Miracle v. N.Y.P. Holdings, Inc.

• Decision Date: 14 March 2000
• Docket Number: No. CIV.A.99-00535HG-FIY.,CIV.A.99-00535HG-FIY.
• Citation: 87 F.Supp.2d 1060
• Parties: Nancy MIRACLE, aka Nancy Greene, aka Nancy Green, Plaintiff, v. N.Y.P. HOLDINGS, INC., dba The New York Post; Cindy Adams, Defendants.
• Court: U.S. District Court — District of Hawaii

87 F.Supp.2d 1060

Nancy MIRACLE, aka Nancy Greene, aka Nancy Green, Plaintiff, v. N.Y.P. HOLDINGS, INC., dba The New York Post; Cindy Adams, Defendants.

No. CIV.A.99-00535HG-FIY.

United States District Court, D. Hawaii.

March 14, 2000.

Joseph M. Lovell, Honolulu, HI, for Plaintiff.

Peter W. Olson, Cades Schutte Fleming & Wright, Honolulu, HI, Trina R. Hunn Slade R. Metcalf, Squadron Ellenoff Plesent & Sheinfeld, New York, NY, for Defendants.

ORDER DENYING DEFENDANT N.Y.P. HOLDINGS, INC. AND CINDY ADAMS' MOTION TO DISMISS THE COMPLAINT and DENYING DEFENDANT N.Y.P. HOLDINGS, INC. AND CINDY ADAMS' MOTION TO TRANSFER VENUE

GILLMOR, District Judge.

Plaintiff Nancy Miracle, the alleged daughter of Marilyn Monroe, brings this action against Defendants N.Y.P. Holdings, Inc. and Cindy Adams, to recover damages for the state law torts of libel per se, defamation, infliction of emotional distress, interference with contractual and business relations, and unjust enrichment. Plaintiff filed her Complaint in response to an article written by Cindy Adams, and published by the New York Post, entitled, "A Social Security mystery over Marilyn's `daughters.'" Plaintiff alleges that Adams defamed Plaintiff in the article, and that the article has caused Plaintiff to suffer emotional and financial harm. Defendants have moved to dismiss the Complaint based on lack of personal jurisdiction. In the alternative, Defendants have moved to dismiss on the ground that venue in the District of Hawaii is improper.

PROCEDURAL HISTORY

On May 18, 1999, Plaintiff filed a Complaint against Defendants in the Circuit Court of the First Circuit, State of Hawaii, alleging that Defendants committed the torts of libel per se, defamation, infliction of emotional distress, and interference with contractual and business relations, and unjust enrichment. On July 26, 1999, Defendants removed the case to this Court on grounds of complete diversity of citizenship.

On August 23, 1999, Defendants filed a Motion to Dismiss the Complaint, or, in the Alternative, to Transfer Venue. Plaintiff filed an Opposition to Defendants' Motion on October 14, 1999. Defendants filed a Response on October 28, 1999.

The motion came on for hearing before the Court on November 8, 1999. After careful consideration of the record, pleadings, the parties' arguments, and the governing law, the Court DENIES Defendants' motion, for the reasons set forth herein.

STATEMENT OF FACTS

Plaintiff's Complaint in this case stems from a column written by Defendant Cindy Adams and published in the New York Post on November 10, 1997. Adams, in her column titled, "A Social Security mystery over Marilyn's `daughters'," discusses whether Plaintiff has been collecting the social security benefits of Marilyn Monroe. The column begins by setting forth the background of Plaintiff's claim that she is the daughter of Marilyn Monroe. (Exh. 1 to Plaintiff's Opp.) The article states that Plaintiff "lived in Hawaii." The column then goes on to discuss the social security benefits issue. Specifically, the column discusses the fact that an unidentified woman from Florida placed a telephone call to the Social Security Administration, claimed to be Monroe's daughter, and inquired about receiving Monroe's social security benefits. According to the column, the woman answering the telephone at the Social Security Administration informed the caller that Nancy Greene had been receiving Monroe's social security benefits. (Id.) The article concludes by suggesting that Plaintiff, "some blonde from Hawaii," collected Marilyn Monroe's social security benefits.

Plaintiff, in her Complaint, alleges that in the past she "has claimed to be the daughter of Marilyn Monroe." (Complaint ¶ 9.) Plaintiff also alleges that she is the "Nancy Greene" referred to in the column. Plaintiff takes issue with a number of statements made by Adams in the column about Nancy Greene. In particular, Plaintiff alleges that she was defamed by the statements that identify her as "an unmanicured looking blonde who lived in Hawaii," a "disheveled aging blonde," and "nuts." (Complaint ¶ 15.) Plaintiff also alleges that she was defamed by the following statement made in the column:

So, we're saying here that some blonde from Hawaii who claims she's the love-child of Monroe's youth — whether yes or no — whether so or not — somehow proved it sufficiently to have collected Marilyn's Social Security benefits for years?

Hellooooo-oo is anyone out there? Any wonder Social Security is in such a mess?

