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McNeil v. Biaggi Productions, LLC

United States District Court, E.D. Virginia, Richmond Division

June 16, 2017




         This 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)[1] 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.[2] 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.

         I. Procedural and Factual Background

         A. Procedural Background

         The 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."[3] (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)[4] 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).

         Prior 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 ....")

         Despite 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.[5] (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.)

         The 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.[6] 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.

         B. Factual Background[7]

         This case arises out of purported Internet communications and third-party conversations by the Defendants[8] 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, "[9] two Facebook comments, [10] and a blog post.[11] 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.

         The 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.

         Davila 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, "[12] 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[13] 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.

         The 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, 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 7283919

(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.)

         On January 2, 2015, Davila made the following statement on a blogpost titled "Dead threats from a Police of Richmond, Virginia":

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 and shoulders.

         Finally, 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.

         As a 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.)

         The 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 II")
"COUNT 3 - Defamation - The [Facebook] Timeline Post" ("Count III")
"COUNT 4 - Defamation - The Blog Post" ("Count IV")
"COUNT 5 - Defamation - Statements to Richmond Police Department" ("Count ...

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