Kenneth M. Seaton, dba Grand Resort Hotel and Convention Center, Plaintiff-Appellant,
TripAdvisor LLC, Defendant-Appellee
Argued: July 30, 2013
Appeal from the United States District Court for the Eastern District of Tennessee at Knoxville. No. 3:11-cv-00549—Thomas W. Phillips, District Judge.
Todd A. Shelton, JOHN ROGERS LAW GROUP, Greeneville, Tennessee, for Appellant.
Laura R. Handman, DAVIS WRIGHT TREMAINE LLP, New York, New York, for Appellee.
Todd A. Shelton, John T. Milburn Rogers, JOHN ROGERS LAW GROUP, Greeneville, Tennessee, Sidney Gilreath, GILREATH & ASSOCIATES, Knoxville, Tennessee, for Appellant.
Laura R. Handman, James Rosenfeld, Samuel M. Bayard, DAVIS WRIGHT TREMAINE LLP, New York, New York, S. Russell Headrick, BAKER, DONELSON, BEARMAN, CALDWELL & BERKOWITZ, Knoxville, Tennessee, for Appellee.
Before: MOORE, CLAY, and WHITE, Circuit Judges.
KAREN NELSON MOORE, Circuit Judge.
Plaintiff Kenneth Seaton is the sole proprietor of Grand Resort Hotel and Convention Center ("Grand Resort") located in Pigeon Forge, Tennessee. Defendant TripAdvisor LLC ranked Grand Resort number one on its "2011 Dirtiest Hotels" list. Seaton filed suit in Tennessee state court, alleging claims for defamation and false-light invasion of privacy based on TripAdvisor's placement of Grand Resort on the "2011 Dirtiest Hotels" list. After removing the case to federal court, TripAdvisor filed a motion to dismiss, asserting that Grand Resort's placement on the list is protected under the First Amendment. Seaton moved to amend his complaint, seeking to add two additional claims: "trade libel/injurious falsehood" and tortious interference with prospective business relationships. The district court granted TripAdvisor's motion to dismiss and denied Seaton's motion to amend as being futile. For the reasons set forth in this opinion, we AFFIRM the district court's grant of TripAdvisor's motion to dismiss and its denial of Seaton's motion to amend his complaint.
According to the complaint, Grand Resort has operated since 1982 and has "established itself as a valuable business in the state and county, [and] it justly and properly gained and kept the confidence and goodwill of the public generally, including many tourists that travel to The Great Smoky Mountains for vacation." R.1-1 (Compl. at ¶ 5) (Page ID #5). Defendant TripAdvisor "is a worldwide company and subsidiary of Expedia, Inc. which is in the business of doing surveys of hotels and restaurants throughout the world." Id. at ¶ 3 (Page ID #4). "On January 25, 2011, . . . TripAdvisor published a survey which concluded that . . . Grand Resort . . . was the dirtiest hotel in America." Id. at ¶ 7 (Page ID #5).
On October 11, 2011, Seaton filed suit against TripAdvisor in the Circuit Court for Sevier County, Tennessee. In his initial complaint, Seaton alleged, among other things, that TripAdvisor
published its allegations . . . to cause the public to cease and refrain from doing business with [Grand Resort] and to cause great injury and irreparable damage to and to destroy [Grand Resort's] business and reputation by false and misleading means[. TripAdvisor] caused the [list] to be published in the industry, including CNN, ABC, NBC, and WATE, defaming [Grand Resort's] business with unsubstantiated rumors and grossly distorted ratings and misleading statements to be used by consumers.
. . .
TripAdvisor used a rating system which is flawed and inconsistent and distorts actual ...