Comins v. Van Voorhis Response in Opposition to MSJ

8/6/2019 Comins v. Van Voorhis Response in Opposition to MSJ

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IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT

IN AND FOR ORANGE COUNTY, FLORIDA

CHRISTOPHER M. COMINS,

CASE NO. 2009-CA-15047-O

Plaintiff,

vs.

MATTHEW FREDERICK VANVOORHIS,

Defendant.

PLAINTIFFS RESPONSE IN OPPOSITION TO MOTION FOR SUMMARY

JUDGMENT AND INCORPORATED MEMORANDUM OF LAW

Plaintiff, CHRISTOPHER M. COMINS (Plaintiff), by and through undersigned

counsel, responds in opposition to Defendant, MATTHEW FREDERICK VANVOORHISS

(Defendant) Motion for Summary Judgment as follows:

I. Background

On May 19, 2008, Plaintiff was involved in an incident in Orange County where he was

forced into the position of having to shoot two dogs that had been preying on a group of cattle

and their calves in a private pasture for more than three hours. Witnesses described the dogs

aggressively charging at the cows in a predatory manner in an attempt to separate a calf from the

rest of the group. The situation became so dire that it generated multiple 911 calls to the Orange

County Sheriffs Office and Animal Control wherein the dogs were described as wolves, and

as many as sixty onlookers pulled over to the side of the road to watch. Those on the scene with

experience with livestock and dogs believed the dogs would eventually seriously injure, if not

kill, the cows. The property owner and the cattle owner both reached out to Plaintiff, who was at

the scene, and asked him to shoot the dogs. Reluctantly, Plaintiff drove to his home to retrieve


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two guns, because he did not have a firearm in his possession. His shooting of the dogs was

captured on You Tube.

On June 6, 2008, Defendant, at the time an anonymous, private individual, began a

targeted Internet smear campaign against Plaintiff related to the incident. In two blog entries and

a series of Internet message board postings, Defendant published numerous false and defamatory

statements about Plaintiff in the course of recreating the events of May 19 and attacking

Plaintiffs character. Defendants mission was to portray Plaintiff as a cruel and bloodthirsty

monster who enjoyed shooting the dogs, and did so without any justification. As this Court will

learn, the facts of this case provide another unfortunate example of the dangerous rising tide of

Internet vigilantism. Taken as a whole, Defendants first blog entry creates such a false

impression of the dog-shooting event, and unfairly casts Plaintiff in such a negative light, that

the entry spawned death threats against Plaintiff in the Internet message board comments below

it. (The threats from third parties are detailed in Appendix A, below). When asked to remove

the defamatory postings, initially in the interest of Plaintiffs personal safety, Defendant refused.

It is within this context, in the midst of this epidemic of anonymous posters writing whatever

they want about whomever they want with reckless disregard for the truth of their statements or

the damage they may cause, that Plaintiff filed suit.1

II. Defendants Motion for Summary Judgment Should Be Denied in its Entirety

Defendant claims in his Motion for Summary Judgment (the Motion) that Plaintiffs

failure to serve pre-suit notice of his defamation action on Defendant pursuant to Section 770.01,

Florida Statutes, bars his claim against Defendant. This argument fails on its face because the

1 The dog shooting incident also became the subject of a criminal trial in Orange County in which Plaintiff was

acquitted of the charge of cruelty to animals, CASE NO. 08-CF-17830-0.


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notice provision of Section 770.01 does not apply to non-media defendants. Florida courts

enforcing the notice provision of Section 770.01 have done so only when the defendant is a

media defendant entitled to the statutes protections. The record evidence in this case clearly

establishes that Defendant is a non-media defendant who in no way resembles the media

defendants contemplated by the legislature in enacting the statute.

Defendant also argues in the Motion that his statements do not constitute defamation. To

the extent Defendants blog entries include mixed statements of opinion and fact and imply

undisclosed facts supporting Defendants evident opinion that Plaintiff acted illegally and

enthusiastically when he was forced to shoot the dogs, then a jury question exists as to whether

those mixed statements were defamatory under Florida law. For those individual statements that

Defendant argues are non-actionable expressions of pure opinion or rhetorical hyperbole,

Defendant highlights only certain of his statements, and fails to address many of the most

damaging, and clearly factual, statements in his blog entries. This Response will illuminate

those statements for the Courts consideration. Additionally, Defendant completely ignores the

statements he posted on the Internet message board below one of his blog entries, including but

not limited to the following:

And just an FYI to the individual who seems eager to start a Chris Comins

Fan Club in celebration dog-shooting & child abusing . . .

(Defendant Matthew Frederick VanVoorhis, posting under the pseudonym M. Frederick

Voorhees on an Internet message board below his Barbarian Hillbilly Blog Entry, July 31, 2008).

However, even when considering the statements Defendant does acknowledge in his Motion,

this Court will recognize those statements as actionable statements of fact or, particularly in

context, mixed statements of opinion and fact which create a false implication.


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Beyond the practice of parsing individual statements to determine their defamatory

character or whether they are fact or opinion, this Court will note that Defendants Motion fails

to even address the count of Plaintiffs Second Amended Complaint that forms the heart of this

defamation action. Plaintiff alleges Defendant is liable for defamation by implication, a cause of

action stemming from the false light tort formerly recognized under Florida law. See Jews for

Jesus, Inc. v. Rapp, 997 So. 2d 1098 (Fla. 2008). Throughout the course of Defendants first

blog entry, Defendant paints a picture of the dog-shooting incident that falsely casts Plaintiff in a

negative light by intentionally omitting crucial facts, distorting the timeline and sequence of

events, making false factual statements, and juxtaposing facts for the purpose of creating a false

impression. Defendants Motion ignores this cause of action, which clearly creates a question of

fact for the jury.

