Danius v. Sun Tv Network Ltd.

Danius v. Sun TV Network, Ltd., 

.
STATE OF NORTH CAROLINA                          IN THE GENERAL COURT OF
                                                          JUSTICE
COUNTY OF MECKLENBURG                            SUPERIOR COURT DIVISION
                                                        09 CVS 18696
CHRISTY X. DANIUS and LEEMA
PILLAI,

             Plaintiffs,

      v.                                             ORDER & OPINION

SUN TV NETWORK LIMITED, CNN-IBN,
NEW DELHI TELEVISION, LTD., and
STAR INDIA PRIVATE LIMITED,

             Defendants.


      Harrington Law, P.C. by James M. Harrington for Plaintiffs.

      Fletcher & Rhoton, P.A. by John W. Fletcher, III for Defendant New Delhi
      Television, Ltd.

Murphy, Judge.
      THIS MATTER is before the Court on New Delhi Television, Ltd.’s (“NDTV”)
Motion to Dismiss.
      Having considered the Court file, the parties’ briefs and other submissions,
the Court GRANTS NDTV’s Motion to Dismiss.
                                            I.
                              PROCEDURAL HISTORY
      {1}    On August 7, 2009, Plaintiffs filed this action against NDTV and
others for slander per se arising from injuries sustained by Plaintiff Christy X.
Danius’ then-pregnant wife, Smalin Jenita, in an automobile accident on July 31,
2007. (Compl. ¶ 13.)
      {2}    Plaintiffs filed their First Amended Complaint on November 3, 2009.
      {3}    On May 27, 2010, this case was designated as a mandatory complex
business case and assigned to this Court.
      {4}    On June 1, 2010, NDTV’s counsel entered a Notice of Limited
Appearance strictly for purposes of monitoring the status of the case.
      {5}    On September 27, 2010, Plaintiffs filed a Notice of Return of Service
upon NDTV in India.
      {6}    On October 1, 2010, NDTV filed its Motion to Dismiss for lack of
personal jurisdiction and forum non conveniens pursuant to North Carolina Rule of
Civil Procedure 12(b)(2) and North Carolina General Statutes section 1-75.12(a).
      {7}    Plaintiffs did not respond to NDTV’s Motion to Dismiss or otherwise
object to the relief requested within the timeframe allowed under the General Rules
of Practice and Procedure for the North Carolina Business Court. The Court
granted NDTV’s Motion to Dismiss on November 2, 2010.
      {8}    On November 3, 2010, Plaintiffs filed a Response to Defendant NDTV’s
Motion to Dismiss, and also filed a Motion under Rule 60(b)(1) seeking relief from
the Court’s November 2, 2010 Order.
      {9}    On February 7, 2011, attorney Adam Finkel of the law firm
Sabharwal, Nordin & Finkel moved the Court for admission pro hac vice on behalf
of NDTV. The Court granted Mr. Finkel’s motion, as amended, on March 2, 2011.
      {10}   On August 10, 2011, the Court granted Plaintiffs’ Rule 60(b)(1) Motion
and vacated its prior Order dismissing claims against NDTV.
      {11}   On August 12, 2011, the Court issued its Order and Opinion granting
Defendant Sun TV Network Limited’s (“Sun TV”) Motion to Dismiss for lack of
personal jurisdiction pursuant to Rule 12(b)(2). See Danius v. Sun TV Network,
Ltd., 

 (N.C. Super. Ct. Aug. 12, 2011), http://www.ncbusinesscourt.
net/opinions/2011_NCBC_31.pdf.
      {12}   On August 24, 2011, Plaintiffs filed a Notice of Supplemental
Authority citing the United State Supreme Court’s opinion in Goodyear Dunlop
Tires Operations, S.A. v. Brown, 

 (2011), wherein the Court rejected
the North Carolina Court of Appeals’ stream of commerce analysis as outlined in
Brown v. Meter, 

, 

 (2009). Plaintiffs had previously
relied upon the holding of Brown v. Meter in support of their claims.
       {13}   On August 25, 2011, NDTV filed its Reply Memorandum of Law in
Further Support of its Motion to Dismiss.
                                             II.
                                   FINDINGS OF FACTS
       {14}   NDTV is a limited corporation organized and existing under the laws
of the country of India and having its principal place of business in New Delhi,
India. (Compl. ¶ 5.)
       {15}   NDTV is a television network originating in India, the broadcasts of
which are transmitted and sold in the United States through subscription satellite
television services and via the Internet. (Compl. ¶ 16.)
       {16}   NDTV does not directly broadcast its programming into the United
States, but instead contracts with DirecTV, a satellite subscription service, and an
internet-based IPTV network, TV-Desi, LLC (“TV-Desi”). (Def.’s Ex. 1 ¶ 4.) NDTV
does not contract directly with any subscribers in North Carolina. (Def.’s Ex. 1 ¶ 4.)
NDTV does not control where or to whom either DirecTV or TV-Desi provides
subscription services in the United States. (Def.’s Ex. 1 ¶¶ 6–7.)
       {17}   In their Complaint, Plaintiffs allege that NDTV caused certain
defamatory statements about Plaintiffs and their family to be “distributed
throughout the United States via satellite and streaming Internet connections,
beginning November 21, 2007.” (Compl. ¶ 71.)
       {18}   Plaintiffs allege that NDTV’s story, entitled “NRI1 Grooms Turn Gory
Assaulters,” negligently and falsely reported that Plaintiffs committed “foul play”
against Danius’ wife, Smalin Jenita, as a result of a dowry dispute and that this
report “continu[ed] to air” at least until the time of filing of the Plaintiffs’ First
Amended Complaint in November, 2009. (Compl. ¶¶ 72–73.)
       {19}   Plaintiffs contend that jurisdiction over NDTV is proper under section
1-75.4 of the North Carolina General Statutes because this action claims personal
injury within North Carolina arising out of an act or omission outside the state by


