Hoffman et al v. Bailey
Filing
38
ORDER denying 3 Motion to Dismiss; finding as moot 22 Motion to Strike lifting stay on discovery. Signed by Judge Jay C. Zainey. (jrc, )
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
PETER HOFFMAN, ET AL.
CIVIL ACTION
VERSUS
NO: 13-5153
DAVID BAILEY
SECTION: "A" (5)
ORDER AND REASONS
Before the Court are two motions in this matter filed by
Defendant David Bailey: Motion to Dismiss (Rec. Doc. 3) pursuant
to Federal Rules of Civil Procedure 12(b)(2), 12(b)(3), 12(b)(4),
12(b)(5), 12(b)(6), and 12(f); and Motion to Strike Plaintiffs'
Affidavits and Exhibits (Rec. Doc. 22).
Both motions are opposed
by Plaintiffs and are before the Court on the briefs without oral
argument.
I.
Background
Plaintiff Peter Hoffman is a citizen and resident of the
state of California.
Plaintiff Susan Hoffman is a citizen and
resident of the state of Louisiana.
Plaintiffs are married to
each other, but legally separated and separately own various
business entities.
Defendant David Bailey is a citizen and resident of the
United Kingdom.
Defendant once worked in England as the Finance
Director for SAP, Plc, a company for which Plaintiff Peter
Hoffman was the Chief Executive Officer.
1
Plaintiff Susan Hoffman, through multiple business entities,
owns property located at 807 Esplanade Avenue in New Orleans,
Louisiana (the Property).
The rehabilitation of this Property
has potentially qualified it for Louisiana historic
rehabilitation tax credits.
These potential tax credits were
assigned to a separate business entity owned by Plaintiff Peter
Hoffman.
This defamation lawsuit stems from statements made by
Defendant concerning Plaintiffs Peter and Susan Hoffman.
These
statements were made in an email sent by Defendant to an employee
of the Louisiana State Historic Preservation Office while
Plaintiffs were in the process of applying for Louisiana historic
rehabilitation tax credits on the Property.
The body of
Defendant's email stated the following:
I was interested to read that Peter and Susan Hoffman
have applied for rehabilitation tax credits on 807
Esplanade, and have included them as revenue in accounts
filed with the SEC. This appears to contradict other
evidence which strongly indicates that Peter Hoffman and
Susan Hoffman are the architects not of a building, but
of a major economic fraud. http://stock-bb.com/sevenarts-pictures-plc-pink-sapx/ has several discussions on
this matter. Who should I write to with the evidence I
personally have that indicates that all the applications
made by the Hoffmans are fraudulent, that the amounts
claimed were probably not spent, and that some or all of
the funds used to renovate the property were improperly
diverted from SAP Plc by way of a transfer to a related
party within 2 years of a SAP Plc becoming insolvent?1
1
Rec. Doc. 1-3.
2
Plaintiffs filed this lawsuit against Defendant alleging
that the statements made in the email were defamatory, causing
harm to Plaintiffs.
Defendant filed a Motion to Dismiss (Rec.
Doc. 3) to have Plaintiffs' lawsuit against him dismissed on
several different grounds under Rule 12 of the Federal Rules of
Civil Procedure.
The Court will examine each of these Rule 12
grounds for dismissal in turn.
II.
Analysis
a) Rule 12(b)(4) Insufficient Process
Defendant moves for the Court to dismiss Plaintiffs'
complaint pursuant to Rule 12(b)(4) of the Federal Rules of Civil
Procedure.
A motion to dismiss under Rule 12(b)(4) requires the
defendant to establish insufficient process under Rule 4 of the
Federal Rules of Civil Procedure.2
Under Rule 4(b), a “summons
shall be signed by the clerk, be under the seal of the court,
contain the name of the court and the names of the parties, [and]
be directed to the defendant...”3
Rule 4(c) mandates that a
summons be served on the defendant with a copy of the complaint.4
Defendant raises his Rule 12(b)(4) defense on the grounds
that he was not served with a summons.
complaint on July 23, 2013.
Plaintiffs filed their
Service of the complaint was made on
2
Fed. R. Civ. P. 12(b)(4).
3
Fed. R. Civ. P. 4(b).
4
Fed. R. Civ. P. 4(c).
