[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
JULY 27, 2010
No. 08-12328
JOHN LEY
________________________
CLERK
D. C. Docket No. 07-01740-CV-ORL-22-KRS
INTERNET SOLUTIONS CORPORATION,
Plaintiff-Appellant,
versus
TABATHA MARSHALL,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(July 27, 2010)
Before BIRCH and BARKETT, Circuit Judges and KORMAN *, District Judge.
PER CURIAM:
This case returns to us for disposition from the Supreme Court of Florida, to
*
Honorable Edward R. Korman, United States District Judge for the Eastern District of
New York, sitting by designation.
which we certified a question of Florida state law. See Internet Solutions Corp. v.
Marshall, 557 F.3d 1293, 1296-97 (11th Cir. 2009) (“Internet Solutions I”). Based
on the Florida Supreme Court’s response to the certified question, Internet
Solutions Corp. v. Marshall, So. 3d , 2010 WL 2400390 (Fla. 2010) (No.
SC09-272) (“Internet Solutions II”), we REVERSE the district court’s dismissal
and REMAND for further proceedings consistent with this opinion.
I. BACKGROUND
The facts of the case are fully described in our previous opinion, Internet
Solutions I, 557 F.3d at 1294-95, and we will recount only the facts relevant to our
disposition of the case.
Plaintiff-appellant Internet Solutions Corporation (“ISC”) is a Nevada
corporation operating a number of internet websites relating to employment
recruiting and internet advertising. ISC’s principal place of business is in Orlando,
Florida. Defendant-appellee Tabatha Marshall is a Washington resident and owns
and operates a website, http://www.tabathamarshall.com, which posts consumer-
related information about different companies. Third parties can comment on all
of Marshall’s entries, and these comments appear on the same webpage as
Marshall’s original post. In August 2007, Marshall posted information about
VeriResume, one of ISC’s websites, “entitled ‘Something’s VeriRotten with
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VeriResume . . . .’” Internet Solutions II, So. 3d at , 2010 WL 2400390 at *1.
The post included a listing of VeriResume’s affiliates, including ISC, and included
Florida addresses. R1-1, Exh. A at 7-9. Third parties posted comments on this
post, and Marshall responded to some of them. Id. at 9-13. Several of the
commenters appeared to have Florida addresses (“Mrs. C near Orlando, FL,”,
“Suzanne C-Orlando, FL,” and “anonymous–Orlando, FL”). Id. at 12-13; Internet
Solutions II, at , 2010 WL 2400390 at *1.
ISC filed a diversity action against Marshall claiming defamation, trade
libel, and injurious falsehood, and seeking injunctive relief. It asserted that
jurisdiction was proper in Florida because Marshall had entered Florida to commit
a tortious act. Marshall moved to dismiss the complaint for lack of jurisdiction and
argued that the court lacked personal jurisdiction over her under Florida’s long-arm
statute, Fla. Stat. § 48.193, because she did not have sufficient contacts in Florida
and had not committed a tortious act in the state. She also asserted that the
exercise of jurisdiction would violate federal due process.
The district court granted Marshall’s motion to dismiss based on lack of
personal jurisdiction. It found that the exercise of personal jurisdiction was
appropriate because ISC had made out a prima facie case for jurisdiction which
Marshall had failed to rebut. It then decided, however, that Marshall’s assertion
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adequately rebutted ISC’s prima facie jurisdictional showing and that ISC failed to
contradict Marshall’s argument that she lacked the requisite minimum contacts to
overcome a violation of federal due process. ISC appealed.
