Ouazzani-Chahdi v. Greensboro News & Record, Inc. , 200 F. App'x 289 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
In the September 12, 2006
United States Court of Appeals Charles R. Fulbruge III
for the Fifth Circuit Clerk
_______________
m 05-20957
Summary Calendar
_______________
ANWAR OUAZZANI-CHAHDI,
Plaintiff-Appellant,
VERSUS
GREENSBORO NEWS & RECORD, INC.,
Defendant-Appellee.
_________________________
Appeal from the United States District Court
for the Southern District of Texas
m 4:05-CV-1898
______________________________
Before SMITH, WIENER, and OWEN, ord, Inc. (“News & Record”), for slander per
Circuit Judges. se, negligence, and gross negligence based on
an allegedly defamatory news article. The
JERRY E. SMITH, Circuit Judge:* district court dismissed for lack of personal
jurisdiction. We affirm.
Anwar Ouazzani-Chahdi, an attorney ap-
pearing pro se, sued Greensboro News & Rec- I.
News & Record, a North Carolina corpora-
tion with principal place of business there,
*
Pursuant to 5TH CIR. R. 47.5, the court has de- publishes the News & Record, a newspaper
termined that this opinion should not be published circulated primarily in Guilford County, North
and is not precedent except under the limited cir- Carolina. Of the paper’s 95,600 daily copies,
cumstances set forth in 5TH CIR. R. 47.5.4.
99% are distributed in North Carolina; only Ouazzani-Chahdi sued News & Record in
three subscriptions are distributed in Texas. Texas state court, asserting that the defama-
tory article had caused him physical and rep-
In 2004 the News & Record published a utational harm. News & Record removed to
story about sham marriages used by immi- federal court via diversity jurisdiction under
grants to obtain United States citizenship il- 28 U.S.C. § 1332, then successfully moved
legally. Lynn Hey, Fake-marriage schemes under Federal Rule of Civil Procedure 12-
commonplace, NEWS & RECORD (Greensboro, (b)(2) to dismiss for lack of personal jurisdic-
N.C.), Apr. 25, 2004, at A1. The article fo- tion.
cused on a local immigration attorney, Manlin
Chee, who was allegedly under investigation II.
by the FBI for helping immigrants arrange The district court held that it lacked both
such marriages. The article mentioned five general and specific jurisdiction over News &
domestic relations cases that had been filed in Record. Ouazzani-Chahdi appeals only the
Guilford County, North Carolina. Chee repre- finding that the court lacked specific jurisdic-
sented one of the parties in each of the five tion.
cases, and all of them involved marriages that
were allegedly shams. We review de novo a district court’s deter-
mination that it lacks personal jurisdiction.
One of these marriages was that of Ouaz- Revell v. Lidov, 317 F.3d 467, 469 (5th Cir.
zani-Chahdi, who had hired Chee to represent
him in his divorce. Ouazzani-Chahdi, who
used to reside in North Carolina, is now a 1
(...continued)
Texas citizen. The story alleged, based on ried him,” her lawyer, John W. Lunsford,
quotations from his ex-wife and her lawyer, wrote to the court.
that Ouazzani-Chahdi had married to obtain
permanent legal resident status. The lawyer Anwar Ouazzani-Chahdi hired Chee to rep-
stated that had Ouazzani-Chahdi’s ex-wife resent him. Chee responded that there was no
known that this was his motivation she would deception and that the couple had attended
marriage counseling to salvage the relation-
not have married him.1
ship.
Lunsford said in an interview last week that
1
The mention of Ouazzani-Chahdi is, in its en- wasn’t the case, Anwar Ouazzani-Chahdi
tirety, as follows: quickly lost interest in his new life after the
marriage was complete. Lunsford said the cou-
In 1998, Myriah I. Ouazzani-Chahdi filed for ple lived together only a short time.
an annulment of her marriage to Anwar Ouaz-
zani-Chahdi, who was not a U.S. citizen. In “It wasn’t what we consider a real marriage,”
her complaint, the wife called her marriage a Lunsford said.
