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YOUSSEF AKBAR v. NEW YORK MAGAZINE CO.

February 12, 1980

Youssef AKBAR, Nassar Ghoushbeigui and Ahmad Moshavegh-Zade
v.
NEW YORK MAGAZINE CO., Joe Armstrong and Gregory F. Rose.



The opinion of the court was delivered by: PRATT

This matter is before us on a motion to dismiss by defendant New York Magazine for lack of personal jurisdiction and improper venue or alternatively, to transfer this action to the Southern District of New York. For the reasons discussed below, we find this court has personal jurisdiction over defendant and that venue is proper. We therefore deny defendant's motion to dismiss or to transfer this action.

FACTS

 Plaintiffs Youssef Akbar, Nassar Ghoushbeigui and Ahmad Moshavegh-Zade, all former employees of the Iranian Ministry of Foreign Affairs assigned to the Iranian Embassy in the District of Columbia, have brought this action for libel against defendants New York Magazine Company, Inc., its editor and publisher, Joseph Armstrong and a freelance writer, Gregory Rose. The action stems from an article entitled The Shah's Secret Police are Here, *fn1" written by defendant Rose and published in the September 18, 1978 issue of defendant New York Magazine. The article names plaintiffs as members of the SAVAK, the Persian acronym for the National Information and Security Organization, which the article describes as the Shah of Iran's secret police.

 More specifically, plaintiff Akbar alleges that he served at the Iranian Embassy in the District of Columbia (hereinafter "Iranian Embassy") continuously from March 15, 1973 until March 21, 1979, when his assignment as a consul in charge of the Embassy's economic section was terminated. The article states that plaintiff Akbar was a SAVAK agent in the financial section of the SAVAK station at the Iranian Embassy and that the financial section was responsible for handling "payments to SAVAK agents and, sources allege, U.S. politicians, including some members of Congress." Article at 48. Plaintiff Ghoushbeigui alleges that he served at the Iranian Embassy from March 15, 1973 until March 21, 1979 *fn2" as a consul in the Persian Section of the Secretariat Office of the Embassy. The article states that plaintiff Ghoushbeigui was a member of the SAVAK station at the Iranian Embassy and that he "headed" the political-liaison section, whose "main targets" are "Congress and the White House." Id. Plaintiff Moshavegh-Zade alleges he was assigned to the Iranian Embassy as a consul in charge of the Embassy's Political Section. The article states that plaintiff Moshavegh-Zade was a SAVAK agent and a member of the SAVAK's Security Committee in the United States, "a body that sets priorities and supervises operations throughout the country." Id. Plaintiff Moshavegh-Zade alleges that upon his return to Iran in April, 1979 he was arrested, detained, and questioned concerning his alleged SAVAK activities. *fn3"

 Plaintiffs deny they are SAVAK agents and, as a result of publication of the New York article, plaintiffs allege damage to their good name and reputation in the community, in their ability to earn a livelihood, in their relationships with their family and friends, and in being prevented from returning to Iran.

 All three plaintiffs are citizens of Iran. Plaintiff Akbar claims temporary residency in Maryland, plaintiff Ghoushbeigui claims temporary residency in Virginia, and plaintiff Moshavegh-Zade now resides in Iran. Defendant New York Magazine Company, Inc. is a New York corporation with its principal place of business in New York. Defendants Armstrong and Rose are New York residents. *fn4"

 An affidavit filed by defendant Armstrong states that New York is a weekly magazine edited and prepared for publication in New York City and printed in Buffalo, New York. Copies are mailed to subscribers from Buffalo and copies distributed to newsstands are shipped from Buffalo by truck. The Armstrong affidavit also states that New York Magazine has no office or property in the District of Columbia and is not licensed to do business in the District of Columbia.

 This action is now before the court on a motion by defendant New York Magazine to dismiss for lack of personal jurisdiction pursuant to Rule 12(b)(2) and for improper venue pursuant to Rule 12(b)(3), Fed.R.Civ.P., or in the alternative to transfer this action because of improper venue to the Southern District of New York pursuant to 28 U.S.C. § 1406(a).

 ANALYSIS

 A. The Motion to Dismiss for Lack of Personal Jurisdiction

 Plaintiffs have invoked this court's jurisdiction pursuant to 28 U.S.C. §§ 1332(a) and 1350. At the outset, we note that jurisdiction does not rest under § 1350, which provides original jurisdiction of any civil action by an alien for a tort committed in violation of the law of nations or a treaty of the United States. No treaty concerning libel has been noted nor allegedly violated, and plaintiffs have not alleged any violation of "the law of nations" as the term has been interpreted by the courts. See Dreyfus v. Von Finck, 534 F.2d 24 (2d Cir. 1976); ITT v. Vencap, Ltd., 519 F.2d 1001 (2d Cir. 1975); Valanga v. Metropolitan Life Ins. Co., 259 F. Supp. 324 (E.D.Pa.1966). We therefore treat the complaint as alleging jurisdiction based solely on diversity of citizenship. 28 U.S.C. § 1332(a).

 It is well settled that in diversity cases, a federal district court is authorized pursuant to Fed.R.Civ.P. 4(e) and (f) to look to the law of the forum to determine in what manner and under what circumstances a party not present in the forum state can be subjected to the jurisdiction of a federal district court. United States v. First National City Bank, 379 U.S. 378, 381, 85 S. Ct. 528, 530, 13 L. Ed. 2d 365 (1965). We therefore begin our inquiry by turning to the statutory provisions of the District of Columbia for exercising in personam jurisdiction over nonresidents. D.C.Code § 13-423 (Supp. V, 1978), the long-arm statute. The applicable portions of the statute are set out below:

 
§ 13-423 Personal jurisdiction based upon conduct
 
(a) A District of Columbia court may exercise personal jurisdiction over a person, who acts directly or by an agent, as to a claim ...

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