DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
KEVIN BARONOWSKY,
Appellant,
v.
CARLO PONTI MAIORANO, n/k/a CARLO PONTI,
Appellee.
No. 4D20-1997
[August 18, 2021]
Appeal of a nonfinal order from the Circuit Court for the Seventeenth
Judicial Circuit, Broward County; Michael A. Robinson, Judge; L.T. Case
No. CACE-18-021357.
David O. Batista of Shutts & Bowen LLP, Fort Lauderdale, and Julissa
Rodriguez and Alina A. Gomez of Shutts & Bowen LLP, Miami, for
appellant.
Warren P. Gammill of Warren Gammill & Associates, P.L., Miami, for
appellee.
WARNER, J.
Appellant, Kevin Baronowsky, the defendant in an internet defamation
case, appeals an order denying his motion to dismiss for lack of personal
jurisdiction. Because we conclude that Baronowsky purposefully directed
his internet postings to Florida under the circumstances present in this
case, the Florida courts can exercise personal jurisdiction over him. We
thus affirm the trial court’s order.
The plaintiff/appellee, Dr. Carlo Ponti Maiorano, is an anesthesiologist
who was once married to Baronowsky’s former wife. Prior to the events
leading to this case, Dr. Maiorano was employed by Greater Florida
Anesthesiologists, LLC and was the Chief Anesthesiologist and Medical
Director at Hallandale Outpatient Surgical Center. He had also secured a
contract for Greater Florida Anesthesiologists to provide anesthesiology
services at Cypress Creek Medical Center in Fort Lauderdale and had been
offered an ownership opportunity and the position of Chief
Anesthesiologist there.
In 2017, Baronowsky, who lives in Nevada, bought the domain name
www.drcarlomaiorano.com and began using it to publish a series of
webpages containing allegedly defamatory statements about Dr. Maiorano.
On his webpages, Baronowsky expressly identified Dr. Maiorano as an
anesthesiologist in Hallandale and Fort Lauderdale. He stated that Dr.
Maiorano had been arrested and included screenshots of his booking
photo and personal information. He also stated that Dr. Maiorano had
been subjected to disciplinary action by the medical board. At the top of
one of the webpages, he writes: “WARNING: Is Dr. Carlo Maiorano your
Anesthesiologist?”
According to Dr. Maiorano, soon after the webpages were published,
potential patients began contacting his employers and expressing “serious
concerns and reservations” about him. He was eventually demoted and
forced to resign from Greater Florida Anesthesiologists, lost his ownership
opportunity at Cypress Creek Medical Center, and lost another
employment opportunity in California. He also alleged suffering severe
mental and emotional distress.
Dr. Maiorano sued Baronowsky in Broward County circuit court. The
complaint alleges three causes of action for defamation and one cause of
action for tortious interference with a business relationship. It alleges that
Baronowsky is subject to personal jurisdiction in Florida because he
committed tortious acts in the state by publishing defamatory statements
that were accessed and read by Florida residents and that caused injury
to Dr. Maiorano in Florida.
Baronowsky moved to dismiss for lack of personal jurisdiction. He
claimed that the complaint failed to allege sufficient facts to establish
jurisdiction under the long-arm statute and argued that he did not have
sufficient minimum contacts with Florida to satisfy due process
requirements. The trial court denied his motion, and this appeal was filed.
Analysis
This Court has de novo review of the order denying Baronowsky’s
motion to dismiss for lack of personal jurisdiction. Wendt v. Horowitz,
822
So. 2d 1252, 1256 (Fla. 2002); Sun Coast Nursing Ctrs., Inc. v. Littman,
293
So. 3d 1056, 1059 (Fla. 4th DCA 2020).
2
Determining whether a Florida court can exercise personal jurisdiction
over a nonresident defendant requires a two-step inquiry: (1) whether the
complaint alleges sufficient facts to support the exercise of jurisdiction
under the long-arm statute; and (2) whether the defendant has sufficient
minimum contacts with the state to satisfy due process requirements.
