Case 2:16-cv-02726-dkv Document 31 Filed 02/22/17 Page 1 of 11 PageID 362

THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TENNESSEE,
WESTERN DIVISION
____________________________________________________________________________

JERRY LEE LEWIS, JUDITH LEWIS, )

LORI LEWIS, and JERRY LEE LEWIS, III )
)
Plaintiffs, )
)
vs. ) Civil Action Number 2:16-cv-02726
) JURY DEMANDED
EZEKIEL LOFTIN )
)
Defendant. )
____________________________________________________________________________

DEFENDANT'S REPLY TO PLAINTIFFS' RESPONSE IN OPPOSITION

TO DEFENDANT'S MOTION TO DISMISS

COMES NOW Defendant, Ezekiel Loftin (Loftin), and files this his Reply to Plaintiffs'

Response in Opposition to Defendant's Motion to Dismiss (Plaintiffs Response) as follows:

I. PONT NEUF, INC. AND PHOEBE A. LEWIS

ARE NOT DEFENDANTS IN THIS CASE

In Plaintiffs' Response, the Plaintiffs rely upon a plethora of irrelevant facts and alleged

wrongdoing by Phoebe Lewis Loftin and/or Pont Neuf, Inc. which are wholly irrelevant to this

matter and which seek to distract the Court from the issue at hand.

This matter was filed by Plaintiffs on September 7, 2016, as a result of a single Facebook

post by Loftin on August 20, 2016. Despite the wealth of irrelevant facts which Plaintiffs

address in their Response, the Plaintiffs allegations against sole Defendant Loftin are for the

following: A) Count I, Libel; B) Count II, Intentional Infliction of Emotion Distress; C) Count

III, Negligent Infliction of Emotional Distress; D) Count IV, False Light; and, E) Count V,

Punitive Damages. These Counts arise from Loftins single Facebook post of August 20, 2016,

as set forth in Paragraph 23 of the Plaintiffs Complaint as follows:

 Case 2:16-cv-02726-dkv Document 31 Filed 02/22/17 Page 2 of 11 PageID 363

Upon information and belief, on or about August of 2016, Defendant continued to

post untrue and defamatory material concerning the Plaintiffs to his Facebook
account directed to the public at large as well as specific Facebook users.

(D.E.1, Complaint at 23).

The Plaintiffs proceed to quote in their Complaint various statements made by Loftin in

the August 20, 2016 post which they contend are defamatory, including those set forth at

Paragraphs 24, 25, 26, 27, 28 and 29. It is significant to note that although such statements are

broken into various paragraphs and are contended to have been made continuously, the only

statements of alleged libel pled in the Plaintiffs Complaint are those which were included in

Loftins sole post of August 20, 2016, and removed shortly thereafter. (D.E.1, Complaint at

24, 25, 26, 27, 28 and 29). The Plaintiffs further acknowledge that the single post of August 20,

2016 was made upon the personal Facebook page of Defendant Loftin. (D.E.1, Complaint at

17).

Phoebe Lewis Loftin is Loftins wife and also the daughter of Plaintiff Jerry Lee Lewis;

although, Plaintiffs reference her in their Response as a co-conspirator. At one time Ms.

Loftin was her fathers manager and, accordingly, President of Pont Neuf, Inc. As is obvious

from the pleadings, Phoebe Lewis Loftin, Pont Neuf, Inc. and/or Phoebe A. Lewis, as President

of Pont Neuf, Inc. are not defendants to this matter. There are no allegations in the Plaintiffs

Complaint regarding corporate malfeasance, misappropriation of funds and/or fraud on the part

of Phoebe A. Lewis individually or as President of Pont Neuf, Inc. In fact, to attempt to establish

a claim for corporate malfeasance or to use the Pont Neuf, Inc. account in an attempt to establish

general jurisdiction and/or some bizarre theory of defamatory conduct on the part of Loftin is,

quite frankly, outrageous. Not to mention, Plaintiffs subpoenas requesting documents related to

Pont Neuf, Inc. were improper as the Pont Neuf, Inc. account has nothing to do with the current

lawsuit or Loftin. Accordingly, the records of Pont Neuf, Inc. and Phoebe A. Lewis are the

2
 Case 2:16-cv-02726-dkv Document 31 Filed 02/22/17 Page 3 of 11 PageID 364

subject of a Motion for Protective Order and Memorandum of Law in Support thereof filed with

this Court on February 7, 2017.

