Vincent Forras v. Imam Rauf , 812 F.3d 1102 ( 2016 )


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  •  United States Court of Appeals
    FOR THE DISTRICT OF COLUMBIA CIRCUIT
    Argued October 7, 2015            Decided February 12, 2016
    No. 14-7070
    VINCENT FORRAS AND LARRY ELLIOTT KLAYMAN,
    APPELLANTS
    v.
    IMAM FEISAL ABDUL RAUF AND ADAM LEITMAN BAILEY,
    APPELLEES
    Appeal from the United States District Court
    for the District of Columbia
    (No. 1:12-cv-00282)
    Larry Klayman argued the cause and filed the briefs for
    appellants.
    Christopher G. Hoge argued the cause and filed the brief
    for appellee Adam Leitman Bailey.
    Karl A. Racine, Attorney General for the Office of the
    District of Columbia, Ariel B. Levinson-Waldman, Senior
    Counsel to the Attorney General, Todd S. Kim, Solicitor
    General, and Loren L. AliKhan, Deputy Solicitor General,
    were on the brief for amicus curiae District of Columbia in
    support of appellees as to the applicability and
    constitutionality of the Anti-SLAPP Act.
    2
    Before: MILLETT and PILLARD, Circuit Judges, and
    WILLIAMS, Senior Circuit Judge.
    Opinion for the Court filed by Circuit Judge MILLETT.
    MILLETT, Circuit Judge: The question in this case is
    whether the United States District Court for the District of
    Columbia properly exercised personal jurisdiction over the
    Defendant, Adam Bailey, when (i) the Plaintiffs, Larry
    Klayman and Vincent Forras, are not District of Columbia
    residents; (ii) Defendant Bailey never set foot in the District
    in the two decades prior to the lawsuit; (iii) the lawsuit arises
    from allegedly defamatory statements Bailey made in a New
    York state court filing that (iv) were later published by a New
    York reporter (v) in a New York paper, and (vi) the
    statements concern Klayman’s and Forras’s roles in New
    York litigation concerning (vii) a controversial construction
    project in New York City.
    The answer to that question is a straightforward “no.”
    There is no personal jurisdiction in this case over Bailey in
    the District of Columbia.
    I
    This case has its genesis in a controversy surrounding the
    so-called “Ground Zero Mosque.” In mid-2010, Imam Feisal
    Abdul Rauf and others in New York City sought to build an
    Islamic community center and mosque in lower Manhattan, a
    few blocks from the site of the World Trade Center attacks of
    September 11, 2001. See Michael Barbaro, Debate Heating
    Up on Plans for Mosque Near Ground Zero, N.Y. TIMES, at
    A1 (July 31, 2010).
    On September 9, 2010, Vincent Forras, a former
    firefighter from South Salem, New York, filed suit in New
    3
    York Supreme Court against Imam Rauf. The lawsuit alleged
    that the plan to build a mosque and community center near the
    World Trade Center site constituted a nuisance, intentional
    and negligent infliction of emotional distress, and assault.
    Larry Klayman represented Forras in that lawsuit. Rauf,
    through his attorney Adam Bailey, filed a motion to dismiss
    the Forras complaint. His memorandum in support of that
    motion asserted, among other things, that (i) Forras was “a
    nationally recognized bigot,” (ii) Forras believes “Islam
    equates with terrorism,” and (iii) Forras has become
    “America’s Spokesman of Bigotry.” In addition, Bailey
    submitted an “Affirmation in Support of Motion to Dismiss”
    which said in relevant part:
    10. As a lawyer I cannot tolerate the destruction of
    the American Constitution at the hands of those who
    had been pledged to defend it. I will not let the right
    to prayer in the manner one chooses be silenced by
    shouts of rage; I will not let the right to the free
    exercise of religion be confined by narrowness of
    vision; and I will not let the right to erect a house of
    prayer be torn down by blind bigotry.
    11. Ground Zero is a scar upon the landscape of New
    York City not only because of the loss of 3,000
    innocent lives, sacrificed at the altar of international
    fanaticism, but because it allows bigotry like that of
    Plaintiff in this suit to flourish in the rich mud of
    ignorance and religious intolerance. The diversity of
    America is not its weakness, but its strength. When
    in the days following an analogous atrocity in 1941
    our people marshaled their will and marched off,
    nobody was an American of this type or that. We
    were all united under a single banner pledged to
    eradicate the very kind of religious intolerance we
    4
    see in Plaintiff, represented in those years by the
    Third Reich and those aligned with it.
