Thomas M. Utterback v. Craig B. Morris

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[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 24-12947

Non-Argument Calendar

____________________

THOMAS M. UTTERBACK,

Plaintiff-Appellant,

versus

CRAIG B. MORRIS,

Defendant-Appellee.

____________________

Appeal from the United States District Court

for the Northern District of Florida

D.C. Docket No. 5:23-cv-00279-TKW-MJF

____________________

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2 Opinion of the Court 24-12947

Before BRANCH, LAGOA, and ANDERSON, Circuit Judges.

PER CURIAM:

Thomas M. Utterback, pro se, appeals the district court’s dis-

missal with prejudice of his single claim for defamation by implica-

tion against Craig B. Morris.

Utterback and Morris have a long history. After serving a

federal sentence for money laundering, Utterback moved to Flor-

ida in 2003, and began working as the manager of A&J Holdings,

LLC. Through a subsidiary, A&J Holdings owned a stake in the

Calypso Towers Resort Community Association, Inc., a resort in

Panama City Beach. In 2017, the Calypso Association—which was

represented by Morris—sued Utterback, A&J Holdings, and several

other defendants in a dispute relating to ownership rights in the

resort. Although Utterback was later dismissed from that case, Ut-

terback retaliated with his own lawsuit against Morris and the Ca-

lypso Association, alleging that they maliciously prosecuted him.

While that action was pending, Morris was retained as counsel for

another resort community in Panama City Beach. During a meet-

ing with that resort’s board, Morris was asked about Utterback’s

malicious-prosecution suit against him. This prompted Morris to

launch into a spirited polemic about Utterback, in which he char-

acterized Utterback as “a convicted felon” who “lost his bar li-

cense” and expressed that, as a result, “[t]he only way [Utterback]

can practice law is to sue people[,]” and that Utterback “is suing

someone right now probably.”

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24-12947 Opinion of the Court 3

That prediction soon came true: On October 23, 2023, Ut-

terback sued Morris, alleging one count of defamation by implica-

tion based on Morris’s statements at the board meeting. The dis-

trict court granted Morris’s motion to dismiss, concluding that Ut-

terback had failed to state a claim. After careful review, we agree

that Utterback has not plausibly alleged a claim for defamation by

implication and affirm the district court’s order of dismissal.

I. BACKGROUND

A. Factual Background

Appellant Thomas M. Utterback was once a licensed attor-

ney, practicing law in Missouri. In 1998, Utterback pleaded guilty

to one count of unlawful transport and transfer of monetary in-

struments and funds, in violation of 18 U.S.C. § 1956(a)(2)(B). The

money Utterback helped launder was alleged to be proceeds of

“the distribution of controlled substances.” Utterback received a

three-year prison sentence for this offense and surrendered his law

license following his conviction. See Judgment, United States v. Ut-

terback, No. 98-cr-00026 (E.D. Mo. Aug. 7, 1998), ECF No. 42. After

completing his sentence, Utterback moved to Bay County, Florida

in 2003 and began working as a licensed real-estate agent. He then

became the manager of A&J Holdings, LLC, a real-estate firm that

owned a 40% stake in a company called Calypso Developer Enti-

ties. In turn, Calypso Developer Entities owned “certain property

rights” in the Calypso Towers Resort Community Association, Inc.

(the “Calypso Association”), a resort community in Panama City

Beach.

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4 Opinion of the Court 24-12947

In 2017, the Calypso Association sued A&J Holdings, Utter-

back, and several other individuals and entities involved in the Ca-

lypso Resort and Towers project for breach of contract and tortious

interference, alleging that Utterback induced the developers to

breach an option contract. See Compl., Calypso Towers Resort Cmty.

Ass’n v. Calypso Grp., LLC, No. 2017 CA 000784 (Fla. Cir. Ct. filed

May 25, 2017) Appellee Craig B. Morris represented the Calypso

Association in this litigation. The Calypso Association later dis-

missed Utterback from the lawsuit and proceeded to trial against

several of his co-defendants, including A&J Holdings.

