Hatfill v. Foster

• Decision Date: 14 February 2006
• Docket Number: No. 04CIV.9577 (CM)(GAY).,04CIV.9577 (CM)(GAY).
• Citation: 415 F.Supp.2d 353
• Parties: Steven HATFILL, Plaintiff, v. Donald FOSTER, et al., Defendants.
• Court: U.S. District Court — Southern District of New York

415 F.Supp.2d 353

Steven HATFILL, Plaintiff, v. Donald FOSTER, et al., Defendants.

No. 04CIV.9577 (CM)(GAY).

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

February 14, 2006.

Appeal from the District Court, McMahon, J.

COPYRIGHT MATERIAL OMITTED

Eric O. Bravin, Mark Andrew Grannis, Patrick Pearse O'Donnell, Tonya Mitchell, Thomas G. Connolly, Harris, Wiltshire & Grannis L.L.P., Washington, DC, for Plaintiff.

Kevin W. Goering, Sheppard, Mullin, Richter & Hampton, LLP, David A. Schulz, Michael D. Sullivan, Chad R. Bowman, Levine Sullivan Koch & Schulz L.L.P., Laura R. Handman, Davis Wright Tremainen LLP, New York City, Jay Ward Brown, Levine Sullivan Koch & Schultz, Washington, DC, Dirk Christian Phillips, Hogan & Hartson LLP, Matthew Roy Aloysius Heiman, McGuire Woods LLP, McLean, VA, for Defendants.

DECISION AND ORDER REVISITING CHOICE OF SUBSTANTIVE LAW AND ORDER TO SHOW CAUSE

MCMAHON, District Judge.

I. Introduction

In October 2003, defendant Conde Nast Publications published an article by defendant Donald Foster entitled "Message in the Anthrax," describing Foster's investigations into the 2001 anthrax attacks. Defendant Reader's Digest Association republished the article two months later, under the name "Tracking the Anthrax Killer." Both articles contained allegedly libelous statements imputing the anthrax attacks (and other unsavory activities) to Dr. Steven Hatfill, a medical doctor and leading expert on bio-terrorism.

In August 2004, Hatfill filed a complaint asserting state law claims for libel in the Eastern District of Virginia. That court granted defendants' motion to transfer venue to the Southern District of New York. In two 2005 decisions resolving defendants' various motions to dismiss, this Court determined that Virginia law should apply to the substantive issues in this case.

After those decisions came down, defendants belatedly challenged many of plaintiff s assertions as to his connections with the state of Virginia, and asked this Court to review the choice of law issue yet again. The court was reluctant to reopen the issue, especially since defendants had not bothered to ask for jurisdictional discovery while the various motions to dismiss (all of which implicated choice of law issues) were pending. However, after hearing from defendants' counsel about responses allegedly given by plaintiff in a deposition in his case against the United States Department of Justice concerning his residence at the time the articles here in suit were published, it seemed that misrepresentations might have been made to this court, and that the original choice of law decisions were predicated on erroneous impressions left by those misrepresentations. I sua sponte ordered a fifteen day period of jurisdictional discovery and directed additional briefing on the choice of law issue.

Based on the evidence now before me, I reverse my earlier determination and conclude that the governing substantive law as to all defendants in this case is Washington D.C., rather than Virginia, law.

II. Facts

A. Procedural History

The background of this case is generally known, so I restate it only briefly.

In late 2001, an anonymous person or group mailed envelopes laden with weapons-grade anthrax to several high-profile targets on the East Coast, including NBC, the publisher of the National Enquirer, and the Capitol building. In the subsequent investigation, suspicion fell on Dr. Steven Hatfill, a biomedical researcher who allegedly had extensive training in biowarfare and access to the materials and equipment needed to create high-grade anthrax.

Hatfill was placed under close surveillance by federal law enforcement. In addition, amateur sleuths took up the investigation on their own. One of them was Donald Foster, a professor at Vassar College and a self-proclaimed practitioner of "literary forensics," the art of conducting criminal investigations based on clues in a suspect's use of written and spoken language.

These ongoing investigations, over time, put considerable stress on Hatfill's personal and professional lives. Ultimately they turned up no hard evidence linking Hatfill to the anthrax mailings. Neither Hatfill nor anyone else has been conclusively identified as the killer or charged with any crime related to the anthrax mailings.

In October 2003, Vanity Fair, a magazine owned by defendant Conde Nast Publications (CNP), published Foster's article "Message in the Anthrax." The article points to Hatfill as the anthrax mailer and blaming law enforcement for letting the trail grow cold. Two months later, Reader's Digest, a publication of defendant The Reader's Digest Association (RDA), published a version of the article entitled "Tracking the Anthrax Killer" which excised some of the more accusatory elements of the Vanity Fair article but retained the article's thesis linking Hatfill to the anthrax attacks.

