[D O NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FILED

F O R THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

AUG 1, 2006

THOMAS K. KAHN

N o . 06-11888

CLERK

N o n - A r g u m e n t Calendar

D . C. Docket No. 04-00047-CV-FTM-29-SPC

W H IT N E Y INFORMATION NETWORK, INC.,

a Colorado corporation,

Plaintiff-Appellant,

versus

XCENTRIC VENTURES, LLC,

an Arizona limited liability company,

BADBUSINESSBUREAU.ORG,

an Arizona limited liabiity company,

ED MAGEDSON, an individual,

Defendants-Appellees.

A p p e al from the United States District Court

fo r the Middle District of Florida

(A u g u st 1, 2006)

B efo re CARNES, WILSON and PRYOR, Circuit Judges.

P E R CURIAM: P lain tiff Whitney Information Network, Inc. ("Whitney") appeals from the d is tr ic t court's order granting Defendants Xcentric Venture's ("Xcentric"), b ad b u sin essb u reau .o rg 's, and Ed Magedson's ("Magedson") combined motion to d is m is s for lack of personal jurisdiction. We vacate and remand for further p r o c e e d in g s .

I. BACKGROUND W h itn ey states that it provides "post-secondary educational and training p ro d u cts and services in the areas of real estate investing, business development, f in a n c ia l investment and asset protection real estate to students world-wide." Among other things, Whitney conducts monthly real estate training programs and advertises its services through infomercials and on various websites. Whitney also p u rp o rts to own statutory and common law rights in various marks that are used in c o n n e ctio n with its educational and training services. When these marks are e n te re d into an Internet search engine, Whitney states, one of the search results that ap p ears is a website operated by Defendants.

Defendants operate the websites "www.ripoffreport.com" and "rip o ffrev en g e.co m ," and allegedly "hold themselves out to the public as a `w o rld w id e consumer reporting website and publication, by consumers for co n su m ers' to file and document consumer complaints about `companies or in d iv id u als who rip off consumers.'" According to Whitney, Defendants solicit co n su m ers to submit complaints about any company that has "ripped" the co n su m ers off, and Defendants then choose to publish certain of these complaints o n their website "www.ripoffreport.com," thereby implying that the companies n a m e d in the complaints are "ripping off" consumers. Whitney contends that D efen d an ts do not attempt to verify consumer complaints for accuracy, and seek to "ex to rt" money from companies complained about on Defendants' website by o fferin g to cease publication of the complaints in exchange for a fee.

Complaining that Defendants's use of its marks was causing consumer co n fu sio n and harming its reputation, Whitney (along with its CEO Russ Whitney) su ed Defendants in federal district court, asserting claims for violations of the L an h am Act, 15U.S.C. § 1051 et seq., common law trademark infringement, and d e f am a tio n per se of a business reputation. Defendants moved to dismiss for lack o f personal jurisdiction, arguing that their activities did not satisfy Florida's longarm statute, and that the exercise of jurisdiction would offend due process. The d istrict court concluded that the undisputed facts alleged in the complaint, in clu d in g Defendants' continued publication of infringing marks in Florida on their w e b s ite s, satisfied Florida's long-arm statute, and that the exercise of personal ju risd ictio n over Defendants would not offend due process. See Whitney Info.

N etw o rk, Inc. v. Xcentric Ventures, LLC, 347 F. Supp. 2d 1242, 1244-46 (M.D.

F la. 2004). Accordingly, the court denied the motion to dismiss. Id. at 1246.

T h e case was then reassigned to a different district judge and Defendants m o v e d to dismiss under Fed. R. Civ. P. 12(b)(6), asserting that the complaint failed to state a claim under the Lanham Act or for common law trademark infringement, a n d that the defamation claim was barred by the Communications Decency Act ("C D A "), 47U.S.C. § 223 et seq. The district court agreed and dismissed the co m p lain t without prejudice. With respect to the defamation claim, the court found th at, based on the allegations of the complaint, Defendants did not author the m essag es located on their website, but merely published the comments of thirdp arty consumers who felt defrauded. As a result, the court explained, Defendants w ere immune from liability under the CDA because "§ 230(c)(1) immunizes a serv ice provider from liability for information developed by a third party that is p u b lis h e d on the Internet." See Batzel v. Smith, 333 F.3d 1018, 1026-34 (9th Cir. 2 0 0 3 ); Ben Ezra, Weinstein, & Co., Inc., 206 F.3d 980, 986 (10th Cir. 2000); Zeran v . Am. Online, Inc., 129 F.3d 327, 331 (4th Cir. 1997).

