Howard v . Antilla CV-97-543-M 08/25/98 UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE
Robert Howard, Plaintiff
v. Civil N o . 97-543-M
Susan Antilla, Defendant
O R D E R
Defendant, Susan Antilla, moves to dismiss plaintiff’s
defamation suit for lack of personal jurisdiction, or in the
alternative, to transfer the case to the Federal District Court
for the Southern District of New York. Plaintiff, Robert Howard,
objects arguing that personal jurisdiction and venue are proper
in the District of New Hampshire. For the reasons that follow,
defendant’s motion is denied.
Background
Susan Antilla, a reporter for The New York Times, wrote an
article about Howard that was published on the first page of the Times business section on Thursday, October 2 7 , 1994. The
headline asked, “Is Howard Really Finkelstein? Money Rides On
It.” In the article, Antilla identified Howard as the chairman
of both Presstek, Inc. and Howtek in Hudson, New Hampshire, and
raised questions as to whether Howard was really Howard
Finkelstein, “a convicted felon who went to jail for violations
of securities laws, among other things.” The article described difficulties experienced by the Securities and Exchange
Commission in distinguishing Robert Howard from Howard
Finkelstein in relation to a scheme by short sellers of Presstek
stock to profit from rumors of the Howard-Finkelstein identity
confusion.
A Senior Business Analyst provides information that on two
dates in March 1995 (the first days after October 1994 for which
data are available), distribution of the Times in New Hampshire
was 3,920 copies out of a total distribution of 1,312,314
(approximately .3 percent) and 7,382 copies out of a total
distribution of 1,943,814 (approximately .4 percent). On October
2 8 , 1994, similar articles were published in the Manchester Union
Leader and Nashua Telegraph based on Antilla’s earlier story in
the Times.
Howard was in 1994, and is still, the chairman of the boards
of Presstek and Howtek in Hudson, New Hampshire. He works in the
Hudson offices when he is in the United States, but gives his
residential address as New York City, although the Manchester
Union Leader article on October 2 8 , 1994, reports that he then
lived in France.
At the time the article was written, Antilla lived and
worked in New York City. She researched the article in New York,
and does not recall contacting or receiving information from
anyone in New Hampshire for purposes of writing the article. She
now lives in Connecticut and works in New York, although no
2 longer for the Times. Antilla does not remember ever having been
in New Hampshire.
Discussion
A. Personal Jurisdiction
When a defendant moves to dismiss for lack of personal jurisdiction, plaintiff bears the burden of proving jurisdiction. Sawtelle v . Farrell, 70 F.3d 1381, 1387 (1 st Cir. 1995). An evidentiary hearing is not required when, as here, pertinent jurisdictional facts and credibility are not seriously in dispute. Foster-Miller, Inc. v . Babcock & Wilcox Can., 46 F.3d 138, 145-47 (1 st Cir. 1995). Instead, plaintiff may proceed by making a prima facie showing of jurisdiction based upon
affirmative proof and properly supported proffers of evidentiary facts. See Ticketmaster-New York, Inc. v . Alioto, 26 F.3d 2 0 1 , 203 (1 st Cir. 1994); Boit v . Gar-Tec Prods., Inc., 967 F.2d 6 7 1 , 675 (1 st Cir. 1992).
Because New Hampshire’s long-arm statute permits the exercise of personal jurisdiction to the fullest extent
consistent with federal due process, jurisdictional analysis here necessarily focuses on the limits of constitutional due process. See Sawtelle, 70 F.3d at 1388. “The Due Process Clause of the Fourteenth Amendment permits a state to exercise personal jurisdiction over a non-resident defendant only when the defendant has sufficient minimum contacts with the forum.” Noonan v . Winston, Co., 135 F.3d 8 5 , 90 (1 st Cir. 1998). When,
3 as here, plaintiff asserts a theory of specific personal
jurisdiction, he must satisfy a three-part test by showing: (1)
his claim arises from or relates to defendant’s contacts with the
forum, (2) defendant’s contacts with the forum represent
purposeful availment of the privilege of conducting business
there, and (3) the exercise of jurisdiction would be reasonable
based upon the Gestalt factors. Sawtelle, 70 F.3d at 1389.
It is well established that a defendant who intentionally
disseminates allegedly defamatory statements that injure the
plaintiff in the forum state will be subject to personal
jurisdiction in a defamation action there. See, e.g., Calder v .
Jones, 465 U.S. 783, 788 (1984); Keeton v . Hustler Magazine,
Inc., 465 U.S. 7 7 0 , 774-75 (1984); Hugel v . McNell, 886 F.2d 1 ,
4-5 (1 st Cir. 1989); Gray v . S t . Martin’s Press, Inc., 929 F.