3
Defendant on August 5, 2013.
Defendant filed the instant Motion
to Dismiss on August 26, 2013.
While service on Defendant at the time he filed the instant
motion consisted of only the complaint, Plaintiffs served
Defendant a second time on September 25, 2013, including both the
complaint and the summons.
The Court finds this follow-up
service sufficient to avoid dismissal of this action under Rule
12(b)(4).
b) Rule 12(b)(5) Insufficient Service of Process
Defendant moves for the Court to dismiss Plaintiffs'
complaint pursuant to Rule 12(b)(5) of the Federal Rules of Civil
Procedure.
A motion to dismiss under Rule 12(b)(5) requires the
defendant to establish insufficient service of process under Rule
4 of the Federal Rules of Civil Procedure.5
Rule 4(f) provides
that service upon an individual in a foreign country may be
carried out by any internationally agreed means of service that
is reasonably calculated to give notice, such as those authorized
by the Hague Convention.6
Rule 4(f) further states that if there
is no internationally agreed means, or if an international
agreement allows but does not specify other means, service may be
carried out by other methods reasonably calculated to give
notice.
5
Fed. R. Civ. P. 12(b)(5).
6
Fed. R. Civ. P. 4(f).
4
Defendant raises his Rule 12(b)(5) defense on the grounds
that he was not properly served in accordance with the service
procedures laid out in the Hague Convention.
The Hague
Convention authorizes certain procedures for effecting service
abroad, which involve passing documents through a designated
Central Authority of the State.
However, as Plaintiffs correctly
point out, article 10 of the Hague Convention states that it
"shall not interfere with . . . the freedom of any person
interested in a judicial proceeding to effect service of judicial
documents directly through the judicial officers, officials or
other competent persons of the State of destination."
In this case, service on Defendant was performed by a
registered United Kingdom process server.
The Court finds that
this method of service is both in compliance with Rule 4(f) and
is permitted under the Hague Convention.
As such, Defendant is
not entitled to dismissal of this action under Rule 12(b)(5).
c) Rule 12(b)(2) Lack of Personal Jurisdiction
Defendant moves for the Court to dismiss Plaintiffs'
complaint under Rule 12(b)(2) of the Federal Rules of Civil
Procedure for lack of personal jurisdiction.7
A federal court
sitting in diversity must satisfy two requirements to exercise
7
Fed. R. Civ. P. 12(b)(2).
5
personal jurisdiction over a nonresident defendant.8
First, the
forum state's long-arm statute must confer personal jurisdiction.
Second, the exercise of jurisdiction must not exceed the
boundaries of the Due Process Clause of the Fourteenth
Amendment.9
The limits of the Louisiana long-arm statute are
coextensive with constitutional due process limits.10
Therefore,
the relevant inquiry is whether jurisdiction comports with
federal constitutional guarantees.11
The exercise of personal jurisdiction over a nonresident
defendant satisfies due process when: (1) the defendant has
purposefully availed itself of the benefits and protections of
the forum state by establishing "minimum contacts" with that
state; and (2) the exercise of jurisdiction does not offend
"traditional notions of fair play and substantial justice."12
The defendant's connection with the forum state must be such that
8
Pervasive Software, Inc. v. Lexware GMBH & Co. KG, 688 F.3d
214, 220 (5th Cir. 2012).
9
Id. (citing Mink v. AAAA Dev. LLC, 190 F.3d 333, 335 (5th
Cir. 1999)).
10
Jackson v. Tanfoglio Giuseppe, SRL, 615 F.3d 579, 584 (5th
Cir. 2010) (citing Walk Haydel & Assocs. v. Coastal Power Prod.
Co., 517 F.3d 235, 242-43 (5th Cir. 2008)).
11
Id.
12
Latshaw v. Johnston, 167 F.3d 208, 211 (5th Cir. 1999)
(quoting Int'l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)).
