FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

JULY 5, 2011

JOHN LEY

 CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 10-12507

Non-Argument Calendar

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D. C. Docket No. 09-80813-CV-KLR

ARLENE SPILFOGEL,

Plaintiff-Appellant,

versus

FOX BROADCASTING COMPANY, 

A Delaware corporation, 

LANGLEY PRODUCTIONS, INC., 

a California Corporation, 

TURNER BROADCASTING SYSTEM, INC., 

a Georgia corporation,

Defendants-Appellees.

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Appeal from the United States District Court

for the Southern District of Florida

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(July 5, 2011)

Before EDMONDSON, PRYOR and ANDERSON, Circuit Judges.

PER CURIAM:
Arlene Spilfogel appeals the district court’s order dismissing her complaint.

On appeal, she asserts that the court below erred in finding that her complaint

failed to state a cause of action. Specifically, she alleges that defendants invaded

her privacy by way of “public disclosure of private facts” and “intrusion upon

seclusion,” two Florida common law torts. Her allegations arise out of an incident

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in which she was filmed for an episode of the television show “COPS” without her

knowledge during a traffic stop.

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I.

Spilfogel’s first allegation is that Defendant’s committed an invasion of

privacy. Under Florida law, the elements of the tort of invasion of privacy are: 1)

the publication, 2) of private facts, 3) that are offensive, and 4) are not of public

concern. Cape Publ’ns, Inc. v. Hitchner, 549 So. 2d. 1374, 1377 (Fla. 1989).

Spilfogel claims that the district court erred in concluding that the she failed to

allege facts sufficient to satisfy the second element. 

Spilfogel’s second amended complaint alleged that the COPS broadcast

Spilfogel makes no mention on appeal of causes of action stated in her complaint 1

for commercial misappropriation and defamation by implication. These arguments are waived.

The motion or Appellant for leave to file a brief out-of-time is granted. The reply 2

brief in question was considered by this Court in its analysis of this case.

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publicized her “eccentric reactions and behavior in stressful situations.” Specific

facts about her that were disclosed include: that she was upset with her daughter,

that she keeps her cell phone in a plastic bag in her purse and uses the phone with

the bag on it, and that she had a trunk full of items that she wanted to give to

hurricane victims but these donations had not been accepted. Spilfogel offers very 3

little explanation for why any reasonable juror could find these particular facts are

private and how such a juror could deem their revelation offensive. No such

explanation is readily apparent to this court.

Spilfogel relies on Baugh v. CBS, Inc., 828 F. Supp. 745 (N.D. Cal. 1993),

to support her allegations, stating that right to privacy cases are “very fact

sensitive” and the fact patterns are “markedly” and “striking[ly] similar.” Plaintiff

fails to explain whether, and to what extent, the California legal regime that Baugh

was decided under and Florida law are similar. Regardless, there are critical

factual differences between that case and this one. Baugh called the police to

report an instance of domestic violence in her home. She was recorded in her

home as she relayed deeply personal information regarding her marriage and

health. The Baugh court noted the difficult and complex nature of domestic

Spilfogel also claims that the episode revealed facts about her stance on the usage

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of medication. However, this claim was not made before the district court and is therefore

waived. See Walton v. Johnson & Johnson Serv., Inc., 347 F.3d 1272, 1292 (11th Cir. 2003).

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violence and stated that Baugh had “a legitimate interest in maintaining the

integrity and dignity of the[] family unit.” Id. at 755. In contrast, Spilfogel was

recorded on a public street discussing the details of a traffic stop for running

through several stop signs and driving without working tag and head lights on her

vehicle. Spilfogel trivializes the difference between a conversation about the

specifics of an instance of domestic violence and a conversation about traffic

violations. As discussed above, no material information regarding the intimate

details of the family unit were recorded in the instant case, nor did Spilfogel allege

to the district court that any information regarding her health or well-being was

disclosed. The facts of the two cases could hardly be more different. 

Spilfogel failed to allege the disclosure of any facts that a reasonable juror

could deem private and offensive. Thus, the district court was correct to dismiss

her complaint for public disclosure of private facts.

II.

Spilfogel’s second allegation is that Defendants intruded upon her

seclusion. Under Florida law, this tort requires intrusions “into a ‘place’ in which

there is a reasonable expectation of privacy.” Allstate Ins. Co. v. Ginsberg, 863

So. 2d 156, 162 (Fla. 2003) (per curiam). For liability to attach, the offender must

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be guilty of “physically or electronically intruding into one’s private quarters.” Id.

Because the alleged facts state that the recording occurred on a public street,

Spilfogel has not pled facts adequate for a finding that Defendants’ intruded upon

her seclusion.

Plaintiff fails to produce any meaningful support for her argument that the

public street on which the recording occurred was a private place. Spilfogel cites

the Supreme Court case Delaware v. Prouse, 440 U.S. 648, 99 S. Ct. 1391 (1979),

for the proposition that not all Fourth Amendment protection is lost when a person

leaves their home or enters their car. Unfortunately for Plaintiff, this is a far cry

from establishing that Florida law deems a city street a private place for the

purposes of the law of invasion of privacy. In fact, Spilfogel cites to no Florida

cases whatsoever in support of her intrusion upon seclusion claim. Instead, she

cites to the definition of the tort in the Second Restatement and to various

Alabama cases. These authorities carry minimal weight in this case because the

Florida Supreme Court has explicitly stated that its intrusion tort is narrower than

Alabama’s. Ginsberg, 863 So. 2d at 162 (distinguishing between Alabama and

Florida’s versions of the law on the basis of Alabama’s adoption of the

Restatement’s reliance on “private activities” while Florida requires intrusion into

“private quarters”) .

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Spilfogel fails to state facts upon which a reasonable juror could find that

the taping of her conversation with the police officer in a public street amounted to

an intrusion into her “private quarters.” Florida law explicitly requires an intrusion

into a private place and not merely into a private activity. Spilfogel voluntarily

placed herself in a public place where she did not have a reasonable expectation of

privacy. Accordingly, the judgment of the district court is

AFFIRMED

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