Dimitrios Fatouros v. Emmanuel Lambrakis ( 2015 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 14-3418
___________
DIMITRIOS MITCH FATOUROS,
Appellant
v.
EMMANUEL LAMBRAKIS; ARTEMIOS SORRAS;
JOHN DOE NUMBERS 1 THROUGH 10
____________________________________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil Action No. 2:13-cv-04639)
District Judge: Honorable Claire C. Cecchi
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
September 18, 2015
Before: CHAGARES, JORDAN and NYGAARD, Circuit Judges
(Opinion filed: September 23, 2015)
___________
OPINION*
___________
PER CURIAM
Dimitrios “Mitch” Fatouros filed a pro se complaint against Emmanuel
Lambrakis, Artemios Sorras, and ten John Doe defendants, asserting claims of libel,
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
slander, and defamation. More specifically, he alleged that when he contacted Lambrakis
to discuss something that Lambrakis had said on a radio show, Lambrakis asked him,
“Do you love Greece?”. He also alleged that Lambrakis refused to be interviewed by
him, and that Lambrakis stated, during an October 2012 newscast in Greece that was
broadcast all over the world over the Internet, “I wish to say that Mr. Fatouros is financed
and controlled.” Fatouros also alleged that Lambrakis forwarded to someone in
Maryland an e-mail in which he stated that he “was attacked . . . from Gialtouridis,
Zoupaniotis, Fatouros, Stephanopolous . . . and not only.” He maintained that the e-mail
“was released on the [I]nternet.”
Fatouros also claimed that Sorras, while appearing on a radio program broadcast
from New York, asked, “Or Fatouros. If I meet him . . . does he know me?,” thus
threatening him on “an FCC regulated frequency.” He also alleged that a lawyer for
Lambrakis and Sorras sent him “an outrageous threat,” to wit, a letter to cease-and-desist
defamation of Lambrakis and Sorras. Additionally, he maintained that a “spokesperson”
for the two defendants asked him (after he called in to a Greek television show on which
the “spokesperson” was appearing), “Would you like to tell us to which lobby you
belong?,” and implied that he “was conspiring with a Greek-Jewish professor at St.
John’s University.” Fatouros further alleged that an associate of the two defendants also
called the program to ask who was financing Fatouros’s attack and that “Lambrakis and
his gang” post messages (in unspecified forums) calling him a traitor.
2
Lambrakis and Sorras1 each filed a motion to dismiss Fatouros’s complaint on
various grounds, including for lack of personal jurisdiction under Rule 12(b)(2) of the
Federal Rules of Civil Procedure. Fatouros did not file a true response to the motions,
although he submitted a mandamus petition in our Court with a request that we order the
District Court to terminate Sorras’s motion (C.A. No. 13-4792),2 and filed other
documents in the District Court, including one titled “motion for stay pending plaintiff’s
petition for a rehearing for a writ of mandamus & enlarge time to file a cross-motion for
jurisdictional discovery” (ECF 26).3 Within the “motion for stay . . .,” he noted our
statements, in denying his mandamus petition, that he had other adequate means to
challenge the motion to dismiss and that he could raise his arguments in response to the
motion to dismiss. Fatouros then stated, in his “motion to stay . . .,” “[p]robably, this can
be done through Jurisdictional Discovery: is John Sispas Esq. representing Defendant
Artemios Sorras in litigation, yes or no. Sipsas said he did. Defendant Sorras said Sipsa
does not. The U.S. Court of Appeals says Plaintiff has to exhaust his tools.
Conclusively, Plaintiff is entitled to jurisdictional discovery.”
1
Sorras filed his motion despite (like the Doe defendants) never having been served.
2
Within his mandamus petition, he discussed, inter alia, whether John P. Sipsas, Esq.,
could receive service of the complaint for Sorras.
3
The District Court docket reflects that “per [Fatouros] this is a reply.”
3
Ultimately, the District Court granted the defendants’ motions to dismiss for lack
of personal jurisdiction, dismissing the complaint without prejudice and permitting
Fatouros to file an amended complaint within 30 days. Fatouros appeals.
