Carlos H. Henriquez v. El Pais Q'Hubocali.com

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-11428
Non-Argument Calendar
________________________
D.C. Docket No. 2:11-cv-00191-RWS
CARLOS H. HENRIQUEZ,
llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellant,
versus
EL PAIS Q'HUBOCALI.COM,
RODRIGO LLOREDA MENA,
ALFREDO DOMINGUEZ BORRERO,
MARIA LUCIA LLOREDA GARCES,
llllllllllllllllllllllllllllllllllllllll Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(December 6, 2012)
Before HULL, JORDAN and ANDERSON, Circuit Judges.
PER CURIAM:
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Carlos Henriquez, proceeding pro se, appeals the dismissal of his diversity
lawsuit for lack of personal jurisdiction over the defendants, El Pais
Q’Hubocali.com (“El Pais”), a corporation registered and doing business in
Colombia, and several individuals associated with El Pais, who were also citizens
of Colombia (collectively “the defendants”).
Henriquez, a citizen of Georgia, filed this lawsuit against the Colombian
defendants in the District Court for the Northern District of Georgia. He alleged
that the defendants published defamatory articles against him in El Pais’s
newspapers in Spanish in Colombia and that an online version of the Spanish
newspaper was visible in Georgia. After review, we affirm the district court’s
dismissal of Henriquez’s complaint for lack of personal jurisdiction over the
Colombian defendants.
I. BACKGROUND FACTS
A. Subject of the Newspaper Articles
According to Henriquez’s complaint, he and his wife had traveled to
Colombia to seek treatment for his wife’s infertility.1 After the treatment attempts
proved unsuccessful, the fertility clinic in Colombia advised the couple to retain a
1
Because this case was decided on a motion to dismiss, we take the facts from
Henriquez’s complaint and accept them as true. See Furry v. Miccosukee Tribe of Indians of
Fla., 685 F.3d 1224, 1226 n.2 (11th Cir. 2012).
2
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surrogate mother and provided them with a list of local women willing to become
surrogates.
Henriquez and his wife entered into a contract with one of the listed women,
who eventually became pregnant and gave birth to twins. Although the surrogate
mother received “good financial compensation” for her services, she demanded
more money than the agreement called for. When Henriquez refused, the
surrogate mother decided to keep the children and ask for alimony. Henriquez and
his wife sued the surrogate mother in a Colombian court, which ruled in their
favor and awarded them custody of the children. Shortly thereafter, Henriquez, his
wife, and the children returned to the United States.
The surrogate mother appealed that ruling to the highest court in Colombia.
That high court eventually issued a decision, which became public in July 2010.2
The defendant El Pais then published articles about the case in Colombian
newspapers, and also placed the articles online, which meant they could be
accessed in the United States. According to Henriquez, the articles falsely stated
that (1) the highest court ordered the children returned to the surrogate mother,
thereby implying that Henriquez abducted the children; (2) the children were born
2
Henriquez’s complaint does not state exactly what “the highest court” in Colombia held
or the name of that court.
3
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as a result of Henriquez’s illicit affair with the surrogate mother; and (3) the eggs
used in the in vitro fertilization were proven to belong to the surrogate mother,
rather than Henriquez’s wife.
B. Federal Complaint in the United States
Based on the above facts, Henriquez’s complaint alleged two counts of
“defamation per se” and asked for compensatory and punitive damages exceeding
$75,000. Henriquez alleged that the above newspaper articles contained “false
malicious defamation injuring [his] reputation and exposing him to public hatred,
contempt and ridicule.” His complaint alleged that the district court had personal
jurisdiction over the Colombian defendants because their defamatory statements
were published in print and on their web page that was “seen in Georgia.”
The Colombian defendants moved to dismiss the complaint for lack of
personal jurisdiction and for failure to state a claim. As to personal jurisdiction,
the defendants argued that Henriquez’s complaint failed to allege sufficient facts
to establish jurisdiction under Georgia’s long-arm statute, Ga. Code Ann. § 9-10-
91. Before the district court ruled on the defendants’ motion to dismiss,
Henriquez filed numerous exhibits, consisting mostly of images of the defendants’
4
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web pages and the advertisements contained therein.3
More specifically, some of the exhibits are copies of the defendants’
Internet web pages containing advertisements by U.S. companies, such as
Comcast, Sprint, Allstate, and Publix.4 The online advertisements, seen on the
defendants’ web pages, appear to contain links to the websites of the U.S.
companies, such as Comcast or Allstate. A user’s clicking on these links will take
the user to the U.S. companies’ websites, which, in turn, allows the user to see that
the U.S. companies have locations in Georgia and are doing business in Georgia.
