Lovingood v. Discovery Communications Inc et al
MEMORANDUM OPINION - For the reasons stated above, the Court DENIES Discoverys motion to dismiss for failure to state a claim upon which relief can be granted. (Doc. 6). The Court GRANTS BBCs motion to dismiss for lack of personal jurisdiction (Doc. 14) and GRANTS Kate Gartsides motion to dismiss for lack of personal jurisdiction (Doc. 32). The Court requests that the remaining parties please file a notice containing an amended proposed scheduling order. Signed by Judge Madeline Hughes Haikala on 9/30/2015. (KEK)
2015 Sep-30 PM 05:35
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
JUDSON A. LOVINGOOD,
COMMUNICATIONS, INC., et al.,
Case No.: 5:14-cv-00684-MHH
“The Challenger Disaster,” a popular 2013 film, chronicled the events
leading up to the tragic crash that destroyed The Challenger spacecraft in 1986 and
killed its entire crew. A scene in the film depicts Judson Lovingood, a NASA
engineer, testifying in front of the Presidential Commission that investigated the
disaster. Mr. Lovingood contends that the film defames him and paints him in a
false light. Mr. Lovingood brought this defamation lawsuit against the defendants
Discovery Communications Inc., The Science Channel, The Discovery Channel,
the British Broadcasting Corporation, The Open University, and Kate Gartside for
their roles in writing, producing, and broadcasting the film. 1
Channel, Discovery Communications, Inc., and the Science Channel (hereinafter
During the oral argument on defendant The Open University’s motion to dismiss, the plaintiff
conceded that The Open University was due to be stricken as a defendant in this action, and the
Court granted The Open University’s motion to dismiss. (Doc. 30).
“Discovery”) have jointly filed a motion to dismiss the complaint for failure to
state a claim. (Doc. 6). BBC has filed a motion to dismiss for lack of personal
jurisdiction and failure to state a claim (Doc. 14), and Kate Gartside has filed a
motion to dismiss for lack of personal jurisdiction and insufficient service of
process (Doc. 32). For the reasons discussed, the Court denies Discovery’s motion
to dismiss, grants BBC’s motion to dismiss, and grants Ms. Gartside’s motion to
STANDARDS OF REVIEW
Rule 12(b)(6) enables a defendant to move to dismiss a complaint for
“failure to state a claim upon which relief can be granted.” Fed. R. Civ. P.
12(b)(6). Pursuant to Rule 8(a)(2), a complaint must contain, “a short and plain
statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ.
P. 8(a)(2). “Generally, to survive a [Rule 12(b)(6)] motion to dismiss and meet the
requirement of Fed. R. Civ. P. 8(a)(2), a complaint need not contain ‘detailed
factual allegations,’ but rather ‘only enough facts to state a claim to relief that is
plausible on its face.’” Maledy v. City of Enterprise, 2012 WL 1028176, at *1
(M.D. Ala. Mar. 26, 2012) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555,
570 (2007)). “Specific facts are not necessary; the statement needs only ‘give the
defendant fair notice of what the . . . claim is and the grounds upon which it rests.’”
Erickson v. Pardus, 551 U.S. 89, 93 (2007) (quoting Twombly, 550 U.S. at 555).
In deciding a Rule 12(b)(6) motion to dismiss, a court must view the
allegations in a complaint in the light most favorable to the non-moving party.
Watts v. Fla. Int’l Univ., 495 F.3d 1289, 1295 (11th Cir. 2007). A court must
accept well-pleaded facts as true. Grossman v. Nationsbank, N.A., 225 F.3d 1228,
1231 (11th Cir. 2000).
“A plaintiff seeking to establish personal jurisdiction over a nonresident
defendant ‘bears the initial burden of alleging in the complaint sufficient facts to
make out a prima facie case of jurisdiction.’” Louis Vuitton Malletier, S.A. v.
Mosseri, 736 F.3d 1339, 1355 (11th Cir. 2013) (quoting United Techs. Corp. v.
