United States District Court, E.D. Virginia, Richmond Division
HANNAN LAUCK, UNITED STATES DISTRICT JUDGE
matter comes before the Court on Defendants Biaggi
Productions, LLC, and Juan A. Davila's (collectively, the
"Defendants") "Motion to Dismiss Pursuant to
Fed.R.Civ.P. 12(b)(2) for Lack of Personal Jurisdiction" (the
"Third Motion to Dismiss"). (ECF No. 29.) Plaintiff
Centell Colonzo McNeil has responded to the Third Motion to
Dismiss, (ECF No. 31), and the Defendants have replied, (ECF
No. 32). The Court dispenses with oral argument because the
materials before it adequately present the facts and legal
contentions, and argument would not aid the decisional
process. The matter is ripe for disposition. The Court
exercises jurisdiction pursuant to 28 U.S.C. §
1332. For the reasons that follow, the Court
will grant in part the Third Motion to Dismiss. The Court
will dismiss all but Count V without prejudice.
Procedural and Factual Background
parties' alacrity to oppose the other, coupled with a
reluctance to assure compliance with the Federal Rules of
Civil Procedure, has hindered the prosecution of this case.
After removing this case to federal court, the Defendants
filed a "Motion to Dismiss Pursuant to Federal Rule of
Civil Procedure 12(b)(2) for Lack of Personal
Jurisdiction" (the "First Motion to Dismiss").
(ECF No. 2.) Before opposing the First Motion to Dismiss,
McNeil filed the "First Amended
Complaint." (ECF No. 4.) Because McNeil filed the
First Amended Complaint within 21 days after the Defendants
filed the First Motion to Dismiss, the Court ruled that
Federal Rule of Civil Procedure 15(a)(1)(B) permitted
McNeil to file the First Amended Complaint as a matter of
course. See McNeil v. Biaggi Prods., LLC, No.
3:15cv751, 2016 WL 3227517, at *1 (E.D. Va. Feb. 9, 2016).
to that ruling, however, and in spite of his right to file
the First Amended Complaint as a matter of course, McNeil
filed an opposition to the First Motion to Dismiss. (ECF No.
5.) The Defendants then filed a Motion to Strike McNeil's
opposition as untimely, (ECF No. 6), and McNeil sought an
extension of time, (ECF No 8). The parties proceeded to
respond to each other's motions unnecessarily, and the
Court ultimately denied all motions then pending as moot.
McNeil, 2016 WL 3227517, at * 1. In order to give
the parties what the Court intended to amount to a fresh
start, the Court deemed the Amended Complaint filed as of the
date of its order. Id. ("The Court DEEMS FILED
the Amended Complaint as of today ....")
the Court's attempt to functionally reset the litigation,
the parties again cluttered the docket with several filings.
Twenty-one days after the Court deemed the First Amended
Complaint filed, the Defendants filed, untimely, the Second
Motion to Dismiss. (ECF No. 15.) McNeil subsequently
filed the Motion for Entry of Default and the Motion to
Strike, arguing that the Defendants did not timely file their
responsive pleading to the Amended Complaint. (ECF Nos. 17,
18.) The Defendants then filed the Motion for Leave to File,
seeking an extension of time to file their responsive
pleading if the Court deemed the March 1 filing untimely.
(ECF No. 23.)
Court found that the Defendants demonstrated excusable
neglect for extending the time to file responsive pleadings
and granted the Motion for Leave to File. (ECF No. 28.) The
Court denied as moot the Second Motion to Dismiss, the Motion
for Entry of Default, and, the Motion to
Strike. The Defendants then filed the Third
Motion to Dismiss, which the Court now considers. The Third
Motion to Dismiss seeks to dismiss the First Amended
Complaint and argues that the Court lacks personal
jurisdiction over the Defendants.
case arises out of purported Internet communications and
third-party conversations by the Defendants between
December 2014 and November 2015. McNeil alleges that, in
December 2014, he sent a message to Davila via his cellular
phone under the belief that the phone number belonged to
someone else. Various communications ensued. McNeil asserts
that the Defendants then defamed him by publishing various
posts or comments online. These actions involved two
"Tweets, " two Facebook comments,  and a
blog post. McNeil also contends that the
Defendants published statements to the Richmond Police
Department and the Federal Bureau of Investigation that
accused McNeil of threatening to kill Davila.
