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Boulger v. Woods

United States District Court, S.D. Ohio, Eastern Division

January 24, 2018

Portia A. Boulger, Plaintiff,
v.
James H. Woods, Defendant.

          Deavers Magistrate Judge

          OPINION AND ORDER

          GEORGE C. SMITH, UNITED STATES DISTRICT JUDGE.

         This 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 GRANTED.

         I. FACTUAL BACKGROUND

         The 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. ¶¶ 2, 6).

         On 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).

         Within 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).

         Later 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. ¶ 19).

         On 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).

         During 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).

         II. PROCEDURAL HISTORY

         Boulger 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 exchanges).
• 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.” (Id.).
• Boulger's counsel followed up with Kasson via email on April 24, 2017, but received no response. (Doc. 4 at 5).
• 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. (Id.).

         The 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).

         On 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.

         III. DISCUSSION

         Although 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 12(b)(5).[1]

         Without 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 process first.

         A. Dismissal for insufficient service of process

         1. Standard of review

         “Due 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 ...


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