Defendant further argues that Plaintiff is a public figure, and therefore Plaintiff must

show that Defendant made the defamatory statements with knowledge they were untrue, or with

a reckless disregard for the truth. Plaintiff denies he is a public figure subject to this higher

standard, and at best his status creates issues of fact to be determined by the jury. However,

even if a trier of fact were to determine that Plaintiff is a public figure, the record evidence in

this case clearly demonstrates that Defendant acted at all times with a reckless disregard for the

truth.

Finally, Defendant contends that he did not tortiously interfere with Plaintiffs business

relationships. However, the record evidence will show that Defendant published the names of

companies believed by him to be customers or business partners of Plaintiff, and openly

encouraged people reading his blog entries to boycott those companies. In so doing, Defendant

makes the following statement, among many others:


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Christopher Comins has shown multiple times now that he is a dangerous,

abusive individual, and a huge proponent of unprovoked violence and cruelty

to animals.

(Defendant Matthew Frederick VanVoorhis, posting under the pseudonym M. Frederick

Voorhees on an Internet message board below his Barbarian Hillbilly Blog Entry, June 9, 2008).

For the aforementioned reasons, this Court should deny Defendants Motion for

Summary Judgment. Defendant is a non-media defendant who is not entitled to statutory pre-

suit notice, and his statements were either defamatory by law or create issues of fact to be

decided by the jury.

III. Undisputed Material Facts

1. Defendant published his first blog entry, Christopher Comins: Barbarian

Hillbilly Dog-Assassin (w/ Friends in High Places) (the Barbarian Hillbilly Blog Entry), on

June 6, 2008 under the alias M. Frederick Voorhees. The Barbarian Hillbilly Blog Entry is

attached as Exhibit A and incorporated by reference. The Barbarian Hillbilly Blog Entry was

also attached as an exhibit to Defendants deposition of April 15, 2011, the original transcript of

which was filed with this Court.

2. Defendant published his second blog entry Christopher Comins Husky-Shooter

Update: Chris Comins May Face Charges (the Husky-Shooter Update Blog Entry), on August

17, 2008 under the alias M. Frederick Voorhees. The Husky-Shooter Update Blog Entry is

attached as Exhibit B and incorporated by reference. The Husky-Shooter Update Blog Entry

was also attached as an exhibit to Defendants deposition of April 15, 2011, the original

transcript of which was filed with this Court.

3. Defendant published the subject blog entries by uploading them to the Internet


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from either his apartment, or possibly the graduate student office at his university. (Defendants

Deposition, page 69, line 17-page 70, line 23).

4. Defendant used pseudonyms to publish his blog entries so that no one would

know who he was. (Defendants Deposition, page 13, line 18-page 14, line 7; page 15, lines 1-

10).

5. At the beginning of this lawsuit, Defendant deleted several things he had written

and published on the Internet because his blog alias had been compromised. (Defendants

Deposition, page 16, line 13-page 17, line 10).

6. Defendant does not have a degree in journalism. (Defendants Deposition, page

104, lines 16-21).

7. At no time has Defendant had a job where one of his responsibilities was to write

and publish articles or blogs. (Defendants Deposition, page 69, lines 6-12).

8. Defendant did not personally witness the shooting that is the subject of his two

blog entries. (Defendants Deposition, page 78, lines 12-13).

9. Defendant first learned about this incident through a Facebook group.

(Defendants Deposition, page 78, lines 16-18).

10. Defendant wrote the Barbarian Hillbilly Blog Entry after viewing the You Tube

video of the incident and reading some Internet articles linked from the Facebook group.

(Defendants Deposition, page 83, lines 12-14; page 85, lines 10-14).

11. Defendant did not speak to anyone involved with the incident prior to writing the

Barbarian Hillbilly Blog Entry, and did not interview a single witness. (Defendants Deposition,

page 83, lines 18-20; page 84, line 17-page 85, line 14).

12. Defendant did not do any journalistic investigation of any kind prior to writing


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the Barbarian Hillbilly Blog Entry. (Defendants Deposition, page 104, line 22-page 105, line

22).

13. Defendant relied primarily upon The Orlando Sentinel article more than any other

article in writing the Barbarian Hillbilly Blog Entry. (Defendants Deposition, page 86, lines 21-

24).

14. In both blog entries, Defendant wrote about an incident involving Plaintiff where

he pled no contest to improper exhibition of a firearm without reading the incident report, and

without speaking to anyone to determine the facts of the incident. (Defendants Deposition, page

90, lines 11-14; page 91, lines 14-22).

15. Defendant wrote that Plaintiff had a violent criminal history, without having any

knowledge or doing any research as to whether improper exhibition of a firearm is considered a

violent or nonviolent offense. (Defendants Deposition, page 98, lines 7-11).

16. Defendant does not even know whether Plaintiff has ever killed a dog, or

anything for that matter, in his entire life. (Defendants Deposition, page 125, lines 14-20).

17. Despite newspaper reports and eyewitness accounts in the Orange County

Sheriffs Office Incident Report (the Incident Report) to the contrary, Defendant wrote the

following statement in his Barbarian Hillbilly Blog Entry:

Comins apparently just drives around with his gun waiting for excuses.