Supp. 4 0 , 46 (D.N.H. (1996); Faigin v . Kelly, 919 F. Supp. 526,
531 (D.N.H. 1996). The complaint and other materials submitted
here establish a prima facie case that Susan Antilla wrote an
allegedly defamatory story about Robert Howard for publication in
which she discussed his businesses in New Hampshire and his
business practices in general. As a reporter for The New York
Times, she well knew her article would be published in the Times
and disseminated in New Hampshire. Howard has substantial
business interests in New Hampshire; he works at Presstek in New
Hampshire; and his reputation was allegedly injured, in New
Hampshire, as a result of Antilla’s story.
4 Antilla argues that these circumstances do not satisfy
federal due process concerns because Howard’s own contacts with
New Hampshire are insufficient to warrant a finding that he was
injured here. In particular, Antilla contends that a plaintiff
in a defamation suit must be a resident of the forum state in
order to show sufficient effects in the forum of allegedly
defamatory statements. The Supreme Court has rejected Antilla’s
theory: [W]e have not to date required a plaintiff to have 'minimum contacts' with the forum State before permitting that State to assert personal jurisdiction over a nonresident defendant. . . . [Although] plaintiff's residence in the forum may, because of defendant's relationship with the plaintiff, enhance defendant's contacts with the forum . . .[,] plaintiff's residence in the forum State is not a separate requirement, and lack of residence will not defeat jurisdiction established on the basis of defendant's contacts.
Keeton, 465 U.S. at 779-80. Howard’s personal relationship with
and business status in New Hampshire, demonstrated in part by the
fact that Antilla’s story was reported in two major New Hampshire
newspapers the next day, is ample reason to find a prima facie
showing of injury to Howard’s reputation in New Hampshire
regardless of Howard’s non-residence. To the extent Antilla argues that her contact with New
Hampshire was not intentional, the record does not support her.
Free access — add to your briefcase to read the full text and ask questions with AI
Howard v . Antilla CV-97-543-M 08/25/98 UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE
Robert Howard, Plaintiff
v. Civil N o . 97-543-M
Susan Antilla, Defendant
O R D E R
Defendant, Susan Antilla, moves to dismiss plaintiff’s
defamation suit for lack of personal jurisdiction, or in the
alternative, to transfer the case to the Federal District Court
for the Southern District of New York. Plaintiff, Robert Howard,
objects arguing that personal jurisdiction and venue are proper
in the District of New Hampshire. For the reasons that follow,
defendant’s motion is denied.
Background
Susan Antilla, a reporter for The New York Times, wrote an
article about Howard that was published on the first page of the Times business section on Thursday, October 2 7 , 1994. The
headline asked, “Is Howard Really Finkelstein? Money Rides On
It.” In the article, Antilla identified Howard as the chairman
of both Presstek, Inc. and Howtek in Hudson, New Hampshire, and
raised questions as to whether Howard was really Howard
Finkelstein, “a convicted felon who went to jail for violations
of securities laws, among other things.” The article described difficulties experienced by the Securities and Exchange
Commission in distinguishing Robert Howard from Howard
Finkelstein in relation to a scheme by short sellers of Presstek
stock to profit from rumors of the Howard-Finkelstein identity
confusion.
A Senior Business Analyst provides information that on two
dates in March 1995 (the first days after October 1994 for which
data are available), distribution of the Times in New Hampshire
was 3,920 copies out of a total distribution of 1,312,314
(approximately .3 percent) and 7,382 copies out of a total
distribution of 1,943,814 (approximately .4 percent). On October
2 8 , 1994, similar articles were published in the Manchester Union
Leader and Nashua Telegraph based on Antilla’s earlier story in
the Times.
Howard was in 1994, and is still, the chairman of the boards
of Presstek and Howtek in Hudson, New Hampshire. He works in the
Hudson offices when he is in the United States, but gives his
residential address as New York City, although the Manchester
Union Leader article on October 2 8 , 1994, reports that he then
lived in France.
At the time the article was written, Antilla lived and
worked in New York City. She researched the article in New York,
and does not recall contacting or receiving information from
anyone in New Hampshire for purposes of writing the article. She
now lives in Connecticut and works in New York, although no
2 longer for the Times. Antilla does not remember ever having been
in New Hampshire.
