Geary v. Goldstein

• Decision Date: 13 January 1992
• Docket Number: Civ. A. No. 90-0460-P.
• Citation: 782 F. Supp. 725
• Parties: Angie GEARY v. Al GOLDSTEIN, et al.
• Court: U.S. District Court — District of Rhode Island

782 F. Supp. 725

Angie GEARY v. Al GOLDSTEIN, et al.

Civ. A. No. 90-0460-P.

United States District Court, D. Rhode Island.

January 13, 1992.

John J. Barton, Taylor, Anderson & Travers, Boston, Mass., for plaintiff.

Kenneth P. Norwick, Norwick & Schad, New York City, Lynette Labinger, Roney & Labinger, Providence, R.I., for defendants.

MEMORANDUM AND ORDER

PETTINE, Senior District Judge.

Defendants in the above-captioned case have petitioned this Court for dismissal of Plaintiff's Complaint. Defendants' motion is predicated on Federal Rule of Civil Procedure 12(b)(2), which provides for dismissal of an action if the court lacks personal ("in personam") jurisdiction over the defendant(s). I find that in personam jurisdiction is lacking, and I order immediate transferral of this action to the Southern District of New York, pursuant to 28 U.S.C. § 1631.

I.

Plaintiff Angie Geary, a Rhode Island resident, is a fashion model associated with a major New York modeling agency. In July 1988, Ms. Geary contracted to appear in a television commercial advertising a product known as "Wasa Bread." This commercial was aired nationally on network television.

The Defendants, Mr. Al Goldstein, Midnight Blue, Inc., and Milky Way Productions, Inc., are New York residents. Plaintiff describes defendants' business as "creating, publishing, producing, broadcasting, presenting, marketing and distributing `adult entertainment' in various forms, including magazines, newspapers, videos, films, television programs, sex products, and `phone sex' services." Plaintiff's Complaint at 3. In less diplomatic terms, the defendants produce and sell pornography.

Plaintiff alleges that, "on or about October of 1989, the defendants created, produced, broadcast, presented, marketed or distributed, as part of the Midnight Blue television program a pornographic cable television show produced by at least one of the defendants, a segment or commercial of their own which featured portions of the original Wasa Bread commercial juxtaposed with pornographic material showing men and women in various forms of sexual activity." Pltf's. Complaint at 3. Defendants do not contest this allegation; nor do they contest that this segment of "Midnight Blue" was broadcast to Manhattan cable television viewers. It is also undisputed that Ms. Geary's consent was not obtained by the defendants prior to their "adaptation" and subsequent use of the commercial in which she was featured.

Plaintiff alleges that she has suffered pecuniary loss as a result of defendants' actions. The Wasa Bread commercial was pulled from the air after portions of it appeared on "Midnight Blue;" Ms. Geary lost residuals and royalties which would otherwise have been forthcoming if the commercial had continued to enjoy television air time. Plaintiff bases the present action on the torts of defamation and invasion of privacy, claiming that the defendants' action has subjected her to "contempt, ridicule, indignity and embarrassment, has caused her to suffer damage to her personal and professional reputations, and has resulted in a loss of income to her and a diminution of her future earning capacity." Pltf's. Complaint at 5.

II.

This Court has previously set out the legal standard for in personam jurisdiction as follows:

In a diversity action, the law of the forum governs the question whether the defendant is properly subject to the jurisdiction of this Court. Hahn v. Vermont Law School, 698 F.2d 48, 49 (1st Cir. 1983). Because the Rhode Island long-arm statute permits jurisdiction to the fullest extent permitted by the federal constitution, R.I.G.L. § 9-5-33; see Roger Williams General Hospital v. Fall River Trust Co., 423 A.2d 1384 (R.I. 1981), the inquiry turns on whether the defendant has sufficient minimum contacts with the forum state to ensure that compelling them to defend a lawsuit here "does 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). In making this determination, "a court properly focuses on `the relationship among the defendant, the forum and the litigation'" Calder v. Jones, 465 U.S. 783, 788, 104 S.Ct. 1482, 1486, 79 L.Ed.2d 804 (1984) (citations omitted) and considers whether "the defendant's conduct and connection with the forum State are such that he should reasonably anticipate being haled into court" in the forum. World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 567, 62 L.Ed.2d 490 (1980).

Demirs v. Plexicraft, Inc., 754 F.Supp. 250, 251-52 (D.R.I.1990).