(Defendant Matthew Frederick VanVoorhis, posting as M. Frederick Voorhees in the Barbarian

Hillbilly Blog Entry, June 6, 2008). The Incident Report indicates that Plaintiff had to go home

to retrieve a firearm after being asked at the pasture to shoot the dogs, because he did not have a

gun in his car. A certified copy of the Incident Report is attached as Exhibit C and

incorporated by reference. A letter from cattle owner Laura Retherford to Lawson Lamar is


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attached as Exhibit D and incorporated by reference. (See also Defendants Deposition, page

136, line 8-page 137, line 1; page 126, line 11-page 130, line 17; page 131, lines 18-25).

18. Despite multiple reports describing this event as one that transpired over several

hours and generated numerous calls to the Sheriffs Office and the Florida Fish and Wildlife

Commission wherein witnesses reported the cows being attached by wolves or dogs, Defendant

intentionally depicted a very short scene that comported with the 30-second You Tube video he

watched. Throughout the blog entries and message board posts, Defendant intentionally ignored

all factual references to an hours-long dilemma that attracted up to sixty onlookers. The Fish

and Wildlife Commission Call History Log is attached as Exhibit D and incorporated by

reference. (See also Defendants Deposition, page 137, line 2-page 139, line 5; see also Incident

Report).

19. Despite numerous eyewitness reports and 911 calls indicating the wolves were

trying to kill the cows, Defendant states as a matter of fact in the Barbarian Hillbilly Blog Entry

that the dogs were merely playing with the cows, thus rendering their shooting cruel and

unjustified. (Defendants Deposition, page 139, lines 6-19; see also Incident Report).

20. Defendant admitted he painted as nasty a picture as he could of the scene that day

to encourage people to watch the You Tube video. (Defendants Deposition, page 145, lines 7-

12).

21. Defendant wrote in his Barbarian Hillbilly Blog Entry that Plaintiff was

brandishing two pistols in the pasture that day, despite having actual knowledge that Plaintiff

was never brandishing two pistols. (Defendants Deposition, page 146, line 19-page 147, line

10).

22. Defendant wrote that people fifty feet away could see the dogs collars during the


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shooting incident. However, Defendant later admitted he did not read anywhere that anyone saw

the dogs collars, and the only indication of the distance from the fence line where people were

standing to where the shooting occurred was 485 feet, contained within the Incident Report.

(Defendants Deposition, page 148, line 11-page 149, line 21; see also Incident Report).

Q: The mood changes in the crowd. People fifty feet away can see the dogs

collars.

People fifty feet away from where?

A: I dont recall what I meant by that.

Q: Do you recall reading anywhere in any of these articles where people saw

the dogs collars?

A: No.

Q: Do you know how far away the people were from where the shooting

actually took place?

A: No.

Q: Would it surprise you to learn that it was 485 feet?

MR. PETRO: From where to where?

MR. KILLGORE: From the fence line where everybody was standing

to where the shooting took place with the cows and the dogs.

A: Wasnt it the road was on an angle, though right?

Q: Do you understand from the police reports that it was 485 feet from the

fence line to where this shooting took place?

A: I dont recall that number, no.

Q: Have you ever heard any reference similar to that number?

A: Yes.

Q: When?


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A: I guess in the police report.

Q: Did you at any time retract any of your statements about the distances in

the articles that youve written?

A: No.

Q: Do you recall anybody saying that they saw the dogs collars?

A: There was no I do not recall anybody saying that. I recall looking at a

photograph where I could see them.

(Defendants Deposition, page 148, line 11-page 149, line 21).

23. Defendant misrepresents the timeline and sequence of events to portray Plaintiff

as a cold and callous monster. Defendant admits that despite having little or no basis for doing

so, he claims in the Barbarian Hillbilly Blog Entry that the dog owner, Christopher Butler

(Butler), began running hysterically toward Plaintiff after three shots, and that Plaintiff stared

Butler down and continued to shoot his dogs despite knowing they were his pets. These are

absolute false factual statements about the days events that depict Plaintiff as a monster who

wanted to kill Butlers dogs for no reason. (See Defendants Deposition, page 157, line 6-et

seq., for lengthy discussion regarding the timing of the shots and Butlers entry into the

pasture).2

24. Defendant repeatedly describes shots whizzing by the crowd in his Barbarian

Hillbilly Blog Entry, intentionally portraying Plaintiff as reckless and dangerous, based solely

upon sounds he hears in the You Tube video. (Defendants Deposition, page 169, line 3-page

170, line 14; page 175, lines 6-13).

25. Defendant ignored and/or chose not to believe all accounts of the events of that

2 Defendant conceded in his deposition that Plaintiff might not have been able to hear anything, much less Butler,

because he was firing the gun without earphones. (Defendants Deposition, page 176, lines 6-24).


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day that did not fit with his agenda to assassinate Plaintiffs character and damage his business.

(See, e.g., Defendants Deposition, page 205, line 13-page 208, line 14).

IV. Memorandum of Law

A. Standard of Adjudication

Summary judgment is proper only if there is no genuine issue of material fact, viewing

every possible inference in favor of the party against whom summary judgment is sought. Poe v.

