Crane v. Carr, 86-5345

Citation259 U.S.App.D.C. 229,814 F.2d 758
Decision Date27 March 1987
Docket NumberNo. 86-5345,86-5345
PartiesKent B. CRANE, Appellant, v. Archie CARR, III, et al.
CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)

Appeal from the United States District Court for the District of Columbia (Civil Action No. 85-03938).

Stephen S. Boynton, Vienna, Va., for appellant.

Alan R. Siciliano, Upper Marlboro, Md., for appellees.

Before GINSBURG, BUCKLEY and GINSBURG, Circuit Judges.

Opinion for the Court filed by Circuit Judge RUTH BADER GINSBURG.

RUTH BADER GINSBURG, Circuit Judge:

This case concerns the length of one finger of the District of Columbia longarm statute, specifically, D.C.Code Sec. 13-423(a)(4); that provision authorizes courts in the District to exercise adjudicatory authority over a non-resident defendant as to a claim for relief arising from the defendant's

causing tortious injury in the District of Columbia by an act or omission outside the District of Columbia if [the defendant] regularly does or solicits business, engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed, or services rendered, in the District of Columbia[.]

An allegedly libelous letter to Belize gave rise to the action. The letter was written in, and mailed from, New York by Archie Carr, III, an officer of a New York nonprofit corporation, the New York Zoological Society (NYZS or Society). Addressed to the President of the Belize Audubon Society, the letter concerned a District of Columbia resident, Kent B. Crane, and a proposal he had made to establish in Belize a ranch for exotic wild game animals and an endangered animal breeding center. Alleging the requisite diversity of citizenship, see 28 U.S.C. Sec. 1332(a)(1), Crane sued NYZS and four of its officers (Carr, and three officers superior to him), all New York residents, in the United States District Court for the District of Columbia. The complaint alleged two claims, one for libel, the other for placing Crane in a "false light."

On defendants' threshold motion, the district court dismissed the action for lack of personal jurisdiction. Crane v. Carr, No. 85-3938 (D.D.C. Apr. 30, 1986). 1 In that We vacate the district court's judgment as to the corporate defendant, NYZS. Crane's case was dismissed with no opportunity for discovery on the issue of personal jurisdiction. 2 But the claims in suit, libel and "false light," are the kind in which the injury, foreseeably, is felt with greatest force in the place where the plaintiff lives. See Calder v. Jones, 465 U.S. 783, 789-90, 104 S.Ct. 1482, 1486-87, 79 L.Ed.2d 804 (1984); Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 780, 104 S.Ct. 1473, 1481, 79 L.Ed.2d 790 (1984) (bulk of harm in case of libel occurs in plaintiff's domicile); cf. Asahi Metal Indus. v. Superior Court, --- U.S. ----, 107 S.Ct. 1026, 94 L.Ed.2d 92 (1987); World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 295-99, 100 S.Ct. 559, 566-68, 62 L.Ed.2d 490 (1980) (due process limit is crossed when complainant attempts to draw in nonresident defendant based on unilateral, even if foreseeable, activity of others who bear some relationship to defendant). In addition, Crane has pointed to links NYZS has with the District, see infra p. 761, sufficient at least to permit further inquiry regarding personal jurisdiction, so that the statutory and constitutional questions can be resolved on a fuller record.

                court's view, the District of Columbia long-arm statute did not accommodate the case because "plaintiff ha[d] failed to establish a 'persistent course of conduct,' or either of the two other contacts enumerated in (a)(4), that might permit personal jurisdiction."    Id., slip op. at 4.  Moreover, the district court added, even if the case satisfied the requirements of the District of Columbia long-arm statute, dismissal would nonetheless occur, because "[d]efendants do not possess the 'minimum contacts' with D.C. necessary to satisfy the due process clause."    Id. at 4-5
                

We affirm the dismissal of the action as to the individual defendants, however, because Crane conceded on appeal, both on brief and at oral argument, that he seeks no relief against those defendants in their individual capacity. See Brief for Appellant at 3 (individuals are named defendants only "in their official capacity"). The sole relief Crane requests in this action is monetary. He seeks that relief only against NYZS. Whatever discovery Crane might seek from the four individuals as officers or managing agents of NYZS, see FED.R.CIV.P. 30(b)(6), 32(a)(2), he now pursues no claim for relief against the individuals, and therefore tenders no basis for retaining them in the party lineup.

I.