Further, to the extent that Plaintiffs seek to assert a claim for corporate malfeasance

against Pont Neuf, Inc. and/or Phoebe A. Lewis personally and/or as President of Pont Neuf,

Inc., Plaintiffs allegations are arguably long barred by any applicable statute of limitations; must

be asserted against the proper parties in the proper forum; and, are wholly irrelevant to the matter

before this Court. Lastly, to the extent such claims are viable they would be governed by the

corporate documents relating to the operation of Pont Neuf, Inc., which have nothing whatsoever

to do with Defendant Loftin.

For these reasons, this Court should not consider any of the documents attached to

Plaintiffs Response as Exhibits F, G, H and I, and disregard all of Plaintiffs allegations set forth

in their Response as they relate to Pont Neuf, Inc., Phoebe A. Lewis individually and/or as

President of that entity and any alleged wrongdoing on the part of either. By way of further

argument, Defendant adopts and incorporates by reference herein its Motion to Stay Discovery

and for Protective Order, Memorandum of Law in Support of Motion to Stay Discovery and for

Protective Order and Proposed Order Granting Defendants Motion to Stay Discovery and for

Protective Order filed with this Court on February 7, 2017. 1

II. THIS COURT DOES NOT HAVE GENERAL JURISDICTION OVER LOFTIN

In their Complaint, Plaintiffs did not plead that this Court has general jurisdiction over

Loftin. In fact, Paragraph 10 of the Plaintiffs Complaint states as follows:

1
Interestingly, to the extent that at Page 2 Plaintiffs contend that Defendant and co-conspirators were engaged
in a massive and far-reaching scheme that defrauded Plaintiff Jerry Lee Lewis . . ., the Plaintiffs are
essentially alleging that Phoebe A. Lewis, as Plaintiff Jerry Lee Lewis daughter and manager for several years
defrauded her father of such funds. To the extent that Plaintiff Jerry Lee Lewis was unhappy with his
daughters management of Pont Neuf, Plaintiff Jerry Lee Lewis should have brought claims applicable during
the 2010-2012 time frame and named his own daughter specifically as a defendant. Plaintiffs attempts to
avoid identities and assert wrongdoing upon Loftin as a disliked son-in-law are disingenuous at best.

3
 Case 2:16-cv-02726-dkv Document 31 Filed 02/22/17 Page 4 of 11 PageID 365

10. Upon information and belief, this Court has specific personal jurisdiction
over Defendant based upon his tortious conduct in, and minimum contacts with
the State of Tennessee.

(D.E.1, Complaint at 10). Even if Plaintiffs had alleged general personal jurisdiction over

Loftin in their Complaint, such an allegation would fail.

First, any funds spent by Pont Neuf, Inc., Phoebe A. Lewis individually and/or Phoebe A.

Lewis as President of Pont Neuf, Inc. have no bearing on this lawsuit whatsoever and are not

relevant to Loftins contacts with Tennessee.

Second, to the extent that Plaintiffs allege that Loftin owns a historic home in Memphis,

Tennessee, no such proof of that ownership exists. The only evidence which Plaintiffs set forth

with regard to real estate interests of Loftin is property in Marshal County, Mississippi and

photographs of Loftins home in Lynchburg, Virginia. Further, no real estate holdings are

related to this suit; such holdings are unrelated to the state of Tennessee; and, the ownership of

real estate is not related in any way whatsoever to the alleged defamatory Social Media post.

