Shawne Fielding und Thomas Borer gehen in den U.S.A. leer aus
Gericht
The United States Court of Appeals for the Fifth Circuit
Art der Entscheidung
Entscheidung
Datum
30. 06. 2005
Aktenzeichen
No. 04-10297
Leitsatz des Gerichts
Gerichtsbarkeit besteht für Verleumdungsklagen im Fall (1) einer Publikation mit erheblicher Verbreitung im betreffenden Staat oder (2) wenn der Autor oder Verlag mit seinen Bericht auf diesen Staat in dem Wissen zielt, dass die Folgen dort eintreten.
Das Erfordernis einer erheblichen Verbreitung ist im vorliegenden Fall nicht erfüllt.
Ein „Zielen“ auf den betreffenden Staat muss dadurch belegt sein, dass sich (1) der Gegenstand des Berichts und (2) die für ihn bedeutsamen Quellen in dem Staat befinden, dessen Gerichtsbarkeit behauptet wird.
Der eindeutige Schwerpunkt der sieben BUNTE-Artikel war die Affäre zwischen Borer und Rowe und ihre Folgen, also Begebenheiten in Deutschland und der Schweiz. Die Äußerungen über Frau Fielding mit Bezug zu Texas dienten lediglich der Vermittlung von Hintergrundinformationen. Die Recherchen in Texas hatten nur völlig untergeordnete Bedeutung.
Die Auswirkungen der Berichterstattung traten ganz überwiegend in Deutschland ein, zumal die Publikation an ein deutsches Publikum gerichtet war, wo 97% der Hefte verkauft werden. Überdies konnten Borer und Fielding nicht einmal beweisen, dass sie überhaupt zu einem für den Rechtsstreit relevanten Zeitpunkt in Texas lebten.
Ergebnis: Fielding und Borer haben weder einen erhebliche Verbreitung der Publikationen, noch den Eintritt der erforderlichen Nachteile in Texas aufgezeigt. Der Schaden trat schwerpunktmäßig nicht in Texas ein, und die Verlage haben ihre Handlungen nicht in nennenswerter Weise auf Texas gerichtet. Das Ausgangsgericht hat zurecht seine Unzuständigkeit angenommen.
Entscheidungsgründe
Appeal from the United States District Court
For the Northern District of Texas
Before JOLLY, DAVIS, and CLEMENT, Circuit Judges.
EDITH BROWN CLEMENT, Circuit Judge:
Thomas Borer, the former Swiss ambassador to Germany, and Shawne Fielding, his wife(collectively, “appellants”), brought suit for libel, intentional infliction of emotional distress, tortiousinterference with prospective business relations, and civil conspiracy claims against appellees HubertBurda Media Holding GmbH & Co. KG (“Hubert Burda Media”), Bertelsmann AG (“Bertelsmann”),and Gruner & Jahr (“Gruner”) and those parties’ related subsidiaries and affiliates. The district courtdismissed for lack of personal jurisdiction and denied appellants’ motions for further jurisdictional discovery. Borer and Fielding filed this appeal. For the reasons that follow, we affirm the districtcourt’s holding that none of appellees has sufficient contacts in Texas to satisfy due processlimitations on general or specific jurisdiction in the forum state.
I. FACTS AND PROCEEDINGS
Appellants Thomas Borer and Shawne Fielding were married in April 1999. Borer, a citizenof Switzerland, was the Swiss Ambassador to Germany. Fielding, an American from Texas, is aformer model and one-time winner of both the Miss Dallas and Mrs. Texas competitions. Twomonths after their marriage, Fielding and Borer moved into the Swiss Embassy in Berlin, where theyremained until April of 2002. The couple was active in public and social life in Berlin and often thesubject of media attention. During this time Fielding remained a citizen of Texas.
Appellee Hubert Burda Media owns Bunte, a German-language news magazine with 97% ofits issues sold in Germany. Out of a total printing of 750,000 issues per week, Bunte’s circulationin Texas is limited to approximately seventy issues per week—forty subscribers and thirty newsstanddistributors for resale. Bunte is published weekly by Bunte Entertainment Verlag GmbH, a Germancompany with its principal office in Munich. Bunte Entertainment is a wholly owned subsidiary ofHubert Burda Media, of which Hubert Burda, a German citizen, is Chairman of the Board. HubertBurda Media, Inc., a New York company with its principal place of business in New York City,provided research services to Bunte related to some of these articles.
