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UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
TACTICAL RIFLES, INC.,
Plaintiff,
v.

Case No: 8:14-cv-1480-T-35TBM

MARC SOULIE, FRANK GALLI, and

SNIPERS HIDE, LLC.,
Defendants.

ORDER
THIS CAUSE comes before the Court for consideration of the Motion to Dismiss
or to Transfer (Dkt. 28) filed by Defendant, Marc Soulie; the Motion to Dismiss (Dkts. 16,
17) filed by Defendants Frank Galli and Snipers Hide, LLC (Snipers Hide); and the
Responses in opposition thereto filed by Plaintiff, Tactical Rifles, Inc. (Tactical Rifles)
(Dkts. 23, 33) Upon consideration of all relevant filings, case law, and being otherwise
fully advised, the Court GRANTS Defendants Motions to Dismiss.
I.

BACKGROUND
In the Amended Complaint, Plaintiff alleges that Defendant Marc Soulie posted

false information on Snipers Hide, Inc.s website. (Dkt. 8 at 6) In support of that

allegation Plaintiff has attached an email to the pleading. (Dkt. 8-1) In the attached
email string, Marc Soulie wrote to Jeff Stevens: Hi Jeff, Here is the final estimate and link
to video documentation. Right now the link is private. Let me know if you want it to be
made public. (Dkt. 8-1) Following the above text is a link to youtube.com. Stevens
then forwarded Mr. Soulies email to a Tactical Rifles email account. After noting several

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complaints he had with a firearm Tactical Rifles had been hired to build for him, Stevens
states that Tactical Rifles owes him $966.56, and that [y]ou have 2 days to contact me
about the matter and get it resolved and if we can't resolve it I am going to go public with
the youtube link and then I am going to post on all the major shooting forums. I am going
to start with Snipershide[.] Frank Galli personally watched the video and he could not
believe you call that a precision rifle product. (Id.)
Plaintiff alleges that Snipers Hide, LLC is a Colorado corporation that runs a web
forum on which people can comment about rifles. (Dkt. 8 at 7) Frank Galli is the
alleged owner of Snipers Hide. (Id. at 8)
Plaintiff also alleges that its Snipers Hide account was deleted to prevent it from
responding to the outrageous lies made on the forum, and that attempts to set up a new
account have been denied by Mr. Galli. (Id. at 9) Further, Plaintiff claims that Mr. Galli
allows companies who provide him with free merchandise to maintain multiple screen
names for the purpose of slandering competitor companies, such as Tactical Rifles. (Id.
at 10) Through these competitor screen names, companies pretend to be dissatisfied
customers of Tactical Rifles. Positive comments are deleted by Galli and the positive
posters are threatened with expulsion and a lifetime ban if they post anything further about
Tactical Rifles. (Id.)
Count I alleges a claim for libel against Marc Soulie. Therein, Plaintiff alleges that
Soulie created and published a false video and then made comments on the Snipers
Hide website. (Id. at 12) Plaintiff alleges that the postings contain false accusations
that are libelous on their face. (Id. at 13) Count II also alleges a claim for libel but
against Galli and Snipers Hide.

In Count II, Plaintiff claims that these defendants

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created and published a false video and then made false comments on the Snipers Hide
Website. (Id. at 1718)
Count III alleges a claim for tortious interference against Soulie. Therein, Plaintiff
alleges that it has a business relationship with the community at large as a rifle
manufacturer and more particularly a business relationship with individuals who frequent
the website Snipers Hide, and that Soulie interfered with that relationship via the false
video and comments on the website.

(Id. at 2226) Count IV is identical to Count

III other than substituting Galli and Snipers Hide as defendants. (Id. at 2834)
Counts V and VI seek permanent injunctions against Soulie (in Count V) and Gailli
and Snipers Hide (in Count VI) to prevent them from posting any further false information
on any website and to remove all current postings immediately.

(Id. at 3540)

Plaintiff alleges it will suffer irreparable harm if Defendants continue to post false
information about it on Snipers Hide.
Plaintiff alleges that it is a Florida corporation with a principal place of business in
Zephyrhills, Florida.
California.