After he was dismissed from that case, Utterback filed a pro

se lawsuit against the Calypso Association and Morris, alleging that

they maliciously prosecuted him and conspired “to file and prose-

cute the tortious interference with contract action, knowing to a

legal certainty that they had no legal basis and were devoid of fac-

tual or legal support.” See Compl. ¶¶ 19–26, Utterback v. Calypso

Towers Resort Cmty. Ass’n, No. 20001249CA (Fla. Cir. Ct. filed July 2,

2020). On April 24, 2023, the court granted summary judgment for

the defendants on Utterback’s claims, which the First District Court

of Appeal later affirmed. See Utterback v. Calypso Towers Resort Cmty.

Ass’n, 399 So. 3d 321 (Fla. 1st DCA 2024).

The event at the center of our case took place while Utter-

back’s lawsuit against the Calypso Association and Morris was still

pending. On November 11, 2021, Morris gave a presentation to the

Board of the Edgewater Beach Resort Community Association,

Inc. (the “Edgewater Association”), another resort community in

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24-12947 Opinion of the Court 5

Panama City Beach. Morris had recently been retained by the

Edgewater Association and was there “to introduce himself to

Edgewater owners and answer questions [about] himself and his

representation of the [Edgewater] Association in litigation.”

During the Q&A portion of his presentation, Morris re-

ceived questions about prior lawsuits he had been involved in, in-

cluding Utterback’s pending suit against him for malicious prose-

cution. In response, Morris explained that he had “been sued one

time for representing a condo association board that filed a lawsuit

against a gentleman and that gentleman responded by filing a law-

suit against myself, every member of the Board, and the Associa-

tion.” That “gentleman,” of course, was Utterback. Morris’s spir-

ited defense of himself continued:

Why would I tell you the name of the person who

sued me? Why would I tell you the name of the per-

son who sued me? Cause I want you to Google him. I

want you to Google him. The first thing that will

come up is a mug shot. This is a well-known disbarred

attorney who can’t get his license back because the

State of Missouri says he is not . . . to tell the truth

and he is a convicted felon. He took money. Millions

of dollars. Put them in a suitcase. Allegedly with

some drug connection. Took the money. Millions of

dollars in a suitcase. Tried to take through an airport

down in another country. Got arrested. Got put in jail

for a while and lost his bar license. The only way he

can practice law is to sue people. He can only repre-

sent himself. So, if you deal with him in any way,

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6 Opinion of the Court 24-12947

shape or form, he is going to sue you and he is going

to get to practice law again. He has sued Hand Aren-

dall, one of the best law firms in Alabama and Florida,

he sued myself, he sued my association, he sued

Trustmark Bank—have you ever heard of Trustmark

Bank? Okay. He is suing someone right now probably.

That is the one lawsuit against prior to this lawsuit.

That lawsuit will be thrown out of court that I was

telling you about with Utterback and this lawsuit

right here we’ve already discussed in enough detail.

So please do not repeat things that are not true.

This meeting, including Morris’s comments about Utterback, was

both livestreamed and “recorded on video” for members of the

Edgewater Association to watch at a later time.

B. Procedural History

On October 23, 2023, Utterback, proceeding pro se, sued

Morris in the U.S. District Court for the Northern District of Flor-

ida. In his amended complaint—the operative pleading below—

Utterback alleged one count of defamation by implication based on

Morris’s statements to the Edgewater Association. Utterback

claims that, “by juxtaposition or omission of facts,” Morris’s state-

ments had four defamatory implications: that Utterback “was in-

volved in the illegal drug trade,” that he “stole money,” that his

“plea of guilty to a money laundering charge in 1998 negatively af-

fected Utterback’s work and involvement in the Calypso Resort or

his career in Florida,” and that he was a “maliciously litigious per-

son without ethics or honor and poised to harm well-intentioned

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24-12947 Opinion of the Court 7

persons.” That pleading specifically referenced Utterback’s 1998

conviction, the Calypso Association’s suit against Utterback, Utter-

back’s malicious-prosecution suit against Morris, and another un-

successful pro se suit Utterback filed in 2015 against Trustmark Na-

tional Bank and Hand Arendall, L.L.C. See Utterback v. Trustmark

Nat’l Bank, 2017 WL 5654732 (S.D. Miss. Mar. 30, 2017), aff’d 716 F.