6
he "should reasonably anticipate being haled into court" there.13
Minimum contacts may give rise to either "specific"
jurisdiction or "general" jurisdiction.14
Specific jurisdiction
exists when a plaintiff's cause of action arises from, or is
related to, the nonresident defendant's minimum contacts in the
forum state.15 General jurisdiction exists if the defendant has
engaged in "continuous and systematic" activities in the forum
state.16
When the court does not hold an evidentiary hearing, the
plaintiff need only establish a prima facie case of personal
jurisdiction.17
Where facts are disputed between the parties,
the plaintiff presenting a prima facie case is entitled to have
the conflicts resolved in his favor.18
If the plaintiff makes a
prima facie case that minimum contacts exist, the defendant has
the burden of making a "compelling case" that the exercise of
jurisdiction would be unfair so as to offend traditional notions
13
Id. (quoting World-Wide Volkswagen Corp. v. Woodson, 444
U.S. 286, 297 (1980)).
14
Helicopteros Nacionales de Colombia, S.A. v. Hall, 466
U.S. 408, 414 n.8-9 (1984).
15
Id. at 414 n.8.
16
Id. at 415.
17
Wien Air Alaska, Inc. v. Brandt, 195 F.3d 208, 211 (5th
Cir. 1999).
18
Id.
7
of fair play and substantial justice.19
With regard to Defendant's burden of showing that
jurisdiction over him would be unfair, a court may consider the
following factors:
(1) the burden upon the nonresident defendant; (2) the
interests of the forum state; (3) the plaintiff's
interest in securing relief; (4) the interstate judicial
system's interest in obtaining the most efficient
resolution of controversies; and (5) the shared interest
of the several States in furthering fundamental
substantive social policies.20
Defendant argues that his contacts with the forum are
insufficient for the Court to exercise specific jurisdiction over
him.
Defendant contends that he has never been to Louisiana, has
never owned property in Louisiana, and has never conducted
business in Louisiana.
Defendant contends that the entire case
stems from a four-month stint during which he worked under Peter
Hoffman in the United Kingdom.
As a result, Defendant argues
that jurisdiction "would most likely be appropriate there, if
appropriate anywhere."
Defendant also argues that for the aforementioned reasons,
the Court's exercise of jurisdiction over him would offend
traditional notions of fair play and substantial justice.
In
furtherance of this assertion, Defendant argues that he had a
19
Id.
20
Bullion v. Gillespie, 895 F.2d 213, 216 (5th Cir. 1990)
(citing Asahi Metal Indus. Co. v. Superior Court, 480 U.S. 102,
113 (1987)).
8
reasonable expectation that his communication to a Louisiana
governmental entity would be privileged and not subject him to
liability for defamation in a Louisiana court.21
Defendant also
contends that the exercise of jurisdiction would offend due
process because of potential differences between Louisiana law
and the law of the United Kingdom.
Plaintiffs on the other hand argue that Defendant's contact
with Louisiana are sufficient to confer jurisdiction over him.
They contend that the email allegedly sent into the forum is a
proper basis for specific personal jurisdiction over Defendant.
The Fifth Circuit has stated, "It is well settled that
specific jurisdiction may arise without the nonresident
defendant's ever stepping foot upon the forum state's soil or may
arise incident to the commission of a single act directed at the
forum."22
Consistent with this notion, the Fifth Circuit has
found a mere telephone call into the forum sufficient for
providing the minimum contacts needed to justify personal
jurisdiction over the nonresident who placed the call.23
The Fifth Circuit has also held that "when the actual
21
The Court notes that this argument goes towards the merits
of Plaintiffs' defamation claim.
22
Id. (citing Burger King Corp. v. Rudzewicz, 471 U.S. 462,
476 (1985); Bearry v. Beech Aircraft Corp., 818 F.2d 370, 374
(5th Cir. 1987)).
23
Brown v. Flowers Indus., Inc., 688 F.2d 328, 332-34 (5th
Cir. 1982).
9
content of communications with a forum gives rise to intentional
tort causes of action, this alone constitutes purposeful
availment."24
In such circumstances, the Fifth Circuit found
that a defendant is purposefully availing himself of "the
privilege of causing a consequence" in the forum state.25
The Court finds that Defendant has sufficient minimum
contacts with the forum for the Court to exercise specific
personal jurisdiction over him.
The email Defendant allegedly
sent to the Louisiana state agency purposefully established a
connection with the forum.
Further, the contents of this email
gave rise to the defamation claim, an intentional tort cause of
action sufficient to constitute purposeful availment.
The Court finds further support of Defendant's sufficient
forum contacts by applying the Calder "effects test."