Mazer, 556 F.3d 1260, 1274 (11th Cir. 2009)). “Where, as here, the defendant
challenges jurisdiction by submitting affidavit evidence in support of its position,
the burden traditionally shifts back to the plaintiff to produce evidence supporting
jurisdiction.” Mazer, 556 F.3d at 1274 (internal quotation marks and citations
omitted). To survive a motion to dismiss for lack of personal jurisdiction, the nonmoving party must “present enough evidence to withstand a motion for a directed
verdict.” Stubbs v. Wyndham Nassau Resort & Crystal Palace Casino, 447 F.3d
1357, 1360 (11th Cir. 2006). A motion for a directed verdict must be denied where
“there is substantial evidence opposed to the motion such that reasonable people, in
the exercise of impartial judgment, might reach differing conclusions.” Carter v.
City of Miami, 870 F.2d 578, 581 (11th Cir. 1989). Although defendants may
submit affidavits in support of 12(b)(2) motions, the Court must construe all
reasonable inferences and factual conflicts in favor of the non-moving party.
Stubbs, 447 F.3d at 1360.
FACTUAL AND PROCEDURAL BACKGROUND
Launched in 1986, the Space Shuttle Challenger came apart shortly after
takeoff in a crash that killed the shuttle’s seven crew members. (Doc. 1-1, ¶ 2).
Plaintiff Judson Lovingood was working as the NASA-MSFC Shuttle Projects
Office Deputy Manager when the Challenger disaster occurred. (Doc. 1-1, ¶ 1).
President Ronald Reagan established a Presidential Commission to investigate the
(Doc. 1-1, ¶ 2).
The Commission completed its investigation and
released a report in June 1986. (Doc. 1-1, ¶ 2). Dr. Richard P. Feynman, a Nobel
Laureate and Cal Tech physics professor, served on the Commission. (Doc. 1-1, ¶
2). Dr. Feynman wrote a book about the experience entitled “What Do You Care
What Other People Think” that was published in 1988. (Doc. 1-1, ¶ 2).
Dr. Feynman’s book provided the basis for a film entitled “The Challenger
Disaster.” The film debuted on The Science Channel and The Discovery Channel
in the United States in 2013. (Doc. 1-1, ¶¶ 3-4). The film was broadcast to
approximately 2 million “premiere viewers” and 5 million “unique viewers,”
making it one of the most watched programs in the history of the Science Channel.
(Doc. 1-1, ¶ 3). The film begins with the following message displayed in bold
print: “THIS IS A TRUE STORY.”
(Doc. 1-1, ¶ 4).
The introductory text
indicates that the film is based on Dr. Feynman’s book. (Id.). Like the book, the
film concerns the events leading up to the Challenger disaster. (Doc. 1-1, ¶¶ 2, 4).
The film features actors playing the roles of Dr. Feynman and Judson Lovingood.
(Doc. 1-1, ¶ 3).
In his complaint, Mr. Lovingood alleges that “[p]ertinent and significant
aspects of [the film] are not true . . . and are, in fact, false and defamatory.” (Doc.
1-1, ¶ 4). Mr. Lovingood asserts that the writers and producers of The Challenger
Disaster sacrificed the truth and defamed Mr. Lovingood in an effort to make a
more dramatic film. (Doc. 1-1, ¶ 4). The film shows NASA engineers assessing
the probability of total mission failure and loss of the entire crew, when in reality,
the engineers had assessed failure probabilities only with respect to “the separate
components of [the] complex shuttle.” (Doc. 1-1, ¶ 6). The film “failed to make
the very significant distinction among probability estimates for [the various
components] . . . and twisted evaluations that NASA had determined for the
components into a false picture of probability of total mission failure with loss of
life to the crew.” (Doc. 1-1, ¶ 6).
One sequence of The Challenger Disaster shows the actor playing Mr.
Lovingood and another NASA employee testifying before the Presidential
Commission. (Doc. 1-1, ¶ 7). Dr. Feynman asks the other NASA employee: “Can
you remind me what NASA calculates the probability of shuttle failure to be?
Failure meaning the loss of vehicle and the death of the entire crew.” (Doc. 1-1, ¶
After Dr. Feynman’s question, an actor playing another member of the
Presidential Commission asks Mr. Lovingood to answer the question, and Mr.
Lovingood responds that the probability is 1 in 100,000. (Doc. 1-1, ¶ 7). Dr.
