Corrinet v. Burke , 946 F. Supp. 2d 155 ( 2013 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
__________________________________________
)
MARK STEVEN CORRINET, )
)
Plaintiff, )
)
v. ) Civil Action No. 12-1092 (ESH)
)
RUSTY BURKE, et al., )
)
Defendants. )
_________________________________________ )
MEMORANDUM OPINION
Plaintiff Mark Steven Corrinet, who is proceeding pro se, brings this diversity action
against the Robert E. Howard Foundation (“Foundation”), Rusty Burke, Paul Herman, Bill
Cavalier, Patrice Louinet, Fredrik Malmberg, and Rob Roehm, for libel, defamation, and
negligence. (First Am. Compl., Oct. 12, 2012 [ECF No. 3].) Defendants Cavalier, Louinet,
Malmberg and Roehm (“Moving Defendants”), who are all members of the Foundation’s Board
of Directors (“Board ”), have jointly moved pursuant to Federal Rule of Civil Procedure 12(b)(2)
to dismiss the claims against them for lack of personal jurisdiction. (Mot. to Dismiss, Dec. 18,
2012 [ECF No. 19]). For the reasons stated herein, their motion is granted.
BACKGROUND
The following facts are taken from the allegations of the complaint and the
uncontroverted declarations submitted in support of the Moving Defendants’ motion to dismiss.1
1
“The plaintiff has the burden of establishing a factual basis for the exercise of personal
jurisdiction over the defendant.” Crane v. New York Zoological Soc’y, 894 F.2d 454, 456 (D.C.
Cir. 1990). However, in considering a motion to dismiss for lack of personal jurisdiction, a court
“need not treat all of the plaintiff's allegations as true. Instead, the court may receive and weigh
Robert E. Howard (“Howard”) was a Texas writer who died in 1936. (Compl. ¶ 17.) The
Foundation, which is named for Howard, is a “literary organization with the goal of honoring . . .
Howard as a skillful, prolific and successful writer of fantasy, regional, horror, action and
adventure stories in a wide variety of genres.” (Burke Decl. ¶ 4.) The Foundation is operated by
its Board. (Burke Decl. ¶ 3.)
In early 2010, after plaintiff’s father died, plaintiff decided to sell his “massive Robert E.
Howard collection,” which “he and his father, had built over three decades.” (Compl. ¶ 23.)
According to plaintiff, the collection included a typewriter, authenticated by the FBI, that had
once been one of Howard’s two typewriters. (Compl. ¶¶ 19-23.) In pursuit of a buyer, plaintiff
contacted a number of major Howard collectors, including defendant Herman, the Board’s
Secretary and Treasurer. (Compl. ¶¶ 14, 24.) Although Herman was initially interested in
purchasing the typewriter, he and plaintiff failed to reach an agreement on price. (Compl. ¶ 25.)
In December 2010, Hermans wrote an article for the Foundation’s quarterly newsletter
that included the statement that, in the Foundation’s view, plaintiff’s typewriter was “almost
certainly not” one of Howard’s two original typewriters. (Compl. ¶¶ 14, 15; Mot. to Dismiss,
Ex. E, ¶ 11 (“Burke Decl.”).) In late December 2010, plaintiff read the article and immediately
sent an email to Herman “advising him that legal action would be pursued about his published
lies.” (Compl. ¶ 27.) Then, on June 23, 2011, plaintiff sent a letter to defendant Burke, the
Foundation’s President and Chairman of the Board (Burke Decl. ¶ 1), “demanding a retraction
and damages.” (Compl. ¶ 28.) After Burke rejected plaintiff’s request (Compl. ¶ 29), plaintiff
filed the pending complaint, which includes a libel claim against all defendants based on the
affidavits and other relevant matter to assist in determining the jurisdictional facts.” See
D’Onofrio v. SFX Sports Group, Inc., 534 F. Supp. 2d 86, 90 (D.D.C. 2008) (internal quotations
omitted).
2
allegedly false statement in Herman’s article as to the typewriter’s provenance (Compl. ¶¶ 32-
41), a defamation claim against Herman and Burke (Compl. ¶¶ 42-51), and a negligence claim
against the Foundation and the Moving Defendants for failing in their “job to oversee that the
publication does not publish false and misleading information.”2 (Compl. ¶¶ 52-64).
