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                                                                     [DO NOT PUBLISH]



                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                              ________________________

                                     No. 19-11297
                               ________________________

                       D.C. Docket No. 4:18-cv-00329-RH-CAS



MARION P. HAMMER,

                                                                        Plaintiff - Appellant,

versus

LAWRENCE T. SORENSEN,

                                                                       Defendant - Appellee.

                               ________________________

                      Appeal from the United States District Court
                          for the Northern District of Florida
                            ________________________

                                     (August 11, 2020)

Before WILLIAM PRYOR, Chief Judge, ROSENBAUM, Circuit Judge, and
MOORE, * District Judge.

PER CURIAM:
         *
         Honorable K. Michael Moore, Chief United States District Judge for the Southern District
of Florida, sitting by designation.
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         Plaintiff-Appellant Marion Hammer, a well-known lobbyist for the National

Rifle Association, appeals the dismissal of her claims against Defendant-Appellee

Lawrence “Lol” Sorensen. Sorensen twice emailed Hammer at her publicly listed

email address, taking issue with a cause for which Hammer has lobbied. In his two

emails, along with messages indicating his disagreement with Hammer’s position on

assault rifles, Sorensen included a total of four graphic photographs showing wounds

inflicted by such weapons. Hammer sued, alleging several torts. After careful

consideration, and with the benefit of oral argument, we now conclude that the

district court correctly granted Sorensen’s motion to dismiss for failure to state a

claim.

                                          I.

         This case requires us to review an order granting a motion to dismiss for

failure to state a claim under Rule 12(b)(6), Fed. R. Civ. P. For purposes of

reviewing the order dismissing the case, we set forth and discuss the allegations in

Plaintiff-Appellant Marion Hammer’s complaint as though they are true, viewing

them in the light most favorable to Hammer. Am. Dental Ass’n v. Cigna Corp., 605

F.3d 1283, 1288 (11th Cir. 2010) (citation and quotation marks omitted). They may

or may not be the actual facts.

         In 1995, Hammer became the National Rifle Association of America’s

(“NRA”) first woman president. When she filed her complaint in this case, Hammer,


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who lived in Florida, served as the NRA’s Florida lobbyist. Hammer has described

herself as “considered by many to be the most influential Second Amendment state

lobbyist in the United States.”

      As a lobbyist, Hammer held membership in the Florida Association of

Professional Lobbyists at the time she filed her complaint. On that organization’s

public website, Hammer identified herself under “Professional Information” as

affiliated with the NRA and the Unified Sportsmen of Florida. She also listed her

email address and identified her lobbying status as “active.”

      Defendant-Appellee Lawrence “Lol” Sorensen was an attorney-mediator who

provided alternative-dispute-resolution services and lives in California. In the

aftermath of the tragic shooting that occurred at Marjory Stoneman Douglas High

School, Sorensen obtained Hammer’s lobbyist email address and, on March 24,

2018, sent Hammer two unsolicited emails to that address. In both emails, Sorensen

listed his contact information, website, and his basic job description.

      The first email was titled “Assault Rifle Support Results” and read, “Dear Ms.

Hammer, Thought you should see a few photos of handiwork of the assault rifles

you support.” Embedded within the email message were three extremely graphic

photographs of large, gaping wounds to what appear to be a person’s leg.

      Thirty-one minutes later, Sorensen sent a second email to Hammer’s listed

lobbyist email address. This one was titled, “One more instructive photo.” It stated,


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“Dear Marion, This photo documents the effect of an outdated military rifle on JFK.

Today’s assault rifles are far more destructive.” Included with the message was

another very graphic photograph—this time of the injury to what appears to be

President Kennedy’s head, after he was shot, as he laid on a table.

       In response, Hammer filed this diversity action 1 against Sorensen. 2 In her

complaint, Hammer made six claims. Count I alleged that Sorensen had engaged in

cyberstalking, in violation of Fla. Stat. § 784.048, and sought to enjoin him from

further activity under Fla. Stat. § 784.0485. In Count II, Hammer sought injunctive

relief against Sorensen for alleged harassment, in violation of Fla. Stat. § 748.048.

Counts III and IV claimed intentional infliction of emotional distress under Florida

law and sought an injunction and damages, respectively. In Counts V and VI,

Hammer asserted that Sorensen had intruded upon her seclusion, in violation of

Florida law, and sought an injunction and damages, respectively.