(Id. at 1)

Soulie is alleged to be a resident of San Jose,

(Id. at 2) Galli is alleged to be a resident of Colorado, and he is also

alleged to be the sole owner and only principal listed for Snipers Hide. (Id. at 34)
Defendants have moved to dismiss the amended complaint primarily on the bases
of a lack of personal jurisdiction and failure to state a claim. (Dkt.16; Dkt. 28) In the
alternative, Soulie seeks a transfer of this action to the District of Colorado. (Dkt. 28 at
1719)

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II.

LEGAL STANDARD
Personal jurisdiction generally entails a two-step inquiry. First, we determine

whether the exercise of jurisdiction is appropriate under the forum states long-arm
statute. Second, we examine whether exercising jurisdiction over the defendant would
violate the Due Process Clause of the Fourteenth Amendment, which requires that the
defendant have minimum contacts with the forum state and that the exercise of
jurisdiction not offend traditional notions of fair play and substantial justice. Sloss
Indus. Corp. v. Eurisol, 488 F.3d 922, 925 (11th Cir. 2007) (internal citations omitted).
The threshold for surviving a motion to dismiss for failure to state a claim under
Federal Rule of Civil Procedure 12(b)(6) is a low one. Quality Foods de Centro Am.,
S.A. v. Latin Am. Agribusiness Dev. Corp., S.A., et al., 711 F.2d 989, 995 (11th Cir. 1983).
A plaintiff must plead only enough facts to state a claim to relief that is plausible on its
face. Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1968-69 (2007) (abrogating the
no set of facts standard for evaluating a motion to dismiss established in Conley v.
Gibson, 355 U.S. 41, 45-46 (1957)). Although a complaint challenged by a Rule 12(b)(6)
motion to dismiss does not need detailed factual allegations, a plaintiff is still obligated to
provide the grounds for his entitlement to relief, and a formulaic recitation of the
elements of a cause of action will not do. Berry v. Budget Rent A Car Sys., Inc., 497 F.
Supp. 2d 1361, 1364 (S.D. Fla. 2007) (quoting Twombly, 127 S.Ct. at 1964-65).

In

evaluating the sufficiency of a complaint in light of a motion to dismiss, the well pleaded
facts must be accepted as true and construed in the light most favorable to the plaintiff.
Quality Foods, 711 F.2d at 994-95. However, the court should not assume that the
plaintiff can prove facts that were not alleged.

Id. Thus, dismissal is warranted if,

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assuming the truth of the factual allegations of the plaintiffs complaint, there is a
dispositive legal issue which precludes relief. Neitzke v. Williams, 490 U.S. 319, 326
(1989).
III.

DISCUSSION
A. Long-arm Statute
Under Floridas long-arm statute, [f]irst, the plaintiff must allege sufficient facts in

his complaint to initially support long-arm jurisdiction before the burden shifts to the
defendant to make a prima facie showing of the inapplicability of the statute. If the
defendant sustains this burden, the plaintiff is required to substantiate the jurisdictional
allegations in the complaint by affidavits or other competent proof, and not merely
reiterate the factual allegations in the complaint. Polski Linie Oceaniczne v. Seasafe
Transp. A/S, 795 F.2d 968, 972 (11th Cir. 1986).
The Amended Complaint does not expressly cite the Florida long-arm statute. In
response to the instant motions, however, Plaintiff argues that the allegations here fall
under Fla. Stat. 48.193(1)(a)(2), which provides that a nonresident defendant is subject
to personal jurisdiction in Florida for any cause of action arising from ... [c]ommitting a
tortious act within [Florida].
[U]nder Florida law, a nonresident defendant commits a tortious act within
[Florida] when he commits an act outside the state that causes injury within Florida.
Louis Vuitton Malletier, S.A. v. Mosseri, 736 F.3d 1339, 1353 (11th Cir. 2013) (emphasis
and alteration in original) (citing Licciardello v. Lovelady, 544 F.3d 1280, 1283 (11th Cir.
2008)); see also Posner v. Essex Ins. Co., Ltd., 178 F.3d 1209, 1217 (11th Cir. 1999)
([W]e are bound in this case to follow this courts firmly established precedent, which

