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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 17-15196
Non-Argument Calendar
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D.C. Docket No. 1:16-cv-25365-CMA
CATALYST PHARMACEUTICALS, INC.,
Plaintiff - Appellant,
versus
JAMES FULLERTON,
Defendant - Appellee.
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Appeal from the United States District Court
for the Southern District of Florida
________________________
(September 5, 2018)
Before MARCUS, MARTIN, and ROSENBAUM, Circuit Judges.
PER CURIAM:
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Catalyst Pharmaceuticals, Inc. (“Catalyst”) appeals the district court’s ruling
that it lacked personal jurisdiction over James Fullerton, as well as the resulting
dismissal of its lawsuit against him. Upon careful consideration of the arguments
of the parties, we affirm.
I.
Catalyst sued Fullerton, alleging posts he made about Catalyst on a Yahoo
Finance Message Board were defamatory. Catalyst is a Delaware corporation with
its principal place of business in Florida. Fullerton made his posts about Catalyst
in Houston, Texas, where he lived.
Catalyst filed suit in state court in Florida, and Fullerton removed the case to
federal court. Fullerton then moved to dismiss for lack of personal jurisdiction.
The district court denied his motion without prejudice so the parties could
undertake jurisdictional discovery. After conducting that discovery, Fullerton
renewed his motion to dismiss. In pertinent part, Fullerton argued that Catalyst’s
complaint did not allege facts sufficient to show that a third party in Florida
accessed his posts.
Twelve days later, Catalyst amended its complaint. In the amended
complaint, Catalyst alleged that Fullerton used a pseudonym, bigredwf, to post
“hundreds of disparaging and defamatory Statements [on the Message Board]
about Catalyst and its executives in Florida.” Catalyst also asserted that “Fullerton
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published such false and defamatory Statements in Florida to Catalyst and to third
parties in Florida via [the Message Board].” And Catalyst alleged that “[t]he
Statements were accessed by Catalyst and others in Florida.” But Catalyst
provided no further details about the third parties who it claimed to have accessed
these statements.
Fullerton then filed another motion to dismiss for lack of personal
jurisdiction. In this motion, he again argued that Catalyst failed to include
sufficient facts that a third party in Florida accessed his posts. Catalyst’s response
included a declaration from Philip B. Schwartz, an attorney who worked at the law
firm representing Catalyst in this case. In his declaration, Schwartz wrote that he
accessed Fullerton’s posts while in Florida and that he was “aware” of unnamed
others who had as well. The declaration did not specify when Schwartz or the
unidentified others accessed the posts. The district court granted Fullerton’s
motion to dismiss, finding that Catalyst failed to allege sufficient facts to establish
personal jurisdiction under Florida law.
Catalyst filed a motion to reconsider, which included a more detailed
declaration from Schwartz and declarations from three Catalyst shareholders, all
saying they had accessed Fullerton’s posts on the Message Board. The district
court denied Catalyst’s reconsideration motion.
This appeal followed.
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II.
We review de novo dismissals for lack of personal jurisdiction. Stubbs v.
Wyndham Nassau Resort & Crystal Palace Casino,
447 F.3d 1357, 1360 (11th Cir.
2006).
To establish personal jurisdiction over a nonresident defendant, a plaintiff
“bears the initial burden of alleging in the complaint sufficient facts to make out a
prima facie case of jurisdiction.” Louis Vuitton Malletier, S.A. v. Mosseri,
736
F.3d 1339, 1350 (11th Cir. 2013) (quotation omitted). Vague and conclusory
allegations do not satisfy this burden. See Snow v. DirecTV, Inc.,
450 F.3d 1314,
1318 (11th Cir. 2006). Rather, a plaintiff must “present enough evidence to
withstand a motion for directed verdict.”
Stubbs, 447 F.3d at 1360 (quotation
omitted). A directed verdict is appropriate where “viewing the evidence in its
entirety and drawing all reasonable inferences in favor of the nonmoving party,”
“the nonmoving party failed to make a showing on an essential element of his case
with respect to which he had the burden of proof.” Smith v. United States,
894
F.2d 1549, 1552 (11th Cir. 1990).
For a federal court sitting in diversity, the law of the state in which it sits
must authorize jurisdiction over the nonresident defendant.
Stubbs, 447 F.3d at
1360. In this case, we look to Florida Statute § 48.193, known as Florida’s long-
arm statute. See Louis
Vuitton, 736 F.3d at 1350, 1352. “The reach of Florida’s
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long-arm statute is a question of Florida law.”
Id. at 1352. We must apply the
long-arm statute “as would the Florida Supreme Court” and the Florida District
Courts of Appeal, “absent some indication that the Florida Supreme Court would
hold otherwise.”
Id. (quotation omitted). Florida’s long-arm statute provides that
a nonresident “submits himself . . . to the jurisdiction of the courts of this state for
any cause of action arising from . . . [c]ommitting a tortious act within this state.”
Fla. Stat. § 48.193(1)(a)(2).
III.