Defendants published the allegedly defamatory statements
after McNeil accidentally called Davila using the FaceTime
feature. McNeil attempted to apologize to Davila, including
during the FaceTime call and via text message and telephone
call. Davila made several phone calls to McNeil from a
blocked phone number, and McNeil later received racist and
derogatory emails from an unknown account that he believed to
have been operated by Davila. The owner of the email account,
Joshua Boyle, contacted McNeil and apologized for the emails.
Boyle explained that he and Davila had been friends and that
Davila hacked his email account.
posted the first Tweet on December 29, 2014, at 8:46 a.m.
(Id. ¶ 45.) That Tweet stated: "Este
cabron de Hopewell, Virginia me llama FaceTime que m va a
matar . La policia Esta en my casa mas info luego,
" and included a photo of McNeil's
upper body and face, as well as his personal email address.
(Id. ¶¶ 46, 49.) The 8:46 a.m. Tweet
generated twenty reply Tweets and five Retweets from
other Twitter users. (Id. ¶ 53.) One reply
asked in Spanish about the veracity of Davila's Tweet, to
which Davila responded affirmatively at 11:31 a.m.
Defendants posted the following comment on Biaggi
Productions, LLC's Facebook account on December 29, 2014,
at 3:55 p.m.:
Jason Ander from NY and Centell Mcneil (sic) police from
Virginia, (sic) he should be a shame (sic) of him self (sic)
for doing this sh[**], (sic) where the people involved in
thisnUgly and F Stupid (sic) move to FaceTime me I don't
how (sic) they got my info, but (sic) this morning they
FaceTime more than 25 times to show me guns on Camera, (sic)
the police already has a (sic) investigation...
(Id. ¶ 57 (alterations in original).) The
Facebook post included the same photo and email address as
the first Tweet. The Facebook post generated 18 comments from
other Facebook users. Davila then posted the following
statement to his Facebook timeline at an unspecified time on
December 29, 2014:
This person call (sic) me saying he is going to kill me, if
you guys get FaceTime call (sic) from this person report him
. it (sic) comes in my computer not in (sic) my phone . there
(sic) no way to Block him for some reason,
firstname.lastname@example.org The Police just left my house
I call (sic) the police in Virginia, he lives here 3919
Grovewood Rd Hopewell, Virginia and his number its (sic) 804
(Id. ¶ 66 (alterations in original).) On or
about that same day, the Defendants "published
statements to the Richmond Police Department and to the
Federal Bureau of Investigation (FBI) that, in haec
verba, [McNeil] threatened to kill Defendant
Davila." (Id. ¶ 92.)
January 2, 2015, Davila made the following statement on a
blogpost titled "Dead threats from a Police of Richmond,
Centell Mc Neil Police from Richmond Virginia you and your
dead treats will not stop me from working and doing my thing
you, I hope your soul if you have its Forgiving by god . But
now you have to respond to the IA, yes like you can see the
IA that are investigating you right now.
(Id. ¶¶ 75-76 (grammar, spacing, and
spelling errors in original).) The blogpost included the same
photo and email address featured on the Tweet and Facebook
post and also displayed a second photo of McNeil's face
on November 22, 2015, the Defendants published the following
Tweet on Twitter: "Last year a Police from Richmond
Virginia harassed me and hack (sic) into my computer for an
entire month." (Id. ¶ 100 (alteration in
original).) The November 22 Tweet generated seven comments,
five of which came from the Defendants.
result of the Defendants' conduct, McNeil alleges to have
suffered injury to his personal reputation and his
professional reputation. McNeil asserts that his employer
placed him on administrative leave and stripped him of
overtime pay. McNeill contends that he "has suffered and
will suffer physical, mental, economic, and emotional
injuries." (Id. ¶ 118.)
First Amended Complaint brings the following counts:
"COUNT 1 - Defamation - The December 29, 2014 Twitter
Post" ("Count I")
"COUNT 2 - Defamation - The Facebook Post"
"COUNT 3 - Defamation - The [Facebook] Timeline
Post" ("Count III")
"COUNT 4 - Defamation - The Blog Post" ("Count
"COUNT 5 - Defamation - Statements to Richmond Police
Department" ("Count ...