Feynman responds, stating that Mr. Lovingood’s calculation is “a wish,” rather
than a true estimate, and that NASA’s own engineers estimated the probability of
failure to be close to 1 in 200. (Doc. 1-1, ¶ 7). The sequence’s “clear statement
and depiction was that Lovingood had lied about the probability of total failure
being 1 in 100,000 when NASA’s own engineers had said it was 1 in 200.” (Doc.
1-1, ¶ 7, p. 7).
Mr. Lovingood alleges that he never testified in person before the
Commission or offered Dr. Feynamn an estimate of total shuttle failure. (Doc. 1-1,
¶ 7). Mr. Lovingood also alleges that no engineer ever calculated the probability
of total shuttle failure at 1 in 200 and that Dr. Feynman’s book correctly described
an engineer offering a 1-in-200 probability assessment when asked about the
failure of a particular component. (Doc. 1-1, ¶ 7). Mr. Lovingood contends that
the film paints him in a false light because the film suggests that “NASA and
Lovingood knew this made-up [1-in-200] calculation before th[e] terrible
Challenger disaster and ignored it” (Doc. 1-1, ¶ 7, p. 9), “present[ing] a danger to
the astronauts who were not told of such a high probability of failure.” (Doc. 1-1,
¶ 7, p. 8).
Mr. Lovingood alleges that Discovery Communications, Inc. and BBC Films
jointly produced The Challenger Disaster, Kate Gartside wrote the script for the
film, and The Discovery Channel and The Science Channel later broadcast the
film. (Doc. 1-1, ¶ 8). Mr. Lovingood asserts defamation and invasion of privacy
claims against all of the defendants. (Doc. 1-1, ¶ 10). All of the defendants ask the
Court to dismiss Mr. Lovingood’s claims. (Docs. 6, 14, 32). The parties have
briefed the motions. (Docs. 7, 10, 12, 15, 21, 29, 33). On this record, the Court
considers the defendants’ motions.
Discovery’s 12(b)(6) Motion to Dismiss
1. Defamation Claim
To establish a prima facie case of defamation under Alabama law, “a
plaintiff must show:  that the defendant was at least negligent  in publishing
 a false and defamatory statement to another  concerning the plaintiff, 
which is either actionable without having to prove special harm (actionable per se)
or actionable upon allegations and proof of special harm (actionable per quod).”
Ex Parte Bole, 103 So. 3d 40, 51 (Ala. 2012) (quoting Ex parte Crawford Broad.
Co., 904 So. 2d 221. 225 (Ala. 2004) (emphasis and internal quotation marks
Discovery argues that Mr. Lovingood’s complaint fails to state a defamation
claim because: (1) the statements made in the film are not “of and concerning” Mr.
Lovingood; (2) the statements are substantially true; (3) the statements are not
defamatory as a matter of law; and (4) Mr. Lovingood did not plead special
damages. (Doc. 7, pp. 6, 11, 19, 22). Discovery also argues that Mr. Lovingood’s
claim for punitive damages is barred because he failed to send a written demand
for a retraction before filing this lawsuit. (Doc. 7, p. 24). The Court addresses
these arguments in turn.
With respect to Discovery’s argument that statements in the film are not “of
and concerning” Mr. Lovingood, the Challenger Disaster film depicted Mr.
Lovingood testifying under oath before the Presidential Commission. The film
identifies Mr. Lovingood by name. That Mr. Lovingood testified about NASA’s
work does not mean the statements in the film concern only NASA. The film
suggests that Mr. Lovingood lied or attempted to cover up a “high probability [of]
failure by giving a 1 in 100,000 probability of total mission failure.” (Doc. 1-1, p.
8). The suggestion that Mr. Lovingood lied or at least grossly understated the
probability-of-failure estimate impugns not only the organization for which Mr.
Lovingood worked. The statements concern Mr. Lovingood as an individual.
Discovery relies on New York Times v. Sullivan, 376 U.S. 254 (1964) and
Rosenblatt v. Baer, 383 U.S. 75 (1966) to argue that the statements in the film
concern only NASA as an organization, not Mr. Lovingood (Doc. 7, p. 8);
however, those cases suggest the opposite result. In Sullivan, the Supreme Court
held that a city commissioner could not recover under a defamation theory when
the allegedly defamatory statements were made solely about the police department
that the city commissioner helped oversee.
