants’ behalf. To the extent

Defendants seek summary judgment on Doe’s invasion of privacy claim, the

Motion will be denied.

3. Intentional Infliction of Mental Distress

To state a cause of action for intentional infliction of emotional distress

under Florida law, Doe must establish: “‘(1) deliberate or reckless infliction of

mental suffering; (2) by outrageous conduct; (3) which conduct must have

caused the suffering; and (4) the suffering must have been severe.’” See Colon

v. Smith, No. 22-14106, 2024 WL 3898011, at *9 (11th Cir. Aug. 22, 2024)

(quoting Hart v. United States, 894 F.2d 1539, 1548 (11th Cir. 1990)).

Significantly, Defendants assert, and Doe does not dispute, that Doe’s IIED

claim must be premised on conduct independent from the defamation claim.

See Motion at 20-21; Response at 28; see also Maletta v. Woodle, No. 2:20-cv-

1004-JES-MRM, 2021 WL 1894023, at *5 (M.D. Fla. May 11, 2021) (“‘Florida

courts have held that the outrageous conduct supporting a claim for IIED must

be separate from, or independent of, the alleged defamation.’” (quoting Porter,

2017 WL 5157898, at *4)). According to Doe, his IIED claim satisfies this

requirement because it is based on “the distress Defendants intentionally

caused through the confrontation at the home itself, as well as subsequent text

messages from Schmutte, threatening to further disseminate the video.” See

Response at 28.

Nevertheless, Defendants contend that that they are entitled to summary

judgment on Doe’s IIED claim because Doe fails to present evidence of severe

emotional distress. See Motion at 20-21. In support, Defendants assert that

Doe “has not been suicidal, he has seen no medical professionals, he has taken

no medication, he has not been forced to move or to get a new vehicle, and he

has not felt compelled to get a security system.” See Motion at 21; see also Doe

Dep. at 12, 25, 83-84, 94. In the Response, Doe maintains that “[a]ll elements

of this tort are sufficiently established in this Response.” See Response at 28.

In support, Doe argues that he

felt tremendous shock and fear by realizing he was set up, that he

was being filmed, that his reputation would forever be tarnished,

and that his physical safety may forever be at risk by these false

accusations. [Doe] also felt tremendous shock and fear for his

physical safety by Defendants’ words, movements, size, demeanor,

feeling ganged up on, and feeling trapped in the home.

See id. Although he does not cite to any evidence in this section of the brief, in

the background section, Doe asserts that he was damaged by the

“approximately 7 minutes of the actual Encounter itself, even without

publication” and cites portions of his deposition testimony and his Affidavit in

support. See Response at 16. The Court has reviewed this evidence and in it,

Doe describes Schmutte’s aggressive behavior, states that he was “kind of

thrown for a loop when all this happened,” explains that he “wanted to get out

of there, someplace I felt safe,” and asserts that he felt threatened with physical

harm. See Doe Dep. at 26-27, 62-63, 230, 232. In his Affidavit, Doe states

that the encounter was “traumatizing,” that he felt “trapped,” and that he is

certain “the memory of that encounter will never go away.” See Doe Aff. ¶ 11.

Doe summarizes his emotional harm as follows:

Relationships with many of my friends and family have

deteriorated or basically gone away. I have anxiety that people

will continue to send me links to the Facebook post and that

anyone I try to get close to or date will not trust me, or it will at

least be in the back of their mind. From the comments on the

social media posts, and from seeing news stories and tropes from

TV shows or movies, I am fearful my safety is at risk due to people

having the wrong idea about me.

See id. ¶ 14.

“Under Florida law, ‘severe emotional distress means emotional distress

of such a substantial quality or enduring quality that no reasonable person in

a civilized society should be expected to endure it.’” See Colon, 2024 WL

3898011, at *9 (quoting Kim v. Jung Hyun Chang, 249 So. 3d 1300, 1305 (Fla.

2d DCA 2018)). It is Doe’s burden to show “‘both the existence of emotional

distress and the quality of that emotional distress such that a factfinder may

reasonably infer both that the distress in fact happened and that the quality of

that distress was too much for a reasonable person to be expected to bear.’” See

id. (quoting Kim, 249 So. 3d at 1306). “‘[T]he intensity and the duration of the

distress are factors to be considered in determining its severity.’” See Bezzaz

v. Moore, No. 6:21-cv-528-JA-DAB, 2022 WL 4290709, at *10 (M.D. Fla. Sept.

