UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

THE GEO GROUP, INC. and 

GEO TRANSPORT, INC.

Plaintiffs,

v.

NETFLIX, INC.,

Defendant.

CIVIL CASE NO. 9:20-cv-80847-RJS

__________________________________/

PLAINTIFFS’ OPPOSITION TO DEFENDANT’S MOTION

PURSUANT TO SECTION 768.295 OF THE FLORIDA STATUTES

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PRELIMINARY STATEMENT

As its briefing makes clear, Netflix feels entitled to steal others’ intellectual property and 

make false accusations with impunity. But it goes even farther. Netflix, a billion-dollar 

entertainment corporation, demands an award of attorneys’ fees under an inapplicable state statute 

designed to protect ordinary citizens from those who would use the costs of litigation to chill 

people’s exercise of free speech in connection with public issues. Plaintiffs did not bring this 

action to squelch public debate or infringe Netflix’s rights, but to vindicate their own rights not to 

be defamed through the use of their own stolen intellectual property. Netflix’s Anti-SLAPP 

Motion is nothing more than a cynical attempt to punish the victims of Netflix’s misconduct. It 

should be denied.

LEGAL ARGUMENT

I. NETFLIX’S ANTI-SLAPP MOTION SHOULD BE DENIED BECAUSE 

FLORIDA’S ANTI-SLAPP STATUTE DOES NOT APPLY IN FEDERAL COURT.

Netflix’s Anti-SLAPP Motion should be denied because—as the Eleventh Circuit and 

numerous other Circuits have recognized—state anti-SLAPP statutes cannot apply in federal court. 

See Carbone v. Cable News Network, Inc., 910 F.3d 1345, 1349-50 (11th Cir. 2018); La Liberte 

v. Reid, 966 F.3d 79, 86-88 (2d Cir. 2020); Klocke v. Watson, 936 F.3d 240, 244-49 (5th Cir. 

2019); Abbas v. Foreign Pol’y Grp., LLC, 783 F.3d 1328, 1333-37 (D.C. Cir. 2015). That is 

because a federal court exercising diversity jurisdiction cannot apply a state statute where, as here,

the Federal Rules of Civil Procedure “answer[] the question in dispute.” Shady Grove Orthopedic 

Assocs., P.A. v. Allstate Ins. Co., 559 U.S. 393, 398 (2010). If a Federal Rule is “sufficiently broad 

to control the issue before the Court,” Walker v. Armco Steel Corp., 446 U.S. 740, 749-50 (1980), 

it governs unless that Federal Rule is invalid. Shady Grove, 559 U.S. at 398. 

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In federal court, Federal Rules of Civil Procedure 11 and 12—which are plainly valid—

answer the question in dispute here, namely, “Is Netflix entitled to attorneys’ fees if the Complaint 

fails to state a claim upon which relief can be granted?” Under those rules, the answer is “no” 

unless the claims were presented for an improper purpose or were frivolous. See Fed. R. Civ. P. 

11(b). But Florida’s anti-SLAPP statute answers that question differently, based on a different 

standard, by providing for an award of fees if the action is “without merit” and is brought 

“primarily because [the defendant] exercised the constitutional right of free speech in connection 

with a public issue[.]” Fla. Stat. Ann. § 768.295(3)-(4). As the Seventh Circuit has explained, 

“[f]ederal rules and doctrines provide ample means to penalize unreasonable or vexatious conduct 

in federal litigation.” Cooke v. Jackson Nat’l Life Ins. Co., 919 F.3d 1024, 1027 (7th Cir. 2019). 

Rule 11 not only provides ample means to deter and penalize those who would bring an action for 

an improper purpose, it also squarely answers the question in dispute, thereby preempting Florida’s 

anti-SLAPP statute. Shady Grove, 559 U.S. at 398. Since Florida’s anti-SLAPP statute conflicts 

with Rules 11 and 12, it cannot apply in federal court. 

A couple months ago, Netflix itself withdrew an anti-SLAPP motion that it had filed in 

federal court in Florida, stating that “the Eleventh Circuit in Carbone [] held that state anti-SLAPP 

statutes could not be entertained in federal court.” See Netflix’s Notice of Withdrawal of Special 

Mot. to Strike Pursuant to Cal. Anti-SLAPP Act [Dkt. 54], Fairsteen v. Netflix, Inc., Case No. 20-

cv-180 (M.D. Fla. July 29, 2020). In an effort to circumvent the Carbone decision, Netflix falsely 

suggests that the Eleventh Circuit has held anti-SLAPP fee-shifting provisions applicable in 

federal court. (Mot. at 2-3 (citing Parekh v. CBS Corp., No. 19-11794, 2020 WL 3400679, at *6 