In Calder,
the Supreme Court upheld specific personal jurisdiction over
nonresident defendants who published an allegedly libelous story
in a nationwide publication.26
The Supreme Court found that the
defendants had "expressly aimed" their tortious conduct towards
the forum state because they knew the brunt of harm caused by
their conduct would be felt in the forum state, where plaintiff
24
Wien Air Alaska, Inc. v. Brandt, 195 F.3d 208, 213 (5th
Cir. 1999).
25
Id.
26
Calder v. Jones, 465 U.S. 783 (1984).
10
lived and worked.27
Under these circumstances, the defendants
could reasonably anticipate being haled into court in the forum
state to answer for the truth of their statements in the
publication.28
The Fifth Circuit has taken a restrictive stance when
applying the Calder effects test, finding that a plaintiff's mere
residence in the forum and suffering the brunt of harm there is
insufficient to support jurisdiction under Calder.29
The Fifth
Circuit requires that for a plaintiff to invoke Calder, "the
sources relied upon and activities described in an allegedly
defamatory publication should in some way connect with the
forum."30
Furthermore, the Fifth Circuit has found that the
defendant must have knowledge of the particular forum in which a
potential plaintiff will bear the brunt of the harm.31
And
finally, the Fifth Circuit has discussed Calder in the Internet
context, finding that proof is required to show that the
nonresident defendant's Internet activity is expressly directed
27
Id. at 789-90.
28
Id. at 790.
29
Revell v. Lidov, 317 F.3d 467, 473 (5th Cir. 2002).
30
Id. (citing Reynolds v. International Amateur Athletic
Federation 23 F.3d 1110 (6th Cir.1994)).
31
Id. (citing Calder v. Jones, 465 U.S. 783, 789 (1984)).
11
at or directed to the forum state.32
The Court finds that these requirements the Fifth Circuit
has imposed to restrict the application of the Calder effects
test have all been met and that the test is satisfied under the
facts of this case.
Defendant's alleged email was directed at
the Louisiana forum, where it would foreseeably cause harm to
Plaintiffs by preventing them from obtaining certain tax credits.
The fact that Defendant's communication was knowingly sent
directly to a Louisiana agency provides a clear connection with
the forum.
The Calder effects test supports a finding of
jurisdiction over Defendant.
In Wien Air Alaska, Inc. v. Brandt,33 the Fifth Circuit
addressed an argument similar to that made by Defendant regarding
the source of his relationship with Plaintiffs.
In that case,
the German defendant's contacts with the Texas forum related to
and developed out of an ongoing business relationship between the
parties that had been established in Germany.34
The Fifth
Circuit held: "Even if the parties formed their relationship in
Germany, however, a single act by [the defendant] toward Texas
that gives rise to a cause of action by [the plaintiff] can
32
Id. (citing Young v. New Haven Advocate, 315 F.3d 256, 258
(4th Cir.2002)).
33
Wien Air Alaska, Inc. v. Brandt, 195 F.3d 208 (5th Cir.
1999).
34
Id. at 211.
12
support a finding of minimum contacts."35
Next, the Court examines whether the exercise of
jurisdiction over Defendant would offend traditional notions of
fair play and substantial justice.
The Court recognizes that
litigating in Louisiana would place a burden on Defendant, a
nonresident alien.
However, this inconvenience would likewise be
felt by Plaintiffs in forcing them to litigate in the United
Kingdom.
Furthermore, the Fifth Circuit has stated that "once
minimum contacts are established, the interests of the forum and
the plaintiff justify even large burdens on the defendant."36
The Court finds that Defendant has not met his heavy burden in
showing that the exercise of personal jurisdiction over him would
be unfair.
Having found that Defendant is subject to specific personal
jurisdiction of this Court, Defendant is not entitled to
dismissal under Rule 12(b)(2).
d) Rule 12(b)(3) Improper Venue
Defendant moves for the Court to dismiss this case for
improper venue, pursuant to Rule 12(b)(3) of the Federal Rules of
Civil Procedure.37
35
Alternatively, Defendant seeks to have this
Id.
36
Id. at 215-16 (citing Asahi Metal Indus. Co. v. Superior
Court, 480 U.S. 102, 115 (1987)).
37
Fed. R. Civ. P. 12(b)(3).
13
case transferred to a proper venue or convenient forum pursuant
to the common law doctrine of forum non conveniens.
