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DAVIS v. CONSTANTIN COSTA-GAVRAS

October 15, 1984;

NATHANIEL DAVIS, FREDERICK D. PURDY, RAY E. DAVIS, Plaintiffs,
v.
CONSTANTIN COSTA-GAVRAS, UNIVERSAL CITY STUDIOS, INC.; MCA, INC.; and THE HEARST CORPORATION, Defendants.



The opinion of the court was delivered by: SOFAER

OPINION AND ORDER

ABRAHAM D. SOFAER, D.J.:

 Plaintiffs filed this libel action in January 1983 in the Eastern District of Virginia. The suit was subsequently transferred to the Southern District of New York. Davis v. Costa-Gavras, No. 83-0019-A (E.D. Va. March 25, 1983). Jurisdiction is based on diversity of citizenship, 28 U.S.C. § 1332. Plaintiffs are two State Department officials, Nathaniel Davis and Frederick D. Purdy, and a naval officer, Captain Ray E. Davis, who were stationed in Santiago, Chile in September 1973 during the military coup which deposed the government of Salvador Allende Gossens. While stationed in Chile, Plaintiff Nathaniel Davis served as United States Ambassador, Frederick D. Purdy as United States Consul to the Santiago Consulate, and Captain Rey E. Davis as Commander of the United States Military Group and Chief of the United States Navy Mission to Chile.

 Charles Horman was a United States citizen killed in the aftermath of the September 1973 coup. The circumstances surrounding the disappearance and death of Horman attracted the attention of the author Tom Hauser, who researched and wrote what purports to be a nonfiction account of Horman's death, entitled The Execution of Charles Horman: An American Sacrifice ("Execution"). Harcourt Brace Jovanovich, Inc., ("HBJ") published Hauser's work in hardcover in 1978. The book, republished in paperback by The Hearst Corporation ("Hearst"), was the basis for the motion picture "Missing," directed by Constantin Costa-Gavras and released by Universal City Studio's, Inc., ("Universal") a wholly owned subsidiary of MCA, Inc. ("MCA").

 Plaintiffs named as defendants the author Hauser, publishers HBJ and Hearst, and filmmakers Costa-Gavras, Universal, and MCA; they claim that defendants, through publication of the books and release of the film, "falsely accused [them] of ordering or approving the order for the murder of Charles Horman." In an opinion and order dated February 7, 1984, motions for summary judgment by the defendants Hauser and HBJ were granted. Davis v. Costa-Gavras, 580 F. Supp. 1082 (S.D.N.Y.1984).

 Defendant Costa-Gavras now renews his motion to dismiss for lack of personal jurisdiction and also moves, together with Universal and MCA, for judgment on the pleadings on the ground that the movie "Missing" is not susceptible of a defamatory interpretion. Defendant Hearst moves for summary judgment on the ground that it is not liable either for the republication of the hardcover book Execution, or for any defamatory statements contained in the motion picture "Missing." For the reasons set forth below, defendant Costa-Gavras' motion to dismiss for lack of personal jurisdiction under Fed. R. Civ. P. 12(b)(2) is denied, and defendant Hearst's motion for summary judgment pursuant to Rule 56 is granted. The motions of defendants Costa-Gavras, Universal, and MCA to dismiss under Rule 12(c) will be assessed in a separate opinion and order.

 I. Personal Jurisdiction

 Costa-Gavras argues that this court may not exercise jurisdiction over him consistent with either New York state's long-arm statute, NYCPLR § 302 (McKinney 1972), or the requirements of due process, see International Shoe Co. v. Washington, 326 U.S. 310, 316, 90 L. Ed. 95, 66 S. Ct. 154 (1945); Hanson v. Denckla, 357 U.S. 235, 2 L. Ed. 2d 1283, 78 S. Ct. 1228 (1958). Plaintiffs claim that the jurisdictional issue was finally decided by Judge Cacheris when he transferred the case to this District, that Costa Gavras waived his power to object to jurisdiction here by moving to transfer this case to the Southern District of New York, and that jurisdiction in any event exists under NYCPLR § 302(a)(1) and (a)(2).

 Judge Cacheris entertained neither briefing nor argument as to the propriety of jurisdiction in New York, and never explicitly determined that the Southern District of New York would have personal jurisdiction over Costa-Gavras. The general rule that a disappointed litigant should not be given an opportunity to litigate a matter that has been fully considered by a court of coordinate jurisdiction, see Hayman Cash Register Co. v. Sarokin, 669 F.2d 162 (3rd Cir. 1982), is therefore inapplicable. See Hoffman v. Blaski, 363 U.S. 335, 340 n.9, 4 L. Ed. 2d 1254, 80 S. Ct. 1084 (1960) ("order did not purport to determine the jurisdiction of the transferee court and therefore did not preclude [transferee court] of power to determine [its] own jurisdiction . . ."); see also C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 3827, at 175 (1976) (transferee court has power to reexamine for itself whether it is a court in which suit could have been brought). Plaintiffs' further argument that Costa-Gavras waived jurisdiction by moving to transfer need not be decided, for in personam jurisdiction clearly exists.

