The opinion of the court was delivered by: ROBERT P. PATTERSON, JR.
ROBERT P. PATTERSON, JR., U.S.D.J.
This is an action for damages brought by Rabbi Avi Weiss ("Rabbi Weiss") against Cardinal Jozef Glemp ("Cardinal Glemp") alleging slander and defamation. Cardinal Glemp moves to dismiss the Complaint pursuant to Rules 12(b)(2), 12(b)(5), and 12(b)(6) of the Federal Rules of Civil Procedure on the grounds that: (1) the Court lacks personal jurisdiction over the Defendant because service of process was insufficient; (2) Plaintiff is barred, under principles of res judicata and collateral estoppel, by a judgment on an identical claim entered in the Defendant's favor by the courts of Poland; and (3) under the doctrine of forum non conveniens, this Court is not an appropriate forum for resolution of this dispute.
The motion was returnable on November 6, 1991, but because both parties sought adjournments, the motion was not heard until February 11, 1992. At that time, the Court held an evidentiary hearing on the issue of service of process and heard oral argument on all three issues.
In July 1989, Rabbi Weiss, a New York rabbi, and six of his students traveled to Poland to protest the continued use of a building on the outskirts of the former Auschwitz concentration camp as a convent for Roman Catholic nuns of the Carmelite Order. The nuns had continued to use the convent despite an agreement entered into by certain Jewish leaders and Roman Catholic Bishops in Geneva in early 1987 to relocate the convent within two years.
On July 14, 1989, Rabbi Weiss and his students climbed over a seven-foot tall fence surrounding the convent grounds, knocked on the door, and camped out on the steps of the convent itself. The convent is cloistered, and church law prohibits its entrance by outsiders without the permission of the Mother Superior and the Bishop, permission which can be granted only for special cause. Affidavit of Jozef Cardinal Glemp, sworn to on October 7, 1991, ("Glemp Aff."), P8. After Rabbi Weiss and his students had prayed for five hours, they were physically ejected from the convent grounds by maintenance workers at the convent who allegedly poured on them buckets of water mixed with urine. According to a published news account, Rabbi Weiss criticized his eviction from the convent grounds, accusing the nuns of being "silent while the workers beat on Jews -- reminiscent of the silence of the Church during the Holocaust." D.D. Guttenplan, Rabbi Asks Support of O'Connor, Newsday, July 21, 1989 at 8, in the Affidavit of Kevin T. Baine, sworn to on October 26, 1991 ("Baine Aff."), Exh. A.
On August 26, 1989, Cardinal Glemp, who is the Primate of Poland, delivered a homily during a mass at Jasna Gora in Czestochowa, Poland. An English translation of the homily prepared by Origins, the CNS Documentary Service, is attached as an appendix to this Opinion. The translation indicates that in his homily Cardinal Glemp described the protest at the convent as follows:
The Carmelite Sisters living beside the camp in Auschwitz wanted and want to be a sign of that human solidarity which includes the living and the dead. Do you not see, esteemed Jews, that intervention against them injures the feelings of all Poles and the sovereignty we gained with such difficulty? Your power is the mass media, which is at your disposal in many countries. Let them not serve to inflame anti-Polish sentiment.
According to the translation, Cardinal Glemp then made the following statement upon which this libel and defamation action is grounded:
Recently, a detachment of seven Jews from New York attacked the convent at Auschwitz. To be sure, because they were restrained, it did not result in the killing of the sisters or the destruction of the convent; but do not call the aggressors heroes.
The mass was attended by some 100,000 people, and Cardinal Glemp's remarks received attention in media reports throughout the world.
On September 5, 1989, Alan M. Dershowitz, Esq., a professor at Harvard Law School and Plaintiff's counsel in this action, sent a letter to Cardinal Glemp which informed him that if he arrived in the United States he would be served with a complaint and required to appear in court to answer charges that he had defamed Rabbi Weiss.
On November 21, 1989, Mr. Dershowitz, on behalf of Rabbi Weiss, brought a criminal charge of defamation against Cardinal Glemp in the Regional Court in Czestochowa, Poland, based on the above-quoted language as it appeared in the original Polish. Thereafter, Mr. Dershowitz met ex parte with the Chief Judge and the Magistrate Judge of the Regional Court. On June 19, 1990, the Regional Court issued an opinion which dismissed Rabbi Weiss's complaint, giving a number of reasons other than those related to jurisdiction. Rabbi Weiss appealed the Regional Court's decision to the Province Court in Czestochowa, and Mr. Dershowitz was permitted by the Province Court to submit additional material in support of Rabbi Weiss's claim. On May 13, 1991, the Province Court affirmed the Regional Court's dismissal and assessed costs against Rabbi Weiss.