Venetian Salami Co. v. Parthenais,
554 So. 2d 499, 500–02 (Fla. 1989);
Astro Aluminum Treating Co., Inc. v. Inter Contal, Inc.,
296 So. 3d 462, 464
(Fla. 4th DCA 2020).
Long-Arm Statute
The trial court ruled that Dr. Maiorano’s allegations were sufficient to
establish long-arm jurisdiction under section 48.193(1)(a)(2), Florida
Statutes (2017). Section 48.193(1)(a)(2) (formerly numbered as (1)(b))
provides that a person who commits a tortious act within the State of
Florida, whether or not he is a citizen or resident of the state, submits
himself to the jurisdiction of the state’s courts for any cause of action
arising from that act. Applying this subsection, the Florida Supreme Court
has held that a nonresident who posts defamatory material about a Florida
resident on a website accessible in Florida commits a tortious act within
the state, and therefore submits himself to the jurisdiction of the state’s
courts, once the material is accessed in Florida. Internet Sols. Corp. v.
Marshall,
39 So. 3d 1201, 1214–16 (Fla. 2010).
Baronowsky does not challenge the application of Internet Solutions to
this case. Instead, he argues that the complaint does not sufficiently allege
that his statements were defamatory because it does not sufficiently allege
that they were false. See Internet Sols.,
39 So. 3d at 1214 (quoting Silver
v. Levinson,
648 So. 2d 240, 241–42 (Fla. 4th DCA 1994)) (recognizing that
the court must determine whether the complaint states a cause of action
for a specific tort in order to determine whether it can exercise jurisdiction
over the defendant based on the commission of that tort within the state).
The complaint alleges that Baronowsky’s statements about Dr.
Maiorano’s arrests were defamatory because they falsely implied that he
was guilty or in danger of being convicted, when in fact the state had
dropped the charges months before Baronowsky published his first
webpage. As for Baronowsky’s statements about the medical board
disciplinary action against Dr. Maiorano, the complaint alleges that they
were defamatory because Baronowsky exaggerated the underlying facts.
The complaint also alleges that all of Baronowsky’s statements were
published with bad motives, specifically to interfere with Dr. Maiorano’s
3
career and business opportunities, destroy his reputation, and cause
injury to his personal and professional life.
The court did not err in ruling that these unrefuted allegations were
sufficient to support the exercise of jurisdiction under section
48.193(1)(a)(2). The allegations were sufficient to create issues of fact as
to whether Baronowsky’s statements were defamatory even if some of them
were technically true. See Jews for Jesus, Inc. v. Rapp,
997 So. 2d 1098,
1106–08 (Fla. 2008) (recognizing a cause of action for “defamation by
implication” where “literally true statements are conveyed in such a way
as to create a false impression”); LRX, Inc. v. Horizon Assocs. Joint Venture,
842 So. 2d 881, 886–87 (Fla. 4th DCA 2003) (reversing an order directing
a verdict for the defendant on a claim for libel because, even if the
defendant’s statements about the plaintiff were true, there were issues of
fact as to whether the defendant implied knowledge of additional
defamatory facts and as to whether the defendant had an improper motive
in publishing the statements); Lipsig v. Ramlawi,
760 So. 2d 170, 183 (Fla.
3d DCA 2000) (recognizing that “truth is only a defense to defamation
when the truth has been coupled with good motive” and that both truth
and good motives are issues for the jury). Baronowsky has not shown that
no reasonable person would find his statements to be defamatory or that
the court otherwise erred in finding the allegations sufficient to establish
jurisdiction under the long-arm statute.
Minimum Contacts
Under the second prong of the Venetian Salami analysis, the court was
required to determine whether Baronowsky has sufficient minimum
contacts with the state to satisfy federal due process requirements. See
Venetian Salami,
554 So. 2d at 500–02; Internet Sols.,
39 So. 3d at 1206–
07.