“sham, as a means for obtaining permanent
legal resident status” for Anwar Ouazzani- Attempts to reach Anwar Ouazzani-Chahdi
Chahdi. were unsuccessful.
“Had she known that (Anwar Ouazzani- A judge refused the annulment but later grant-
Chahdi) was marrying her to obtain legal resi- ed Myriah Ouazzani-Chahdi a divorce, Luns-
dence status with the (Immigration and Natu- ford said. Citizenship records are not public,
ralization Service), she would have never mar- and it is unclear whether Anwar Ouazzani-
(continued...) Chahdi became a citizen.
2002). The plaintiff bears the burden of es- Specific jurisdiction in suits alleging an in-
tablishing jurisdiction, but need only present tentional tort based on the publication of de-
prima facie evidence. Kelly v. Syria Shell famatory material exists for (1) publication
Petroleum Dev. B.V., 213 F.3d 841, 854 (5th with adequate circulation in the forum state or
Cir. 2000). All relevant factual disputes are (2) an author or publisher who “aims” a story
resolved in plaintiff’s favor. Alpine View Co. at the state knowing that the “effects” of the
Ltd. v. Atlas Copco AB, 205 F.3d 208, 215 story will be felt there. Fielding v. Hubert
(5th Cir. 2000). “Although jurisdictional alle- Burda Media, Inc., 415 F.3d 419, 425 (5th
gations must be accepted as true, such accep- Cir. 2005) (citing Keeton v. Hustler Maga-
tance does not automatically mean that a pri- zine, Inc., 465 U.S. 770, 773-74 (1984); Cal-
ma facie case for specific jurisdiction has der v. Jones, 465 U.S. 783, 789-90 (1984)).
been presented.” Panda Brandywine Corp. v. Ouazzani-Chahdi does not appeal the holding
Potomac Elec. Power Co., 253 F.3d 865, 868 that News & Record’s circulation of three
(5th Cir. 2001). copies in Texas falls short of an “adequate cir-
culation in the state” such that personal juris-
A federal district court sitting in diversity diction is warranted under Keeton. Thus, we
may exercise personal jurisdiction over a de- turn to the “effects” test of Calder.
fendant if (1) the long-arm statute of the for-
um state establishes personal jurisdiction and As distinguished from Keeton jurisdiction,
(2) the exercise of personal jurisdiction does which is based on the number of subscriptions
not exceed the boundaries of the Due Process distributed in the forum, Calder jurisdiction
Clause of the Fourteenth Amendment. Revell, requires a “case-by-case analysis of the pur-
317 F.3d at 469. Texas’s long-arm statute pose and impact of the publication in ques-
reaches to the limits permitted by the Consti- tion.” Fielding, 415 F.3d at 425. In addition
tution, so the inquiry collapses into whether to requiring that the “effects” of the story be
the exercise of jurisdiction over News & Rec- felt in the forum, this court has held that the
ord would offend due process. Electrosource, “aim” of the defendant under the Calder test
Inc. v. Horizon Battery Techs., Ltd., 176 F.3d must be demonstrated by showing that
867, 871 (5th Cir. 1999). (1) “the subject matter of and (2) the sources
relied upon for the article were in the forum
The Due Process Clause “operates to limit state.” Id. at 426 (citing Revell, 317 F.3d at
the power of a State to assert in personam 474 & n.48).
jurisdiction over a nonresident defendant.”
Helicopteros Nacionales de Colombia, S.A. v. III.
