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Gann v. Kolfage

United States District Court, M.D. Tennessee, Nashville Division

January 30, 2017

SUSANNE GANN and DARREN REMINGTON
v.
BRIAN G. KOLFAGE, SR., et al.

          To Honorable Waverly D. Crenshaw, Jr., District Judge

          REPORT AND RECOMMENDATION

          BARBARA D. HOLMES United States Magistrate Judge

         By Order entered January 20, 2016 (Docket Entry No. 162), the Court referred the above captioned pro se action to the Magistrate Judge for pretrial proceedings under 28 U.S.C. §§ 636(b)(1)(A) and (B) and Rule 72 of the Federal Rules of Civil Procedure.

         Presently pending before the Court are two motions filed by Defendants Logan Elia, Ashley Kolfage, Brian G. Kolfage, Jr., and Brian G. Kolfage: 1) a motion to reconsider (Docket Entry No. 120) a prior Order of the Court in the case, and, 2) a motion to dismiss (Docket Entry No. 142). For the reasons set out below, the undersigned Magistrate Judge respectfully RECOMMENDS that the motion to reconsider (Docket Entry No. 120) of Defendants Logan Elia, Ashley Kolfage, Brian G. Kolfage, Jr., and Brian G. Kolfage, Sr., be DENIED and the motion to dismiss (Docket Entry No. 142) of Defendants Logan Elia, Ashley Kolfage, Brian G. Kolfage, Jr., and Brian G. Kolfage, Sr., be GRANTED IN PART AND DENIED IN PART.[1]

         I. FACTUAL BACKGROUND

         Susanne Gann (“Gann”) and Darren Remington (“Remington”) (hereinafter referred to collectively as “Plaintiffs”) are Tennessee citizens who reside together. They filed this pro se lawsuit on August 7, 2014, see Docket Entry No. 1, and subsequently filed an amended complaint on September 12, 2014. See Docket Entry No. 13. Seeking millions of dollars in damages, Plaintiffs allege that they have been harassed, intimidated, threatened, and legally wronged by Brian G. Kolfage, Sr. (“Kolfage Sr.”), Brian G. Kolfage, Jr. (“Kolfage Jr.”), Ashley Kolfage (“A. Kolfage”), Scott Kuhnen (“Kuhnen”), and Logan Elia (“Elia”), all of whom are named as defendants and none of whom reside in Tennessee.[2] Kolfage, Jr., and A. Kolfage are husband and wife, and Kolfage, Sr., is the father of Kolfage, Jr.[3]

         Plaintiffs asserts that Remington and Kolfage, Jr., are both veterans of the United States military. Kolfage, Jr., is a triple amputee who was injured in combat and whose story has garnered national media attention. Plaintiffs allege that both men also have an active presence on the internet through involvement with web sites, Facebook, other social media, and internet communities. See Amended Complaint at ¶¶ 15-46. Remington disagrees with many of the things Kolfage, Jr., posts on the internet, particularly on issues related to the military, politics, Kolfage, Jr.'s own personal history, and Kolfage, Jr.'s present day activities, believing them to be false, deceptive, seditious, and generally unbefitting of a military veteran. Id. Plaintiffs assert that, in early 2014, Remington posted a comment to the Facebook page of Kolfage, Jr., and also sent an e-mail intended for Kolfage, Sr., in which Remington suggested that Kolfage, Sr., and others cease harassment and bullying of another individual. Id. at ¶¶ 69-73. Plaintiffs allege that, after these two internet interactions, they began to experience a campaign of internet harassment conducted and orchestrated by the Kolfage Defendants. Id. at ¶ 75. Examples of this alleged harassment include: defaming and threatening internet posts; encouraging others to harass Plaintiffs; the creation of fake pages or accounts on Facebook and LinkedIn that were used to either impersonate Plaintiffs, disparage or defame them, or make harassing Facebook posts against them; hacking Plaintiffs' Facebook accounts; publically posting on the internet Plaintiffs' home address, telephone numbers, full legal names, pictures, and other “personal, sensitive information;” and attempting to have Remington fired from his employment through the use of the wrongfully obtained information and through incendiary internet posts falsely attributed to Remington. Id. at ¶¶ 46, 50, 52-54, 56-61, and 74.[4] Plaintiffs assert that this campaign of harassment caused them to file a criminal complaint against the Kolfage Defendants with the Davidson County, Tennessee police department. Id. at ¶ 81. The Amended Complaint does not aver the outcome of the criminal complaint.

         The instant lawsuit was not the only lawsuit filed about the vitriolic internet interactions between the Kolfage family, Plaintiffs, and other individuals. Prior to the instant lawsuit being filed, Kolfage, Jr., and A. Kolfage themselves had filed a state court lawsuit in Arizona on June 13, 2014 (“Arizona Case”) against Remington and six other individuals. In the lawsuit, which was later removed to the United States District Court for the District of Arizona, Kolfage, Jr., and A. Kolfage alleged that Remington and the other individuals had engaged in internet harassment against them that was similar in kind to the harassment alleged by Plaintiffs in the instant action. See Kolfage, et al. v. Caponecchia, et al., 2:14-1638 (D. Az. 2014).[5] The Arizona Case involved claims of defamation, intentional infliction of emotional distress, false light, and tortious interference against Remington and the six other defendants. Ultimately, the Arizona Case was resolved via settlement agreements, orders granting motions to dismiss, and the voluntary dismissal of certain defendants.

