Noonan v. Winston Co.

• Decision Date: 05 September 1997
• Docket Number: No. 97-1132,97-1132
• Citation: 135 F.3d 85
• Parties: 26 Media L. Rep. 1363 George F. NOONAN and Ann Marie Noonan, Plaintiffs, Appellants, v. The WINSTON COMPANY, et al., Defendants, Appellees. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 85

135 F.3d 85

26 Media L. Rep. 1363

George F. NOONAN and Ann Marie Noonan, Plaintiffs, Appellants, v. The WINSTON COMPANY, et al., Defendants, Appellees.

No. 97-1132.

United States Court of Appeals, First Circuit.

Heard Sept. 5, 1997.

Decided Feb. 2, 1998.

Rehearing Denied March 9, 1998.

Michael D. Lurie, with whom Alex H. MacDonald, H. Bissell Carey, III, and Robinson & Cole, Boston, MA, were on brief, for appellants.

Ralph G. Elliot, with whom Tyler Cooper & Alcorn, Hartford, CT, Walter H. Mayo, III, and Casner & Edwards, Boston, MA, were on brief, for Colour Library Books, Ltd.

Robert M. Callagy, Joshua M. Rubins, Satterlee Stephens Burke & Burke LLP, New York City, David R. Friedman, and Palmer & Dodge, Boston, MA, were on brief, for The Winston Company, et al.

Before BOUDIN, Circuit Judge, STAHL, Circuit Judge, and YOUNG, ^* District Judge.

STAHL, Circuit Judge.

Plaintiffs-appellants George and Anne Marie Noonan challenge the district court's dismissal, on personal jurisdiction grounds, of their defamation, misappropriation and violation of the right of publicity, and related claims against Colour Library Books, Ltd., Lintas:Paris, R.J. Reynolds Tobacco Company, R.J. Reynolds Tobacco International, Inc., R.J. Reynolds France, S.A., Worldwide Brands, Inc., and Lintas:Worldwide. Having fully considered plaintiffs' arguments, we affirm.

I.

A. General Background

George Noonan, a Boston Police Detective and a devoted non-smoker, has spent the bulk of his twenty-two year career educating Bostonians about the health risks of tobacco use. During the summer of 1992, a magazine advertisement sponsored by Winston cigarettes featuring Noonan's image appeared in several French magazines. Noonan claims that the unauthorized use of his image to benefit tobacco sellers has caused him personal and professional harm and embarrassment.

The offending photograph has a long history. In 1979, Neil Sutherland, an employee of the English book packaging house ¹ Colour Library Books ("CLB"), photographed Noonan in Boston without his permission. Although the photograph was meant to appear in a coffee table book titled Boston: City of Dreams, it was never published or distributed. The photograph remained in CLB files until 1990, when CLB published it in An American Moment. Two years later, CLB sold the photograph to the French advertising agency Lintas:Paris, with no restrictions on its use and without advising Lintas:Paris that Noonan had not granted a release. Lintas:Paris used the photograph in a campaign for client R.J. Reynolds France, S.A. ("RJR France"), a French cigarette manufacturer.

RJR France had retained Lintas:Paris to design an advertising campaign both to publicize Winston cigarettes and to market an informational communications system called The Minitel Service, an interactive network that provides consumer services such as personal shopping, banking, and remittance of income taxes. Companies sponsor segments of the service in exchange for a share of the revenues generated. The Winston Way, one component of the Minitel Service, provides information about dining and entertainment in France and is sponsored by the Cooperation Gesellschaft fuer Markendiversifikation mbh, a German company affiliated with RJR France and unrelated to this action.

The full-page advertisement pictures Noonan in his Boston Police uniform and on horseback at Faneuil Hall in Boston. The text reads, "The Winston Way," printed in the form of the Winston cigarette logo--white letters against a red background. The advertisement also provides a phone number for Minitel. Without the knowledge of Lintas:Paris, at least 305 copies of various French magazines containing the advertisements were distributed to, and at least 183 of these were sold from, retail magazine outlets in the Boston area.

Noonan became aware of the offending advertisement during the summer of 1992. Fellow police officers told Noonan that a magazine with a picture of him on the back cover was circulating. Nancy Fay, a Massachusetts resident who had seen the advertisement while vacationing in France, brought the advertisement to Boston and wrote to Noonan to inquire whether the cigarette manufacturer had paid Noonan for the advertisement. Noonan's son Greg saw the advertisement when his French teacher brought a copy of a magazine containing the advertisement to class; Greg's faculty advisor told Greg that he had seen the advertisement in France. Some people, assuming that Noonan had consented to the use of his image, denounced him for supporting the cigarette industry. As a result of what Noonan felt was an attack on his reputation, he initiated this suit.

