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Facebook, Inc. v. K.G.S.

Supreme Court of Alabama

June 28, 2019

FACEBOOK, INC.
v.
K.G.S., individually, and as guardian and next friend of Baby Doe, a minor child. Renee L. Gelin
v.
K.G.S., individually, and as guardian and next friend of Baby Doe, a minor child. Kim McLeod
v.
K.G.S., individually, and as guardian and next friend of Baby Doe, a minor child.

         Rehearing Denied August 23, 2019 in case no. 1170244.

         Appeals from Jefferson Circuit Court (CV-17-255)

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          Bruce F. Rogers and Jennifer A. Hanson of Bainbridge, Mims, Rogers & Smith,

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          LLP, Birmingham; and Paven Malhotra and Sean M. Arenson of Keker, Van Nest & Peters LLP, San Francisco, California, for appellant Facebook, Inc.

          James P. Pewitt, Birmingham, for appellant Renee L. Gellin.

          John W. Gray II of Amari & Gray, Birmingham, for appellant Kim McLeod.

          Andrew, P. Campbell and Yawanna McDonald of Campbell Guin, LLC, Birmingham; and Joel. A. Williams of Friedman Dazzio Zulanas & Bowling, PC, Birmingham, for appellee.

         BRYAN, Justice.[1]

         This case stems from the adoption of "Baby Doe" by his adoptive mother, K.G.S., which was contested by Baby Doe's birth mother, K.R. ("the birth mother"). Details of that contested adoption were reported by the Huffington Post, a Web-based media outlet, and were also disseminated through a Facebook social-media page devoted to having Baby Doe returned to the birth mother. K.G.S. filed an action in the Jefferson Circuit Court ("the trial court") seeking, among other things, an injunction against Facebook, Inc., and certain individuals to prohibit the dissemination of information about the contested adoption of Baby Doe. These appeals follow from the entry of a preliminary injunction granting K.G.S. the relief she seeks.

         I. Preliminary Matters

         The preliminary injunction that is the basis of these appeals was entered on December 19, 2017. The appeals taken from that order were timely filed within 14 days of the entry of that order, see Rule 4(a)(1)(A), Ala. R. App. P., and on February 9, 2018, this Court received notice from the trial-court clerk certifying the record on appeal as complete on February 6, 2018. Since that time, K.G.S. has engaged in repeated efforts to have the record on appeal supplemented with matters that were not before the trial court at the time it entered the injunction at issue in these appeals, purportedly pursuant to Rule 10(f), Ala. R. App. P. The trial court has facilitated K.G.S.'s efforts by granting her motions to supplement the record to include matters that were not before the trial court at the time it entered the preliminary injunction, such as a second amended complaint filed by K.G.S. on March 12, 2018, transcripts of depositions taken long after the entry of the preliminary injunction at issue on appeal and after the record was certified as complete on February 6, 2018,[2] and e-mails and letters from 2015 that, K.G.S. says, support the preliminary injunction.

         It is well settled that Rule 10(f) cannot be used to supplement the record on appeal to include matters that were not before the trial court at the time the order being appealed was entered. See Cowen v. M.S. Enters., Inc., 642 So.2d 453, 455 (Ala. 1994) (holding that Rule 10(f) "was not intended to allow the inclusion of material in the record on appeal that had not been before the trial court" and concluding that the trial court erred in granting the appellant's Rule 10(f) motion to supplement the record with evidence that was not provided to the trial court before it entered the judgment supporting the appeal); and Houston Cty. Health Care Auth. v. Williams, 961 So.2d 795, 810 n.8 (Ala. 2006) ("Rule 10(f) does not allow ... for the addition to the record on appeal of matters not before the trial court when it entered its decision...."). Accordingly,

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we conclude that the trial court erred by granting K.G.S.'s motions to supplement the record on appeal to include matters that were not before the trial court at the time it entered the preliminary injunction at issue in these appeals. For purposes of deciding the merits of these appeals, we have considered only the evidence and arguments that were presented to the trial court at the time the preliminary injunction was entered.

         Additionally, K.G.S. filed a motion in this Court seeking leave to file a "sur-reply brief," purportedly for the purpose of "further assist[ing] the [Court] in its determination" of the issues presented by these appeals. After reviewing the briefs and arguments filed by the parties pursuant to Rule 28, Ala. R. App. P., and the proposed "sur-reply brief" from K.G.S., we deny K.G.S.'s request for leave to file a "surreply brief." See note 15, infra.

