Kent v. Hennelly

328 F.Supp.3d 791

Martin L. KENT, Plaintiff,

v.Kevin N. HENNELLY, Defendant.

No. 2:17-CV-188

United States District Court, E.D. Tennessee.

Filed July 10, 2018

Richard Andrew Hutchinson, Baker, Donelson, Bearman, Caldwell & Berkowitz, PC, Johnson City, TN, for Plaintiff.

Mathew D. Brownfield, Grant, Konvalinka & Harrison, PC, Chattanooga, TN, for Defendant.

MEMORANDUM OPINION

PAMELA L. REEVES, UNITED STATES DISTRICT JUDGE

Martin Kent brings this action against Kevin Hennelly alleging libel, defamation, and false light invasion of privacy. Kent's allegations arise from three allegedly defamatory posts, two on Facebook and one website comment on a news article, all posted in South Carolina. Before the court is Hennelly's motion to dismiss for lack of personal jurisdiction. Because the complaint does not contain any allegations tying this case to Tennessee and no allegations regarding minimum contacts by Hennelly, the motion is granted and this action dismissed.

I. Background

Martin Kent is a citizen and resident of Sullivan County, Tennessee. Kevin Hennelly is a citizen and resident of Bluffton, South Carolina.

Kent is the President of the United Company, a Virginia corporation, with its principal place of business in Bristol, Virginia. United is the parent company of Scratch Golf, LLC, a South Carolina limited liability company that owns Hilton Head National Golf Course in Beaufort County, South Carolina.

In July 2016, Scratch Golf applied to the Beaufort County government to have the golf course rezoned as part of a plan to redevelop the property. The rezoning application became a topic of public discussion.

On May 12, 2017, the Island Packet, a news organization in Bluffton, South Carolina, published a written biography of Kent's life. The biography described Kent as the President of Hilton Head National's parent firm, the United Company; a former top deputy in the administration of Virginia's first governor convicted of a felony; and the only boy raised among sisters and cousins on an 800-acre family farm in southern Virginia. The biography further detailed Kent's college education in Richmond, Virginia; employment as an accountant with the Virginia State Corporation Commission; employment as an attorney with the Virginia Attorney General; employment as Virginia Governor Bob McDonnell's Chief of Staff; and his move to Bristol, Tennessee, where he went to work for United Company at its Bristol, Virginia headquarters.

Later, Hennelly published on his Facebook account, a link to a 2013 Washington Post article headlined "Virginia governor's wife was paid $36,000 as consultant to coal philanthropy." The article was published in the Virginia Politics section of the Washington Post on June 2, 2013. Along with the link, Hennelly commented, "A little something the island [sic] Packet overlooked."

On May 12, 2017, the Island Packet published an article about United's attempts to redevelop Hilton Head National Golf Club. The article reported Scratch Golf's efforts to redevelop the golf course, quoted Kent on United's justification for the project, and described Kent as a "Virginian" who "joined the United Company ... following stints working in private practice and for the Virginia state government in Richmond. His career in government peaked when he was tapped to serve as chief of staff for former Virginia Gov. Bob McDonnell." The article also said "Kent ... lives and works near Bristol, VA, where the United Company is headquartered."

On May 14, 2017, Hennelly commented on the redevelopment article, stating "It looks like they left out a few pertinent facts. The most glaring is the corrupt people involved." In reference to Kent and James McGlothlin, United's founder and CEO, Hennelly commented:

These guys are crony capitalists and will break every rule in the book to get a government favor or handout. Let's vote NO to zoning change and send these carpetbaggers packing. Let's tell them loud and clear our elected officials are not for sale and are above reproach. Let's support our honest elected officials and send these crooks back to Bristol, Virginia.

At a public meeting on May 22, 2017, the Beaufort County Council denied Scratch Golf's rezoning application. That same day, Hennelly published comments to his Facebook account that Kent was a "crooked owner who wanted a government handout," engaged in "Crony Capitalism," is a "crook" from Virginia, Kent, as owner/operator of United, engaged in "documented corruption," and Kent was "up to his eyeballs in the recent scandals in Virginia with the Governor and his wife. McGlothlin gave the Governor's wife a no show job at the heart of the ethical [sic] and criminal activity."

Kent avers Hennelly published his statements on Facebook, making the representations available to untold numbers of people and entities, including those in Bristol, Tennessee, where Kent resides. Kent alleges damages to his character, reputation, and standing in Bristol, Tennessee, as a result of Hennelly's libel. Kent says Facebook currently has over 2 billion monthly active users, more than 3 million of whom live in Tennessee. A public post on Facebook is published to all Facebook users and is available to internet users in Tennessee.

