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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.
(Defendants Deposition, page 305, lines 5-12).
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.
(Defendants Deposition, page 299, lines 20-24).
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
Christopher M. HarneFlorida Bar No. 0800791
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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).
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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).