       Sorensen moved under Rule 12(b)(6), Fed. R. Civ. P., to dismiss the case for

failure to state a claim. 3 The district court granted Sorensen’s motion, concluding



       1
          To qualify for diversity jurisdiction under 28 U.S.C. § 1332, the amount in controversy
must exceed $75,000, and no plaintiff must share a state of citizenship with any defendant.
        2
          Hammer also filed her complaint in this case against other defendants who had separately
made other communications to her. None of those defendants’ claims are before us here, so we
do not discuss them further.
        3
          He also moved under Rule 12(b)(1), Fed. R. Civ. P., to dismiss the case for lack of subject-
matter jurisdiction. The district court implicitly found subject-matter jurisdiction when it
dismissed the case for failure to state a claim. We agree that the district court had subject-matter
jurisdiction. We also conclude that we enjoy subject-matter jurisdiction on appeal. See 28 U.S.C.
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that Sorensen’s emails “were germane to the policy debate that Ms. Hammer

regularly participated in and Mr. Sorensen apparently sought to join.” For that

reason, the court explained, the emails were not tortious and all of Sorensen’s speech

was protected by the First Amendment. Hammer now appeals.

                                               II.

       We engage in de novo review of a district court’s order granting a motion to

dismiss a complaint for failure to state a claim. Echols v. Lawton, 913 F.3d 1313,

1319 (11th Cir.), cert. denied, 139 S. Ct. 2678 (2019). When we do so, we take the

factual allegations in the complaint as true and view them in the light most favorable

to the plaintiff. Id. A complaint survives a motion to dismiss if it includes enough

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) (citation and quotation marks

omitted). We may affirm a district court’s decision on any basis in the record, even

if the district court did not, in fact, rely on that basis in dismissing the case. Henley

v. Payne, 945 F.3d 1320, 1333 (11th Cir. 2019).




§ 1291. For that reason and because no party asserts on appeal that subject-matter jurisdiction has
been lacking at any stage of the proceedings, we do not address the matter further.
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                                          III.

      As we have noted, Hammer’s complaint alleges claims under state law. The

First Amendment becomes relevant, if at all, only if Hammer has alleged sufficient

facts to satisfy each of the elements of her state-law claims.

      It is well established that “federal courts should avoid reaching constitutional

questions if there are other grounds upon which a case can be decided.” BellSouth

Telecomms., Inc. v. Town of Palm Beach, 252 F.3d 1169, 1176 (11th Cir. 2001)

(citation and quotation marks omitted). For that reason, we begin by evaluating

whether Hammer’s complaint alleges enough facts to set forth each of her state-law

claims. As we explain below, we conclude that it does not. So we do not reach the

First Amendment issues.

   A. The complaint fails to sufficiently allege cyberstalking under Fla. Stat.
      § 784.048

      Under Fla. Stat. § 748.0485, a court may issue an injunction against

cyberstalking. Section 784.048(1)(d), Fla. Stat., in turn, defines “cyberstalking” as

follows:

           1. . . . engag[ing] in a course of conduct to communicate, or . . .
              caus[ing] to be communicated, words, images, or language by
              or through the use of electronic mail or electronic
              communication, directed at a specific person; or

           2. . . . access[ing], or attempt[ing] to access, the online
              accounts or Internet-connected home electronic systems of
              another person without that person’s permission,


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         causing substantial emotional distress to that person and
         serving no legitimate purpose.

      Based on this definition, a litigant seeking an injunction for cyberstalking

must show, among other elements, that the communications in question “serv[ed] no

legitimate purpose.” Florida courts have explained that we “broadly construe[]” the

inquiry into “legitimate purpose,” and that the term “cover[s] a wide variety of

conduct.” David v. Textor, 189 So. 3d 871, 875 (Fla. Dist. Ct. App. 2016). For

example, Florida courts have found a “legitimate purpose” in communications

demanding that the recipient drop his lawsuit or he would be “sorry,” id.; a parent’s

telephone call complaining about a dance-team’s decision concerning his daughter’s

participation on the dance team, Goudy v. Duquette, 112 So. 3d 716, 717 (Fla. Dist.

Ct. App. 2013); and a loan maker’s text messages seeking repayment of a loan—

even though the texts also threatened that the loan maker would tell the recipient’s

wife about the recipient’s affair if the recipient did not pay back the loan, Alter v.

Paquette, 98 So. 3d 218, 220 (Fla. Dist. Ct. App. 2012). As these examples convey,

Florida courts “have generally held that contact is legitimate when there is a reason

for the contact other than to harass the victim,” O’Neill v. Goodwin, 195 So. 3d 411,

413 (Fla. Dist. Ct. App. 2016)—even if the victim may find the communication

disturbing.