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interprets subsection [48.193(1)(a)(2)] to apply to defendants committing tortious acts

outside the state that cause injury in Florida.). Thus, in Enviracarbon, Inc. v. Couch, 23
Fla. L. Weekly Fed. D 2, at *3 (M.D. Fla. June 20, 2011) this Court found that regardless
of the failure to plead that Defendants were present in Florida when they committed the
offending acts, the long-arm statute had been met because the complaint adequately
alleged the elements of tortious interference and [t]he Complaint also pleads that
Plaintiff's principal place of business is in Florida and pleads that it suffered injuries in
Florida as a result of the torts alleged. 1
The Florida Supreme Court addressed the issue of long-arm jurisdiction under Fla.
Stat. 48.193(1)(a)(2) in the context of defamatory material on the internet in Internet
Solutions Corp. v. Marshall, 39 So. 3d 1201 (Fla. 2010) (Internet Solutions I). There,
Tabatha Marshall, a resident of the State of Washington, owned and operated a website
on which she posted about consumer-related issues. Id. at 1202. Internet Solutions
Corporation (ISC), a company with its principal place of business in Florida, alleged that
Marshall made posts on her website in which she accused ISC, an employment and
recruiting firm, of ongoing criminal activity such as phishing and consumer fraud. Id. at
120204. The Court held that posting defamatory material on a website alone does not
constitute the commission of a tortious act within Florida for purposes of section

1 See also, e.g., Elandia Intern., Inc. v. Ah Koy, 690 F. Supp. 2d 1317, 1330 (S.D. Fla. 2010) (On the face
of the complaint and on this record there is a prima facie basis to conclude that Defendant James Ah Koy
committed a tort that caused eLandia, a company with a principal place of business in Florida, to suffer
harm in the state of Florida. Thus, even assuming as James Ah Koy maintains that any tortious conduct he
committed occurred outside the state of Florida, Plaintiff's claim of breach of fiduciary duty satisfies the
Florida long-arm statute.); Lehigh Technologies, Inc. v. Farrah, 208-CV-53-FTM-29SPC, 2009 WL 179672,
at *5 (M.D. Fla. Jan. 23, 2009) (finding long-arm satisfied where Plaintiff alleged that Defendant, acting from
Michigan, engaged in tortious interference with [Plaintiffs] business relations by sending defamatory and
threatening letters to third parties in other states (such as Michigan, Texas, and South Carolina), and that
defendants' actions relating to these counts have caused harm to [Plaintiff] in Florida).

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48.193(1)(b), 2 Florida Statutes. Rather, the material posted on the website about a
Florida resident must not only be accessible in Florida, but also be accessed in Florida in
order to constitute the commission of the tortious act of defamation within Florida under
section 48.193(1)(b). Id. at 1203 (emphasis in original).
Defendants assert that Plaintiff has failed to plead that the allegedly defamatory
postings were either accessed or accessible in Florida. (Dkt. 28 at 7) Plaintiff argues
in response to Gallis motion that the false information was available in Florida and that
its Florida customers could view the information (Dkt. 23 at 2); however, these facts are
neither pled in the Amended Complaint, nor are they supported by an affidavit or other
record evidence. Plaintiff appears to impliedly concede this pleading and evidentiary
shortcoming in response to Soulies motion by attempting to analogize to chat room
cases.

(Dkt. 33 at 3)

However Internet Solutions I rejected that analogy, stating,

[w]hereas . . . chat rooms . . . are easily analyzed as to whether the communication was
sent into Florida, the World Wide Web is a more pervasive and complicated
communication medium for the purpose of contemplating whether there is a
communication into the state.

Internet Solutions I, 39 So. 3d at 1210.

Likewise,

Defendants argument regarding whether posting a video is passive or active was also
rejected.

Rather, the Court found that once the allegedly defamatory material is

published in Florida, Marshall has committed the tortious act of defamation within Florida
for purposes of Florida's long-arm statute, however whether Marshall targeted a Florida
resident, whether Marshall purposefully directed her post at Florida, or whether Marshall's

2 The statute was re-ordered effective July 1, 2013, such that 48.193(1)(b) is now 48.193(1)(a)(2).

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website is active or passive could be properly considered in the due process analysis.
Id. at 1216, 1216 n.11.
Thus, Plaintiff has failed to properly allege long-arm jurisdiction under an internetdefamation analysis by failing to allege or properly establish access and accessibility in
Florida.