         II. Background Facts[3] and Procedural History

         In June 2015, K.G.S. filed a petition in the Mobile Probate Court to adopt Baby Doe, and, shortly thereafter, the birth mother filed a contest to K.G.S.'s petition for adoption.[4] The birth mother subsequently came in contact with Mirah Riben, "a well-known critic of the United States' adoption system" and a contributor to the Huffington Post. The birth mother shared with Riben her version of the events that led her to contest K.G.S.'s petition to adopt Baby Doe. On July 7, 2015, the Huffington Post, which K.G.S. describes as "a prominent media outlet," published two online articles about Baby Doe's adoption that included the full name of the birth mother; identified K.G.S. by her full name as the prospective adoptive mother of Baby Doe; identified Baby Doe by the name the birth mother had given Baby Doe; and included photographs of Baby Doe. The articles detailed how, after signing a pre-birth consent to allow K.G.S. to adopt Baby Doe, the birth mother notified K.G.S. and K.G.S.'s attorney, before Baby Doe was born, that she had changed her mind about allowing Baby Doe to be adopted; the birth mother, however, never legally withdrew the pre-birth consent to adoption, and K.G.S. obtained custody of and filed a petition to adopt Baby Doe approximately three weeks after Baby Doe was born.

         The day after the articles were published, Claudia D'Arcy, a resident of New York state, created a page on Facebook's social-media Web site dedicated to reuniting the birth mother and Baby Doe ("the Facebook page"), which "attached" the articles published by the Huffington Post. The Facebook page also included K.G.S.'s full name and a "number" of photographs of Baby Doe, who was then in the custody of K.G.S. See note 4, supra. After the creation of the Facebook page, K.G.S. was "inundated with appallingly malicious and persistent cyber-bullying." In a letter dated July 28, 2015, K.G.S.'s attorney notified Facebook that the Facebook page needed to be removed because it was in violation of the Alabama Adoption Code, § 26-10A-1

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et seq., Ala. Code 1975 ("the Adoption Code"), which, the attorney said, prohibits the disclosure of "any matters concerning an adoption, including parties' actual names." Facebook removed the "cover photo, but refused to delete the [Facebook] page or otherwise prevent it from disseminating its harmful and false message."

         On July 7, 2017, approximately two years after the Huffington Post published the articles about Baby Doe's adoption and D'Arcy created the Facebook page, K.G.S., individually and as the guardian and next friend of Baby Doe, filed an action in the trial court naming Facebook, D'Arcy, Kim McLeod, and Renee Gelin as defendants.[5] K.G.S. filed her first amended complaint on October 20, 2017, adding Jennifer L. Wachowski as a defendant. The first amended complaint alleged that, after K.G.S. filed her adoption petition, D'Arcy, McLeod, Gelin, and Wachowski (hereinafter referred to collectively as "the individual defendants") realized the birth mother was unlikely to succeed in her adoption contest based on Alabama law; that the individual defendants then "conspired to create a sensationalized, salacious, and scandal-driven trial in the court of public opinion to pressure K.G.S. into relinquishing her custody of Baby Doe"; and that Riben "quickly ran with [the birth mother]'s tale of events that combined [Riben]'s biased agenda ... [with the] nefarious publicity-stunt strategy" of the individual defendants. K.G.S. alleged that McLeod, Gelin, and Wachowski were instrumental in "publicizing" the Facebook page created by D'Arcy and that Gelin and Wachowski, "through their respective blogs ..., various Facebook posts, and ... YouTube videos, further publicized the private, confidential adoption of Baby Doe." K.G.S. further alleged that the Facebook page is "persistently updated with various posts, news articles, and YouTube videos at K.G.S.'s expense" and that several videos streamed online by YouTube and posted on the Facebook page include Gelin, McLeod, and Wachowski, "all of whom attended and/or participated in filming that took place in Jefferson County." K.G.S. further claimed that the individual defendants, through the Facebook page, have made her "the poster-child for `predatory' adoptions in the United States."

         K.G.S. brought claims alleging negligence per se based on each defendants' violation of certain provisions of the Adoption Code that, she said, "explicitly or implicitly prohibit the public disclosure of matters concerning adoptions"; two counts of invasion of privacy (misappropriation and false light) against the individual defendants only; the tort of outrage/intentional infliction of emotional distress; conspiracy; negligence; and wantonness. The complaint further alleged that Facebook is incorporated in Delaware with its principal place of business in Menlo Park, California; that Gelin is a resident of Pasco County, Florida; that McLeod is a resident of Mobile County; and that Wachowski is a resident of Waupaca County, Wisconsin.

         McLeod and Gelin filed separate motions to dismiss the complaint pursuant to Rule 12(b)(6), Ala. R. Civ. P., arguing that K.G.S.'s complaint failed to state a claim against them. Facebook filed a motion to dismiss pursuant to Rule 12(b)(2), (3), and (6), Ala. R. Civ. P., arguing that the trial court lacked personal jurisdiction over Facebook; that Facebook had immunity as to each of the claims asserted by K.G.S. pursuant to the Communications Decency Act of 1996, 47 U.S.C. § 230; that K.G.S.'s claims are barred under the First Amendment to the United States Constitution;

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and that venue was improper in Jefferson County, Alabama. Facebook's motion to dismiss was supported by an affidavit from Michael Duffey, a Facebook employee. He testified that Facebook is a Delaware corporation with its principal place of business in Menlo Park, California; that the Facebook Web site and mobile application are available for users to access anywhere in the country (or the world) where there is an Internet connection; that individuals in all 50 states have accounts with Facebook; that Facebook is qualified to do business in all 50 states; and that Facebook has no offices, property, or employees located in Alabama.

