INGRIS v. DREXLER et al
Filing
114
MEMORANDUM OPINION/ORDER ADOPTING REPORT AND RECOMMENDATIONS for 83 Report and Recommendations, granting 65 Motion to Dismiss, Motion to Dismiss/Lack of Jurisdiction,,,,,, filed by RINGIER AXEL SPRINGER CZ, granting 12 Motion to Dismiss filed by CESKA TELEVIZE, 82 Report and Recommendations; that Plaintiffs claims against Defendants esk Televize and Ringier Axel are dismissed with prejudice. Signed by Judge Esther Salas on 12/17/14. (DD, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
__________________________________________
:
PETER INGRIS,
:
: Civil Action No. 14-2404 (ES)(MAH)
Plaintiff,
:
: MEMORANDUM
v.
: OPINION & ORDER
:
TATIANA DREXLER, et al.,
:
:
Defendants.
:
__________________________________________:
SALAS, DISTRICT JUDGE
I.
INTRODUCTION
Before the Court are motions to dismiss by Defendants Česká Televize, (D.E. No. 12), and
Ringier Axel Springer Verlag CZ (“Ringier Axel”), (D.E. No. 65). This Court referred the motions
to Magistrate Judge Michael Hammer. For the reasons below, the Court adopts Judge Hammer’s
Report and Recommendation (“R & R”) for each motion, and GRANTS Defendants Česká
Televize’s and Ringier Axel’s motions to dismiss.
II.
FACTUAL AND PROCEDURAL BACKGROUND
Defendants Česká Televize and Ringier Axel filed motions to dismiss on May 30, 2014
and July 16, 2014, respectively. (D.E. Nos. 12, 65). Judge Hammer heard oral argument on the
motions on September 9, 2014. (D.E. No. 87 (Hr’g Tr.)). On September 12, 2014, Judge Hammer
issued an R & R for each motion recommending dismissal based on improper service and lack of
personal jurisdiction. (D.E. Nos. 82, 83). Judge Hammer advised the parties that they had fourteen
days to file and serve any objections to the R & Rs pursuant to Local Civil Rule 72.1(c)(2). Also
on September 12, 2014, the Court issued an Order to Show Cause why subject matter jurisdiction
exists as to Plaintiff Peter Ingris’s claims against other defendants. (D.E. No. 84).
On September 24, 2014, Plaintiff filed a letter response to the Court’s Order to Show Cause.
(D.E. No. 89). In addition to responding to the Order to Show Cause, Plaintiff included arguments
that appear to be objections to Judge Hammer’s R & R rulings on the motions to dismiss by Česká
Televize and Ringier Axel. (D.E. No. 89 at 16-22). Plaintiff characterized his objections as a
motion to modify the dismissal against Ringier Axel and a motion to reconsider the dismissal
against Česká Televize. (D.E. No. 89 at 1). The thrust of Plaintiff’s objections is the same for
both Defendants; he argues that the Court’s dismissal was improper because he properly served
each Defendant pursuant to the Hague Convention. (D.E. No. 89 at 16-22). Both Defendants are
media companies operating in the Czech Republic. (D.E. No. 1 (Compl.) at 3, 4).
On October 1, 2014, Česká Televize filed a letter noting that Plaintiff’s September 24, 2014
letter response, (D.E. No. 89), was not a proper objection to Judge Hammer’s R & R, but
nonetheless substantively responding to the arguments in that letter. (D.E. No. 90). On October
6, 2014, Plaintiff filed a letter response explaining that he was unaware of Local Civil Rule 72.1(c),
which governs objections to Magistrate Judges’ proposed findings, recommendations, and reports.
(D.E. No. 91). Plaintiff requested that his previous letter, (D.E. No. 89), “be treated in lieu of
plaintiff’s response to your honor’[s] Report, pursuant to local rule 72.” 1
In light of Plaintiff’s pro se status and in the interest of justice, the Court will construe
Plaintiff’s arguments in his September 24, 2014 submission, (D.E. No. 89), as objections to both
of Judge Hammer’s R & Rs.
