DePaco v. Cofina Media, SA

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CAESAR DEPACO, Plaintiff, v. COFINA MEDIA, SA, REVISTA SABADO, ALEXANDRE JOSE RIBEIRO MALHADO, EDUARDO DAMASO, JOHN DOES 1 through 10, said names being fictitious and unknown persons, and ABC CORPORATIONS 1 through 10, said names being fictitious and unknown entities, Defendants.

Civil Action No. 21-14409 (FLW)

United States District Court, D. New Jersey

August 24, 2022

NOT FOR PUBLICATON

OPINION

Freda L. Wolfson U.S. Chief District Judge

This matter comes before the Court on a motion to dismiss, filed by Defendants Cofina Media, SA (“Cofina Media”) Revista Sabado (“Sabado”), Alexandre Jose Ribeiro Malhado (“Malhado”), and Eduardo DeMaso (“DeMaso”) (collectively “Defendants”), Plaintiff Caesar DePaco's (“Plaintiff”) tort claims for lack of personal jurisdiction.^[1] For the reasons set forth herein Defendants' motion to dismiss is GRANTED; Plaintiff's claims are dismissed without prejudice.

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

On or about March 11, 2021, Defendants published an article containing allegedly defamatory statements about Plaintiff in the Portuguese magazine, Sabado (the “March Article”). ECF No. 3 (“Am. Compl.”) ¶ 11. Defendant Cofina Media, a foreign corporation with its principal place of business in Portugal, is the parent company of Sabado, a magazine based in Portugal, which publishes content online via its website and in the form of approximately 70,000 paper copies per week. Id. ¶¶ 2, 3, 10. Defendant DeMaso is the director of Cofina Media, and Defendant Malhado is a journalist employed by Sabado and the author of the March Article. Both individuals are Portuguese citizens. Id. ¶¶ 4-5.

Plaintiff, a New Jersey resident, alleges that the March Article contained numerous false statements about him, including, among other things, that he is the “main financier” of the Chega! Party, a far-right Portuguese political party, which Plaintiff explains “is widely considered to hold xenophobic and racist views.” Id. ¶ 13(a). The article also states that Plaintiff is a “sympathizer or supporter” of Chega; that Plaintiff engages in criminal activity and illegal forms of intimidation in order to collect debts; that Plaintiff is a “dangerous individual”; and that he hired an individual named Joao Vidal as a “driver” for the purpose of “settling accounts.” Id. ¶ 13(b)-(g). Plaintiff asserts that these statements, among others that appear in the March Article, are false, misleading, and defamatory. Id. ¶ 14. Plaintiff further asserts that Defendants published these statements knowingly or with reckless disregard for the truth, and that as a direct or proximate result of Defendants' actions, Plaintiff suffered substantial harm, including but not limited to “dismissal from his position as Honorary Consul of Cape Verde, tarnished reputation, economic injury, loss of economic advantage, loss of profits, depiction in a false light and damage to public image.” Id. ¶¶ 26-27.

On August 9, 2021, Plaintiff filed an Amended Complaint asserting claims of defamation and defamation per se (Count I); false light (Count II); tortious interference with prospective economic advantage (Count III); and libel and libel per se (Count IV). See generally Am. Compl. On January 18, 2022, Defendants filed a Motion to Dismiss the Amended Complaint (“Def. Mot.”) with prejudice pursuant to Fed.R.Civ.P. 12(b)(2) for lack of personal jurisdiction. ECF No. 6. Plaintiff filed a Brief in Opposition to Defendants' Motion to Dismiss (“Pl. Opp'n”) on February 22, 2022. ECF No. 10. On February 28, 2022, Defendants filed their reply brief (“Def. Reply”). ECF No. 11.

II. LEGAL STANDARD

On a motion to dismiss for lack of personal jurisdiction under Federal Rule of Civil Procedure 12(b)(2), “the plaintiff bears the burden of demonstrating the facts that establish personal jurisdiction” over the moving defendants. Pinker v. Roche Holdings Ltd., 292 F.3d 361, 368 (3d Cir. 2002). In order “[t]o meet that burden, [plaintiff] must ‘establish[ ] jurisdictional facts through sworn affidavits or other competent evidence.'” Cerciello v. Canale, 563 Fed.Appx. 924, 925 n.1 (3d Cir. 2014) (quoting Miller Yacht Sales, Inc. v. Smith, 384 F.3d 93, 101 n.6 (3d Cir. 2004)). “Once the plaintiff has shown minimum contacts, the burden shifts to the defendant, who must show that the assertion of jurisdiction would be unreasonable.” Ameripay, LLC v. Ameripay Payroll, Ltd., 334 F.Supp.2d 629, 633 (D.N.J. 2004) (citing Mellon Bank (East) PSFS v. Farino, 960 F.2d 1217, 1226 (3d Cir. 1992)).

