Ehrenfeld v. Mahfouz, No. 06-2228 (2d Cir. 2008)
Annotate this CaseThis opinion or order relates to an opinion or order originally issued on June 8, 2007.
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06-2228-cv Ehrenfeld v. Mahfouz UNITED STATES COURT OF APPEALS 1 2 FOR THE SECOND CIRCUIT 3 4 ------------- 5 6 August Term 2006 7 8 9 10 Argued: November 8, 2006 Decided: March 3, 2008 11 (Question certified to New York Court of Appeals: June 8, 2007. Question answered by New York Court of Appeals: December 20, 2007.) 12 13 14 15 16 Docket No. 06-2228-cv 17 18 19 --------------------------------------------------X 20 21 RACHEL EHRENFELD, 22 Plaintiff-Appellant, 23 24 - against - 25 26 27 KHALID SALIM BIN MAHFOUZ, 28 Defendant-Appellee. 29 30 31 --------------------------------------------------X 32 Before: 33 FEINBERG, LEVAL, and CABRANES, Circuit Judges. 34 Plaintiff-appellant 35 Rachel Ehrenfeld appeals from a 36 judgment of the United States District Court for the Southern 37 District of New York (Richard C. Casey, J.) granting the motion 38 to dismiss of defendant-appellee Khalid Salim Bin Mahfouz on 39 the 40 C.P.L.R. 1 basis of §§ the lack 302(a)(1) of and personal jurisdiction 302(a)(3), denying under N.Y. Ehrenfeld s 1 request for jurisdictional discovery, and dismissing the case 2 for lack of personal jurisdiction. 3 district court s decision as to N.Y. C.P.L.R. § 302(a)(3) and 4 jurisdictional discovery, and certified to the New York Court 5 of 6 confers 7 Mahfouz, 489 F.3d 542 (2d Cir. 2007). The Court of Appeals 8 having answered that question in the negative, the decision of 9 the district court is now affirmed in its entirety. Appeals the personal question whether jurisdiction This Court affirmed the N.Y. over C.P.L.R. defendant. § 302(a)(1) Ehrenfeld v. 10 11 12 13 DANIEL J. KORNSTEIN, MARK PLATT, CECELIA CHANG and MIKAELA A. McDERMOTT, Kornstein Veisz Wexler & Pollard, LLP, New York, NY, for Plaintiff-Appellant. 14 15 16 17 18 STEPHEN J. BROGAN and TIMOTHY J. FINN, Jones Day, Washington, DC, and MICHAEL NUSSBAUM, Bonner, Kiernan, Trebach & Crociata, Washington, DC, for DefendantAppellee. 19 20 21 22 23 24 25 26 27 28 29 30 KURT A. WIMMER , JASON P. CRISS , Covington & Burling LLP, New York, NY, for Amici Curiae Amazon.com, American Society of Newspaper Editors, Association of American Publishers, Inc., Authors Guild, Inc., Electronic Frontier Foundation, European Publishers Council, Forbes Inc., John Fairfax Holdings, Ltd., Media/Professional Insurance, Media Institute, Newspaper Association of America, Online News Association, Radio-Television News Directors Association, Reporters Committee for Freedom of the Press, and World Press Freedom Committee, in support of PlaintiffAppellant. 31 32 33 34 35 36 FEINBERG, Circuit Judge: 37 Plaintiff-appellant 38 Rachel Ehrenfeld appeals from a judgment of the United States District Court for the Southern -2- 1 District of New York (Richard C. Casey, J.) granting defendant- 2 appellee 3 plaintiff s 4 jurisdiction under N.Y. C.P.L.R. §§ 302(a)(1) and 302(a)(3) and 5 denying plaintiff s request for jurisdictional discovery. Khalid Salim action Mahfouz s him against Financed and How to Stop It, published in 2003, in which she 9 alleged that Mahfouz financially supported terrorism. In 2004, 10 Mahfouz sued Ehrenfeld in London and obtained a default libel 11 judgment against her enjoining the further publication of the 12 statements 13 Ehrenfeld sought a declaratory judgment under the Declaratory 14 Judgment Act, 28 U.S.C. § 2201, against Mahfouz in the District 15 Court for the Southern District of New York, that (1) Mahfouz 16 could not prevail on a libel claim against her under federal or 17 New 18 enforceable in the United States, and New York in particular, 19 on 20 court, 21 Mahfouz s motion to dismiss plaintiff s declaratory judgment 22 action for lack of personal jurisdiction over him. Mahfouz and constitutional sitting of in (2) and