Plaintiff’s October 6, 2014 letter, (D.E. No. 91), only addresses Judge Hammer’s R & R with respect to Česká
Televize (not Ringier Axel), and raises for the first time arguments relating to Judge Hammer’s finding of no
personal jurisdiction over Česká Televize.
1
2
III.
STANDARD OF REVIEW
“When a litigant files an objection to a Report and Recommendation, the district court must
make a de novo determination of those portions to which the litigant objects.” Leonard Parness
Trucking Corp. v. Omnipoint Commc’ns, Inc., No. 13-4148, 2013 WL 6002900, at *2 (D.N.J. Nov.
12, 2013) (internal citations omitted).
IV.
ANALYSIS
a. Motion to Dismiss By Česká Televize (D.E. No. 12)
On May 30, 2014, Defendant Česká Televize moved to dismiss Plaintiff’s claims based on
(1) improper service and (2) lack of personal jurisdiction. Judge Hammer found that dismissal
was warranted based on either ground. (Hr’g Tr. at 4). In his September 24, 2014 objection,
Plaintiff argued that Česká Televize was properly served under the Hague Convention and that
therefore the Complaint against it was dismissed in error. (D.E. No. 89 at 19-22).
A party must comply with the Hague Convention when serving a foreign defendant in a
signatory country. See Shenouda v. Mehanna, 203 F.R.D. 166, 170 (D.N.J. 2001); T.I.A.S. No.
6638, 20 U.S.T. 361, 1969 WL 97765. Under the Hague Convention, a party in the Czech Republic
must be served through the designated “Central Authority,” the Ministry of Justice of the Czech
Republic. See Hague Conference on Private International Law, Authorities: Czech Republic,
http://www.hcch.net/index_en.php?act=authorities.details&aid=249.
Plaintiff has not served
Česká Televize pursuant to the Hague Convention. As Judge Hammer stated on the record during
the September 9, 2014 hearing, Plaintiff at least initially attempted to serve Česká Televize by mail
and e-mail, which the Czech Republic does not permit. (Hr’g Tr. at 7). Though Plaintiff argues
in his September 24, 2014 submission that Česká Televize was served pursuant to the Hague
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Convention on August 14, 2014, the Court’s review of Plaintiff’s supporting documentation
reveals that this is not correct. (D.E. No. 89 at 19-22; D.E. No. 79).
Following Judge Hammer’s hearing, Plaintiff submitted a status report indicating that his
service request was received by foreign authorities on August 14, 2014 via Fed-Ex. (D.E. No. 79).
However, Plaintiff has not submitted proof that the Czech Ministry of Justice completed Plaintiff’s
request by serving his Complaint on Česká Televize. As Plaintiff admits in his October 6, 2014
letter response, “it is up to the Czech Ministry of Justice to proceed in accordance to the Hague
Convention, and to provide return of service. As I was advised by the US Central Authority – the
Process Server International, Seattle, according to their experience, this will take until December
2014.” (D.E. No. 91 at 6). Plaintiff therefore appears to recognize that service has not been
completed by the Central Authority, as required by the Hague Convention. 2 The Court therefore
concludes that Česká Televize’s motion to dismiss should be granted for lack of service.
Even assuming that proper service occurred, dismissal is still warranted based on lack of
personal jurisdiction. It does not appear that Plaintiff objected to this ground for dismissal in his
September 24, 2014 submission, (D.E. No. 89). Plaintiff raises the issue of personal jurisdiction
for the first time in his October 6, 2014 letter, but it is unclear whether he lodges a formal objection.
Rather, Plaintiff argues that Judge Hammer’s finding of no personal jurisdiction was predicated
on lack of service, and was not an independent basis for dismissal. (D.E. No. 90 at 2-5). Plaintiff
2
Though Federal Rule of Civil Procedure 4(m), which sets a 120-day frame for effecting service, “does not apply to
foreign defendants, a court may still dismiss a case for failure to serve a foreign defendant within a reasonable time
frame under the ‘flexible due diligence standard.’” In re Bulk (Extruded) Graphite Prods. Antitrust Litig., No. 26030, 2006 WL 1084093, at *3 (D.N.J. Apr. 24, 2006). Plaintiff’s Complaint was filed on April 14, 2014. (D.E.
