[ DO NOT PUBLISH] 

## In the 

# United States Court of Appeals For the Eleventh Circuit

____________________
No. 22

- 11740
Non

- Argument Calendar

____________________
ALAN GRAYSON,
Plaintiff

- Appellant,

versus NO LABELS, INC., PROGRESS TOMORROW, INC., UNITED TOGETHER, INC., NANCY JACOBSON, MARK PENN, et al.,

Defendants

- Appellees.

____________________ USCA11 Case: 22-11740 Date Filed: 10/21/2022 Page: 1 of 82 Opinion of the Court 22

- 11740 Appeal from the United States District Court for the Middle District of Florida D.C. Docket No. 6:20

- cv

- 01824

- PGB

- LHP

______ ______________ Before W ILLIAM P RYOR , Chief Judge, L AGOA , and B RASHER , Circuit Judges.
PER CURIAM: Alan Grayson appeals the summary judgment against his second amended complaint of defamation, defamation by implication, and civil conspiracy by No Labels, Inc., its founder
, Nancy Jacobson, her husband, Mark Penn, and two defunct political action committees , Progress Tomorrow, Inc. , and United Together, Inc

. Grayson alleged that h is reputation was tarnished and he lost his seat in the United S tates House of Representatives because the defendants falsely denounc ed him f o r profit eer ing and f o r spousal abuse. The district court ruled that the defendants’ reference to reliable publications i n their ma ilings and online posting s evidenced they acted without actual malice and were not liable for defam ation and that Grayson’ s claim of civil conspiracy failed as a matter of law. We affirm.Grayson filed a complaint in a Florida court against the defendants, who removed the action to federal court, see 28 U.S.C. § 1332, and then moved to dismiss. The district court dismissed Grayson’s complaint without prejudice f o r fail ur e to state a claim

o f defamation, invasion of privacy, cyberstalking, civil conspiracy, USCA11 Case: 22-11740 Date Filed: 10/21/2022 Page: 2 of 822

- 11740 Opinion of the Court 3

or fraudulent transfer. See Fed. R. Civ. P . 12(b)(6). Grayson’s amended complaint of defamation, invasion of privacy, and civil conspiracy suffered a similar fate. See id. With leave from the district court, Grayson filed a secondamended complaint against the defendants for defamation, defamation by implication, and civil conspiracy. Grayson alleged that the defendants
, “acting through Progress Tomorrow ,” disparaged him using t he mail, internet postings , and the website “FloridaDeservesBetter.org.” T h os e materials tou te d that a “Congressional Ethi cs Investigation Found Alan Grayson Abused His Office for Financial Gain” and “to enrich himself,” that he “[h]id income on his public disclosures ,” and that he “[u]sed taxpayer resources to conduct his high

- risk investor scheme.” One mail ing depicted Grayson sitting in a chaise lounge on the beach in Grand Cayman with a drink close at hand. A two

- sided mail ing h a d , on one side, a man carrying an attache case stri ding t o a jet bound for Grand Cayman and, on the other side
, a n opened attache case containing a passport bearing Grayson’s photo with dollar signs for eyes a nd 15 stacks of $100 bills. A third mail ing accus ed Grayson of abus ing hi s former wife

. On Faceboo k, the defendants t ou t ed that Grayson “used international government travel to drum up business for his hedge fund
, ” “used Congressional staff to work for the fund,” and had a hostile in cident with a reporter. Progress Tomorrow moved for summary judgment and argued there was no evidence that its publications were false or distributed with actual malice , and the other defendants moved for USCA11 Case: 22-11740 Date Filed: 10/21/2022 Page: 3 of 84 Opinion of the Court 22

- 11740 similar relief on the groun d they were uninvolved in the publications. Progress Tomorrow subm itted copies of i t s ma ilings and online posting s , which cited to various news websites and directed readers to visit “ F lorida D eserves B etter.org ,” which contained hyperlinks to a congressional report and news articles about Grayson and his divorce proceedin gs. The defendants also submitted copies of articles about Grayson’s business and personal affairs in the New York Times
, Politico
, Washington Post
, Orlando Weekly , and Vanity Fair ; police reports; and his former wife’s deposition.
Some of t he defendants ’ mailings urged readers to examine a “ nearly 1,000 page report ” produced after a “congressional ethics investigation” of Grayson. I nvestigato rs found that Grayson, “anattorney who often worked on litigation involving the federal government,” creat ed a he dge fund during his first term in office from which “on at least one occasion .

. . [he] appear[ed] to have received compensation”; he “managed a Virginia

- based corporation thatused the Grayson name and provided legal services involving a fiduciary relationship”; and he “agreed to receive contingent fees in cases in which the federal government had a direct and substantial interest

. . . during his time in Congress.” The report describe d

om issions from “ Grayson’s annual financial disclosure forms concerning assets, income, agreements and positions” “significantly related to .

. . the Grayson Hedge Fund and .

. . [his] interest in law firm s and pending litigation” and Grayson’ s role as a “limited partner in three energy

- sector limited partnerships, all of which had agreements with the federal government” while he was a member USCA11 Case: 22-11740 Date Filed: 10/21/2022 Page: 4 of 822

- 11740 Opinion of the Court 5

of C ongress

. T he report also describ ed “multiple instances in whi ch a congressional staffer[,] .