Funding in England the English public diversity policy procedural personal 8 law; author unusual of Ehrenfeld about an dismiss 7 the had lack for to This is has motion 6 York case Bin Evil: and -3- How Terrorism Wales. judgment Is Thereafter, would grounds. jurisdiction, background. The granted not be district defendant 1 Subsequently, plaintiff appealed to this Court. In June 2 2007, we affirmed the district court s judgment as to N.Y. 3 C.P.L.R. 4 discovery. See Ehrenfeld v. Mahfouz, 489 F.3d 542, 545, 550-51 5 (2d Cir. 2007). We also found that the portion of the district 6 court s 7 important, unsettled questions of New York law and we certified 8 the 9 whether § 302(a)(3) opinion following New and regarding question York s to the N.Y. the long-arm denial C.P.L.R. New of § York jurisdictional 302(a)(1) Court statute of confers raised Appeals: personal 10 jurisdiction over a person (1) who sued a New York resident in 11 a non-U.S. jurisdiction; and (2) whose contacts with New York 12 stemmed entirely from the foreign lawsuit and whose success in 13 the foreign suit resulted in acts that must be performed by the 14 subject of the suit in New York. Id. at 545. 15 The New York Court of Appeals accepted certification and 16 in a thorough opinion, filed in December 2007, answered the 17 certified question in the negative. See Ehrenfeld v. Mahfouz, - 18 - N.E.2d --, 2007 WL 4438940, at *6 (N.Y. Dec. 20, 2007). The 19 Court 20 effect 21 i.e., the use of libel judgments procured in jurisdictions 22 with claimant-friendly libel laws and little or no connection 23 to the author or purported libelous material to chill free of of Appeals what acknowledged plaintiff the Ehrenfeld -4- potentially called pernicious libel tourism, 1 speech in the United States. Id. at *3. However, the court 2 emphasized 3 statute 4 plaintiff s 5 business in New York by scheming to chill her speech there. 6 Id. at *3. Writing for a unanimous court, Judge Ciparick found 7 that 8 communications merely intended to further his assertion of 9 rights under the laws of England, and thus, none of these 10 contacts invoked the privileges or protections of [New York] 11 State s laws. Id. at *4. as that [its] written. argument defendant s task Id. that contacts is at to *3 interpret n.5. defendant with New The Mahfouz York the New court had were York rejected transacted limited to 12 The Court of Appeals also declined to assert jurisdiction 13 over defendant on the basis of his refusal to waive the right 14 to enforce the English judgment in New York. The court pointed 15 out that the future implications of potential enforcement of 16 that judgment would not arise from [defendant s] invocation of 17 the privileges of New York laws, but from an English remedy 18 and plaintiff s unilateral activities in New York. Id. at *5 19 (citing Ferrante Equip. Co. v. Lasker-Goldman Corp., 258 N.E.2d 20 202, 205 (N.Y. 1970)). In addition, the court stressed that New 21 York s long-arm statute does not confer jurisdiction in every 22 case where it is constitutionally permissible. Id. at *6. The 23 court, therefore, concluded that on the facts of this case -5- 1 personal jurisdiction cannot be obtained over defendant under 2 N.Y. C.P.L.R. § 302(a)(1). 3 Thereafter, we afforded the parties and the amici curiae 4 an opportunity to comment in letter briefs on the decision of 5 the New York Court of Appeals. In response, defendant simply 6 requested 7 accordance with the decision of the New York Court of Appeals. 8 By contrast, plaintiff urged us to assert personal jurisdiction 9 over defendant on the ground that the construction of N.Y. 10 C.P.L.R. § 302(a)(1) by the Court of Appeals violates the First 11 Amendment. According to plaintiff, this constitutional issue is 12 not resolved by the Court of Appeals answer to the certified 13 question 14 Alternatively, plaintiff invites us to postpone issuing a final 15 decision 16 legislative session, in deference to the state legislature s 17 current 18 jurisdiction over Mahfouz. 