United States District Court, S.D. Ohio, Eastern Division
Portia A. Boulger, Plaintiff,
James H. Woods, Defendant.
Deavers Magistrate Judge
OPINION AND ORDER
C. SMITH, UNITED STATES DISTRICT JUDGE.
matter is before the Court upon two motions by Defendant
James Woods: (1) a Motion for Judgment on the Pleadings,
filed June 7, 2017 (Doc. 7); and (2) a Motion for Summary
Judgment, or in the Alternative, Motion for Dismissal, filed
August 15, 2017 (Doc. 16). The motions are both fully briefed
and ripe for disposition. For the following reasons,
Woods's Motion for Summary Judgment, or in the
Alternative, Motion for Dismissal is DENIED
and Woods's Motion for Judgment on the Pleadings is
relevant facts occurred against the backdrop of the 2016 U.S.
Presidential campaign. The parties are Plaintiff Portia
Boulger, “a very active volunteer and pledged
convention delegate for U.S. Senator Bernie Sanders
(D-Vt)” for the Democratic Party's nomination, and
Defendant James Woods, “a well-known movie actor and
producer who has appeared in a number of films including
The Way We Were, The Onion Field, and Once Upon
a Time in America.” (Doc. 1, Compl. ¶¶
Friday, March 11, 2016, the campaign of Donald J. Trump, then
a candidate for the Republican nomination for President, held
a rally in Chicago, Illinois. (Id. ¶ 7). That
evening, the Chicago Tribune newspaper posted on its Twitter
account a photograph of a woman at the rally, wearing a Trump
T-shirt, and “giving a Nazi salute-the well-known
‘Heil Hitler' salute with her right hand raised
straight up.” (Id. ¶ 8). On Saturday,
March 12, the Twitter user @voxday posted the photograph,
together with a photograph of Boulger and caption identifying
Boulger as “Organizer (Women for Bernie).” (Doc.
7, PAGEID #61, screenshot). The two photographs and caption
were accompanied by the (false) statement, “The
‘trump Nazi' is Portia Boulger, who runs the Women
for Bernie Sanders Twitter account. It's another media
plant.'” (Doc. 7, PAGEID #61).
minutes of @voxday' tweet, Defendant James H. Woods
tweeted the same two photographs and caption along with the
comment, “So-called #Trump ‘Nazi' is a
#BernieSanders agitator/operative?” (Id.
¶ 12; Doc. 9-1, screenshot). Woods's Twitter account
has more than 350, 000 followers and the tweet in question
was re-tweeted more than 5, 000 times, including by Mr.
Trump's son, Donald Trump, Jr. (Doc. 1, Compl.
¶¶ 13, 19).
that same Saturday, the woman who gave the salute at the
rally was correctly identified by various newspapers and
twitter users as Birgitt Peterson of Yorkville, Illinois.
(Doc. 1, Compl. ¶¶ 15, 17-18). Woods then tweeted,
still on that same Saturday, that “Various followers
have stated that the Nazi Salute individual and the #Bernie
campaign woman are NOT the same person. #Chicago
#Trump.” (Doc. 7, PAGEID #62, screenshot). However,
Woods did not delete his earlier tweet containing the
photographs of Peterson and Boulger. (Doc. 1, Compl. ¶
March 22, 2016, counsel for Boulger wrote to counsel for
Woods, requesting that Woods delete the tweet and issue,
through Twitter, a retraction and apology. (Id.
¶ 21). Woods's counsel denied that the tweet was
defamatory but asked Woods to delete the tweet, which he did
on March 22, 2016. (Id. ¶ 22). On March 23,
2016, Boulger's counsel again contacted Woods counsel and
demanded a public retraction and apology. (Id.
¶ 23). On March 23, 2016, Woods posted three new tweets:
(i) “I have an opportunity to clarify something I
challenged immediately when it hit Twitter. Portia A. Boulger
was NOT the ‘Nazi salute lady.'”
(ii) “Ms. Boulder [sic] has reached out to me and asked
me to use my many followers to stop people from harassing
her. I am more than happy to do so.”
(iii) “Though she supports @BernieSanders, I am happy
to defend her from abuse. I only wish his supporters would do
the same for other candidates.”
(Id. ¶ 24).
the period from March 12-March 23, 2016, while Woods'
tweet remained posted on his Twitter account, Boulger
received hundreds of obscene and threatening messages,
including death threats. (Id. ¶ 26). Boulger
has also received telephone calls at her residence,
continuing through the time she filed her Complaint, from
callers who hung up when the phone was answered.
(Id. ¶ 27).
filed her Complaint against Woods on March 3, 2017, asserting
two claims: defamation and invasion of privacy. (Doc. 1). On
June 1, 2017, Boulger filed a motion for extension of time to
complete service of process on Woods, as the 90 days for
completion of service allowed by Federal Rule of Civil
Procedure 4(m) was about to expire. (Doc. 4). Boulger
described in her motion the efforts her counsel had
undertaken in attempting to serve Woods:
• On March 8, 2017, Boulger's counsel contacted
Michael Weinstein, the lawyer who had acted for Woods when
Boulger's counsel requested a retraction of and apology
for the March 12, 2016 tweet. Boulger's counsel asked
Weinstein whether he would accept service of the summons and
complaint on behalf of Woods. (Id. at 4).
