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Akhmetshin v. Browder

United States District Court, District of Columbia

September 16, 2019

RINAT AKHMETSHIN, Plaintiff,
v.
WILLIAM BROWDER, Defendant.

          MEMORANDUM OPINION

          EMMET G. SULLIVAN, UNITED STATES DISTRICT JUDGE

         Plaintiff Rinat Akhmetshin (“Mr. Akhmetshin”), a dual citizen of Russia and the United States, brings this defamation action against Defendant William Browder (“Mr. Browder”), a British foreign national. Mr. Akhmetshin alleges that Mr. Browder's lobbying efforts in the United States led to the enactment of the Russia and Moldova Jackson-Vanik Repeal and Sergei Magnitsky Rule of Law Accountability Act of 2012 (“Magnitsky Act”), Pub. L. No. 112-208, 126 Stat. 1496. Mr. Akhmetshin claims that Mr. Browder identified him as a threat to Mr. Browder's lobbying efforts, and that Mr. Browder later defamed him by stating that Mr. Akhmetshin is a Russian spy. Mr. Akhmetshin asserts that Mr. Browder made that claim in four defamatory and false statements-two statements on his Twitter account, another statement during a televised interview, and one quote in a news article.

         Mr. Browder moves to dismiss the Complaint pursuant to Rules 12(b)(2) and 12(b)(6) of the Federal Rules of Civil Procedure. Mr. Browder separately moves to dismiss under the District of Columbia's Anti-Strategic Lawsuits Against Public Participation Act (“Anti-SLAPP Act”). Upon careful consideration of the motions, the responses, the replies thereto, the applicable law, and the entire record herein, the Court concludes that it lacks personal jurisdiction over Mr. Browder, and that Mr. Akhmetshin is not entitled to jurisdictional discovery. Therefore, the Court GRANTS Mr. Browder's Motion to Dismiss for lack of personal jurisdiction under Rule 12(b)(2), DENIES Mr. Browder's Motion to Dismiss under the Anti-SLAPP Act, DENIES Mr. Akhmetshin's request for jurisdictional discovery, and DISMISSES WITHOUT PREJUDICE this case.

         I. Background

         A. Factual Background

         The following facts-drawn from the Complaint and documents incorporated by reference therein-are assumed to be true. See Banneker Ventures, LLC v. Graham, 798 F.3d 1119, 1129 (D.C. Cir. 2015). Mr. Browder is a British citizen who renounced his U.S. citizenship in 1998. Compl., ECF No. 1 at 2 ¶ 10.[1] At some point, Mr. Browder moved to Russia where he founded Hermitage Capital Management (“Hermitage”). Id. at 4 ¶ 18. Hermitage, one of the largest Russian hedge funds, has amassed over $4 billion in assets. Id. In 2008, Russian authorities detained an auditor for Hermitage's law firm, Sergei Magnitsky (“Mr. Magnitsky”), who, in 2009, died in a Russian prison. Id. at 4 ¶¶ 19-20. Mr. Browder maintains that “Russian prison guards killed [Mr.] Magnitsky because [Mr.] Magnitsky discovered that Russian government officials and members of organized crime had perpetrated a tax fraud scheme using the identities of several Hermitage portfolio companies (the ‘Hermitage Tax Refund Scheme').” Id. at 4 ¶ 21.

         Mr. Browder started a lobbying campaign after Mr. Magnitsky's death. See id. at 4 ¶¶ 22-24. Mr. Browder “engaged numerous lobbying and public relations firms in Washington D.C.; met with members of Congress and their staff, including Senators Benjamin Cardin and John McCain in Washington D.C.; and testified in congressional hearings to advance his narrative about [Mr.] Magnitsky and the Hermitage Tax Refund Scheme.” Id. at 4 ¶ 23. Mr. Browder eventually wrote a book, Red Notice, “purport[ing] to tell the truth about the Hermitage Tax Refund Scheme and the Magnitsky affair.” Id. at 11 ¶ 60.

         On December 14, 2012, Congress passed the Magnitsky Act, id. at 4 ¶ 24, authorizing the President to impose sanctions against certain individuals who committed human rights violations, including those individuals responsible for the detention, abuse, or death of Mr. Magnitsky, id. at 5 ¶ 26.[2] In response, Russia implemented a ban on U.S. citizens adopting Russian orphans. Id. at 5 ¶ 27. Soon thereafter, Mr. Akhmetshin began working for a newly-formed lobbying organization aimed to restart “Russian adoptions in America by, among other things, removing [Mr.] Magnitsky's name from the Magnitsky Act.” Id. at 6 ¶ 34. The lobbying organization was formed based on Mr. Akhmetshin's interest in educating the public about “[Mr.] Browder's version of [the] events” regarding the passage of the Magnitsky Act. Id. at 6 ¶ 33. Mr. Akhmetshin became convinced that Congress enacted the Magnitsky Act based on falsehoods. Id. at 6 ¶ 32.

