Vincent Forras, et al v. Imam Rauf, et al

Filing

OPINION [1598632] filed (Pages: 14) for the Court by Judge Millett. [14-7070]

USCA Case #14-7070

Document #1598632

Filed: 02/12/2016

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.

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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

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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

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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 Yorkbased 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.

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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.

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“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

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“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).

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(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 longarm 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

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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

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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 HeraldLeader 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

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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

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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.

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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 landdevelopment 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

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alternative ground that it lacked jurisdiction, see FED. R. CIV.
P. 12(b)(2).
So ordered.

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