FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

JULY 27, 2010

JOHN LEY

 CLERK

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 08-12328

________________________

D. C. Docket No. 07-01740-CV-ORL-22-KRS

INTERNET SOLUTIONS CORPORATION,

Plaintiff-Appellant,

versus

TABATHA MARSHALL,

Defendant-Appellee.

________________________

Appeal from the United States District Court

for the Middle District of Florida

_________________________

(July 27, 2010)

Before BIRCH and BARKETT, Circuit Judges and KORMAN , District Judge.

*

PER CURIAM:

This case returns to us for disposition from the Supreme Court of Florida, to

 Honorable Edward R. Korman, United States District Judge for the Eastern District of *

New York, sitting by designation.
which we certified a question of Florida state law. See Internet Solutions Corp. v.

Marshall, 557 F.3d 1293, 1296-97 (11 Cir. 2009) (“Internet Solutions I”). Based

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on the Florida Supreme Court’s response to the certified question, Internet

Solutions Corp. v. Marshall, So. 3d , 2010 WL 2400390 (Fla. 2010) (No.

SC09-272) (“Internet Solutions II”), we REVERSE the district court’s dismissal

and REMAND for further proceedings consistent with this opinion.

I. BACKGROUND

The facts of the case are fully described in our previous opinion, Internet

Solutions I, 557 F.3d at 1294-95, and we will recount only the facts relevant to our

disposition of the case.

Plaintiff-appellant Internet Solutions Corporation (“ISC”) is a Nevada

corporation operating a number of internet websites relating to employment

recruiting and internet advertising. ISC’s principal place of business is in Orlando,

Florida. Defendant-appellee Tabatha Marshall is a Washington resident and owns

and operates a website, http://www.tabathamarshall.com, which posts consumerrelated information about different companies. Third parties can comment on all

of Marshall’s entries, and these comments appear on the same webpage as

Marshall’s original post. In August 2007, Marshall posted information about

VeriResume, one of ISC’s websites, “entitled ‘Something’s VeriRotten with

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VeriResume . . . .’” Internet Solutions II, So. 3d at , 2010 WL 2400390 at *1.

The post included a listing of VeriResume’s affiliates, including ISC, and included

Florida addresses. R1-1, Exh. A at 7-9. Third parties posted comments on this

post, and Marshall responded to some of them. Id. at 9-13. Several of the

commenters appeared to have Florida addresses (“Mrs. C near Orlando, FL,”,

“Suzanne C-Orlando, FL,” and “anonymous–Orlando, FL”). Id. at 12-13; Internet

Solutions II, at , 2010 WL 2400390 at *1.

ISC filed a diversity action against Marshall claiming defamation, trade

libel, and injurious falsehood, and seeking injunctive relief. It asserted that

jurisdiction was proper in Florida because Marshall had entered Florida to commit

a tortious act. Marshall moved to dismiss the complaint for lack of jurisdiction and

argued that the court lacked personal jurisdiction over her under Florida’s long-arm

statute, Fla. Stat. § 48.193, because she did not have sufficient contacts in Florida

and had not committed a tortious act in the state. She also asserted that the

exercise of jurisdiction would violate federal due process.

The district court granted Marshall’s motion to dismiss based on lack of

personal jurisdiction. It found that the exercise of personal jurisdiction was

appropriate because ISC had made out a prima facie case for jurisdiction which

Marshall had failed to rebut. It then decided, however, that Marshall’s assertion

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adequately rebutted ISC’s prima facie jurisdictional showing and that ISC failed to

contradict Marshall’s argument that she lacked the requisite minimum contacts to

overcome a violation of federal due process. ISC appealed.