On December 14, 1984, Archie Carr, III, Assistant Director of Wildlife Conservation International, a division of NYZS, responded to an inquiry from the President of the Belize Audubon Society concerning the proposal of Kent B. Crane to develop a game ranch and endangered species breeding program in Belize. The letter, written on NYZS stationery and signed by Carr as Assistant Director of Wildlife Conservation International, was unfavorable to Crane and his proposal. Carr wrote that Crane was "indeed a 'wheeler-dealer,' " a man who "sounds like ... the kind of wildeyed, arrogant, rich yo yo that [Carr has] always feared would threaten the reef, the land and the people of Belize." Appellant's Appendix (App.) at 44-46. Carr sent copies of Some months later, the Belize Ministry of Natural Resources rejected Crane's proposal; in a July 10, 1985 letter so informing Crane, the Minister stated that "Dr. Carr of the NYZS has written extremely prejudicial remarks about you personally to the President of the Belize Audubon Society." App. at 47. On December 12, 1985, Crane commenced this action asserting that Carr's December 14, 1984 letter defamed him and placed him in a "false light." Crane alleged that the offending letter had been distributed in the District of Columbia to personnel at the Overseas Private Investment Corporation, the National Zoo, the International Institute for Environmental Development, World Wildlife Fund-US, and the Smithsonian Institute. Crane further asserted that Carr knew or should have known that such publication inside the District would occur.

                the letter to three persons (none of them resident in the District of Columbia), and asked the addressee Audubon Society President to inform a fourth individual (also not a resident of the District);  Carr specifically requested that everyone "treat the letter carefully."    App. at 46
                

Following an initial status call, held March 5, 1985, defendants moved to dismiss the action on the ground that they were not amenable to suit in the District of Columbia on Crane's claims. On April 30, 1986, the district judge granted the motion. We conclude that he did so with undue haste as to the corporate defendant, NYZS.

II.

As explained at the outset, see supra p. 760, the individual defendants are appropriately dropped from the party lineup since Crane is pursuing no relief against them as individuals, and seeks to reach them only "in their official capacity." See Brief for Appellant at 3. We observe, moreover, that Crane did not endeavor to contradict the sworn statements supplied by the individual defendants attesting to their lack of affiliation with the District. Each individual stated that his connections were limited to occasional attendance at meetings, correspondence, and telephone calls. See Keeton v. Hustler Magazine, Inc., 465 U.S. at 781 n. 13, 104 S.Ct. at 1482 n. 13 ("Each defendant's contacts with the forum State must be assessed individually."). Finally, we note that in an action properly maintained against NYZS, Crane may depose Society officers "in their official capacity," and the responses they return "may be used by [Crane] for any purpose." FED.R.CIV.P. 32(a)(2).

We clear away also Crane's contention in the district court, repeated on appeal, that this case fits within D.C.Code Sec. 13-423(a)(3), which applies to a claim for relief arising from the defendant's

causing tortious injury in the District of Columbia by an act or omission in the District of Columbia[.]

As the district court succinctly stated, Carr's letter to Belize was not an act in the District. See Reuber v. United States, 750 F.2d 1039, 1049-50 (D.C.Cir.1984).

The letter was, however, an act outside the District alleged to cause tortious injury in the District. D.C.Code Sec. 13-423(a)(4), set out supra p. 759, is the relevant provision, but it requires something more than effects in the District caused by acts done elsewhere. The pivotal question with respect to that subsection's application here is whether NYZS's ties to the District of Columbia amount to a "persistent course of conduct ... in the District." Cf. Steinberg v. International Criminal Police Org., 672 F.2d 927, 931 (D.C.Cir.1981). We turn now to that question.

III.

We set out below NYZS affiliations with the District of Columbia acknowledged in the affidavit of the Society's General Director. App. at 21-26. The enumeration does not include the Society's "government contacts" relating to grant awards or other NYZS connections with federal agencies. See Naartex Consulting Corp. v. Watt, 722 F.2d 779, 786-87 (D.C.Cir.1983), cert. denied, 467 U.S. 1210, 104 S.Ct. 2399, 81 L.Ed.2d 355 (1984); Investment Co. Inst. v. United States, 550 F.Supp. 1213, 1216 (D.D.C.1982) (relationships with federal The Bronx Zoo, an NYZS division, occasionally exchanges animals with the National Zoo.

agencies did not enter into the personal jurisdiction calculus).

NYZS solicits contributions through nationwide direct mail campaigns. In the Society's most recent fiscal year, District residents constituted less than .2% (88) of the approximately 45,000 donors and donated less than .02% ($4,180) of the $21 million raised.

The Society's bimonthly magazine, Animal...

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