Appellees Bertelsmann and Gruner own Stern, a German-language news magazine with 94%of its issues sold in Germany. Out of a total printing of approximately 1,000,000 issues per week,Stern’s circulation in Texas is limited to approximately sixty issues per week—forty subscribers andtwenty newsstand distributors for resale. Stern is published weekly by Gruner & Jahr AG & Co. KG, a German company of which Gruner & Jahr AG is a two-percent owner. Gruner & Jahr AG is itselfa corporate division of Bertelsmann AG, a German corporation with its principal place of businessin Gütersloh, Germany. Bertelsmann, Inc., a Delaware corporation with its principal place of businessin New York City, is a wholly owned subsidiary of Bertelsmann AG.
On March 31, 2002, the Swiss tabloid Sonntags-Blick published an article alleging an extramaritalaffair between Borer and Djamila Rowe, a European model and perfume saleswoman at adepartment store. The tabloid is owned and published by Ringier AG, a non-party to theseproceedings. Rowe, who had provided explicit details about the alleged affair in the initial article,retracted her story approximately three months later, in early July 2002, and admitted that she hadbeen paid and pressured to fabricate the story of the affair with Borer. The reversal by Rowe led tothe resignations of the editor-in-chief and a writer for Sonntags-Blick. The tabloid reached an out-ofcourtsettlement with Borer and Fielding and printed a front-page retraction under the headline,“Sorry.”
Prior to the retraction, the story of the alleged affair was picked up by Hubert Burda Media’sBunte and Bertelsmann and Gruner’s Stern.1 Between April 11, 2002 and September 5, 2002, Buntepublished seven articles relating to Fielding and Borer. The first article described the alleged affairand cast Fielding in an unflattering light, describing her as a blond with “charm and sex appeal,” agold digger, and having ridden through the Swiss embassy on a horse, in a revealing cowgirl outfit.The April 25, 2002 Bunte article included the most significant discussion of Fielding. It insinuated that Fielding is accustomed to playing the role of wife to an unfaithful husband, and included aninterview from her Texan ex-husband, Charlie Williams, who was described as abusive. This articlereports where she went to college and includes information from her college yearbook. Anotherarticle from Bunte, from August 29, 2002, suggests that Fielding uses cocaine.
Between April 18, 2002 and March 20, 2003, Stern published five articles relating to thecouple. On December 23, 2002, Stern gave Borer the dubious honor of “Affair of the Year,”repeating the allegation from April and describing Fielding and Borer as “social pariahs” in Berlin.The article recounted the allegations of the affair and suggested that, despite subsequent denials byall parties involved, it had occurred.
As public scrutiny of Borer and Fielding intensified, the couple suffered negative ramifications.In April 2002, Borer was recalled to Switzerland and was stripped of his ambassadorship. Aroundthe same time, Fielding suffered a miscarriage. In late 2002, she was advised by doctors to return tothe less-stressful environment of Texas.2 In addition to Borer’s professional setbacks and Fielding’s physical trauma, the couple alleges that they suffered injury to their reputation amongst their family,friends and acquaintances in Texas.
In April 2003, Fielding and Borer brought this suit in a Dallas County, Texas state districtcourt against defendants Hubert Burda Media, Bertelsmann, and Gruner for libel, intentional inflictionof emotional distress, tortious interference with prospective business relations, and civil conspiracyclaims. Defendants removed this diversity action to the United States District Court for the NorthernDistrict of Texas under 28 United States Code Section 1332(a)(3). On June 18, 2003, Plaintiffs fileda motion for an extension to conduct additional jurisdictional discovery, which the district courtgranted, allowing until September 5, 2003. Plaintiffs filed a motion for a second extension to conductfurther jurisdictional discovery and to amend their complaint. Defendants moved to quash thesemotions to extend and to dismiss for lack of perso nal jurisdiction under Federal Rule of CivilProcedure 12(b)(2). The district court granted the defendants’ motions on February 11, 2004, andFielding and Borer now timely appeal.
II. DISCUSSION
The district court determined that it lacked specific jurisdiction over the defendants based onthe publication of the alleged libels in Texas and general jurisdiction over the companies based ontheir contacts in the forum.
