Opinion
Civil Action No. 1:00-CV-2935-ODE
June 20, 2001
ORDER
This civil action, alleging libel under Georgia law, and seeking compensatory and punitive damages, is presently before the court on the opposed motion to dismiss of Defendant Marcy Gordon ("Gordon"). For the reasons set forth below, Gordon's motion is granted.
Plaintiff Michael Weinstock ("Plaintiff") filed a complaint in the State Court of Fulton County, Georgia, on October 4, 2000, asserting a cause of action for libel pursuant to O.C.G.A. § 51-5-1 et seq. Plaintiff alleges that Defendants Associated Press ("AP") and Gannett, Inc. d/b/a USA Today ("Gannett") each published a news article authored by Defendant Gordon that contained the following false and defamatory statements: "The SEC also named in its complaint [against Mark Drucker] Michael Weinstock, an Atlanta attorney, saying he fraudulently made some $1.6 million from participating in Drucker's plan." Defendants removed the action to this court on November 6, 2000. Jurisdiction is proper pursuant to 28 U.S.C. § 1332 and 1441.
Gordon filed the instant motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(2). Gordon asserts that the court lacks personal jurisdiction over her insofar as she is a nonresident without sufficient contacts with the state of Georgia. As support for her claim, Gordon filed two declarations wherein she states that she has been a resident of the District of Columbia for the past ten years; that she is not now nor ever has been a resident of Georgia; and that she has visited the state of Georgia only briefly on three occasions between 1989 and 1990. [Def. Mot. to Dismiss, Gordon Decl. at 2; Def. Reply to Pl. Rsp. to Mot. to Dismiss, Gordon Decl. at 1-2]. Additionally, Gordon notes that the preparation and drafting of the news article at issue was conducted solely in her Washington, D.C. office. [Def. Mot. to Dismiss, Gordon Decl. at 2; Def. Reply to Pl. Rsp. to Mot. to Dismiss, Gordon Decl. at 2]. Her only contact with the state of Georgia in connection with that article consisted of telephone conversations with Securities and Exchange Commission officials in Atlanta. [Def. Reply to Pl. Rsp. to Mot. to Dismiss, Gordon Decl. at 2]. Furthermore, Gordon maintains that she owns no property in Georgia, and that she has never (1) done or solicited any business in Georgia; (2) engaged in any other persistent course of conduct in Georgia; or (3) derived any revenue from goods or services used or consumed in Georgia or services rendered in Georgia. [Def. Mot. to Dismiss, Gordon Decl. at 2; Def. Reply to Pl. Rsp. to Mot. to Dismiss, Gordon Decl. at 2].
Plaintiff contends that discovery is necessary to determine whether grounds for personal jurisdiction over Gordon in fact exist. Plaintiff maintains that a resolution of the motion to dismiss without at least limited discovery as to Gordon's contacts with the state of Georgia would be premature. See Process Control Corp. v. Witherup Fabrication, 439 F. Supp. 1284 (N.D.Ga. 1977) (denying motion to dismiss for lack of personal jurisdiction where plaintiff alleged that nonresident defendant had sufficient contacts with Georgia to satisfy long-arm statute's requirements).
Under Federal Rule of Civil Procedure 12(b)(2), the burden of establishing personal jurisdiction rests with the plaintiff. WeltIndustries, Inc. v. Weingart, 660 F. Supp. 424, 425 (N.D.Ga. 1987). If a complaint contains facts giving rise to a reasonable inference that the court has jurisdiction over the defendant, a motion to dismiss pursuant to Rule 12(b)(2) generally will be denied. However, if the defendant controverts the jurisdictional allegations, "the plaintiff must come forward with sufficient factual evidence to establish a prima facie showing of jurisdiction." Cable News Network, Inc. v. Video Monitoring Services of America, Inc., 723 F. Supp. 765, 766 (N.D.Ga. 1989).
A two-part inquiry determines whether a federal court may assert jurisdiction over a nonresident defendant. First, federal court jurisdiction is proper only to the extent permitted by the long-arm statute of the forum state. Southwire Company v. Trans-World Metals and Company, Ltd., 735 F.2d 440, 442 (11th Cir. 1984); Payne v. Kristofferson, 631 F. Supp. 39, 41 (N.D.Ga. 1985). Second, the due process clause of the Fourteenth Amendment to the United States Constitution must also be satisfied. Id.
The Georgia long-arm statute authorizes personal jurisdiction over any nonresident who:
(1) Transacts any business within this state;
(2) Commits a tortious act or omission within this state, except as to a cause of action for defamation of character arising from the act;
(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;
(4) Owns, uses, or possesses any real property situated within this state; or
(5) With respect to proceedings for alimony, child support, or division of property in connection with an action for divorce or with respect to an independent action for support of dependents, maintains a matrimonial domicile in this state at the time of the commencement of this action or, if the defendant resided in this state preceding the commencement of the action, whether cohabiting during that time or not. This paragraph shall not change the residency requirement for filing an action for divorce.
O.C.G.A. § 9-10-91. In the instant case, Plaintiff contends that jurisdiction over Gordon may be proper under subsections (2) or (3). [Pl. Rsp. to Mot. to Dismiss at 4].