    On October 11, 2010, the New York Post—a New York-
    based daily newspaper with nationwide circulation—
    published an article quoting one of those statements. J.A. 136
    (“The developers behind the proposed mosque and cultural
    center near Ground Zero are blasting a $350 million lawsuit
    filed by a 9/11 first responder as ‘blind bigotry.’”).
    The New York Supreme Court subsequently granted
    Rauf’s motion to dismiss on the ground that the complaint
    failed to state any legally cognizable claim for relief. See
    Forras v. Rauf, 
    975 N.Y.S.2d 366
    , 
    2012 WL 7986872
    (N.Y.
    Sup. Ct. 2012).
    Shortly thereafter, both Forras and Klayman filed suit
    against Bailey in the District of Columbia Superior Court
    alleging defamation, false light, assault, and intentional
    infliction of emotional distress caused by the statements
    Bailey made in dismissal papers filed in New York Supreme
    Court and the reporting of one of those statements in the New
    York Post.      Four months later, Klayman and Forras
    voluntarily dismissed that lawsuit and filed the present action
    against Bailey in the United States District Court for the
    District of Columbia. 1
    Bailey filed a motion to dismiss on multiple grounds,
    asserting: (i) lack of subject-matter jurisdiction; (ii) lack of
    personal jurisdiction; (iii) statute of limitations; (iv) the
    judicial-proceedings privilege; (v) First Amendment
    protection; and (vi) collateral estoppel and res judicata. In
    1
    Although the Plaintiffs sued Rauf in federal court, Rauf did
    not appear in the district court and does not appear here.
    5
    addition, Bailey asked the court to dismiss the case under the
    District of Columbia’s Anti-Strategic Lawsuits Against Public
    Participation Act of 2010 (the Anti-SLAPP Act), D.C. Code
    § 16-5501–5505. That law imposes a heightened pleading
    standard for claims related to “act[s] in furtherance of the
    right of advocacy on issues of public interest” by requiring
    plaintiffs to show that their claims are “likely to succeed on
    the merits.” 
    Id. § 16-5502(b).
    The district court granted the motion to dismiss. The
    court first held that the District’s Anti-SLAPP Act, rather than
    ordinary federal rules of pleading, should be applied in federal
    diversity cases. The court then held that the complaint failed
    under the Anti-SLAPP Act because Forras and Klayman had
    not shown that they were likely to succeed on the merits of
    any of their claims. 2 In addition, the court ruled that the
    statute of limitations barred all of the claims in the complaint.
    The district court did not address either subject-matter or
    personal jurisdiction. 3
    II
    Bailey’s motion to dismiss raised both jurisdictional and
    merits objections to the complaint. Ordinarily, determining
    jurisdiction is a federal court’s first order of business.
    2
    This court subsequently ruled in Abbas v. Foreign Policy
    Group, LLC, 
    783 F.3d 1328
    (D.C. Cir. 2015), that a federal court
    exercising diversity jurisdiction cannot apply the Anti-SLAPP
    Act’s heightened pleading provision.
    3
    Bailey also filed a motion for attorneys’ fees, and the district
    court’s order invited Bailey to document his request. The district
    court, however, subsequently stayed the attorneys’ fee motion
    pending disposition of this appeal.
    6
    “Without jurisdiction the court cannot proceed at all in any
    cause.” Ex parte McCardle, 74 U.S. (7 Wall.) 506, 514
    (1868). Indeed, for a district court “to pronounce upon the
    meaning or the constitutionality of a state or federal law when
    it has no jurisdiction to do so is, by very definition, for a court
    to act ultra vires.” Steel Co. v. Citizens for a Better
    Environment, 
    523 U.S. 83
    , 101–102 (1998); see also, e.g.,
    Broudy v. Mather, 
    460 F.3d 106
    , 111 (D.C. Cir. 2006) (“We
    begin, as we must, with the question whether the District
    Court had jurisdiction to consider the plaintiffs’ claims.”);
    Tuck v. Pan American Health Org., 
    668 F.2d 547
    , 549 (D.C.
    Cir. 1981) (“Jurisdiction is, of necessity, the first issue for an
    Article III court.”).