As early as August 1991, Cardinal Glemp had planned a pastoral visit to various parts of the United States arranged in part through Archbishop Maida of Detroit. See Glemp Aff., Exh. 3.
On September 25, 1991, Cardinal Glemp visited the Catholic diocese in Albany, New York. Upon his arrival in Albany, Cardinal Glemp was scheduled to attend a prayer service in the Cathedral of the Immaculate Conception, and then to meet with Jewish leaders on the premises of Cathedral. At around 10:50 a.m., Cardinal Glemp left the Cathedral Rectory in a procession to the Cathedral itself. He was flanked by Bishop Howard Hubbard, the Bishop of the Albany Diocese and Father Randall Patterson, the Chancellor of the Diocese, and followed by a retinue of other prelates. As the procession turned onto the sidewalk, a process server, Aline M. Frisch, approached Cardinal Glemp and attempted to serve the summons and complaint in this action. The first part of this motion is addressed to that event.
A. Affidavits Filed in Connection with this Motion
In support of his motion to dismiss for insufficiency of service of process, Defendant submitted affidavits of Cardinal Glemp, Father Patterson,
and David E. Scott, a reporter for the Albany diocesan newspaper Evangelist. In opposition to the motion, Plaintiff submitted affidavits of Aline M. Frisch and Renee E. Lewis, licensed process servers; Steven Jacobs, a free-lance photographer; and Rabbi Weiss.
In his affidavit, Cardinal Glemp acknowledges that during the procession he saw a hand extending papers toward him, but states that he had no idea what the papers were. He assumed the papers were leaflets or fliers being passed out on the street. He states that the papers never touched him. Cardinal Glemp acknowledges that he surmised Rabbi Weiss might try to file a complaint against him during his visit to the United States based on the statements he had made in the homily. He states, however, that at the time it did not occur to him that someone was attempting to give him official court papers, and that no court papers were in fact given to him. Glemp Aff., PP4-6. Cardinal Glemp did not appear at the February 11, 1992 hearing before this Court.
Father Patterson's supporting affidavit is to a similar effect, although he acknowledges seeing Mrs. Frisch with the paper, saying, "No, no," and raising his right hand, at which point he says the paper brushed against his right forearm and fell to the ground. He states that the paper never touched Cardinal Glemp and that he did not think at the time that it was any type of court paper. Affidavit of Father Randall Patterson, sworn to on October 21, 1991, PP6-8.
Mr. Scott's supporting affidavit indicates that he was standing 8 to 10 feet away from Cardinal Glemp when he saw a woman lunge toward Cardinal Glemp. He stated he could see that the paper never touched Cardinal Glemp; he did not hear the woman say anything; and it never entered his mind that she was attempting to deliver any official document to Cardinal Glemp. Affidavit of David E. Scott, sworn to on October 18, 1991, PP3-7.
In her opposing affidavit, Mrs. Frisch states that as Cardinal Glemp approached her outside of the Rectory, she said in a loud clear voice, "Cardinal Glemp"; after she spoke his name, Cardinal Glemp turned toward her; she "then said, also in a loud clear voice, 'I am an officer of the Court. I have legal papers for you'"; as she said these words, she was approximately one foot away from Cardinal Glemp, looking directly at him, making eye contact with him, and extending her right hand in which she held the summons and complaint in a legal blueback and folded; as she attempted to place the summons and complaint between Cardinal Glemp's left arm and his upper torso, she heard someone, possibly Cardinal Glemp, say, "No, no"; although she was less than one foot away from Cardinal Glemp and his entourage, she did not hear anyone say anything else; she saw the papers drop to the ground, due, she believes, to the priest on Cardinal Glemp's left knocking them to the ground with his hand; and she saw "someone in the entourage, who I believe was this same priest, pick the papers up off the ground and proceed with the Cardinal and others across the street and into the Cathedral." Affidavit of Aline M. Frisch, sworn to on November 18, 1991, PP3-15.