16, 2022) (quoting Kim, 249 So. 3d at 1305). “Outrageous conduct, standing

alone, cannot prove severe emotional distress.” See Colon, 2024 WL 3898011,

at *9. Indeed, “significant feelings of fright, shame, worry, and humiliation—

and others beside—occasioned by the acts of others” are not enough and merely

“an unavoidable part of living in society.” See Kim, 249 So. 3d at 1306. This

“high standard for determining what kind of emotional distress is remediable

in a claim for intentional infliction is necessary to prevent the tort from

becoming a venue for litigation over every emotional injury.” Id.

Here, the evidence shows that Doe is experiencing ongoing anxiety about

his reputation and fear for his physical safety. See Doe Aff. ¶ 14. However, it

is evident from Doe’s Affidavit that his anxiety and fears stem from the

allegedly defamatory information published about him on the Internet, the

conduct which Doe maintains is not the basis of his IIED claim. See Response

at 14, 28; see also Doe Aff. ¶ 14. The evidence of Doe’s emotional distress from

the less than seven-minute encounter at the house itself is sparse.14

The record shows that Doe experienced surprise and fear during the

encounter, describes the event as “traumatizing,” and is certain he will never

forget it. But fear, even significant fear, is not enough. And Doe offers no

14 In the Response, Doe identifies Schmutte’s text messages threatening to further

disseminate the video as part of his IIED claim as well. See Response at 28. However, Doe

cites to no evidence of any emotional distress caused by those threats. See id. at 15-16, 28;

see also Doe Aff. ¶ 12 (describing Schmutte’s text messages without any reference to resulting

emotional distress).

evidence concerning the intensity or duration of this distress. Given the high

standard applicable to claims for IIED, the Court finds that no reasonable juror

could conclude on this record that Doe’s distress is too much for a reasonable

person to bear, particularly given the evidence that Doe has not sought the help

of a medical professional or started taking any medication as a result of this

trauma. Compare Bostick v. McGuire, No. 6:15-cv-1533-Orl-37GJK, 2017 WL

897308, at *5 (M.D. Fla. Mar. 7, 2017) (finding insufficient evidence of severe

distress where the only evidence was plaintiff’s testimony that he was paranoid

around police and does not go outside much) with Bezzaz, 2022 WL 4290709, at

*11 (finding sufficient evidence of severe distress where plaintiff, although not

regularly seeing a therapist or taking medication, testified about her

depression, anxiety, panic attacks, difficulty sleeping, hair loss, and inability to

work); see also Kim, 249 So. 3d at 1306-07. Accordingly, the Court will grant

summary judgment in Defendants’ favor as to Doe’s claim for intentional

infliction of emotional distress. See Andrews v. Marshall, 845 F. App’x 849,

857 (11th Cir. 2021) (affirming grant of summary judgment in part based on a

lack of evidence that the conduct at issue caused severe emotional distress);

Moore v. Pederson, 806 F.3d 1036, 1054 (11th Cir. 2015) (affirming grant of

summary judgment where plaintiff failed to “point to any facts evidencing that

he suffered severe emotional distress”); see also Rubio v. Lopez, 445 F. App’x

170, 175 (11th Cir. 2011); Frias v. Demings, 823 F. Supp. 2d 1279, 1289 (M.D.

Fla. 2011).

4. Assault

Next, Defendants move for summary judgment as to Doe’s claim for

assault. Under Florida law, “[a]n ‘assault’ is an intentional, unlawful offer of

corporal injury to another by force, or exertion of force directed toward another

under such circumstances as to create a reasonable fear of imminent peril.”

See Sullivan v. Atl. Fed. Sav. & Loan Ass’n, 454 So. 2d 52, 54 (Fla. 4th DCA

1984). An assault claim “must be premised upon an affirmative act—a threat

to use force, or the actual exertion of force.” Id. Indeed, “[m]ere words or

threats are not assault; they must be accompanied by acts or circumstances to

put one in reasonable apprehension of imminent harmful or offensive contact to

the person.’” See Henning v. Felty, No. 6:15-cv-927-Orl-40DCI, 2017 WL

9398641, at *6 (M.D. Fla. June 28, 2017) (quoting Newman v. Gehl Corp., 731

F. Supp. 1048, 1051 (M.D. Fla. 1990)) adopted by 2017 WL 3405646, at *3 (M.D.

Fla. Aug. 9, 2017).

In the Motion, Defendants assert that no one with PCI verbally

threatened Doe or raised a hand or fist to him. See Motion at 23. In addition,

Defendants maintain that “nothing in the record shows Defendants gave the

appearance or took any actions that would reasonably create a well-founded

fear that any imminent harm would be inflicted on Plaintiff.” See id. And

Defendants observe that Doe did not call the police during the encounter and

waited four days to file a police report. Id. However, Defendants’ arguments

are unavailing in that they fail to view the facts in the light most favorable to

Doe as the Court must at this stage in the proceedings.