P lain tiffs filed a motion for reconsideration and for an enlargement of time to file an amended complaint, noting that the district court's dismissal had been w ith o u t prejudice. The court denied reconsideration as to its previous order, but g ran ted Plaintiffs time to file an amended complaint. The amended complaint co n tain ed significant changes, naming Whitney as the sole plaintiff, eliminating the L a n h a m Act and common law trademark infringement claims, and adding new alleg atio n s in support of the defamation claim. These allegations claimed, inter a lia , that Defendants tailored and rewrote consumer complaints submitted by third p arties to make it appear that, regardless of the true nature of the complaint, the co m p an y complained of (i.e., Whitney) was "ripping off" customers. See, e.g., P l.'s Am. Compl. ¶¶ 38-39. This tailoring and rewriting allegedly included the a d d itio n of words such as "ripoff," "dishonest," and "scam." See id. Furthermore, W h itn e y claimed that Defendants knowingly fabricated entire consumer co m p lain ts, "which were then attributed to people with false names or `a n o n y m o u s ' titles from fictional locations around the United States . . . and were f als e and slanderous." Id. ¶ 40.

D e fe n d a n ts responded by moving to dismiss the amended complaint for lack o f personal jurisdiction, claiming that the grounds previously relied upon by the d istrict court for finding jurisdiction no longer existed. Whitney's defamation c la im , Defendants asserted, "is brought by a Colorado corporation that does b u s in e s s all over the country and did not suffer the brunt of the harm in Florida." F u r th e r m o r e , Defendants argued, Florida's long-arm statute was not satisfied b ecau se they had committed no tort, for the CDA "prohibits publisher liability for d e f am a tio n where the claim is against an interactive computer service." In support o f this argument, Defendants submitted the declarations of Defendant Magedson an d Ben Smith, who provided technology services to Defendant Xcentric.

Magedson declared that neither he nor any agent of Xcentric "authored the s ta te m e n ts that are the subject of this lawsuit," while Smith declared that the IP ad d resses1 of those computers that posted the complaints or rebuttals at issue did n o t match the IP address of any computer used by Xcentric or its agents. Whitney resp o n d ed by arguing, inter alia, that Magedson's declaration was insufficient to co n tro v er t all jurisdictional allegations of the amended complaint, and that Smith's d eclaratio n reached the merits of Whitney's claim, thereby "making it in ap p ro p riate on a motion to dismiss under Rule 12(b)(2), and more suited to a su m m ary judgment motion . . . ." T h e district court agreed that Whitney had not satisfied the requirements of F lo r id a 's long-arm statute, and granted the motion to dismiss on that basis. Given th e protection afforded Defendants under the CDA, the court stated, "[Whitney's] n ew allegations that Defendants were the authors of some of the statements on th e ir website are essential to the survival of its argument in support of personal ju risd ictio n ." If Defendants did not "author" the statements, the court reasoned, "th en they are immune under the [CDA], did not commit a tortious act in the state o f Florida, and the Court lacks personal jurisdiction over them." The court agreed th at the allegations of Whitney's amended complaint made a prima facie case for ju r is d ic tio n , but found that Defendants' declarations­particularly that of Ben S m ith ­ cau sed the burden to shift back to Whitney to prove jurisdiction by means o f an affidavit or other sworn statement. Whitney had produced no such materials, th e court explained, and therefore failed to carry its burden. Having concluded that W h itn e y did not satisfy the requirements of Florida's long-arm statute, the court d eclin ed to perform a due process analysis and dismissed the amended complaint w ith prejudice. Whitney now appeals that dismissal.

II. STANDARD OF REVIEW W e review a dismissal for lack of personal jurisdiction de novo. Alexander P ro u d fo o t Co. World Headquarters L.P. v. Thayer, 877 F.2d 912, 916 (11th Cir. 1 9 8 9 ). "When a district court does not conduct a discretionary evidentiary hearing o n a motion to dismiss for lack of jurisdiction, the plaintiff must establish a prima f ac ie case of personal jurisdiction over a nonresident defendant." Madara v. Hall, 9 1 6 F.2d 1510, 1514 (11th Cir. 1990). "A prima facie case is established if the p la in tif f presents enough evidence to withstand a motion for a directed verdict." Id.

