USCA11 Case: 22-12478 Document: 15-1 Date Filed: 06/02/2023 Page: 1 of 5
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-12478
Non-Argument Calendar
____________________
TINA MARIE BARBUTO,
Plaintiff-Appellant,
versus
MIAMI HERALD MEDIA COMPANY,
Defendant-Appellee,
DAVID J. NEAL,
Defendant.
____________________
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2 Opinion of the Court 22-12478
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:21-cv-20608-BB
____________________
Before JORDAN, JILL PRYOR, and ANDERSON, Circuit Judges.
PER CURIAM:
In 2019, the Miami Herald Media Company published in
the Miami Herald newspaper two articles, written by reporter Da-
vid J. Neal, about appellant Tina Marie Barbuto. The articles re-
ported on Barbuto’s role in a healthcare fraud scheme.
Barbuto sued Neal and Miami Herald in federal district
court. In the first amended complaint, Barbuto alleged that Neal
and Miami Herald were liable under Florida law for defamation
by implication because the articles suggested that Barbuto was
one of the masterminds of the fraud scheme when she was no
more than a minor participant. Barbuto served each defendant
with a summons and a copy of the first amended complaint.
When Miami Herald failed to respond to the first amended com-
plaint, the clerk entered default against it. See Fed. R. Civ. P. 55(a).
In the meantime, Neal moved to dismiss the first amended
complaint. The district court granted the motion. It dismissed
Barbuto’s claim against Neal based on the first article with preju-
dice because the claim was time-barred, as Barbuto waited more
than two years to bring the claim. The court dismissed Barbuto’s
claim against Neal based on the second article without prejudice
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22-12478 Opinion of the Court 3
because she failed to comply with a Florida statute requiring a
plaintiff to provide notice before bringing a defamation claim
based on the publication of a newspaper article. See
Fla. Stat.
§ 770.01. The district court explained that if Barbuto provided the
required notice, she could file a second amended complaint bring-
ing a defamation claim based on the second article.
After Barbuto provided Neal the required notice, she filed a
second amended complaint. The second amended complaint stat-
ed that it was “directed at . . . Neal only because a Clerk’s Default”
had been entered against Miami Herald. Doc. 34 at 1 n.1. 1
Neal moved to dismiss the second amended complaint. He
argued that the pleading was due to be dismissed for several rea-
sons, including because Florida law afforded a qualified privilege
to the news media when it engaged in disinterested and neutral
reporting on matters of public concern. According to Neal, the
outcome of the government’s investigation into, and prosecution
of, a multi-million-dollar healthcare fraud scheme was a matter of
public concern, and he engaged in disinterested, factual reporting
that used government documents, including Barbuto’s plea
agreement and factual proffer, as sources.
The district court granted the motion and dismissed the
claims against Neal with prejudice. It concluded that Neal was
“protected by the fair and neutral reporting privilege[]” because it
was “obvious from the face of the articles that Neal was engaging
1 “Doc.” numbers refer to the district court’s docket entries.
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4 Opinion of the Court 22-12478
in disinterested and neutral reporting about a matter of public
concern—healthcare care fraud in South Florida.” Doc. 49 at 9–
10. Although the court acknowledged that Neal raised this privi-
lege only in connection with the second article, the court found
that its conclusion “applie[d] with equal force to both articles.”
Id.
at 9 n.7.
After the district court disposed of the claims against Neal,
Barbuto moved for entry of a default judgment against Miami
Herald. See Fed. R. Civ. P. 55(b). She argued that the allegations in
the first amended complaint established that Miami Herald was
liable for defamation based on its publication of the first article.
She asked the district court to enter a default judgment on liabil-
ity, require Miami Herald to remove the article from its website,
and set a hearing on damages.
The district court denied the motion on two alternative
grounds. The court began by explaining that an action may have
only one operative complaint at a time. As a result, when Barbuto
filed the second amended complaint, it “superseded and replaced”
the first amended complaint and thus “moot[ed] the entry of de-
fault based on [the] previous pleading.” Doc. 60 at 3.
But the district court did not stop there. It rejected Bar-
buto’s motion for a default judgment on a second ground, stating,
“[i]n any event”—meaning even if the first amended complaint
had not been superseded—the court would deny the motion for
default judgment nonetheless.
Id. at 4. The court explained that
default judgments were ordinarily disfavored and that the ques-
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22-12478 Opinion of the Court 5
tion whether to grant default judgment in a particular case was
within a court’s discretion. It stated that it was declining to exer-
cise its discretion because “[b]ased upon the record in this case,
default judgment is not warranted.”
Id. at 5.
This is Barbuto’s appeal.
When a district court’s ruling rests on two or more inde-
pendent, alternative grounds, the “appellant must convince us
that every stated ground for the judgment against [her] is incor-
rect.” Sapuppo v. Allstate Floridian Ins. Co.,
739 F.3d 678, 680 (11th
Cir. 2014). “When an appellant fails to challenge properly on ap-
peal one of the grounds on which the district court based its
judgment, [s]he is deemed to have abandoned any challenge of
that ground, and it follows that the judgment is due to be
affirmed.”
Id.
Here, Barbuto argues on appeal that the district court erred
in concluding that the second amended complaint superseded the
first amended complaint and mooted the entry of default against
Miami Herald. But she fails to address the district court’s second
ground for denying the motion for a default judgment. That is,
she does not advance any argument why it was an abuse of discre-
tion for the district court, after dismissing the claims against Neal
based on the statute of limitations and Florida’s fair and neutral
reporting privilege, to decide that a default judgment against Mi-
ami Herald was not warranted. Given Barbuto’s failure to chal-
lenge this alternative ground, we affirm.
Id.
AFFIRMED.
