United States District Court, D. South Carolina, Beaufort Division
MARTIN L. KENT, Plaintiff,
KEVIN N. HENNELLY, Defendant.
C. NORTON UNITED STATES DISTRICT JUDGE
following matter is before the court on defendant Kevin N.
Hennelly's (“Hennelly”) motion to stay and
award fees, ECF No. 9, and motion to dismiss, ECF No. 18. For
the reasons set forth below, the court denies the motion to
stay and to award attorney's fees and grants in part and
denies in part the motion to dismiss. In addition, the court
orders counsel for plaintiff Martin L. Kent
(“Kent”) to show cause as to why the original
filing of Kent's complaint does not violate Rule 11(b)
within 30 days of this order.
matter arises from an action of alleged defamation and false
light invasion of privacy brought by Kent against Hennelly.
The court draws these allegations from Kent's amended
complaint, the operative complaint in this action. Kent is
the president and CEO of The United Company, which is the
parent company of Scratch Golf, LLC. Hennelly lives in
Beaufort County, South Carolina. Scratch Golf owns the Hilton
Head National Golf Course (the “Property”) in
Beaufort County, South Carolina. In July 2016, Scratch Golf
submitted an application to Beaufort County to amend the
rezoning of the Property (“Rezoning
Application”). On May 22, 2017, the Beaufort County
Council denied the Rezoning Application.
alleges that Hennelly made a post on Facebook and a comment
on the website of the Island Packet, a local newspaper, that
contained various defamatory statements about him, in an
effort to imply that Kent is corrupt or may have committed
crimes. Kent attached images of those statements to his
amended complaint, but he only references the allegedly
defamatory portions in his amended complaint. Those posts and
their statements are below.
May 14, 2017 comment on the online version of a May 12
article from The Island Packet newspaper (“Island
Packet Article”), ECF No. 22-1, “Hilton Head
National developers: Why golf lost its swing there
and what the future holds” (“Island Packet
Statement: It looks like they left out a few pertinent facts.
The most glaring is the corrupt people involved. This guy
Kent was Chief of Staff to the corrupt Governor of Virginia.
He has never built a swing set never mind a 300m dollar
City!!! James Woodrow McGlothlin gave the corrupt Governor
McDonald of Virginia wife a “no show” job. The
McDonalds never reported income, $36, 000. These guys . . .
will break every rule in the book to get a government favor
Portion of May 23, 2017 post by Kent on his own Facebook
Page, ECF No. 22-2 (“May 23 Facebook Post”)
Statement: The Island Packet gets an “incomplete”
grade on their coverage of the issue. For some reason they
refused to print the documented corruption of the owners of
the United Company. Martin Kent and James McGlothlin were up
to their eyeballs in the recent scandals in Virginia with the
Governor and his wife.
result of these comments, Kent filed suit against Hennelly on
May 10, 2019 bringing causes of action for defamation per se,
defamation per quod, and false light invasion of privacy.
Kent seeks both damages and injunctive relief.
first filed a motion to stay and award fees on June 4, 2019.
ECF No. 9. Kent responded on July 5, 2019, ECF No. 19, and
Hennelly replied on July 12, 2019. ECF No. 21. Then Hennelly
filed a motion to dismiss on July 3, 2019. ECF No. 18. Kent
filed an amended complaint on July 14, 2019, ECF No. 22, and
responded to the motion to dismiss on July 16, 2019, ECF No.
23. Hennelly replied on July 22, 2019. ECF No. 24. The court
held a hearing on the motions on September 30,
2019. Both motions are now ripe for review.
Motion to Stay and Award Fees
Federal Rule of Civil Procedure 41(d), “[i]f a
plaintiff who previously dismissed an action in any court
files an action based on or including the same claim against
the same defendant, the court: (1) may order the plaintiff to
pay all or part of the costs of that previous action; and (2)
may stay the proceedings until the plaintiff has
Motion to Dismiss
12(b)(6) motion for failure to state a claim upon which
relief can be granted “challenges the legal sufficiency
of a complaint.” Francis v. Giacomelli, 588
F.3d 186, 192 (4th Cir. 2009) (citations omitted); see
also Republican Party of N.C. v. Martin, 980 F.2d 943,
952 (4th Cir. 1992) (“A motion to dismiss under Rule
12(b)(6) . . . does not resolve contests surrounding the
facts, the merits of a claim, or the applicability of
defenses.”). To be legally sufficient, a pleading must
contain a “short and plain statement of the claim
showing that the pleader is entitled to relief.”
Fed.R.Civ.P. 8(a)(2). A Rule 12(b)(6) motion should not be
granted unless it appears certain that the plaintiff can
prove no set of facts that would support his claim and would
entitle him to relief. Mylan Labs., Inc. v. Matkari,
7 F.3d 1130, 1134 (4th Cir. 1993). When considering a Rule
12(b)(6) motion, the court should accept all well-pleaded
allegations as true and should view the complaint in a light
most favorable to the plaintiff. Ostrzenski v.
