Crane v. New York Zoological Soc., 88-7167

• Decision Date: 30 January 1990
• Docket Number: No. 88-7167,88-7167
• Citation: 894 F.2d 454,282 U.S.App. D.C. 295
• Parties: Kent B. CRANE, Appellant, v. NEW YORK ZOOLOGICAL SOCIETY.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 454

894 F.2d 454

282 U.S.App.D.C. 295

Kent B. CRANE, Appellant, v. NEW YORK ZOOLOGICAL SOCIETY.

No. 88-7167.

United States Court of Appeals,

District of Columbia Circuit.

Argued Sept. 26, 1989.

Decided Jan. 30, 1990.

Appeal from the United States District Court for the District of Columbia (D.C. Civil Action No. 85-3938).

Stephen J. Gray, with whom Pascale DeBoeck, Washington, D.C., was on the brief, for appellant. Stephen S. Boynton, Washington, D.C., also entered an appearance, for appellant.

Joseph S. Crociata, Washington, D.C., for appellee.

Before WALD, Chief Judge, and BUCKLEY and SENTELLE, Circuit Judges.

Opinion for the court filed by Circuit Judge BUCKLEY.

BUCKLEY, Circuit Judge:

Kent B. Crane, a resident of the District of Columbia, appeals from an order dismissing his defamation complaint against the New York Zoological Society for lack of personal jurisdiction. The district court held that because Crane failed to show that the defamatory material complained of was published in the District, he could not, as a matter of law, have suffered injury within the District. The court therefore concluded that jurisdiction over the New York Zoological Society was not available under the D.C. "long-arm" jurisdiction statute. Because we find that the court erred on the question of law and that Crane has made the necessary prima facie showing of injury within the District, we reverse and remand for consideration of the remaining jurisdictional issues.

I. BACKGROUND

A. Jurisdictional Requirements

Kent B. Crane lives and conducts his game ranching and wildlife breeding consulting business within the District of Columbia ("District"). The New York Zoological Society ("Society") is a nonprofit corporation organized under the laws of the State of New York with its principal place of business located at the Bronx Zoo in New York City. The Society does not transact business within the District.

As subject matter jurisdiction in this case is based on diversity of citizenship, we look to District law to determine whether there is a basis for exercising personal jurisdiction over the Society. Crane v. Carr, 814 F.2d 758, 762 (D.C.Cir.1987). The District's long-arm statute provides, in relevant part:

(a) A District of Columbia court may exercise personal jurisdiction over a person, who acts directly or by agent, as to a claim for relief arising from the person's--

....

(4) causing tortious injury in the District of Columbia by an act or omission outside the District of Columbia if he 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.

D.C.Code Sec. 13-423(a) (1989). A defendant is therefore subject to the District's long-arm statute if he causes injury here by an act committed elsewhere and, in addition, has "some other reasonable connection" with the District, such as engaging in a "persistent course of conduct" within the District. Founding Church of Scientology v. Verlag, 536 F.2d 429, 432 (D.C.Cir.1976).

That connection must be such that the exercise of jurisdiction will comport not only with the statute's requirements, but with those of the due process clause as well. Id. The constitutional test is met if the defendant's "minimum contacts" with the District are such that subjecting it to suit would "not offend 'traditional notions of fair play and substantial justice.' " International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945) (quoting Milliken v. Meyer, 311 U.S. 457, 463, 61 S.Ct. 339, 343, 85 L.Ed. 278 (1940)). The plaintiff has the burden of establishing a factual basis for the exercise of personal jurisdiction over the defendant. Reuber v. United States, 750 F.2d 1039, 1052 (D.C.Cir.1984). In determining whether such a basis exists, factual discrepancies appearing in the record must be resolved in favor of the plaintiff. Id.

B. The Alleged Libel

Prior to December 1984, Crane submitted a proposal to the Government of Belize for the establishment of a wild animal ranch and breeding center in that country. On December 14, 1984, Archie Carr III, then Assistant Director of the Society, wrote a letter to the President of the Belize Audubon Society (with copies sent to three or four other persons) containing critical comments concerning Crane and his proposal ("letter"). The letter questioned Crane's motives and professional abilities and said that he sounded like "the kind of wildeyed, arrogant, rich yo yo" that Carr had always feared "might threaten ... the land and the people of Belize." Seven months later, Crane received a letter from the Belize Minister of Natural Resources informing him that his proposal had been rejected in part because of the "extremely prejudicial remarks" about him contained in Carr's letter to the President of the Belize Audubon Society. Letter of Hon. Dean R. Lindo to Kent Crane dated July 10, 1985, Complaint, Exhibit B.