II. DISCUSSION

Under our two-step inquiry for determining whether the exercise of personal

jurisdiction over a non-resident was proper, we noted that Florida’s long-arm

statute, Fla. Stat. § 48.193(1)(b), permitted the exercise of jurisdiction over actions

arising out of tortious acts committed within Florida. Internet Solutions I, 557

F.3d at 1296. We recognized that the defendant was not required to be within the

state for the tortious act to occur within the state because a cause of action could

arise from an act through the nonresident defendant’s electronic, telephonic or

written communication into Florida. Id. (citing Wendt v. Horowitz, 822 So.2d

1252, 1260 (Fla. 2002)). Because Florida law was unsettled as to whether

Marshall’s actions in posting an allegedly defamatory comment on her website

constituted an electronic communications “into Florida,” we certified a question to

the Florida Supreme Court:

DOES POSTING ALLEGEDLY DEFAMATORY STORIES AND

COMMENTS ABOUT A COMPANY WITH ITS PRINCIPAL

PLACE OF BUSINESS IN FLORIDA ON A NON-COMMERCIAL

WEBSITE OWNED AND OPERATED BY A NONRESIDENT

WITH NO OTHER CONNECTIONS TO FLORIDA CONSTITUTE

COMMISSION OF A TORTIOUS ACT WITHIN FLORIDA FOR

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PURPOSES OF FLA. STAT. § 48.193(1)(b).

Id. at 1296-97.

The Florida Supreme Court rephrased our question as follows:

DOES A NONRESIDENT COMMIT A TORTIOUS ACT WITHIN

FLORIDA FOR PURPOSES OF SECTION 48.193(1)(b) WHEN HE

OR SHE MAKES ALLEGEDLY DEFAMATORY STATEMENTS

ABOUT A COMPANY WITH ITS PRINCIPLE PLACE OF

BUSINESS IN FLORIDA BY POSTING THOSE STATEMENTS

ON A WEBSITE, WHERE THE WEBSITE POSTS ARE

ACCESSIBLE AND ACCESSED IN FLORIDA?

Internet Solutions II, So. 3d at , 2010 WL 2400390 at *1 . After considering

the issue, the Florida Supreme Court answered the question in the affirmative. See

id. at , 2010 WL 2400390 at *1, 14. It concluded that, although the posting of

defamatory material about a Florida resident on a website alone did not constitute

the commission of a tortious act under § 48.193(1)(b), the posting of such that was

both accessible in Florida and accessed in Florida constituted the commission of a

tortious act of defamation within Florida under § 48.193(1)(b). Id. at , 2010 WL

2400390 at *1, 12, 14. Specifically, it concluded that the posting of “allegedly

defamatory material about a Florida resident placed on the [World Wide] Web and

accessible in Florida constitutes an ‘electronic communication into Florida’ when

the material is accessed (or ‘published’) in Florida.” Id. at , 2010 WL 2400390 at

*4, 12, 14. The Florida Supreme Court held, therefore, that “Marshall’s posting of

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allegedly defamatory material about [ISC] that was accessible in Florida

constitutes committing a tortious act within Florida, provided that the material was

accessed–and thus published–in Florida.” Id. at , 2010 WL 2400390 at *13.

III. CONCLUSION

Because the Florida Supreme Court concluded that Marshall committed a

tortious act in Florida by posting allegedly defamatory material about ISC that was

accessible in Florida when the material was then accessed and thus published in

Florida, she is accordingly subject to the Florida long-arm statute. We therefore

REVERSE the district court’s dismissal of ISC’s claim and REMAND for further

proceedings consistent with this opinion.

1

 Consistent with the Florida Supreme Court’s observations, we note that we have only 1

addressed the first step to the inquiry as to whether the exercise of personal jurisdiction over a

none-resident defendant is proper. See Internet Solutions II, So. 3d at , 2010 WL 2400390

at *13. As the Florida Supreme Court observed, “the issues of whether Marshall targeted a

Florida resident, . . . purposefully directed her post at Florida, or whether her website is ‘active’

or ‘passive’ could be properly considered” in the “more restrictive” second step determination of

whether “the exercise of jurisdiction over the nonresident defendant would violate due process.” 

Id. at n.11, 2010 WL 2400390 at *13, n.11. 

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