And some of Henriquez’s exhibits appear to be separate images of the U.S.
companies’ own websites, showing the companies’ Georgia locations.
In addition to the above, Henriquez submitted copies of several web pages,
all in Spanish, from a company called Pautefacil.com, as well as a “descriptive
commentary” on the exhibits. In part of his commentary, Henriquez stated that the
Pautefacil web pages explained how the defendants obtained the advertising
customers that advertised on the defendants’ online newspapers. He stated that
Pautefacil “gets the [customers]” and “provides the customer[s]” to the
3
The defendants did not object to the authenticity of the exhibits in the district court, and,
therefore, we consider them part of the record on appeal.
4
All of the defendants’ web pages in the exhibits, and most of the advertisements on those
web pages, appear in the Spanish language.
5
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newspapers, and that “[a]ny time people in US and Georgia click in their
computers to access service of purchase goods as result of Pautefacil.com
sponsoring Defendants, Pautefacil.com makes money and Defendants too.”
After submitting the exhibits, Henriquez moved to amend his complaint,
indicating that those exhibits supported personal jurisdiction. In his proposed
amended complaint, Henriquez alleged that personal jurisdiction existed under
Georgia’s long-arm statute because, by targeting Henriquez and his family, the
defendants purposefully directed the defamatory publications at Georgia.
According to Henriquez, the defendants published online advertisements that
offered goods and services of companies operating in Georgia, and the defendants
thereby derived “good revenue.” He alleged that the advertisements contained
links to the companies’ Georgia locations and that one of the companies
advertised on the defendants’ website was based in Georgia.
Alternatively, Henriquez alleged that the district court could exercise
personal jurisdiction under the federal long-arm statute, Federal Rule of Civil
Procedure 4(k), because his claims arose under federal law.
The defendants responded that Henriquez’s amended complaint did not
support personal jurisdiction. The defendants pointed out that the advertisements
submitted by Henriquez were placed on the defendants’ websites by an “ad server”
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owned and operated by Pautefacil.com, a Colombian advertising company.
Because Henriquez lived in Georgia, the advertisements he saw were selected by
Pautefacil to showcase goods and services available in Georgia. The defendants
stated that El Pais’s websites did not market their own goods, but were passive
websites that disseminated news stories.
The district court granted the defendants’ motion and dismissed the lawsuit,
concluding that Henriquez’s allegations were insufficient to establish personal
jurisdiction under subsections (1) and (3) of Georgia’s long-arm statute. The
district court noted that it had considered the additional factual allegations raised
in Henriquez’s amended complaint, but stated that those allegations did not alter
the court’s conclusion that personal jurisdiction was lacking. The district court
denied as moot several of Henriquez’s pending motions, including his motion to
amend the complaint, his motion for a conference under Federal Rule of Civil
Procedure 26(f), and his motion for summary judgment.
II. DISCUSSION
A. Personal Jurisdiction
1. Forum State’s Long-Arm Statute
We apply a two-step inquiry in determining whether personal jurisdiction
exists over a nonresident defendant. Diamond Crystal Brands, Inc. v. Food
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Movers Int’l, Inc., 593 F.3d 1249, 1257 (11th Cir. 2010).5 First, we examine
whether the exercise of jurisdiction is appropriate under the forum state’s
long-arm statute, and, second, whether the exercise of jurisdiction violates the Due
Process Clause of the Fourteenth Amendment to the United States Constitution.
Id. at 1257-58. This Court has concluded that Georgia’s long-arm statute “does
not grant courts in Georgia personal jurisdiction that is coextensive with
procedural due process,” but instead “imposes independent obligations that a
plaintiff must establish for the exercise of personal jurisdiction that are distinct
from the demands of procedural due process.” Id. at 1259. “[W]e must interpret
and apply Georgia’s long-arm statute in the same way as would the Georgia
Supreme Court.” Id. at 1258.
The two provisions of Georgia’s long-arm statute in Ga. Code. Ann.
