K.G.S., individually, and as guardian and next friend of Baby Doe, a minor child Renee L. Gelin
K.G.S., individually, and as guardian and next friend of Baby Doe, a minor child Kim McLeod
K.G.S., individually, and as guardian and next friend of Baby Doe, a minor child
Appeals from Jefferson Circuit Court (CV-17-255)
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.
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,  and e-mails and letters from 2015
that, K.G.S. says, support the preliminary injunction.
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, 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.
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 "sur-reply brief."
See note 15, infra.
Background Facts and Procedural History
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. 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.
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 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."
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. 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."
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,
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; 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.
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.
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.
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.
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
support of her contention that the trial court had personal
jurisdiction over Facebook, K.G.S. attached evidence
indicating that Facebook was notified -- via 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
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
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. We consolidated the appeals for the
purpose of issuing one opinion.
Appeal No. 1170244 - 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 apply the same standard
of review that we use when reviewing the denial of a motion
to dismiss for lack of personal jurisdiction.
"'"'An appellate court considers de novo a
trial court's judgment on a party's motion to dismiss
for lack of personal jurisdiction.'" Ex parte
Lagrone, 839 So.2d 620, 623 (Ala. 2002) (quoting
Elliott v. Van Kleef, 830 So.2d 726, 729 (Ala.
2002)). Moreover, "[t]he plaintiff bears the burden of
proving the court's personal jurisdiction over the
defendant." Daynard v. Ness, Motley, Loadholt,
Richardson & Poole, P.A., 290 F.3d 42, 50 (1st Cir.
"Ex parte Dill, Dill, Carr, Stonbraker &
Hutchings, P.C., 866 So.2d 519, 525 (Ala. 2003).
"'"In considering a Rule 12(b)(2), Ala. R. Civ.
P., motion to dismiss for want of personal jurisdiction, a
court must consider as true the allegations of the
plaintiff's complaint not controverted by the
defendant's affidavits, Robinson v. Giarmarco &
Bill, P.C., 74 F.3d 253 (11th Cir. 1996), and
Cable/Home Communication Corp. v. Network Productions,
Inc., 902 F.2d 829 (11th Cir. 1990), and 'where the
plaintiff's complaint and the defendant's affidavits
conflict, the ... court must construe all reasonable
inferences in favor of the plaintiff.' Robinson,
74 F.3d at 255 (quoting Madara v. Hall, 916 F.2d
1510, 1514 (11th Cir. 1990))."'
"Wenger Tree Serv. v. Royal Truck & Equip.,
Inc., 853 So.2d 888, 894 (Ala. 2002) (quoting Ex
parte McInnis, 820 So.2d 795, 798 (Ala. 2001)). However,
if the defendant makes a prima facie evidentiary showing that
the Court has no personal jurisdiction, 'the plaintiff is
then required to substantiate the jurisdictional allegations
in the complaint by affidavits or other competent proof, and
he may not merely reiterate the factual allegations in the
complaint.' Mercantile Capital, LP v. Federal
Transtel, Inc., 193 F.Supp.2d 1243, 1247 (N.D. Ala.
2002)(citing Future Tech. Today, Inc. v. OSF Healthcare
Sys., 218 F.3d 1247, 1249 (11th Cir. 2000)). See also
Hansen v. Neumueller GmbH, 163 F.R.D. 471, 474-75
(D. Del. 1995)('When a defendant files a motion to
dismiss pursuant to Fed.R.Civ.P. 12(b)(2), and supports that
motion with affidavits, plaintiff is required to controvert
those affidavits with his own affidavits or other competent
evidence in order to survive the motion.') (citing
Time Share Vacation Club v. Atlantic Resorts, Ltd.,
735 F.2d 61, 63 (3d Cir. 1984))."
Ex parte Covington Pike Dodge, Inc., 904 So.2d 226,
229-30 (Ala. 2004).
well settled that Alabama's long-arm rule, Rule 4.2, Ala.
R. Civ. P., "extends the personal jurisdiction of
Alabama courts to the limit of due process under the United
States and Alabama Constitutions," Hiller Invs.,
Inc. v. Insultech Grp., Inc., 957 So.2d 1111,
1115 (Ala. 2006), and that the due process guaranteed under
the Alabama Constitution is coextensive with the due process
guaranteed by the United States Constitution. "It has
long been established that the Fourteenth Amendment [to the
United States Constitution] limits the personal jurisdiction
of state courts." Bristol-Myers Squibb Co. v.