376 U.S. at 292.
defamation in Rosenblatt concerned criticism of a government agency and
included no specific reference to the plaintiff. 383 U.S. at 80-83. Discovery’s
reliance on these cases is unpersuasive because the publications at issue in Sullivan
and Rosenblatt allegedly defamed the plaintiff organizations and did not identify
the plaintiffs by name.
In this case, the alleged defamation is personal to Mr. Lovingood. Mr.
Lovingood has pleaded that the statements in the film were “of and concerning”
him. The film portrays Mr. Lovingood—identified by name while under oath—
underrepresenting NASA’s probability-of-failure estimates for the Challenger
mission, thereby suggesting that Mr. Lovingood attempted to manipulate the
Commission’s investigation. (Doc. 7-2, pp. 22-23). Viewing the allegations in the
complaint in the light most favorable to Mr. Lovingood, the Court finds that Mr.
Lovingood has alleged adequately that the statements at issue concerned him.
As for Discovery’s argument that the statements at issue are substantially
true, “[t]ruth is a ‘complete and absolute defense’ to defamation.” Ex Parte Bole,
103 So. 3d at 51 (quoting Battles v. Ford Motor Credit Co., 597 So. 2d 688, 692
(Ala. 1992)). A “statement is not considered false unless it ‘would have a different
effect on the mind of the reader from that which the pleaded truth would have
produced.’” Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 516 (1991).
Statements that are “substantially correct,” meaning that they are true in all
material respects, are not actionable. Drill Parts & Service Co. v. Joy Mfg. Co.,
619 So. 2d 1280, 1290 (Ala. 1993); Kirkpatrick v. Journal Pub. Co., 97 So. 58, 59
(Ala. 1923). “In actions for libel or slander, the defendant ultimately bears the
burden of showing that the defamatory words are true.” Crutcher v. Wendy’s of
North Alabama, Inc., 857 So. 2d 82, 95 (Ala. 2003) (citing Brothers v. Brothers,
94 So. 175 (Ala. 1922)).
Mr. Lovingood alleges in his complaint that the statements in the film are
not substantially true. Mr. Lovingood asserts that he did not make the statements
attributed to him in the film and that the statements were not substantially true in
material respects—namely, that he never lowballed the probability of total-mission
failure to the Commission or to NASA engineers. (Doc. 1-1, p. 9). The film,
however, depicts Mr. Lovingood doing just that. (See Doc. 7-2, pp. 22-23). The
cases cited by Discovery—in which courts upheld grants of summary judgment to
various defendants on the “substantial truth” issue—are unpersuasive, particularly
with respect to the pending 12(b)(6) motion. In context, the statements that Mr.
Lovingood describes in his complaint contain more than a minor inaccuracy.
Rather, the statements suggest that Mr. Lovingood misled the Presidential
Commission, officials at NASA, and the astronauts aboard the Challenger about
the risks involved in the mission. Thus, the Court finds that Mr. Lovingood has
adequately pled that the statements at issue are not substantially true.
Turning to Discovery’s argument that the statements at issue are not
defamatory as a matter of law, the Court must consider whether the statements are
“reasonably capable of defamatory meaning.” Clark v. America’s First Credit
Union, 585 So. 2d 1367, 1370 (Ala. 1991) (citing Harris v. School Annual Pub.
Co., 466 So. 2d 963, 964-65 (Ala. 1985)). A communication is defamatory if it
“‘[so] harms the reputation of another as to lower him in the estimation of the
community or to deter third persons from associating or dealing with him.’” Clark,
585 So. 2d at 1370 (quoting Harris, 466 So. 2d at 964).
The statements in question are reasonably capable of defamatory meaning.