We have jurisdiction under 28 U.S.C. § 1291.4 We review de novo the District
Court’s ruling that it lacked personal jurisdiction over the defendants. Eurofins Pharma
US Holdings v. BioAlliance Pharma SA, 623 F.3d 147, 155 (3d Cir. 2010). Fatouros had
the burden of demonstrating facts that established personal jurisdiction. Metcalfe v.
Renaissance Marine, Inc., 566 F.3d 324, 330 (3d Cir. 2009). Because we are reviewing
an order granting Rule 12(b)(2) motions, and because the District Court did not hold an
evidentiary hearing, Fatouros “needed only [to] establish a prima facie case of personal
jurisdiction.” D’Jamoos v. Pilatus Aircraft Ltd., 566 F.3d 94, 102 (3d Cir. 2009) (citation
omitted). In determining whether Fatouros had made out his prima facie case, the
4
The District Court’s dismissal was “without prejudice.” “Generally, an order which
dismisses a complaint without prejudice is neither final nor appealable because the
deficiency may be corrected by the plaintiff without affecting the cause of action.”
Borelli v. City of Reading, 532 F.2d 950, 951 (3d Cir. 1976) (per curiam). “Only if the
plaintiff cannot amend or declares his intention to stand on his complaint does the order
become final and appealable.” Id. at 951–52. In this case, Fatouros chose not to amend
his complaint; he instead appealed and has declared his intention to stand on his
complaint. See Frederico v. Home Depot, 507 F.3d 188, 192 (3d Cir. 2007) (determining
that a plaintiff had elected to stand on her complaint where she did not seek to correct the
purported pleading deficiencies, but instead repeatedly asserted that her complaint was
sufficient as filed). We decline Fatouros’s request that we overrule Borelli. We also
reject Fatouros’s other arguments regarding our jurisdiction, including his assertion that
we do not have jurisdiction because Sorras is not participating in this appeal. Also, we
note that the District Court’s order is final even though it does not address claims against
the Doe defendants who were never served. See United States v. Studivant, 529 F.2d
673, 674 n.2 (3d Cir. 1976).
4
District Court was required to accept the allegations in the complaint as true and to
construe any disputed facts in Fatouros’s favor. Metcalfe, 566 F.3d at 330.
Fatouros alleged that Lambrakis is a citizen of the State of New York and Sorras is
a citizen of “Canada and/or Greece.” Fatouros, who is a resident of New Jersey, filed his
complaint in a district court in that state. The federal district courts in New Jersey may
assert personal jurisdiction over a nonresident only to the extent authorized by state law.
Eurofins, 623 F.3d at 155. We have recognized that “New Jersey’s long-arm statute
provides for jurisdiction coextensive with the due process requirements of the United
States Constitution.” Miller Yacht Sales, Inc. v. Smith, 384 F.3d 93, 96 (3d Cir. 2004)
(citation omitted). A defendant may be subject to the jurisdiction of a court only if “the
maintenance of the suit does not offend traditional notions of fair play and substantial
justice.” J. McIntyre Mach., Ltd. v. Nicastro, 131 S. Ct. 2780, 2787 (2011) (citation and
internal quotations omitted).
Fatouros did not assert any jurisdictional facts that would support general personal
jurisdiction.5 Kehm Oil Co. v. Texaco, Inc., 537 F.3d 290, 300 (3d Cir. 2008)
(explaining that a court has general personal jurisdiction over a defendant who has
maintained systematic and continuous contacts with forum state). Also, there was no
5
While we base our decision on an evaluation of the whole District Court record in this
case, we note that Fatouros’s response to the jurisdictional challenge borders on
inadequate. See Time Share Vacation Club v. Atl. Resorts, Ltd., 735 F.2d 61, 66 (3d Cir.
1984) (holding that a plaintiff establishing personal jurisdiction must present more than
“mere affidavits which parrot and do no more than restate plaintiff’s allegations without
identification of particular defendants and without factual content”).