“[W]hen the court does not hold an evidentiary hearing on the motion to dismiss, the plaintiff need only establish a prima facie case of personal jurisdiction and the plaintiff is entitled to have its allegations taken as true and all factual disputes drawn in its favor.” Miller Yacht Sales, Inc, 384 F.3d at 97; see Toys “R” Us, Inc. v. Step Two, S.A., 318 F.3d 446, 457 (3d Cir. 2003); Murphy v. Eisai, Inc., 503 F.Supp.3d 207, 213 (D.N.J. 2020). Still, the plaintiff “‘bears the burden to prove, by a preponderance of the evidence,' that personal jurisdiction is proper.” Cerciello 563 Fed.Appx. at 925 n.1 (quoting Carteret Sav. Bank, FA v. Shushan, 954 F.2d 141, 146 (3d Cir. 1992)).

III. DISCUSSION

Defendants moved to dismiss the Amended Complaint for lack of personal jurisdiction, arguing that Plaintiff has not demonstrated that Defendants, Portuguese corporations and individuals, have sufficient minimum contacts with the forum state of New Jersey. Def. Mot. 312. In opposition, Plaintiff argues that Defendants committed intentional torts aimed at a New Jersey resident with foreseeable effects in that state such that personal jurisdiction over Defendants is proper. Pl. Opp'n 3-8. In the alternative, Plaintiff requests jurisdictional discovery. Pl. Opp'n 8. I find that this Court lacks personal jurisdiction over Defendants, because Defendants did not expressly aim their allegedly tortious conduct at New Jersey. Further, jurisdictional discovery is not warranted since Plaintiff has not set forth allegations with reasonable particularity indicating the possibility that Defendants have sufficient contacts with the forum state.

A. Personal Jurisdiction

“A federal court sitting in New Jersey has jurisdiction over parties to the extent provided under New Jersey state law.” Miller Yacht Sales, Inc. v. Smith, 384 F.3d 93, 96 (3d Cir. 2004) (citing Fed.R.Civ.P. 4(e)). “[T]he New Jersey long-arm statute permits the exercise of personal jurisdiction to the fullest limits of due process.” IMO Indus., Inc. v. Kiekert AG, 155 F.3d 254, 259 (3d Cir. 1998) (citations omitted). “Personal jurisdiction under the Due Process Clause depends upon the relationship among the defendant, the forum, and the litigation.” Id. (internal quotation marks and citation omitted).

“There are two distinct theories under which personal jurisdiction can arise: general and specific.” Allaham v. Naddaf 635 F. App'x. 32, 37-38 (3d Cir. 2015) (citing Grimes v. Vitalink Commc'ns Corp., 17 F.3d 1553, 1559 (3d Cir. 1994)). General jurisdiction exists when the defendant's affiliations with the forum state are “so continuous and systematic as to render [it] essentially at home in the forum state.” Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011) (internal citations and quotations omitted). Here, Plaintiff concedes that this Court may not exercise general jurisdiction over Defendants. Pl. Opp'n 3.

Specific jurisdiction exists over a non-resident defendant where the plaintiff's claim “aris[es] out of or relate[s] to the defendant's contacts with the forum.” Daimler AG v. Bauman, 571 U.S. 117, 127 (2014) (quoting Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414, n.8 (1984)); see Bristol-Myers Squibb Co. v. Superior Court, 137 S.Ct. 1773, 1781 (2017) (“In order for a court to exercise specific jurisdiction over a claim, there must be an ‘affiliation between the forum and the underlying controversy, principally, [an] activity or an occurrence that takes place in the forum State.'” (quoting Goodyear, 564 U.S. at 919)). Specifically, courts must assess whether the defendant “purposefully avail[ed] itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.” Hanson v. Denkla, 357 U.S. 235, 253 (1958). A “deliberate targeting” of the forum by the defendant is necessary. O'Connor v. Sandy Lane Hotel Co., Ltd., 496 F.3d 312, 317 (3d Cir. 2007). In other words, the jurisdictional nexus must be the result of intentional conduct by the defendant and not merely “random, fortuitous, or attenuated contacts.” Amberson Holdings LLC v. Westside Story Newspaper, 110 F.Supp.2d 332, 334 (D.N.J. 2000) (internal quotation marks omitted).

Where as here, a plaintiff claims to be the target of an out-of-state defendant's allegedly tortious activity, the court's specific jurisdiction inquiry is governed by the “effects test” set forth in Calder v. Jones, 465 U.S. 783 (1984). See Remick v. Manfredy, 238 F.3d 248, 258 (3d Cir. 2001) (“[T]he Supreme Court set forth the ‘effects test' for determining personal jurisdiction over nonresident defendants who allegedly committed an intentional tort outside the forum.”). In Calder, an entertainer residing in California brought a lawsuit for libel against the author and the editor of an article published in the National Enquirer. 465 U.S. at 785-86. Both defendants were residents of Florida. Id. The Supreme Court held that the defendants could “reasonably anticipate being haled into court” in California because of the “effects” of their conduct in California- namely, the “potentially devasting impact” upon the plaintiff “in the State in which she lives and works and in which the National Enquirer...