Superior Court of California, 582 U.S.___, ___, 137
S.Ct. 1773, 1779 (2017). Thus, we must determine if the trial
court's assertion of personal jurisdiction over Facebook
comports with due process of law as guaranteed by the
Fourteenth Amendment to the United States Constitution.
See generally Ex parte International Creative Mgmt.
Partners, LLC, 258 So.3d 1111, 1114-15 (Ala. 2018).
"The Due Process Clause of the Fourteenth Amendment
permits a forum state to subject a nonresident defendant to
its courts only when that defendant has sufficient
'minimum contacts' with the forum state.
International Shoe Co. v. Washington, 326 U.S. 310');">326 U.S. 310,
316, 66 S.Ct. 154, 90 L.Ed. 95 (1945). The critical question
with regard to the nonresident defendant's contacts is
whether the contacts are such that the nonresident defendant
'"should reasonably anticipate being haled into
court"' in the forum state. Burger King Corp. v.
Rudzewicz, 471 U.S. 462');">471 U.S. 462, 473, 105 S.Ct. 2174');">105 S.Ct. 2174, 85 L.Ed.2d
528 (1985), quoting World-Wide Volkswagen Corp. v.
Woodson, 444 U.S. 286');">444 U.S. 286, 295, 100 S.Ct. 559, 62 L.Ed.2d
Elliott v. Van Kleef, 830 So.2d 726, 730 (Ala.
the United States Supreme Court's decision in
International Shoe Co. v. Washington, 326 U.S. 310');">326 U.S. 310
(1945), two types of personal jurisdiction have been
recognized: "'general' (sometimes called
'all-purpose') jurisdiction and 'specific'
(sometimes called 'case-linked') jurisdiction."
Bristol-Myers Squibb, 582 U.S. at___, 137 S.Ct. at
"In the case of either general in personam
jurisdiction or specific in personam jurisdiction,
'[t]he "substantial connection" between the
defendant and the forum state necessary for a finding of
minimum contacts must come about by an action of the
defendant purposefully directed toward the forum
State.' Asahi Metal Indus. Co. v. Superior Court
of California, 480 U.S. 102, 112, 107 S.Ct. 1026, 94
L.Ed.2d 92 (1987). This purposeful-availment requirement
assures that a defendant will not be haled into a
jurisdiction as a result of '"the unilateral
activity of another person or a third person."'
Burger King [Corp. v. Rudzewicz], 471 U.S. [462, ]
475, 105 S.Ct. 2174');">105 S.Ct. 2174 [(1985)], quoting Helicopteros
Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 417,
104 S.Ct. 1868, 80 L.Ed.2d 404 (1984)."
Elliott, 830 So.2d at 731.
argued below that the trial court had both general and
specific jurisdiction over Facebook, and the trial court did
not indicate whether the jurisdiction it was exercising over
Facebook was general or specific. Facebook argues that the
trial court had neither general nor specific jurisdiction. We
will address each basis for the trial court's potential
exercise of personal jurisdiction over Facebook.
BNSF Railway Co. v. Tyrell, 581 U.S.___, 137 S.Ct.
1549 (2017), the United States Supreme Court summarized the
minimum requirements of due process as it relates to a state
court's exercise of general jurisdiction over a foreign
"Goodyear [Dunlop Tires Operations, S.A. v.
Brown, 564 U.S. 915 (2011), ] and Daimler [AG v.
Bauman, 571 U.S. 117 (2014), ] clarified that '[a]
court may assert general jurisdiction over foreign
(sister-state or foreign-country) corporations to hear any
and all claims against them when their affiliations with the
State are so "continuous and systematic" as to
render them essentially at home in the forum State.'
Daimler, 571 U.S., at 127 (quoting
Goodyear, 564 U.S., at 919). The
'paradigm' forums in which a corporate defendant is
'at home,' we explained, are the corporation's
place of incorporation and its principal place of
business. Daimler, 571 U.S., at 137;
Goodyear, 564 U.S., at 924. The exercise of general
jurisdiction is not limited to these forums; in an
'exceptional case,' a corporate defendant's
operations in another forum 'may be so substantial and of
such a nature as to render the corporation at home in that
State.' Daimler, 571 U.S., at 138, n. 19. We
suggested that Perkins v. Benguet Consol. Mining
Co., 342 U.S. 437 (1952), exemplified such a case.
Daimler, 571 U.S., at 138, n. 19. In
Perkins, war had forced the defendant