Tuesday, July 12, 2005
Fifth Circuit Upholds Lower Court Dismissal of Lawsuit Brought by Former Swiss Ambassador, Wife Based on Lack of Jurisdiction
The U.S. FIfth Circuit has upheld a lower court ruling dismissing a lawsuit involving defamation, IIED and other claims against Hubert Burda Media, Bertelsmann AG, and Gruner & Jahr on the basis of lack of personal jurisdiction, finding that "none of [the] appellees has sufficient contacts in Texas to satisfy due process limitations on general or specific jurisdiction in the forum state." Thomas Borer, former Swiss Ambassador to Germany, and his wife, a former Miss Texas, brought the action based on stories (later admitted to be false) that Borer had had an affair with a beautician, and that the plaintiffs alleged cast Mrs. Borer in an unflattering light as "accustomed to playing the role of wife to an unfaithful husband...". As media scrutiny continued, "the couple suffered negative ramifications. In April 2002, Borer was recalled to Switzerland and was stripped of his ambassadorship. Around the same time, Fielding [Mrs. Borer] suffered a miscarriage....The couple alleges that they suffered injury to their reputation amongst their family, friends and acquaintances in Texas."
The district court examined the contacts that the magazine which published the stories had in Texas and found them insufficient to assert jurisdiction. "Knowledge that sufficient harm would be suffered in Texas is conspicuously lacking. In addition to reporting German activities of German residents, the Bunte articles were directed at a German audience, as demonstrated by the fact that all of the articles were published in the German language, and 97% of the magazine's issues were sold in Germany. Moreover, the plaintiff's mere residence in the forum state is not sufficient to show that the defendant had knowledge that effect would be felt there...Here, Fielding and Borer have not even proven that they did, in fact, ever reside in Texas during any of the time relevant to this suit." Plaintiffs also failed to establish that the court had any personal jurisdiction over the publishers. Thus, "since the brunt of the harm of the alleged libel was not suffered in Texas and the publishers did not meaningfully direct their activities toward Texas" the 5th Circuit upheld the district court's grant of dismissal in the case. Read the opinion here.