New York Federal Court Dismisses Lawsuit Over Faux Gay Alumni Note
March 26, 2008
Charles D. "Chuck" Tobin- Washington
A federal judge in New York dismissed two American University (AU) graduates’ libel claims, arising out of an alumni note that they said falsely portrayed them as gay.
The court in Weil and Royce v. American University held that it lacked personal jurisdiction over the Washington, D.C. university. It did not address the interesting issue of whether an allegedly false imputation of homosexuality is defamatory at all.
The AU alumni filed the lawsuit following a Spring 2007 publication in the “class notes” section of the university’s American magazine. The note announced that Ross Weil, who graduated the university in 2002, “was named chief operating officer of the Gay Rights Brigade, which lobbies for constitutional amendments providing for homosexual privacy and marriage rights.” The note also reported that Weil had “married his life-partner,” 2001 AU grad Brett Royce, in Boston in 2006.
In their lawsuit, the two men alleged that the note was false, that they each were involved in serious relationships with women, and that the publication was defamation per se because it imputed homosexuality. In their opposition to the dismissal motion, the plaintiffs told the court that each lives with a girlfriend “in a committed relationship” and that the publication has caused “a strain on their lives.”
AU moved to dismiss on grounds that the court lacked either general or specific jurisdiction under New York’s jurisdictional statutes, CPLR §301 and §302. To support its argument of a lack of general jurisdiction, which requires that a defendant is generally “doing business” in the state, AU pointed out that it:
- is not licensed to do business there
- has no designated agent for receipt of process in New York
- has no offices or employees in the state
- maintains no bank accounts, telephone listings, or mailing address in the state
- issues its tax-exempt bonds through the District of Columbia Revenue Bond Program and not a New York brokerage
- has not held a board of trustees meeting within New York since 2000
With respect to specific jurisdiction, §302 explicitly excludes defamation torts that cause injury to a person or property within the state from conferring jurisdiction on an out-of-state defendant. Therefore the allegedly wrongful activity must arise through the transaction of business category of §302 in order for the plaintiffs to exercise jurisdiction over the university. Further, case law shows that the circulation of an alleged defamation within New York, in and of itself, is insufficient to be a business transaction. Rather, the allegedly wrongful act must arise out of a party’s sufficient business activity conducted in New York in order to confer jurisdiction under the long-arm statute. AU demonstrated in an affidavit that all activities connected with publishing and distributing the magazine, including the content development, layout, printing and mailing, were performed outside of New York.
In a sharp rebuke to the plaintiffs’ premise for the litigation, AU noted:
While it is beyond the scope of this motion, which solely challenges the invocation of personal jurisdiction, American University expresses its strong disagreement with the offensive notion underlying this entire lawsuit, that is, Plaintiffs’ allegation that false statement about someone’s sexuality exposes him to “hatred, contempt or aversion or to induce an evil or unsavory opinion of him in the minds of a substantial number of the community, even though it may impute no moral turpitude to him,” as is required to sustain a defamation action.
In response to the motion, the plaintiffs submitted Internet pages and affidavits to demonstrate that: some groups of AU alumni advertise gatherings in the university’s name; the university itself has sponsored events in New York; a number of alumni receive American in New York; and the insurance agent handling this claim on AU’s behalf had an office on Long Island. This record, they argued, warranted exercise of jurisdiction under the Second Circuit’s “solicitation plus” theory, which holds that solicitation in a state can be coupled with other significant activity to create jurisdiction.
Responding to AU’s criticism of them for alleging that a false imputation of homosexuality should be considered defamatory, the plaintiffs said in their responsive papers:
The gravamen of the complaint is misrepresentation of plaintiffs and not as defendant suggests a critique of one’s sexual preference.
In her January 2, 2008, decision, Southern District of New York Judge Deborah A. Batts agreed with AU. The court determined that “[t]he mere fact copies of the Magazine were mailed to individuals in New York does not constitute a transaction of business under §302(a)(1) in the absence of additional facts connecting either the publication or the allegedly defamatory statements contained therein to New York.” She also noted that the record shows the magazine is sent to university alumni and donors all around the world; there was no target of New Yorkers.
The court rebuked the plaintiffs’ argument that sponsoring alumni events or information sessions would constitute a transaction of business in New York. The court held that even if it did, there was still no articulable nexus between the alleged defamatory statements in American and those activities. Judge Batts dismissed the lawsuit.
Holland & Knight represents American University in this matter.
For more information, email Charles D. Tobin or Colleen A. Sorrell at charles.tobin@hklaw.com or colleen.sorrell@hklaw.com, respectively, or call toll free, 1.888.688.8500.
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