"[We] must construe the allegations in the complaint as true, to the extent th e y are uncontroverted by defendant's affidavits or deposition testimony." Morris v . SSE, Inc., 843 F.2d 489, 492 (11th Cir. 1988). If a plaintiff pleads sufficient m a te ria l facts to establish a basis for personal jurisdiction and a defendant then s u b m its affidavits controverting those allegations, "the burden traditionally shifts b ack to the plaintiff to produce evidence supporting jurisdiction[,] unless those affid av its contain only conclusory assertions that the defendant is not subject to ju r is d ic tio n ." Meier ex rel. Meier v. Sun Int'l Hotels, Ltd., 288 F.3d 1264, 1269 (1 1 th Cir. 2002); see Future Tech. Today, Inc. v. OSF Healthcare Sys., 218 F.3d 1 2 4 7 , 1249 (11th Cir. 2000) (per curiam). When the plaintiff's complaint and su p p o rtin g evidence conflict with the defendant's affidavits, we must construe all reaso n ab le inferences in favor of the plaintiff. Meier, 288 F.3d at 1269; Madara, 9 1 6 F.2d at 1514.

III. DISCUSSION T h e determination of whether a court has personal jurisdiction over a given d efen d an t involves a two-part inquiry. Mut. Serv. Ins. Co. v. Frit Indus., Inc., 358 F .3 d 1312, 1319 (11th Cir. 2004). First, the court determines "whether the e x e rc is e of jurisdiction is appropriate under the forum state's long-arm statute." Id. Second, the court must examine whether the exercise of personal jurisdiction w o u ld violate the Fourteenth Amendment's Due Process Clause, "which requires th at the defendant have minimum contacts with the forum state and that the ex ercise of jurisdiction over the defendant does not offend traditional notions of f air play and substantial justice." Id. (internal quotes omitted).

Here, the sole issue raised on appeal is whether the district court erred in d e te rm in in g that Whitney failed to satisfy the requirements of Florida's long-arm s ta tu te . The only portion of the long-arm statute upon which Whitney relied was F la . Stat. § 48.193(1)(b), which "provides for the assertion of jurisdiction over an o u t- o f -s ta te defendant who commits a tortious act in Florida." Horizon Aggressive G r o w th , L.P. v. Rothstein-Kass, P.A., 421 F.3d 1162, 1168 (11th Cir. 2005).2 We m u s t construe the provisions of the long-arm statute as the Florida Supreme Court w o u ld . Id. at 1166-67. "`[C]ommitting a tortious act' in Florida under section 4 8 .1 9 3 ( 1 ) ( b ) can occur through the non-resident defendant's telephonic, electronic, o r written communications into Florida," so long as the plaintiff's cause of action arises from the communications. Wendt v. Horowitz, 822 So. 2d 1252, 1260 (Fla.

2 0 0 2 ) (quoting Fla. Stat. § 48.193(1)(b)). The district court found§ 48.193(1)(b) as to each of the D efen d an ts. This was so, the court explained, because the amended complaint, u n lik e the original complaint, alleged that Defendants "were the authors of some of th e statements on their website," not merely publishers of third-party statements.