         Before embarking on his lobbying campaign, Mr. Akhmetshin learned that Mr. Browder was the “driving force behind [a] lawsuit” in the United States District Court for the Southern District of New York involving a group of Russian officials and individuals responsible for stealing documents from Hermitage's investment fund, id. at 5 ¶ 29, and that the documents produced during discovery in that case led him to “question [Mr.] Browder's version of events concerning the Hermitage Tax Refund Scheme and [Mr.] Magnitsky's death[, ]” id. at 6 ¶ 31.[3] In April 2016, Mr. Akhmetshin became a “registered lobbyist, ” crafting a counternarrative to the factual findings set forth in the Magnitsky Act. Id. at 6-7 ¶¶ 35-37. Mr. Akhmetshin is a resident of the District of Columbia, id. at 2 ¶ 9, where he worked as a lobbyist, id. at 11 ¶ 66. In June 2016, Mr. Akhmetshin organized a screening in the District for a documentary that challenged the accuracy of the Magnitsky Act's findings. Id. at 7 ¶ 37. In July 2016, Mr. Browder “caused Hermitage to submit a letter to the Department of Justice . . . alleging that [Mr.] Akhmetshin and others had violated the Foreign Agent Registration Act.” Id. at 7 ¶ 39.[4] Mr. Browder later “identified [Mr.] Akhmetshin as a rival and a threat to his lobbying efforts, upon information and belief, [Mr.] Browder then defamed [Mr.] Akhmetshin by falsely stating to reporters and others that [Mr.] Akhmetshin is a Russian spy.” Id. at 8 ¶ 43.[5]

         B. The Four Alleged Defamatory Statements

         According to Mr. Akhmetshin, “[Mr.] Browder directed [four] defamatory statements about [Mr.] Akhmetshin at the District of Columbia.” Id. at 11 ¶ 63. In July 2017, news media outlets widely reported that Mr. Akhmetshin and others met with Donald Trump, Jr., at Trump Tower in New York on June 9, 2016. Id. at 8 ¶ 45. On July 14, 2017, Mr. Browder posted two tweets on his personal Twitter account. Id. at 8 ¶¶ 48-49. First, Mr. Browder tweeted: “Huge development in the Veselnitskaya/Trump Jr story. Russian GRU officer Rinat Akhmetshin was also present.” Id. at 8 ¶ 48 (emphasis added); see also Ex. A, Decl. of Melissa Shube (“Shube Decl.”), ECF No. 20-5 at 2-7.[6] Mr. Browder then shared a hyperlink to the NBC News article entitled “Former Soviet counterintelligence officer at meeting With Donald Trump Jr. and Russian lawyer” in that tweet. Ex. A, ECF No. 20-5 at 2. More than one hour later, Mr. Browder issued a second statement, tweeting that “Russian intelligence asset Rinat Akhmetshin confirms he was in the meeting with Trump Jr[, ]” and sharing a hyperlink to an Associated Press (“AP”) article in that Twitter post. Compl., ECF No. 1 at 8 ¶ 49 (emphasis added); see also Ex. B, Shube Decl., ECF No. 20-6 at 2-12.[7]

         On the same day, the website Business Insider published an article entitled “A Soviet military officer turned lobbyist attended the Trump Jr. meeting - and there may have been a 6th person, too.” Ex. C, Shube Decl., ECF No. 20-7 at 2. That article included a quote from Mr. Browder: “So in my opinion you had a member of Putin's secret police directly meeting with the son of the future next president of the United States asking to change U.S. sanctions policy crucial to Putin.” Id.[8] According to Mr. Akhmetshin, “[Mr.] Browder intended his [third] statement to be interpreted as a statement of fact that [Mr.] Akhmetshin was ‘a member of Putin's secret police.'” Compl., ECF No. 1 at 9 ¶ 50. Finally, Mr. Browder made the fourth statement in an interview on CBS This Morning on July 18, 2017. Id. at 9 ¶ 51. Mr. Browder stated that “[Natalia Veselnitskaya] then hires this guy Rinat Akhmetshin, who is a - by all accounts, some kind of shady former Soviet spy, current spy operator in Washington.” Id. (emphasis added). Mr. Browder also stated that “[Mr. Akhmetshin] then organizes a full-on lobbying campaign hiring the top lobbyists, the top law firms, the top PR firms, to try to get rid of this Magnitsky Act.” Def.'s Mot. to Dismiss, ECF No. 20 at 24 (quoting Ex. D, Shube Decl., ECF No. 20-8 at 1).

         C. Procedural History

         On July 12, 2018, Mr. Akhmetshin filed this lawsuit, asserting that Mr. Browder's four statements were false and defamatory. Compl., ECF No. 1 at 9 ¶ 52. Mr. Akhmetshin denies being a “Russian GRU officer, intelligence asset, or spy for the Russian Federation or former Soviet Union.” Id. at 9 ¶ 53. And Mr. Browder had “no good faith basis” for stating those falsehoods, and he made “no effort to verify the truth of those allegations . . . .” Id. at 10 ¶ 58. Mr. Akhmetshin claims that “[Mr.] Browder's defamatory statements against [him] were clearly designed to undermine [his] credibility as a lobbyist in Washington, D.C.” Id. at 11 ¶ 66. As a result, Mr. Akhmetshin asserts that he has been labeled as a spy, and he has struggled to obtain work. Id. at 12 ¶¶ 71-72. Thereafter, Mr. Browder filed a motion to dismiss pursuant to Rules 12(b)(2) and 12(b)(6).[9] See Def.'s Mot. to Dismiss, ECF No. 20. Mr. Akhmetshin filed the opposition brief, see Pl.'s Opp'n, ECF No. 22, and Mr. Browder filed the reply brief, see Reply, ECF No. 26.[10] The briefing is now complete, and the motions are ripe and ready for the Court's adjudication.