This is especially important here, where, judging from the exhibit to the

Amended Complaint, Soulie sent a private link, solely to Stevens. (Dkt. 8-1) Although
not alleged, Plaintiff appears to now concede that Stevens is a California citizen. (Dkt.
33 at 2) Such a publicationa private link accessed and accessible solely by a person
in Californiawould be insufficient under Internet Solutions.
Moreover, because the threshold question of personal jurisdiction turns on
whether defendant committed an intentional tort in Florida, [the court] must also
necessarily review the complaint to determine whether it states a cause of action for libel.
If the complaint does not set forth a cause of action for the tort of libel, then assertion of
personal jurisdiction predicated on the commission of that specific tort would be
improper. Silver v. Levinson, 648 So. 2d 240, 24142 (Fla. 4th DCA 1994) (citation
omitted); see also Internet Solutions I, 39 So. 3d at 1214 (same).
The elements of a claim for defamation are as follows: (1) publication; (2) falsity;
(3) actor must act with knowledge or reckless disregard as to the falsity on a matter
concerning a public official, or at least negligently on a matter concerning a private person;
(4) actual damages; and (5) statement must be defamatory. Internet Solutions I, 39 So.
3d at 1214 n.8 (quoting Jews for Jesus, Inc. v. Rapp, 997 So.2d 1098, 1106 (Fla. 2008)).
The words allegedly used must be stated in the complaint in order for the Court to
determine whether or not the words or statements were defamatory per se. If the words

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are not defamatory per se, the complaint should contain allegations explaining their
defamatory character and consequential injuries. Grigsby v. Rest. Mgmt. Services,
Inc., 94-1115-CIV-T-17E, 1994 WL 855090, at *1 (M.D. Fla. Nov. 1, 1994) (quoting Perez
v. City of Key W., Fla., 823 F. Supp. 934, 938 (M.D. Fla. 1993)).
Here, the Amended Complaint fails to set forth the allegedly defamatory words
used, or attach the video or postings as an exhibit.

Likewise, apart from wholly

conclusory allegations that the statements were false and defamatory, Plaintiff fails to
allege any facts from which a plausible conclusion of defamation could be reached.
Indeed, even in its responses to the motions to dismiss, Plaintiff fails to elucidate what
precisely it believes to be defamatory in the video or postings. Such threadbare recitals
of a cause of actions elements, supported by mere conclusory statements, Ashcroft v.
Iqbal, 556 U.S. 662, 663 (2009), is insufficient under Federal pleading standards, and
thus the defamation based long-arm statute argument would fail for this reason as well.
Likewise, the tortious interference claim fairs no better as a basis for long-arm
jurisdiction as it too is inadequately pled. The elements of tortious interference with a
business relationship are (1) the existence of a business relationship ... (2) knowledge of
the relationship on the part of the defendant; (3) an intentional and unjustified interference
with the relationship by the defendant; and (4) damage to the plaintiff as a result of the
breach of the relationship. Ethan Allen, Inc. v. Georgetown Manor, Inc., 647 So. 2d
812, 814 (Fla. 1994) (quoting Tamiami Trail Tours, Inc. v. Cotton, 463 So. 2d 1126, 1127
(Fla. 1985)).

While a protectable business interest need not be evidenced by an

enforceable contract, no cause of action exists for tortious interference with a businesss
relationship to the community at large. Id. at 81415; see also, e.g., Sarkis v. Pafford

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Oil Co., Inc., 697 So. 2d 524, 526-27 (Fla. 1st DCA 1997) (The amended complaint does
not identify the customers who were the subject of the alleged interference. . . . The
cause of action cannot be established by proof that the defendant interfered with a
relationship between the plaintiff and the public at large, yet that is precisely the basis of
the claim asserted in this case.). Rather, [a]s a general rule, an action for tortious
interference with a business relationship requires a business relationship evidenced by
an actual and identifiable understanding or agreement which in all probability would have
been completed if the defendant had not interfered. Ferguson Transp., Inc. v. N. Am.
Van Lines, Inc., 687 So. 2d 821, 822 (Fla. 1996) (quoting Ethan Allen, 647 So. 2d at 815).
Here, Plaintiff alleged that it has a business relationship with the community at
large and with individuals who frequent the website Snipers Hide, and that Defendants
interfered with the relationship between Plaintiff and its potential customers. (Dkt. 8 at
2426, 3133)

Plaintiff argues in its response that one identifiable customer

Defendants interfered with was Stevens. (Dkt. 33 at 5) However, no such allegation is

found in the pleading.
Plaintiff also argues in its response that the the customer base of Tactical Rifles
is very discrete. It manufactures custom rifles. Snipers Hide is a web forum for people
who use custom rifles and excel at shooting.