A. The district court lacked specific jurisdiction over each appellee.
1. Standard of Review
We review de novo the determination by a district court of its lack of personal jurisdictionover a defendant. Revell v. Lidov, 317 F.3d 467, 469 (5th Cir. 2002). Plaintiffs bear the burden ofproving the district court’s personal jurisdiction, but relevant factual disputes will be resolved in plaintiffs’ favor. Id.; Guidry v. U.S. Tobacco Co., 188 F.3d 619, 626 (5th Cir. 1999). Plaintiffs needonly plead a prima facie case for personal jurisdiction. Felch v. Transportes Lar-Mex S.A. De CV,92 F.3d 320, 326 (5th Cir. 1996). “Although jurisdictional allegations must be accepted as true, suchacceptance does not automatically mean that a prima facie case for specific jurisdiction has beenpresented.” Panda Brandywine Corp. v. Potomac Elec. Power Co., 253 F.3d 865, 868 (5th Cir.2001).
2. State of the Law
A federal district court hearing a case in diversity may exercise personal jurisdiction to theextent permitted for a court under applicable law of the state in which the federal court sits. Allredv. Moore & Peterson, 117 F.3d 278, 281 (5th Cir. 1997). Texas’s jurisdictional statute is a “longarm”statute, extending the personal jurisdiction of Texas court to the extent allowed by the DueProcess Clause of the Fourteenth Amendment, which “operates to limit the power of a State to assertin personam jurisdiction over a nonresident defendant.” Helicopteros Nacionales de Colombia, S.A.v. Hall, 466 U.S. 408, 413–14 (1984); see also TEX. CIV. PRAC. & REM. CODE § 17.042 (Vernon1997); Aviles v. Kunkle, 978 F.2d 201, 204 (5th Cir. 1992). Due process in the exercise of personaljurisdiction requires “minimum contacts with [the state] such that the maintenance of the suit doesnot offend ‘traditional notions of fair play and substantial justice.’” Int’l Shoe Co. v. Washington,326 U.S. 310, 316 (1945).
Specific jurisdiction for a suit alleging the intentional tort of libel exists for (1) a publicationwith adequate circulation in the state, Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 773–74(1984), or (2) an author or publisher who “aims” a story at the state knowing that the “effects” of thestory will be felt there. Calder v. Jones, 465 U.S. 783, 789–90 (1984). Both Keeton and Calder involve publications with significant levels of circulation in the state where a plaintiff sought to bringsuit. Keeton, 465 U.S. at 772 (between 10,000 to 15,000 copies of Hustler distributed to NewHampshire per month); Calder, 465 U.S. at 785 (600,000 copies out of a total circulation of 5 millionof the National Enquirer distributed to California per month). The Court concluded in Keeton thatjurisdiction was satisfied because that amount of circulation could not “be characterized as random,isolated, or fortuitous.” 465 U.S. at 774.
While Keeton jurisdiction demands substantial circulation that is lacking here, Calderjurisdiction requires a case-by-case analysis of the purpose and impact of the publication in question.The Calder Court set forth an “effects” test that looked to the various impacts of the allegedlylibelous act:
The . . . story concerned the California activities of a California resident. It impugnedthe professionalism of an entertainer whose television career was centered inCalifornia. The article was drawn from California sources, and the brunt of the harm,in terms both of respondent's emotional distress and the injury to her professionalreputation, was suffered in California. In sum, California is the focal point both of thestory and of the harm suffered. Jurisdiction over petitioners is therefore proper inCalifornia based on the “effects” of their Florida conduct in California.
465 U.S. at 788–89. The Court held further that effects alone are insufficient to establish jurisdiction,but that the defendants had directed their actions towards the forum, and knew their effects wouldbe felt there. Id. at 789–90. Our Circuit has underscored the importance of the direction ofdefendants’ action in the scheme of purposeful availment. See, e.g., Wien Air Alaska, Inc. v. Brandt,195 F.3d 208, 212 (5th Cir. 1999); Allred v. Moore & Peterson, 117 F.3d 278, 286 (5th Cir. 1997).