Hennelly argues that none of the posts were directed towards individuals in Tennessee or were sent to individuals in Tennessee and, in fact, regarded proposed rezoning of real property located in South Carolina. Other than Kent's state of residence, there is no allegation in the complaint of any connection to Tennessee. Hennelly states there are no allegations that he targeted Tennessee residents or that he personally had any systematic or minimum contacts with Tennessee to establish personal jurisdiction over him.

II. Analysis

A. Personal Jurisdiction

Hennelly moves the court to dismiss him from this action pursuant to Federal Rules of Civil Procedure 12(b)(2) and (3) due to lack of personal jurisdiction over him.

A district court may dismiss a complaint for lack of personal jurisdiction upon motion of a party. Fed.R.Civ.P. 12(b)(2). In response to such a motion, the plaintiff bears the burden of proving that the court's exercise of personal jurisdiction is proper by a preponderance of the evidence. Serras v. First Tenn. Bank Nat'l Ass'n , 875 F.2d 1212, 1214 (6th Cir. 1989). In the face of a properly supported motion for dismissal, the plaintiff may not stand on his pleadings, but must, "by affidavit or otherwise, set forth the specific facts showing that the court has jurisdiction." Theunissen v. Matthews , 935 F.2d 1454, 1458 (6th Cir. 1991).

Hennelly avers he has no business or personal contacts with the State of Tennessee, and he has been a resident of and domiciled in the State of South Carolina where the underlying facts in this case took place, since 2011. Hennelly's only contact with Tennessee in the last ten years has been three days spent in Nashville in 2016 to attend the Vanderbilt versus South Carolina football game. Kent bears the burden of demonstrating that personal jurisdiction exists. Youn v. Track, Inc. , 324 F.3d 409, 417 (6th Cir. 2003). A district court may decide to rule on the jurisdictional issue upon a full trial record, after an evidentiary hearing, or merely on the basis of a written record. Welsh v. Gibbs , 631 F.2d 436, 438 (6th Cir. 1980). This matter has been fully briefed by the parties and affidavits and exhibits have been filed. There is no need for an evidentiary hearing in this matter and the motion will be decided on the record.

When a court decides the issue on the basis of the written record alone, plaintiff needs only to make a prima facie case of jurisdiction. To survive a motion to dismiss, plaintiff needs only to "demonstrate facts which support a finding of jurisdiction." Id. The burden on plaintiff is relatively slight. The court considers the pleadings and affidavits in the light most favorable to the plaintiff. Any conflicts between facts contained in the parties' affidavits must be resolved in the plaintiff's favor. See Neogen Corp. v. Neo Gen Screening, Inc. , 282 F.3d 883, 887 (6th Cir. 2002) (the court does not consider facts proffered by the defendant that conflict with those proffered by the plaintiff); Air Prods. & Controls, Inc. v. Safetech Int'l, Inc. , 503 F.3d 544, 549 (6th Cir. 2007) (a court disposing of a Rule 12(b)(2) motion does not weigh the controverting assertions of the party seeking dismissal). Dismissal under Rule 12(b)(2) is proper only if the specific facts alleged by plaintiff, taken as a whole, fail to state a prima facie case for personal jurisdiction. Bridgeport Music, Inc. v. Still N The Water Pub. , 327 F.3d 472, 478 (6th Cir. 2003). Thus, as long as the plaintiff is able to "demonstrate facts which support a finding of jurisdiction," the motion to dismiss will be denied, even in the face of controverting evidence presented by the moving party. Serras v. First Tenn. Bank Nat'l Ass'n , 875 F.2d 1212, 1214 (6th Cir. 1989).

Kent alleges federal jurisdiction pursuant to 28 U.S.C. § 1332, diversity of citizenship. In diversity cases, federal courts apply the substantive law of the forum state to determine whether personal jurisdiction exists over a defendant, subject to constitutional limitations. Aristech Chem. Int'l Ltd. v. Acrylic Fabricators Ltd. , 138 F.3d 624, 627 (6th Cir. 1998). The court must determine that a defendant comes within the boundaries of the state's long-arm statute as well as the requirements of constitutional due process. Id. Under the Tennessee long-arm statute, a federal court is permitted to exercise jurisdiction over a defendant if such jurisdiction is within the boundaries of constitutional due process. Chenault v. Walker , 36 S.W.3d 45, 52 (Tenn. 2001). Where a state long-arm statute extends to the limits of constitutional due process, the court need only determine whether exercising personal jurisdiction over the defendant would violate constitutional due process. Aristech , 138 F.3d...