Jankovic v. International Crisis Group

• Decision Date: 24 July 2007
• Docket Number: No. 06-7095.,06-7095.
• Citation: 494 F.3d 1080
• Parties: Milan JANKOVIC, a/k/a Philip Zepter, et al., Appellants v. INTERNATIONAL CRISIS GROUP, A Non-Profit Organization, et al., Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

494 F.3d 1080

Milan JANKOVIC, a/k/a Philip Zepter, et al., Appellants v. INTERNATIONAL CRISIS GROUP, A Non-Profit Organization, et al., Appellees.

No. 06-7095.

United States Court of Appeals, District of Columbia Circuit.

Argued April 20, 2007.

Decided July 24, 2007.

Appeal from the United States District Court for the District of Columbia (No. 04cv01198).

William T. O'Brien argued the cause for appellants. With him on the briefs were Lisa M. Norrett and Malcolm I. Lewin.

Amy L. Neuhardt argued the cause for appellees. With her on the brief were Jonathan L. Greenblatt and Cynthia P. Abelow.

Before: ROGERS, GRIFFITH and KAVANAUGH, Circuit Judges.

Opinion for the Court filed by Circuit Judge ROGERS.

ROGERS, Circuit Judge:

In this diversity action, Milan Jankovic, who goes by the name Philip Zepter, and two of his related business entities — Field-point B.V. and United Business Activities Holding, A.G. — appeal the dismissal of their complaint for defamation, tortious interference with business expectancy, and false light invasion of privacy against International Crisis Group ("ICG") and one of its employees, James Lyon. At issue are three documents that allegedly link Philip Zepter and his business interests to Serbian president Slobodan Milosevic, who was put on trial as a war criminal before his death. The district court found that the presence of Lyon in the case destroyed diversity. After the complaint was amended to exclude Lyon, the district court, applying District of Columbia law, dismissed claims relating to two of these documents — a report authored by ICG ("Report 141") and an email sent by Lyon — because the statute of limitations had expired. The district court dismissed the remaining claims after finding that the third document, ICG's Report 145, was not capable of defamatory meaning and could not support claims for the related torts. We affirm the district court's dismissal of the original complaint and its dismissal of the claims relating to Report 141 and the Lyon email. However, because one of the passages in Report 145 is capable of defamatory meaning, we reverse the dismissal of the amended complaint in part.

I.

ICG is a nonprofit organization registered under District of Columbia law whose mission is "to prevent and resolve deadly conflict." To this end, it produces analytical reports, newsletters, briefing papers, and other publications targeted at influencing and advising international decisionmakers. Among these publications are two reports. On March 18, 2003, a report entitled Serbia after Djindjic was issued bearing the ICG logo above the words "Belgrade/Brussels." This report, numbered 141, recommends various reforms in the wake of the assassination of the Serbian premier. Report 145, issued July 17, 2003, is a follow-up entitled Serbian Reform Stalls Again, again with the ICG logo and "Belgrade/Brussels" on the cover. Both reports reference Philip Zepter, the individual, as well as the Zepter Group of businesses. Citing Belgrade media sources, Report 141 asserts that the Zepter Group "allegedly provides cover for money laundering and weapons shipments." Report 145 lists Philip Zepter as a member of the "new Serbian oligarchy" that benefitted from close ties to Milosevic and continues to prosper through unchecked access to public resources. Additionally, according to the amended complaint, James Lyon sent an email that disseminated a six-paragraph article of unknown origin that reported that "Zepter operated in front companies for State Security, . . . smuggling weapons (to Al-Qaeda among others) and laundering money." Lyon was ICG's "main investigator and Project Director for the Balkans" and the "Director of ICG Serbia" when Reports 141 and 145 were issued.

Philip Zepter and the corporations (collectively "Zepter") filed suit on January 12, 2004, in the Court of First Instance of Brussels, Belgium. The complaint named James Lyon of Provo, Utah, and "[t]he non-profit association INTERNATIONAL CRISIS GROUP, in short ICG, entered in the register of enterprises . . . with registered office located in . . . BRUSSELS." However, as Zepter would later learn, this was not the non-profit organization responsible for the publications. According to Zepter's amended complaint, "[i]n responding initially, in Brussels, to the Brussels Action complaint, ICG for the first time represented that there were two ICG corporate entities, one in Brussels and another in the United States." Am. Compl. ¶ 72. In response to an action under 28 U.S.C. § 1782 to conduct discovery in the United States for the Belgian action, filed on June 18, 2004, Zepter learned that the organization it sued in Belgium, which is incorporated under Belgian law, is distinct from the International Crisis Group that employs Lyon and issued Reports 141 and 145. As ICG now explains, it is incorporated in Washington, D.C., but headquartered in Brussels, with offices worldwide. See Appellees' Br. at 3. The Belgian entity, which it calls International Crisis Group Agence Internationale Sans but Lucratif ("AISBL"), is "an inactive corporation" with "no paid employees and . . . no responsibility for publishing ICG's reports." Id. at 4.

