Fielding v. Hubert Burda Media, Inc.
| Decision Date | 30 June 2005 |
| Docket Number | No. 04-10297.,04-10297. |
| Citation | 415 F.3d 419 |
| Parties | Shawne FIELDING; Thomas Borer, Plaintiffs-Appellants, v. HUBERT BURDA MEDIA, INC.; et al., Defendants, Hubert Burda Media, Inc.; Hubert Burda Digital, Inc.; Burda Media, Inc.; Burda Publications, Inc.; Burda Entertainment Verlag GmbH; Hubert Burda, Individually; Bertelsmann AG; Bertelsmann, Inc.; Gruner & Jahr AG; Gruner & Jahr AG & Co. KG; Stern De GmbH; Tip-Verlag GmbH, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Kent Charles Krause (argued), Speiser Krause, Dallas, TX, for Fielding and Borer.
Larry M. Lesh (argued), Law Office of Larry M. Lesh, Dallas, TX, for Borer.
Thomas S. Leatherbury (argued), Michael L. Raiff, Vinson & Elkins, Dallas, TX, Lisa Erin Bowlin, Vinson & Elkins, Austin, TX, for Hubert Burda Media, Inc., Hubert Burda Digital, Inc., Burda Media, Inc., Burda Publications, Inc., Burda Entertainment Verlag GmbH and Hubert Burda.
Charles L. Babcock (argued), David T. Moran, John M. Jackson, Jackson Walker, Dallas, TX, for Bertelsmann AG and Bertelsmann, Inc.
Robert Lloyd Raskopf (argued), Marc Edward Ackerman, White & Case, New York City, Mark Lawrence Mathie, McKool Smith, Dallas, TX, for Gruner + Jahr AG.
Appeal from the United States District Court for the Northern District of Texas.
Before JOLLY, DAVIS and CLEMENT, Circuit Judges.
Thomas Borer, the former Swiss ambassador to Germany, and Shawne Fielding, his wife (collectively, "appellants"), brought suit for libel, intentional infliction of emotional distress, tortious interference with prospective business relations, and civil conspiracy claims against appellees Hubert Burda Media Holding GmbH & Co. KG ("Hubert Burda Media"), Bertelsmann AG ("Bertelsmann"), and Gruner & Jahr ("Gruner") and those parties' related subsidiaries and affiliates. The district court dismissed for lack of personal jurisdiction and denied appellants' motions for further jurisdictional discovery. Borer and Fielding filed this appeal. For the reasons that follow, we affirm the district court's holding that none of appellees has sufficient contacts in Texas to satisfy due process limitations on general or specific jurisdiction in the forum state.
Appellants Thomas Borer and Shawne Fielding were married in April 1999. Borer, a citizen of Switzerland, was the Swiss Ambassador to Germany. Fielding, an American from Texas, is a former model and one-time winner of both the Miss Dallas and Mrs. Texas competitions. Two months after their marriage, Fielding and Borer moved into the Swiss Embassy in Berlin, where they remained until April of 2002. The couple was active in public and social life in Berlin and often the subject of media attention. During this time Fielding remained a citizen of Texas.
Appellee Hubert Burda Media owns Bunte, a German-language news magazine with 97% of its issues sold in Germany. Out of a total printing of 750,000 issues per week, Bunte's circulation in Texas is limited to approximately seventy issues per week—forty subscribers and thirty newsstand distributors for resale. Bunte is published weekly by Bunte Entertainment Verlag GmbH, a German company with its principal office in Munich. Bunte Entertainment is a wholly owned subsidiary of Hubert Burda Media, of which Hubert Burda, a German citizen, is Chairman of the Board. Hubert Burda Media, Inc., a New York company with its principal place of business in New York City, provided research services to Bunte related to some of these articles.
Appellees Bertelsmann and Gruner own Stern, a German-language news magazine with 94% of its issues sold in Germany. Out of a total printing of approximately 1,000,000 issues per week, Stern's circulation in Texas is limited to approximately sixty issues per week—forty subscribers and twenty newsstand distributors for resale. Stern is published weekly by Gruner & Jahr AG & Co. KG, a German company of which Gruner & Jahr AG is a two-percent owner. Gruner & Jahr AG is itself a corporate division of Bertelsmann AG, a German corporation with its principal place of business in Gtersloh, Germany. Bertelsmann, Inc., a Delaware corporation with its principal place of business in New York City, is a wholly owned subsidiary of Bertelsmann AG.
On March 31, 2002, the Swiss tabloid Sonntags-Blick published an article alleging an extra-marital affair between Borer and Djamila Rowe, a European model and perfume saleswoman at a department store. The tabloid is owned and published by Ringier AG, a non-party to these proceedings. Rowe, who had provided explicit details about the alleged affair in the initial article, retracted her story approximately three months later, in early July 2002, and admitted that she had been paid and pressured to fabricate the story of the affair with Borer. The reversal by Rowe led to the resignations of the editor-in-chief and a writer for Sonntags-Blick. The tabloid reached an out-of-court settlement with Borer and Fielding and printed a front-page retraction under the headline, "Sorry."