The Foundation, Burke and Herman jointly filed an answer to plaintiff’s complaint (see
Answer, Dec. 18, 2012 [ECF No. 20]), while the Moving Defendants filed the pending motion to
dismiss the claims against them for lack of personal jurisdiction. As plaintiff’s libel and
negligence claims against the Moving Defendants are based entirely on their positions as
members of the Foundation’s Board, the following jurisdictional facts are relevant to their
motion. The Foundation is a 501(c)(3) non-profit corporation created and registered under the
laws of the State of Texas, with its corporate office, books and records all in Texas. (Compl. ¶ 9;
Burke Decl. ¶ 2.) It does not have an office, telephone listing, mailing address, bank record or
real property in the District (Burke Decl. ¶¶ 5-6) and the Foundation’s Board has never met in
the District. (Burke Decl. ¶¶ 8-10.) The Moving Defendants reside in Indiana (Cavalier), France
(Louinet), and California (Malmberg and Roehm). (Compl. ¶¶ 4-7.) None of the Moving
Defendants reside or work in the District, own property in the District, or maintain a place of
business in the District. (See Mem. in Support of Mot. to Dismiss at 3; Mot. to Dismiss, Ex. A,
¶¶ 2, 5, 6 (“Cavalier Decl.”), Ex. B, ¶¶ 2, 5, 6 (“Louinet Decl.”), Ex. C, ¶¶ 2, 5, 6 (“Malmberg
Decl.”), Ex. D, ¶¶ 2, 5, 6 (“Roehm Decl.”).) The December 2010 newsletter was assembled and
formatted in California and printed in and mailed from Indiana. (Burke Decl. ¶ 12.) Herman,
the article’s author and a Board member, resides in Texas. (Compl. ¶ 3.) The sole allegation
2
Plaintiff initially filed a complaint in federal court in the District of Oregon, but that case was
dismissed without prejudice for lack of personal jurisdiction. See Corrinet v. Burke, No. 6:11-
cv-06416-TC (D. Or. Apr. 30, 2012).
3
connecting the allegedly false statement in Herman’s article to the District is that the article was
edited and the newsletter reviewed by Burke, who lives in the District. (Compl. ¶ 2; Pl.’s Opp.
to Mot. to Dismiss at 2).
ANALYSIS
Where subject matter jurisdiction is based on diversity, this Court’s “personal
jurisdiction over [a] defendant is coextensive with that of a District of Columbia court.” Helmer
v. Doletskaya, 393 F.3d 201, 205 (D.C. Cir. 2004). In the District, a court may have either
“general” or “specific” personal jurisdiction. See D.C. Code §§ 13-422 (general); id. § 13-423
(specific); see Exponential Biotherapies, Inc. v. Houthoff Buruma N.V., 638 F. Supp. 2d 1, 6
(D.D.C. 2009)). The Moving Defendants assert that neither variation of personal jurisdiction
applies here.
General Jurisdiction: The District’s general jurisdiction statute provides that a court has
personal jurisdiction “over a person domiciled in, organized under the laws of, or maintaining his
or its principal place of business in, the District of Columbia as to any claim for relief.” D.C.
Code § 13-422 (emphasis added). None of the conditions for general jurisdiction apply to the
Moving Defendants as none of them reside or work in the District, own property in the District,
or maintain a place of business in the District. (Compl. ¶¶ 4-7; Cavalier Decl. ¶¶ 2, 5, 6; Louinet
Decl. ¶¶ 2, 5, 6; Malmberg Decl. ¶¶ 2, 5, 6; Roehm Decl. ¶¶ 2, 5, 6.) Accordingly, the Court
cannot exercise personal jurisdiction over the Moving Defendants pursuant to the District’s
general jurisdiction statute.
Specific Jurisdiction: The District’s specific jurisdiction statute, also known as its “long-
arm” statute, has two subsections that are potentially applicable to plaintiff’s claims against the
Moving Defendants – subsections (a)(3) and (a)(4).