App’x 241 (5th Cir. 2017).

Morris, who also represented himself, moved to dismiss the

first amended complaint. The district court referred that motion

to a magistrate judge for a report and recommendation (the “Re-

port”). Subsequent to a hearing on Morris’s motion, the magistrate

judge recommended that the motion to dismiss be granted. In do-

ing so, the magistrate judge relied heavily on the factual back-

ground sketched throughout the court filings referenced in the first

amended complaint, as well as admissions of law and fact Utter-

back made during the hearing. Utterback filed a timely objection

to the Report, arguing that the magistrate judge erred by “as-

sum[ing] an investigatory posture” at the motion hearing and by

rejecting Utterback’s defamation-by-implication claim on the mer-

its. In conducting a de novo review of the motion to dismiss, the

district court rejected Utterback’s objection to the propriety of the

hearing, explaining:

The Court did not overlook Plaintiff’s argument that

the magistrate judge overstepped his role by conduct-

ing an “inquisitional hearing” on Defendant’s motion

to dismiss. However, putting aside the fact that Plain-

tiff did not file a copy of the hearing transcript for the

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8 Opinion of the Court 24-12947

Court to review, the Court sees nothing improper

about a judge “pressing” the parties on their positions

at oral argument to help narrow the issues in dispute

or properly frame the issues for resolution—which is

what it sounds like the magistrate judge was doing at

the hearing in this case.

Accordingly, the district court adopted the Report in full, granted

Morris’s motion to dismiss, and dismissed Utterback’s claim with

prejudice.

Utterback timely appealed that order. Upon receiving no-

tice of Utterback’s appeal, we sua sponte recognized that Utterback

had not sufficiently pleaded the citizenship of the parties so as to

establish federal diversity jurisdiction. Utterback subsequently

filed a motion for leave to amend his pleading. We granted that

motion and directed Utterback to file his second amended com-

plaint in the district court, allowing the appeal to proceed. Utter-

back’s second amended complaint is identical to his previous plead-

ing, except that it now properly pleads diversity jurisdiction and

venue. 1 Morris has not submitted an answer brief on appeal and

never moved for an extension of time to do so. Utterback has filed

a “motion to decide the appeal on his brief alone,” which is also

pending before this Court.

1 Recognizing that this jurisdictional flaw has been corrected, we will continue

to refer to the first amended complaint in reviewing the issues on appeal, since

that was the pleading before the district court. See Eklund v. Mora, 410 F.2d

731, 732 (5th Cir. 1969).

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II. STANDARD OF REVIEW

We review a district court’s ruling on a motion to dismiss for

failure to state a claim de novo, “accepting the allegations in the

complaint as true and construing them in the light most favorable

to the plaintiff.” Hill v. White, 321 F.3d 1334, 1335 (11th Cir. 2003).

III. ANALYSIS

Utterback appeals the dismissal of his single claim for defa-

mation by implication. Under Florida law, 2 a private-figure plaintiff

states a defamation claim by plausibly alleging that the defendant

negligently published a false and defamatory statement that caused

the plaintiff actual damages. See Jews for Jesus, Inc. v. Rapp, 997 So.

2d 1098, 1105–06 (Fla. 2008) (citing Restatement (Second) of Torts §§

558B, 580A–580B). “Words are defamatory when they charge a

person with an infamous crime or tend to subject one to hatred,

distrust, ridicule, contempt or disgrace, or tend to injure one in

one’s business or profession.” Rubin v. U.S. News & World Rep., Inc.,

271 F.3d 1305, 1306 (11th Cir. 2001). But “[t]rue statements, state-

ments that are not readily capable of being proven false, and state-

ments of pure opinion are protected from defamation actions by

the First Amendment.” Turner v. Wells, 879 F.3d 1254, 1272 (11th

Cir. 2018). “Pure opinions” are “based on facts which are set forth

in the publication or which are otherwise known or available to the

2 As a federal court sitting in diversity jurisdiction, we apply state substantive

law (here, Florida law) in analyzing state causes of action, including defama-

tion and defamation by implication. McMahon v. Toto, 256 F.3d 1120. 1131

(11th Cir. 2001) (citing Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938)).