Accordingly, the information provided by Plaintiffs in Collective Exhibit G should be

disregarded by the Court.

Third, Plaintiffs contend that via a cease and desist letter written to Loftin, such a letter

would advise Loftin that he was subject to jurisdiction in this forum. Plaintiffs arguments are

both invalid and are not sufficient to confer personal jurisdiction in this forum. The fact that

Plaintiffs counsel maintains an office in Millington, Tennessee is irrelevant to the issue of

specific personal jurisdiction. The referenced letter of August 18, 2015, which is in fact the only

letter sent to Loftin, does not state that suit will be filed in the Western District of Tennessee if

Loftin does not comply with counsels demands. Further, the retention of an attorney in any

specific state does not subject the Defendant to jurisdiction where that particular attorney is

located. Plaintiffs allegations that such a sole demand letter by a Millington attorney would

4
 Case 2:16-cv-02726-dkv Document 31 Filed 02/22/17 Page 5 of 11 PageID 366

confer jurisdiction over Loftin in the Western District of Tennessee is spurious. Accordingly, as

with Plaintiffs other exhibits and arguments, the letter of August 18, 2015 from Plaintiffs

counsel to Loftin should be disregarded as it relates to the issue of specific personal jurisdiction

over Loftin. (Plaintiffs Response, Exhibit D).

Fourth, Plaintiffs apparently look to personal facts set forth in Zeke Loftins LinkedIn

page in, again, a desperate attempt to assert general jurisdiction over Loftin. To the extent that

Loftins LinkedIn page references the Greater Memphis Area, Loftin notes that he created a

webpage for Jerry Lee Lewis at some unidentified time; that he restored Plaintiff Jerry Lee

Lewis 59 Harley at some unidentified time and/or location; and, that Loftin is the son-in-law

of Plaintiff Jerry Lee Lewis. (Plaintiffs Response, Exhibit A). None of these facts are pertinent

to an assertion of general jurisdiction over Loftin and, certainly not one of specific personal

jurisdiction in this defamation case. Nor do these facts establish an agency relationship between

Plaintiff Jerry Lee Lewis and Loftin as Plaintiffs contend.

Further, as averred in the Plaintiffs Complaint, Plaintiff Jerry Lee Lewis residence is in

Mississippi and there is, therefore, no connection to this forum with regard to Loftins status as a

son-in-law, the restoration of a motorcycle apparently at Plaintiff Jerry Lee Lewis home or, the

creation of a website, an activity which could have occurred in any jurisdiction, including that of

Northern Mississippi where Jerry Lee Lewis resides. Even assuming that such activities may

tangentially be related to the Greater Memphis Area, none of these activities are related to this

defamation suit and could have taken place at any time over the past seven years. In fact, this

same Social Media biography notes that Loftin is the CEO of TwistedSouthEmporium and

references Lynchburg, Virginia as the entitys location. Thus, nothing in Loftins Social Media

LinkedIn biography connects him to this forum based on systematic contacts with this state or,

more specifically, with the alleged defamatory post which underlies this action.

5
 Case 2:16-cv-02726-dkv Document 31 Filed 02/22/17 Page 6 of 11 PageID 367

These same arguments are applicable to the biography of Loftin contained on the

TwistedSouthEmporium site on Etsy. Although subscribers on Etsy may attempt to sell

merchandise via the internet, the posting of an item for sale on Etsy does not confer nationwide

general jurisdiction over a non-resident defendant. The Etsy biography is also irrelevant to this

suit as the purchase of an item through Etsy from TwistedSouthEmporium is not at issue in this

defamation case and cannot be considered for a finding of specific inpersonam jurisdiction over

Loftin, discussed infra. 2

The above tangential connections to Tennessee are insufficient to confer general

jurisdiction by this forum over Loftin. In order to warrant the exercise of general jurisdiction

over a non-resident defendant:

The defendant must be engaged in long-standing business in a forum state, such

as marketing or shipping products, or performing services or maintaining one or
more offices there; activities that are less extensive than that will not qualify for
general inpersonam jurisdiction.