. . who was also employed by the Grayson Hedge Fund, used official time and resources to work for the hedge fund” and for Grayson and how Grayson misuse d campaign

resources

. The district court granted the defendants’ motion s for summary judgment. The district court ruled that the defendants’ “reasonable reliance on previously published reports from . . . independent, reputable sources rebut[ted] the presence of actual malice” and rendered Grayson’s “defamation claims not via ble.” The district court declined to consider Grayson’s “various theories andconjectures regarding [the] Defendants’ liability” that lacked evidentiary support, Grayson’s “cease and desist letter characterizing Defendants’ publications as defamatory,” or his allegations of additional defamatory statements in his opposition to summary judgment. The district court also ruled that, w ithout any actionable defamation , Grayson’s “civil conspiracy claim also fail[ed].”
We review de novo the summary judgment against Grayson’s second amended complaint and view the evidence in the light most favorable to him as the nonmovant. See Edward Lewis Tobinick, MD v. Novella , 848 F.3d 935, 943 (11th Cir. 2017)

. Summary judgment is appro priate when “ there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. ” Fed. R. Civ. P. 56(a). Florida provides causes of action for defamation and defamation by implication

. Defamation requires publication of a USCA11 Case: 22-11740 Date Filed: 10/21/2022 Page: 5 of 86 Opinion of the Court 22

- 11740

def amatory statement that is false and that causes i t s subject actual damages. Jews For Jesus, Inc. v. Rapp , 997 So. 2d 1098, 1106 (Fla. 2008). D efamation by implication occurs when “ literally true statements are conveyed in such a way as to create a false im pression

. . . .” Id. at 1108. For a public figure like Grayson to prevail on his claim s of defamation , he must prove that the defendant s acted with actual malice. See Berisha v. Lawson , 973 F.3d 1304, 1312 , 1314 n.6 (11 th Cir. 2020) ; Rapp , 9 9 7 So. 2d at 1106 , 1108

. In New York Times Co. v. Sullivan , 376 U.S. 254 (1964) , the Supreme Court held that the First Amendment requires a public figure to prove that a defamatory statement wa s made with actual malice to recover damages

. Id. at 279

– 80. Tha t standard applies equally to the media and non

media because both decide what “facts to include in their publication.” Turner v. Wells , 879 F.3d 1254, 1271 (11th Cir. 2018); see Citizens United v. Fed. Election Comm ’ n

, 558 U.S. 310, 352 (2010). A public f igure must prove “

— well beyond a preponderance of the evidence

— that the defendants published a defamatory statement either with actual knowledge of its falsity or with a high degree of awareness of its probable falsity.” Berisha , 973 F.3d at 1312 ( internal quot ation marks omitted ).
The district court did not err by granting summary judgment against Grayson’s claims of defamation and defamation by implication. Grayson submitt ed no evidence from which a jury might plausibly infer that the defendants distribute d statements “with knowledge that [the statements ] were false or with reckless USCA11 Case: 22-11740 Date Filed: 10/21/2022 Page: 6 of 822

- 11740 Opinion of the Court 7 disregard of whether [they were] false or not
, ” S ullivan , 376 U.S. at
279

– 80. The defendants ’ mailings and online post ing s cite source materials, includ ing an official congressional report
, articles in well

known newspapers and magazines , and police reports

. The defendants’ “reliance on these many independent sources, alone, .

. . defeat[s] any claim of actual malice. ” Berisha , 973 F.3d at 1313. And it does not matter that, as Grayson argues, r epublication of defamatory statements is defamation because “ a reasonable juror would not conclude (clearly and convincingly) that [the defendants would ] h [ave] serious do ubts about the truth of ” the information they were repeating

. See id

. at 131 2

. Grayson argues that the district court “ ‘ cherry

- picked ’ the defamatory statements as to which it consider ed actual malice
, ” but we disagree. T he district court correctly refused to consider defamatory statements Grayson alleg ed i n his opposition to summary judgment that he had omitted from

— and never sought to add by amendment to

— his second amended complaint

. See Dukes v. Deaton , 852 F.3d 1035, 1 046 (11th Cir. 2017). G rayson identifies no allegedly defamatory statement in his second amended complaint that the district court overlooked.
The district court also correctly entered summary judgment against Grayson’s claim of civil conspiracy. “Under Fl orida law, the gist of a civil conspiracy is not the conspiracy itself but the civilwrong which is done through the conspiracy which results in injury to the Plaintiff.” Am. United Life Ins. Co. v. Martinez , 480 F.3d 1043, 1067 (11th Cir. 2007) (internal quotation marks omitted). USCA11 Case: 22-11740 Date Filed: 10/21/2022 Page: 7 of 88 Opinion of the Court 22

- 11740

Because “a claim that is found not to be actionable cannot serve as the basis for a conspiracy claim,” id. , and Grayson cannot prove actual malice to support his claim s of defamation, his claim of a civil conspiracy fail s as a mat ter of law.Grayson’s challenges to the dismissal of his claims of invasion of privacy, cyberstalking, and fraudulent transfer are not properly before us. “ [A] n amended pleading supersedes the former pleading; the original pleading is abandoned by the ame ndment,and is no longer a part of the pleader’s averments against his adversary.” Pintando v. Miami

- Dade Hous. Agency , 501 F.3d 1241, 1243 (11th Cir. 2007) (quoting Dresdner Bank AG, Dresdner Bank AG in Hamburg v. M/V OLYMPIA VOYAGER , 463 F.3d 1210, 1215 (11th Cir. 2006)). Grayson abandoned his claim s of cyberstalking and fraudulent transfer by failing to replead them in his amended complaint. And Grayson abandoned his claim of invasion of privacy by omitting it from his second amended complaint.

We A FFIRM the summary judgment in favor of No Labels, Jacobson, Penn, Progress Tomorrow, and United Together. USCA11 Case: 22-11740 Date Filed: 10/21/2022 Page: 8 of 8