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10 Opinion of the Court 24-12947

reader or listener as a member of the public,” while mixed opin-

ions—which may provide the basis for a defamation claim—are in-

stead based on facts about a party or his conduct that “have not

been stated in the publication or assumed to exist by the parties to

the communication.” Id.; see also Stembridge v. Mintz, 652 20. 2d 444,

446 (Fla. 3d DCA 1995) (noting an opinion “is actionable only if it

implies the allegation of undisclosed defamatory facts as the basis

for the opinion” (quoting Restatement (Second) of Torts § 566)).

Moreover, we “have long recognized that a defamation claim may

not be actionable when the alleged defamatory statement is based

on non-literal assertions of “fact” or “rhetorical hyperbole” that

“cannot reasonably be interpreted as stating actual facts about an

individual.” Horsley v. Rivera, 292 F.3d 695, 701 (11th Cir. 2002) (quo-

tation omitted).

Florida also recognizes a claim for defamation by implica-

tion, which instead “is ‘premised not on direct statements but on

false suggestions, impressions and implications arising from other-

wise truthful statements.’” Ozyesilpinar v. Reach PLC, 365 So. 3d

453, 460 (Fla. 3d DCA 2023) (quoting Jews for Jesus, 997 So. 2d at

1107). A defendant’s statements may be defamatory by implica-

tion, despite being true, “if ‘the defendant juxtaposes a series of

facts so as to imply a defamatory connection between them, or cre-

ates a defamatory implication by omitting facts.’” Johnston v. Bor-

ders, 36 F.4th 1254, 1275 (11th Cir. 2022) (quoting Jews for Jesus, 997

So. 2d at 1108). Even so, statements are not impliedly defamatory

simply because they omit additional facts when such facts do not

affect the truth of the statements. See id. at 1270–72. In

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24-12947 Opinion of the Court 11

determining whether a statement’s implications are defamatory,

we must consider the publication “in its totality,” Byrd v. Hustler

Mag., Inc., 433 So. 2d 593, 595 (Fla. 4th DCA 1983) (citation omit-

ted), and “as the common mind would understand it,” Loeb v.

Geronemus, 66 So. 2d 241, 245 (Fla. 1953). “Whether the defendant’s

statements constitute defamation by implication is a question law

for the court to determine.” Turner, 879 F.3d at 1269 (first citing

Brown v. Tallahassee Democrat, Inc., 440 So. 2d 588, 590 (Fla. 1st DCA

1983); then citing Hallmark Builders, Inc. v. Gaylord Broad. Co., 733

F.2d 1461, 1464 (11th Cir. 1984)).

On appeal, Utterback appears to be challenging the dismis-

sal of his defamation-by-implication claim on three

grounds.3 First, Utterback argues that it was improper for the dis-

trict court to “approv[e]” the magistrate judge’s “independent in-

vestigation” into factual matters when reviewing Morris’s motion

to dismiss. Second, he asserts that the district court erroneously

took the truth of the statements about Utterback’s criminal history

3 We limit our review on appeal to those issues that are “specifically and clearly

identified” in the initial brief. Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324,

1330 (11th Cir. 2004). All other issues are deemed abandoned. Timson v.

Sampson, 518 F.3d 870, 874 (11th Cir. 2008) (“While we read briefs filed by pro

se litigants liberally, issues not briefed on appeal by a pro se litigant are deemed

abandoned.” (internal citations omitted) (first citing Lorisme v. I.N.S., 129 F.3d

1441, 1444 n.3 (11th Cir. 1997); then citing Horsley, 304 F.3d at 1131 n.1)); see

also Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 680 (11th Cir. 2014) (not-

ing an appellant abandons an issue “when he either makes only passing refer-

ences to it or raises it in a perfunctory manner without supporting arguments

and authority” (citations omitted)).

