The opinion of the court was delivered by: BRODERICK
Plaintiffs Grove Press, Inc. ("Grove Press"), a New York publishing company, its president and principal stockholder, and one of its editors, brought this action against the CIA and various former employees of the CIA.
The complaint alleges that certain counterintelligence activities that the defendants conducted from 1955 to 1976 violated constitutional rights of plaintiffs and violated federal statutes governing CIA activities. These activities include a mail intercept program carried on in New York from 1955 to 1973 with the plaintiff company as one of its many targets, and "Operation Chaos" and "Project 2", information gathering schemes pursuant to which a file was opened on the plaintiffs and various forms of harassment were practiced against them. The complaint seeks, Inter alia, money damages against the individual defendants.
Previously, the individual defendants moved before this court to dismiss the case against them for lack of personal jurisdiction. The plaintiffs responded, predicating jurisdiction alternatively on 28 U.S.C. § 1391(e) and N.Y. CPLR § 302(a), a New York long arm statute. I denied the defendants' motion, finding jurisdiction under § 1391(e). Accordingly, I found no need to address jurisdiction under the New York long arm statute. I certified the question of § 1391(e) jurisdiction to the Court of Appeals. That court reversed on September 10, 1979, holding § 1391(e) inapplicable to damage suits against government officials sued as individuals. The case is now before me on remand to determine whether jurisdiction exists under the New York long arm statute.
For the reasons which follow, I hold that the court does have jurisdiction as to all the defendants with the exception of Raborn, Schlesinger and Ober. The motion to dismiss is granted as to Raborn, Schlesinger and Ober and denied as to the remaining defendants without prejudice to renewal after discovery has been conducted.
Plaintiffs have urged that jurisdiction may be predicated on any of the three grounds enumerated in CPLR § 302(a). I find that jurisdiction exists under § 302(a)(2) and accordingly do not address the other potential grounds.
Section 302(a)(2) provides:
(a) Acts which are the basis of jurisdiction. As to a cause of action arising from any of the acts enumerated in this section, a court may exercise personal jurisdiction over any nondomiciliary, or his executor or administrator, who in person or through an agent: . . .
2. commits a tortious act within the state, except as to a cause of action for defamation of character arising from the act;
The defendants do not contest the proposition that the alleged acts, if proven, would constitute "tortious acts" within the state. Instead, they attack this basis of jurisdiction on two fronts. They contend (1) that any tortious acts were committed by them in their capacities as CIA officials and cannot form the predicate for jurisdiction over them in their individual capacities, and (2) that the in-state acts complained of were not committed by them personally, but by other CIA employees who were acting as agents of the CIA and not as agents of the individual defendants. The answer to both of these contentions really depends on the resolution of a single issue: In what capacity were the tortious acts performed for jurisdictional purposes?
A number of decisions address this issue as it arises in the corporate context. In that context the following rule has emerged: The acts of a corporate officer or employee taken in his corporate capacity within the jurisdiction generally cannot form the predicate for jurisdiction over him in his individual capacity.
That rule has been applied to tortious acts of corporate officers, CPLR § 302(a)(2), e.g. Lehigh Valley Industries, Inc. v. Birenbaum, 527 F.2d 87 (2d Cir. 1975); Schenin v. Micro Copper Corp., 272 F. Supp. 523 (S.D.N.Y.1967), as well as to acts which would constitute "transacting business" within the meaning of CPLR § 302(a)(1), E. g. U. S. v. Montreal Trust Co., 358 F.2d 239 (2d Cir.), Cert. denied, 384 U.S. 919, 86 S. Ct. 1366, 16 L. Ed. 2d 440 (1966); Louis Marx & Co. v. Fuji Seiko Co., Ltd., 453 F. Supp. 385 (S.D.N.Y.1978). While at least one district court has reasoned persuasively that it is far less fair to permit the corporate officer who enters the jurisdiction to commit a tort to hide behind the "fiduciary shield" than it is so to permit the corporate officer who enters the ...