The defamation exemption contained in subsection (2) significantly restricts the court's ability to assert jurisdiction in cases such as this. Because "First Amendment considerations surrounding the law of libel require a greater showing of contact to satisfy the due process clause than is necessary in asserting jurisdiction over other types of tortious activity," New York Times Co. v. Connor, 365 F.2d 567 (5th Cir. 1966), subsection (2) functions to prohibit the court from exercising jurisdiction over nonresident defendants whose only contacts with Georgia are the allegedly defamatory acts. Bradlee Mgmt. Servs., Inc. v. Cassells, 249 Ga. 614, 617 (1982). Jurisdiction may be proper under subsection (3) if the defendant has contacts with the forum state apart from those acts giving rise to the suit. Id.
Subsection (3) authorizes jurisdiction over a nonresident defendant who "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." O.C.G.A. § 9-10-91. Thus, where the requirements of subsection (3) are satisfied, personal jurisdiction will not be defeated merely because the plaintiff asserts a cause of action for defamation. See Process Control Corp., 439 F. Supp. at 1287 (N.D.Ga. 1977) (holding that the defamation exemption contained in subsection (2) does not preclude jurisdiction under subsection (3) where a plaintiff alleges that a nonresident defendant had sufficient contacts separate and apart from the allegedly defamatory acts).
The court finds Bradlee Mgmt. Servs., Inc. v. Cassells, 249 Ga. 614 (1982), to be dispositive. There, a Georgia plaintiff brought a defamation suit in state court against a news agency and Andy Cassells, its Washington, D.C. bureau chief. Id. at 615. The plaintiff alleged that a news report, prepared in part by Cassells in Washington and aired on television in Georgia, contained defamatory statements. Id. Cassells filed a motion to dismiss for lack of personal jurisdiction and argued that as a Virginia resident who worked exclusively in the Washington area, he did not possess sufficient contacts with the state of Georgia to satisfy the long-arm statute. Id. at 616. The trial court determined that because Cassells prepared the story with the knowledge and intent that it would be broadcast in Georgia, jurisdiction was proper. Such purposeful contact with the state required him to answer for any resulting harm in Georgia courts. Id. The Georgia Supreme Court concluded that while such contacts might satisfy due process concerns, they did not suffice for purposes of subsection (3) of the long-arm statute. The court explained that "Cassells has not regularly done or solicited business in the State of Georgia. He has not engaged in any persistent course of conduct in this state, and Cassells, as opposed to [his employer], does not derive substantial revenue from goods used or consumed or services rendered in this state." Id. at 618 (citations omitted). Therefore, Cassells was properly dismissed from the suit.
The instant case is on all fours with Bradlee. Like Cassells, Gordon prepared and drafted the news article at issue in her Washington, D.C. office. She is not a resident of Georgia and has only traveled to the state for three brief visits since 1989. [Def. Mot. to Dismiss, Gordon Decl. at 2; Def. Reply to Pl. Rsp. to Mot. to Dismiss, Gordon Decl. at 1-2]. According to her sworn declaration, her only remaining contacts with the state of Georgia consist of telephone conversations in conjunction with the preparation of the news article. [Def. Reply to Pl. Rsp. to Mot. to Dismiss, Gordon Decl. at 2]. In light of this evidence and controlling precedent, it appears that Gordon does not have the requisite contacts with the state of Georgia to trigger personal jurisdiction under subsection (3).
Plaintiff's reliance on Process Control Corp. v. Witherup Fabrication, 439 F. Supp. 1284 (N.D.Ga. 1977), is unavailing. There, the court found that personal jurisdiction under subsection (3) may be proper in a defamation action if a nonresident defendant has contacts with the forum state independent of the allegedly defamatory acts. Id. at 1287. That court authorized discovery to proceed based upon the plaintiff's contention that such contacts existed. Id. However, in the instant case, neither Plaintiff's complaint nor his response to Defendant's motion to dismiss contains factual allegations from which the court could infer that jurisdiction over Gordon is proper under subsection (3).
In his response to the motion to dismiss, Plaintiff simply states that he "anticipates discoverable facts will demonstrate to the Court that Defendant Gordon regularly engages in a persistent course of conduct with the State of Georgia which subjects her to the jurisdiction of this Court." [Pl. Rsp. to Def. Mot. to Dismiss at 8]. The only specific examples of Gordon's contacts with Georgia, however, relate to Gordon's news article containing the allegedly defamatory statements. [See Pl. Rsp. to Def. Mot. to Dismiss at 6 (reasoning "[f]or Defendant to write the defamatory story in question, which concerned events that took place within the State of Georgia, she must have had some continuous contacts here.")]. Under Bradlee, any such contacts would be irrelevant to an evaluation of the propriety of personal jurisdiction under Georgia's long-arm statute. See Bradlee, 249 Ga. at 617. Rather, for the court to authorize discovery on this issue, Plaintiff must allege that Gordon engaged in some course of conduct unrelated to the news article such that jurisdiction might be warranted under subsection (3). Having failed to do so, and having failed to controvert the assertions contained in Gordon's two sworn declarations, Plaintiff's bald assertions regarding the need for discovery cannot suffice.
Because the court finds that personal jurisdiction is not proper under Georgia's long-arm statute, the court need not analyze whether Gordon's contacts with the state satisfy the due process clause of the Fourteenth Amendment.
Accordingly, Defendant Marcy Gordon's motion to dismiss [#4] is hereby GRANTED. All claims asserted against Defendant Marcy Gordon are dismissed with prejudice.