19 that and until we affirm deserves the district further end consideration the of of analysis the a court s by current bill that judgment this New would in Court. York state provide for For a number of reasons, plaintiff s arguments are legally 20 unavailing. First, 21 district 22 apparently not raised a federal constitutional challenge to a court in plaintiff December filed 2004 -6- and her up complaint to this in the point has 1 reading 2 jurisdiction over defendant. To 3 of N.Y. be sure, C.P.L.R. § plaintiff 302(a)(1) sought a that would declaration deny from the 4 district court that enforcement of the English judgment in the 5 United States would contravene the First Amendment. Ehrenfeld 6 v. Mahfouz, No. 04 civ. 9641, 2006 WL 1096816, at *1 (S.D.N.Y. 7 Apr. 26, 2006). She also argued before the district court and 8 this Court that defendant Mahfouz s contacts with New York were 9 part of a scheme to abridge her free speech rights in New York. 10 Plaintiff made 11 implications 12 Amendment 13 certification of the jurisdictional issue to the New York Court 14 of 15 certification request based on the public policy significance 16 of the matter. Ehrenfeld, 489 F.3d at 549 & n.4. of and Appeals. We the argument that the case, arising the New heeded York that the freedom under of the both Constitution, suggestion and speech First compelled granted her 17 Plaintiff, however, has not made the argument that the 18 First Amendment would compel us to assert jurisdiction over 19 defendant in any case, regardless of the reading by the Court 20 of Appeals of the state long-arm statute. Plaintiff had the 21 opportunity to make the argument to Judge Casey in the district 22 court and in this Court. Her failure to mount an attack on 23 First Amendment grounds against denial of personal jurisdiction -7- 1 over defendant Mahfouz at any prior stage of this prolonged 2 litigation in the federal courts amounts to a waiver of the 3 claim. See United States v. Braunig, 553 F.2d 777, 780 (2d Cir. 4 1977) ( The law in this Circuit is clear that where a party has 5 shifted his position on appeal and advances arguments available 6 but not pressed below, and where that party has had ample 7 opportunity to make the point in the trial court in a timely 8 manner, waiver will bar raising the issue on appeal. (internal 9 citations omitted)). 10 Finally, we must decline plaintiff s invitation to refrain 11 from disposing of the remaining issue in this appeal until the 12 New York state legislature has had an opportunity to act upon a 13 proposed amendment to New York s long-arm statute that could 14 confer jurisdiction over defendant. Whether the bill will be 15 passed, and what the provisions of the new section of the long- 16 arm statute may be if the bill is passed, are entirely in the 17 field of uncertain speculation. Moore v. Comm r of Internal 18 Revenue, 19 decision because plaintiff may benefit from a possible revision 20 of the New York jurisdictional statute would indeed constitute 21 an abnegation of the judicial process. FDIC v. Alker, 169 F.2d 22 336, 337 (3d Cir. 1948). If the new bill is signed into law, 23 plaintiff may file a new action in the district court or move 170 F.2d 191, 192 (4th -8- Cir. 1948). To delay our 1 to reopen the judgment and amend the complaint, and the court 2 will 3 instance, the question of personal jurisdiction over defendant. 4 Conclusion 5 have the chance to properly address, in the first Plaintiff asks us to disregard the decision of New York s 6 highest 7 requires us to interpret and apply New York law. This we cannot 8 do. [T]he interpretation placed by the highest court of the 9 state upon it statutes is conclusive here. Smiley v. Kansas, 10 11 court on a controlling 196 U.S. 447, 455 (1905). Judgment AFFIRMED. 12 -9- jurisdictional issue that - 10 -
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