Courts have extended specific jurisdiction under Calder over libel claims against publicationswith far fewer contacts in the forum state than had the National Enquirer in that case. See, e.g.,Gordy v. The Daily News, 95 F.3d 829, 834–35 (9th Cir. 1996) (extending jurisdiction to paper with thirteen daily and eighteen Sunday papers in forum). The Daily News and one of its columnistsallegedly libeled Berry Gordy, the founder of Motown Records and his suit landed in Californiafederal court. The Ninth Circuit determined that the Daily News could reasonably anticipate beinghaled into court in California based on Gordy’s undisputed presence in California, the Daily News’sregular and comprehensive contacts with the forum state, and its (albeit limited) distribution of itspublication in the state. Id. at 833–35 (relying primarily on Calder, 465 U.S. at 789–90).Importantly, the Court observed that “[i]t is not clear why the distribution of 13 to 18 defamatorycopies of a column loses magnitude as a contact simply because the Daily News does a lot of otherthings elsewhere.” Id. at 834 (discounting the relevance of defendants’ declaration that only .0017%of its circulation was to the forum state).
This Court has held that, to exercise specific jurisdiction in a libel action, the “aim” of theplaintiff under the Calder test must be demonstrated by showing that (1) the subject matter of and(2) the sources relied upon for the article were in the forum state. Revell, 317 F.3d at 474 & n.48(citing Reynolds v. Int’l Amateur Athletic Fed’n, 23 F.3d 1110, 1120 (6th Cir. 1994)). In Revell,Oliver “Buck” Revell sued Hart G.W. Lidov in Texas after Lidov alleged on a Columbia Universitywebsite that Revell had some foreknowledge of the bombing of Pan Am Flight 103 in Scotland in1988. Id. at 469. After concluding that the “effects” were felt in the forum due to the plaintiff’spresence in Texas, id. at 473, the Court concluded that the allegations were inadequately “directed”to Texas to satisfy minimum contacts under Calder. Id. at 475. The Court held that “the sourcesrelied upon and activities described in an allegedly defamatory publication should in some wayconnect with the forum if Calder is to be invoked.” Id. at 474.
3. Personal Jurisdiction over Hubert Burda Media
Hubert Burda Media argues that, even considering all of the acts of the Hubert Burda Mediaaffiliatedorganizations, the company has insufficient contacts with Texas to satisfy due processlimitations on personal jurisdiction. Hubert Burda Media’s only publication with a demonstratedphysical circulation in Texas is Bunte, with a Texas distribution of seventy issues per week, out ofa total weekly printing of approximately 750,000 issues. This level of circulation does not to rise tothe “substantial number of copies . . . regularly sold and distributed” requirement of Keeton. 465 U.S.at 781. Because Hubert Burda Media has insufficient circulation to satisfy jurisdiction under Keeton,its contacts must be analyzed in terms of the Calder effects test.
The clear focus of the seven Bunte articles was the alleged affair between Borer and Roweand its aftermath, activities which occurred in Germany and Switzerland. The unflatteringdescriptions, references to her college years and modeling career in Texas, and the interview with herex-husband served merely to supply background, biographical information about Fielding. WhileHubert Burda Media ackno wledges the use of Texas sources in conducting its research for thesearticles, the clear thrust of the articles, as merely echoing the affair allegations of the Swiss tabloid,Sonntags Blick, shows the marginal importance of this Texas research. Hubert Burda Media’s forumcontacts in the research process were limited to conducting interviews with Texas citizens, includingFielding’s ex-husband, and hiring a contractor to purchase a copy of a college yearbook. Thesefleeting contacts led to no new substantial disclosures and supplied little more than the biographicalbackdrop for their story’s protagoni st. Unlike Calder where California was the focal point of thedefamatory story, Hubert Burda Media’s references to Texas were merely collateral to the focus ofthe articles. 465 U.S. at 789.
Looking to the effects caused by the allegedly libelous articles, it is clear that the articlesconcerned the German activities of individuals in Germany. The series of articles impugned theprofessionalism of a diplomat and his wife whose careers were centered in Europe, not Texas.Neither Borer’s termination nor Fielding’s miscarriage occurred in Texas. The brunt of the harm, interms of appellants’ injury to their professional reputations and their emotional distress, was sufferedin Germany, not Texas. In sum, Germany is the focal point both of the story and of the harmsuffered. Jurisdiction over Hubert Burda Media is therefore improper based on 1) the clear Germanaudience aim of this series of articles and 2) the primarily European effects which resulted.
