PHILADELPHIA – A florist who brought a defamation suit in response to poor reviews of his business that were posted on Facebook and who was disallowed from serving the social media platform with a third-party subpoena as a part of his case has seen his case dismissed due to lack of service.
Blossoms & Blooms, Inc. (doing business as “Domenic Graziano Flowers & Gifts”) and Domenic Graziano first filed suit in the U.S. District Court for the Eastern District of Pennsylvania on April 21 versus Jane Doe.
“On or about Dec. 14, 2021, defendant left a false and defamatory comment on the Domenic Graziano Flowers business profile page on Facebook.com, defaming both Graziano Flowers and Graziano himself. After Graziano Flowers removed the defamatory comment from their Facebook.com profile page, on Dec. 15, 2021 Defendant left a second comment on Facebook.com citing the removal of the first comment and doubling-down on defendant’s defamatory comments,” the suit said.
“Defendant’s comments include various depictions of Graziano Flowers, and thereby Mr. Graziano himself, many of which are untrue and defamatory. The comments are false and defamatory on their face by imputing serious and egregious statements of employment practices which the plaintiff does not institute. The following statements contained in the comments serve as examples of the false and defamatory language that is offensive to a reasonable person.”
The plaintiffs added that the comments were both malicious and untrue.
“By maliciously and negligently posting these falsehoods in their comments, defendant defamed plaintiff by making it appear that plaintiffs institute unfavorable employment practices and policies that would offend a reasonable person. Plaintiffs do not hold any of these beliefs and have never voiced any of these statements, implied or otherwise, in this manner,” the suit stated.
“The false and defaming comments were available worldwide through the Facebook.com website by looking up the ‘Graziano Flowers’ name, or by viewing defendant’s profile; further, search engines such as Google, Yahoo!, and Ask.com may have linked to defendant’s comments. Defendant has since deleted the defamatory comments from their Facebook.com account, but not before Graziano Flowers received multiple calls on the matter.”
Counsel for Graziano filed a brief in support of its motion for leave to serve a third-party subpoena prior to a Rule 26(f) conference on May 13.
“After reasonable investigation, plaintiffs are unable to ascertain the true identity of defendant Jane Doe. Because defendant used a Facebook.com profile to commit the libelous actions in question, plaintiffs can only pray to obtain defendant’s identifying information from Facebook, Inc. Defendant must have had an active profile on Facebook.com, and such active account would have had to be created with an IP address, an email address, and a mobile phone number (or any combination of the three) along with a timestamp of activity on or around Dec. 14 and Dec. 15, 2021. Accordingly, Facebook, Inc. must have records indicating the true identity of defendant, as Facebook.com requires personally identifiable information when opening an account,” the brief stated.
“Plaintiff seeks leave of Court to serve a Rule 45 subpoena on Facebook, Inc. This subpoena will demand the IP address, email address, mobile phone number, and timestamp of activity in order to ascertain the true identity of the defendant. Plaintiff will only use this information to prosecute the claims made in its complaint. Without this information, plaintiff can neither serve the defendant nor pursue this lawsuit.”
On July 29, U.S. District Court for the Eastern District of Pennsylvania Karen S. Marston issued a memorandum order which prohibited the plaintiff from subpoenaing Facebook.
In order for the process to be approved, the plaintiff is required to meet the following four criteria:
• The plaintiff must notify the anonymous poster that they are the subject of a potential subpoena and allow them the opportunity to oppose the motion;
• The plaintiff must produce sufficient evidence to state a prima facie case for the claims asserted;
• The plaintiff must show that “the requested information is sought in good faith, is unavailable by other means, is directly related to the claim and is fundamentally necessary to secure relief”; and
• The Court must balance the defendant’s First Amendment rights against the strength of the plaintiff’s prima facie case.
“Nothing in the instant motion suggests that plaintiffs have taken any efforts to notify Jessica Walters of the potential subpoena. The Court appreciates that the Jessica Walters account is just that – a Facebook account – and that the user behind the account may no longer monitor the account, or that the account may be inactive,” Marston said.
“But plaintiffs were nonetheless obliged to take some efforts, such as messaging the account or posting on the account’s page, to get in touch with the poster and they failed to do so. Because plaintiffs did not take any efforts to notify Jessica Walters of their efforts to subpoena her identifying information, they are not entitled to such a subpoena.”
Marston added that the plaintiffs had not proven a prima facie case against Doe.
“Plaintiffs have failed to establish a prima facie case of defamation for several reasons. First, Plaintiffs have failed to establish the defamatory character of the communication. Although these reviews may have embarrassed (and clearly did upset) Graziano, they were seemingly written by someone close to a disgruntled employee, and no reasonable person would view them as anything other than a frustrated outburst online,” Marston stated.
“Plaintiffs have also failed to make out a prima facie case for defamation because they have not proffered evidence that they suffered actual harm – i.e., reputational harm. Plaintiffs claim the reviews have placed them ‘in jeopardy with their customers, current employees, and potential employees regarding Plaintiffs’ employment practices.’ But they do not support these conclusory allegations with evidence: there is no evidence that any customers took their business elsewhere, nor is there any evidence that potential employees chose not to work at Blossoms & Blooms based on the comments. Plaintiffs have also failed to establish ‘actual malice’ here. They have offered no evidence that the statements were made with a ‘reckless disregard’ for the truth. In fact, they have not even offered evidence that the statements were untruthful.”
Marston explained that the Court “recognized that the plaintiffs cannot prosecute this case unless they are able to ascertain the true identity of Jessica Walters, but the plaintiffs have not even shown they have a case against Jessica Walters.”
In a letter dated Sept. 6 from a Court clerk on behalf of Marston, the case may be facing dismissal if proper service is not made to the defendant in the next three weeks.
“A review of the docket shows that service of the complaint has not been made. Rule 4(m) of the Federal Rules of Civil Procedure requires that the defendant must be served with the complaint within 90 days after the complaint is filed. If service is not made by Sept. 27, 2022, the action will be dismissed without prejudice for lack of prosecution unless good cause for the failure to comply with Rule 4(m) is shown prior to that time,” the letter stated.
UPDATE
Marston ultimately dismissed the case on Oct. 3 for the above-cited reason.
“Upon consideration of plaintiffs’ failure to serve the summons and complaint, and to respond to the notice to counsel dated Sept. 6, 2022, it is hereby ordered that the complaint is dismissed without prejudice pursuant to Federal Rule of Civil Procedure 4(m). The Clerk of Court shall mark this matter closed,” Marston ruled.
The plaintiffs were represented by Michael K. Terkanian of Terkanian Law, in Warrington.
The defendant did not secure legal counsel.
U.S. District Court for the Eastern District of Pennsylvania case 2:22-cv-01557
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com