      We have no difficulty finding that Sorensen’s two emails served a “legitimate

purpose” as Florida sweepingly defines the term. Sorensen sent the two emails to
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Hammer’s email address that she publicly listed in her capacity as a lobbyist for the

NRA. And according to Hammer, she was “considered by many to be the most

influential Second Amendment state lobbyist in the United States.”

      Sorensen’s emails pertained directly to subject matter about which Hammer

lobbied, and they appear to have been clearly intended to dissuade Hammer from

continuing to support the availability of assault rifles. For instance, Sorensen titled

his first email “[a]ssault [r]ifle [s]upport [r]esults,” addressing his communication

directly to what he viewed as the “results” of Hammer’s lobbying efforts as they

pertained to assault rifles. He then referred again to Hammer’s lobbying work in the

body of that email, stating, “Thought you should see a few photos of handiwork of

the assault rifles you support.” Similarly, the second email described itself as

containing “[o]ne more instructive photo” and then explained that “[t]oday’s assault

rifles are far more destructive” than the one that was used to kill President Kennedy.

      No doubt the embedded photographs substantially turned up the volume on

Sorensen’s message, but they did not negate his communications’ “legitimate

purpose,” as Florida law broadly construes that term, of trying to persuade Hammer

that she should not continue to support the availability of assault rifles. Because

Hammer cannot show that Sorensen’s emails served “no legitimate purpose,” she

cannot prevail on her cyberstalking claim. This is true even if Hammer was startled,

distressed, or disturbed by the receipt of Sorensen’s emails.


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   B. The complaint fails to sufficiently allege harassment under Fla. Stat.
      § 748.084

      Hammer’s claim for harassment under Fla. Stat. § 784.084 runs into the same

problem as her claim for cyberstalking. That statute defines the term “[h]arass” to

mean “to engage in a course of conduct directed at a specific person which causes

substantial emotional distress to that person and serves no legitimate purpose.” Fla.

Stat. § 784.084(1)(a).

      For the same reasons we cannot find under Florida’s definition of

“cyberstalking” that Sorensen’s communications served no “legitimate purpose,” we

cannot reach that conclusion under Florida’s anti-harassment statute. Florida courts

apply the same meaning for “legitimate purpose” under both Florida’s anti-

harassment statute and its cyberstalking statute. See O’Neill, 195 So. 3d at 413

(relying on another case’s discussion of the term in relation to cyberstalking to define

it as it pertains to the anti-harassment statute). Without establishing that Sorensen’s

emails served no “legitimate purpose,” Hammer cannot set forth a viable harassment

claim under Florida law.

   C. The complaint fails to sufficiently allege claims under Florida law for
      intentional infliction of emotional distress

      To state a claim under Florida law for intentional infliction of emotional

distress, a plaintiff must demonstrate “(1) intentional or reckless conduct (2) that is

outrageous in that it is beyond all bounds of decency and utterly intolerable in a


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civilized community (3) and that causes the victim emotional distress (4) that is

severe.” Kim v. Jung Hyun Chang, 249 So. 3d 1300, 1305 (Fla. Dist. Ct. App. 2018)

(citations and internal quotation marks omitted).           We focus first on the

“outrageousness” element. Under that element, it is not enough “that the defendant

has acted with an intent which is tortious or even criminal, or that he has intended to

inflict emotional distress, or even that his conduct has been characterized by

‘malice,’ or a degree of aggravation which would entitle the plaintiff to punitive

damages for another tort.” Williams v. City of Minneola, 575 So. 2d 683, 691 (Fla.

Dist. Ct. App. 1991) (citation and quotation marks omitted).

      Here, Hammer has not alleged sufficient facts to meet the standard for

“outrageous” behavior. Hammer does not contend that the words in Sorensen’s

emails constituted intentional infliction of emotional distress; rather, she relies on

the photographs included in the emails. There is no doubt that the photographs are

disturbing: they vividly show gruesome wounds. But we cannot say that they are

“beyond all bounds of decency and utterly intolerable in a civilized community,”

particularly when considered in context. Kim, 249 So. 3d at 1305. Images that are

at least as graphic, if not ghastly, appear in many publicly released movies and

sometimes appear in news footage, albeit with warnings. And here, Sorensen

presented the images as part of his attempt to engage with Hammer in a debate on

the damage that assault weapons can inflict on human beings. Debates on matters


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that are the subject of lobbying efforts are an aspect of living in a “civilized

community.” So whatever else may be said of the images Sorensen included in his

emails, we cannot say they were “outrageous.”