In August 2004, Hatfill brought state law claims of libel and infliction of emotional distress against Foster, RDA, and CNP. The complaint was originally filed in the Eastern District of Virginia. In his complaint, Hatfill asserted that he was a resident of the District of Columbia, but suffered economic and reputational harm in Virginia. Cmplt ¶ 2.

Defendants moved to dismiss under Fed.R.Civ.P. 12(b)(6) and to transfer the case from the Eastern District of Virginia to the Southern District of New York under 28 U.S.C. § 1404.¹ In an affidavit attached to Plaintiff's Brief in Opposition to Defendants' Motion to Dismiss, dated November 8, 2004, plaintiff stated that he rented a room in Virginia from a friend. Hatfill Affidavit, ¶ 9. He further averred that he possessed a Virginia driver's license and voter registration—two traditional indicia of domicile. Id. ¶ 10. Plaintiff claimed that he had been driven into Washington D.C. by the ongoing investigation, and averred that he intended to "return" to Virginia as soon as possible. Id.

In a decision from the bench issued November 19, 2004, Judge Brinkema granted defendants' motion to transfer, leaving unresolved all motions to dismiss.

In the text of Plaintiff's Consolidated Response addressing choice-of-law issues, the plaintiff did not argue that plaintiff was a Virginia domiciliary. Rather, he argued that Virginia law should apply because that was the state in which plaintiff suffered the greatest harm to his reputation. Pl. Consolidated Opposition at 43-49. However, plaintiff also hedged his bets by arguing that his citizenship in Washington D.C. (asserted in the complaint) was the "product of mere happenstance" and that "misfortunes" in his life (referring to the ongoing investigations) "have forced Dr. Hatfill to live outside his preferred state," which was Virginia. Id. at 48 n. 29. This assertion was credited by the Court. Indeed, I interpreted the words used by Hatfill and his counsel as indicating that he had been a Virginia resident (because he wanted to "return" there), but was abiding temporarily in Washington D.C. due to the publicity attendant to the investigation. It was with that understanding that I decided the issues presented.

In two opinions in the last year, this Court concluded that the law of Virginia governed the resolution of plaintiff's claims. See Hatfill v. Foster, 372 F.Supp.2d 725 (S.D.N.Y.2005) (hereinafter, Hatfill I) and Hatfill v. Foster, 401 F.Supp.2d 320 (S.D.N.Y.2005) (hereinafter, Hatfill II).

In Hatfill I and Hatfill II, this court reached several conclusions that bear reassessment.

First, while accepting as true on a pre-answer motion to dismiss the assertion in the complaint that Hatfill was a citizen of Washington D.C., I remarked that Hatfill's citizenship allegation appeared to be contrary to reality, since he had most if not all of the traditional indicia of Virginia domicile.

Second, I concluded that Virginia was the primary locus of harm to the plaintiff. I did not accept plaintiffs assertion that the biological warfare industry was concentrated in Virginia, noting that it appeared to be concentrated in the Washington D.C. metropolitan area, including Northern Virginia and Maryland. However, I concluded that a combination of plaintiffs ties to Virginia (as evidenced by such things as his mailing address, voter registration, prior bioterrorism work in Virginia, and fixed intention to "return" to Virginia when he could do so), together with his chosen field's strong presence in Virginia, made Virginia the primary locus of harm. See Hatfill I, 372 F.Supp.2d at 731.

As a result, I concluded that, under Virginia choice-of-law rules, a Virginia court sitting in diversity would apply Virginia law to the claims asserted by plaintiff against CNP and RDA. Id. at 741.

In Hatfill II, in which I applied New York choice-of-law rules to decide what law governed the claims against Donald Foster, plaintiff asserted that he was domiciled either in Virginia or in Washington D.C. at the time the tort was committed (which was when the articles were originally published). Hatfill II, 401 F.Supp.2d at 325. I concluded that New York would apply Virginia law to the claims against Foster as well.

All of this was predicated on my belief that plaintiff had been living in Virginia until he was "forced" to retreat to his girlfriend's home in the District of Columbia, which was intended to be a temporary abode until such time as he could return to his real home.

Defendants apparently had substantial reason to disbelieve at least some of plaintiffs averments. In papers filed before Judge Brinkema, they questioned several of Hatfill's assertions, including his residence in Virginia prior to the publication of the articles. Nonetheless, they did not ask Judge Brinkema to allow them to take jurisdictional discovery on the issue of plaintiffs domicile, so they could back up their questions with evidence. Nor did they ask me for leave to take jurisdictional discovery when the matter (and those motions) were transferred to this court....