§ 9-10-91 at issue here are subsections (1) and (3), which provide:
A court of this state may exercise personal jurisdiction over any
nonresident . . . , as to a cause of action arising from any of the
acts . . . enumerated in this Code section, in the same manner as if he
or she were a resident of this state, if in person or through an agent,
he or she:
5
We review de novo a district court’s dismissal of a complaint for lack of personal
jurisdiction. Horizon Aggressive Growth, L.P. v. Rothstein-Kass, P.A., 421 F.3d 1162, 1166
(11th Cir. 2005). A plaintiff who seeks the exercise of personal jurisdiction over a non-resident
defendant “bears the initial burden of alleging in the complaint sufficient facts to make out a
prima facie case of jurisdiction.” Diamond Crystal Brands, Inc. v. Food Movers Int’l, Inc., 593
F.3d 1249, 1257 (11th Cir. 2010) (quotation marks omitted).
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(1) Transacts any business within this state;
....
(3) Commits a tortious injury in this state caused by an act or
omission outside this state if the tort-feasor regularly does or solicits
business, or engages in any other persistent course of conduct, or
derives substantial revenue from goods used or consumed or services
rendered in this state.
Ga. Code. Ann. § 9-10-91(1), (3).6
Under Georgia law, the “transacts any business” provision in § 9-10-91(1)
grants personal jurisdiction over a non-resident defendant if “(1) the nonresident
defendant has purposefully done some act or consummated some transaction in
[Georgia], (2) if the cause of action arises from or is connected with such act or
transaction, and (3) if the exercise of jurisdiction by the courts of this state does
not offend traditional fairness and substantial justice.” Aero Toy Store, LLC v.
Grieves, 631 S.E.2d 734, 737 (Ga. Ct. App. 2006). Here, Henriquez has failed to
establish the second prong because his complaints have not alleged, and his
exhibits do not show, that his cause of action for defamation arose out of, or was
connected to, any business transaction in Georgia. Henriquez’s defamation claims
arose out of the defendants’ publication of defamatory news articles on their
websites, not the defendants’ placement of advertisements from U.S. companies
6
The long-arm statute contains four other conditions under which a court may exercise
personal jurisdiction over a non-resident, but none of the other conditions applies to this case.
See Ga. Code. Ann. § 9-10-91. A plaintiff may establish personal jurisdiction by showing the
existence of any one condition. See id.
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on their websites. Thus, the district court could not exercise personal jurisdiction
under subsection (1) of Georgia’s long-arm statute, see id., and we are left to
decide whether jurisdiction existed under subsection (3).
To establish jurisdiction under § 9-10-91(3), Henriquez had to show, among
other things, that the defendants “regularly” conducted or solicited business in
Georgia, or derived “substantial revenue from goods used or consumed or services
rendered” in Georgia. See Ga. Code. Ann. § 9-10-91(3). According to
Henriquez’s allegations and even the evidence he submitted, the defendants were
residents of Colombia and operated their business in Colombia. Their only
alleged contact with Georgia consisted of displaying advertisements of various
companies on their Internet websites, including advertisements of a company
based in Georgia. There is no allegation, much less evidence, that the defendants
secured these advertisements directly from companies in Georgia or through any
contact (telephone call, letter, or any type of communication) with any company in
Georgia. Just the opposite, the defendants obtained the advertisements from
Pautefacil.com, a Colombian ad server or advertising company. The fact that a
particular website displays an advertisement that is viewable in Georgia or shows
a company that does business in Georgia does not, by itself, mean that the website
owner had any contact with Georgia. Thus, Henriquez has failed to allege or show
that the defendants actually conducted or solicited business in Georgia, much less
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on a regular basis, or that they derived substantial revenue from goods used or
services rendered in Georgia. See Smith v. Air Ambulance Network, 427 S.E.2d
305, 305 (Ga. Ct. App. 1993) (stating that “mere placement of advertisements in
Georgia” was insufficient to show that a defendant purposefully transacted
business in the state, such as to establish personal jurisdiction). Accordingly,
§ 9-10-91(3) did not authorize personal jurisdiction over the defendants. Because
Henriquez failed to demonstrate jurisdiction under Georgia’s long-arm statute, we
need not decide whether jurisdiction was proper under the Due Process Clause.
See Diamond Crystal Brands, Inc., 593 F.3d at 1257-58.