Marc Soulie is also involved in this

community of custom rifle owners and sport shooters so the argument that the Complaint
discusses the public at large is inaccurate. (Id.) Yet, the allegation itself states only
that Snipers Hide website users were potential customers.
Florida law requires that in order to establish the tort of tortious interference with
a business relationship, the plaintiff must prove a business relationship with identifiable

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customers, with whom an actual and identifiable understanding or agreement . . . in all

probability would have been completed if the defendant had not interfered. Ferguson
Transp., Inc., 687 So. 2d at 82122 (emphasis added). Plaintiffs conclusory allegation
of interference with potential customers who are Snipers Hide users, absent any other
factual support, fails to plead a plausible claim for tortious interference. Rather, the
allegation is akin to a relationship with the community at large, which is insufficient under
Florida law. Ethan Allen, 647 So. 2d at 815.
Thus, the tortious interference allegations likewise fail to support long-arm
jurisdiction under Fla. Stat. 48.193(1)(a)(2).
Because the defamation and tortious interference claims are inadequately pled,
they are also due be dismissed under Fed. R. Civ. P. 12(b)(6). Moreover, without a
properly pled claim for relief, the counts seeking injunctive relief are also due to be
dismissed.
While this determinationthat the long-arm statute has not been meteffectively
ends the matter, the Court will proceed to the second step of the personal jurisdiction
analysis as these pleading deficiencies could potentially be remedied, yet the Defendants
would likely still seek dismissal based on the lack of personal jurisdiction.
B. Due Process
The second step of the personal jurisdiction inquiry requires an examination of
whether exercising jurisdiction over the defendant would violate the Due Process Clause
of the Fourteenth Amendment, which requires that the defendant have minimum contacts

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with the forum state and that the exercise of jurisdiction not offend traditional notions of
fair play and substantial justice. Sloss Indus. Corp., 488 F.3d at 925
i. Minimum Contacts
The Eleventh Circuit has adopted a three-part test to decide whether the minimum
contacts requirement is met: (1) the contacts must be related to the plaintiffs cause of
action; (2) the contacts must involve some act by which the defendant purposefully avails
itself of the privilege of conducting activities within the forum; and (3) the defendants
contacts with the forum must be such that the defendant should reasonably anticipate
being haled into court in the forum. See Posner, 178 F.3d at 122021 (citing Vermeulen
v. Renault, U.S.A., Inc., 985 F.2d 1534, 1546 (11th Cir. 1993)).
However, the Eleventh Circuit has also held that intentional torts, such as the ones
at issue here, may support the exercise of personal jurisdiction over the nonresident
defendant who has no other contacts with the forum, pursuant to the Calder effects test.
Licciardello, 544 F.3d at 1285 (citing Calder v. Jones, 465 U.S. 783, 790 (1984)). In
Calder, the Supreme Court found that personal jurisdiction can be based on an intentional
act that was expressly aimed at the forum state and which the defendant knew would
cause harm in the forum state.

Calder, 465 U.S. at 789.

Thus, in Licciardello,

defendants use of plaintiffs trademarked name and his picture on defendants website in
a manner to imply plaintiffs endorsement of defendant and defendants products was
sufficient to establish minimum contacts in a trademark infringement case. Licciardello,
544 F.3d at 128889 3 ; see also Calder, 465 U.S. at 790 (An individual injured in

3 The Eleventh Circuit expressly constrained its Licciardello decision to the facts before it, rather than a
general rule regarding the internet: We do not, by our decision today, intend to establish any general rule
for personal jurisdiction in the internet context. Our holding, as always, is limited to the facts before us. We
hold only that where the internet is used as a vehicle for the deliberate, intentional misappropriation of a

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California need not go to Florida to seek redress from persons who, though remaining in
Florida, knowingly cause the injury in California.).
However, the Eleventh Circuit, in remanding Internet Solutions to the District Court
following the Florida Supreme Courts ruling discussed above, also directed that in this
context, the issues of whether [Defendant] targeted a Florida resident, . . . purposefully
directed [the] post at Florida, or whether [the] 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.
Internet Solutions Corp. v. Marshall, 611 F.3d 1368, 1371 n.1 (11th Cir. 2010) (Internet
Solutions II) (quoting Internet Solutions I, 39 So. 3d at 1216 n.11).
Soulies affidavit establishes that at all material times he has been a California
resident, he has never been to Florida, he has not contracted to do any work in Florida or
for a Florida resident, he does not own any real or personal property in Florida, he has
not sold or leased any real or personal property in Florida, nor conducted any personal
business within Florida.