Mr. Lovingood states in his complaint: “As a proximate consequence [of the
statements], Plaintiff has had his character and reputation impaired and made the
subject of ridicule, contempt and scorn in the scientific community, his own
community, and among the viewers of the movie throughout the United States and
abroad due to the tragic disaster of the Challenger and the false characterization of
Plaintiff as a weak, uninformed, manager who callously ignored engineers reports
at NASA that endangered the lives of astronauts in the shuttle program.” (Doc. 11, p. 11). While the disputed portion of the film might be susceptible to multiple
meanings, the defamatory meaning that Mr. Lovingood ascribes to The Challenger
Disaster film is a reasonable, plausible one. Taking the alleged statements in the
light most favorable to Mr. Lovingood, the Court finds that the statements are
reasonably capable of a defamatory meaning
Discovery argues that because the published statements require additional
facts to understand why they might be defamatory, Mr. Lovingood’s failure to
plead special damages is fatal.
Mr. Lovingood counters by arguing that the
statements are actionable per se and that Alabama law presumes damages for false,
defamatory statements. (Doc. 10, p. 21).
“In cases of libel, if the language used exposes the plaintiff to public ridicule
or contempt, though it does not embody an accusation of crime, the law presumes
damage to the reputation, and pronounces it actionable per se.” Butler v. Town of
Argo, 871 So. 2d 1, 16 (Ala. 2003) (quoting Ceravolo v. Brown, 364 So. 2d 1155,
1156-57 (Ala. 1978)). A statement that is libelous per quod is not libelous on its
face and instead is actionable only by reference to “extrinsic facts showing
circumstances under which” the statement was published. Cottrell v. Nat’l Coll.
Athletic Ass’n, 975 So. 2d 306, 346 (Ala. 2007). “In the absence of language that
is defamatory per se, a plaintiff must allege and prove special damages resulting
from the defamation.” Clark v. America’s First Credit Union, 585 So. 2d 1367,
1371 (Ala. 1991).
Mr. Lovingood has adequately pleaded that the statements in question were
libelous per se, and thus, he does not have to plead special damages. The film
depicts Mr. Lovingood giving false, sworn testimony to a Presidential Commission
regarding the probability of a total-launch failure. As stated in the complaint, such
statements have directly exposed Mr. Lovingood to public ridicule. Additionally,
viewing the alleged facts in the light most favorable to Mr. Lovingood, the
depicted false, sworn testimony to the Commission is tantamount to the accusation
of a crime—namely, perjury. The context of the statements in the film provides
additional support for this view.
In the film, a member of the Presidential
Commission, responded to Mr. Lovingood’s assessment by stating: “One in two
hundred. Wow. That’s not what the astronauts were aware of.” (Doc. 7-2, p. 23).
No extrinsic information or inferences are necessary to understand the defamatory
nature of these statements.
Because the film’s statements expose Mr. Lovingood to public ridicule and
contempt and are tantamount to an accusation of crime, Mr. Lovingood has
pleaded libel per se.
Thus, Mr. Lovingood is not required to plead special
Discovery argues that Mr. Lovingood is barred from recovering punitive
damages because he failed to allege that he sent Discovery a request for a
retraction. Alabama Code § 6-5-186 provides that:
punitive damages shall not be recovered in any action for libel on
account of any publication unless . . . (2) it shall be proved that five
days before the commencement of the action the plaintiff shall have
made written demand upon the defendant for a public retraction of the
charge or matter published; and the defendant shall have failed or
refused to publish within five days, in as prominent and public a place
or manner as the charge or matter published occupied, a full and fair
retraction of such charge or matter.
Mr. Lovingood states in the complaint: “Plaintiff wrote the Science Channel
on November 19, 2013, to complain about the falsehoods in the movie. No
response was made to this letter.” (Doc. 1-1, ¶ 11). During discovery, facts may
come to light that establish that Mr. Lovingood failed to comply with the
requirements of section 6-5-186; but construing the complaint in the light most
favorable to Mr. Lovingood, the complaint indicates that he complied.
Lovingood’s complaint “about the falsehoods in the movie” plausibly may have
included a demand for public retraction. That Discovery did not respond to Mr.
Lovingood’s letter suggests that Discovery did not publish a retraction. If evidence
reveals that Mr. Lovingood failed to send the retraction letter, then he will not be
able to recover punitive damages. For now, however, Mr. Lovingood has pleaded
sufficient facts for his punitive damages claim to go forward.