Discussion
A. Personal Jurisdiction
When a defendant moves to dismiss for lack of personal jurisdiction, plaintiff bears the burden of proving jurisdiction. Sawtelle v . Farrell, 70 F.3d 1381, 1387 (1 st Cir. 1995). An evidentiary hearing is not required when, as here, pertinent jurisdictional facts and credibility are not seriously in dispute. Foster-Miller, Inc. v . Babcock & Wilcox Can., 46 F.3d 138, 145-47 (1 st Cir. 1995). Instead, plaintiff may proceed by making a prima facie showing of jurisdiction based upon
affirmative proof and properly supported proffers of evidentiary facts. See Ticketmaster-New York, Inc. v . Alioto, 26 F.3d 2 0 1 , 203 (1 st Cir. 1994); Boit v . Gar-Tec Prods., Inc., 967 F.2d 6 7 1 , 675 (1 st Cir. 1992).
Because New Hampshire’s long-arm statute permits the exercise of personal jurisdiction to the fullest extent
consistent with federal due process, jurisdictional analysis here necessarily focuses on the limits of constitutional due process. See Sawtelle, 70 F.3d at 1388. “The Due Process Clause of the Fourteenth Amendment permits a state to exercise personal jurisdiction over a non-resident defendant only when the defendant has sufficient minimum contacts with the forum.” Noonan v . Winston, Co., 135 F.3d 8 5 , 90 (1 st Cir. 1998). When,
3 as here, plaintiff asserts a theory of specific personal
jurisdiction, he must satisfy a three-part test by showing: (1)
his claim arises from or relates to defendant’s contacts with the
forum, (2) defendant’s contacts with the forum represent
purposeful availment of the privilege of conducting business
there, and (3) the exercise of jurisdiction would be reasonable
based upon the Gestalt factors. Sawtelle, 70 F.3d at 1389.
It is well established that a defendant who intentionally
disseminates allegedly defamatory statements that injure the
plaintiff in the forum state will be subject to personal
jurisdiction in a defamation action there. See, e.g., Calder v .
Jones, 465 U.S. 783, 788 (1984); Keeton v . Hustler Magazine,
Inc., 465 U.S. 7 7 0 , 774-75 (1984); Hugel v . McNell, 886 F.2d 1 ,
4-5 (1 st Cir. 1989); Gray v . S t . Martin’s Press, Inc., 929 F.
Supp. 4 0 , 46 (D.N.H. (1996); Faigin v . Kelly, 919 F. Supp. 526,
531 (D.N.H. 1996). The complaint and other materials submitted
here establish a prima facie case that Susan Antilla wrote an
allegedly defamatory story about Robert Howard for publication in
which she discussed his businesses in New Hampshire and his
business practices in general. As a reporter for The New York
Times, she well knew her article would be published in the Times
and disseminated in New Hampshire. Howard has substantial
business interests in New Hampshire; he works at Presstek in New
Hampshire; and his reputation was allegedly injured, in New
Hampshire, as a result of Antilla’s story.
4 Antilla argues that these circumstances do not satisfy
federal due process concerns because Howard’s own contacts with
New Hampshire are insufficient to warrant a finding that he was
injured here. In particular, Antilla contends that a plaintiff
in a defamation suit must be a resident of the forum state in
order to show sufficient effects in the forum of allegedly
defamatory statements. The Supreme Court has rejected Antilla’s
theory: [W]e have not to date required a plaintiff to have 'minimum contacts' with the forum State before permitting that State to assert personal jurisdiction over a nonresident defendant. . . . [Although] plaintiff's residence in the forum may, because of defendant's relationship with the plaintiff, enhance defendant's contacts with the forum . . .[,] plaintiff's residence in the forum State is not a separate requirement, and lack of residence will not defeat jurisdiction established on the basis of defendant's contacts.
Keeton, 465 U.S. at 779-80. Howard’s personal relationship with
and business status in New Hampshire, demonstrated in part by the
fact that Antilla’s story was reported in two major New Hampshire
newspapers the next day, is ample reason to find a prima facie
showing of injury to Howard’s reputation in New Hampshire
regardless of Howard’s non-residence. To the extent Antilla argues that her contact with New
Hampshire was not intentional, the record does not support her.