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12 Opinion of the Court 24-12947

as dispositive in finding that any implications of them could not be

defamatory as a matter of law.4 Third, Utterback says that the dis-

trict court overlooked Morris’s purported “duty, as an attorney, to

be truthful, candid, and aboveboard with his client” in concluding

that Morris’s statements regarding Utterback’s litigation history

constituted unactionable “pure opinion.” We consider each issue

in turn.

A.

According to Utterback, the district court improperly ven-

tured beyond the pleadings in reviewing Morris’s motion to dismiss

by considering “documents from the voluminous dockets of sev-

eral Florida circuit court and appellate cases, and [Utterback’s] 1998

criminal case,” as well as Utterback’s responses at the motion hear-

ing. We disagree.

In general, “when considering a motion to dismiss, the dis-

trict court must limit its consideration to the pleadings and any ex-

hibits attached to it.” Baker v. City of Madison, 67 F.4th 1268, 1276

(11th Cir. 2023) (citing Grossman v. Nationsbank, N.A., 225 F.3d 1228,

1231 (11th Cir. 2000)). “If the parties present, and the court con-

siders, evidence outside the pleadings, the motion to dismiss

4 Because the district court “adopted and incorporated by reference” the mag-

istrate judge’s Report, we attribute the reasoning in the Report to the district

court. See 15A Chas. A Wright & A.R. Miller, Federal Practice and Procedure §

3901.1 (3d ed. 2025) (“[T]he judgment that results from the district court’s

adoption of the recommendation is the judgment of the district court.”). We

refer to the “district court” when addressing Utterback’s challenges to the Re-

port.

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24-12947 Opinion of the Court 13

generally must be converted into a motion for summary judg-

ment[,]” which may be done only upon notice to the parties. Id.

(first citing Fed. R. Civ. P. 12(d); then citing Finn v. Gunter, 722 F.2d

711, 713 (11th Cir. 1984)). As an exception to this rule, courts may

take judicial notice of “a fact that is not subject to reasonable dis-

pute because it” is either “generally known with-in the trial court’s

territorial jurisdiction” or “can be accurately and readily deter-

mined from sources whose accuracy cannot reasonably be ques-

tioned.” Fed. R. Evid. 201(b); see also Baker, 67 F.4th 1268 at 1276

(noting this exception “permit[s] district courts to consider materi-

als outside a complaint at the motion-to-dismiss stage . . . without

converting the motion into one for summary judgment”). Public

records, including filings in other judicial proceedings, are gener-

ally subject to judicial notice for purposes other than establishing

the “truth of the matters asserted in the other litigation.” United

States v. Jones, 29 F.3d 1549, 1553 (11th Cir. 1994) (quotation omit-

ted); see also In re Delta Res., Inc., 54 F.3d 722, 726 (11th Cir. 1995)

(“[T]his Court may take judicial ‘notice of another court’s order . .

. for the limited purpose of recognizing the “judicial act” that the

order represents or the subject matter of the litigation and related

filings.’” (quoting Jones, 29 F.3d at 1553–54)).

Here, the district court’s reliance on court filings outside the

pleadings did not go beyond the appropriate scope of judicial no-

tice. The district court primarily referenced the parties’ prior his-

tory of litigation to set the factual backdrop leading up to Morris’s

statements—that is, “to establish the fact of such litigation and re-

lated filings.” Jones, 29 F.3d at 1553. The district court also

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14 Opinion of the Court 24-12947

acknowledged previous court filings when reviewing the merits of

the allegations that Morris’s statements implied Utterback was “in-

volved in the illegal drug trade” and “litigious.” Doing so was not

improper.