2. “False Light” Invasion of Privacy
Alabama has adopted the following definition for “false light” invasion of
One who gives publicity to a matter concerning another that places the
other before the public in a false light is subject to liability to the other
for invasion of his privacy, if (a) the false light in which the other was
placed would be highly offensive to a reasonable person, and (b) the
actor had knowledge of or acted in reckless disregard as to the falsity
of the publicized matter and the false light in which the other would
Butler, 871 So. 2d at 12 (quoting Restatement (Second) of Torts § 652E (1977)).
“[U]nlike defamation, truth is not an affirmative defense to a false-light claim;
rather, ‘falsity’ is an element of the plaintiff’s claim, on which the plaintiff bears
the burden of proof.” Regions Bank v. Plott, 897 So. 2d 239, 244 (Ala. 2004)
Discovery contends that the Court should dismiss Mr. Lovingood’s false
light claim because the statements in the film were substantially true and did not
concern Mr. Lovingood. (Doc. 7, pp. 25-26). The Court already has ruled with
respect to Mr. Lovingood’s defamation claim that Mr. Lovingood has adequately
pleaded falsity and that the alleged defamatory statements concern Mr. Lovingood.
Mr. Lovingood’s complaint also satisfies the remaining elements of false light.
The false light in which Mr. Lovingood was placed—that is, misrepresenting
crucial facts to the Commission and appearing to cover up details of the launch that
could have saved the crew members’ lives—would certainly be highly offensive to
a reasonable person. Additionally, the allegations in the complaint, if proven,
establish that Discovery was aware of both the publicized matter’s false nature and
the false light in which Mr. Lovingood would be placed. Thus, the Court denies
Discovery’s motion to dismiss the false light claim.
BBC’s and Kate Gartside’s 12(b)(2) Motions to Dismiss for Lack
of Personal Jurisdiction
In determining whether to exercise personal jurisdiction over a foreign
defendant, a federal court must consider (1) whether the exercise of jurisdiction is
permitted by the state long-arm statute, and (2) whether the exercise of jurisdiction
would violate the Due Process Clause of the Fourteenth Amendment to the United
States Constitution. Mazer, 556 F.3d at 1274. Here, the two inquiries merge
because “Alabama’s long-arm statute permits service of process to the fullest
extent constitutionally permissible.” Sloss Indus. Corp. v. Eurison, 488 F.3d 922,
925 (11th Cir. 2007) (citing Ala. R. Civ. P. 4.2(b)).
For a court to satisfy due process in exercising personal jurisdiction over an
out-of-state defendant, the defendant must have “certain minimum contacts with
the [forum] State such that the maintenance of the suit does not offend traditional
notions of fair play and substantial justice.” Daimler AG v. Bauman, 134 S. Ct.
746, 754 (2014) (quoting International Shoe Co. v. Washington, 326 U.S. 310, 316
(1945)) (internal quotation marks omitted). International Shoe’s conception of
“fair play and substantial justice” gave rise to two categories of personal
jurisdiction: (1) general jurisdiction, and (2) specific jurisdiction. Daimler, 134 S.
Ct. at 754. General jurisdiction “refers to the power of a court in the forum to
adjudicate any cause of action involving a particular defendant, irrespective of
where the cause of action arose.” Oldfield v. Pueblo De Bahia Lora, S.A., 558
F.3d 1210, 1220 n.27 (11th Cir. 2009). Specific jurisdiction “refers to jurisdiction
over causes of action arising from or related to a defendant’s actions within the
“A court may assert general jurisdiction over foreign (sister-state or foreigncountry) corporations to hear any and all claims against them when their
affiliations with the State are so ‘continuous and systematic’ as to render them
essentially at home in the forum State.” Goodyear Dunlop Tires Operations, S.A.
v. Brown, 131 S. Ct. 2846, 2851 (2011).
Outside of exceptional cases, a
corporation is considered “at home” in either its place of incorporation or its
principal place of business. Daimler, 134 S. Ct. at 760, 761 n. 19. “For an
individual, the paradigm forum for the exercise of general jurisdiction is the
individual’s domicile.” Goodyear, 131 S. Ct. at 2853.