(Complaint ¶ 18). According to Plaintiff, this section of the column wrongfully imputes to her the crime of social security fraud.

The New York Post newspaper (the "Post"), which published the article, is a daily and Sunday newspaper that is distributed primarily in the New York City metropolitan area. (Affidavit of Ernie Rota, August 19, 1999, ¶ 2.) On the date the column was published, two copies of the Post were sold by subscription in the state of Hawaii. There were no copies of the Post sold on newsstands in Hawaii. (Id.) At the time the column at issue was published, the Post's total daily sales, including newsstand sales and subscriptions, amounted to 431,639. (Id.) Defendants allege that the Post neither solicits subscriptions in the state of Hawaii nor derives substantial income from sales in Hawaii. (Id. ¶ 3.)

Adams, the author of the column, resides in New York. Adams states in her Affidavit that, in writing the story, she did not contact any persons in Hawaii or go to Hawaii for any purpose. (Affidavit of Cindy Adams, August 19, 1999, ¶¶ 3,4.) Adams also alleges in her Affidavit that all editors of the column are located in New York. (Id. ¶ 9.)

Plaintiff, on the other hand, alleges that she has been a resident of Hawaii for almost 13 years. Plaintiff further alleges that she has suffered public ridicule and contempt in the state of Hawaii, and has lost out on lucrative business opportunities in Hawaii, due to the statements made about her in the column. (Complaint ¶¶ 20-22.) As a result of the alleged defamation, Plaintiff filed the instant action against Defendants. In her Complaint, Plaintiff alleges the following state law causes of action: (1) libel per se, (2) defamation, (3) tortious infliction of emotional distress, (4) tortious interference with contractual and business relations, (5) unjust enrichment, and (6) punitive damages.

STANDARD OF REVIEW

A motion to dismiss will be granted where there is a lack of jurisdiction over the person. Fed.R.Civ.P. 12(b)(2). Once the defendant moves to dismiss and presents evidence disputing personal jurisdiction, the burden shifts to the plaintiff to make a prima facie showing via admissible evidence that personal jurisdiction exists. See Ziegler v. Indian River County, 64 F.3d 470, 473 (9th Cir.1995); Data Disc., Inc. v. Systems Technology Assoc., Inc., 557 F.2d 1280, 1284-1285 (9th Cir.1977);¹ see also Alvarez v. Aircraft Modular Products, Inc., 949 F.Supp. 1470, 1472-1473 (D.Haw.1996) (plaintiff is "obligated to come forward with facts, by affidavit or otherwise, supporting personal jurisdiction").

ANALYSIS

I. Personal Jurisdiction

Defendants argue that the Court lacks personal jurisdiction over them because Defendants have insufficient contacts with the state of Hawaii in this action. Specifically Defendants contend that their only connection to Hawaii is the fact that two copies of the Post were sold in Hawaii and the fact that the column mentions that Plaintiff "lived" in Hawaii and is "from" Hawaii. The Court is not persuaded by Defendants' argument. The Court determines it has personal jurisdiction over Defendants in this action because Defendants have sufficient contacts with the state of Hawaii.

Although the defendant is the moving party on a Rule 12(b)(2) motion to dismiss, the plaintiff is the party who invokes the court's jurisdiction and thus bears the burden of proof on the necessary jurisdictional facts. See Flynt Distributing Co., Inc. v. Harvey, 734 F.2d 1389, 1392 (9th Cir.1984).

A federal court's exercise of in personam jurisdiction over a nonresident defendant turns on two considerations: 1) whether an applicable state rule or statute potentially confers jurisdiction over the defendant; and 2) whether assertion of such jurisdiction accords with constitutional principles of due process. See Amba Marketing Systems, Inc. v. Jobar International, Inc., 551 F.2d 784, 787 (9th Cir.1977). Hawaii's long-arm statute, Hawaii Revised Statutes § 634-35, "expand[s] the jurisdiction of the State's courts to the extent permitted by the due process clause of the Fourteenth Amendment." Cowan v. First Insurance Co. of Hawaii, Ltd., 61 Haw. 644, 649, 608 P.2d 394 (Haw.1980) (footnote omitted). Hawaii's statutory limitations upon jurisdiction are thus coextensive with the outer limits of due process under the state and federal constitutions. Id. The issue the Court must address, therefore, is whether the requirements of due process are satisfied by the Court's exercise of personal jurisdiction over Defendants. See Panavision International, L.P. v. Toeppen, 141 F.3d 1316, 1320, (9th Cir.1998).

Personal jurisdiction may be founded on either general jurisdiction or specific jurisdiction. If the defendant is domiciled in the forum state or if his activities there are "substantial, continuous and systematic," a federal court can exercise "general" personal jurisdiction over the defendant under the state's long-arm statute. Id. at 1320 (citing Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414-416, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984)). Plaintiff does not contend that Defendants have sufficient contacts with Hawaii to subject them to general jurisdiction in this state.

If a nonresident defendant's contacts with the forum state do not qualify as "continuous and systematic," a federal court may still exercise "specific" jurisdiction over claims related to his activities...