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Lewy v. Southern Poverty Law Center

July 13, 2010

GUENTER LEWY, PLAINTIFF,
v.
SOUTHERN POVERTY LAW CENTER, INC., ET AL., DEFENDANTS.



The opinion of the court was delivered by: Colleen Kollar-kotelly United States District Judge

MEMORANDUM OPINION

Plaintiff Guenter Lewy filed the above-captioned case against Defendants David Holthouse ("Holthouse") and Southern Poverty Law Center, Inc. ("SPLC") alleging that they wrote and published defamatory statements that caused him various injuries including reputational harm and emotional trauma. In response to Plaintiff's Amended Complaint, Defendants filed a Motion to Dismiss for lack of personal jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(2). This Court denied that motion without prejudice and granted Plaintiff's Motion for Jurisdictional Discovery to allow Plaintiff to discover facts relating to each Defendant's connection to the District of Columbia. See Order (June 18, 2009), Docket No. [24]. Now that jurisdictional discovery has been completed, the parties have filed supplemental briefs on the issue of personal jurisdiction, and the Court shall now reconsider Defendants' [7] Motion to Dismiss.

For the reasons explained below, the Court shall GRANT-IN-PART Defendants' Motion to Dismiss with respect to Defendant Holthouse and DENY-IN-PART with respect to Defendant Southern Poverty Law Center, Inc.

I. LEGAL STANDARD

Defendants have moved to dismiss for lack of personal jurisdiction under Federal Rule of Civil Procedure 12(b)(2). A plaintiff bears the burden of establishing a factual basis for asserting personal jurisdiction over a defendant. See Crane v. N.Y. Zoological Soc'y, 894 F.2d 454, 456 (D.C. Cir. 1990). Accordingly, a plaintiff must present evidence of specific facts establishing a prima facie case that personal jurisdiction exists. Naegele v. Albers, 355 F. Supp. 2d 129, 136 (D.D.C. 2005); see also Second Amendment Found. v. U.S. Conference of Mayors, 274 F.3d 521, 524 (D.C. Cir. 2001). "To make such a showing, the plaintiff is not required to adduce evidence that meets the standards of admissibility reserved for summary judgment and trial; rather she may rest her arguments on the pleadings, 'bolstered by such affidavits and other written materials as [she] can otherwise obtain.'" Urban Institute v. FINCON Servs., 681 F. Supp. 2d 41, 44 (D.D.C. 2010) (quoting Mwani v. bin Laden, 417 F.3d 1, 7 (D.C. Cir. 2005)). In contrast to a motion to dismiss brought under Federal Rule of Civil Procedure 12(b)(6), the Court need not treat all of a plaintiffs' allegations as true when determining whether personal jurisdiction exists over a defendant. Instead, the Court "may receive and weigh affidavits and any other relevant matter to assist it in determining the jurisdictional facts." United States v. Phillip Morris, Inc., 116 F. Supp. 2d 116, 120 n.4 (D.D.C. 2000) (citation omitted). Nevertheless, the Court must resolve any factual discrepancies with regard to the existence of personal jurisdiction in favor of the plaintiff. See Crane, 894 F.2d at 456.

II. FACTUAL BACKGROUND

The following facts are drawn from the allegations in the Amended Complaint and the affidavits and other evidence presented by the parties in their briefs on the issue of personal jurisdiction.

A. Claims Asserted in the Amended Complaint

Plaintiff Guenter Lewy is an emeritus professor of political science at the University of Massachusetts and a resident of the District of Columbia. Am. Compl. ¶ 12. A survivor of German violence against Jews during World War II, Prof. Lewy has written numerous books and articles about the history of persecuted peoples such as the Gypsies in Nazi-occupied Europe, the Native Americans, and the Ottoman Armenians. See id. ¶¶ 18, 21. In 2005, Prof. Lewy authored a book entitled The Armenian Massacres in Ottoman Turkey: A Disputed Genocide (Univ. of Utah Press 2005) which discusses the atrocities committed against Armenians by the Ottoman Turks in 1915-16 and the debate in the historical community about whether to label those atrocities a "genocide." Id. ¶ 21. Prof. Lewy ultimately concludes in the book that the current, reliable evidence of genocide is unpersuasive or inconclusive. Id. Prof. Lewy contends that many other reputable American scholars have questioned the propriety of the genocide label. Id. ¶ 22.

Defendant Southern Poverty Law Center, Inc. ("SPLC") is a not-for-profit organization incorporated in Alabama devoted to fighting discrimination and extremism. Am. Compl. ¶ 13. SPLC publishes a quarterly journal entitled Intelligence Report that is provided free of charge and discusses the activities of individuals and groups that promote hatred and extremism. Id. The Intelligence Report is published both in hard copy and on the internet at SPLC's website. Id. Defendant David Holthouse is Senior Editor of the Intelligence Report. See Defs.' Supp. Mem., Ex. 4 (Dep. of David Holthouse) at 8.

In the summer of 2008, Holthouse authored a cover story for the Intelligence Report entitled "State of Denial: Turkey entices U.S. scholars, lawmakers to cover up Armenian genocide." Id. ¶ 24; see also Compl., Ex. 2 (excerpts from Summer 2008 issue of Intelligence Report).*fn1 Holthouse's article discusses efforts by Turkey to deny the existence of the Armenian genocide and criticizes the work of scholars such as Lewy who dispute the existence of a genocide. See generally Compl., Ex. 2. Specifically, the "State of Denial" article asserts that "Lewy is one of the most active members of a network of American scholars, influence peddlers and website operators, financed by hundreds of thousands of dollars each year from the government of Turkey, who promote the denial of the Armenian genocide . . . ." Am. Compl. ¶ 25. The article describes Lewy as a "revisionist historian" and features a picture of him. See Compl., Ex. 2. The Summer 2008 issue of the Intelligence Report also features an editorial captioned "Lying About History" that criticizes Lewy. Id.; Am. Compl. ¶ 24.

