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Higgins v. Kentucky Sports Radio LLC

United States District Court, D. Nebraska

January 5, 2018

JOHN M. HIGGINS; CAROL HIGGINS; and WEATHERGUARD, INC., Plaintiffs,
v.
KENTUCKY SPORTS RADIO LLC; MATTHEW H. JONES; and DREW FRANKLIN, Defendants.

          MEMORANDUM AND ORDER

          ROBERT F. ROSSITER, JR. UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on defendants Kentucky Sports Radio LLC (“KSR”), Matthew H. Jones (“Jones”), and Drew Franklin's (“Franklin” and collectively, “defendants”) joint Motion to Dismiss for Lack of Personal Jurisdiction or, Alternatively, Motion to Transfer Venue (Filing No. 13). See Fed. R. Civ. P. 12(b)(2); 28 U.S.C. § 1404(a). For the reasons stated below, the Motion is granted in part and denied in part, and the case is transferred to the Eastern District of Kentucky.

         I. BACKGROUND[1]

         A. The Parties

         John Higgins (“Higgins”) is a well-known basketball referee who has worked in National Collegiate Athletic Association (“NCAA”) men's basketball games since 1988. Higgins is married to Carol Higgins (“Mrs. Higgins”). In 2016, Sports Illustrated Magazine published a profile of Higgins and described him as “one of the nation's most visible, wanted-and loathed-basketball referees.” The article also mentioned Higgins owned a roofing company known as Weatherguard, Inc. (“Weatherguard”).[2]

         KSR broadcasts a two-hour radio show (“show”) to more than forty radio stations in Kentucky. The show is also available online through streaming platforms and as a podcast. KSR maintains the website Kentuckysportsradio.com (“Website”). Jones hosts the show and maintains a blog on the Website. Franklin is also a frequent contributor to the Website.

         On March 26, 2017, Higgins officiated an NCAA basketball game between the University of Kentucky Wildcats and the University of North Carolina Tar Heels (“the game”). Kentucky lost the game on a last-second shot. After the game, many Wildcat fans began blaming the loss on the officiating.

         B. Reaction to the Game

         On March 27, 2017, an unknown individual created a short video titled “John Higgins [sic] Sabotage of Kentucky” (“the video”) and uploaded it to the video-sharing website vimeo.com. The video showed footage of the game with Kentucky announcers discussing the officiating and ended with a photo of Higgins next to a Weatherguard truck. Written alongside the photo were Weatherguard's business phone number and website, Higgins's home phone number, and the message “Write a review of him here http:/www.facebook.com/rooferees.” A link to the video was then posted on several fan websites.

         Also on March 27, 2017, Jones frequently discussed Higgins's performance in the game on the show. Jones read emails from listeners, including one that stated, “I'm thinking of leaving a bad review on John Higgins' roofing Yelp page.” Jones noted that people had been posting Higgins's business card online, but said he thought this was a bad thing to do because it would be harassment. However, later in the show, Jones read an email that stated, “I was against trolling John Higgins. Then I went and saw the name of his roofing company.” In response to this email, Jones laughed at the name of the roofing company, “Rooferees.com, ” and said, “Now I still don't think you should troll the guy, but now I have less sympathy if his name is Rooferees.”

         The same day, KSR published several articles on its Website, including one written by Franklin titled, “No more John Higgins please.” One reader posted a link to the video in the comments section of Franklin's article. Another reader commented, “http://www.rooferees.com/about-us/ Can we get a gofundme to put this guy on blast in Omaha?!?” Still another commenter stated, “I put a link to this post on his website. http://www.rooferees.com.”

         The next day, March 28, 2017, Franklin posted an article to the Website stating, in part, “John Higgin's [sic] business is getting CRUSHED on its Facebook page. I won't link the page because I don't completely agree with attacking his side hustle, but, man, Big Blue Nation is destroying Higgins in the comments and reviews of the business.” Franklin stated, “If you can stand to watch it, here you go” and linked to the video. Franklin's second post of the day stated, “It's a busy day on KSR as Matt and Ryan . . . continue the hatred for John Higgins. They'll have that and more on two hours of Tuesday morning KSR. Join in on the fun by calling [the KSR call in number] (502) 571-1080.”

         Moments later, Franklin posted a third article titled “Kentucky fans are really lighting up John Higgins' roofing business.” Franklin said, “We . . . do not condone the activity from Big Blue Nation on John Higgins' roofing company's Facebook page. But . . . we can and we will read the activity on the Facebook page.” Franklin then quoted some of the Facebook entries ranging from mildly witty to downright nasty. He finished by saying, “Okay, but seriously, Big Blue Nation: maybe stop doing this. It's not a good look for us, especially the handful of comments wishing death. Let's chill just a little bit. You can make fun of him all you want here, and we will.” Franklin's fourth article of the day was entitled, “Call John Higgins' business and you get the FBI (or someone pretending to be the FBI).”

         Also on March 28, 2017, Jones began his show by discussing Weatherguard's Facebook page. Jones averred he did not “advocate” the postings, but “it doesn't mean it's not funny.” Jones claimed the postings were “not prompted by me” and “you cannot blame this on KSR. . . . Well, maybe you can because I told you he was a roofer.” After stating the name of the Facebook page was “Rooferees, ” Jones read several of the comments while laughing at some of them. Jones said, “I give them credit. How many of those would like to potentially write for KSR?” He added, “I think fans feel like this is the only way they can express their frustration, ” and that the comments were a “bad idea, . . . but it is funny.”

         After a commercial break, Jones declared, “I can't stop reading these John Higgins reviews, ” and, “It looks like ten of them are five stars, and all the rest of them are one star.” He read several more reviews, laughing at some of them. Jones believed that “it's human nature” to make the postings and added that the fans “are so upset about this game and they don't know another way to express it to him because they don't have a method to express” their outrage and the Facebook comments allowed them to do it. Jones thought that Higgins “opens himself up” to the comments by linking his status as a referee to his roofing company by naming the Facebook page “Rooferees.” Jones told his audience that some fans had called and tweeted saying they had called Weatherguard, but Jones, after noting, “It is funny, ” advised them not to call. Jones closed the show by speculating on whether Higgins was gambling on the game and purposely threw the game to North Carolina.

         C. Damages Suffered by Weatherguard and the Higgins Family

         In the two days after the game, Higgins reports Weatherguard received over 3, 000 phone calls, seventy-five percent of which originated from Kentucky area codes. The many calls crashed Weatherguard's electronic voicemail system. The calls, which continued non-stop for up to two weeks, kept Weatherguard customers and potential customers from reaching the business, allegedly resulting in a loss of income. Weatherguard's Google star rating, [3] originally the highest in Omaha for a roofing company, plummeted from 4.8 out of 5 to 1.2 out of 5. Eighty one-star ratings in a twenty-four hour period came from Kentucky. In total, Higgins identified 181 false reviews. Because Google business searches are impacted by the star rating, these bogus reviews affected potential customers' ability to locate Weatherguard.

         Some individuals filed false reports against Weatherguard at the Better Business Bureau. Their status as fans of Kentucky basketball is evidenced by some of the fake names that were used, such as the names of Kentucky basketball coaches. Weatherguard's Facebook page received over 700 false posts, and Weatherguard was forced to take the page down. This removed a significant part of Weatherguard's advertising and a major way in which new customers typically found Weatherguard's contact information.

         Mrs. Higgins then began receiving messages on her Facebook Messenger account from unknown individuals relating to ...


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