Planet Aid, Inc. et al v. Reveal, Center for Investigative Reporting et al

Filing 75


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1 2 3 4 IN THE UNITED STATES DISTRICT COURT 5 FOR THE NORTHERN DISTRICT OF CALIFORNIA 6 7 PLANET AID, INC., et al., Plaintiffs, 8 9 10 11 v. REVEAL, CENTER FOR INVESTIGATIVE REPORTING, et al., Case No. 17-cv-03695-MMC ORDER DENYING PLAINTIFFS’ MOTION TO RETRANSFER OR, IN THE ALTERNATIVE, TO TAKE JURISDICTIONAL DISCOVERY Re: Dkt. No. 32 United States District Court Northern District of California Defendants. 12 13 Before the Court is plaintiffs Planet Aid, Inc. and Lisbeth Thompsen’s motion to 14 retransfer or, in the alternative, to take jurisdictional discovery, filed July 11, 2017, by 15 which plaintiffs challenge an order of the United States District Court for the District of 16 Maryland, granting defendants Reveal, Center for Investigative Reporting (“Reveal”), Matt 17 Smith (“Smith”), and Amy Walters’ (“Walters”) Motion to Dismiss for Lack of Personal 18 Jurisdiction and Improper Venue, and transferring, pursuant to 28 U.S.C. § 1406(a), the 19 above-titled action to the Northern District of California. Defendants filed opposition, to 20 which plaintiffs replied, and a hearing was held on October 27, 2017. 21 By Order filed October 30, 2017, the Court found plaintiffs had not shown the 22 challenged order was “‘clearly erroneous’” (see Order, filed Oct. 30, 2017, at 1:24-25 23 (quoting Christianson v. Colt Industries Operating Corp., 486 U.S. 800, 819 (1988)), or 24 that the evidence developed by plaintiffs subsequent to the issuance of that order “would 25 have been critical to the Maryland court’s jurisdiction . . . determination” (see id. at 1:25- 26 26 (quoting Reply at 3:3)). The Court did, however, grant plaintiffs’ request to depose 27 George and afforded the parties leave to file supplemental briefing, which briefing has 28 been filed. The issue currently before the Court is whether the newly discovered evidence 1 2 identified in the supplemental briefing, together with evidence of defendants’ previously 3 submitted contacts, is sufficient to show defendants are subject to personal jurisdiction in 4 Maryland, or, alternatively, to warrant further jurisdictional discovery. For the reasons set 5 forth below, the Court finds plaintiffs have failed to make either such showing. DISCUSSION 6 7 8 A. Personal Jurisdiction in Maryland The claims brought in the above-titled action arise from what plaintiffs allege are false and defamatory statements contained in print and broadcast media, in particular, as 10 relevant to plaintiffs’ supplemental showing, podcasts published by Reveal and authored 11 United States District Court Northern District of California 9 by Smith and Walters, two Reveal reporters based in California. The challenged podcast 12 was aired on March 19, 2016, after which it was updated and re-broadcast on May 28, 13 2016, and June 2, 2016. 14 In their supplemental briefing, plaintiffs contend newly discovered evidence shows 15 two Reveal employees, Deborah George (“George”) and Susanne Reber (“Reber”), who 16 reside in Maryland, were involved in the production and/or distribution of the challenged 17 podcasts, and that such contacts, together with those previously submitted, are sufficient 18 to show defendants are subject to personal jurisdiction in Maryland. 19 1. 20 For a court to exercise personal jurisdiction over a nonresident defendant 21 consistent with due process, the “defendant must have sufficient minimum contacts with 22 the forum.” See Consulting Engineers Corp. v. Geometric Ltd., 561 F.3d 273, 277 (4th 23 Cir. 2009) (internal quotation and citation omitted). Where, as here, a plaintiff asserts the 24 court may exercise specific jurisdiction over the defendant, the minimum contacts test 25 requires the plaintiff to show (1) “that the defendant purposefully directed his activities at 26 the residents of the forum,” and (2) “that the plaintiff’s cause of action arise[s] out of those 27 activities.” See id. (alteration in original) (internal quotation and citation omitted). A 28 plaintiff’s claims “arise out of the activities directed at the forum” where “the defendant’s Legal Standard 2 1 contacts with the forum state form the basis of the suit.” See id. at 278-79. 2 2. 