Lewy claims that the statements made in the Intelligence Report are defamatory because they falsely accuse him of corruption, fraud, and even commission of a crime under the Foreign Agents Registration Act of 1938, 22 U.S.C. §§ 611-21. See Am. Compl. ¶¶ 27-33. Lewy claims that the statements damaged his reputation as a scholar, diminished his opportunities for teaching and speaking, hurt his book sales, and caused him emotional trauma and suffering. Id. ¶ 27. Lewy seeks compensatory and punitive damages totaling $8 million. Id. ¶ 41.

B. SPLC's Connections with the Forum

Plaintiff asserts that SPLC has numerous connections with this forum, the District of Columbia. Although SPLC is a non-profit corporation residing in Alabama, it operates a website on the internet that is accessible to D.C. residents. See Southern Poverty Law Center, http://www.splcenter.org. Visitors to the SPLC website can enter their email address and subscribe to the organization's newsletters, such as "Hate Watch Weekly" and "Nativism in the News." See Pl.'s Mem., Ex. 1 (Dep. of Mark Potok) at 31-34. These newsletters are distributed electronically to thousands of subscribers. See id. at 33. Visitors to the website can also request additional information about SPLC, make a charitable donation, and comment on postings on the SPLC's weblog. See Pl.'s Mem., Ex. 2 (SPLC's Responses to Interrogatories) at 18. Unless a website visitor requests certain information or makes a donation, SPLC does not keep track of the visitor's geographic location. Id. Since 2005, SPLC has collected 541 email addresses from donors who provided a District of Columbia address, and SPLC sent approximately 82 emails to its donors between 2005 and 2008 relating news about its activities. Id. The SPLC website also contains an interactive feature called "Stand Strong Against Hate" that encourages visitors to email SPLC their contact information to indicate their desire to promote tolerance; SPLC then places those visitors' names on a digital map of the United States indicating their location. See Stand Strong Against Hate, http://www.splcenter.org/center/petitions/standstrong;Pl.'s Mem. at 5. According to documents produced during jurisdictional discovery, at least 117 District of Columbia residents have signed the "Stand Strong Against Hate" online petition. See Pl.'s Mem., Ex. 7 ("Stand Strong Against Hate DC Signers"). The website also invites law enforcement groups to sign up for SPLC-led training programs.

In 2008, SPLC received $29,118 in online donations from 133 different donors based in the District of Columbia. See Pl.'s Mem., Ex. 5 ("DC Unique Donor and Revenue Count by ZIP (Web Gifts Only)"). In 2007, SPLC received $24,654 in online donations from 106 separate donors in D.C. Id. From 2000-2008, the total amount of internet contributions received from District of Columbia donors was over $92,000 from 446 separate donations. Id. SPLC places its online donors in a regular solicitation program in which it sends mail to donors encouraging them to renew their membership and donate additional funds. See Pl.'s Mem., Ex. 6 (Dep. of Wendy Via) at 16-17. SPLC also regularly solicits donations from D.C. residents. See Pl.'s Mem., Ex. 8 ("DC Solicitations by ZIP Code"). These solicitations are done by mail to individuals and organizations. Defs.' Supp. Mem., Ex. 5 (Aff. of Wendy Via) ¶ 5. SPLC made 84,828 solicitations to D.C. residents in 2008 and 95,582 solicitations in 2007. See Pl.'s Mem., Ex. 8. SPLC earned a total of $565,220.07 from 1787 different D.C. donors in 2008 and $345,012.68 from 1918 different D.C. donors in 2007. Pl.'s Mem., Ex. 9 ("DC Unique Donor and Revenue Count by ZIP"). Over the nine-year period from 2000-2008, SPLC received over $3 million in gift contributions from D.C. donors. Id. Donors may contribute online, by mail, or by telephone. See Pl.'s Mem., Ex. 10 (Dep. of Wendy Via) at 13. Because it receives donations from the District, SPLC is required by law to have an agent for service of process in D.C. See Pl.'s Mem., Ex. 18 (SPLC's Responses to Interrogatories) at 25. In addition, one of SPLC's Board members resides in D.C. Id.

SPLC also distributes publications to individuals in the District of Columbia. SPLC publishes Intelligence Report each quarter and another magazine called Teaching Tolerance. See Defs.' Supp. Mem., Ex. 5 (Aff. of Wendy Via) ¶¶ 7-8. These magazines are written in Alabama, published in Georgia, and made available free of charge. Id. ¶ 8; Defs.' Mem., Aff. of Teenie Hutchison ¶ 15. During the third quarter of 2009, SPLC distributed 1443 copies of the Intelligence Report to addresses in the District of Columbia. Defs.' Supp. Mem., Ex. 5 (Aff. of Wendy Via) ¶ 7.*fn2 Between fall 2005 and 2008, SPLC distributed 12,075 copies of Teaching Tolerance in the District of Columbia. Id. ¶ 8. SPLC has also distributed teaching materials (such as handbooks, videos, and learning kits) to educational institutions in the District of Columbia as part of its "Teaching Tolerance" education program. Id. ¶ 9. From 2004 to 2008, SPLC distributed 7187 ...


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