No. 1). Therefore, even if Plaintiff were to complete Česká Televize at some point (and based on the current record,
the Court does not find that there is a reasonable chance this will occur), the Court would still have authority to
dismiss Plaintiff’s Complaint. Moreover, Plaintiff does not even mention any attempt to serve Defendant under the
Hague Convention until after the oral argument in which Judge Hammer found that he had not diligently pursued
service. (D.E. No. 87 at 8).
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appears to imply that since service is complete, there can be no issue as to personal jurisdiction.
(Id.). This is incorrect on two levels. First, as discussed above, Plaintiff has not demonstrated
proper service of Česká Televize. Second, Judge Hammer’s recommendation of dismissal based
on lack of personal jurisdiction was independent of his recommendation of dismissal based on lack
of service. (D.E. No. 87 at 9 (“[Lack of service] itself would be enough to recommend dismissal
of the plaintiff’s claims against [Česká Televize]. However, the Court also notes that there is no
showing of personal jurisdiction. . . . .).
In any event, the Court agrees with Judge Hammer that personal jurisdiction is lacking.
Plaintiff has the burden of proving that personal jurisdiction is proper. See Metcalfe v. Renaissance
Marine, 566 F.3d 324, 330 (3d Cir. 2009). The doctrine of general jurisdiction permits a court to
exercise personal jurisdiction over a non-resident when the defendant has engaged in “systematic
and continuous” activities in the forum state. See Helicopteros Nacionales de Colombia, S.A. v.
Hall, 466 U.S. 408, 414-16, (1984). In the absence of general jurisdiction, specific jurisdiction
permits a court to exercise personal jurisdiction over a non-resident defendant where, traditionally,
there are “minimum contacts” between the defendant and the forum state.
Pinker v. Roche
Holdings Ltd., 292 F.3d 361, 368-69 (3d Cir. 2002).
Here, Plaintiff argues that personal jurisdiction exists in New Jersey because Česká
Televize’s content may be broadcast and viewed anywhere in the world through its website,
including in New Jersey. (See D.E. No. 21-1 at 16-17). Because Plaintiff argues that his cause of
action arises out of Česká Televize’s contacts with the forum state, the Court will conduct a
“specific jurisdiction” analysis. Pinker, 292 F.3d at 368.
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To determine whether specific jurisdiction exists over an internet website, the Third Circuit
applies the “sliding scale” analysis articulated in Zippo Manufacturing. Co. v. Zippo Dot Com,
Inc., 952 F. Supp. 1119, 1123-24 (W.D. Pa. 1997). See Toys “R” Us, Inc. v. Step Two, S.A., 318
F.3d 446, 452 (3d Cir. 2003). Whether personal jurisdiction exists “depends on where on a sliding
scale of commercial interactivity the web site falls.” Id. Personal jurisdiction exists “[i]n cases
where the defendant is clearly doing business through its web site in the forum state, and where
the claim relates to or arises out of use of the web site.” Id. Since Zippo, several courts have also
focused on whether the defendant intentionally interacted with the forum state via the website—
in other words, whether the website “purposefully availed” itself to jurisdiction in the forum state.
Id. at 453; see also Desktop Tech., Inc. v. Colorworks Reprod. & Design, No. 98-5029, 1999 WL
98572, at *5 (E.D. Pa. Feb. 25, 1999). Accordingly, the Third Circuit has held “exercise of
personal jurisdiction to be proper where the commercial web site’s interactivity reflected
specifically intended interaction with residents of the forum state.” Toys “R” Us, 318 F.3d at 452.
Plaintiff has not demonstrated that Česká Televize “purposefully availed” itself to personal
jurisdiction in New Jersey based on its website or internet activities, or that it intentionally
interacted with New Jersey residents. Though Česká Televize’s website makes its contents
available to viewers across the world, including those in New Jersey, (D.E. No. 32-3), personal
jurisdiction is improper over defendants “who merely make information available on the Internet.”