There are two distinct types of in personam jurisdiction in the federal courts: specific and general. Specific jurisdiction exists when the plaintiff's cause of action arises out of the defendant's contacts with the forum. 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). Conversely, general jurisdiction exists when the plaintiff's cause of action is unrelated to the defendant's instate activities. Id. at n. 9. The applicable legal standard differs depending on whether one is talking about specific or general jurisdiction. "Although minimum contacts suffice in and of themselves for specific jurisdiction ... the standard for general jurisdiction is considerably more stringent." Dynamic Concepts v. Modern Chain Mfg. Co., Inc., 610 F.Supp. 285, 287 (D.R.I.1985) (citations omitted).

Whether specific or general jurisdiction is asserted by the plaintiff, she has the burden of presenting facts sufficient to support her contention that this Court has jurisdiction over the instant action. Dynamic Concepts, 610 F.Supp. at 286 n. 1 (citing American Freedom Train Found. v. Spurney, 747 F.2d 1069, 1075 (1st Cir. 1984)). However, in reaching today's decision, this Court has accepted as true the allegations presented in plaintiff's Complaint.¹ See Thompson Trading Ltd. v. Allied Lyons PLC, 123 F.R.D. 417, 421 (D.R.I.1989), recons. den., 124 F.R.D. 534 (D.R.I.1989) (citations omitted) ("The general rule, clearly accepted in the First Circuit, is that when a court makes a ruling on a motion to dismiss, it must accept the allegations of the complaint as true."). Since plaintiff rests her jurisdictional argument on both specific and general in personam jurisdiction, the Court will address each of these jurisdictional claims individually.

A. SPECIFIC JURISDICTION

In order for this Court to have specific jurisdiction over the instant action, the torts allegedly committed must have occurred within Rhode Island. Plaintiff's Complaint is based on the defendants' production and dissemination of a pornographic parody of a commercial in which she starred. Only if the parody had been aired in Rhode Island could the torts of defamation and invasion of privacy have been committed in this State.²

At first blush, there appears to be a factual controversy as to whether the Wasa Bread parody was viewed by anyone in Rhode Island. While plaintiff has been unable to produce proof that the segment was aired within this state, or that any Rhode Island resident has viewed it at home or elsewhere, she argues that the Court should infer that the Wasa Bread segment of "Midnight Blue" was aired in Rhode Island. Plaintiff justifies this inference by stating:

The fact that the defendants have refused to produce a complete set of the requested videotapes and broadcast logs, when considered in light of the shared content of the "Midnight Blue" cablecasts and satellite broadcasts, supports more than a "reasonable inference" that the pornographic Wasa Bread piece, which is the focus of this lawsuit, was in fact also broadcast by satellite to Rhode Island.

Plaintiff's Opposition Memorandum at 7 (emphasis in original).

Defendants, in turn, contend that "None of the seventeen satellite transmissions of Midnight Blue included the Wasa Bread parody." Defs'. Reply Memo. at 8 (emphasis in original). Defendants have offered a variety of depositions, affidavits, broadcast logs, and videotapes to support their position.³ Defs'. Reply Memo. at 8-11. See also id. at 24-27. These materials clearly refute plaintiff's claim that defendants have failed to offer proof of the content of the satellite broadcasts of "Midnight Blue."

This Court finds that any factual dispute as to whether the Wasa Bread parody was aired by satellite in Rhode Island is based on little more than plaintiff's wishful thinking. The "inference" suggested by plaintiff is attenuated to say the least, and must be rejected in light of the information now before the Court. Both plaintiff and defendants have submitted voluminous documentation to the Court, and based on a review of these records, the Court is satisfied that the parody was never aired within Rhode Island.⁴ No more need be said regarding specific jurisdiction; in this venue, it simply does not exist.

B. GENERAL JURISDICTION

Although the parties' dispute is unrelated to Rhode Island, there is a second type of in personam jurisdiction that could preserve plaintiff's action in this forum. For general in personam jurisdiction, it is not essential that the plaintiff's cause of action be related to the forum. See Perkins v. Benguet Consolidated Mining Co., 342 U.S. 437, 72 S.Ct. 413, 96 L.Ed. 485 (1952), reh'g denied, 343 U.S. 917, 72 S.Ct. 645, 96 L.Ed. 1332 (1952). Accord, Eastland Bank v. Massbank for Savings, 749 F.Supp. 433, 436 (D.R.I.1990). The First Circuit recently described the requisites of general jurisdiction in the following manner: "The outcome of a search for general jurisdiction depends largely on whether a corporate party carried on `continuous and systematic' activities within the forum sufficient to justify requiring it to answer there to a claim unrelated to its in-forum presence." Sandstrom v. Chemlawn Corp., 904 F.2d 83, 88 (1st Cir.1990).

In order to determine whether defendants' contacts with Rhode...