IMC Phosphates MP, Inc., 885 So. 2d 397 (Fla. 2d DCA 2004). If there is no genuine issue of

material fact, a summary judgment is proper only if the moving party is entitled to a judgment as

a matter of law. Id. If the existence of genuine issues of material fact or the possibility of their

existence is reflected in the record, or if the record raises the slightest doubt in such respect, then

summary judgment cannot be granted. Furlong v. First Nat. Bank of Hialeah, 329 So. 2d 406

(Fla. 3d DCA 1976); Fletcher v. Petman Enterprises, Inc., 324 So. 2d 135 (Fla. 3d DCA 1975);

Fletcher Co. v. Melroe Mfg. Co., 261 So. 2d 191 (Fla. 1st DCA 1972).

B. Defendant is a Non-Media Defendant and Therefore is Not Entitled to Pre-Suit

Notice of a Defamation Action Under Chapter 770

The pre-suit notice provision of Section 770.01, Florida Statutes (the Notice

Provision), does not apply when an action is brought against a non-media defendant such as

Defendant, MATTHEW VANVOORHIS. Bridges v. Williamson, 449 So. 2d 400, 401 (Fla. 2d

DCA 1984) (holding that Section 770.01 Notice Provision did not apply to non-media

defendants even when alleged defamatory statements are republished by the media); Gifford v.

Bruckner, 565 So. 2d 887, 888-89 (Fla. 2d DCA 1990) (Section 770.01 Notice Provision did not

apply to non-media defendant such as aerial advertising firm with respect to banner towed

overhead by airplane); Cummings v. Dawson, 444 So. 2d 565, 566 (Fla. 1st

DCA 1984) (Section


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770.01 Notice Provision did apply to local television station WTLV-Channel 12). As recently as

1984, Florida courts held that the legislature intended to include only newspapers, periodicals,

television and radio in the term medium in the statute. See Davies v. Bossert, 449 So. 2d 418

(Fla. 3d DCA 1984).

In a case whose facts are instructive in the above-captioned matter, Davies v. Bossert, the

Third District Court of Appeals held that a private citizen making statements over a citizens

band radio was not entitled to pre-suit notice under Section 770.01. 449 So. 2d at 419. The

Court held that the statute had no applicability to non-media defendants, recognizing that the

unambiguous language of the statutory condition precedent applies only to media defendants.

Id. at 420, citingRoss v. Gore, 48 So. 2d 412 (Fla. 1950).

To the extent Defendant in the instant action is attempting to argue that the 770.01 Notice

Provision applies to all defendants, both media and non-media, that proposition has been

expressly disapproved by Florida courts. See Davies, 449 So. 2d at 419 (holding that distinction

drawn by Ross v. Gore, 48 So. 2d 412 (Fla. 1950), is still applicable), disapproving Laney v.

Knight-Ridder Newspapers, Inc., 532 F. Supp. 910 (S.D. Fla. 1982); see also Bridges, 449 So. 2d

at 401 (rules of stare decisis do not require this court to follow federal court decisions that

construe Floridas substantive law).

The Florida Supreme Court has not yet decided whether the Section 770.01 Notice

Provision applies to the Internet, but even if it does, its protections would not extend to a private

citizen posting on the Internet when that citizen is not a member of the media. Every Florida

court that has considered the question has concluded that the presuit notice requirement applies

only to media defendants, not private individuals. Zelinka v. Americare Healthscan, Inc., 763

So. 2d 1173, 1175 (Fla. 4th DCA 2000) (holding that no precedent would allow this court to


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extend the statutory notice requirement to a private individual who merely posts a message

on [an Internet message] board.) (emphasis added); see also Mancini v. Personalized Air

Conditioning & Heating, Inc., 702 So. 2d 1376, 1380 (Fla. 4th

DCA 1997) (clarifying that the

770.01 notice provision does not apply to non-media defendants, including private citizens who

make defamatory statements on a citizens band radio). Although Defendant relies heavily on

Mancini in his prior arguments and his Motion, the Fourth District Court of Appeals makes it

abundantly clear in Mancini that it is not extending the protections of Section 770.01 to non-

media defendants:

Our interpretation of the scope of section 770.01 does not conflict with the seriesof cases holding the statute does not apply to non-media defendants.

Mancini, 702 So. 2d at 1380 (emphasis added), citing Davies;Bridges; Gifford.

In the present case, Defendant, Matthew Frederick VanVoorhis, is clearly not a member

of the media entitled to the protections of Section 770.01. Defendant is a college graduate

student who does not have a degree in, nor does he currently study, journalism. By his own

admission, Defendant did not consider his writing as journalistic in nature; and instead,

Defendant describes himself as nothing more than a social commentator. (Defendants

Deposition, page 132, lines 7-19.) He does not earn a living by posting blog entries on the

Internet, nor has he ever been paid to do so. Defendant seems to simply write about things that

interest him, while conducting no investigation, no interviews, little or no research, and adhering

to no standards of journalistic ethics or integrity. He publishes his missives from his computer at

his apartment (or possibly the graduate student office at his school) and, most importantly, does

so anonymously. Unlike The New York Times or Fox News, Defendant could not easily be

contacted regarding his writings and the mistakes they contained. Rather, he hid behind a cloak


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of anonymity up to and including the point where the local authorities contacted him regarding

the death threats posted below his blog entries:

Q: So at this point were you praising the fact that WordPress wouldn't divulge your

real name?

A. I was praising the fact that they respected my right to anonymity.

Q. And you thought at the time you wrote this Barbarian Hillbilly that you had the

right to remain anonymous?

A. Yes.


After Id given my name, the only thing Comins has to do was purchase a copy of the

incident report. This is the kind of clever thinking thats required by law firms

representing rich clients who wish to undermine their critics rights to anonymity. Just

like that, my anonymity was gone.