To satisfy due process, the defendant must have “certain minimum
contacts with [the forum state] such that the maintenance of the suit does
not offend ‘traditional notions of fair play and substantial justice.’” Int’l
Shoe Co. v. Washington,
326 U.S. 310, 316 (1945) (citations omitted). Put
differently, the defendant’s conduct and connection with the forum state
must be such that “he should reasonably anticipate being haled into court
there.” World-Wide Volkswagen Corp. v. Woodson,
444 U.S. 286, 297
(1980) (citations omitted). Due process is satisfied if a defendant has
“purposefully directed” his activities toward residents of the forum state
and the litigation results from alleged injuries that “arise out of or relate
4
to” those activities. Burger King Corp. v. Rudzewicz,
471 U.S. 462, 472–
73 (1985) (citations omitted).
In intentional tort cases, minimum contacts can be established based
on a single tortious act, regardless of whether the defendant has any other
contacts with the forum state, if the tortious act was aimed at the forum
state and caused harm that the defendant should have anticipated would
be suffered there. See Calder v. Jones,
465 U.S. 783, 789–90 (1984); Louis
Vuitton Malletier, S.A. v. Mosseri,
736 F. 3d 1339, 1356 (11th Cir. 2013);
see also Walden v. Fiore,
571 U.S. 277, 286–88 (2014) (explaining that a
state can exercise jurisdiction over a nonresident intentional tortfeasor if
his conduct connects him not only to the plaintiff but to the forum state).
In Calder, a resident of California sued residents of Florida for libel in
a California state court.
465 U.S. at 784–86. The defendants’ allegedly
defamatory publication concerned a California plaintiff and plaintiff’s
California activities. The plaintiff’s reputation as an entertainer was based
in California. The publication cited sources in California, and was widely
circulated in California, and the brunt of the plaintiff’s alleged harm
(emotional distress and injury to her professional reputation) was suffered
in California.
Id. at 788–89. “In sum, California [wa]s the focal point both
of the story and of the harm suffered.”
Id. at 789. The Supreme Court
concluded that the California court’s exercise of jurisdiction over the
defendants did not violate due process because their actions were
“expressly aimed” at California and they knew that the effects of their
actions would be felt there.
Id. at 789–90. Under those circumstances,
the Court concluded that the defendants should have reasonably
anticipated being haled into court in California to answer for their actions.
Id. at 790 (citing World-Wide Volkswagen,
444 U.S. at 297).
In Walden, the Court further explained its holding in Calder:
[In Calder,] [w]e held that California’s assertion of jurisdiction
over the defendants was consistent with due process.
Although we recognized that the defendants’ activities
“focus[ed]” on the plaintiff, our jurisdictional inquiry
“focuse[d] on ‘the relationship among the defendant, the
forum, and the litigation.’” Specifically, we examined the
various contacts the defendants had created with California
(and not just with the plaintiff) by writing the allegedly libelous
story.
5
We found those forum contacts to be ample: The defendants
relied on phone calls to “California sources” for the
information in their article; they wrote the story about the
plaintiff’s activities in California; they caused reputational
injury in California by writing an allegedly libelous article that
was widely circulated in the State; and the “brunt” of that
injury was suffered by the plaintiff in that State. “In sum,
California [wa]s the focal point both of the story and of the
harm suffered.” Jurisdiction over the defendants was
“therefore proper in California based on the ‘effects’ of their
Florida conduct in California.”
The crux of Calder was that the reputation-based “effects” of
the alleged libel connected the defendants to California, not
just to the plaintiff. The strength of that connection was
largely a function of the nature of the libel tort. However
scandalous a newspaper article might be, it can lead to a loss
of reputation only if communicated to (and read and
understood by) third persons. Accordingly, the reputational
injury caused by the defendants’ story would not have
occurred but for the fact that the defendants wrote an article
for publication in California that was read by a large number
of California citizens. Indeed, because publication to third
persons is a necessary element of libel, the defendants’
intentional tort actually occurred in California. In this way,
the “effects” caused by the defendants’ article—i.e., the injury
to the plaintiff’s reputation in the estimation of the California
public—connected the defendants’ conduct to California, not
just to a plaintiff who lived there. That connection, combined
with the various facts that gave the article a California focus,
sufficed to authorize the California court’s exercise of
jurisdiction.