Under 28 U.S.C.A. § 1391, venue is appropriate in "a
judicial district in which a substantial part of the events or
omissions giving rise to the claim occurred."
As the email
giving rise to this claim was allegedly sent to Louisiana, the
Court finds that this communication effectively took place in
Louisiana.38
Further, the alleged email pertained to Plaintiffs'
application for tax credits on a home located in the judicial
district encompassed by this Court.
For these reasons, the Court
finds this Court to be an appropriate venue for this dispute.
Having determined that this Court is an appropriate venue,
the Court will now address Defendant's argument under the common
law doctrine of forum non conveniens.
In resolving a forum non
conveniens issue "the ultimate inquiry is where trial will best
serve the convenience of the parties and the ends of justice."39
"The general principal of the doctrine 'is simply that a court
may resist imposition upon its jurisdiction even when
jurisdiction is authorized.'"40
38
Defendant does not assert that a different venue within
Louisiana would be more appropriate.
39
Syndicate 420 at Lloyd's London v. Early Am. Ins. Co., 796
F.2d 821, 827 (5th Cir. 1986) (quoting Koster v. Lumbermen's Mut.
Casualty Co., 330 U.S. 518, 527 (1947)).
40
Dickson Marine Inc. v. Panalpina, Inc., 179 F.3d 331, 342
(5th Cir. 1999) (citing Gulf Oil Corp. v. Gilbert, 330 U.S. 501,
14
The first step in a forum non conveniens analysis is to
determine whether there exists an adequate and available
alternative forum for resolution of the dispute.41
The second
step of the forum non conveniens inquiry involves the balancing
of public and private interest factors.
The private interest factors to be considered by the
Court relate primarily to the convenience of the
litigants. They include:
(1) the relative ease of access to sources of proof;
(2) the availability of compulsory process to secure the
attendance of witnesses;
(3) the cost of attendance for willing witnesses;
(4) all other practical problems that make trial of a
case easy, expeditious and inexpensive.
The public interest factors relevant to the analysis are:
(1) the administrative difficulties flowing from court
congestion;
(2) the local interest in having localized controversies
decided at home;
(3) the familiarity of the forum with the law that will
govern the case;
(4) the avoidance of unnecessary problems of conflict of
laws or the application of foreign law.42
In balancing the public and private interest factors, the
Fifth Circuit has emphasized that "no one private or public
interest factor should be given conclusive weight."43
507 (1947)).
41
Syndicate 420 at Lloyd's London, 796 F.2d at 828 (5th Cir.
1986) (citing Perusahaan Umum Listrik Negara Pusat v. M/V Tel
Aviv, 711 F.2d 1231, 1238 (5th Cir. 1983)).
42
Id. at 831 (citing Piper Aircraft Co. v. Reyno, 454 U.S.
235, 241 n. 6 (1981)).
43
Dickson Marine Inc. v. Panalpina, Inc., 179 F.3d 331, 342
(5th Cir. 1999).
15
Furthermore, the plaintiff's choice of forum is "entitled to
great weight in the balancing of factors, and unless the balance
strongly favors the defendants, the plaintiff's choice of forum
should not be overturned."44
Defendant argues that the proper venue for this dispute lies
in the United Kingdom.
As neither party addresses the adequacy
of the United Kingdom as a forum for this dispute, the Court will
proceed to the second step of the forum non conveniens inquiry.
Defendant asserts that United Kingdom law will be an issue
in this dispute and that witnesses relevant to Plaintiffs'
activities reside in the United Kingdom.
Further, Defendant
argues that he will incur substantial fees in defending against
Plaintiffs' claims in the current forum.
Plaintiffs argue that the witnesses in this case, aside from
Defendant himself, are all located in or travel regularly to
Louisiana.
Further, Plaintiffs argue that this case presents no
need for the application of foreign law and that, accordingly,
this Court is familiar with the law to be applied to the dispute.
Finally, Plaintiffs argue that litigating in the United Kingdom
would likely require them to post a bond for Defendant's
attorneys fees, which militates against change of venue.