(Quote from Defendant found in Exhibit 6 to Defendants deposition).

I wanted to dissuade them from doing that by bringing up the fact that I was an

anonymous person and they found out who I was, so dont assume that just because

youre anonymous you can write whatever you want about him and not get found.


Under no circumstances have Florida courts extended the protections of Section 770.01

to a defendant such as this, and this Court would have no basis to extend those protections here.

C. Public Policy does not favor application of 770.01 Notice Provision to this Defendant

The purpose for distinguishing between media and non-media defendants in Section

770.01, Florida Statutes, was to protect the public interest in the free dissemination of the news,

given the reasonable likelihood of occasional error as a result of the tremendous pressure to

deliver the information quickly. Davies, 449 So. 2d at 420, citing Ross, 48 So. 2d at 414. Here,


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Defendant Matthew VanVoorhis, writing from his apartment under various pseudonyms, was

under no pressure whatsoever to deliver any information at all, much less to deliver it quickly.

There was therefore absolutely no excuse, nor public need, for him to blast misinformation all

over the world wide web. The rationale behind notice statutes throughout the country provides

that the more time a defendant has to ascertain the truth of his accusations before publishing

them, the less deserving he is of notice and an opportunity for retraction. See Alioto v. Cowles

Communications, Inc., 519 F.2d 777 (9th

Cir. 1975); see also Field Research Corp. v. Superior

Court, 453 P.2d 747 (Cal. 1969) (statute requiring notice to libel defendants does not apply to

non-media defendants who are not under the time pressures imposed by publication or broadcast

deadlines). In conclusion, not only does Defendant not qualify as a media defendant entitled to

protection from the 770.01 Notice Provision, but the public policy behind such notice statutes

simply does not apply to Defendant or his behavior. This is particularly true since Defendant

was intentionally making every effort to keep his identity concealed, rather than stepping

forward as a member of the media, accountable for the dissemination of his information.

D. Even if Defendant Were Entitled to Pre-Suit Notice, Defendant Waived that Right

by Virtue of his Efforts to Remain Anonymous and Avoid Contact or Detection

Defendant in the above-captioned matter is a non-media defendant and therefore was not

entitled to pre-suit notice under Chapter 770. However, even if this Court determines Defendant

was a media defendant entitled to notice under the statute, Defendant waived any rights to that

notice and excused Plaintiffs performance by virtue of his efforts to remain anonymous and

evade detection from both Plaintiff and local authorities. Plaintiff made numerous efforts to

contact Defendant prior to filing suit, despite the fact that Plaintiff published his defamatory

statements anonymously under various pseudonyms. (See various pre-suit letters to WordPress,


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the University of Florida and M. Frederick Voorhees, attached as Composite Exhibit F and

incorporated by reference). Plaintiff served written notice on Defendant care of the University

of Florida on March 23, 2009, identifying the blog site Hillbilly Barbarian and requesting that

Defendant delete the blog site. Plaintiff served the written notice and made numerous attempts

to locate and contact Defendant prior to filing suit despite the fact that Defendant published his

blog entries under an alias on a website that he neither owned nor hosted, thereby waiving or

excusing any pre-suit notice requirements to the extent there were any. Additionally, Plaintiff

communicated in writing and by telephone on numerous occasions with the University of Florida

Police Department prior to filing suit in an attempt to identify and contact Defendant, because

Defendant was publishing from a server at the university and was apparently a student there.

Through the University Police Department, Plaintiff requested that Defendant completely

remove the blog entries and at the very least remove death threats and personal information

posted in response to the blog. Without releasing Defendants real name and contact information

to Plaintiff, the University Police Department communicated to Plaintiff that it had contacted

Defendant, and that Defendant agreed only to remove Plaintiffs personal information on the

blog site (such as his address) and death threats made by other posters. Plaintiff also sent written

notice to WordPress, the blog host, advising it that an individual posting under an alias had

published defamatory articles that were inciting violent threats and requesting they be removed.

Finally, Plaintiffs counsel called Defendant in a final attempt to communicate with him directly

regarding the defamatory articles prior to filing a lawsuit. Subsequent to the suit being filed, the

parties engaged in written and verbal communications regarding the foregoing in an effort to

amicably resolve the dispute and provide Defendant with further opportunities to mitigate the

damages.


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Even when confronted by local authorities regarding death threats posted in response to

his blog entries, Defendant continued to try to remain anonymous. (Defendants Deposition,

page 298, line 9-page 300, line 14). When Defendants blog alias was finally compromised,

he deleted several blog entries out of fear of detection, and presumably out of a newfound

respect for the potential consequences of his actions. Nonetheless, an anonymous blogger has

never been afforded the same protections under the 770.01 Notice Provision as traditional

members of the media, such as newspapers, periodicals, television or radio. These media

institutions are afforded statutory protections for public policy reasons, discussed above, and

should notice of a potential defamation action become necessary, a prospective plaintiff would

not have to play a month-long shell game to determine where or to whom to send the notice.

Consequently, if Defendant were the type of defendant entitled to Section 770.01 notice, he

waived his rights and excused Plaintiffs performance by virtue of his actions.