(11th Cir. June 19, 2020)), and Tobinick v. Novella, 884 F.3d 1110, 1119 (11th Cir. 2018).) But 

the Eleventh Circuit did not hold that the fee-shifting provisions of state anti-SLAPP statutes apply 

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in federal court in either Parekh or Tobinick. Rather, the Eleventh Circuit simply held in both 

cases that the plaintiff had waived its argument that the anti-SLAPP statutes could not apply in 

federal court by failing to make that argument to the district court. See Parekh, 2020 WL 

34000679, at *6 (“[Plaintiff] argues, for the first time on appeal, that Florida’s anti-SLAPP statute 

should not be applied in federal court. He forfeited this argument, however, by not raising it before 

the district court.”); Tobinick v. Novella, 848 F.3d 935, 944 (“[Plaintiffs] waived their challenge 

to the district court’s application of California’s anti-SLAPP statute based on the Erie doctrine.”); 

see also Carbone, 910 F.3d at 1349 (“[I]n Novella, we affirmed the dismissal of certain state-law 

claims based on California’s anti-SLAPP statute ...because the plaintiff[s] ‘waived their challenge 

to the district court’s application of California’s anti-SLAPP statute based on the Erie doctrine,’

not because we concluded that the statute applies in federal court.” (emphasis added unless 

otherwise noted)).

II. NETFLIX’S ANTI-SLAPP MOTION SHOULD BE DENIED BECAUSE THE FEESHIFTING PROVISION CANNOT BE APPLIED SEPARATELY FROM THE 

REST OF THE STATUTE.

Netflix employs a two-motion tactic whereby it asks the Court to dismiss Plaintiffs’

complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) and to award its fees and costs 

pursuant to Florida’s Anti-SLAPP statute.1 But Netflix’s approach is foreclosed by caselaw from 

this District based on the plain language of the anti-SLAPP statute itself. See Berisha v. Lawson, 

378 F. Supp. 3d 1145, 1157 n.8 (S.D. Fla. 2018) (granting defendants’ motion for summary 

judgment and noting that defendants’ motion for fees pursuant to Florida’s anti-SLAPP statute was 

1 See Mot. at 3 (“To be clear, the sole aspect of the Florida anti-SLAPP statute that Netflix seeks 

for the Court to apply upon this motion is the award of reasonable attorneys’ fees and costs. 

Netflix’s separate Motion to Dismiss, and [] request for oral argument, provides an adequate 

framework for expeditiously resolving the issues raised by [Plaintiffs’] Complaint.”) (citation 

omitted).

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being denied). In Berisha, this Court explained why—based on the plain language of the statute—

defendants cannot obtain fees under the anti-SLAPP statute based on a dismissal under the Federal 

Rules:

Nor does [Florida’s anti-SLAPP] Statute provide for attorneys’ fees incurred in the 

“defense against an action that was filed in violation” of the Statute, as Defendants 

contend. Rather, the Statute provides only for “attorney fees and costs incurred in 

connection with a claim that an action was filed in violation of this section”—in 

other words, fees and costs incurred in connection with the SLAPP motion itself.

Id. (emphasis in original; internal citations omitted). Netflix’s two-motion strategy is therefore 

“contrary to the plain meaning of the Anti-SLAPP act” and must be denied. Wentz v. Project 

Veritas, No. 17-cv-1164, 2019 WL 4621069, at *2 (M.D. Fla. July 19, 2019) (denying motion for 

attorneys’ fees and costs pursuant to Florida’s Anti-SLAPP statute following dismissal of 

defamation claims at summary judgment because, even though defendants had raised the antiSLAPP statute as an affirmative defense, their motion for summary judgment did not ask the Court 

to rule upon the issue of whether the action had been filed in violation of the statute).

Although Netflix quotes the statute as providing for the award of reasonable attorneys’ fees 

and costs “‘incurred in connection with a claim” that “is ‘without merit and [brought] primarily 

because [a defendant] has exercised the constitutional right of free speech in connection with a 

public issue’” (Mot. at 2 (citing Fla. Stat. § 768.295(3)-(4))), Netflix omits the key modifier 

showing that the fee-shifting provision cannot be separated from the SLAPP motion itself: the 

statute provides for reasonable fees and costs “incurred in connection with a claim that an action 

was filed in violation of this section.” Fla. Stat. § 768.295(4). Put differently, the word “claim” 

does not refer to a plaintiff’s cause of action; it refers to the defendant’s anti-SLAPP motion. 