    Without even acknowledging this background rule, the
    district court leapfrogged over the serious jurisdictional issues
    that Bailey raised and decided the Anti-SLAPP Act and
    statute-of-limitations questions. But assessing jurisdiction is
    not a “legal nicet[y]”; it is an “essential ingredient” of our
    ability to hear a case. Steel 
    Co., 523 U.S. at 101
    . The district
    court plainly should have satisfied any jurisdictional concerns
    before turning to a merits question like the Anti-SLAPP Act.
    And the court should have at least paused to address whether
    deciding an issue like the statute of limitations before
    confirming its jurisdiction accords with Steel Co. and its
    progeny. Cf. Sinochem International Co. Ltd. v. Malaysia
    International Shipping Corp., 
    549 U.S. 422
    , 432 (2007)
    (recognizing that a court may dismiss a case on forum non
    conveniens grounds before addressing jurisdiction).
    What is clear is that we can “turn[] directly to personal
    jurisdiction” to resolve this case because, unlike the
    complicated subject-matter jurisdiction and fact-intensive
    statute-of-limitations issues in this case, the absence of
    personal     jurisdiction   over   Defendant      Bailey    is
    7
    “straightforward” and “present[s] no complex question of
    state law,” Ruhrgas AG v. Marathon Oil Co., 
    526 U.S. 574
    ,
    588 (1999). 4
    The complaint fails to allege any plausible basis for
    exercising personal jurisdiction over the only defendant in this
    case, Adam Bailey. To establish personal jurisdiction over a
    non-resident like Bailey, we must first decide whether
    statutory jurisdiction exists under the District’s long-arm
    statute and, if it does, then we must determine whether an
    exercise of jurisdiction would comport with constitutional
    limitations. See GTE New Media Services Inc. v. BellSouth
    Corp., 
    199 F.3d 1343
    , 1347 (D.C. Cir. 2000). 5
    The District of Columbia’s long-arm statute provides, as
    relevant here:
    4
    With respect to subject-matter jurisdiction, the Plaintiffs
    failed specifically to allege the parties’ diverse citizenship in their
    complaint, even though they bore the burden of establishing
    jurisdiction by “pleading the citizenship of each and every party to
    the action.” Naartex Consulting Corp. v. Watt, 
    722 F.2d 779
    , 792
    (D.C. Cir. 1983). The Plaintiffs did, however, include addresses
    from diverse States below each party’s name in the case caption. It
    is far from clear that merely listing addresses in a caption
    discharges a plaintiff’s duty to plead facts showing diverse
    citizenship. Nevertheless, given the clear absence of personal
    jurisdiction, we need not address that question, and we deny as
    moot the Plaintiffs’ motion to amend the record on appeal to allege
    facts bearing on the parties’ citizenship.
    5
    The Plaintiffs have never alleged that Bailey had such
    “continuous and systematic” contacts within the District of
    Columbia to warrant the assertion of general personal jurisdiction,
    nor could they on this record. See International Shoe Co. v.
    Washington, 
    326 U.S. 310
    , 317 (1945).
    8
    (a) A District of Columbia court may exercise
    personal jurisdiction over a person, who acts directly
    or by an agent, as to a claim for relief arising from
    the person’s —
    (1) transacting any business in the District of
    Columbia;
    *****
    (3) causing tortious injury in the District of
    Columbia by an act or omission in the District of
    Columbia; [or]
    (4) causing tortious injury in the District of
    Columbia by an act or omission outside the 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).
    The complaint’s allegations fall short of what the long-
    arm statute requires.
    First, with respect to subsection (a)(1), the Plaintiffs did
    not allege “a claim for relief arising from [Bailey’s] * * *
    transacting any business in the District of Columbia,” or even
    suggest that he conducts or ever conducted any business
    within the District. D.C. Code § 13-423(a)(1). To be sure,
    that provision has been held “to be coextensive (for cases that
    fit within its description) with the Constitution’s due process
    limit.” Crane v. Carr, 
    814 F.2d 758
    , 762 (D.C. Cir. 1987)
    (Ruth Bader Ginsburg, J.) (citing Mouzavires v. Baxter, 434
    
    9 A.2d 988
    , 990–992 (D.C. 1981)). But subsection (a)(1) still
    “contemplates a connection that [is] []related to the claim in
    suit.” 
    Id. at 763.