571 U.S. at 286–88 (citations omitted).
The facts of this case are similar to the facts of Calder. Here,
Baronowsky used information available through Florida police records and
Florida medical board disciplinary records to make allegedly defamatory
statements about Dr. Maiorano on his website. Baronowsky purposefully
directed his statements to individuals who were patients of Dr. Maiorano,
and who would have been Florida residents, by using Dr. Maiorano’s name
as his website’s domain name, identifying Dr. Maiorano as an
anesthesiologist in Hallandale and Fort Lauderdale, and asking the reader
6
if Dr. Maiorano was their doctor. Baronowsky knew that the “reputation-
based effects” of his statements would be felt by Dr. Maiorano in Florida.
See Walden, 571 U.S. at 287. And the reputational injury to Dr. Maiorano
would not have occurred but for the fact that Baronowsky targeted his
statements to Florida residents and Florida residents read those
statements. See id. at 287–88. Just as in Calder, Baronowsky’s
intentional conduct expressly aimed at residents of this state and causing
reputational harm in this state connected him to the state and constituted
sufficient minimum contacts to support the exercise of personal
jurisdiction consistent with due process. See also Internet Sols.,
39 So. 3d
at 1216 n.11 (explaining that the due process analysis in an internet
defamation case could include consideration of whether the defendant’s
allegedly defamatory website post “targeted” a Florida resident and was
“purposefully directed” at Florida).
We find Estes v. Rodin,
259 So. 3d 183 (Fla. 3d DCA 2018), on which
Baronowsky relies, to be distinguishable. There, nonresident defendants
posted allegedly defamatory statements about the plaintiff, a Florida
resident, in a closed Facebook group of addiction professionals. Id. at 188.
The plaintiff sued the defendants in Florida, but the trial court dismissed
the case for lack of personal jurisdiction, citing the defendants’ lack of
minimum contacts with the state. Id. at 190. In affirming the trial court’s
order, the appellate court concluded that the defendants’ conduct did not
connect them to Florida simply because they allegedly caused harm to a
Florida resident. See id. at 193–96 (discussing Calder and Walden). The
court discounted the claim that the defendants’ comments could have
caused reputational harm to the plaintiff in Florida because there was no
proof that anyone in Florida had read them. Id. at 196. Thus, unlike in
this case and Calder, there was no connection among the defendants’
conduct, the reputational injury to the plaintiff, and the forum state.
The dissent in this case cites several federal cases in support, but most
of the cited cases are more supportive of a finding of jurisdiction. For
instance, in Advanced Tactical Ordinance Systems, LLC v. Real Action
Paintball, Inc.,
751 F.3d 796, 803 (7th Cir. 2014), a trademark
infringement case, the court stated that “minimum contacts” analysis for
online activity depended upon whether the defendant purposely targeted
residents of a specific state. Finding that the defendant did not, the court
found that the trial court lacked jurisdiction over the defendant. In Louis
Vuitton Malletier, S.A. v. Mosseri,
736 F.3d 1339, 1357 (11th Cir. 2013),
the court applied the traditional “minimum contacts” test for purposeful
availment and affirmed the finding of jurisdiction over a website seller of
counterfeit merchandise who sold products in Florida.
7
The dissent cites Kabbaj v. Simpson, 547 F. App’x 84, 88 (3d Cir. 2013),
for the proposition that “[p]ersonal jurisdiction cannot lie [in Delaware]
solely on the basis that [the non-resident’s] internet postings may be
accessed by individuals in Delaware.” However, the court explained in the
very next sentence that, “[i]nstead, [the plaintiff] needed to demonstrate
that [the defendant] purposefully availed himself of conducting activity in
Delaware ‘by directly targeting [his postings] to the state, knowingly
interacting with residents of [Delaware] via [his postings], or through
sufficient other related contacts.’” (citations omitted) (emphasis supplied).