Upon review of the videos of this encounter, and viewing the facts in the

light most favorable to Doe, the Court is satisfied that a reasonable juror could

conclude that the surrounding circumstances and Schmutte’s acts put Doe in

reasonable apprehension of imminent harmful contact. See Di Preta v. Taylor,

675 F. App’x 880, 883 (11th Cir. 2017). Specifically, late at night, Schmutte

invited Doe to the house under false pretenses, confronted Doe by surprise, and

when Doe moved to leave, followed closely behind him aggressively shouting

expletives and insults. Indeed, Schmutte screamed so closely in Doe’s face that

Doe felt his spit. According to Doe, he felt threatened by Schmutte’s behavior

and was afraid that Schmutte would hit him. See Doe Dep. at 62, 231-32; see

also Doe Aff. ¶ 11. Under these circumstances, the Court finds that whether

Doe was afraid of imminent bodily harm and if so, the reasonableness of this

apprehension, are questions for the jury.

5. Civil Remedy for Cyber Crime

In Count V of the Amended Complaint, Doe asserts a claim pursuant to

section 815.06 of the Florida Statutes. See Amended Complaint ¶¶ 60-65.

This statute addresses certain computer-related crimes. See Fla. Stat. §

815.06(2). Although criminal in nature, the statute “provides a civil remedy

for compensatory damages against a person who has already been criminally

convicted under the statute.” See Mortg. Now, Inc. v. Stone, No.

3:09cv80/MCR/MD, 2009 WL 4262877, at *6 (N.D. Fla. Nov. 24, 2009) (citing

Fla. Stat. § 815.06(4)(a)); see also Harvey v. Seminole Cnty., Sheriff, No. 6:16-

cv-56-Orl-41TBS, 2016 WL 922548, at *3 (M.D. Fla. Feb. 4, 2016) adopted by

2016 WL 916560, at *2 (M.D. Fla. Mar. 10, 2016). Here, Doe presents no

evidence that Schmutte or PCI have been criminally convicted under section

815.06.15 As such, Doe’s civil claim necessarily fails and Defendants are

entitled to summary judgment in their favor on Count V of the Amended

Complaint.16

In light of the foregoing, the Court will grant the Motion as to Counts III

and V, and otherwise deny the Motion.17 The case is set for a final pretrial

15 Remarkably, although Defendants raise this argument in the Motion, see Motion at

24, Doe does not respond to it. See Response at 29. Given the plain language of the statute

and Doe’s failure to offer any argument on this point, the Court questions how Doe’s counsel

can represent, consistent with his obligations under Rule 11, that “[a]ll elements of this crime

and resulting civil remedy are sufficiently established.” See id. at 29.

16 Defendants also appear to request their attorneys’ fees as the prevailing party on

this claim. See Motion at 24. However, to seek attorneys’ fees, Defendants must file an

appropriate motion in accordance with the Court’s Local Rules. See Local Rule 7.01.

17 The Court notes that in the Response, Doe “encourages” the Court to sua sponte

enter summary judgment in his favor. See Response at 30. This request borders on the

absurd. If Doe believes he is entitled to summary judgment, it is incumbent upon Doe to

move for such relief setting forth the law and the facts that support the request. The Court

declines to do the work of Doe’s counsel. Regardless, as is evident from the foregoing, the

remaining claims present myriad disputes of fact which require resolution by a jury.

conference on September 23, 2024. See Order (Doc. 112). Because this case

is proceeding to trial, the Court intends to revisit whether Doe should be

permitted to litigate this case anonymously. As the Magistrate Judge noted

when she granted Doe’s request, the analysis is subject to change at different

stages in the litigation. See Order (Doc. 60) at 9 n.2. At the final pretrial

conference, the parties should be prepared to address whether Doe’s privacy

rights continue to outweigh the public’s legitimate and constitutionally

protected interest in knowing the identity of the parties.18

Accordingly, it is

ORDERED:

1. Defendants’ Motion for Summary Judgment and Incorporated

Memorandum of Law (Doc. 91) is GRANTED, in part, and DENIED,

in part.

A. The Motion is GRANTED to the extent Defendants seek summary

judgment in their favor as to Counts III and V of the Amended

Complaint.

B. In all other respects, the Motion is DENIED.

18 By separate notice, the Court intends to reschedule the final pretrial conference due

to the need to address criminal matters on the morning of September 23rd.

2. The Court defers entry of final judgment until after final resolution of

this case.

DONE AND ORDERED in Jacksonville, Florida this 28th day of

August, 2024.

MARCIA MORALES HOWARD

United States District Judge

Ie11

Copies to:

Counsel of Record