E. The Entire Barbarian Hillbilly Blog Entry is Defamatory by Implication underJewsfor Jesus

The entire Barbarian Hillbilly Blog Entry of June 6, 2008, is defamatory under a theory

of defamation by implication. This theory is actionable under Florida law and derives from

the former cause of action for false light invasion of privacy. The Florida Supreme Court

describes this theory and its applicability in detail in Jews for Jesus, Inc. v. Rapp, 997 So. 2d

1098, 1106 (Fla. 2008). This cause of action recognizes that literally true statements can be

defamatory where they create a false impression. Defamation by implication can arise not from

what is stated, but from what is implied when a defendant juxtaposes a series of facts so as to

imply a defamatory connection between them, or creates a defamatory implication by omitting

facts. Id. The defamatory language must not only be reasonably read to impart the false


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innuendo, but it must also affirmatively suggest that the author intends or endorses the inference.

Id. Defamation by implication is premised not on direct statements but on false suggestions,

impressions and implications arising from otherwise truthful statements. Id. In this sense,

defamation can arise where a statement of opinion reasonably implies false and defamatory

facts. Id. Because of the defamatory implication of the entire Barbarian Hillbilly Blog Entry, it

would have been futile to attempt to edit the article, particularly when much of the defamatory

implication arises from crucial facts omitted or sets of facts juxtaposed to imply a defamatory

connection between them.

F. Defendants Specific Defamatory Statements are Neither Opinion Nor RhetoricalHyperboleDefamatory Statements Made By Defendant

From Defendants June 6, 2008 article, Christopher Comins: Barbarian Hillbilly Dog-

Assassin (w/ Friends in High Places)

Defendants Statement: Comins apparently just drives around with his gun waiting for

excuses.

Facts: Record evidence shows that the property owner and the cattle owner asked Plaintiff to

shoot the dogs while he was at the pasture. After being asked to shoot the dogs, Comins had togo to his home to retrieve a firearm because he did not have one in his car. (Defendants

Deposition, Plaintiffs Deposition, the Incident Report, testimony and statements of Laura

Retherford and other witnesses).

Defendants Statement: . . . when what appeared to be two wolves playing with a herd of

cattle.

Facts: Wolves do not play with cattle. Neither do aggressive or predatory breeds of dogs.3

However, Defendant is intentionally trying to depict a pastoral scene unreasonably and violently

destroyed by Plaintiff. The record evidence shows the entire ordeal lasted at least three and a

half hours, and during that time multiple calls were placed through 911 to the sheriffs office and

animal control. Witnesses described the dogs as exhibiting tandem hunting tactics in an attemptto separate a calf from the herd. Witnesses also made pleas to the nearby fire station, but no one

3According to the American Kennel Club, predatory instincts in Siberian Huskies are strong. They are swift,

cunning and patient in their hunting skills. Siberian Huskies have a strong prey drive and thus have a tendency to

be aggressive to other animals. Through cooperative hunting, dogs such as huskies are able to capture and kill

larger prey.


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responded. Several callers described the dogs as wolves and multiple witnesses reported that

the dogs were attacking the cattle. (Defendants Deposition, Plaintiffs Deposition, the

Incident Report, testimony and statements of Laura Retherford and other witnesses).

Defendants Statement: . . . none of [the witnesses] saw the wolves threaten the livestock in

any way.Facts: This is without question the most egregious and easily disprovable lie in the first blog

entry, and potentially the most damaging. Whatever Defendants ultimate motivation, this

blatant misstatement of fact furthers his agenda of portraying Plaintiff as a renegade acting alone

and without justification. The truth is that multiple witnesses reported that the dogs were

attacking the cows and that they thought the cows were in danger, as evidenced by the numerous

calls placed through 911 to the sheriffs office and animal control. (Defendants Deposition,

Plaintiffs Deposition, the Incident Report, testimony and statements of Laura Retherford and

other witnesses).

Defendants Statement: He looks up at the devastated man [the dog owner] running toward

him. Those are my dogs! Please dont shoot my dogs! the man cries. Comins is unmoved,looks back at the dogs, takes time to steady his hand, knowing hell only get a few more chances

to hit and kill this mans dogs. (This statement is followed by five more POPs in the text of

the article, indicating five more shots were fired after this event).

Facts: Comins neither saw nor heard the dog owner before the final shot was fired, much less

before firing five more shots. Defendants misstatements of fact regarding this crucial timeline

unfairly depict Plaintiff in a negative light. Defendant recklessly disregarded the truthful

sequence of events in order to portray Plaintiff as a heartless killer who enjoyed shooting

Butlers dogs even after he learned they were his pets. (Defendants Deposition, Plaintiffs

Deposition, the Incident Report, testimony and statements of Laura Retherford and other

witnesses).

Defendants Statements: One of Comins shots (audible at 0:41) whizzes by the crowd.

Carelessly, he points his barrel directly at the human bystanders. . . . another stray bullet

zooms past the pedestrians (audible at 0:47).

Facts: No record evidence indicates any shots were fired at or near the crowd during the

incident. These are actionable statements of fact by Defendant, depicting Plaintiff as recklessly

endangering the lives of human beings, a criminal act for which Plaintiff was neither charged nor

convicted. (Defendants Deposition, Plaintiffs Deposition, the Incident Report, testimony and

statements of Laura Retherford and other witnesses).

From Defendants Internet message board posts below his own article, Christopher

Comins: Barbarian Hillbilly Dog-Assassin (w/ Friends in High Places)

Defendants Statement: Christopher Comins has shown multiple times now that he is a

dangerous, abusive individual, and a huge proponent of unprovoked violence and cruelty to

animals. (Post dated June 9, 2008).