Gordan v. Greenview Hospital, Inc., 300 S.W. 365, 348 (Tenn. 2009), quoting 4 C. Wright & A.

Miller, Federal Practice and Procedure, 1067.5 at 507 (3d ed. 2002).

To the extent, if any, that Loftin has contacts with this forum, such contacts are

inconsequential and diminimous. As stated by the Sixth Circuit in Compuserve, Inc. v.

Patterson, It is the quality of the contacts, and not their number or status, that determines

whether they amount to purposeful availment, for purpose of the personal jurisdiction inquiry.

89 F.3d 1257, 1265 (6th Cir. 1996) (citations and quotations omitted). Quite simply, assisting his

father-in-law in restoring a motorcycle and creating a website do not create sufficient contacts

with this forum for an assertion of general jurisdiction over Loftin.

2
Attached hereto as Exhibit A is a copy of the TwistedSouthEmporium page on Etsy which more correctly
depicts the information contained in Plaintiffs Exhibit J. For some reason, Plaintiffs Exhibit does not reflect
that TwistedSouthEmporium is the Etsy page subscriber.

6
 Case 2:16-cv-02726-dkv Document 31 Filed 02/22/17 Page 7 of 11 PageID 368

III. SPECIFIC JURISDICTION OVER LOFTIN CANNOT BE

ASSERTED BASED ON SOCIAL MEDIA POSTS

For the reasons stated above, the only available route to assert inpersonam jurisdiction

over Loftin in this forum is, as pled by Plaintiffs, based upon the Social Media post which

underlies this action. In their Response, Plaintiffs attempt to rely upon other Social Media posts,

submitted with their Response as Exhibits B, C, E and K, to contend that Loftins Facebook page

was interactive.

Plaintiffs unsupported reliance upon other Social Media posts illustrates why a Social

Media post will not confer personal jurisdiction over a non-resident defendant. Problems with

the Plaintiffs exhibits include the following:

1. It is difficult to determine from which Facebook page or Social Media site the
commentary contained in Exhibits B, C, E and K is taken;

2. It is difficult to determine the exact date of the commentary contained in Exhibits

B, C, E and K;

3. The specific identity and location of the individuals posting on the unidentified
pages submitted with Exhibits B, C, E and K are unknown.

4. The statements contained in Exhibits B, C, E and K do not appear to be

defamatory to the extent that it can be determined to whom such commentary applies;

5. Much of the commentary submitted from the unidentified Facebook page is not
commentary made by Loftin; rather, much of the commentary contained within Exhibits
B, C, E and K appear to be from Plaintiff Jerry Lee Lewis own Fan Page, a page which
apparently Plaintiff Jerry Lee Lewis himself created;

6. The out-of-court statements submitted with Exhibits B, C, E and K are hearsay

and should not be considered by the Court either as factual or in connection with Loftin
specifically.

7. It is impossible to determine from the pages submitted with Exhibits B, C, E and

K of Plaintiffs Response the exact locations of commentators Nancy Apple and Chelle
Rose to the extent, if any, that these two Facebook posters are located in Tennessee, and
to the extent their statements are relevant to this action whatsoever;

8. To the extent that Loftin made any responses on an unidentified Facebook page,
such comments are not the subject of this suit;

7
 Case 2:16-cv-02726-dkv Document 31 Filed 02/22/17 Page 8 of 11 PageID 369

9. Highly emotional comments are not necessarily defamatory; in fact, Social Media
in and of itself is an outlet for highly emotional commentary.