In her affidavit in opposition, Ms. Lewis states that she accompanied her colleague, Ms. Frisch to Albany to serve process on Cardinal Glemp; as Cardinal Glemp approached, she heard Ms. Frisch call out his name, "Cardinal Glemp"; she was approximately six feet from Cardinal Glemp, and Ms. Frisch was approximately one foot away from him; she heard Ms. Frisch say to him, "I am an officer of the Court. I have legal papers for you"; she saw Ms. Frisch attempt to place the papers between Cardinal Glemp's arm and his upper body and heard someone, possibly Cardinal Glemp himself, say "No, no, no"; she did not hear Cardinal Glemp or any of the persons in his entourage say anything else; she saw the priest to Cardinal Glemp's left put out his hand and knock the papers to the ground; she saw someone in the entourage then pick up the papers; and after the entourage entered the Cathedral, she returned to the place where service had been made to make sure that the papers had indeed been picked up, and there were no papers on the ground. Affidavit of Renee E. Lewis, sworn to on November 19, 1991, PP3-14.
In his opposing affidavit, Mr. Jacobs states that on September 25, 1991, he was photographing Cardinal Glemp's visit to Albany; while waiting outside the Cathedral, Mrs. Frisch told him that she was going to serve a lawsuit on Cardinal Glemp; when Cardinal Glemp emerged from the Rectory, he was standing to the left of Mrs. Frisch, no more than 15 feet from her and Cardinal Glemp; Mrs. Frisch said something to Cardinal Glemp, although he does not remember what; he saw Cardinal Glemp look at Mrs. Frisch and at the paper she was trying to hand him; someone said, "No, no, no"; he saw an arm swat the papers to the ground; he believes someone from Cardinal Glemp's entourage knocked the papers to the ground; and when he left the Cathedral 30 minutes later, there were no papers on the sidewalk.
In his affidavit, Rabbi Weiss states that on September 16, 1991, he wrote a letter to Cardinal Glemp informing him that "unless there is a clear disassociation from the specific contents of your homily," he would cause papers to be served on Cardinal Glemp upon his arrival in the United States; he tried unsuccessfully to fax the letter to Cardinal Glemp before his departure for the United States, but he did fax the letter to the Polish Embassy, the Polish Press Agency, and the Solidarity newspaper; and on September 20, 1991, Rabbi Weiss went to Washington, D.C. where, during a peaceful demonstration, he saw Cardinal Glemp, called out to him, and told him he had papers for him and would serve them on him during his visit. Affidavit of Rabbi Avi Weiss, sworn to on November 18, 1991, PP3-6.
8. Defendant's Supplemental Affidavits
On December 10, 1991, Defendant's counsel filed a supplemental affidavit in further support of the motion to dismiss, stating that after filing the motion to dismiss, he received a copy of a videotape provided by Channel 10, WTEN, of Albany, New York. The videotape contained raw video footage of the attempt to serve Cardinal Glemp with process and an accompanying audio portion. Defendant's counsel stated that, contrary to Mrs. Frisch's and Ms. Lewis's affidavits, the videotape demonstrated that Ms. Frisch did not say, "I am an Officer of the Court. I have legal papers for you." Rather, the videotape showed that Mrs. Frisch said, "You want this for the . . .," at which point a male voice stated, "No." Supplemental Affidavit of Kevin T. Baine, sworn to on December 11, 1991 ("Baine Supp. Aff."), PP2-3.
B. Testimony At the February 11 Hearing
At the hearing, counsel agreed that Plaintiff had the burden of proof to show proper service of process.
On direct examination, Mrs. Frisch testified that she has been a licensed process server for 12 years; she is the owner of M. Frisch Process Servers; and she has served over 500 summonses and complaints. She testified that in order to serve Cardinal Glemp, she travelled to Albany with Rabbi Weiss and Ms. Lewis, leaving at about 5 a.m. on September 25, 1991.
In her direct testimony, Mrs. Frisch described the actual service of process as she had in her earlier affidavit, except that she stated that Cardinal Glemp said, "No, no, no"; Ms. Lewis gave her the "thumbs up" signal after she served the summons; she saw a priest with white hair "holding the same papers that were swatted down on the sidewalk as he was walking up the church steps" into the Cathedral; and her "Affidavit of Service" said service occurred at 10:15 a.m.