This is the exact type of activity in which the defendant in this case was
engaged. Another case cited by the dissent, Shrader v. Biddinger,
633 F.3d
1235, 1241 (10th Cir. 2011), followed the Calder line of reasoning,
applying it to the internet. While the court did state that “posting allegedly
defamatory comments or information on an internet site does not, without
more, subject the poster to personal jurisdiction wherever the posting
could be read (and the subject of the posting may reside),” it continued by
following the analysis in Calder.
Id. “Consistent with the thrust of the
Calder-derived analysis for specific jurisdiction in the internet context
discussed above, in considering what ‘more’ could create personal
jurisdiction for such activities, courts look to indications that a defendant
deliberately directed its message at an audience in the forum state and
intended harm to the plaintiff occurring primarily or particularly in the forum
state.”
Id. (emphasis supplied). And in Blue Water International, Inc. v.
Hattrick’s Irish Sports Pub, LLC,
2017 WL 4182405 (M.D. Fla. Sept. 21,
2017), an unreported federal district case having no precedential value,
the plaintiff sued a Missouri bar for trademark infringement, even though
it conducted no activities whatsoever in Florida and sold only food and
liquor in Missouri. It was under that circumstance that the court found
there was no long-arm jurisdiction nor minimum contacts jurisdiction.
Id.
at *3–4.
In all, the federal cases support the proposition that minimum contacts
may be established where the defendant purposely targets Florida with his
internet postings and the effect of this purposeful conduct causes harm in
Florida. Thus, the cases are in alignment with Calder and a conclusion
that there are sufficient minimum contacts to support jurisdiction.
Finding that both prongs of Venetian Salami are satisfied, we affirm the
trial court’s order finding that Baronowsky is subject to personal
jurisdiction in Florida.
Affirmed.
8
KLINGENSMITH, J., concurs.
ARTAU, J., dissents with opinion.
ARTAU, J., dissenting.
Zero. That is the amount of contact which the defendant had with
Florida. The majority concludes that the defendant purposefully directed
his internet postings to Florida. I disagree. The internet postings were not
directed at Florida. Instead, they were directed at the plaintiff. The mere
fact that the plaintiff was identified in the internet postings as an
anesthesiologist with offices in Florida cannot justify haling the defendant
all the way from Nevada to answer a defamation action in a state with
which he has no meaningful connection.
The defendant bought a domain name that incorporated the plaintiff’s
name and began using it in Nevada to publish a series of webpages
containing allegedly defamatory statements about the plaintiff. The
primary source of the information which the defendant published
apparently came from his ex-wife as both the defendant and the plaintiff
had been married at different times to the same spouse. On his website,
the defendant identified the plaintiff as an anesthesiologist in Hallandale
and Fort Lauderdale. The defendant stated that the plaintiff had been
arrested and included screenshots of his booking photo and personal
information. The defendant also stated that the plaintiff had been
subjected to disciplinary action by the medical board. Besides identifying
where the plaintiff practices medicine, the complaint against the defendant
does not provide any allegations or evidence that the Nevada website
advertised, sold any goods or services, or actively solicited viewers from
Florida. It was merely a passive site that provided information, whether
false or truthful, about a particular doctor who lives and works in Florida.
Thus, the plaintiff is the only link between the defendant and Florida.
But the Supreme Court in Walden v. Fiore,
571 U.S. 277, 285 (2014),
clarified that “the plaintiff cannot be the only link between the defendant
and the forum” when applying the “effects test” established in Calder v.