Hall, 466 U.S. 408, 413-14 (1984). It permits In Calder the plaintiff was a California res-
courts to exercise personal jurisdiction over a ident who sued an editor and a writer for the
foreign defendant where (1) “that defendant National Enquirer, both residents of Florida,
has purposefully availed himself of the bene- for libel in California state court. The Su-
fits and protections of the forum state by es- preme Court upheld personal jurisdiction over
tablishing ‘minimum contacts’ with the forum defendants because they had “expressly
state and (2) the exercise of jurisdiction over aimed” the article toward California. Calder,
that defendant does not offend ‘traditional 465 U.S. at 789. The Court based this conclu-
notions of fair play and substantial justice.’” sion on several factors: The story drew on
Revell, 317 F.3d at 470 (quoting Int’l Shoe California sources, it focused on the Califor-
Co. v. Washington, 326 U.S. 310, 316 (1945)). nia activities of a California resident, and the
bulk of the harm caused to the plaintiff was
suffered in California. Id. at 788-89. The found in Calder, in which the publisher relied
Court also noted that the National Enquirer on California sources to cover the California
circulated more copies in California than in activities of a California resident.
any other state, so defendants knew that the
brunt of the injury to the plaintiff would be Here the contacts with the forum are even
felt in California. Id. at 790. The Enquirer more scant than were those in Fielding, in
had a total circulation of 5 million, of which which personal jurisdiction was not found.
600,000 were sold in California. Id. at 785. The German magazine in Fielding relied on at
least some Texas sources and tangentially
We elaborated on the Calder test in Field- covered plaintiff’s Texas background. This
ing, a case concerning defamatory articles court ruled that those contacts were insuffi-
published by two German magazines about a cient to establish that the defendant “aimed”
Texas resident who had lived in Berlin. its conduct toward Texas under Calder. News
Fielding, 415 F.3d at 422-24. The story de- & Record distributed fewer copies to the for-
famed the plaintiff and falsely reported that um than were distributed in Fielding, used
her husband had had an extramarital affair in fewer forum sources, and included less mate-
Europe. The article made reference to plain- rial about the forum in the story (indeed, no
tiff’s college years and modeling career in material at all). Consequently, News & Re-
Texas and used sources in Texas to conduct cord did not sufficiently “aim” its conduct
background research. Id. at 426. Of the toward Texas such that a Texas court can ex-
magazine’s total weekly circulation of ercise personal jurisdiction.
750,000, 70 copies were distributed in Texas.
Despite these contacts, we held that personal Ouazzani-Chahdi bases his argument in
jurisdiction could not be exercised over the large part on the availability of his biographi-
foreign defendant, because the article “con- cal information, including his Texas residen-
cerned the German activities of individuals in cy, on the internet. If one enters his name into
Germany.” Id. at 427. Further, another indi- particular internet search engines, one result
cator that the article was plainly “aimed” at will be a website indicating that he is em-
Germany was that 97% of the issues were ployed by a Houston law firm. He thus as-
sold there. Id. serts that even if News & Record was un-
aware that he resided in Texas, this could be
The present case resembles the facts of discovered with minimal effort.
Fielding much more than those of Calder. As
we have said, News & Record circulated only We must resolve all factual disputes in fa-
three copies in Texas, far fewer than the vor of Ouazzani-Chahdi. Despite this, the
600,000 that were sent in Calder (in which sole fact that News & Record knew, or could
personal jurisdiction was found to exist), and have determined through an internet search,
also fewer than the 70 in Fielding (in which that Ouazzani-Chahdi now works at a Texas
no jurisdiction was found). The News & Rec- firm is insufficient to establish personal juris-
ord article covered the North Carolina activi- diction under Calder. “[T]he plaintiff’s mere
ties of persons there. All five of the marriages residence in the forum state is not sufficient to
described, including Ouazzani-Chahdi’s, in- show that the defendant had knowledge that
volved a domestic relations action filed in effects would be felt there; a ‘more direct aim
North Carolina. No Texas sources were used is required.’” Fielding, 415 F.3d at 427 (quot-
in the story, and there was no mention of Tex- ing Revell, 317 F.3d at 476). As discussed
as. These facts stand in stark contrast to those above, there is no evidence, other than the fact
of a mere three subscriptions, that defendants
“aimed” any conduct toward Texas.
In sum, Ouazzani-Chahdi failed to make a
prima facie showing of personal jurisdiction
over News & Record. We AFFIRM the dis-
missal for want of personal jurisdiction.