Facts: This is a blatantly defamatory statement by Defendant, not even remotely based in fact

according to Defendants own admissions in his deposition. No record evidence exists showing


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Plaintiff is a huge proponent of unprovoked violence and cruelty to animals. (Defendants

Deposition, Plaintiffs Deposition).

Defendants Statements: It is BECAUSE of them that Comins is in a position to ruthlessly

open fire in a crowd and face NO retribution. (Post dated June 14, 2008). WHY DID

CHRISTOPHER COMINS POINT A FIREARM INTO A FIELD OF PEDESTRIANS ANDPULL THE TRIGGER??? (Post dated November 2, 2008). Why did Christopher Comins fire

a gun into the crowd of PEOPLE? (Post dated November 9, 2008).

Facts: No record evidence indicates any shots were fired at or near the crowd during the

incident. These are actionable statements of fact by Defendant, depicting Plaintiff as recklessly

endangering the lives of human beings, a criminal act for which Plaintiff was neither charged nor

convicted. (Defendants Deposition, Plaintiffs Deposition, the Incident Report).

Defendants Statement: And just an FYI to the individual who seems eager to start a Chris

Comins Fan Club in celebration dog-shooting & child abusing . . . (Post dated July 31, 2008).

Facts: Plaintiff has never been convicted, charged or accused of child abuse. This statement by

Defendant constitutes defamation per se, and Defendant admitted in his deposition he had noreasonable basis for making it. (See, e.g., Defendants Deposition, page 237, line 16-page 240,

line 5; page 295, lines 8-23; Plaintiffs Deposition).

Defendants Statements: You wanted to shoot the dogs. (Post dated October 28, 2008). . . .

why did you turn and fire the last shot when you knew they were someones domestic pets . . .

(Post dated October 28, 2008). It looked like it would be fun to shoot something, you thought

you had a valid excuse. (Post dated October 28, 2008). Did Comins know that the dogs were

domestic pets, and not wolves, when he fired at them? And the answer is resoundingly YES,

when he fired the final few shots . . . (Post dated November 2, 2008). Then why did he keep

firing at the pets even after Butler yelled Please stop shooting my dogs? (Post dated

November 2, 2008). Why did Chris Comins continue shooting at the dogs even AFTER Mr.Butler had informed him they were domestic pets? (Post dated November 9, 2008).

Facts: Comins neither saw nor heard the dog owner before the final shot was fired, much less

before firing five more shots. Defendants misstatements of fact regarding this crucial timeline

unfairly depict Plaintiff in a negative light. Defendant recklessly disregarded the truthful

sequence of events in order to portray Plaintiff as a heartless killer who enjoyed shooting

Butlers dogs even after he learned they were his pets. (Defendants Deposition, Plaintiffs

Deposition, the Incident Report, testimony and statements of Laura Retherford and other

witnesses).

From Defendants August 17, 2008 article, Christopher Comins Husky-Shooter Update:

Chris Comins May Face Charges

Defendants Statement: The predator Chris Comins has a prior record of violence, the

improper exhibition of a firearm . . .

Facts: Comins does not have a record of violence. Comins pled no contest to improper

exhibition of a firearm, a non-violent misdemeanor. (Defendants Deposition, page 295, lines 8-

23, Plaintiffs Deposition).


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Defendants Statement: But he also has very deep pockets, and knows important people.

Usually thats sufficient when mean people do bad things and want to get away with them.

Facts: Defendants statement is clearly defamatory in that it implies some improper influence by

Plaintiff allowing him to behave badly without retribution. The record evidence in this case

indicates Defendants claim is patently false. (Defendants Deposition, page 191, lines 5-15;Plaintiffs Deposition).

G. Plaintiff is Not a Public Figure, But Even If He Were, Defendant Has Acted with

Actual Malice by Showing a Reckless Disregard for the Truth

Defendant claims that Plaintiff is a public figure, and therefore, Defendants statements

must meet the actual malice standard to constitute defamation. If Plaintiff is deemed to be a

public figure, he must prove Defendants statements were made with actual malice meaning,

either knowledge that the statements were false or a reckless disregard for the truth. N.Y. Times

Co. v. Sullivan, 376 U.S. 254 (1964).

Plaintiff denies that he is a public figure or was involved in a public controversy.

However, even if this Court were to determine that this matter was a public controversy, and

Plaintiff was a public figure, Defendants conduct, as outlined in the preceding sections, easily

satisfies the standard of actual malice. In many cases, Defendant demonstrated that he wrote

things that he knew were not true, and in all cases he acted with a reckless disregard for the truth.

Defendant admitted throughout his deposition to cherry-picking items that he felt suited his

agenda of painting the worst picture possible of Plaintiff in the interest of directing readers to the

You Tube video and sparking enough public outcry to influence local authorities to bring

charges against Plaintiff. (Defendants Deposition, page 205, line 13-page 208, line 14).

Defendants own testimony makes it quite apparent that truth was of little consequence in his

quest to raise social awareness of an event he knew little about. (Defendants Deposition,


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page 205, line 13-page 208, line 14). Therefore, should Plaintiff be required to prove actual

malice at the trial of this matter, sufficient record evidence exists to satisfy that standard.

H. Record Evidence of Tortious Interference Exists in Defendants Own Writings

In Defendants article, Christopher Comins: Barbarian Hillbilly Dog-Assassin (w/

Friends in High Places), two paragraphs before the section entitled Raley, Defendant makes

the following statement: Chris Comins owns Custom Fab, which builds special steel-pipe

products for Walt Disney World and NASA.