Given the number of parties to this litigation and the importance of their relationships to plaintiffs' jurisdictional theories, we begin with a brief overview of the defendants. Defendant Lintas:Paris is a French corporation, with its only office in Paris, France. Defendant RJR France, also a French corporation, has corporate offices in Boulogne-Billancourt, France. Defendant R.J. Reynolds Tobacco ("RJR Tobacco") is a New Jersey corporation with its principal place of business in New York, New York. RJR Tobacco is the organization through which its parent company, RJR Nabisco, Inc., conducts its domestic cigarette business. Defendant R.J. Reynolds Tobacco, International ("RJRTI"), the international analogue to RJR Tobacco and also a wholly-owned subsidiary of RJR Nabisco, Inc., is a Delaware corporation with its principal place of business in Winston-Salem, North Carolina. Defendant Worldwide Brands, Inc. ("Worldwide"), a dealer in trademark rights and licenses and another RJR Nabisco, Inc. subsidiary, is also a Delaware corporation. Worldwide's French offices are in Boulogne-Billancourt. Defendant Lintas:Paris is a wholly-owned subsidiary of France C.C.P.M, in turn a wholly-owned subsidiary of Lintas Holdings, B.V., itself a wholly-owned subsidiary of the Interpublic Group of Companies, Inc. ("Interpublic"). Noonan asserts that defendant Lintas:Worldwide is an advertising corporation managed by Interpublic. Defendants claim, and the district court found, that Lintas:Worldwide is not a legal entity. For reasons we shall explain infra, its existence vel non does not affect our decision. Finally, defendant CLB is a British company with offices in Surrey, England.

B. Prior Proceedings

The complaint sets forth five direct claims--misappropriation and violation of the right of publicity, see Mass. Gen. Laws Ann. ch. 214, § 3A (West 1985 & Supp.1996); defamation, invasion of the right of privacy, see id. § 1B; reckless or intentional infliction of emotional distress; unfair and deceptive acts, see id. ch. 93A, §§ 2, 11--and a derivative claim for loss of consortium, brought by Mrs. Anne Marie Noonan.

The district court initially dismissed all claims, pursuant to Fed.R.Civ.P. 12(b)(2), except those against CLB for lack of personal jurisdiction over named defendants. See Noonan v. The Winston Co., 902 F.Supp. 298 (D.Mass.1995) ("Noonan I"). After allowing Noonan limited jurisdictional discovery with respect to CLB, the court dismissed all claims against CLB. See Noonan v. Colour Library Books, Ltd., 947 F.Supp. 564 (D.Mass.1996) ("Noonan II"). Noonan appeals from these rulings.

Because the district court dismissed plaintiffs' claims without holding an evidentiary hearing, we review the rulings de novo, drawing facts from the parties' pleadings and supplementary filings, and construing all inferences in the plaintiffs' favor. See Ticketmaster-New York, Inc. v. Alioto, 26 F.3d 201, 203 (1st Cir.1994).

II.

On appeal, plaintiffs advance four arguments. First, they assert the district court erred in concluding that it lacked specific jurisdiction over defendants CLB, Lintas:Paris (as RJR France's agent), and RJR France (as Lintas:Paris' principal). Second, they contend the district court erred by failing to exercise general jurisdiction over RJR Tobacco and CLB. Third, they claim the district court abused its discretion when it denied them permission to take jurisdictional discovery before it ruled on the motions to dismiss for lack of personal jurisdiction filed by defendants RJTC, RJRTI, RJR France, Lintas:Worldwide, Lintas:Paris, and Worldwide Brands. Finally, they argue the district court improperly limited jurisdictional discovery as to CLB.

"Specific personal jurisdiction may be asserted where the cause of action arises directly out of, or relates to, the defendant's forum-based contacts." United Elec., Radio & Mach. Workers of America v. 163 Pleasant St. Corp., 960 F.2d 1080, 1088-89 (1st Cir.1992) ("Pleasant I") (citing Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414 & n. 8, 104 S.Ct. 1868, 1872 & n. 8, 80 L.Ed.2d 404 (1984)). "General jurisdiction exists when the litigation is not directly founded on the defendant's forum-based contacts, but the defendant has nevertheless engaged in continuous and systematic activity, unrelated to the suit, in the forum state." Id. at 1088 (citing Helicopteros, 466 U.S. at 414-16 & n. 9, 104 S.Ct. at 1872-73 & n. 9). Three questions constitute both the specific and general personal jurisdiction analyses: 1) whether the Massachusetts long-arm statute authorizes jurisdiction; 2) whether the defendant has sufficient minimum contacts so that the exercise of jurisdiction does not offend due process; and 3) whether the exercise of jurisdiction is reasonable, and therefore does not offend due process. Cf. United Elec., Radio & Mach. Workers of America v. 163 Pleasant St. Corp., 987 F.2d 39 (1st Cir.1993) (setting out steps for jurisdictional analysis generally) ("Pleasant II"). We determine reasonableness by applying factors we have described as "gestalt factors." ² If the requirements of either the state statute or the Due Process Clause of the U.S. Constitution are not met, the foreign defendant will not be subject to personal jurisdiction.

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