• On March 15, 2017, Weinstein responded by stating he
was not authorized to accept service and was not sure what
lawyer would be defending the case; but that “if I am
ultimately retained for the case, I'll be able to address
it with you then.” (Id.; Doc. 4-3, email
• Boulger's counsel used the database service
PeopleFinder to attempt to find an address for Woods in Los
Angeles. The database returned a last known address for Woods
on Wilshire Boulevard in Beverly Hills, California. On March
23, 2017, Boulger's counsel mailed a copy of the Summons,
Complaint, Notice of Lawsuit and Request to Waive Service,
two copies of the Waiver of Service form and a self-addressed
stamped envelope to the Wilshire Boulevard address. That
package was returned marked “Addressee Unknown.”
(Doc. 4 at 4).
• On April 12, 2017, Weinstein confirmed that he had not
been retained by Woods in this matter and was not authorized
to accept service. (Id; Doc. 4-3, email exchanges).
• Also on April 12, 2017, Patrick Kasson contacted
Boulger's counsel by telephone, stating that he had been
retained to represent Woods in this matter. Kasson asked
Boulger's counsel to send him the Complaint, Notice of
Lawsuit and Request to Waive Service, and the Waiver of
Service form. Boulger's counsel provided all of these
documents to Kasson that same day via email. (Doc. 4 at 4;
Doc. 4-5, email exchanges).
• On April 13, 2017, Kasson emailed Boulger's
counsel and stated that he had not agreed to accept service
on behalf of Woods as “I am not authorized to do that
yet. I asked that you send over a waiver form.”
• Boulger's counsel followed up with Kasson via
email on April 24, 2017, but received no response. (Doc. 4 at
• On May 8, Boulger's counsel spoke with Kasson on
the phone, and Kasson stated that Woods had not authorized
him to accept service. Boulger asserts, but Woods denies,
that Kasson stated during this phone call that he would try
to talk Woods out of his refusal to authorize acceptance of
service in the next few days. (Id; Doc. 20, Reply in
Supp. of Mot. for Summ. J. at 9).
• On May 25, 2017, Boulger's counsel spoke with
Kasson on the phone. Kasson stated that Woods would not
authorize Kasson to accept service; that Woods planned to
file an answer and motion for judgment on the pleadings; and
that Woods would raise the defense of insufficient service in
the answer. (Id.).
• On May 30, 2017, Boulger's counsel spoke with
Kasson on the phone again. Kasson stated that Woods would not
oppose Boulger's motion for an extension of time to
complete service, and that Kasson did not have a valid
address for Woods to which a waiver request could be sent.
Court granted Boulger's request for an extension of time
on June 6 and ordered that she complete service on Woods no
later than August 7, 2017. (Doc. 5). The following day, June
7, 2017, Woods filed an Answer to the Complaint (including
affirmative defenses of insufficient service of process and
lack of personal jurisdiction) and a Motion for Judgment on
the Pleadings (arguing that Boulger's allegations failed
to state a viable claim for either defamation or invasion of
privacy because Woods's tweet was not a statement of
fact). (Docs. 6-7). The parties also jointly filed a Rule
26(f) report on July 11, 2017, which stated that
“Defendant Woods has not been served. In addition,
Defendant Woods contests personal jurisdiction. Plaintiff
contends that Defendant has waived lack of personal
jurisdiction and insufficient service by failing to include
it in his Rule 12 Motion for Judgment on the
Pleadings.” (Doc. 12 at 2).
August 15, 2017, eight days after Boulger's extended time
to complete service expired, Woods filed a Motion for Summary
Judgment, or in the Alternative, Motion for Dismissal due to
Boulger's failure to perfect service within the time
permitted by the Court. (Doc. 16). Boulger asserts that Woods
has waived his defenses of insufficient service of process
and lack of personal jurisdiction by failing to raise those
defenses in his previous Motion for Judgment on the Pleadings
under Rule 12(c). (Doc. 19). The Motion for Summary Judgment
and Motion for Judgment on the Pleadings have now been fully
briefed and are ripe for decision.
Woods's second motion is styled as a “Motion for
Summary Judgment, or in the Alternative, Motion for
Dismissal, ” its substance is clearly that of a motion
to dismiss for insufficient service of process under Federal
Rule of Civil Procedure 12(b)(5). The Sixth Circuit has noted
that summary judgment is an “improper” vehicle to
challenge service of process “because the defense
‘involves a matter in abatement and does not go to the
merits of the action.'” King v. Taylor,
694 F.3d 650, 657 n.2 (6th Cir. 2012) (quoting United
States v. Marple Cmty. Record, Inc., 335 F.Supp. 95, 101
(E.D. Pa. 1971)). “Nevertheless, when the defense has
been preserved in an answer and is later raised in a
pre-trial motion, a court will look past the label chosen by
the movant and treat the motion as a request for a ruling on
the defense made under . . . Rule 12(i).” Id.
Because the basis for Woods's summary judgment motion is
not that he is entitled to judgment on the merits, but that
Plaintiff's failure to perfect service deprives this
Court of jurisdiction over Woods's person, the Court will
construe the motion as seeking dismissal under Rule
proper service of process, consent, waiver, or forfeiture, a
court may not exercise personal jurisdiction over a named
defendant. Murphy Bros., Inc. v. Michetti Pipe Stringing,
Inc., 526 U.S. 344, 350 (1999). And in the absence of
personal jurisdiction, a federal court is “powerless to
proceed to an adjudication.” Ruhrgas AG v. Marathon
Oil Co., 526 U.S. 574, 584 (1999). Because Woods's
second motion implicates the Court's power to decide the
earlier motion for judgment on the pleadings, the Court will
consider the motion to dismiss for insufficient service of
Dismissal for insufficient service of process
Standard of review
process requires proper service of process for a court to
have jurisdiction to adjudicate the rights of the
parties.” O.J. Distrib., Inc. v. Hornell Brewing
Co., Inc.,340 F.3d 345, 353 ...