5
basis for specific personal jurisdiction over the defendants. Specific personal jurisdiction
exists “when the claim arises from or relates to conduct purposely directed at the forum
state.” Kehm Oil Co., 537 F.3d at 300; see also Asahi Metal Indus., Ltd. v. Superior
Court of Cal., Solano Cty., 480 U.S. 102, 109 (1987) (repeating that “minimum contacts
must have a basis in some act by which the defendant purposefully avails itself of the
privilege of conducting activities within the forum State, thus invoking the benefits and
protections of its laws”) (internal quotations and citation omitted).
None of Lambrakis’s or Sorras’s alleged acts were directed into the forum state.6
A radio broadcast in another state and a television broadcast in another country, both of
which could be accessed over the Internet, and postings in Internet forums that could be
read by individuals in New Jersey are insufficient bases for personal jurisdiction in this
6
Fatouros may also wish to attribute to the defendants Sipsas’s act of sending a cease-
and-desist letter to him in New Jersey. Assuming that an agency relationship existed
between Sipsas and the defendants, and assuming that New Jersey allows personal
jurisdiction over a person who acts through an agent, the acts of writing and sending the
letter did not constitute the specific torts for which Fatouros sought relief, so they were
not bases for specific jurisdiction. Cf. IMO Indus. v. Kierkert AG, 155 F.3d 254, 261 (3d
Cir. 1998) (explaining when specific jurisdiction may lie for an intentional tort).
Fatouros did not describe the publication of the letter or the communication of the letter’s
contents to anyone other than Fatouros himself. Accordingly, the allegations did not
describe defamation, slander, or libel, all of which have a communication or publication
element. See Gnapinsky v. Goldyn, 128 A.2d 697, 702 (N.J. 1957) (“Since the law of
defamation seeks to secure reputation, there must be a communication to a third person.
Without this essential element, neither libel nor slander is shown.”); see also G.D. v.
Kenny, 15 A.3d 300, 310 (N.J. 2011) (describing the elements of a defamation action).
Alternatively, even if the allegations were enough for the District Court to assert personal
jurisdiction over the defendants only on a claim based on the cease-and-desist letter,
Fatouros failed to state a claim upon which relief can be granted.
6
case. Fatouros did not present a prima facie case that the defendants purposefully availed
themselves of conducting activity in New Jersey “by directly targeting [their activities or
postings] to the state, knowingly interacting with residents of [New Jersey] via [their
activities or postings], or through sufficient other related contacts.” Toys “R” Us, Inc. v.
Step Two, S.A., 318 F.3d 446, 454 (3d Cir. 2003); see also Shrader v. Biddinger, 633
F.3d 1235, 1241 (10th Cir. 2011) (noting that “posting allegedly defamatory comments or
information on an internet site does not, without more, subject the poster to personal
jurisdiction wherever the posting could be read”).
On appeal, Fatouros presses the argument that the District Court erred in
dismissing his complaint without allowing him time for jurisdictional discovery. We
review for abuse of discretion a district court’s decision to deny a request for
jurisdictional discovery. Toys “R” Us, Inc., 318 F.3d at 455. Even if Fatouros’s
assertions relating to jurisdictional discovery in his “motion to stay . . .” could somehow
be construed as a general request for jurisdictional discovery (or a request related to his
claim about the letter sent by Sipsas), we conclude that the District Court did not abuse
its discretion in declining to allow it. Fatouros did not present factual allegations that
suggested with reasonable particularity the possible existence of the requisite minimum
contacts. See Toys “R” Us, 318 F.3d at 456; see also Mass. Sch. of Law at Andover v.
ABA, 107 F.3d 1026, 1042 (3d Cir. 1997) (explaining that jurisdictional discovery
generally resolves the question whether a corporate defendant is doing business in the
7
state and that the presumption in favor of discovery is reduced when the defendant is an
individual).
For these reasons, and because we conclude that Fatouros’s arguments are
otherwise without merit,7 we will affirm the District Court’s ruling.
7
In particular, we reject as baseless his claim that the District Judge was biased against
him. See, e.g., Securacomm Consulting, Inc. v. Securacom Inc., 224 F.3d 273, 278 (3d
Cir. 2000) (“We have repeatedly stated that a party’s displeasure with legal rulings does
not form an adequate basis for recusal.”).
8