In specific jurisdiction cases, the Eleventh Circuit applies a “three-part due
process test, which examines: “(1) whether the plaintiff’s claims ‘arise out of or
relate to’ at least one of the defendant’s contacts with the forum; (2) whether the
nonresident defendant ‘purposefully availed’ himself of the privilege of conducting
activities within the forum state, thus invoking the benefit of the forum state’s
laws; and (3) whether the exercise of personal jurisdiction comports with
‘traditional notions of fair play and substantial justice.’” Louis Vuitton, 736 F.3d at
1355 (citations omitted). The plaintiff bears the burden of establishing the first
two prongs, after which the burden shifts to the defendant to make a “compelling
case” that the exercise of jurisdiction would violate traditional notions of fair play
and substantial justice.
(quoting Diamond Crystal Brands, Inc. v. Food
Movers Int’l, Inc., 593 F.3d 1249, 1267 (11th Cir. 2010)).
As to the first prong, the Court’s “inquiry must focus on the direct causal
relationship between the defendant, the forum, and the litigation.” Louis Vuitton,
736 F.3d at 1355-56. As to the second prong, the Eleventh Circuit has two
applicable tests in intentional tort cases. Id. at 1356. First, the Eleventh Circuit
may apply the “effects test,” which the Supreme Court articulated in Calder v.
Jones, 465 U.S. 783 (1984). Under the effects test, a single tortious act can
establish purposeful availment, without regard to whether the defendant had any
other contacts with the forum state, if the tort “(1) was intentional; (2) was aimed
at the forum state; and (3) caused harm that the defendant should have anticipated
would be suffered in the forum state.” Id. at 1356 (internal quotation marks
Second, the Eleventh Circuit may apply the traditional minimum
contacts test for purposeful availment, which asks whether the defendant’s
contacts: “(1) are related to the plaintiff’s cause of action; (2) involve some act by
which the defendant purposefully availed himself of the privileges of doing
business within the forum; and (3) are such that the defendant should reasonably
anticipate being haled into court in the forum.” Id. at 1357-58 (citing S.E.C. v.
Carillo, 115 F.3d 1540, 1542 (11th Cir. 1997)).
3. BBC’s Motion to Dismiss
Mr. Lovingood’s complaint does not allege sufficient facts to make out a
prima facie case of personal jurisdiction over BBC.
The complaint’s only
references to BBC state that BBC helped produce, and retained the copyright for,
the film at issue.
(Doc. 1-1, pp. 10-11).
The complaint contains no facts
suggesting that BBC is “essentially at home” in Alabama or that BBC has had any
contacts with Alabama, let alone “minimum” contacts.
Lovingood’s failure to meet his initial burden of establishing jurisdiction over
BBC, BBC has submitted affidavit evidence in support of its position. (Docs. 151, 15-2).
Mr. Lovingood has not submitted evidence in response to BBC’s
The Court may not exercise general personal jurisdiction over BBC. BBC is
not incorporated in Alabama, and it does not have its principal place of business in
Alabama. (Doc. 15-1, ¶¶ 2, 4). In fact, BBC does not have any business offices in
Alabama. (Doc. 15-1, ¶ 5). Mr. Lovingood’s basis for asking the Court to exercise
general jurisdiction over BBC is that BBC distributes its World Service radio
station over the SiriusXM Satellite Radio service. (Doc. 21, p. 3 n.2). Mr.
Lovingood explains that “it would not be unreasonable to assume that SiriusXM
has tens of thousands of subscribers in Alabama alone.” (Doc. 21, p. 3 n.2).
However, broadcasting a program over satellite radio is not a sufficient contact to
render BBC “essentially at home” in a state that is neither its place of incorporation
nor its principal place of business.
The Supreme Court has made clear that
“continuous activity of some sorts within a state is not enough to support the
demand that the corporation be amenable to suits unrelated to that activity.”