Plaintiffs attempts to have this forum assert personal jurisdiction over Loftin based upon

various unidentified Social Media posts, fall squarely into the concerns specifically addressed by

this Court in Bailey v. Turbine Design, Inc., 86 F.Supp.2d 790 (W.D. Tenn. 2000) in which the

Honorable J. Daniel Breen, writing for this Court, stated as follows:

To find that personal jurisdiction exists on the facts in this case would be to
subscribe to the notion that anyone who posted information on the Internet is
subject to nationwide jurisdiction, a leap this court is not prepared to make. See
Barrett v. Catacombs Press, 44 F. Supp. 2d 717, 727 (E.D. Pa. 1999). Moreover,
the mere fact that the website contained defamatory information concerning the
plaintiff does not, absent some supporting evidence, mean that the defendant
possessed the intent to target residents of the forum state. See id. (holding that the
fact that defendants website included defamatory information regarding the
plaintiff and that such information was accessible worldwide does not mean that
defendant had the intent of targeting forum residents with such information); see
also Mallinckroat Med., Inc. v. Sonus Pharmaceuticals, Inc., 989 F. Supp. 265,
273 (D.D.C. 1998) (even if plaintiff suffered injury from alleged defamation in
the forum, personal jurisdiction was lacking without additional contacts).

Id. at 796.

The above statements of this Court warrant repeating as Plaintiffs proof falls squarely

into the quagmire which the Sixth Circuit and lower District Courts have addressed when the

issue of a Social Media post is alleged to confer personal jurisdiction over a non-resident

defendant. To find otherwise, any individual submitting a post on Social Media would

potentially be haled into Court in any state in this nation where such post is read, shared, liked or

forwarded.

Further, Plaintiffs argument that Social Media websites are interactive is incorrect.

The evidence relied upon by Plaintiffs are passive Social Media posts and do not reflect an

attempt by Loftin or others to engage in commercial activity in Tennessee or any other state via

the webpages contained in Exhibits B, C, E and K to Plaintiffs Response. The Court in Binion

8
 Case 2:16-cv-02726-dkv Document 31 Filed 02/22/17 Page 9 of 11 PageID 370

v. ONeal held that the ability to Like, Share, or Comment on a Social Media webpage is

not of a commercial nature and is not additional interactivity which will confer personal

jurisdiction. Binion v. ONeal, 95 F. Supp. 3d 1055, 1060 (E.D. Mich. 2015). 3 As previously

submitted to this Court, it has been held in the Sixth Circuit that a highly offensive post on Social

Media which may become accessible to users in foreign jurisdictions will not confer jurisdiction

over a non-resident as such websites are not owned or operated by the defendant, are minimally

interactive and are not intended to conduct business. Id. Quite simply, the fact that individuals

from unidentified locations may have commented on Loftins August 20, 2016 post simply does

not confer inpersonam jurisdiction over Loftin by this forum pursuant to clear and established

Sixth Circuit case law. To find otherwise, the assertion of jurisdiction would offend traditional

notions of fair play and substantial justice. CompuServe, Inc. v. Patterson, 89 F.3d 1257, 1262

(6th Cir. 1996).

IV. SUMMARY

Plaintiffs have not established by a preponderance of the evidence that this Court may

assert personal jurisdiction over non-resident Defendant Loftin. See Gordon, 300 S.W. 3d at 643.

Plaintiffs attempts to allege wrongdoing on the part of Phoebe Lewis Loftin and/or Pont Neuf,

Inc. are wholly irrelevant to this case and, if Defendant prevails, will be the subject of a

Protective Order. Nor does Loftins assistance to his allegedly famous father-in-law and/or his

alleged ties to Memphis based on such assistance create minimum contacts with the state of

Tennessee sufficient to assert personal jurisdiction over him in this defamation case.

The only alleged defamatory statements made by Loftin which are before this Court are

those contained in his August 20, 2016 post. Accordingly, any contacts with the state of

3
TwistedSouthEmporium does maintain a site on Etsy for sales purposes; however, the purchase of a
collectible from TwistedSouthEmporium is not at issue in this case; nor is TwistedSouthEmporium a defendant
to this action.