Where, as here, a defendant seeks dismissal under the Federal Rules and files a separate motion 

invoking Florida’s anti-SLAPP statute solely to obtain an award of fees and costs, the fee-shifting 

provision does not apply because the basis for dismissal is not “a claim that [the] action was filed 

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in violation of” Florida’s anti-SLAPP statute. Id.; see also Berisha, 378 F. Supp. 3d at 1157 n.8

(anti-SLAPP fee request denied even though summary judgment was granted); Wentz, 2019 WL 

4621069, at *2 (same).

III. ALTERNATIVELY, IF FLORIDA’S ANTI-SLAPP STATUTE APPLIES IN 

FEDERAL COURT, PLAINTIFFS ARE ENTITLED TO FEES AND COSTS.

Alternatively, if Florida’s anti-SLAPP statute applies in federal court (it does not), 

Plaintiffs would be entitled to their reasonable attorneys’ fees and costs incurred in defending 

against Netflix’s meritless anti-SLAPP motion. See Fla. Stat. § 768.295(4) (providing for fee 

award to “the prevailing party,” plaintiff or defendant). For Netflix to prevail on its anti-SLAPP 

motion, two independent criteria must be satisfied: (1) the action must have been brought 

“primarily because [Netflix] exercised the constitutional right of free speech in connection with a 

public issue;” and (2) the action must be “without merit.” Id. § 768.295(3). Neither requirement 

is met. 

First, Plaintiffs did not bring this action because Netflix exercised its right of “free speech”

in connection with a “public issue,” but because Netflix stole their intellectual property and used 

it to defame them. Indeed, the Complaint reflects Plaintiffs’ narrowly-tailored desire to protect 

their intellectual property and reputation: Plaintiffs do not seek to restrain the continued broadcast 

of the entire Messiah series or the episodes at issue in this litigation. They do not even seek to 

restrain the continued broadcast of the specific defamatory scenes at issue, but rather ask only that 

Netflix stop using GEO’s misappropriated trademarks and name in those scenes. (See Compl. 

¶ 29.) While the fee-shifting provision was enacted to protect activists, journalists, and ordinary 

citizens who might be intimidated into restraining their own free speech on public issues because 

of concern about litigation expenses, Netflix “is one of the world’s largest streaming 

entertainment services with over 183 million paid memberships in over 190 countries” which 

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“generated over $20 billion in revenue during 2019.” (Id. ¶ 10.) Netflix’s malicious

misrepresentation-by-misappropriation is not an exercise of “free speech” on the “public issue” of 

immigration: as is plainly evident from Messiah itself, and as Netflix repeatedly emphasizes 

throughout its briefing, Messiah is a “fictional thriller” and “[i]mmigration policy and the 

treatment of immigrants is hardly a focus of the plot.” (Netflix’s Mot. to Dismiss [Dkt. 27]

(“MTD”) at 1, 5.)

Second, even if a billion-dollar corporation’s for-profit trademark misappropriation and 

defamation in a fictional television show could somehow be construed as “free speech” in 

connection with a “public issue” (it cannot), Netflix’s Anti-SLAPP Motion must be denied because 

Plaintiffs’ lawsuit is not “without merit.” Fla. Stat. § 768.295(3). Rather, as explained in 

Plaintiffs’ Opposition to Netflix’s Motion to Dismiss (which is incorporated here by reference), 

Plaintiffs’ Complaint more than sufficiently states claims for defamation and trademark 

misappropriation. Under well-settled law, the defamatory scenes of the immigrant detention 

facility are “of and concerning” both GEO Group and GEO Transport because both before and 

repeatedly throughout those scenes the name “GEO” is explicitly identified on vehicles, a sign in 

the parking lot of the facility, and on the uniforms of guards at the facility, and because those who 

know GEO Group and GEO Transport can therefore make out that they are the ones depicted 

operating and servicing the facility. O’Neal v. Tribune Co., 176 So. 2d 535, 548 (Fla. 2d DCA

1965) (“of and concerning” requirement is satisfied if those who know the plaintiffs can make out 

that they are the ones meant in the defamatory publication). 

Plaintiffs have likewise alleged claims based on Netflix’s deliberate misappropriation of 

their trademarked name and logos in those scenes because false depictions do not further the goal 

of “realism” and because Netflix misled consumers. Although Netflix would have this Court

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accept its self-serving assertion that Plaintiffs’ efforts to protect their reputation and intellectual 

property is “an affront to the First Amendment,” (Mot. at 2; MTD at 1), the U.S. Supreme Court 

has made clear that “there is no constitutional value in false statements of fact,” Gertz v. Welch,

Inc., 418 U.S. 323, 340 (1974). Therefore, if Florida’s anti-SLAPP statute applies in federal court, 