In rejecting Utterback’s allegation that Morris’s statement

could reasonably be understood to imply Utterback was “involved

in the illegal drug trade,” the district court partially relied on the

judicially noticed fact that the indictment in Utterback’s 1998 crim-

inal case alleged “that the money [Utterback] transported was de-

rived from ‘the distribution of controlled substances.’” That Utter-

back committed that offense, though, is established by Utterback’s

own allegation that he entered a “plea of guilty to a money laun-

dering charge in 1998,” which we must take as true. Because the

“truth of the matters asserted in the other litigation”—that is, Ut-

terback’s conviction for the charged offense—is clear on the face of

the first amended complaint, the district court made no error in

referencing the indictment to see what “averments were made” in

the charge to which Utterback tells us he later pleaded guilty. Jones,

29 F.3d at 1553 (citation omitted); see also United States v. Oliver, 962

F.3d 1311, 1320 & n.7 (11th Cir. 2020) (taking judicial notice of

criminal indictment where its contents were not in dispute). Simi-

larly, the district court’s reliance on Utterback’s prior litigation in

Calypso Towers, Utterback, and Trustmark—each of which is cited

and referenced in the amended complaint—in considering whether

Morris defamatorily implied that Utterback is “litigious” is limited

to showing “the fact of such litigation” having occurred, falling

squarely within the bounds of judicial notice. Jones, 29 F.3d at 1553.

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24-12947 Opinion of the Court 15

More broadly, Utterback characterizes the magistrate

judge’s motion hearing as an “interrogation” that “under[took] an

independent mission of finding facts outside the record.” Utter-

back, however, has not provided us with a transcript of that hear-

ing. We are thus unable to review Utterback’s arguments as to the

propriety of that hearing and have no choice but to reject them

outright. See Selman v. Cobb Cnty. Sch. Dist., 499 F.3d 1320, 1333

(11th Cir. 2006) (“[T]he burden is on the appellant to ensure the

record on appeal is complete, and where a failure to discharge that

burden prevents us from reviewing the district court’s decision we

ordinarily will affirm the judgment.” (first citing Loren v. Sasser, 309

F.3d 1296, 1304 (11th Cir. 2002); then citing Borden, Inc. v. Fla. E.

Coast Ry. Co., 772 F.2d 750, 758 (11th Cir. 1985); and then citing

Green v. Aetna Ins. Co., 397 F.2d 614, 615 n.5, 618–19 (5th Cir. 1968)));

Abood v. Block, 752 F.2d 548, 550 (11th Cir. 1985) (“In this case dis-

missal is not only warranted but mandated since here there is no

way this Court can review the action taken by the district court ab-

sent a transcript of the proceedings and the findings and conclu-

sions of the trial court.”); accord Fed. R. App. P. 10(b)(2).

B.

Next, Utterback argues that the district court erred in find-

ing the statements as to Utterback’s criminal history were not de-

famatory based on Morris’s “bare-bone[s] accusation that [Utter-

back] had committed a criminal act was true.” A statement (or any

implication thereof ) cannot be defamatory “if the ‘gist’ or the

‘sting’ of the statement is true.” Smith v. Cuban Am Nat’l Found., 731

So. 2d 702, 706 (Fla. 3d DCA 1999) (collecting cases). Generally,

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16 Opinion of the Court 24-12947

truth is asserted as an affirmative defense, and thus is not consid-

ered at the motion-to-dismiss stage. See Scott v. Busch, 907 So. 2d

662, 666–67 (Fla. 5th DCA 2005); Michel v. NYP Holdings, Inc., 816

F.3d 686, 706–07 (11th Cir. 2016). But because falsity is an element

of defamation, a plaintiff nonetheless fails to state a claim if the

allegedly defamatory statement, read against “the allegations of

the . . . complaint and the attachments thereto, accept[ed] . . . as

true, and [viewed] in the light most favorable to [the plaintiff],” re-

mains “substantially true.” Marshall v. Amerisys, Inc., 943 So. 2d 276,

279–80 (Fla. 3d DCA 2006); cf. Veritas v. Cable News Network, 121

F.4th 1267, 1276 n.15 (11th Cir. 2024) (“We may consider the issue

of substantial truth as an absolute defense at the motion-to-dismiss

stage because ‘a plaintiff in New York courts generally must iden-

tify how the defendant's statement was false to survive a motion to

dismiss.’” (quoting Tannerite Sports, LLC v. NBCUniversal News Grp.,

864 F.3d 236, 245, 247 (2d Cir. 2017))).

Here, the district court concluded that Utterback failed to

state a claim for implied defamation based on Morris’s statement

that Utterback “took money . . . allegedly with some drug connec-

tions” for several reasons. One of those reasons was that the alleg-

edly defamatory implication of that statement—that Utterback

“was involved in the illegal drug trade”—is substantially true. 5 As

5 The district court rejected this theory of implied defamation on the alterna-

tive ground that the grammatical tense, context, and qualified language of

Morris’s statement demonstrated that a reasonable person would not under-

stand Morris to have implied that Utterback “personally was connected to

drugs, except to the extent he laundered money that was connected to drugs.”