After considering the arguments of the parties, as well as
44
Syndicate 420 at Lloyd's London v. Early Am. Ins. Co., 796
F.2d 821, 831 (5th Cir. 1986) (quoting Gulf Oil Corp. v. Gilbert,
330 U.S. 501, 508 (1947)).
16
all of the relevant public and private interest factors, the
Court declines to overturn Plaintiffs' choice of forum.
While
the private interest factors weigh evenly for Plaintiffs and
Defendant, the public interest factors weigh more in favor of
Plaintiffs.
The Court does not find that the balance of factors
strongly favors Defendant to justify dismissal under forum non
conveniens.
e) Rule 12(f) Motion to Strike under Louisiana Code of Civil
Procedure Article 971
Defendant has filed a special motion to strike under Article
971 of the Louisiana Code of Civil Procedure.45
Article 971 is
Louisiana's anti-SLAPP statute (Strategic Lawsuit Against Public
Participation), which was enacted to protect the constitutional
right of free speech and encourage continued participation in
matters of public significance.46
The article is construed
broadly to allow dismissal of actions that thwart this goal.47
Article 971 states, in pertinent part:
A cause of action against a person arising from any act
of that person in furtherance of the person's right of
petition or free speech under the United States or
Louisiana Constitution in connection with a public issue
shall be subject to a special motion to strike, unless
45
La. C.C.P. Art. 971.
46
Henry v. Lake Charles Am. Press, L.L.C., 566 F.3d 164, 169
(5th Cir. 2009) (quoting Thomas v. City of Monroe, 833 So.2d
1282, 1286 (La. App. 2d Cir. 2002)).
47
Id.
17
the court determines that the plaintiff has established
a probability of success on the claim.48
Application of Article 971 utilizes a burden-shifting
analysis.49
To be successful on a motion under Article 971, the
defendant must first make a prima facie showing that Article 971
covers the activity underlying the suit.50
Specifically, "the
defendant must establish that a cause of action against him
arises from an act by him in furtherance of the exercise of his
right of petition or free speech under the United States or
Louisiana Constitution in connection with a public issue."51
If
the defendant makes this showing, the burden then shifts to the
plaintiff to demonstrate a probability of success on his claim.52
The Court will now determine whether Defendant has made a
prima facie showing that Article 971 is applicable to this
dispute.
Defendant asserts that his alleged actions were in
furtherance of his right to free speech, which he is entitled to
under the United States or Louisiana Constitution.
Further,
Defendant argues that his communication to the Louisiana state
48
La. C.C.P. Art. 971.
49
Henry v. Lake Charles Am. Press, L.L.C., 566 F.3d 164, 170
(5th Cir. 2009).
50
Id.
51
Id. (quoting Starr v. Boudreaux, 978 So.2d 384, 388-89
(La. App. 1st Cir. 2007)).
52
Id. (quoting Starr, 978 So.2d at 389 (La. App. 1st Cir.
2007)).
18
agency concerning the fiscal actions of the state constitutes
communication pertaining to a public issue.
Plaintiffs argue that Defendant, as a foreign citizen, is
not entitled to free speech rights under either the United States
or Louisiana Constitutions.
Plaintiffs also argue that the issue
of whether they were entitled to certain tax rebates is a private
issue involving private persons rather than a public issue, as
the statute requires.
Defendant is a citizen and resident of the United Kingdom.53
The Court will first analyze Defendant's free speech rights as a
nonresident alien under the United States Constitution.
In Verdugo-Urquidez, the Supreme Court addressed the issue
of whether aliens are entitled to protections of the United
States Constitution.54
The Supreme Court refused to endorse the
view that every constitutional provision applies wherever the
United States Government exercises its power.55
Rather, after
analyzing the text and history of the phrase "the people" as
found in the First,56 Second, and Fourth Amendments, the Court
53
Rec. Doc. 9-2, Bailey's affidavit, ¶ 1.
54
United States v. Verdugo-Urquidez, 494 U.S. 259 (1990).
55
Id. at 265-69.
56
The First Amendment states: "Congress shall make no law
respecting an establishment of religion, or prohibiting the free
exercise thereof; or abridging the freedom of speech, or of the
press; or the right of the people peaceably to assemble, and to
petition the Government for a redress of grievances." U.S. Const
19
concluded that "the people" protected by these amendments "refers
to a class of persons who are part of a national community or who
have otherwise developed sufficient connection with this country
to be considered part of that community."57
The Supreme Court went on to acknowledge prior decisions in
which it had afforded aliens certain constitutional rights.58
However, the Supreme Court found that these cases "establish only
that aliens receive constitutional protections when they have
come within the territory of the United States and developed
substantial connections with this country."59
In considering this Supreme Court precedent, it is clear
that Defendant, a nonresident alien, is not entitled to First
Amendment protections of the United States Constitution.