    Bailey “d[id] not, nor ha[d] [he] ever
    practiced law or conducted any * * * business in the District
    of Columbia,” and he had not even “visited the District of
    Columbia for any purpose since 1990.” J.A. 49. After the
    complaint was filed, he made a single, three-day trip to the
    District of Columbia in September 2012 for a conference that
    was entirely unrelated to this lawsuit. “Otherwise, [he had]
    no personal or professional contacts with the District of
    Columbia.” 
    Id. The Plaintiffs
    have neither disputed those facts nor made
    any plausible allegation linking their defamation and other
    related claims to business Bailey conducted within the
    District. All the Plaintiffs have argued under this prong of the
    long-arm statute is that Bailey’s “activity was directed at a
    D.C. resident and, in fact, reached and affected said resident.”
    ECF No. 9 at 13. The plain text of subsection (a)(1),
    however, focuses on where the defendant undertook the
    challenged (business) actions, not where the plaintiff felt the
    injury, and the Plaintiffs’ argument does nothing to suggest
    that Bailey himself transacted his challenged legal (or any
    other) business in the District.
    Second and similarly, with respect to subsection (a)(3),
    the complaint makes no plausible allegation that Bailey’s
    tortious “act or omission” was undertaken in the District.
    D.C. Code § 13-423(a)(3). To the contrary, the complaint is
    clear that the challenged statements were made in New York.
    The Plaintiffs argued below that the court could assert
    personal jurisdiction under subsection (a)(3) because the
    alleged injury was felt within the District. Controlling circuit
    precedent forecloses that argument. Subsection (a)(3) “is a
    10
    precise and intentionally restricted tort section, * * * which
    stops short of the outer limits of due process, * * * and which
    confers jurisdiction only over a defendant who commits an act
    in the District which causes an injury in the District, without
    regard to any other contacts.” Moncrief v. Lexington Herald-
    Leader Co., 
    807 F.2d 217
    , 221 (D.C. Cir. 1986) (emphasis
    added; citations and quotation marks omitted). And this court
    has twice held that publishing defamatory or otherwise
    tortious statements within the District that were made outside
    the District falls short of what subsection (a)(3) requires.
    In McFarlane v. Esquire Magazine, 
    74 F.3d 1296
    (D.C.
    Cir. 1996), this court ruled that subsection (a)(3) did not
    permit the exercise of personal jurisdiction over the author of
    an allegedly defamatory article that was published in Esquire
    Magazine in New York because the author’s “acts were not in
    the District; it [was] undisputed that he wrote the article in
    New York and delivered it to Esquire in New York.” 
    Id. at 1300.
    In so holding, we explicitly rejected the argument—
    pressed again by the Plaintiffs here—that their “injury is part
    of the tort.” 
    Id. That is
    because such a theory “would
    obliterate subsection (3)’s careful distinction between ‘injury’
    and ‘act.’” 
    Id. Likewise, in
    Moncrief, we held that subsection (a)(3) had
    no application to a claim that a nonresident newspaper
    publisher had “sen[t] an allegedly libelous article into the
    District of 
    Columbia.” 807 F.2d at 218
    . The relevant “act,”
    we explained, was the “uttering [of] defamatory statements,”
    and the “printing and mailing of the newspaper,” all of which
    happened outside of the District. 
    Id. at 220
    (internal quotation
    marks and citation omitted). In direct answer to the Plaintiffs’
    argument here, Moncrief ruled that subsection (a)(3) draws a
    sharp line between “the act of the defendant and the injury it
    causes,” 
    id. at 221,
    so that alleging that “[t]he brunt of the
    11
    injury, in particular the damage to appellants’ professional
    reputation, occurred in Washington, D.C.” falls far short of
    triggering subsection (a)(3) of the long-arm statute, 
    id. at 220
    n.7 (quoting Brief of Appellant at 7–8, Moncrief, 
    807 F.2d 217
    (No. 85-6153)); see also Margoles v. Johns, 
    483 F.2d 1212
    , 1213 (D.C. Cir. 1973) (subsection (a)(3) does not
    support personal jurisdiction over an out-of-District
    newspaper reporter who called a congressional office and
    “maliciously spoke” of the plaintiff).
    Given that extensive, directly on-point, and controlling
    precedent, for which the Plaintiffs offered no colorable
    distinction, the assertion of personal jurisdiction under
    subsection (a)(3) is meritless.