C. Procedural Background

On December 12, 1985, Crane filed this action against the Society and four individual defendants, alleging that he had been libeled and placed in a "false light." His complaint asserted that Carr's letter had resulted in injury to his professional and personal reputation and had caused him economic loss and emotional anguish. Complaint, paras. 14-17. Shortly after Crane filed his complaint and before any discovery, the defendants moved pursuant to Rule 12(b)(2) of the Federal Rules of Civil Procedure for dismissal for lack of personal jurisdiction. The district court granted the motion on the grounds that Carr had failed to establish the "persistent course of conduct" and the "minimum contacts" required by the statute and due process. The court did not reach the allegations of injury. Crane v. Carr, Civ. No. 85-3938 (D.D.C. Apr. 30, 1986). On appeal, we affirmed the dismissal of the action against the individual defendants, Crane, 814 F.2d at 760, but remanded the case against the Society so that Crane might have the opportunity to obtain discovery of jurisdictional facts concerning the Society's contacts with the District. Id. at 764.

On remand and after limited discovery, the Society again moved to dismiss Crane's complaint for lack of personal jurisdiction. The district court granted the motion but did not reach the questions on which this court had remanded the case, namely, whether the Society engaged in a "persistent course of conduct" in the District and whether assertion of jurisdiction would comport with due process. Crane v. New York Zoological Society, Civ. No. 85-3938, mem. order at 9, 1988 WL 64926 (D.D.C. June 10, 1988) ("Memorandum Order"). Rather, the district court concluded, as a matter of fact, that the letter was ot published in the District by anyone other than Crane, finding Crane's assertions to the contrary in his affidavit and deposition testimony to be "unsupported," "conclusory," and without "foundation" or "credibility." Id. at 8. Accordingly, the court held that Crane had failed to sustain his burden to make a prima facie showing that he suffered injury in the District, and that the Society was therefore not subject to jurisdiction under the District's long-arm statute. Id. at 7 & n. 7. Crane appeals this decision.

II. DISCUSSION

A. Injury Under the Long-Arm Statute

Based on its finding that the letter was not published in the District by anyone other than Crane, the court held that "[e]ven assuming ... that [Crane] had established injury in the form of economic loss and harm to his reputation, we find that our exercise of jurisdiction would not be appropriate absent evidence of publication in the District." Id. (footnote omitted). The court reasoned that "[a]n injury by libel occurs at the site of publication," relying on Howser v. Pearson, 95 F.Supp. 936, 938 (D.D.C.1951), and that Crane therefore could not have suffered injury in the District unless the libel was published there. Memorandum Order at 7 (emphasis in original). Crane contends that this conclusion is wrong as a matter of law.

In Howser, the court was faced with a choice-of-law question. The court stated that the determination of which state's law should apply was governed by "the place where the wrong was committed," and that "[l]ibel and slander take place where the defamatory statement is communicated and not in the place from which the offending material is sent or where it originates." Howser, 95 F.Supp. at 938. Thus, libel occurs in the place where published, but the injuries that may flow from libel are not necessarily restricted to the place of publication.

The core interest protected by libel law is a person's reputation, i.e., the general estimation in which that person is held by the public. 2 F. Harper, F. James & O. Gray, The Law of Torts Sec. 5.1, at 24 (1986); see Hearst Corp. v. Hughes, 297 Md. 112, 127, 466 A.2d 486, 493 (1983); W. Keeton, D. Dobbs, R. Keeton & D. Owen, Prosser & Keeton on Torts Sec. 111, at 773 (5th ed. 1984). Derogatory remarks plainly cannot damage a person's reputation unless those remarks are "published," i.e., communicated to some third person: there can be no defamation without publication. F. Harper, F. James & O. Gray, supra Sec. 5.15; W. Keeton, D. Dobbs, R. Keeton & D. Owen, supra Sec. 113, at 797-802; see Great Atl. & Pac. Tea Co. v. Paul, 256 Md. 643, 648, 261 A.2d 731, 734-35 (1970).

The law of defamation also allows recovery for injuries other than to one's reputation. Hearst Corp., 297 Md. at 122, 466 A.2d at 491. A plaintiff, for example, may recover for pecuniary loss resulting from the defamation. Robertson v. McCloskey...