 Costa-Gavras, a citizen and resident of France, coauthored the screenplay for the movie "Missing," and directed the film. From August 1980 when he began working on the screenplay, until December 1980 when the screenplay was in final form, Costa-Gavras was in New York City on approximately seven or eight occasions. Costa-Gavras Affidavit at 2. During this period and at his request, see Costa-Gavras Depo. Tr. at 9, he met with Thomas Hauser, author of the book Execution, and asked Hauser questions "probably concerning the story and the characters and the information." Id. at 20. Costa-Gavras also met with Donald Stewart, coauthor of the screenplay, see id. at 8, and consulted with the family of Charles Horman. Costa-Gavras Affidavit at 2-3. In late 1981 and early 1982, Costa-Gavras returned to New York on at least three separate occasions. In September 1981, he was in New York to attend the screening of "Missing" for the family of Charles Horman, and in October 1981 he attended another New York screening of the film for executives of Universal. Costa-Gavras Affidavit at 3. In addition to these private screenings, Costa-Gavras also attended, in or about January 1982, the formal premiere of the film in New York. Costa-Gavras Depo. Tr. at 26-27. In December 1981 he traveled to New York and remained here for several days to engage in various publicity-related activities in connection with the release of the film, including consultations with publicity representatives regarding the material to be used in the advertising campaign for "Missing," and meetings with media representatives. Costa-Gavras Affidavit at 3. In addition to these extensive New York activities related to "Missing," Costa-Gavras also visited New York City approximately 20-25 times in the past 10 years "either in connection with motion picture productions or to visit friends," and he maintains a bank account here. Id. at 3-4.

 NYCPLR § 302(a)(1) creates a two-step test for personal jurisdiction, requiring not only that the defendant "transact business" in the state, but also that the cause of action "arise" from the in-state transactions.See Xedit Corp. v. Harvel Industries Corp., Fidelipac, 456 F. Supp. 725, 728 (S.D.N.Y. 1978); Longines-Wittnauer, 15 N.Y.2d 443, 452, 209 N.E.2d 68, 72, 261 N.Y.S.2d 8, 14, cert. denied, 382 U.S. 905, 15 L. Ed. 2d 158, 86 S. Ct. 241 (1965); Rene Boas & Assoc. v. Vernier, 22 A.D.2d 561, 257 N.Y.S.2d 487 (1965). Defendant's numerous in-state activities, including business meetings with various persons connected with the writing, production, and release of the motion picture "Missing," constitute "transacting business" within the meaning of the statute's threshhold requirement. Cf. Xedit, 456 F. Supp. at 728 (single meeting at trade show constitutes "transacting business" for purposes of § 302(a)(1); Potter's Photographic Applications Co. v. Ealing Corp., 292 F. Supp. 92, 101-02 (E.D.N.Y. 1968) (defendant was "transacting business within state" for jurisdictional purposes where preliminary contract negotiations were conducted in New York on at least three occasions).

 Defendant's New York State activities were also purposeful and sufficiently proximate to the allegedly unlawful acts that the cause of action here may fairly be said to arise out of those activities. By coming to New York on approximately ten separate occasions to engage in meetings with Hauser, the Horman family, publicity and media representatives, and coauthor Stewart, Costa-Gavras "purposely" availed himself "of the privilege of conducting activities' within New York and thereby "invok[ed] the benefits and protections of its laws' [in connection with the motion picture "Missing"]" Parke-Bernet Galleries, Inc. v. Franklyn, 26 N.Y.2d 13, 18, 256 N.E.2d 506, 508-09, 308 N.Y.S.2d 337, 341 (1970) (quoting Denckla, 357 U.S. at 253). The cause of action "arises" from defendant's New York activities inasmuch as these activities substantially contributed to the writing of the screenplay and to its production, promotion, and release, and thereby necessarily furthered the alleged libel.

 Furthermore, defendant's extensive, purposeful contacts with the state of New York are such that the maintenance of this suit can in no sense be said to offend "our traditional conception of fair play and substantial justice," International Shoe, 326 U.S. at 320; and the exercise of jurisdiction here over Costa-Gavras will further both plaintiffs' "interest in obtaining convenient and effective relief, see Kulko v. Superior Court, 436 U.S. 84, 92, 56 L. Ed. 2d 132, 98 S. Ct. 1690 (1978), . . . [and] the interstate judicial system's interest in obtaining the most efficient resolution of controversies." World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 292, 62 L. Ed. 2d 490, 100 S. Ct. 559 (1980).Finally, New York State's interest in adjudicating this dispute is significant; ...


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