    Third and finally, subsection (a)(4) provides the Plaintiffs
    no jurisdictional refuge. That provision permits an exercise of
    jurisdiction over a tortious act or omission committed outside
    the District that causes injury within the District if, and only
    if, the defendant “regularly does or solicits business, engages
    in any other persistent course of conduct, or derives
    substantial revenue from * * * services rendered” in the
    District. D.C. Code § 13-423(a)(4). “The drafters of [D.C.’s
    long-arm statute] apparently intended that the (a)(4)
    subsection would not occupy all of the constitutionally
    available space.” 
    Crane, 814 F.2d at 762
    . The statute
    requires both an injury inside the District, and that “the
    defendant engages in some persistent course of conduct or
    derives substantial revenue from the District.” 
    Moncrief, 807 F.2d at 221
    . Nothing in the complaint or the Plaintiffs’
    argument even hints at such persisting conduct or benefit tied
    to the District.
    The Plaintiffs argued that the “continuing and ongoing”
    publication of Bailey’s allegedly defamatory comments
    12
    triggered subsection (a)(4). ECF No. 9 at 15. Not so. Bailey
    has not published anything within the District; he just filed his
    dismissal papers in New York state court. Indeed, just as in
    McFarlane, not a word of the complaint alleges that Bailey
    made a penny from the newspaper’s publication within the
    District of a single quote from his dismissal papers. See
    
    McFarlane, 74 F.3d at 1300
    .             Moreover, McFarlane
    specifically held that “writing an article for a publication that
    is circulated throughout the nation, including the District,
    hardly constitutes doing or soliciting business, or engaging in
    a persistent course of conduct, within the District.” 
    Id. Even less
    so, then, could Bailey’s remarks in papers filed in a New
    York court that someone else chose to quote in a newspaper
    article suffice. 6
    The Supreme Court’s decision in Calder v. Jones, 
    465 U.S. 783
    (1984)—which was issued well before our decision
    in McFarlane—does nothing to help the Plaintiffs. That
    decision analyzed personal jurisdiction under the federal
    Constitution’s Due Process Clause alone, because California’s
    long-arm statute allowed jurisdiction “whenever permitted by
    the state and federal Constitutions.”      
    Id. at 789
    n.5.
    Subsection (a)(4)’s reach is far more cabined.           See
    
    McFarlane, 74 F.3d at 1300
    ; 
    Crane, 814 F.2d at 762
    ;
    
    Moncrief, 807 F.2d at 221
    .
    6
    The Plaintiffs also make the argument that “[d]efendants
    intended to reach the public in D.C., particularly the many Muslims
    residing in D.C.” so that the Plaintiffs “would be subject to attacks
    incited by the defamatory statements.” ECF No. 9 at 14. That bald
    assertion is unsupported by any assertion of fact within the
    complaint. Anyhow, the intent to reach readers in the District did
    not work in McFarlane, and fares no better here.
    13
    In any event, the Calder Court allowed personal
    jurisdiction over the reporter and publisher of an allegedly
    defamatory article because the article concerned the
    “California activities of a California resident,” and “[t]he
    article was drawn from California 
    sources.” 465 U.S. at 788
    (emphases added). As a result, “California [was] the focal
    point both of the story and of the harm suffered.” 
    Id. at 789
    .
    This case, by contrast, involves the alleged defamation in
    New York of a non-District resident by a New York resident
    arising out of New York litigation over a New York land-
    development dispute. Neither the District of Columbia nor
    any conduct by any party within the District is even
    mentioned in the pleadings or the article at issue.
    On top of that, the Plaintiffs here seek to assert personal
    jurisdiction over the author of an affidavit and legal brief that
    provided the source of a quoted statement in an article; they
    have not sued the author or publisher of an article, as occurred
    in Calder. See Clemens v. McNamee, 
    615 F.3d 374
    , 380 (5th
    Cir. 2010) (Due Process Clause did not permit Texas courts to
    assert personal jurisdiction over a non-Texas resident for
    allegedly defamatory statements made in New York about a
    Texas plaintiff and published by Sports Illustrated in a widely
    publicized report and on its website, since “the statements did
    not concern activity in Texas; nor were they made in Texas or
    directed to Texas residents any more than residents of any
    state.”).
    * * *
    Under controlling circuit precedent, the complaint makes
    no plausible allegation of personal jurisdiction over Bailey,
    and the district court should have promptly dismissed the case
    on that basis. However, because the district court dismissed
    the case, we can affirm the district court’s judgment on the
    14
    alternative ground that it lacked jurisdiction, see FED. R. CIV.
    P. 12(b)(2).
    So ordered.