Judgment at 13 (citing Restatement (Second) of Torts, § 558 (1977); Afro- American Publishing Co. v. Jaffee, 125 U.S. App. D.C. 70, 366 F.2d 649 (D.C. Cir. 1966); Grossman v. Goemans, 631 F. Supp. 972 (D.C. 1986)). While defendants' memorandum gives an excellent recitation of the law of defamation, the record simply does not support the facts necessary for them to prevail. Fatally, defendants have not shown that the complained of statements were false. Indeed, as further discussed below, plaintiffs have demonstrated that the allegedly defamatory statements were substantially true. Hence, summary judgment on defendants' motion would clearly be inappropriate.
b. Plaintiffs' Cross-Motion for Summary Judgment as to Count I of Defendants' Counterclaims.
Just as defendants must demonstrate that the statements alleged to be defamatory were in fact false, so too are plaintiffs absolved of liability by demonstrating that the statements were true. Truth is, in other words, an absolute defense to an action for defamation. Olinger v. American Savings and Loan Association, 133 U.S. App. D.C. 107, 409 F.2d 142, 144 (D.C. Cir. 1969). However, plaintiffs need show only that the statements made were substantially true such that "the resulting harm would have been the same whether the minor misstatements had been included or not." Herman v. Labor Cooperative Educational and Publishing Society, 139 F. Supp. 35, 37-38 (D.D.C. 1956). Plaintiffs argue, and the Court agrees, that both of the alleged defamatory statements were substantially true within the meaning of Herman.
The publication in El Tiempo of the conclusions drawn in Holland & Knight's opinion letter, was not, as defendants argue, false and defamatory. To begin with, the article, as well as the letter itself, essentially stated that Corriea's participation in the Twin Otter transaction was a sanctionable breach of legal ethics, unless he could establish his full disclosure to and the informed consent of plaintiffs. That statement is not only a fairly accurate rendition of the American Bar Association Code of Professional Responsibility, Disciplinary Rule 5-105, but it ultimately proved factually correct as well. Corriea did play multiple, potentially, if not actually, conflicting roles in the Twin Otter transaction. Corriea had an ongoing attorney-client relationship with Avianca and its affiliates, including Norasco, and was properly characterized as "Avianca's attorney," whether specifically retained and paid for legal advice in the Twin Otter transaction or not. Corriea also acted as a principal, as president of FSI, in what could be described as an arms length transaction with plaintiffs. Moreover, he did not make a disclosure to, nor seek the informed consent of, Avianca at an appropriate level within the corporation. Thus, while the Holland & Knight opinion letter and El Tiempo article were couched in hypothetical terms, in actuality Corriea patently breached his ethical obligations to plaintiffs, and his conduct is sanctionable under Disciplinary Rule 5-105.
Edgar Lenis' statements, made during a live interview on a Colombian radio station, were similarly not false or defamatory. In the interview, the English translation of which appears at Plaintiffs' Appendix pages 220-25, Lenis accused Corriea of making unauthorized self-loans from Norasco's account and of breaching his fiduciary obligations to Avianca, S.A., both of which the Court has found to be true. Also, Lenis quite accurately reported that Avianca was in the process of suing Corriea in the United States.
Because the Court finds, on the undisputed facts of this case, that the statements complained of in both instances of alleged defamation were substantially true, it is unnecessary to consider plaintiffs' further arguments that those statements were either constitutionally protected or privileged. Moreover, because defendants have failed to adduce evidence that the statements complained of were false, a burden they unquestionably would bear at trial, summary judgment for plaintiffs on count I of defendants' counterclaim is appropriate, and will be granted. While plaintiffs have ostensibly limited their cross-motion for summary judgment on the counterclaim to count I, in point of fact counts II through VI of the counterclaim also hinge on a showing of defamation. Thus the Court's findings essentially eviscerate these counts as well. For that reason, plaintiffs' cross-motion will be construed broadly to cover all counts stemming from the two instances of alleged defamation.
On the other hand, counts VII and VIII, breach of contract and indemnification, respectively, unlike counts II through VI, may have some vitality even without a showing of defamation, and plaintiffs' motion may not properly be read to include them.