Further, while the bulk of the effects need not be suffered in the forum to establishjurisdiction, this Court noted in Revell that “knowledge of the particular forum in which a potentialplaintiff will bear the brunt of the harm forms an essential part of the Calder test.” Revell, 317 F.3dat 475. Knowledge that sufficient harm would be suffered in Texas is conspicuously lacking. Inaddition to reporting German activities of German residents, the Bunte articles were directed at aGerman audience, as demonstrated by the fact that all of the articles were published in the Germanlanguage, and 97% of the magazine’s issues were sold in Germany.
Moreover, the plaintiff's mere residence in the forum state is not sufficient to show that thedefendant had knowledge that effects would be felt there; a “more direct aim is required.” Revell, 317F.3d at 476. Here, Fielding and Borer have not even proven that they did, in fact, ever reside inTexas during any of the time relevant to this suit. Thus, Hubert Burda Media’s conduct andconnection with the forum was not such that it should have “reasonably anticipate[d] being haled intocourt there.” Id. at 475.
4. Personal Jurisdiction over Bertelsmann and Gruner
Gruner, a Bertelsmann affiliate, publishes Stern, which printed an article recounting the affairallegations in late December of 2002. Sixty copies of this publication were purposefully sent toreaders in Texas. Although this article rehashed the tawdry allegations against Borer, its focus clearlywas on activity that occurred in Germany. In fact, the forum state is never mentioned, other than oneline noting that Fielding was “Miss [sic] Texas.”3 The articles did not discuss Fielding’s past (orfuture) in Texas, nor did it contain any information that was available only from Texas or Texassources.
Appellants argue that as a result of the articles, their reputations were destroyed amongst thepeople in Texas who knew them, even though appellants neither lived in nor had careers in Texasduring the relevant time period. To employ this approach would turn the jurisdictional analysis onits head, focusing attention not on where the alleged tortfeasor directed its activity, but on where thevictim could identify tangential harms. Such a flexible approach to the Calder effects test wouldcontravene “traditional notions of fair play.” Int’l Shoe, 326 U.S.at 316. An alleged tortfeasor musthave some control over the jurisdiction of his alleged tort, either through his intentional availment ofthe economic benefits of the forum, as in Keeton, 465 U.S. at 774–75, or through his direction of hisallegedly tortious activities towards the forum, such that the impact of the injury on the plaintiff andsubsequent exercise of jurisdiction by the courts is reasonably anticipated, as in Calder. 465 U.S. at789–90.
5. Conclusion
Courts have held that the absence of significant circulation is unimportant where the plaintiffcan demonstrate that the brunt of the harm will occur in the forum. See Gordy, 95 F.3d at 834. Here, Fielding and Borer have shown neither significant circulation nor certain harm in the forumstate. The brunt of the harm of the alleged libel was not suffered in Texas and the publishers did notmeaningfully direct their activities toward Texas. The district court correctly concluded that it lackedspecific jurisdiction.
B. The district court did not abuse its discretion by denying appellants’ request for additionaldiscovery.
1. Standard of Review
The discovery decisions of the trial judge are reviewed for abuse of discretion. Wichita FallsOffice Assocs. v. Banc One Corp., 978 F.2d 915, 918 (5th Cir. 1992). A district court’s discoverydecision will be reversed only if it is “arbitrary or clearly unreasonable,” Mayo v. Tri-Bell Indus., Inc.,787 F.2d 1007, 1012 (5th Cir. 1986), and the appellant demonstrates prejudice resulting from thedecision. Hastings v. N. E. Indep. Sch. Dist., 615 F.2d 628, 631 (5th Cir. 1980).2. Analysis
Fielding appeals the district court’s decision to cut off discovery on the issue of “whether allconstituents of the massive Burda enterprise and the massive Bertelsmann enterprise, assuming eachconstituent was a separate entity, were subject to the District Court’s specific and general jurisdictionunder the single business enterprise and alter ego theories of jurisdiction.” Because we concludeabove, as did the district court, that the district court lacks specific jurisdiction over any of the parties,the specific jurisdiction aspect of this argument will not be addressed. The remaining issue is whetherfurther jurisdictional discovery could demonstrate that a Texas court’s general jurisdiction over somesubsidiary or division of the defendant corporations might extend jurisdiction to the company as awhole.