         The Arizona Case was filed by Defendant Elia, an attorney licensed to practice in Arizona. Plaintiffs Remington and Gann assert that Elia furthered and facilitated the campaign of harassment against them by filing the Arizona Case and also attempted to “try the [Arizona case] in the media instead of in court” by discussing the Arizona Case on multiple internet news and other sites and by providing a copy of the complaint to the Arizona new media. See Amended Complaint at ¶¶ 79 and 82-84.

         II. PROCEDURAL BACKGROUND

         In this lawsuit, Plaintiffs bring eleven causes of action: 1) civil conspiracy; 2) false light; 3) defamation; 4) tortious interference with a business relationship; 5) harassment; 6) intentional infliction of emotional distress; 7) misuse of private information; 8) impersonation; 9) copyright; 10) abuse of process; and 11) unauthorized access to computer systems. See Amended Complaint at ¶¶ 89-151.

         A flurry of early motions were filed, including motions by Defendants to dismiss the action because of the absence of personal jurisdiction over them. See Docket Entry Nos. 3, 35, and 38. By Order entered July 20, 2015 (Docket Entry No. 97) (“July 20, 2015 Order”), the Court denied the motions to dismiss to the extent that they were based on the defense of lack of personal jurisdiction. Defendant Elia's alternative argument for dismissal based on absolute privilege was denied without prejudice. In accordance with the first-to-file doctrine, the Court also granted Plaintiffs' motion to stay and administratively closed the action in light of the Arizona Case, which was still ongoing at the time. Id. at 4. All other motions that were pending at the time the stay was entered were denied without prejudice. Id.

         By Order entered November 23, 2015 (Docket Entry No. 104), the Court granted Plaintiffs' motion to reopen because the Arizona Case had concluded. Subsequent to the reopening of the case, another flurry of motion filing occurred. See Orders entered August 31, 2016 (Docket Entry Nos. 195-198). Included in these motions was the motion of Defendant Kuhnen for summary judgment as to the claims against him, which the Court granted by Order entered October 20, 2016 (Docket Entry No. 202). All motions have been addressed except for the pending motion to reconsider and the pending motion to dismiss.

         III. MOTION TO RECONSIDER

         Defendants seek reconsideration of the July 20, 2015 Order to the extent that the Court found that personal jurisdiction over them existed and denied their previous motion to dismiss that raised this defense. In their motion, Defendants merely reargue the merits of the underlying issue of whether personal jurisdiction exists and request dismissal of the case on this ground. See Docket Entry No. 120. Plaintiffs respond in opposition, arguing that the motion is untimely and is also defective because of misstatements contained in the motion. See Docket Entry No. 140. Plaintiffs further argue that Defendants have not shown a basis for reconsideration of the Court's prior decision on the issue of personal jurisdiction. See Docket Entry No. 140. Defendants reply by disputing that their motion is untimely or defective. See Docket Entry No. 154. They also reassert their contention that Plaintiffs failed to carry their burden of showing that the Court has personal jurisdiction over Defendants and argue that reconsideration of the issue is warranted because the Court, in the July 20, 2015 Order, “did not articulate the legal or factual bases upon which it determined that any of the named Defendants in this matter had sufficient contacts for the Court to assert personal jurisdiction over them.” Id. at 9.

         While the Federal Rules of Civil Procedure do not explicitly address motions to reconsider interlocutory orders, “[d]istrict courts have authority both under common law and Rule 54(b) to reconsider interlocutory orders and to reopen any part of a case before entry of final judgment.” Rodriguez v. Tenn. Laborers Health & Welfare Fund, 89 Fed.App'x. 949, 959 (6th Cir. 2004) (citing Mallory v. Eyrich, 922 F.2d 1273, 1282 (6th Cir. 1991)); accord In re Life Investors Ins. Co. of Am., 589 F.3d 319, 326 n.6 (6th Cir. 2009). Thus, district courts may “afford such relief from interlocutory orders as justice requires.” Rodriguez, 89 Fed.App'x. at 959 (internal quotation marks and brackets omitted). “Courts traditionally will find justification for reconsidering interlocutory orders when there is (1) an intervening change of controlling law; (2) new evidence available; or (3) a need to correct a clear error of law or prevent manifest injustice.” Louisville/Jefferson Cnty., Metro. Gov't v. Hotels.com, L.P., 590 F.3d 381, 389 (6th Cir. 2009) (citing Rodriguez, 89 Fed.App'x. at 959). A motion to reconsider, however, does not permit a party to simply “reargue its prior ...


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