C. Plaintiffs' Motion to Compel Andres Cornelissen to Answer the Amended Complaint.
Resolution of plaintiffs' motion to compel defendant Cornelissen to answer the amended complaint turns on two primary issues: whether there has been effective service of process through the alternative means authorized by the Court, and whether the Court has personal jurisdiction over Cornelissen. Plaintiffs' motion with respect to the former issue is essentially unopposed, and the defendants and intervenor were understandably constrained in fully airing their objections to the latter. However, as will be explained more fully below, the issue of effective service is inextricably connected to that of personal jurisdiction, because the Court must make a determination that it in fact has personal jurisdiction under the District of Columbia long arm statute before it can adequately determine whether there has been effective service.
Rule 4(i) (1) (E) provides that when service upon a foreign party, not an inhabitant of or found within the United States, is authorized by federal or state law, such service is sufficient if made "as directed by order of the court." Fed. R. Civ. P. 4(i) (I) (E). The Advisory Committee Notes indicate that while "the authority for effecting foreign service must be found in a statute of the United States or a statute or rule of court of the State in which the district court is held," the rule nonetheless gives the Court considerable flexibility by "permitting the court by order to tailor the manner of service to fit the necessities of a particular case." Fed. R. Civ. P. 4(i), Advisory Committee Note. Whether specified by statute or rule or fashioned by the Court, however, due process requires that the method of service employed be reasonably calculated to give actual notice and afford an adequate opportunity to be heard. Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314-15, 94 L. Ed. 865, 70 S. Ct. 652 (1950).
Although RICO authorizes nationwide service of process, 18 U.S.C. § 1965, it does not provide for service of process in a foreign country, Soltex Polymer Corporation v. Fortex Industries, Inc., 590 F. Supp. 1453, 1460 (E.D.N.Y. 1984). Thus, authority for the Court's Order allowing alternative service upon Cornelissen must be found, if at all, in the District of Columbia long arm statute. The D.C. Code permits a court to exercise personal jurisdiction when both a tortious act or omission and injury occur in the District, D.C. Code § 13-423(a) (3), or when only the tortious injury occurs in the District, but the tortfeasor "regularly does or solicits business, engages in any other persistent course of conduct, or derives a substantial revenue from goods used or consumed, or services rendered, in D.C.," Id., at § 13-423 (a) (4). The Court need not decide whether plaintiffs have shown that Cornelissen meets the regular or persistent contacts test of subsection (4). The court finds it clear that plaintiffs have sufficiently demonstrated that tortious acts and omissions occurred within the District, resulting in injuries in the District, so that they come within the purview of subsection (3). In meeting the criteria of subsection (3), plaintiffs necessarily rely on Cornelissen's close relationship with Corriea, who had his principal place of business in D.C. For example, Corriea operated AAL, Cornelissen's secret off-shore company, from his law office in D.C. Similarly, Corriea operated Norasco from his D.C. office. Over $ 3,000.00 of the funds Corriea improperly withdrew from Norasco's account were used to pay for repairs to a Rolls Royce co-owned by Cornelissen. Finally, Cornelissen directed plaintiffs' business, including in particular the Twin Otter lease transaction, to FSI, which, not surprisingly, Corriea operated from his D.C. law office.
Having confirmed that the Court had authority from the D.C. long arm statute for foreign service, the inquiry now turns to whether the particular means of alternative service authorized met the due process requirement of being "reasonably calculated" to give Cornelissen actual notice of the suit and to afford him an adequate opportunity to be heard. Several courts, when confronted with a foreign party successfully avoiding service of process by conventional methods, have upheld service by registered mail. E.g., International Controls Corp. v. Vesco, 593 F.2d 166, 175 (2d Cir. 1979) (allowing service by regular mail where bodyguard at residence made personal service impossible); Levin v. Ruby Trading Corp., 248 F. Supp. 537, 541 (S.D.N.Y. 1965) (allowing service by mail to defendant and two of his attorneys). Indeed, as the District Court for the Southern District of New York observed in Levin,
short of personal service upon the defendant, it is difficult to suggest any other means more reasonably calculated to bring home to the movant that the suit attacked his interest in the property, and to afford him the opportunity to defend . . . .
Under all circumstances, the service of process by ordinary mail upon those named in the Court's order was amply sufficient to satisfy due process requirements.