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24-12947 Opinion of the Court 17

noted above, Utterback’s complaint acknowledges that he was con-

victed of money laundering in 1998, a charge allegedly tied to

money derived from “the distribution of controlled substances.”

Even when viewed in the light most favorable to Utterback, such

information demonstrates that the “gist” of the implication that

Utterback was at least involved in the illegal drug trade is substan-

tially true. Smith, 731 So. 2d at 706; see also Nix v. ESPN, Inc., 772 F.

App’x 807, 814 (11th Cir. 2019) (“A statement ‘is not considered false

unless it would have a different effect on the mind of the reader

from that which the pleaded truth would have produced.’” (inter-

nal quotation marks omitted) (quoting Masson v. New Yorker Mag.,

Inc., 501 U.S. 496, 517 (1991))). Therefore, the district court made

no error in concluding that Utterback could not plausibly establish

the falsity of that implication.

The district court also looked to the statement’s tense and context in holding

that Utterback could not base his claim on the allegedly defamatory implica-

tions that his guilty plea “negatively affected [his] work and involvement in

the Calypso resort” or that he “had stolen the money he laundered.” Utter-

back only responds to these reasons for dismissal in passing, asserting that

while “the District Court’s dismissal with prejudice relies heavily on syntax,

grammar, past and present test, [and] parsing the meaning of words and

phrases, . . . a Bay County jury will decide in Appellant’s favor particularly

after Appellee testifies under oath.” Because Utterback does not adequately

address the “merits of the district court’s alternative holdings” beyond mere

“conclusory assertions,” he has “abandoned any argument [he] may have had

that the district court erred in its alternative holdings,” allowing us to affirm

the district court’s rejection of these allegedly defamatory implications on

those grounds as well. Sapuppo, 739 F.3d at 682–83.

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18 Opinion of the Court 24-12947

C.

The last issue Utterback presents asks “[w]hether an attor-

ney bears a responsibility to be honest, candid, and fair in commu-

nications with his client about his/her experience in past cases.” To

the extent Utterback asks us to issue an advisory opinion on the

ethical contours of the attorney-client relationship, we decline his

invitation to do so. See, e.g., Church of Scientology of Cal. v. United

States, 506 U.S. 9, 12 (1992) (“It has long been settled that a federal

court has no authority ‘to give opinions upon moot questions or

abstract propositions, or to declare principles or rules of law which

cannot affect the matter in issue in the case before it.’” (first quoting

Mills v. Green, 159 U.S. 651, 653 (1895); then citing Preiser v. Newkirk,

422 U.S. 395, 401 (1975); and then citing North Carolina v. Rice, 404

U.S. 244, 246 (1971))). It appears from the context of his briefing,

though, that Utterback may be arguing that Morris’s purported

lack of candor suggests “a defamatory implication by omitting

facts” relevant to his opinion of Utterback. Johnston, 36 F.4th at

1275. Even if we were to give Utterback the benefit of that liberal

construction of the issue, 6 this argument still fails.

The district court found that Utterback could not state a

claim based on the alleged implication that he is “litigious” because

6 We generally “read briefs filed by pro se litigants liberally.” Timson, 518 F.3d

at 874 (citing Lorisme, 129 F.3d at 1444 n.3). But if a pro se litigant happens to

be “a licensed attorney,” “[w]e cannot accord him the advantage of the liberal

construction . . . normally given [to] pro se litigants.” Olivares v. Martin, 555

F.2d 1192, 1194 (5th Cir. 1977) (emphasis added) (citing Estelle v. Gamble, 429

U.S. 97, 106 (1976)). While no binding precedent addresses whether that

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24-12947 Opinion of the Court 19

that is a “pure opinion.” 7 As explained above, an “opinion based on

facts which are set forth in the [statement] or which are otherwise

known or available to the . . . listener as a member of the public” is

a “pure opinion,” which cannot form the basis of a defamation

claim. From v. Tallahassee Democrat, Inc., 400 So. 2d 52, 57 (Fla. 1st

DCA 1981). Rather, an opinion is actionable in defamation “only

if it implies the allegation of undisclosed defamatory facts as the

basis for the opinion.” Stembridge, 652 So. 2d at 446 (quotation

omitted).