On cross examination, Ms. Frisch stated she had touched Cardinal Glemp with the summons and complaint; the papers were stuck between his left arm and torso; and the papers were swatted down a few seconds later by someone. She stated she did in fact tuck the papers between Cardinal Glemp's arm and body, and in doing so she "felt" his body. Mrs. Frisch was then shown a photograph of her holding the summons and complaint, which was marked as Defendant's Exhibit 1. In the photograph, the papers are resting on the arm of a priest [Father Patterson], and it appears she is releasing the papers, as her thumb is in a raised position. Mrs. Frisch maintained she was in fact holding the papers with her four fingers and she was about to tuck the papers between Cardinal Glemp's arm and torso. She also stated that although her affidavit filed in opposition to this motion states that service occurred around 10:45 a.m., her "Affidavit of Service" stating the time as 10:15 a.m. is correct. She acknowledged she had not seen anyone pick up the summons and complaint from the ground, although her affidavit in opposition stated she had seen someone pick up the papers. Upon his being brought into the courtroom, she identified Father Patterson as the priest who she said was holding the papers as he walked up the steps to the Cathedral. Mrs. Frisch was then shown the Channel 10 videotape, which was marked as Defendant's Exhibit 4. She acknowledged that the videotape depicted where and when the service of process occurred and that at one point it depicts her arm extended to make service of process.
Ms. Lewis's direct testimony also followed closely the statements made in her affidavit. She stated that Mrs. Frisch, who is her regular contractor for process service work, placed the papers between Cardinal Glemp's left elbow and body and that the papers remained there for several seconds; she then saw the papers hit the ground; and before she was able to look up, she saw a hand come down and pick them up.
Testifying for the defendant, Mr. Cavanaugh stated he was employed by WTEN Tv in Albany as a videographer and was assigned to cover the events related to Cardinal Glemp's visit on September 25, 1991; he used a Sony SP Betacam with both a stick microphone and a shotgun microphone attached thereto which he operated wide open on manual mode; those microphones picked up sounds of traffic, people walking, an umbrella opening, as well as voices; he filmed the scenes shown on the videotape marked as Defendant's Exhibit 4; he was four to five feet away at the time at which the piece of paper and Mrs. Frisch's arm appear on the videotape; he heard a male voice saying, "No, no"; the voice he heard before that was the woman who was holding the subpoena; he recognized it because he had spoken to the woman earlier; the microphones were positioned in such a way as to pick up whatever Mrs. Frisch said while she held out the paper and immediately before that event; and Mrs. Frisch was speaking in a normal tone.
On cross examination, Mr. Cavanaugh acknowledged that at the time he was filming the event, he was not aware Mrs. Frisch was speaking as she spoke, but became so aware by reviewing the film afterwards. He stated, however, that the microphones would be pointed at whatever he was shooting or wherever the camera is pointing towards; the range of the camera is twelve feet; and although a voice might be less "legible" [sic - "audible"], the microphone would still pick up a voice of a person whose back was turned to the camera. Mr. Cavanaugh stated that each microphone was recorded on a different audio track, and the videotape marked as Defendant's Exhibit 4 contained a merged version of the two separate audio tracks as a normal production procedure when making VHS dubs. The witness acknowledged that in listening to the tape he had been unable to discern the words spoken by the woman but, after adjusting the treble and base, he thought maybe she said "Corbett" or "Court." He maintained he knew that it was Mrs. Frisch's voice from his knowledge of how his equipment performs and his familiarity with her voice from speaking to her earlier.
On redirect examination, Mr. Cavanaugh testified that if Mrs. Frisch had said, "Cardinal Glemp, I am an Officer of the Court. I have legal papers for you," his sound equipment would have picked all of that up.
After this testimony, the defendant offered Exhibit 4 in evidence, and Plaintiff's counsel objected on the grounds that because the two audio tracks had been merged, the witness was not in a position to verify that the tracks had not been altered. Plaintiff's counsel acknowledged having stipulated that the videotape was admissible evidence, but stated that at the time of the stipulation they had not known the two audio tracks had been merged. The Court admitted Exhibit 4 for a limited purpose, namely, to determine whether there had been sufficient time for Mrs. Frisch to make the statements she testified she made, but not for the content of the words spoken on the merged audio track. The Court ...