Further, in a June 9, 2008 post in the responses to his article, Defendant makes the

following statements: People are sending the video to his business partners and Disney &

NASA (both of whom he does work for).

Also from Defendants June 9 post: To my knowledge, most of Comins clients are

corporations, rather than individual customers. The most effective way to achieve justice is to

spread the word to as many people as possible that this man is affiliated with Disney, and to

boycott not only Walt Disney World but also Disneys affiliates such as ABC, ESPN, Miramax

Films, Touchstone Pictures, Pixar, etc. Christopher Comins has shown multiple times now that

he is a dangerous, abusive individual, and a huge proponent of unprovoked violence and cruelty

to animals. A family-friendly corporation like Disney cant afford to be associated with

someone like that. It wont take long for them to realize the only morally acceptable course of

action is for them to cut all business ties to Comins immediately.

Finally, Defendant admits the following in his deposition:

Q: Was it ever a goal of yours to have people boycott Mr. Comins business?

A: I suppose you could put it that way.

(Defendants Deposition, page 216, lines 14-16; see also Defendants Deposition, page 232,


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lines 1-6, wherein Defendant agrees with another poster who says Lets destroy his business).

Based upon the foregoing record evidence, a genuine issue of material fact exists as to whether

Defendant tortiously interfered with Plaintiff and his business.

WHEREFORE, Plaintiff, CHRISTOPHER M. COMINS, respectfully requests that this

Court deny Defendants Motion for Summary Judgment in its entirety, and grant such other and

further relief as it deems just and proper.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that this document has been electronically filed with the Court

using the Clerks ECF system, which will automatically notify Paul S. Jones, Esq. and Douglas

Petro, Esq., Luks Santaniello, 255 S. Orange Avenue, Suite 750, Orlando, FL 32801; and Marc J.

Randazza, Esq., Marc J. Randazza, P.A., 2 S. Biscayne Blvd., Ste. 2600, Miami, Florida 33131-

1819; on this 7th day of June, 2011.

KILLGORE, PEARLMAN, STAMP,

ORNSTEIN & SQUIRES, P.A.

2 South Orange Avenue, 5th

FloorP. O. Box 1913

Orlando, FL 32802-1913

Telephone: (407) 425-1020

Facsimile: (407) 839-3635

Attorneys for Plaintiff

/s/ Christopher M. Harne

Frank H. Killgore, Jr.

Florida Bar No. 372420

[email protected]

Christopher M. HarneFlorida Bar No. 0800791

[email protected]
mailto:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]


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APPENDIX A NON-PARTY THREATS TO PLAINTIFF

The response section to Defendants blog entry, Christopher Comins: Barbarian

Hillbilly Dog-Assassin (w/ Friends in High Places), contains multiple threats of violence

or posts encouraging others to inflict harm on Plaintiff, including but not limited to:

June 9, 2008 by dave: Yo Chris, I got your name and address now! And I am a much

better shot than you fuckface! I am coming for you!

June 9, 2008 by dave: someone kill his cattleburger time!!

June 12, 2008 by Anonymous: With that many people around you think somebody

would have kicked his ass. Motherfucker.

July 12, 2008 by EC&TC: TO: C. Comins Do you have a wife? Do you have a son?

(wait yeah you doyou pulled a gun on him like 3 years ago) Do you have a nice

house? Do you have a nice car? Well dont get used to it a**hole!!! I am personallygoing to make sure that your life is hell for the rest of your life!!!! You WILL be hearing

from me.

August 3, 2008 by grkmuse77: . . . may your house burn, may your businesses kollapse

and may everyone/thing you love leave you and may you turn that gun of yours on

yourself and pull the trigger. That is what I wish for you with all of my being.

September 23, 2008 by michelle: I just want everyone to know that the jackhole that

committed this crime is the owner of Custom Fab. In Orlando. I hope that everyone will

boycot this business. Christopher Comins email is ___. His office number is ___ ext.

___. (Actual information visible on blog site is omitted from Answer).

September 23, 2008 by CL: I believe in the eye for an eye theorysounds like Mr.

Christopher Comins could use a good a** kicking.

September 24, 2008 by rob: Why didnt the people there beat the living shit out of that

guy after he put his gun away?

September 30, 2008 by Thunderhead: Christopher Comins Custom Fab web site is back

up and running. http://www.___.com. (Actual information visible on blog site is

omitted from Answer).

March 3, 2009 by Timothy: It is time this asshole gets what is coming to him. Those

who are around him, go find him. His addres is Christopher Comins, ___, ___ FL. There

is also another one but 4 years earlier. Christopher Comins, ___, ___, FL. Find the

bastard, get him, kill him if you choose. Punish this shithead. (Actual information

visible on blog site is omitted from Answer).
http://www.___.com/http://www.___.com/


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March 16, 2009 by summer: I JUST HAVE TO KILL THIS MAN

The response section to Defendants article, Christopher Comins Husky-Shooter

Update: Chris Comins May Face Charges, contains the following post:

March 3, 2009 by Timothy: Find him here at this address, Christopher Comins, ___, ___FL. There is also another one but 4 years earlier. Christopher Comins, ___, ___, FL. If

you choose to, do whatever makes you satisfied. He deserves whatever people choose to

get him. (Actual information visible on blog site is omitted from Answer).

Documents

Comins v. Van Voorhis Response in Opposition to MSJ