On July 15, 2004, Zepter filed a complaint in the United States District Court for the District of Columbia against ICG incorporated here. On August 23, 2005, the district court dismissed that complaint without prejudice on the ground that it was clear Lyon is domiciled in Belgrade — and not Provo, Utah — therefore destroying complete diversity because a stateless citizen is not diverse with an alien like Zepter. Alternatively, the district court noted that it was clear the court lacked personal jurisdiction over Lyon. On September 15, 2005, Zepter filed an amended complaint that removed Lyon as a defendant. ICG moved to dismiss, and on May 1, 2006, the district court granted the motion, finding that the statute of limitations had expired, without any valid defenses, as to Report 141 and the Lyon email and that the claims related to Report 145 failed as a matter of law. See Jankovic v. Int'l Crisis Group, 429 F.Supp.2d 165 (D.D.C.2006).

II.

Zepter first contends that the district court erred by dismissing the original complaint for want of subject-matter jurisdiction because Lyon is actually domiciled in Utah, and because the district court should have authorized jurisdictional discovery to prove this point. We need not resolve these disputes, however, because Zepter does not challenge on appeal the district court's alternative ruling that Lyon lacked sufficient ties to the District of Columbia to warrant an exercise of personal jurisdiction. Personal jurisdiction is "`an essential element of the jurisdiction of a district . . . court,' without which the court is `powerless to proceed to an adjudication.'" Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 584, 119 S.Ct. 1563, 143 L.Ed.2d 760 (1999) (quoting Employers Reins. Corp. v. Bryant, 299 U.S. 374, 382, 57 S.Ct. 273, 81 L.Ed. 289 (1937)). A complaint may be dismissed for lack of personal jurisdiction without settling whether subject-matter jurisdiction exists. Because Zepter has waived any challenge to personal jurisdiction by failing to raise the issue, see Corson & Gruman Co. v. NLRB, 899 F.2d 47, 50 n. 4 (D.C.Cir.1990), this court cannot upset the district court's dismissal of the original complaint.

Under District of Columbia law, which applies to this diversity action, claims of defamation are subject to a one-year limitations period. D.C. CODE § 12-301(4). No statutory period is provided for tortious interference with business expectancy or false light invasion of privacy, but where, as here, "a stated cause of action is `intertwined' with one for which a limitations period is prescribed, [courts operating under District of Columbia law] apply the specifically stated period." Mittleman v. United States, 104 F.3d 410, 415 (D.C.Cir.1997).

Only Report 145 was published within a year of the initiation of this lawsuit on July 15, 2004. Zepter contends, however, that there is a valid defense to the statute of limitations under the doctrines of lulling, equitable tolling, and equitable estoppel. Alternatively, Zepter maintains that the foreseeable republication of ICG's reports on the Internet resets the one-year clock. The district court rejected these defenses and our review is de novo. See Chung v. U.S. Dep't of Justice, 333 F.3d 273, 278 (D.C.Cir.2003). We agree with the district court.

A defendant who engages in "inequitable conduct" can be equitably estopped from invoking the statute of limitations. Id. at 278. Zepter contends that the doctrine applies here because ICG "actively concealed the identity of the authorship of the Publications at issue and thwarted the Zepter Plaintiffs' discovery attempts." Appellants' Br. at 23. At the motion-to-dismiss stage, the court must accept this allegation as true. See Firestone v. Firestone, 76 F.3d 1205, 1209 (D.C.Cir. 1996) (per curiam). Nonetheless, ICG is not equitably estopped from pleading the statute of limitations. District of Columbia law distinguishes between a party that conceals the existence of a cause of action and a party that conceals its own identity. Under Chappelle's Estate v. Sanders, 442 A.2d 157, 158-59 (D.C.1982), equitable estoppel encompasses only the former. The Chappelle rule remains the law of the District of Columbia. See Cevenini v. Archbishop of Wash., 707 A.2d 768, 773-74 (D.C.1998); Diamond v. Davis, 680 A.2d 364, 380 n. 14 (D.C.1996). Zepter does not maintain that ICG did anything to conceal the existence of Zepter's claim.

The similar doctrine of equitable tolling does not concern the conduct of the defendant but rather applies when the plaintiff "despite all due diligence . . . is unable to obtain vital information bearing on the existence of his claim." Chung, 333 F.3d at 278 (quoting Currier v. Radio Free Europe/Radio Liberty, Inc., 159 F.3d 1363, 1367 ...