Soulie does not maintain any bank accounts, telephone

numbers, or post office boxes in Florida.

Soulie avers that it would be unduly

burdensome for him to travel to Florida to defend this suit, and that being forced to do so
may prevent him from putting forth a meaningful defense. (Dkt. 28-1) Soulies affidavit
also reveals that Stevens was a customer of his in California, who hired him to inspect
and repair a rifle that Stevens originally purchased from Plaintiff. (Id. at 4)

specific individual's trademarked name or likeness and that use is aimed at the victim's state of residence,
the victim may hale the infringer into that state to obtain redress for the injury. The victim need not travel to
the state where the website was created or the infringer resides to obtain relief. Licciardello, 544 F.3d at
1288 n.8.

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Galli, on his own behalf and as the sole owner of Snipers Hide, attests that he
personally does not reside in Florida, does not own any real or personal property in
Florida, has never sold or leased any real or personal property within Florida, he has not
conducted any personal business within the State of Florida, and he does not maintain
any bank accounts in Florida. (Dkt. 18 at 24) He further avers that Snipers Hide
in not a Florida LLC, has not contracted to do any work in Florida or for a Florida resident,
does not have a facility in the State of Florida, does not own any real or personal property
within the State of Florida, has never sold or leased any real or personal property within
Florida, and it does not maintain any bank accounts in Florida. (Id. at 58)
The plaintiff bears the burden of establishing a prima facie case of personal
jurisdiction by [p]resent[ing] enough evidence to withstand a motion for directed verdict.
If the defendant submits affidavits contrary to the allegations in the complaint, the burden
shifts back to the plaintiff to produce evidence supporting personal jurisdiction, unless the
defendants affidavits contain only conclusory assertions that the defendant is not subject
to jurisdiction. Goforit Entm't LLC, v. Digimedia.com L.P., 513 F. Supp. 2d 1325, 1328
(M.D. Fla. 2007) (quoting Stubbs v. Wyndham Nassau Resort & Crystal Palace Casino,
447 F.3d 1357, 1360 (11th Cir. 2006)).
According to Plaintiffs response, SOULIE created an eleven minute video titled
TacticalRifles.net: Bad out of the box, detailing the alleged poor craftsmanship of
TACTICAL RIFLES, INC. MARC SOULIE posted the video on YouTube and in
conjunction with FRANK GALLI posted false information on SNIPERS HIDE, LLCs web
forum. (Dkt. 33 at 2) Plaintiff has provided no affidavits or other record evidence to
support those arguments, or contradict Defendants affidavits.

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Neither Plaintiff nor Defendants have provided the Court with any evidence
regarding the nature of the Snipers Hide website or the video. Likewise, the YouTube
link referenced in the email attached to the Amended Complaint is no longer active.
Assuming arguendo that Plaintiff could otherwise properly allege a tortious act
causing injury in Florida, and thus take advantage of the Calder effects test, the Court
finds that sufficient minimum contacts have not been established on this record.
First, Plaintiff has presented no evidence that either the Snipers Hide website
postings or the YouTube video were targeted [at] Florida or that Defendants acted to aim
their conduct at a Florida audience. Vision Media TV Group, LLC v. Forte, 724 F. Supp.
2d 1260, 1266 (S.D. Fla. 2010); see also Bioheart, Inc. v. Peschong, 13-60304-CIV, 2013
WL 1729278, at *4-5 (S.D. Fla. April 22, 2013) (finding defendants posting on Yahoo!
Finance message board of allegedly defamatory material insufficient to establish personal
jurisdiction because Bioheart provides no evidence that Yahoo! Finance generally, or
Peschong's comments in particular, were purposefully directed at a Florida
audience. . . . Peschong's knowledge that Bioheart is located in Florida is insufficient to
establish that his posts were expressly aimed at the state.); Internet Solutions Corp. v.
Marshall, No. 6:07cv01740ACCKRS, Dkt. 32 at *11 (M.D. Fla. Sept. 30, 2010)
(Internet Solutions III) (finding that defendants allegedly defamatory online postings,
which listed plaintiffs Florida address contains no other connection to Florida. [Plaintiff]
does not demonstrate that Florida residents were the target audience or that it suffered a
particular harm to its business generated from Florida. Even though Florida residents
may have posted in response to the article, personal jurisdiction cannot be based solely
on the ability of a Florida resident to access the website.). At best, the video and