Utterback faults Morris for apparently failing to “explain an-

ything about [the] failed lawsuit against [Utterback]” in Calypso

Towers or Utterback’s malicious-prosecution action. But the

amended complaint expressly alleges that Morris told his audience

that he had “been sued . . . for representing a condo association

board that filed a lawsuit against [Utterback] and [Utterback] re-

sponded by filing a lawsuit against [Morris], every member of the

Board, and the Association.” When, as here, the speaker “presents

the facts at the same time he . . . offers independent commentary,

exception also reaches former attorneys like Utterback, at least two un-

published opinions of this Court have found that former attorneys should not

receive the usual pro se accommodations. See Davis v. Nahmais, 2022 WL

5128153, at *1–2 & n.3 (11th Cir. Oct. 5, 2022); Santos v. Comm’r, 731 F. App’x

848, 855 (11th Cir. 2018). Because Utterback’s argument fails regardless of the

construction, we need not resolve this issue here.

7 The district court also rejected this theory for the “independent reason” that

“the gist of the implication of [Morris’s] statement about [Utterback’s] litiga-

tion activity is true.” Again, Utterback’s failure to respond to this alternative

holding suffices to affirm that conclusion. Sapuppo, 739 F.3d at 682–83.

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20 Opinion of the Court 24-12947

a finding of pure opinion will usually result.” Zambrano v. Deva-

nesan, 484 So. 2d 603, 606 (Fla. 4th DCA 1986) (citations omitted).

Moreover, defamation law does not require Morris to first declare

and disclose Utterback’s “subjective assertion” as to the merits of

those cases before giving his own opinion, see Milkovich v. Lorain J.

Co., 497 U.S. 1, 21–22 (1990) (quotation omitted); see also Turner, 879

F.3d at 1271 (“Publishers have no legal obligation to present a bal-

anced view of what led up to the publicized event.” (alterations

adopted) (quotation omitted)), especially since the facts underlying

Morris’s opinion were readily “available to . . . the public” in the

relevant court dockets. From, 400 So. 2d at 57; see also Hoon v. Pate

Constr. Co., Inc., 607 So. 2d 423, 429 (Fla. 4th DCA 1992) (“[E]ven if

people could have reasonable differences of opinion [based on

available facts], [such] opinions cannot be defamatory.”); Button v.

McCawley, 2025 WL 50431, at *6 (S.D. Fla. Jan. 8, 2025) (“[A state-

ment based on facts set forth in the . . . publicly available counter-

claims . . . [regarding the speaker’s] subjective assessment of the

merits of the counterclaims . . . is pure opinion and is not actionable

as a matter of law.” (internal quotation omitted)). 8 Thus, the dis-

trict court also did not err in holding Utterback could not base his

claim on Morris’s alleged insinuation that Utterback is “litigious.”

8 Upon investigation, the public would find that Utterback lost both lawsuits

that Morris referenced in his statement. See Utterback, 399 So. 3d at 321; Trust-

mark, 716 F. App’x at 241; cf. Soni v. Wespiser, 239 F. Supp. 3d 373, 389 (D. Mass.

2017) (considering success of plaintiff’s prior lawsuits in determining whether

opinion “implie[d] a false assertion of fact” that plaintiff was “litigious” (quo-

tation omitted)).

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24-12947 Opinion of the Court 21

IV. CONCLUSION

For the reasons stated, we affirm the district court’s order of

dismissal, and we deny as moot the Appellant’s “motion to decide

the appeal on his brief alone.”

AFFIRMED.