A district court may exercise general jurisdiction over an out-of-state corporation under thesingle business enterprise doctrine when a subsidiary of the out-of-state corporation is subject to thecourt’s general jurisdiction. El Puerto De Liverpool v. Servi Mundo Llantero S.A. De C.V., 82S.W.3d 622, 636 (Tex.App.-Corpus Christi 2002, pet. dism’d w.o.j.) (“[J]urisdiction in Texas canbe affirmed on the single business enterprise theory.”). Typically used in the context of liability, thedoctrine applies “when corporations are not operated as separate entities, but integrate their resourcesto achieve a common business purpose.” Gardemal v. Westin Hotel Co., 186 F.3d 588, 594 (5th Cir.1999). The Court analyzes a number of factors to determine whether a single business enterprise ispresent. See El Puerto, 82 S.W.3d at 637.
The district court determined that appellants’ only evidence relevant to extending the districtcourt’s general jurisdiction was that Bertelsmann Media Group (“BMG”), a subsidiary ofBertelsmann, Inc., has a registered agent capable of receiving process in Texas. Appellants do notcontest the declaration of Jacqueline Chasey, the Senior Vice President for Legal Affairs atBertelsmann, Inc., which asserts that Bertelsmann, Inc. has no “substantial, continuous, andsystematic contacts with the State of Texas.” Because t he registration of an agent for receipt ofprocess does not establish general jurisdiction, see, e.g., Wenche Seimer v. Learjet Acquisition Corp.,966 F.2d 179, 181–82 (5th Cir. 1992), appellants have not shown how any further inquiry into therelationship between BMG and Bertelsmann, Inc. would impact the district court’s jurisdictionaldetermination.
Appellants sought further discovery to determine whether the court could exercise generaljurisdiction through the single business enterprise doctrine over Bertelsmann, Inc. due to generaljurisdiction over BMG. Because they failed to argue that the district court would have generaljurisdiction over BMG, appellants cannot show that they were prejudiced by the district court’srefusal to allow them to pursue the discovery. Moreover, appellants have not made even apreliminary showing of jurisdiction. Toys “R” Us, Inc. v. Step Two, S.A., 318 F.3d 446, 456 (3d Cir.,2003) (“If a plaintiff presents factual allegations that suggest with reasonable particularity the possibleexistence of the requisite contacts . . . the plaintiff's right to conduct jurisdictional discovery shouldbe sustained.”) (internal quotations and citation omitted). The district court did not abuse itsdiscretion.
III. CONCLUSION
For the foregoing reasons, the decision of the district court is AFFIRMED.
1 The story was also picked up by Hubert Burda Media-affiliated publications Neue Wocheand Viel Spass as well as the Bertelsmann-affiliated publication Tip. None of the parties allegesthat these publications are distributed in Texas. The analysis herein will address Stern and Tip,appellants’ strongest cases for the exercise of jurisdiction.
2 Fielding and Borer are vague about when and if they ever “lived” in Texas. Fieldingclaims to now “reside” in Texas, but it is clear that she must mean this in some technical sense,because she also states that “[w]hile living in Berlin . . . I continue[d] to be a resident of Dallasand the State of Texas.” While it is undisputed that the couple owns land in Texas, Appelleesnote an April 30, 2002 New York Times article which stated the appellants “will stay in Germanywhere [Borer] will be a consultant.” Borer also gave a phone interview to the New York Times“from his home in Potsdam” on July 14, 2002. Further, Fielding filed a Confirmation ofTermination of Residence form with the Mayor’s office in Potsdam on December 20, 2002, andsuch confirmations are to be filed “within two weeks” of actual termination of residence. Thus,contrary to appellants assertions, it seems that during virtually the entire time relevant to thislawsuit, Fielding and Borer appear to have been residents of Germany. See Panda BrandywineCorp. v. Potomac Elec. Power Co., 253 F.3d 865, 869 (5th Cir. 2001) (“[T]he prima-facie-caserequirement does not require the court to credit conclusory allegations, even if uncontroverted.”).
3 Fielding was Mrs. Texas.
Rechtsgebiete
Presserecht