9
Case 2:16-cv-02726-dkv Document 31 Filed 02/22/17 Page 10 of 11 PageID 371

Tennessee must in some way be connected to that post in order to assert jurisdiction over the

Virginia Defendant. The only evidence which Plaintiffs have submitted is evidence which the

Sixth Circuit has clearly held will not satisfy the constitutional parameters for the assertion of

personal jurisdiction over a non-resident defendant. It is clear in the Sixth Circuit that Social

Media posts, even if unidentified individuals comment, share, like or reply, do not establish a

purposeful availment by the Social Media user to any and every jurisdiction in which the post is

received or read. These dictates are well addressed in this Courts opinion in Bailey, supra. For

these reasons, and those set forth in Loftins Memorandum of Law in Support of Motion to

Dismiss filed with this Court on January 30, 2017, jurisdiction in this forum cannot be asserted

over Loftin without a violation of the United States Constitution.

V. CONCLUSION

For the reasons set forth above, Defendant respectfully requests that his Motion to

Dismiss for Lack of Personal Jurisdiction filed pursuant to Rule 12(b)(2) of the Federal Rules of

Civil Procedure be granted.

BURCH, PORTER & JOHNSON, PLLC

/s/ Melissa A. Maravich

Melissa A. Maravich (TN #13876)
Melisa T. Moore (TN #28709)
130 North Court Avenue
Memphis, Tennessee 38103
Telephone: (901) 524-5142
Facsimile: (901) 524-5024
Email: mmaravich@bpjlaw.com
mmoore@bpjlaw.com

Attorneys for Defendant Ezekiel Loftin

10
Case 2:16-cv-02726-dkv Document 31 Filed 02/22/17 Page 11 of 11 PageID 372

CERTIFICATE OF SERVICE

I hereby certify that I have forwarded a copy of the foregoing document by placing same
in the U.S. Mail, postage prepaid, on this the 22nd day of February, 2017 to:

J.D. Barton, Esq.

6565 Highway 51 North
Millington, Tennessee 38053

/s/ Melissa A. Maravich

11
Case 2:16-cv-02726-dkv Document 31-1 Filed 02/22/17 Page 1 of 15 PageID 373
Case 2:16-cv-02726-dkv Document 31-1 Filed 02/22/17 Page 2 of 15 PageID 374
Case 2:16-cv-02726-dkv Document 31-1 Filed 02/22/17 Page 3 of 15 PageID 375
Case 2:16-cv-02726-dkv Document 31-1 Filed 02/22/17 Page 4 of 15 PageID 376
Case 2:16-cv-02726-dkv Document 31-1 Filed 02/22/17 Page 5 of 15 PageID 377
Case 2:16-cv-02726-dkv Document 31-1 Filed 02/22/17 Page 6 of 15 PageID 378
Case 2:16-cv-02726-dkv Document 31-1 Filed 02/22/17 Page 7 of 15 PageID 379
Case 2:16-cv-02726-dkv Document 31-1 Filed 02/22/17 Page 8 of 15 PageID 380
Case 2:16-cv-02726-dkv Document 31-1 Filed 02/22/17 Page 9 of 15 PageID 381
Case 2:16-cv-02726-dkv Document 31-1 Filed 02/22/17 Page 10 of 15 PageID 382
Case 2:16-cv-02726-dkv Document 31-1 Filed 02/22/17 Page 11 of 15 PageID 383
Case 2:16-cv-02726-dkv Document 31-1 Filed 02/22/17 Page 12 of 15 PageID 384
Case 2:16-cv-02726-dkv Document 31-1 Filed 02/22/17 Page 13 of 15 PageID 385
Case 2:16-cv-02726-dkv Document 31-1 Filed 02/22/17 Page 14 of 15 PageID 386
Case 2:16-cv-02726-dkv Document 31-1 Filed 02/22/17 Page 15 of 15 PageID 387