Jones,
465 U.S. 783, 789 (1984). As Walden explained:
The crux of Calder was that the reputation-based ‘effects’ of
the alleged libel connected the defendants to [the forum state
of] California, not just to plaintiff . . . . In this way, the ‘effects’
caused by the defendant’s article . . . connected the
9
defendants’ conduct to California, not just to a plaintiff who
lived there.
Walden, 571 U.S. at 287-88 (emphasis added). Walden reasoned that
“[e]ven though the defendants did not circulate the article themselves, they
‘expressly aimed’ ‘their intentional, and allegedly tortious, actions’ at
California because they knew the National Enquirer ‘ha[d] its largest
circulation’ in California, and that the article would ‘have a potentially
devastating impact’ there.” Id. at 287-88 & n. 7 (quoting Calder,
465 U.S.
at 789-90).
To compare Calder, where the defendants had “expressly aimed” their
allegedly tortious conduct at a state where the subject publication had its
largest circulation, to the passive website posted in Nevada by the
defendant who had no other link to Florida, is like comparing an isolated
Facebook page posted by a Facebook account holder with the entire
Facebook platform itself. Without more, we would not conclude that
anything defamatory in an isolated Facebook page of an individual
Facebook account holder would subject the poster to personal jurisdiction
anywhere the post might be read. However, Facebook itself might be
subject to personal jurisdiction well beyond the state where its one isolated
account holder posted a social media page because the platform
purposefully advertises and solicits accounts throughout the world.
The Third District in Estes v. Rodin,
259 So. 3d 183 (Fla. 3d DCA 2018),
relied upon “a series of recent federal cases involving statements posted
on electronic message boards and websites to demonstrate that the
exercise of personal jurisdiction . . . would violate ‘traditional notions of
fair play and substantial justice’ where the defendant’s activity evidenced
minimal affiliation with or connection to the forum state.” Id. at 197
(“Having an ‘interactive website’ . . . should not open a defendant up to
personal jurisdiction in every spot on the planet where that interactive
website is accessible.” (quoting Advanced Tactical Ordinance Sys., LLC v.
Real Action Paintball, Inc.,
751 F.3d 796, 803 (7th Cir. 2014))); see also
Louis Vuitton Malletier, S.A. v. Mosseri,
736 F.3d 1339, 1357 (11th Cir.
2013) (While sale of goods in Florida through a website may subject a
defendant to personal jurisdiction, “[w]e are not saying that the mere
operation of an interactive website alone gives rise to purposeful availment
anywhere the website can be accessed.”); Kabbaj v. Simpson, 547 F. App’x
84, 88 (3d Cir. 2013) (“Personal jurisdiction cannot lie solely on the basis
that [the non-resident’s] internet postings may be accessed by individuals
in [the forum state].”); Shrader v. Biddinger,
633 F.3d 1235, 1241 (10th
Cir. 2011) (“[P]osting allegedly defamatory comments or information on an
10
internet site does not, without more, subject the poster to personal
jurisdiction wherever the posting could be read (and the subject of the
posting may reside).”); Blue Water Int’l, Inc. v. Hattrick’s Irish Sports Pub,
LLC, Case No. 8:17-cv-1584-T-23AEP,
2017 WL 4182405, at *3-4 (M.D.
Fla. Sept. 21, 2017) (“Subjecting [a nonresident defendant] to personal
jurisdiction in Florida merely because a Floridian might view the
[defendant’s social media] pages ‘offend[s] traditional notions of fair play
and substantial justice’” and “impermissibly risk[s] subjecting a defendant
to suit throughout the United States.” (quoting Advanced Tactical, 751
F.3d at 803)).
The federal cases relied upon by the Third District in Estes are
persuasive. Without more, it does not comport with due process to subject
an individual who has exercised his or her First Amendment right to free
expression by posting comments on an electronic message board or
personal website to jurisdiction in any forum where the worldwide web is
freely accessible, even if the posted comments are alleged to be defamatory.
Therefore, I respectfully dissent.
* * *
Not final until disposition of timely filed motion for rehearing.
11