II. DISCUSSION
Under our two-step inquiry for determining whether the exercise of personal
jurisdiction over a non-resident was proper, we noted that Florida’s long-arm
statute, Fla. Stat. § 48.193(1)(b), permitted the exercise of jurisdiction over actions
arising out of tortious acts committed within Florida. Internet Solutions I, 557
F.3d at 1296. We recognized that the defendant was not required to be within the
state for the tortious act to occur within the state because a cause of action could
arise from an act through the nonresident defendant’s electronic, telephonic or
written communication into Florida. Id. (citing Wendt v. Horowitz, 822 So.2d
1252, 1260 (Fla. 2002)). Because Florida law was unsettled as to whether
Marshall’s actions in posting an allegedly defamatory comment on her website
constituted an electronic communications “into Florida,” we certified a question to
the Florida Supreme Court:
DOES POSTING ALLEGEDLY DEFAMATORY STORIES AND
COMMENTS ABOUT A COMPANY WITH ITS PRINCIPAL
PLACE OF BUSINESS IN FLORIDA ON A NON-COMMERCIAL
WEBSITE OWNED AND OPERATED BY A NONRESIDENT
WITH NO OTHER CONNECTIONS TO FLORIDA CONSTITUTE
COMMISSION OF A TORTIOUS ACT WITHIN FLORIDA FOR
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PURPOSES OF FLA. STAT. § 48.193(1)(b).
Id. at 1296-97.
The Florida Supreme Court rephrased our question as follows:
DOES A NONRESIDENT COMMIT A TORTIOUS ACT WITHIN
FLORIDA FOR PURPOSES OF SECTION 48.193(1)(b) WHEN HE
OR SHE MAKES ALLEGEDLY DEFAMATORY STATEMENTS
ABOUT A COMPANY WITH ITS PRINCIPLE PLACE OF
BUSINESS IN FLORIDA BY POSTING THOSE STATEMENTS
ON A WEBSITE, WHERE THE WEBSITE POSTS ARE
ACCESSIBLE AND ACCESSED IN FLORIDA?
Internet Solutions II, So. 3d at , 2010 WL 2400390 at *1 . After considering
the issue, the Florida Supreme Court answered the question in the affirmative. See
id. at , 2010 WL 2400390 at *1, 14. It concluded that, although the posting of
defamatory material about a Florida resident on a website alone did not constitute
the commission of a tortious act under § 48.193(1)(b), the posting of such that was
both accessible in Florida and accessed in Florida constituted the commission of a
tortious act of defamation within Florida under § 48.193(1)(b). Id. at , 2010 WL
2400390 at *1, 12, 14. Specifically, it concluded that the posting of “allegedly
defamatory material about a Florida resident placed on the [World Wide] Web and
accessible in Florida constitutes an ‘electronic communication into Florida’ when
the material is accessed (or ‘published’) in Florida.” Id. at , 2010 WL 2400390 at
*4, 12, 14. The Florida Supreme Court held, therefore, that “Marshall’s posting of
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allegedly defamatory material about [ISC] that was accessible in Florida
constitutes committing a tortious act within Florida, provided that the material was
accessed–and thus published–in Florida.” Id. at , 2010 WL 2400390 at *13.
III. CONCLUSION
Because the Florida Supreme Court concluded that Marshall committed a
tortious act in Florida by posting allegedly defamatory material about ISC that was
accessible in Florida when the material was then accessed and thus published in
Florida, she is accordingly subject to the Florida long-arm statute. We therefore
REVERSE the district court’s dismissal of ISC’s claim and REMAND for further
proceedings consistent with this opinion.1
1
Consistent with the Florida Supreme Court’s observations, we note that we have only
addressed the first step to the inquiry as to whether the exercise of personal jurisdiction over a
none-resident defendant is proper. See Internet Solutions II, So. 3d at , 2010 WL 2400390
at *13. As the Florida Supreme Court observed, “the issues of whether Marshall targeted a
Florida resident, . . . purposefully directed her post at Florida, or whether her website is ‘active’
or ‘passive’ could be properly considered” in the “more restrictive” second step determination of
whether “the exercise of jurisdiction over the nonresident defendant would violate due process.”
Id. at n.11, 2010 WL 2400390 at *13, n.11.
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