4
Subsection (a)(3) provides that a court has personal jurisdiction over a defendant if the
claim for relief arises from that defendant “causing tortious injury in the District of Columbia by
an act or omission in the District of Columbia.” D.C. Code § 13-423(a)(3) (emphasis added). In
other words, in order for the court to have personal jurisdiction pursuant to subsection (a)(3),
“both tortious injury and an act predicate to it must take place within the District.” McFarlane v.
Esquire Magazine, 74 F.3d 1296, 1300 (D.C. Cir. 1996). With respect to the Moving
Defendants, the complaint does not allege the necessary predicate act in the District. Plaintiff
seeks to hold the Moving Defendants liable for the statement in the Herman’s article because
they are members of the Board, but there is no allegation that any of the Moving Defendants, or
the Board, or the Foundation, took any action in the District related to the article’s publication.
Indeed, the only act that took place in the District was Burke’s editing and preparation of the
article for publication. As the Court of Appeals’ decision in McFarlane makes clear, however,
this act alone is insufficient to give the Court personal jurisdiction over plaintiff’s libel and
negligence claims against the Moving Defendants. See McFarlane, 74 F.3d at 1300 (circulation
in the District of a magazine containing an allegedly libelous article is not a sufficient “act” to
support personal jurisdiction where the article was written outside of the District and delivered to
a magazine outside of the District for publication); see also Moncrief v. Lexington Herald-
Leader Co., 631 F. Supp. 772, 774 (D.D.C. 1985), aff’d, 807 F.2d 217, 257 (D.C. Cir. 1986)
(mailing newspaper to the District with allegedly libelous article is not a sufficient “act” to
support personal jurisdiction over the newspaper publisher where printing and mailing occurred
outside the District).
Subsection (a)(4) provides for personal jurisdiction if the claim for relief arises from a
defendant “causing tortious injury in the District of Columbia by an act or omission outside the
5
District of Columbia if he regularly does or solicits business, engages in any other persistent
course of conduct, or derives substantial revenue from goods used or consumed, or services
rendered, in the District of Columbia.” D.C. Code § 13-423(a)(4) (emphasis added). Thus,
subsection (a)(4) provides for personal jurisdiction even if the acts causing the injury took place
outside of the District, but only if the defendant “caused a tortious injury in the District, the
injury was caused by the defendant's act or omission outside of the District, and the defendant
had one of the three enumerated contacts with the District.” GTE New Media Services Inc. v.
BellSouth Corp., 199 F.3d 1343 (D.C. Cir. 2000). Plaintiff attempts to satisfy this requirement
by alleging that the Moving Defendants, through the Foundation and other unrelated business
interests, have business “throughout the United States,” which necessarily includes the District.
(See, e.g., Opp. at 3.) However, the Board Defendants have submitted uncontroverted
declarations that directly contradict plaintiff’s assertion. Conclusory allegations are insufficient
to establish personal jurisdiction in the face of uncontroverted evidence to the contrary. See FC
Inv. Grp. LC v. IFX Markets, Ltd., 529 F.3d 1087, 1094-95 (D.C. Cir. 2008); see also Rundquist
v. Vapiano SE, 2012 WL 5954706 (D.D.C. Nov. 9, 2012); 4 Charles Allen Wright & Arthur R.
Miller, Federal Practice and Procedure § 1067.6 (3d ed. 2002) (“In challenging specific
jurisdiction, a defendant may raise factual issues relevant to personal jurisdiction. If a defendant
makes such a challenge, the plaintiff must respond by establishing a basis for personal
jurisdiction by presenting at least comparable levels of proof (when comparable levels of proof
are put forth the plaintiff receives the benefit of the doubt).”).
Accordingly, the Court cannot exercise personal jurisdiction over the Moving Defendants
pursuant to the District’s specific jurisdiction statute.
6
CONCLUSION
For the reasons stated above, the motion to dismiss for lack of personal jurisdiction filed
by Cavalier, Louinet, Malberg and Roehm will be granted.3 A separate Order accompanies this
Memorandum Opinion.
/s/
ELLEN SEGAL HUVELLE
United States District Judge
Date: May 29, 2013
3
Louinet also filed a motion to quash service of process (Mot. to Quash, Dec. 18, 2012 [ECF
No. 18]), which will be denied as moot.
7