Catalyst’s amended complaint made a single claim against Fullerton:
defamation under Florida law. And Catalyst points to Florida’s long-arm statute §
48.193(1)(a)(2) as its sole basis for personal jurisdiction over Fullerton. Thus, we
must examine whether Catalyst pled sufficient facts to make out a prima facie case
of a “tortious act [of Florida defamation] within” Florida. See Fla. Stat. §
48.193(1)(a)(2); see also Louis
Vuitton, 736 F.3d at 1352–54; Internet Sols. Corp.
v. Marshall,
557 F.3d 1293, 1295–96 (11th Cir. 2009) (per curiam).
Catalyst failed to meet its burden. A party asserting jurisdiction in Florida
over a nonresident defendant for a defamation claim must make a prima facie
showing that that the purported defamatory statements were not merely accessible
to, but also “accessed by a third party in Florida.” See Internet Sols. Corp. v.
Marshall,
39 So. 3d 1201, 1215 (Fla. 2010) (emphasis added). Catalyst’s amended
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complaint alleged that Fullerton “published . . . defamatory Statements in Florida
to Catalyst and third parties in Florida via [the Message Board] dedicated to
discussions regarding Catalyst.” And it alleged that these “Statements were
accessed by Catalyst and others in Florida.” While these allegations may establish
that Fullerton’s statements were accessible in Florida, they do not point to any
facts showing the statements were accessed in Florida. Cf.
id. at 1203–04, 1215
(holding that allegedly defamatory content posted on a website was accessed in
Florida where, through exhibits attached to the complaint, the plaintiff showed that
a number of those who commented on the posts “appeared to be from Florida”).
As a result, Catalyst’s complaint “failed to make a showing on an essential element
of [its] case with respect to which [it] had the burden of proof.”
Smith, 894 F.2d at
1552.
Schwartz’s first Declaration did not cure this defect. Schwartz worked for
the law firm representing Catalyst in this suit when he prepared and executed his
affidavit. Schwartz was also present during Fullerton’s deposition and questioned
him as well. Thus, the fact that Schwartz accessed Fullerton’s postings is hardly
surprising, and was in keeping with his role as counsel, as opposed to a third party.
This is fatal to Catalyst’s attempt to use him to establish a prima facie case under
§ 48.193(1)(a)(2), insofar as the posts could not be deemed published in Florida
until they were “accessed by a third party in Florida.” Internet
Sols., 39 So. 3d at
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1215 (emphasis added); see also Maine v. Allstate Ins. Co.,
240 So. 2d 857, 858
(Fla. 4th DCA 1970) (holding that, where an allegedly defamatory letter was sent
to the plaintiff’s attorney, “there was no publication since the plaintiff’s attorney
was clearly and without dispute the plaintiff’s agent as concerns [the] transaction at
issue and since the attorney had asked to receive copies of all papers and
correspondence”).
Contrary to Catalyst’s assertions on appeal, Louis Vuitton and Licciardello
v. Lovelady,
544 F.3d 1280 (11th Cir. 2008), do not compel a different result.
Both of these cases address allegations of trademark infringement via publicly-
accessible websites. Louis
Vuitton, 735 F.3d at 1352–54;
Licciardello, 544 F.3d at
1282–84. And both suggest a website’s accessibility in Florida is sufficient to
establish a prima facie case that the trademark infringement occurred within
Florida for the purposes of § 48.193(1)(a)(2). See Louis
Vuitton, 736 F.3d at
1353–54;
Licciardello, 544 F.3d at 1283–84. However, were we to extend these
rulings on trademark infringement to say that mere accessibility is enough to
establish a prima facie case that defamation “occurred within” Florida under §
48.193(1)(a)(2), we would be at odds with the Florida Supreme Court’s holding in
Internet Solutions.
See 39 So. 3d at 1203 (“We conclude that posting defamatory
material on a website alone does not constitute the commission of a tortious act
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within Florida for purposes of section 48.193(1)(b)”). 1 And, again, we are bound
to apply the Florida long-arm statute in the same way “as would the Florida
Supreme Court.” Louis
Vuitton, 736 F.3d at 1352 (quotation omitted).
Neither do the additional declarations Catalyst filed as part of its motion to
reconsider change our conclusion. We review denials of motions to reconsider for
abuse of discretion. M.G. v. St. Lucie Cty. Sch. Bd.,
741 F.3d 1260, 1262 (11th
Cir. 2014) (per curiam); Lawson v. Singletary,
85 F.3d 502, 507 (11th Cir. 1996)
(per curiam). “[R]elief from final judgment may be granted based on . . . newly
discovered evidence that could not have been discovered earlier with reasonable
diligence.”
M.G., 741 F.3d at 1262 (quotation omitted). However, Catalyst has
made no showing that these declarations—or the facts in them—were previously
unavailable. Indeed, three of the declarations are from shareholders who had been
partial owners of Catalyst “[s]ince at least 2014,” well before Catalyst filed its
amended complaint in May of 2017. And the fourth is from Mr. Schwartz, who
submitted his first declaration more than two months before Catalyst filed its
motion to reconsider. Each of these late declarations says only that the declarant
had accessed at least some of Fullerton’s posts since 2014. In light of the
1
“In 2013, the Florida legislature amended the statute and moved the tortious acts
provision [from Fla. Stat. § 48.193(1)(b)] to its present location at Fla. Stat. § 48.193(1)(a)(2).”
Louis
Vuitton, 736 F.3d at 1353 n.7.
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relationship each declarant had with Catalyst, it could have included them in its
amended complaint or its response to Fullerton’s motion to dismiss.
IV.
We AFFIRM the district court’s dismissal for lack of personal jurisdiction.
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