Under the CDA, "[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another in fo rm atio n content provider." 47U.S.C. § 230(c)(1) (emphasis added).3 "No 3 The CDA defines the term "interactive computer service" as "any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions." 47U.S.C. § 230(f)(2). Whitney does not dispute on appeal that Defendants Xcentric or badbusinessbureau.org qualified as a "provider or user of an interactive computer service" under § 230(c)(1). Cf. Batzel, 333 F.3d at 1030 ("There is . . . no need here to decide whether a listserv or website itself fits the broad statutory definition of `interactive computer service,' because the language of § 230(c)(1) confers immunity not just on `providers' of such services, but also on `users' of such services."). Whitney does contend, however, that Defendant Magedson could not have qualified for CDA immunity because he "submitted no evidence to establish himself as an `interactive computer service.'" Although we need not address this argument because Whitney raises it for the first time in its reply brief, see Bauknight v. Monroe County, Fla., 446 F.3d 1327, 1329 n.2 (11th Cir. 2006), we note that § 230(c)(1) requires only that Magedson have been a cau se of action may be brought and no liability may be imposed under any State or lo c a l law that is inconsistent with this section." Id. § 230(e)(3). An "information co n ten t provider" is "any person or entity that is responsible, in whole or in part, fo r the creation or development of information provided through the Internet or a n y other interactive computer service." Id. § 230(f)(3). By alleging that D e fe n d a n ts authored some of the statements posted on the website, Whitney in d icated that Defendants were themselves an "information content provider" and th u s not necessarily immune under the CDA. The court further determined, h o w e v e r, that the Smith and Magedson declarations controverted these critical alleg atio n s about authorship, and thereby shifted the burden back to Whitney "to s u b s ta n tia te [its] jurisdictional allegations by affidavits or other competent proof, a n d not merely [to] reiterate the factual allegations in the complaint." Future Tech.

T o d a y, 218 F.3d at 1249 (internal quotes omitted). In producing no such evidence, th e court held, Whitney failed to carry this burden and Defendants were therefore en titled to dismissal.

A defendant's filing of an affidavit contesting jurisdictional allegations s h if ts the burden back to the plaintiff (to support those allegations with evidence) o n ly when the defendant's affidavit is legally sufficient to effect the shift. See A cq u a d ro v. Bergeron, 851 So. 2d 665, 671 (Fla. 2003); Horizon Aggressive G ro w th , 421 F.3d at 1168-69. The mere assertion of a legal conclusion, for ex am p le, is insufficient to shift the burden back to the plaintiff. See, e.g., A cq u a d ro , 851 So. 2d at 672 (explaining that defendant's statement in her affidavit th at she "did not make defamatory statements" about the plaintiff was insufficient to shift the burden back to plaintiff); Posner v. Essex Ins. Co., 178 F.3d 1209, 1215 ( 1 1 th Cir. 1999) (per curiam) (explaining that statements which, though presented in the form of factual declarations, are in substance legal conclusions do not "trig g er a duty for Plaintiffs to respond with evidence of their own supporting ju r is d ic tio n " ). On appeal, Whitney contends that Defendants' declarations were in s u f f ic ie n t to shift the burden of proof because those declarations contained c o n c lu s o r y denials and failed to contest all relevant allegations of the amended co m p lain t. Defendants maintain that the declarations adequately disputed any claim that they "authored" the complaints or rebuttals about Whitney on their w e b s ite . As Whitney produced no evidence to the contrary, Defendants argue, th ey were clearly entitled to CDA immunity and thus committed no tort for p u r p o s e s of § 48.193(1)(b). Having reviewed the declarations, we disagree that th e y were adequate to shift the burden back to Whitney. Thus, it is not clear that D efen d an ts were entitled to CDA immunity. M ag ed so n states that agents of Xcentric "do not choose which stories to p o st," that they "review the reports before posting solely to redact profanity, o b scen ity and personal contact information," and that they "are instructed never to a d d content to a report." While these statements may describe Xcentric's review p ractices and what its agents are generally instructed to do, the statements make no rep resen tatio n about what actually occurred with respect to the website postings ab o u t Whitney. Magedson also declares summarily that neither he nor any agent o f Xcentric "authored the statements that are the subject of this lawsuit," but he d o es not explain how he has knowledge as to the actions of Xcentric's agents.