Netflix’s Anti-SLAPP Motion must be denied and Plaintiffs are entitled to their attorneys’ fees 

and costs incurred in opposing it. See Fla. Stat. § 768.295(4) (“The court shall award the 

prevailing party reasonable attorney fees and costs incurred in connection with a claim that an 

action was filed in violation of this section.”)2

Finally, Plaintiffs would be entitled to their attorneys’ fees and costs incurred in connection 

with Netflix’s Anti-SLAPP Motion even if just one of the counts in the Complaint survives 

Netflix’s Motion to Dismiss, for two separate and independent reasons. First, the language of the 

fee-shifting provision itself authorizes fees and costs incurred in connection with “a claim that 

an action was filed in violation of [the statute].” See Fla. Stat. § 768.295(4). The Florida 

Legislature could have authorized—but chose not to authorize—the payment of fees to a 

defendant when an individual claim or claims are dismissed but where the “action” continues 

because at least one claim remains. The plain language of the statute must be given effect, such 

that fees may only be paid to a defendant when the entire “action” is deemed to have been filed in 

violation of the statute. Id.; FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 126 (2000) 

(reviewing court “must give effect to the unambiguously expressed intent of Congress”) (citation 

omitted). Indeed, when previously presented with this question, this Court has denied a 

2 Unlike the anti-SLAPP statutes of some other states that authorize the payment of fees only to a 

prevailing defendant, Florida’s statute includes a two-way fee shifting provision that requires the 

payment of reasonable attorneys’ fees and costs to the prevailing party on the anti-SLAPP motion. 

Compare Fla. Stat. § 768.295(4) (awarding fees to the “prevailing party”) with, e.g., Cal. Code 

Civ. Proc. § 425.16(c)(1) (awarding fees to the “prevailing defendant”).

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defendant’s request for fees under Florida’s anti-SLAPP statute because “[a]ssuming the statute 

applies, th[e] suit plainly has merit since two of its original three counts remain.” Pierre-Paul v. 

ESPN, Inc., No. 16-cv-21156, 2016 WL 4530884, at *2 (S.D. Fla. Aug. 29, 2016). 

Second, Plaintiffs would be entitled to their fees and costs even if only one claim survives 

because the claims in the Complaint are alternative theories of liability for the same wrong—

namely, Netflix’s unauthorized use of Plaintiffs’ trademarked name and logos in defamatory 

scenes in Messiah. See Folta v. Bolton, 493 So. 2d 440, 442 (Fla. 1986) (observing, under medicalmalpractice fee-shifting statute, that only “where each claim is separate and distinct and would 

support an independent action, as opposed to being an alternative theory of liability for the same 

wrong, [is] the prevailing party on each distinct claim [] entitled to an award of attorney’s fees for 

those fees generated in connection with that claim”). Plaintiffs’ “request for different forms of 

relief for the same wrong does not make its claim[s] separate and distinct.” Flagstar Bank, FSB 

v. Hochstadt, 476 F. App’x 371, at *2 (11th Cir. 2012). As such, if Florida’s anti-SLAPP statute 

applies in federal court and any of Plaintiffs’ alternative theories of liability survive such that the 

“action” continues, Plaintiffs would be entitled to fees and costs incurred in connection with 

Netflix’s Anti-SLAPP Motion. Fla. Stat. Ann. § 768.295(4). 

CONCLUSION

Netflix’s Anti-SLAPP Motion should be denied because Florida’s anti-SLAPP statute does 

not apply in federal court. Alternatively, if the statute applies in federal court, Plaintiffs are entitled 

to an award of fees and costs incurred in connection with Netflix’s Motion because Netflix’s 

malicious misrepresentation-by-misappropriation in a fictional television show is not “free 

speech” in connection with a “public issue” and because Plaintiffs have plausibly alleged a claim 

for relief.

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Dated: September 18, 2020 Respectfully Submitted,

/s/ Shannon B. Timmann

Shannon B. Timmann, Esq. (Fl. Bar. No. 98810)

Megan L. Meier, Esq. (Pro Hac Vice), Va. Bar 

No. 887220

CLARE LOCKE LLP

10 Prince Street

Alexandria, VA 22314

Telephone: (202) 628-7400

Email: megan@clarelocke.com

Email: shannon@clarelocke.com

Barry F. Irwin, P.C. (Pro Hac Vice), Ill. Bar No. 

6211213

Manon L. Burns (Pro Hac Vice), Ill. Bar No. 

6329495

Irwin IP LLC

222 South Riverside Plaza, Suite 2350

Chicago, IL 60606

Phone: 312.667.6080

Email: birwin@irwinip.com

Email: mburns@irwinip.com

Attorneys for Plaintiffs

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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing document was served 

by CM/ECF, on September 18, 2020, on all counsel of record.

 /s/ Shannon B. Timmann

Shannon B. Timmann

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