         On September 20, 2017, before K.G.S. amended her original complaint, Gelin filed an "amended" motion to dismiss K.G.S.'s complaint. In addition to reasserting that the claims against her were due to be dismissed pursuant to Rule 12(b)(6), Gelin also asserted for the first time that the claims were due to be dismissed because the trial court lacked personal jurisdiction over her. See Rule 12(b)(2). Gelin did not attach an affidavit or any other evidence to support her lack-of-personal-jurisdiction defense at that time.

         On October 12, 2017, K.G.S., individually and in her capacity as guardian and next friend of Baby Doe, filed a motion for a preliminary injunction pursuant to Rule 65, Ala. R. Civ. P. K.G.S. sought an order requiring Facebook and D'Arcy to deactivate the Facebook page and an order enjoining D'Arcy and McLeod "from discussing matters surrounding ... this lawsuit until the instant proceeding is fully litigated and resolved." K.G.S. alleged that the invasion of her and Baby Doe's privacy was an irreparable injury, that she had a reasonable chance of success on the merits of her invasion-of-privacy claim, and that the benefit to her and Baby Doe of removing the source of the principal disseminator of "illegal information" — the Facebook page — far exceeded any burden imposed on the defendants. The motion for a preliminary injunction did not mention Gelin or Wachowski.

         After K.G.S. filed her first amended complaint on October 20, 2017, discussed supra, Facebook filed a motion to dismiss the amended complaint and a motion opposing the preliminary injunction. Gelin also filed a motion to dismiss the first amended complaint, reasserting Rule 12(b)(2) and (6) as the grounds for dismissal. Gelin attached an affidavit to support her contention that the trial court lacked personal jurisdiction over her.[6]

         On November 29, 2017, K.G.S. filed a motion opposing the motions to dismiss filed by Facebook, Gelin, and McLeod. K.G.S. argued that Gelin's motion to dismiss for lack of personal jurisdiction was due to be denied because (1) she waived any defect in personal jurisdiction because she failed to raise that defense in her first Rule 12(b) motion to dismiss and (2) even if the defense was not waived, Gelin was subject to personal jurisdiction in Alabama based on the effects in Alabama of her conduct. Gelin filed a response addressing both arguments asserted by K.G.S. and filed a second affidavit to support her argument that she did not have minimum contacts with Alabama to support personal jurisdiction.

         In support of her contention that the trial court had personal jurisdiction over Facebook, K.G.S. attached evidence indicating that Facebook was notified — via

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two letters from K.G.S.'s attorney and a separately filed report of harassment to Facebook filed by K.G.S. — of the existence of the Facebook page, its harmful effects, and its alleged violation of Alabama law; that Facebook responded to K.G.S.'s attorney stating that it would review K.G.S.'s complaints but never "followed up" with K.G.S.'s attorney; and that, in response to K.G.S.'s report of harassment to Facebook, Facebook initially notified K.G.S. that it had removed a photograph of Baby Doe from the Facebook page because the photograph violated Facebook's "community standards" but almost immediately reversed course and notified K.G.S. by e-mail that the photograph of Baby Doe did not violate its community standards. In a letter dated July 28, 2015, K.G.S.'s attorney specifically notified. Facebook that its "actions have had an adverse affect on the health and well-being" of K.G.S. K.G.S. argued that "the exercise of jurisdiction over Facebook is proper based on the `effects' of its conscious, out-of-state conduct in Alabama."

         The record indicates that the trial court conducted a hearing on the pending motions to dismiss on November 30, 2017. During that hearing, K.G.S. provided the trial court with an affidavit to support her request for a preliminary injunction, which verified some of her pleadings and set forth the harm K.G.S. and Baby Doe allegedly had suffered because of the information posted on the Facebook page. A transcript of that hearing is not included in the record on appeal.

         On December 18, 2017, the trial court entered separate orders denying the motions to dismiss filed by Facebook, Gelin, and McLeod. The following day, the trial court entered a preliminary injunction ordering Facebook and D'Arcy to deactivate the Facebook page and enjoining D'Arcy, Gelin, and McLeod "from publicly discussing, in any way whatsoever, matters surrounding the adoption of Baby Doe and this lawsuit in any public forum." Pursuant to Rule 4(a)(1)(A), which allows an appeal from an order granting an injunction, Facebook, Gelin, and McLeod separately appealed.[7] We consolidated the appeals for the purpose of issuing one opinion.

         III. Analysis

         A. Appeal No. 1170244 — Facebook

         Facebook raises multiple challenges to the propriety of the preliminary injunction. First, Facebook argues that the trial court had no authority to enter an injunction requiring it to deactivate the Facebook page because, Facebook argues, the trial court lacks personal jurisdiction over it. Although our review of the trial court's determination that it had personal jurisdiction is before us on appeal from the entry of a preliminary injunction, we will ...


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