Daimler, 134 S. Ct. at 757 (quoting International Shoe, 326 U.S. at 318). To hold
such would subject BBC to general jurisdiction in all fifty states, which is
incompatible with the Supreme Court’s decisions in the area of general
jurisdiction. See, e.g., Goodyear, 131 S. Ct. at 2856-57. Because BBC’s contacts
with Alabama are not so “continuous and systematic” so as to render it “essentially
at home” in Alabama, the Court may not exercise general personal jurisdiction
Additionally, the Court may not exercise specific personal jurisdiction over
BBC. BBC has not purposefully availed itself of the privilege of conducting
activities in Alabama. Applying the effects test, Mr. Lovingood fails to establish
the second and third factors because BBC’s alleged torts were not directed at
Alabama and did not cause a harm that BBC should have anticipated would be
suffered in Alabama. The record indicates that BBC did not broadcast the film in
the United States; rather, BBC’s television broadcast of the film aired only in the
United Kingdom. (Doc. 15-1, ¶¶ 13-14). If BBC’s broadcast of the film did reach
viewers in the United States—or more specifically, in Alabama—it was not the
product of any purposeful or intentional act on BBC’s part.
Mr. Lovingood also fails to satisfy the minimum contacts test. BBC made
two phone calls to individuals in Alabama during the production of The Challenger
Disaster film to “obtain some background information from [The Marshall Space
Flight Center].” (Doc. 15-2, ¶ 4). The two phone calls—both of which were
unrelated to Mr. Lovingood—are too attenuated to warrant the exercise of specific
jurisdiction. See, e.g., Walden, 134 S. Ct. at 1123 (“Due process requires that a
defendant be haled into court in a forum State based on his own affiliation with the
State, not based on the random, fortuitous, or attenuated contacts he makes by
interacting with other persons affiliated with the State.”) (internal quotation marks
Relying on Calder, Mr. Lovingood argues that BBC’s intentional torts
occurred in Alabama, giving BBC fair notice that it might be haled into an
Alabama court. (Doc. 21, p. 8). However, the defendants’ contacts with the forum
state in Calder were far greater than BBC’s contacts with Alabama. In Calder, the
defendants made multiple phone calls to California sources while writing a story
about a California citizen’s activities in California. 465 U.S. at 788-89. In Calder,
“California [was] the focal point both of the story and of the harm suffered.” Id. at
789. Alabama was in no sense a focal point of BBC’s part in writing the script for
and producing the film. The film depicts activities that occurred almost entirely
outside of Alabama, including the statements in controversy. As BBC points out,
BBC had no reason to know that any of the persons depicted in the film live or
work in Alabama. (Doc. 29, p. 11). BBC did not avail itself of any privileges of
doing business within Alabama; and in fact, the record indicates that BBC did not
do any business within Alabama. Given the lack of evidence indicating that BBC
purposefully directed activity toward Alabama, the Court may not exercise specific
jurisdiction over BBC. The Court will grant BBC’s motion to dismiss.
4. Kate Gartside’s Motion to Dismiss
Ms. Gartside argues that the Court does not have personal jurisdiction over
her because she lacks sufficient contacts with Alabama. (Doc. 33). According to
Ms. Gartside’s affidavit, Ms. Gartside is a resident of London, England, and she
has had no direct contact with Alabama while writing the script for the film or
otherwise. (Doc. 33-1, pp. 2-4). Mr. Lovingood did not file a response to Ms.
Gartside’s motion, much less provide substantial evidence that could withstand a
motion for a directed verdict. See, e.g., Carter, 870 F.2d at 581. Therefore, the
Court will dismiss Ms. Gartside for lack of personal jurisdiction. See, e.g., Cox
Enters., Inc. v. Holt, 678 F.2d 936, 938-39 (11th Cir. 1982) (holding that the court
did not have personal jurisdiction over a defendant writer in a libel action by an instate plaintiff when the writer had never travelled to or contacted anyone in the
forum state and therefore had not “purposefully direct[ed]” activities toward the
For the reasons stated above, the Court DENIES Discovery’s motion to
dismiss for failure to state a claim upon which relief can be granted. (Doc. 6). The
Court GRANTS BBC’s motion to dismiss for lack of personal jurisdiction (Doc.
14) and GRANTS Kate Gartside’s motion to dismiss for lack of personal
jurisdiction (Doc. 32). The Court requests that the remaining parties please file a
notice containing an amended proposed scheduling order.
DONE and ORDERED this September 30, 2015.
MADELINE HUGHES HAIKALA
UNITED STATES DISTRICT JUDGE
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