Defendant's alleged actions giving rise to the defamation claim
against him do not generate a sufficient connection with the
United States to entitle him to First Amendment rights under
Verdugo-Urquidez, nor has Defendant provided the Court with any
other basis for determining that such a connection exists.60
amend. I (emphasis added).
57
Id. at 265.
58
Id. at 271.
59
Id.
60
Defendant argues that if the Court finds Defendant to have
connections with this country and forum substantial enough to
subject him to jurisdiction, then it should also find that he
20
Having determined that Defendant is not entitled to First
Amendment rights under the United States Constitution, the Court
next considers Defendant's contention that he is entitled to
protection under Article I, Section 7 of the Louisiana
Constitution.61
Defendant fails to cite any legal authority for
his contention that the protections of the Louisiana Constitution
are afforded to a nonresident alien.
Without any authority on
which to rely, the Court declines to extend the protections of
the Louisiana Constitution further than those of the United
States Constitution.
Considering the Court's finding that Defendant is not
entitled to free speech rights under either the United States or
Louisiana Constitution, Defendant cannot make a prima facie
showing that the alleged communications giving rise to this
dispute were in furtherance of those rights.
As such,
Plaintiffs' cause of action is not subject to an Article 971
benefits from the relevant Constitutional protections. However,
the Court notes the different standards used for these
determinations. For example, sufficient minimum contacts for
jurisdiction can be found without the defendant ever having been
physically present in the United States. On the other hand,
sufficient connections to entitle an alien to Constitutional
protections requires that an alien be physically present in the
United States and form a sufficient connection with the country.
61
Article I, Section 7, "Freedom of Expression" states: "No
law shall curtail or restrain the freedom of speech or of the
press. Every person may speak, write, and publish his sentiments
on any subject, but is responsible for abuse of that freedom."
La. Const. art. I, § 7.
21
special motion to strike.62
f) Defendant's Motion to Strike Plaintiffs' Affidavits and
Exhibits (Rec. Doc. 22)
Defendant has filed a Motion to Strike Plaintiffs'
Affidavits and Exhibits, moving the Court to strike portions of
Plaintiffs’ affidavits63 submitted in support of Plaintiffs’
Opposition to Defendant’s Motions to Dismiss Complaint.
Defendant argues that the affidavits and attached exhibits
contain inadmissible evidence in the form of conclusory
statements, statements lacking proper foundation, hearsay, and
other grounds.
The statements in the affidavits were not determinative of
the Court's ruling on the various legals issues in Defendant's
Motion to Dismiss.
Therefore, Defendant's Motion to Strike
Plaintiffs' Affidavits and Exhibits is moot.
III. Conclusion
Accordingly;
IT IS ORDERED that Defendant's Motion to Dismiss (Rec. Doc.
62
At the conclusion of Plaintiffs' opposition to Defendant's
Article 971 special motion to strike, they assert that they are
entitled to attorney's fees pursuant to Article 971(B). If
Plaintiffs file a supported formal motion in compliance with this
Court's Local Rules, in which they demonstrate that they are the
“prevailing parties” and that they are entitled to an award of
attorney fees and costs, then at that time the Court will
consider the issue.
63
Rec. Docs. 11-1 and 11-2.
22
3) pursuant to Federal Rules of Civil Procedure 12(b)(2),
12(b)(3), 12(b)(4), 12(b)(5), 12(b)(6), and 12(f) is hereby
DENIED.
IT IS FURTHER ORDERED that Defendant's Motion to Strike
Plaintiffs' Affidavits and Exhibits (Rec. Doc. 22) is hereby
DISMISSED as MOOT.
IT IS FURTHER ORDERED that the stay on discovery proceedings
issued by this Court on January 14, 2014 (Rec. Doc. 37), is
hereby lifted.
January 27, 2014
______________________________
JAY C. ZAINEY
UNITED STATES DISTRICT JUDGE
23
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