2. Federal Rule of Civil Procedure 4(k)(2)
Henriquez contends that personal jurisdiction existed under Rule 4(k)(2),
the “national long-arm statute.” See Consol. Dev. Corp. v. Sherritt, Inc., 216 F.3d
1286, 1291 (11th Cir. 2000). Under Rule 4(k)(2), when a defendant is not subject
to the jurisdiction of any one state, a court may “aggregate a foreign defendant’s
nationwide contacts to allow for service of process provided that two conditions
are met: (1) plaintiff's claims must arise under federal law; and, (2) the exercise of
jurisdiction must be consistent with the Constitution and laws of the United
States.” Id. (quotation marks omitted); see Fed. R. Civ. P. 4(k)(2). Because
Henriquez’s claims of defamation arose under state law, not federal law, the
district court could not exercise jurisdiction under Rule 4(k)(2).
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We recognize that, in his proposed amended complaint, Henriquez
mentioned that his action arose under 42 U.S.C. § 1983 and that the defendants
violated his constitutional right to privacy. However, § 1983 grants a cause of
action only against persons who acted “under the color of state law.” Loren v.
Sasser, 309 F.3d 1296, 1303 (11th Cir. 2002). Similarly, the constitutional right to
privacy “restricts the Government’s power to regulate or intrude on activity
involving fundamental rights.” Garcia v. United States, 666 F.2d 960, 965 (11th
Cir. 1982) (emphasis added); see also Lugar v. Edmondson Oil Co., Inc., 457 U.S.
922, 936, 102 S. Ct. 2744, 2753 (1982) (“[M]ost rights secured by the Constitution
are protected only against infringement by governments.” (quotation marks
omitted)). Because Henriquez has not alleged any deprivation of rights by, or with
the help of, the state or federal government, his claims do not arise under § 1983
or the Constitution, thereby precluding personal jurisdiction under the national
long-arm statute. See Fed. R. Civ. P. 4(k)(2).7
B. Jurisdictional Discovery
We review the district court’s denial of discovery for abuse of discretion.
7
For the first time on appeal, Henriquez argues that his claims also arose under the
International Covenant on Civil and Political Rights (“ICCPR”). However, we do not review
issues raised for the first time on appeal except in five situations, none of which applies here.
See Higginbottom v. Carter, 223 F.3d 1259, 1260 (11th Cir. 2000); see also Access Now, Inc. v.
Sw. Airlines Co., 385 F.3d 1324, 1332 (11th Cir. 2004) (listing the five circumstances in which
we will hear claims raised for the first time on appeal).
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White v. Coca-Cola Co., 542 F.3d 848, 853 (11th Cir. 2008). “[T]he plaintiff
should be given the opportunity to discover facts that would support his
allegations of jurisdiction.” Majd-Pour v. Georgiana Cmty. Hosp., Inc., 724 F.2d
901, 903 (11th Cir. 1984). However, a district court does not abuse its discretion
in dismissing the plaintiff’s action for lack of personal jurisdiction, even before
jurisdictional discovery occurs, when the plaintiff has not diligently pursued such
discovery despite the opportunity to do so. See United Technologies Corp. v.
Mazer, 556 F.3d 1260, 1280-81 (11th Cir. 2009) (affirming the district court’s
dismissal of plaintiff’s claims for lack of personal jurisdiction before the plaintiffs
conducted jurisdictional discovery). Indeed, in Mazer, we reasoned that, although
the plaintiff recognized the need for jurisdictional discovery, the plaintiff never
formally moved for such discovery and failed to take reasonable steps in seeking
discovery during the more than four months that the defendant’s dismissal motion
was pending. Id.In this case, Henriquez was certainly aware of the need for jurisdictional
discovery, and, in fact, submitted numerous exhibits to support his allegation that
personal jurisdiction was proper. However, Henriquez never formally moved for
any additional jurisdictional discovery and did not attempt to seek such discovery,
even though nearly six months passed between the defendants’ motion to dismiss
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and the district court’s order of dismissal.8 Accordingly, we cannot say that the
district court abused its discretion in dismissing Henriquez’s complaint before he
could conduct any additional discovery. See Mazer, 556 F.3d at 1280-81. In light
of the foregoing, we affirm.9
AFFIRMED.
8
Henriquez did file a “motion to compel disclosure” of documents, namely, copies of
certain pages of the defendants’ newspaper, but this request appears to have concerned the merits
of Henriquez’s defamation claims rather than jurisdiction.
9
Henriquez’s brief raises two additional claims, namely, that the district court (1) erred in
denying his motion for a conference under Federal Rule of Civil Procedure 26(f), and (2) erred in
denying his motion for summary judgment. These arguments warrant little discussion, however.
Because the district court properly dismissed Henriquez’s complaint for lack of personal
jurisdiction, the court did not err in denying the above motions as moot.
14