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postings were a continuous presence everywhere in the world, [Defendants] Internet

contacts with Florida were not in any way substantial. Fraser v. Smith, 594 F.3d 842,
847 (11th Cir. 2010) (quoting Revell v. Lidov, 317 F.3d 467, 470 (5th Cir. 2002)).
Second, Plaintiff has presented no evidence regarding whether the Snipers Hide
website is active or passive.
At one end of the spectrum are situations where a defendant
clearly does business over the Internet. If the defendant
enters into contracts with residents of a foreign jurisdiction that
involve the knowing and repeated transmission of computer
files over the Internet, personal jurisdiction is proper. At the
opposite end are situations where a defendant has simply
posted information on an Internet Web site which is
accessible to users in foreign jurisdictions. A passive Web
site that does little more than make information available to
those who are interested in it is not grounds for the exercise
personal jurisdiction. The middle ground is occupied by
interactive Web sites where a user can exchange information
with the host computer. In these cases, the exercise of
jurisdiction is determined by examining the level of
interactivity and commercial nature of the exchange of
information that occurs on the Web site.
Zippo Mfg. Co. v. Zippo Dot Com, Inc., 952 F. Supp. 1119, 1124 (W.D. Pa. 1997) (citations
omitted). 4 [T]he mere existence of a website that is visible in a forum and that gives
information about a company and its products is not enough, by itself, to subject a
defendant to personal jurisdiction in that forum. Fraser v. Smith, 594 F.3d 842, 847
(11th Cir. 2010) (quoting McBee v. Delica Co., 417 F.3d 107, 124 (1st Cir. 2005)).
From the allegations of the amended complaint and other papers in the record, the
Court infers that the portion of Snipers Hide website at issue was nothing more than a
message forum.

See, e.g., (Dkt. 33 at 2) (describing postings as being placed on

4 see also Bioheart, 2013 WL 1729278 at *34 (applying Zippo); Miller v. Berman, 289 F. Supp. 2d 1327,
1335 (M.D. Fla. 2003) (applying Zippo); JB Oxford Holdings, Inc. v. Net Trade, Inc., 76 F. Supp. 2d 1363,
1367-68 (S.D. Fla. 1999) (applying Zippo).

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Snipers Hides web forum). Such websites have routinely been held to fall in the middle
ground of the active-passive spectrum, thus making the level of interactivity and
commercial nature crucial. Internet Solutions III, No. 6:07cv01740ACCKRS, Dkt.
32 at *7 ([T]he only interaction between the user and Marshalls website is the users
ability to post comments to Marshalls articles, to which Marshall can then post a
response. Thus, the website at most could be described as an interactive site in the
middle of the spectrum.); Bioheart, 2013 WL 1729278, at *4 ([T]he only alleged
interaction between Yahoo! Finance and its users is the users ability to post comments
in a message board. While Bioheart does not describe the message board in detail, there
is no evidence that it particularly facilitated interactions with or otherwise targeted a
Florida audience. Additionally, Bioheart has not alleged that Peschong used the site to
engage in any commercial activity, and Peschong disclaims receiving compensation or
income in connection with his activity on the site. Thus, the site could at most qualify as
an interactive website in the middle of the Zippo spectrum.) (citations omitted); Alternate
Energy Corp. v. Redstone, 328 F. Supp. 2d 1379, 1383 (S.D. Fla. 2004) (Defendant
merely posted the information at issue on its website, which is insufficient to invoke
jurisdiction under the Zippo standard. . . . Moreover, there is no indication that Defendant
expressly aimed its publication at the state of Florida. . . . [T]he mere fact that allegedly
libelous statements appeared in a publication sold to Florida residents is not sufficient to
give a defendant fair warning that he may be haled into court here.).
However, Plaintiff has not provided any evidence regarding the websites
commercial nature, or what revenue, if any, Defendants may have derived from the
website. Yet, even assuming that [Defendants] attempted to lure advertisers to [the]