      Hammer similarly cannot demonstrate that the images objectively would

cause a reasonable person to experience the type of “severe” emotional distress

required to make out a claim for intentional infliction of emotional distress. To

qualify as “severe,” emotional distress must be “of such a substantial quality or

enduring quality that no reasonable person in a civilized society should be expected

to endure it.” Id. (citation, internal quotation marks, and alteration omitted). In

evaluating the severity of an incident, “the intensity and the duration of the distress”

are relevant factors. Id. (citation, quotation marks, and alteration omitted). The

standard to satisfy “severity” is “high” to “prevent the tort from becoming a venue

for litigation over every emotional injury.” Id.

      As we have noted, the photographs in the emails were hard to look at, but they

were not “of such a substantial quality or enduring quality that no reasonable person

in a civilized society should be expected to endure it.” Id. (citation, internal

quotation marks, and alteration omitted). Plus, because they consisted of a total of

four photographic images in two email communications, Hammer was not required

to be exposed to them for a lengthy period. Nothing prevented her from closing the




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emails as quickly as she opened them. For these reasons, Hammer’s claim for

intentional infliction of emotional distress necessarily fails.

   D. The complaint fails to sufficiently allege claims under Florida law for
      intrusion upon seclusion

      Under Florida law, the tort of intrusion upon seclusion is one of four torts

falling under the broader heading of invasion of privacy. Agency for Health Care

Admin. v. Associated Indus. of Fla., Inc., 678 So. 2d 1239, 1252 n.20 (Fla. 1996).

Although most claims under this cause of action involve publication to a third party

of some matter considered private, the cause of action can nonetheless arise even

when no publication occurs. Stoddard v. Wohlfahrt, 573 So. 2d 1060, 1062 (Fla.

Dist. Ct. App. 1991).

      Florida District Courts of Appeal have referred to the Restatement (Second)

of Torts’s definition of intrusion upon seclusion in analyzing this tort. See Purrelli

v. State Farm Fire and Cas. Co., 698 So. 2d 618, 620 (Fla. Dist. Ct. App. 1997); see

also Williams v. City of Minneola, 575 So. 2d 683, 689 n.5 (Fla. Dist. Ct. App. 1991).

The Restatement explains that “[o]ne who intentionally intrudes, physically or

otherwise, upon the solitude or seclusion of another or his private affairs or concerns,

is subject to liability to the other for invasion of his privacy, if the intrusion would

be highly offensive to a reasonable person.” Restatement (Second) of Torts § 652B

(1977). Nevertheless, the Supreme Court of Florida has construed the tort of

intrusion upon seclusion even more narrowly than the Restatement provides. See
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Allstate Ins. Co. v. Ginsberg, 863 So. 2d 156, 161 n.3, 162 (Fla. 2003). It has

required a plaintiff to show an intrusion into a private place and not merely a private

activity. See id.

      Hammer’s allegations do not satisfy the elements of intrusion upon seclusion

as the Florida Supreme Court has construed the elements of that cause of action.

      The facts Hammer avers do not establish that Sorensen intruded physically

into a “place” or “private quarter” of Hammer’s where Hammer had a reasonable

expectation of privacy, since Sorensen merely sent his two emails to the email

address Hammer publicly lists in association with her lobbying activities for the

NRA. To be clear, Hammer needed to plausibly allege an intentional intrusion into

some private quarter. But Sorensen emailed the address Hammer publicly listed on

the website for the Florida Association of Professional Lobbyists. And Hammer

alleged no reason for Sorensen to have expected that this professional email address

would have been associated with private quarters.

      And finally, we do not agree that Sorensen’s communications “would be

highly offensive to a reasonable person,” as Florida law construes that phrase.

Florida law equates the “highly offensive to a reasonable person” element from the

intrusion-upon-seclusion cause of action with the “outrageousness” element of the

intentional-infliction-of-emotional-distress cause of action. See Stoddard, 573 So.

2d at 1062-63. So for the reasons we have already described in concluding that the


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complaint did not sufficiently allege “outrageousness” in its intentional-infliction-

of-emotional-distress claim, we likewise conclude that it failed to sufficiently allege

that Sorensen’s emails were “highly offensive to a reasonable person.”

                                         IV.

       For the foregoing reasons, we affirm the district court’s dismissal of this case

for failure to state a claim.

       AFFIRMED.




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