Antilla, as an employee and reporter for the Times, cannot (and
does not) say that she did not intend or know that her article
would be distributed in New Hampshire. C f . Gray, 929 F. Supp. at
47 (nationwide distribution of book alone insufficient to show
5 author’s intent to distribute in New Hampshire). Nor does she
suggest that her story was materially altered by others after it
left her control. In addition, she does not occupy the removed
position of someone who is contacted by a reporter and provides
information for a story that is then published and circulated in
other states. See, e.g., Chaiken v . VV Publ’g Corp., 119 F.3d
1018, 1029 (2d Cir. 1997), cert. denied, 118 S . C t . 1169 (1998);
Ticketmaster, 26 F.3d at 208. Thus, the sale of thousands of
copies of The New York Times carrying Antilla’s article in New
Hampshire was not “random, isolated, or fortuitous.” Keeton, 465
U.S. at 774; c f . Noonan, 135 F.3d at 91 (small distribution
combined with publisher’s ignorance of its destination may defeat
jurisdiction).
Finally, the “gestalt factors” do not suggest that
exercising personal jurisdiction over Antilla in New Hampshire
would be unreasonable or unfair in the circumstances of this
case. While litigation in New Hampshire may burden Antilla to
some extent, any inconvenience she might experience would not be
of constitutional significance. See Sawtelle, 70 F.3d at 1395.
New Hampshire has a significant interest in redressing injuries
caused by defamation in the state because “[f]alse statements of
fact harm both the subject of the falsehood and the readers of
the statement.” Keeton, 465 U.S. at 776. Plaintiff’s choice of
forum is generally afforded deference, and nothing in the record
suggests that the judicial system’s interest in the effective
resolution of this controversy will not be adequately served in
6 this district. First Amendment concerns that might arise as
policy considerations in defamation actions have been given
little weight in personal jurisdictional analysis. See
Ticketmaster, 26 F.3d at 211. Accordingly, Howard has made a
sufficient prima facie showing of the elements of specific
personal jurisdiction to permit this court to exercise
jurisdiction over Susan Antilla in this case.
B. Venue and Convenient Forum
In the alternative to dismissal for lack of personal
jurisdiction, Antilla moved for a change of venue contending that
venue is neither proper nor convenient in this district.
1. Proper Venue
Plaintiff bears the burden of demonstrating proper venue in
the district in which he brings suit. Ferrofluidics Corp. v .
Advanced Vacuum Components, Inc., 789 F. Supp. 1201, 1206 (D.N.H.
1992). Howard asserts venue in New Hampshire pursuant to 28
U.S.C.A. § 1391(a)(2), as “a judicial district in which a
substantial part of the events or omissions giving rise to the claim occurred.” In a defamation action, venue is generally
proper in the district where defendant published defamatory
material. See Wachtel v . Storm, 796 F. Supp. 1 1 4 , 116 (S.D.N.Y.
1992); see also Hickey v . S t . Martin’s Press, 978 F. Supp. 2 3 0 ,
241 (D. Md. 1997) (venue not shown in New Hampshire where
7 plaintiff’s claim did not arise from defendant’s participation in
republication in New Hampshire).
Here, for purposes of establishing venue, Howard has shown
that Antilla’s article was published in New Hampshire, with her
knowledge and participation, and that his reputation, in New
Hampshire and elsewhere, was harmed as a result. His claim need
not arise solely in New Hampshire to meet the requirements of
venue. The court is satisfied that venue is proper in New
Hampshire.
2. Convenient Forum
A defendant seeking a transfer to a more convenient forum
bears a heavy burden of showing that a transfer is warranted
pursuant to 28 U.S.C.A. § 1404(a). See Buckley v . McGraw-Hill,
Inc., 762 F. Supp. 4 3 0 , 439 (D.N.H. 1991). Section 1404(a)
provides: "For the convenience of the parties and witnesses, in
the interest of justice, a district court may transfer any civil
action to any other district or division where it might have been
brought." Plaintiff’s choice of forum carries considerable
weight and should rarely be disturbed. Gulf Oil Corp. v . Gilbert, 330 U.S. 5 0 1 , 508 (1947).
Antilla asks that the case be transferred to the Southern
District of New York to accommodate her, witnesses in the New
York area, and the production of “documentary evidence.” While
it might well be more convenient for defendant and some witnesses
if the case were litigated in New York, their slight
8 inconvenience does not counter the weight of the plaintiff’s
choice to litigate here. In addition, the court is aware of the
relatively more burdensome docket in the Southern District of New
York; a transfer would be prudent only if defendant had
demonstrated a more extreme case of inconvenience.
On balance and in the exercise of the court’s discretion,
the interest of justice is best served by not transferring the
case to the Southern District of New York.
Conclusion
For the foregoing reasons, defendant’s motion to dismiss or
in the alternative to transfer (document n o . 5 ) is denied.
SO ORDERED.
Steven J. McAuliffe United States District Judge
August 2 5 , 1998 cc: Charles G. Douglas, I I I , Esq. Peter W . Mosseau, Esq.