Even if this conclusory denial can be said to challenge Whitney's allegation that D efen d an ts fabricated some of the consumer complaints posted on their website, it d o es not controvert Whitney's allegations that Defendants tailored complaints su b m itted by other individuals, adding words such as "ripoff," "dishonest," or "scam ." Indeed, Magedson's own representation about Xcentric's policy regarding r ed a c tio n s implies that Xcentric's agents had the power to edit consumer co m p lain ts before they were posted.4 D e fe n d a n ts contend that Magedson's assertions about authorship are s u p p o r te d by the Smith declaration, because Smith found that none of the captured IP addresses of computers from which reports were posted about Whitney on D efen d an ts' website matched the IP address of "any computer used by Xcentric or its agents . . . ." Smith further states that he did not recognize the contact in fo rm atio n provided by any of the persons who submitted consumer complaints a b o u t Whitney as belonging to agents of Xcentric. The implication is that D e fe n d a n ts did not fabricate and post any of the consumer complaints at issue, b ecau se if they had done so the IP addresses of their computers would have a p p e a r ed during Smith's examination, or he would have recognized their contact in f o r m a tio n . However, Smith admits that he was unable to obtain IP addresses co rresp o n d in g to three of the consumer complaints at issue. Furthermore, it is not clear that the IP addresses of computers used by Xcentric's agents would have ev en appeared during Smith's search if those computers were used merely to revise c o n s u m e r complaints submitted by others, rather than to submit a fabricated c o m p la in t.5 A s indicated above, the CDA defines an "information content provider" as "a n y person or entity that is responsible, in whole or in part, for the creation or d ev elo p m en t of information provided through the Internet or any other interactive co m p u ter service." 47U.S.C. § 230(f)(3) (emphasis added). For the reasons stated , Defendants' declarations do not adequately rebut the allegations of the am en d ed complaint insofar as it pleads Defendants' involvement in creating or d ev elo p in g the alleged defamatory content of consumer complaints posted on their w eb site. Thus, whether Defendants were entitled to CDA immunity remained in q u estio n , as did the issue of whether their conduct was tortious. Cf. Hy Cite Corp. v. badbusinessbureau.com, L.L.C., 418 F. Supp. 2d 1142, 1148-49 (D. Ariz. 2005) (d eclin in g to grant defendants' motion to dismiss based on CDA immunity because p la in tif fs alleged that defendants added editorial comments, titles, and original c o n te n t to third-party complaints posted on defendants' website). The district co u rt therefore erred when it shifted the burden of proof to Whitney based on D efen d an ts' declarations and then granted Defendants' motion to dismiss based on W h itn ey's failure to substantiate its allegations with evidence. Taking the alleg atio n s of the amended complaint as true to the extent they were not c o n tr o v e r te d by Defendants' declarations, and construing all reasonable inferences in favor of Whitney, see Madara, 916 F.2d at 1514, we conclude that Whitney w o u ld have survived a motion for directed verdict on whether it satisfied § 48.193(1)(b) of Florida's long-arm statute. See Carruthers v. BSA Adver., Inc., 3 5 7 F.3d 1213, 1215 (11th Cir. 2004) (per curiam) ("A directed verdict is only p ro p er when the facts and inferences so overwhelmingly favor the verdict that no reaso n ab le juror could reach a contrary decision.") (citation omitted). As the d is tr ic t court declined to address whether the exercise of personal jurisdiction over D efen d an ts would violate due process (an issue not briefed on appeal), we vacate th e district court's judgment and remand for further proceedings.

IV . CONCLUSION T h e district court erred in concluding that Whitney failed to satisfy § 48.193(1)(b) of Florida's long-arm statute with respect to Defendants, and thus e rr ed in dismissing the amended complaint for lack of personal jurisdiction on that b asis. Whether the exercise of personal jurisdiction over Defendants would violate d u e process, however, is yet to be resolved. Accordingly, we vacate the judgment o f the district court and remand the case for further proceedings consistent with th is opinion.

V A C A T E D AND REMANDED.

1 Smith explained in his declaration that "[a]n IP address is a unique address that identifies the computer that the submission came from."

2 The statute states in relevant part: (1) Any person, whether or not a citizen or resident of this state, who personally or through an agent does any of the acts enumerated in this subsection thereby submits himself or herself and, if he or she is a natural person, his or her personal representative to the jurisdiction of the courts of this state for any cause of action arising from the doing of any of the following acts: ... (b) Committing a tortious act within this state. Fla. Stat. § 48.193(1)(b). "provider or user" of an interactive computer service, not the service itself.

4 Magedson also conceded that he "do[es] not personally review all of the postings that are made on Rip-off Report before they are posted."

5 Whitney suggests that Xcentric's agents might have used non-work computers and assumed names as a subterfuge for submitting fabricated complaints, such as by logging on a computer at an internet cafe under an assumed name. Whitney did not allege this in its amended complaint, however, and it is not a defect in Defendants' evidence, but rather mere speculation on the part of Whitney that we give little weight.