3 In determining whether a defendant has “purposefully directed his activities” at the Deborah George 4 forum, the Fourth Circuit considers eight factors, one of which is “whether the defendant 5 maintains offices or agents in the forum state.” See id. at 278. Here, in support of their 6 motion, plaintiffs initially submitted evidence that George was a Maryland resident and 7 Reveal employee during all times relevant to the instant action. As set forth above, 8 however, for purposes of determining minimum contacts, the relevant “activities” are 9 those out of which the plaintiff’s claims arise. See id. at 278-79. 10 In that regard, defendants, in response to plaintiffs’ initial showing, submitted a United States District Court Northern District of California 11 declaration from George, in which she stated she provided occasional technical and 12 logistical advice of a general nature and that she neither wrote nor edited any of the 13 scripts or audio for the podcasts here at issue. (See George Decl., filed Aug. 2, 2017, 14 ¶¶ 5-7.) By its order filed October 30, 2017, the Court found such involvement insufficient 15 to alter the determination made by the Maryland court. 16 The evidence now presented by plaintiffs, although providing additional detail, is 17 consistent with George’s initial description of her role, and likewise is unavailing. In 18 particular, although Walters, on one occasion, described George as the “radio editor” on 19 the stories (see George Dep. Ex. 14),1 George’s only involvement reflected in the record 20 is (1) her attendance at a single, early meeting in California, during which she suggested 21 Walters and Smith “start the story from the beginning” (see Rosenthal Decl., filed Jan. 5, 22 2018, Ex. G); (2) her scheduled participation in a phone call concerning the cost of 23 Walters’ proposal to interview a potential source in Africa (see id. Ex. F); and (3) her 24 concern “about the story being written before the actual reporting [was] done” (see 25 George Dep. Ex. 10). 26 1 27 28 In her deposition, George testified that she “was not the radio editor on the Planet Aid stories.” (See Rosenthal Decl., filed Jan. 5, 2018, Ex. A (George Dep.) at 374:18-19.) 3 1 None of the proffered new evidence contradicts George’s earlier declaration that 2 she had no role in the writing or editing of the scripts or podcasts. Nor have plaintiffs 3 offered any evidence to show George had approval, let alone final approval, over the 4 content of the stories; indeed, the new evidence is to the contrary. (See Burke Decl., 5 filed Jan. 24, 2018, Ex. D (George Dep.) at 259:12-18 (stating she first listened to 6 podcast when “it aired” and never heard any “[e]arly versions”).) 7 In sum, the newly presented evidence, in combination with the evidence previously 8 considered, is insufficient to show plaintiffs’ claims “arise out of” any of Georges activities, 9 and thus is insufficient to show the District of Maryland has personal jurisdiction over 10 defendants. See Consulting Engineers Corp., 561 F.3d at 278-79. United States District Court Northern District of California 11 3. 12 Subsequent to their initial showing, plaintiffs learned that Reber currently resides Susanne Reber 13 in Maryland, was the “Executive Editor” for all of Reveal’s podcasts, including the 14 podcasts challenged here (see George Dep. Ex. 16), and, as such, was responsible for 15 “help[ing] forge many of the collaborations” between Reveal and newspapers, radio 16 stations, and television stations (see Rosenthal Decl., filed Jan. 5, 2018, Ex. A (George 17 Dep.) at 251:21-252:4). 18 Assuming, arguendo, such responsibilities, if carried out by a Maryland resident, 19 would be, as plaintiffs contend, “highly relevant to ‘minimum contacts’” analysis (see 20 Supplemental Memorandum (“Supp. Memo”) at 3:10-11), plaintiffs fail to show Reber 21 resided in Maryland at a time relevant to the instant claims. In particular, Reber has 22 submitted a declaration in which she states that, “[u]p until May 2016,” she worked in 23 Reveal’s California office, and that she did not move to Maryland until “June, 2016.” (See 24 Reber Decl., filed Jan. 24, 2018, ¶¶ 5-6). 2 Although the record does not reflect whether 25 2 26 27 28 To the extent plaintiffs, by their citation to a Montgomery County Assessment Record (see Rosenthal Decl., filed Jan. 5, 2018, Ex. L) and a page from the Montgomery County website (see Rosenthal Decl., filed Feb. 5, 2018, Ex. C), suggest that Reber moved to Maryland six months earlier, the Court is not persuaded, as plaintiffs have submitted no evidence to support a finding that those two documents should be read together in such manner. 