         II. Legal Standard

         Under Rule 12(b)(2), a defendant can move to dismiss a lawsuit if the court lacks personal jurisdiction over the defendant. Fed.R.Civ.P. 12(b)(2). A plaintiff bears the burden of making a prima facie showing that the court has personal jurisdiction over a defendant. Kurtz v. United States, 779 F.Supp.2d 50, 51 (D.D.C. 2011). “A plaintiff must plead specific facts providing a basis for personal jurisdiction[, ]” id., and a plaintiff cannot rely on merely conclusory allegations, Buesgens v. Brown, 567 F.Supp.2d 26, 31 (D.D.C. 2008). Accordingly, to establish personal jurisdiction over a defendant, the “plaintiff must allege specific acts connecting [the] defendant with the forum[.]” Second Amendment Found. v. U.S. Conf. of Mayors, 274 F.3d 521, 524 (D.C. Cir. 2001) (quoting First Chicago Int'l v. United Exch. Co., 836 F.2d 1375, 1378 (D.C. Cir. 1988)).

         On a motion to dismiss for lack of personal jurisdiction, a court may consider materials outside of the pleadings. Thompson Hine LLP v. Smoking Everywhere Inc., 840 F.Supp.2d 138, 141 (D.D.C. 2012), aff'd sub nom. Thompson Hine, LLP v. Taieb, 734 F.3d 1187 (D.C. Cir. 2013). “When considering whether personal jurisdiction exists, the Court need not treat all of plaintiff's jurisdictional allegations as true.” Buesgens, 567 F.Supp.2d at 31. “Instead, the Court may receive and weigh affidavits and any other relevant matter to assist it in determining the jurisdictional facts.” Id. (citation and internal quotation marks omitted). Any factual discrepancies should be resolved in favor of the plaintiff. Id. The court “need not accept inferences drawn by plaintiffs if such inferences are unsupported by the facts[.]” Livnat v. Palestinian Auth., 851 F.3d 45, 56-57 (D.C. Cir. 2017) (citation omitted).[11]

         III. Analysis

         As an initial matter, this Court must determine whether to exercise personal jurisdiction over Mr. Browder, a non-resident of the District of Columbia, by reference to the District of Columbia's long-arm statute and the Due Process Clause of the Fourteenth Amendment to the United States Constitution. United States v. Ferrara, 54 F.3d 825, 828 (D.C. Cir. 1995); see also Bradley v. DeWine, 55 F.Supp.3d 31, 39 (D.D.C. 2014) (“[T]he defendant must qualify for either general or specific jurisdiction under the relevant District of Columbia statutes.”). “Under the District of Columbia long-arm statute, a plaintiff has the burden of establishing a factual basis for the exercise of personal jurisdiction over the defendant.” Cellutech, Inc. v. Centennial Cellular Corp., 871 F.Supp. 46, 48 (D.D.C. 1994). For the reasons explained below, the Court concludes that the District of Columbia's long-arm statute does not provide a basis for this Court to exercise specific or general jurisdiction over Mr. Browder, and that Mr. Akhmetshin is not entitled to jurisdictional discovery.

         A. The Court Lacks Specific Jurisdiction Over Mr. Browder

         The Court first considers whether it may exercise specific jurisdiction over Mr. Browder. Mr. Akhmetshin argues that this Court has specific jurisdiction over Mr. Browder under the relevant provision of the District of Columbia's long-arm statute because: (1) Mr. Browder has “numerous contacts” with the District; (2) he has appeared in the District on “numerous occasions to tell his version of events relating to the Hermitage Tax Refund Scheme”; and (3) he has appeared in the District “on many other occasions” to promote his book. Pl.'s Opp'n, ECF No. 22 at 22. Mr. Browder contends that the basis for his contacts in the District-“engaging in lobbying activities in the District, including his appearances in the District to testify before Congress and other United States government agencies[, ]” Def.'s Mot. to Dismiss, ECF No. 20 at 29-are precluded by the “government contacts” doctrine, id. at 30. Mr. Browder argues that Mr. Akhmetshin fails to allege that his appearances in the District were “more than sporadic or occasional[.]” Id. at 33. In response to Mr. Akhmetshin's argument that the Red Notice demonstrates that Mr. Browder was regularly soliciting business or deriving substantial revenue from the District, Mr. Browder points out that the “Red Notice is inseparable from Mr. Browder's advocacy relating to the Magnitsky Act, as ...


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