Seigel, 177 F.3d 245, 251 (4th Cir.1999); Mylan
Labs., Inc., 7 F.3d at 1134. “To survive a motion
to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief
that is plausible on its face.'” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
“A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Id.
Motion to Stay and Award Fees
Hennelly's motion to stay, he argues that, pursuant to
Rule 41(d) of the Federal Rules of Civil Procedure, the court
should award Hennelly $9, 052 in attorney's fees and stay
this action until Kent pays the fees. Hennelly argues this is
warranted based on the history of the cases in which Hennelly
has been sued by Kent and James McGlothlin
(“McGlothlin”), who has made similar allegations
regarding Hennelly's online posts in another case before
this court, McGlothlin v. Hennelly, No. 18-cv-246
(“McGlothlin case”). Important to Hennelly's
argument is the fact that Kent and McGlothlin are represented
by the same attorney. The history of the litigation is as
follows. First, McGlothlin sued Hennelly in federal court in
the Middle District of Florida. As such, Hennelly had to hire
Florida counsel. That case was dismissed for lack of personal
jurisdiction, but the court gave McGlothlin two weeks to
amend his complaint to sufficiently allege the facts
necessary for the court to establish personal jurisdiction
over Hennelly. Instead, McGlothlin voluntarily dismissed the
Florida action and refiled it in this court, where personal
jurisdiction over Hennelly exists. As mentioned above, that
action is currently pending before this court.
first brought suit against Hennelly in federal court in the
Eastern District of Tennessee. Hennelly had to retain counsel
in Tennessee, and like the Florida action, the Tennessee
action was dismissed for lack of personal jurisdiction over
Hennelly. However, instead of immediately re-filing in South
Carolina like McGlothlin did, Kent instead appealed the
district court's order on personal jurisdiction to the
Sixth Circuit Court of Appeals. Throughout the appeal,
Hennelly's counsel suggested that Kent dismiss the appeal
and re-file in South Carolina, but Kent's counsel did not
do so. As such, Hennelly briefed the issues on appeal,
participated in mediation in good faith, and prepared for
oral argument that was scheduled for March 21, 2019. Then on
March 15, 2019, Kent's counsel sent Hennelly's
counsel an email indicating that Kent wanted to dismiss the
appeal. Hennelly's counsel objected due to the time and
resources that they had already spent on the appeal, but Kent
filed a motion to voluntarily dismiss the appeal, and the
Sixth Circuit granted it. On May 10, 2019, Kent filed this
action. Kent included allegations in his original complaint
that had already been found by this court to be unactionable
in the McGlothlin case.
argues that this behavior warrants an award of attorney's
fees for the litigation of the Tennessee case pursuant to
Rule 41(d). Under Rule 41(d), a defendant may obtain
attorney's fees from a plaintiff “[i]f a plaintiff
who previously dismissed an action in any court files an
action based on or including the same claim against the same
defendant.” The Fourth Circuit has established that
when a statute does not provide for attorney's fees,
“a district court may award attorneys' fees when
the opposing party has acted in bad faith, vexatiously,
wantonly, or for oppressive reasons.” Andrews v.
America's Living Ctrs., LLC, 827 F.3d 306, 311 (4th
Cir. 2016) (internal quotes omitted). The Fourth Circuit
relies on the Black's Law definition of vexatious, which
is “without reasonable or probable cause or
excuse.” Id. (citing Vexatious,
Black's Law Dictionary (7th ed. 1999)). There is
generally no vexation when there has been no discovery, no
substantial motion practice, and dismissal occurs shortly
after the case had been filed. Id. at 313. Most
courts that have found vexatious behavior have done so when a
plaintiff voluntarily dismisses his case in one court and
then refiles a virtually identical complaint in another
court. See Robinson v. Bank of Am., N.A., 553
Fed.Appx. 648, 652 (8th Cir. 2014) (holding that the district
court did not abuse its discretion by awarding attorney's
fees when the plaintiff dismissed his case in federal court
and brought the same action in state court); Kent v. Bank
of Am., N.A., 518 Fed.Appx. 514, 517 (8th Cir. 2013)
(holding that attorney's fees award under Rule 41(d) was
appropriate because the plaintiff dismissed his case and
immediately refiled it with only “incidental”
changes to the complaint).
acknowledges that the court denied a similar Rule 41(d)
motion in the McGlothlin case. In its order in the McGlothlin
case, the court explained that McGlothlin had a reasonable
basis to bring suit in Florida based on his personal
jurisdiction arguments about Hennelly's posts being on
the internet, and while a Florida court ultimately found him
to be incorrect, McGlothlin's actions did not amount to
bad faith. Hennelly argues that a different result here is
warranted because of (1) the additional fact of Kent appealed
the Tennessee district court's order and then
subsequently dismissed his Sixth Circuit appeal and (2)
Kent's filing of a complaint ...