Prior to the retraction, the story of the alleged affair was picked up by Hubert Burda Media's Bunte and Bertelsmann and Gruner's Stern.1 Between April 11, 2002 and September 5, 2002, Bunte published seven articles relating to Fielding and Borer. The first article described the alleged affair and cast Fielding in an unflattering light, describing her as a blond with "charm and sex appeal," a gold digger, and having ridden through the Swiss embassy on a horse, in a revealing cowgirl outfit. The April 25, 2002 Bunte article included the most significant discussion of Fielding. It insinuated that Fielding is accustomed to playing the role of wife to an unfaithful husband, and included an interview from her Texan ex-husband, Charlie Williams, who was described as abusive. This article reports where she went to college and includes information from her college yearbook. Another article from Bunte, from August 29, 2002, suggests that Fielding uses cocaine.
Between April 18, 2002 and March 20, 2003, Stern published five articles relating to the couple. On December 23, 2002, Stern gave Borer the dubious honor of "Affair of the Year," repeating the allegation from April and describing Fielding and Borer as "social pariahs" in Berlin. The article recounted the allegations of the affair and suggested that, despite subsequent denials by all parties involved, it had occurred.
As public scrutiny of Borer and Fielding intensified, the couple suffered negative ramifications. In April 2002, Borer was recalled to Switzerland and was stripped of his ambassadorship. Around the same time, Fielding suffered a miscarriage. In late 2002, she was advised by doctors to return to the less-stressful environment of Texas.2 In addition to Borer's professional setbacks and Fielding's physical trauma, the couple alleges that they suffered injury to their reputation amongst their family, friends and acquaintances in Texas.
In April 2003, Fielding and Borer brought this suit in a Dallas County, Texas state district court against defendants Hubert Burda Media, Bertelsmann, and Gruner for libel, intentional infliction of emotional distress, tortious interference with prospective business relations, and civil conspiracy claims. Defendants removed this diversity action to the United States District Court for the Northern District of Texas under 28 United States Code Section 1332(a)(3). On June 18, 2003, Plaintiffs filed a motion for an extension to conduct additional jurisdictional discovery, which the district court granted, allowing until September 5, 2003. Plaintiffs filed a motion for a second extension to conduct further jurisdictional discovery and to amend their complaint. Defendants moved to quash these motions to extend and to dismiss for lack of personal jurisdiction under Federal Rule of Civil Procedure 12(b)(2). The district court granted the defendants' motions on February 11, 2004, and Fielding and Borer now timely appeal.
The district court determined that it lacked specific jurisdiction over the defendants based on the publication of the alleged libels in Texas and general jurisdiction over the companies based on their contacts in the forum.
We review de novo the determination by a district court of its lack of personal jurisdiction over a defendant. Revell v. Lidov, 317 F.3d 467, 469 (5th Cir.2002). Plaintiffs bear the burden of proving the district court's personal jurisdiction, but relevant factual disputes will be resolved in plaintiffs' favor. Id.; Guidry v. U.S. Tobacco Co., 188 F.3d 619, 626 (5th Cir.1999). Plaintiffs need only plead a prima facie case for personal jurisdiction. Felch v. Transportes Lar-Mex S.A. De CV, 92 F.3d 320, 326 (5th Cir.1996). "Although jurisdictional allegations must be accepted as true, such acceptance does not automatically mean that a prima facie case for specific jurisdiction has been presented." Panda Brandywine Corp. v. Potomac Elec. Power Co., 253 F.3d 865, 868 (5th Cir.2001).
A federal district court hearing a case in diversity may exercise personal jurisdiction to the extent permitted for a court under applicable law of the state in which the federal court sits. Allred v. Moore & Peterson, 117 F.3d 278, 281 (5th Cir.1997). Texas's jurisdictional statute is a "long-arm" statute, extending the personal jurisdiction of Texas court to the extent allowed by the Due Process Clause of the Fourteenth Amendment, which "operates to limit the power of a State to assert in personam jurisdiction over a non-resident defendant." Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 413-14, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984); see also Tex. Civ. Prac. & Rem.Code § 17.042 (Vernon 1997); Aviles v. Kunkle, 978 F.2d 201, 204 (5th Cir.1992)....
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...Judge Catharina Haynes argued that the majority failed to apply the Fifth Circuit's precedent in Fielding v. Hubert Burda Media, Inc., 415 F.3d 419 (5th Cir. 2005), which held that specific jurisdiction for a suit alleging the intentional tort of libel exists for (1) a publication with adeq......
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U.S. Court Of Appeals For The Fifth Circuit Takes A Narrow Approach To Personal Jurisdiction Over Out-Of-State Website
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