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website by way of defamatory statements, this commercial activity by itself likely would
not be sufficient. Internet Solutions III, No. 6:07cv01740ACCKRS, Dkt. 32 at *8.
Thus, this factor likewise militates against finding sufficient minimum contacts here.
Finally, as alleged, Defendants did target a Florida residentalthough, whether
any Defendant knew Plaintiff was a Florida citizen is not clear from the pleading or papers.
Galli/Snipers Hide contacts also include allegedly purposefully deleting Plaintiffs
account, thus preventing it from responding to negative reviews; permitting Plaintiffs
competitors to use multiple accounts to slander Plaintiffs products; and deleting any
positive comments. (Dkt. 8 at 910) While those allegations arguably show greater
contacts, Plaintiff has failed to show that those actions were directed at Florida or Florida
citizens in particular. For example, deletion of positive comments submitted by Florida
residents, or permitting Plaintiffs Florida competitors to post additional negative reviews,
could show more significant purposeful availing on Galli/Snipers Hides part, especially
with regard to the tortious interference claim. Plaintiff has failed to make such specific
allegations or present such evidence in challenging the motion to dismiss, however.
Accordingly, the Court finds that Plaintiff has failed to meet its burden of
establishing that Defendants have the requisite minimum contacts with the state of
Florida.
ii. Fair Play and Substantial Justice
Factors that this court must consider in determining whether exercising personal
jurisdiction over [Defendants] would offend notions of fair play and substantial justice
include the following: the burden on [Defendants] of defending the suit in Florida; Florida's
interest in adjudicating the suit; [Plaintiffs] interest in obtaining effective relief; the

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interests of the interstate judicial system in using resources efficiently; and the interests
of the states in furthering shared substantive policies. Posner, 178 F.3d at 1221.
The Court finds that the burden on Defendants in defending this suit in Florida are
immense as Soulie is located in California and Galli/Snipers Hide are in Colorado.
Indeed, Soulie averred that continuing this action in Florida may prevent [him] from
putting forward any meaningful defense. (Dkt. 28-1 at 3) Soulie did consent to a
transfer of this action to Colorado, however. (Id.)
Plaintiff argues that all of the damages witnesses are located in Florida and all of
the evidence about the rifle which is central to the case is in Florida. (Dkt. 33 at 6)
However, any alleged tortious activity would have occurred in California and Colorado
where the video and postings were made, and where any tortious interference with
Stevens, as argued, appears to have taken place. Other than its residency here, Plaintiff
has not set forth any other particular interest that Florida has in adjudicating this dispute.
In any event, these factors are, at best, evenly split.

However, in the absence of

sufficient minimum contacts, these factors would need to weigh heavily in favor of
exercising jurisdiction.

See Madara v. Hall, 916 F.2d 1510, 1519 (11th Cir. 1990)

(Having determined that Hall's contacts with Florida are insufficient to establish
constitutionally-required minimum contacts, we now look to other considerations outlined
by the Supreme Court.

These considerations may in exceptional cases serve to

establish the reasonableness of jurisdiction upon a lesser showing of minimum contacts

than would otherwise be required. (citing Burger King Corp. v. Rudzewicz, 471 U.S. 462,
477 (1985)).

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IV.

CONCLUSION
Because the Court is dismissing this matter, it does not reach Soulies alternative

arguments regarding improper venue, failure to join an indispensable party, conditions

precedent, or the request to transfer this matter to the District of Colorado.

Upon

consideration of the foregoing, it is hereby ORDERED as follows:

1.

Defendants Frank Galli and Snipers Hide Motion to Dismiss (Dkts. 16, 17),
and Soulies Motion to Dismiss (Dkt. 28) are GRANTED.

2.

This matter is DISMISSED without prejudice.

3.

The CLERK is DIRECTED to terminate any pending motions and CLOSE

this case.

DONE and ORDERED in Tampa, Florida, this 6th day of January, 2015.

Copies furnished to:

Counsel of Record
Any Unrepresented Person

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