4 1 Reber moved before or after the June 2 re-broadcast, any work she would have done in 2 connection with that podcast would, as a practical matter, have occurred prior to such 3 move, i.e., while Reber was a California resident. To the extent plaintiffs contend Reber played a role in Reveal’s response to the 4 5 “retraction demand” Planet Aid sent on August 19, 2016 (see Supplemental Reply 6 (“Supp. Reply”) at 3:16-17), and that such role has some bearing on the minimum 7 contacts analysis, the Court likewise is not persuaded, as plaintiffs’ claims arise out of 8 defendants’ publication of the allegedly false and defamatory statements, not out of 9 defendants’ failure to retract them. Consequently, plaintiffs’ reliance on Reber’s Maryland residence is unavailing. 10 United States District Court Northern District of California 11 12 B. Adverse Inference/Further Jurisdictional Discovery In their supplemental briefing, plaintiffs contend defendants failed to comply with 13 the Court’s discovery order, and, based thereon, ask the Court to draw an inference that 14 George and Reber were “substantially involved in the stories” (see Supp. Memo at 10:7), 15 or, in the alternative, allow “full jurisdictional discovery” (see id. at 9:13-14). Again, the 16 Court is not persuaded. 17 First, plaintiffs contend defendants failed to produce some of the documents to 18 which George made reference in her deposition, specifically, two Facebook messages in 19 which the publication of the podcasts was announced, and emails she retrieved using 20 search terms suggested by Reveal in the course of discovery. As to the former, there is 21 nothing to indicate the documents are anything other than as described by George, and, 22 as to the latter, plaintiffs, who received numerous email chains in which George was 23 included, have not shown George retrieved any other emails relevant to the instant 24 inquiry. 25 Plaintiffs next contend defendants improperly redacted portions of some of the 26 documents defendants produced. Defendants have submitted, however, a privilege log 27 explaining such redactions were made to preserve the identities of confidential sources 28 as well as to protect unpublished information unrelated to the instant action. (See Burke 5 1 2 Decl., filed Jan. 24, 2018, Ex. E.)3 Likewise unavailing is plaintiffs’ contention, based wholly on speculation, that, if 3 they had received “native, electronic copies of documents” (see Supp. Reply at 9:17), 4 such discovery could have been used to impeach George’s deposition testimony.4 5 Similarly speculative is plaintiffs’ contention that a search of other forms of 6 communication used by George, e.g., Google Chat, would have disclosed relevant 7 communications, as the excerpted portions of George’s deposition provided to the Court 8 in support thereof are devoid of any questions pertaining to whether George used such 9 forms of communication to discuss the challenged podcasts. Lastly, given the Maryland court’s finding that the podcasts “were drawn from a 11 United States District Court Northern District of California 10 variety of sources . . . across the United States and several countries” (see Planet Aid, 12 Inc., et al. v. Reveal, Center for Investigative Reporting, et al., 16-CV-2974-GLR, 19 (D. 13 Md. June 26, 2017)), defendants’ disclosure of three additional Maryland sources does 14 not, contrary to plaintiffs’ contention, warrant further inquiry. CONCLUSION 15 16 For the reasons stated, plaintiffs’ motion is hereby DENIED. 17 IT IS SO ORDERED. 18 Dated: March 8, 2018 MAXINE M. CHESNEY United States District Judge 19 20 21 22 23 24 25 26 27 28 3 To the extent plaintiffs challenge the redaction of an email chain between George and Walters on the asserted ground that George “claims not to have discussed confidential sources” (see Supp. Reply at 5 n.7), plaintiffs’ characterization of George’s testimony is not supported by the record (see Burke Decl., filed Jan. 24, 2018, Ex. D (George Dep.) at 65:2-6). 4 Further, plaintiffs have not disputed defendants’ response that there was no request for production in native format. 6

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