Goldfarb v. Channel One Russ. & RT Am.

• Decision Date: 04 March 2020
• Docket Number: 18-CV-8128 (VEC)
• Citation: 442 F.Supp.3d 649
• Parties: Alex GOLDFARB, Plaintiff, v. CHANNEL ONE RUSSIA and RT America, a.k.a. Ano TV-Novosti, Defendants.
• Court: U.S. District Court — Southern District of New York

442 F.Supp.3d 649

Alex GOLDFARB, Plaintiff,

v.CHANNEL ONE RUSSIA and RT America, a.k.a. Ano TV-Novosti, Defendants.

18-CV-8128 (VEC)

United States District Court, S.D. New York.

Signed March 4, 2020

Bertrand Charles Sellier, Richard Edward Rosberger, Rottenberg Lipman Rich PC, New York, NY, Rodney Alan Smolla, Delaware Law School, Wilmington, DE, for Plaintiff.

David B. Rivkin, Jr., Pro Hac Vice, Elizabeth Price Foley, Kendall Eugene Wangsgard, Baker & Hostetler LLP, Nicole Erb, Matthew S. Leddicotte, Pro Hac Vice, White & Case LLP, Washington, DC, for Defendants.

OPINION AND ORDER

VALERIE CAPRONI, United States District Judge:

Plaintiff Alex Goldfarb has sued Defendants Channel One Russia ("Channel One") and RT America a.k.a. Ano TV-Novosti ("RT America") for libel per se and intentional infliction of emotional distress arising from allegedly defamatory statements broadcast by Defendants regarding Plaintiff's alleged involvement in the murder of Russian dissident Alexander Litvinenko. See Compl., Dkt. 5. Defendant Channel One moves to dismiss the complaint on the ground of forum non conveniens ("FNC") and for lack of personal jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(2). Dkt. 59. Defendant RT America moves to dismiss the complaint for lack of personal jurisdiction, failure to state a claim, and FNC pursuant to Federal Rules of Civil Procedure 12(b)(2) and 12(b)(6).¹ Dkts. 30, 69. For the following reasons, Defendants' motions are DENIED.

BACKGROUND²

On November 1, 2006, Alexander Litvinenko ("Litvinenko"), a former officer of the Russian Federal Security Service ("FSB") met with Andre Lugovoy, a former KGB officer, and Dmitry Kovtun in London regarding a possible business venture; Litvinenko mysteriously fell ill that evening. Compl. ¶¶ 21, 31-32. Three weeks later, on November 23, 2006, Litvinenko died of poisoning with what was later identified as the radioactive element Polonium-210. Id. ¶ 2. Two days before his death, Litvinenko signed a written statement accusing Russian President Vladimir Putin of ordering his murder, presumably, in part, as retaliation for Litvinenko's accusations of wrongdoing by Russian government officials. Id. ¶¶ 2, 18, 25, 28, 29, 36.

On May 28, 2007, the United Kingdom ("UK") asked Russia to extradite Lugovoy to stand trial for Litvinenko's murder. Id. ¶ 37. Russia denied the request; Lugovoy was elected to the Duma in 2007 and awarded a medal "For Services to the Fatherland, Second Degree" by Putin in 2015. Id. In 2011, UK authorities named Kovtun as a second suspect in Litvinenko's murder and issued an international warrant for his arrest. Id. ¶ 39. Kovtun is currently a general director of a company in Moscow. Id.

Also in May 2007, Plaintiff, a microbiologist and human rights activist who had met and become friends with Litvinenko during various trips to Moscow in the 1990s, published a book with Litvinenko's widow titled "Death of a Dissident: The Poisoning of Alexander Litvinenko and the Return of the KGB." Id. ¶ 38. The book argued that Lugovoy and Kovtun poisoned Litvinenko on Putin's orders. Id.

For six years following Litvinenko's death, his father, Walter Litvinenko ("Walter"), publicly blamed Putin for his son's murder. Id. ¶ 45. Then, in a stunning about-face, on February 2, 2012, Defendants Channel One and RT America broadcast interviews with Walter in which he called his son a traitor and asked Putin for forgiveness and permission to return to Russia. Id. ¶ 47. A few months later, on May 31, 2012, in another interview with RT America, Walter accused Plaintiff and Boris Berezovsky, a wealthy entrepreneur and former deputy in the Russian Parliament, of murdering his son.³ Id. ¶¶ 19, 48. (On the date of the alleged poisoning of Litvinenko, Plaintiff was in New York; he arrived in London approximately two weeks later. Id. ¶ 33.)

On December 12, 2012, after reviewing some classified information, Sir Robert Owen, a judge on the High Court of Justice in the UK, found evidence supporting a prima facie case that Litvinenko had been murdered by someone working on behalf of the Russian state. Id. ¶¶ 52-54. About 18 months later, Sir Owen opened a Public Inquiry into Litvinenko's death. Id. ¶¶ 55, 58. The Public Inquiry concluded that Lugovoy and Kovtun murdered Litvinenko by placing Polonium-210 in his tea on November 1, 2006; Sir Owen rejected the suggestion that Plaintiff or Berezovsky had any role in the death. Id. ¶¶ 68, 70, 73. Sir Owen also found that the "FSB operation to kill Mr. Litvinenko was probably approved by [ ] President Putin." Id. ¶ 72.