Zippo, 952 F. Supp. at 1124. Plaintiff’s arguments that Česká Televize’s website offers detailed
guidance regarding how to access its content are also insufficient to establish personal jurisdiction,
as he does not allege that this guidance was intentionally directed at New Jersey residents. (See
D.E. No. 32-1 at 16). There is no evidence that New Jersey residents were ever targeted, solicited,
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or subject to any other intentional interaction by Česká Televize through its website or any other
means. Accordingly, Plaintiff has not met his burden of demonstrating that personal jurisdiction
exists over this Česká Televize.
b. Motion to Dismiss By Ringier Axel (D.E. No. 65)
On August 15, 2014, Defendant Ringier Axel moved to dismiss Plaintiff’s claims based on
(1) improper service; (2) lack of personal jurisdiction; and (3) failure to state a claim. Judge
Hammer recommended dismissal based on either improper service or lack of personal jurisdiction.
(D.E. No. 79 at 49-50). In his September 24, 2014 submission, Plaintiff argued that Ringier Axel
was properly served under the Hague Convention and that therefore the Complaint against it was
dismissed in error. (D.E. No. 89 at 19-22).
Specifically, Plaintiff argues that he properly served Ringier Axel because he served “its
U.S. subsidiary/alter-ego, Axel Springer Group USA, located in New York City, State of New
York.” (D.E. No. 89 at 19). Whether Axel Springer Group USA was properly served is the subject
of a separate Motion to Quash that is pending before the Court, (D.E. No. 94), and the Court does
not need to reach this issue at this time. However, even if Plaintiff did properly serve Axel Springer
Group USA, it would not constitute service on Ringier Axel.
Service on a subsidiary is insufficient to establish jurisdiction over a corporate parent
absent authorization to accept service, and the law does not imply authorization by virtue of a
corporate affiliation. Colida v. LG Elec., 77 F. App’x 523, 527 (Fed. Cir. 2003) (citing Patent
Incentives, Inc. v. Seiko Epson Corp., No. 88-107, 1988 WL 92460, at *4 (D.N.J. Sept. 6, 1998));
see also Beem v. Noble Americas Corp., No. 14-2632, 2014 WL 5317756, at *4 (S.D.N.Y. Oct.
16, 2014) (“Service upon a subsidiary of a foreign corporation does not constitute sufficient service
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of process.”). Here, Plaintiff has provided no evidence that Axel Springer Group USA was
authorized to accept service on behalf of Ringier Axel, and therefore the only question is whether
Ringier Axel was properly served under the Hague Convention.
As Judge Hammer explained on the record during the September 9, 2014 hearing, there is
no dispute that Plaintiff did not attempt to serve a translated version of the English Summons and
Complaint on Ringier Axel as required by the Hague Convention. (D.E. No. 87 at 50-51).
Moreover, Plaintiff did not attempt to serve the Amended Complaint at all. (Id.). As Plaintiff has
failed to comply with the terms of the Hague Convention in attempting to serve Ringier Axel, the
Court finds that Plaintiff has not properly served this defendant.
Finally, as explained above, even if Plaintiff properly served Ringier Axel, the Court does
not have personal jurisdiction over this defendant. Plaintiff does not appear to raise objections to
Judge Hammer’s ruling on personal jurisdiction in his September 24, 2014 submission, (D.E. No.
89), and, in any event, the Court agrees with Judge Hammer that personal jurisdiction is lacking
for the reasons stated on the record during the September 9, 2014 hearing. (D.E. No. 87 at 51-54).
Because the Court finds that Ringier Axel has not been properly served and is not subject to
personal jurisdiction, the Court does not need to consider Ringier Axel’s arguments that Plaintiff
failed to state a claim for relief under Fed. R. Civ. P. 12(b)(6).
V.
CONCLUSION
For the reasons stated above and in Judge Hammer’s R & Rs dated September 12, 2014
(D.E. Nos. 82, 82),
IT IS on this 17th day of December 2014,
ORDERED that this Court adopts Judge Hammer’s Reports and Recommendations, (D.E.
8
Nos. 82 and 83), as the Opinion of this Court; and it is further
ORDERED that the motions to dismiss by Defendants Česká Televize and Ringier Axel,
(D.E. Nos. 12, 65), are GRANTED; and it is further
ORDERED that Plaintiff’s claims against Defendants Česká Televize and Ringier Axel
are dismissed with prejudice.
s/Esther Salas
Esther Salas, U.S.D.J.
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