Years later, in March 2018, former Russian military intelligence officer Sergei Skripal and his daughter were poisoned in England. Id. ¶ 79. Due to marked similarities to the Litvinenko poisoning, the Litvinenko murder was thrust back into the news. Id. To set-up a counternarrative to the Western narrative that the Skripal attempted murder was similar to the Litvinenko murder, thereby suggesting that the Russian government was responsible, Defendant Channel One aired four programs in March and April 2018 during which reporters accused Plaintiff of poisoning Litvinenko and killing his own wife.⁴ Id. ¶ 9. The programs featured interviews with Walter Litvinenko and Andre Lugovoy, both of whom repeatedly accused Plaintiff of murdering Litvinenko and framing Lugovoy. Id. ¶¶ 83-89, 96-107. In the March 30, 2018 program, Walter claimed that he saw Plaintiff's wife "crying, weeping: ‘Walter, Walter, Alex killed Alexander.’ " Id. ¶ 96. Walter claimed Plaintiff's wife was "a young girl" and "died within a month" of Litvinenko's death. Id. ¶¶ 85, 96. Channel One's reporter stated that Plaintiff's wife allegedly "confessed that her husband killed Alexander [Litvinenko] and herself died a month later at the age of 28." Id. ¶ 96. Plaintiff asserts that his wife died of cancer

at the age of 55, three years after Litvinenko's murder. Id. ¶ 90. The Channel One television shows were distributed internationally, including in New York. Id. ¶ 9.

On April 1, 2018, Defendant RT America⁵ aired an interview of Walter in which he repeated the allegedly defamatory statements he had previously made on the Channel One programs. Id. ¶ 97. RT America's reporter stated that the Litvinenko investigation materials from the UK Inquiry Report had been classified even though the UK Inquiry report was, in fact, not classified; it was released publicly in 2016 and remains publicly available. Id. ¶¶ 59, 98.

Defendant Channel One contacted Plaintiff several times in connection with the programs at issue. Id. ¶¶ 91-95. After several interviews were scheduled and then cancelled by Channel One,⁶ on March 23, 2018, Plaintiff and Zhanna Agalakova, Channel One's New York-based correspondent, met in Channel One's New York studio to record an interview. Id. ¶ 94. Throughout the interview, Plaintiff denied that he killed Litvinenko, stated that the UK Inquiry Report had named Lugovoy and Kovtun as Litvinenko's murderers, and refuted Walter's claims regarding his wife. Id. Although Agalakova told Plaintiff that she would send the tape to Moscow to be broadcast immediately, the interview was never aired. Id. As detailed, supra , Defendant Channel One instead broadcast the allegedly defamatory statements regarding Plaintiff's supposed role in Litvinenko and his wife's deaths, without rebuttal from Plaintiff, in their three subsequent programs aired on March 30, April 4, and April 10, 2018. Id.

Plaintiff asserts a claim of libel per se against both Defendants,⁷ alleging that Defendants aired defamatory statements despite knowing they were false and in deliberate disregard of the truth. Id. ¶¶ 115-131. Plaintiff also asserts a claim of intentional infliction of emotional distress, alleging that the publication of the defamatory statements caused him to suffer significant damages, including damage to his reputation, humiliation, embarrassment, mental suffering, and emotional distress. Id. ¶¶ 133-34.

DISCUSSION

I. Defendants' Motion to Dismiss for Forum Non Conveniens is Denied

Channel One moved to dismiss Plaintiff's complaint on the grounds of forum non conveniens, see Dkt. 59, and RT America joined the motion, Dkt. 69.

The doctrine of forum non conveniens is a "discretionary device permitting a court in rare instances to dismiss a claim even if the court is a permissible venue with proper jurisdiction over the claim." Carey v. Bayerische Hypo–Und Vereinsbank AG, 370 F.3d 234, 237 (2d Cir. 2004) (citations and internal quotation marks omitted); Piper Aircraft Co. v. Reyno, 454 U.S. 235, 257, 102 S.Ct. 252, 70 L.Ed.2d 419 (1981). The Second Circuit has established a three-part test for evaluating motions to dismiss on FNC grounds. First, the district court must determine "the degree of deference properly accorded [to] the plaintiff's choice of forum." Norex Petroleum Ltd. v. Access Indus., Inc., 416 F.3d 146, 153 (2d Cir. 2005) (citing Iragorri v. United Techs. Corp., 274 F.3d 65, 73–74 (2d Cir. 2001) (en banc)). Second, the court must consider "whether the alternative forum proposed by the defendants is adequate to adjudicate the parties' dispute," and finally, the court must balance the private and public interests implicated in plaintiff's choice of forum. Id.

a. Step One: The Court Defers to Plaintiff's Choice of Forum

As a general matter, courts defer to a plaintiff's choice of forum; indeed, "unless the balance is strongly in favor of the defendant, the plaintiff's choice of forum should rarely be disturbed." Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508, 67 S.Ct. 839, 91 L.Ed. 1055 (1947). The "degree of deference to be given to a plaintiff's choice of forum moves on a sliding scale depending on several relevant considerations." Iragorri, 274 F.3d at 71. On one hand, "the greater the plaintiff's or the lawsuit's bona fide connection to the United States and to the forum of choice and the more it appears that considerations of convenience favor the conduct of the...