1 As Plaintiffs explain, “NRI” is an Indian media acronym for “non-resident Indian,” i.e., an

expatriate.
NDTV and because, at or about the time of injury, solicitation or services were
carried on within North Carolina on behalf of NDTV. (Compl. ¶ 10.) Plaintiffs
further contend that NDTV “purposefully directs [its] news stories to [North
Carolina] in an attempt to transact business with the large Indian and IndianAmerican population in this state.” (Compl. ¶ 12.)
       {20}   NDTV has never conducted direct business transactions in North
Carolina, or maintained an office or agent for the transaction of business in the
state, or leased or owned property here, or designated an agent for service of process
in the state. (Def.’s Ex. 1 ¶ 3.)
                                            III.
                                        ANALYSIS
       {21}   NDTV filed its Motion to Dismiss for lack of personal jurisdiction and
forum non conveniens pursuant to North Carolina Rule of Civil Procedure 12(b)(2)
and North Carolina General Statutes section 1-75.12(a).
       {22}   NDTV argues that it lacks the requisite contacts with North Carolina
to establish personal jurisdiction in this forum, and that the forum is grossly
inconvenient to NDTV and many, if not all, of the necessary witnesses.
       {23}   Where a defendant’s motion to dismiss for lack of personal jurisdiction
pursuant to Rule 12(b)(2) is supported by a sworn affidavit unanswered by the
plaintiff, the court may only accept as true and controlling those of the plaintiff’s
allegations that are uncontroverted by the defendant’s affidavit, and must accept as
true those sworn statements of the defendant that are uncontroverted by the
plaintiff’s allegations. Dailey v. Popma, 

, 

(2008).2
       {24}   When evaluating personal jurisdiction, a trial court must engage in a
two-step inquiry. Cameron-Brown Co. v. Daves, 

, 

 (1986).

2 Here, NDTV filed the sworn affidavit of Anoop Singh Juneja, Associate Vice President

(Legal) and Company Secretary for NDTV in support of its Motion to Dismiss. (See Def.’s
Ex. 1.) Plaintiffs do not contest the material facts as stated in NDTV’s sworn affidavit.
      {25}   First, a basis for jurisdiction must exist under North Carolina’s long-arm statute, section 1-75.4 of the North Carolina General Statutes. Cameron-Brown, 

, 

; Ash v. Burnham Corp., 

, 

 (1986).
      {26}   North Carolina’s long-arm statute allows North Carolina courts to
exercise personal jurisdiction in “any action claiming injury to person or property
within this State arising out of [the defendant’s] act or omission outside this State”
if “solicitation or services activities were carried on within this State by or on behalf
of the defendant.” N.C. GEN. STAT. § 1-75.4(4)–(4)(a) (2012).
      {27}   Here, Plaintiffs’ allegations do not establish that any services activities
were carried on within North Carolina on NDTV’s behalf. Plaintiffs’ Complaint
does not allege any agency or joint-venture relationship between NDTV and any
other service that offers NDTV’s programming to viewers in the United States.
NDTV supplies its programming to DirecTV and TV-Desi pursuant to the terms of
undisclosed contracts. NDTV denies any agency or joint-venture relationship with
either service, characterizing both DirecTV and TV-Desi as independent
contractors. (Def.’s Ex. 1 ¶¶ 6–7.) NDTV denies knowledge of whether its
programming is delivered to subscribers of DirecTV and/or TV-Desi who may be
located in North Carolina. (Def.’s Ex. 1 ¶¶ 4, 6–7.) Plaintiffs do not contest NDTV’s
statement that it has never directly contracted with any subscriber in North
Carolina, nor do they challenge NDTV’s assertion that it has no control over where
DirecTV or TV-Desi subscribers are located within the United States. (See Pls.’ Br.
Opp’n Def.’s Mot. Dismiss 3; Def.’s Ex. 1 ¶¶ 3–4, 6–7.) From a review of the
Complaint and Defendant’s sworn affidavit (Def.’s Ex. 1), it is unclear to the Court
whether either DirecTV or TV-Desi acted on behalf of NDTV or on its own behalf to
deliver NDTV programming to subscribers in North Carolina. The Court, therefore,
cannot conclude as a matter of law that there is a basis for personal jurisdiction
under North Carolina’s long-arm statute.
      {28}   Rather than ending its analysis here, the Court considers the second
inquiry: “whether the defendant has the minimum contacts with North Carolina
necessary to meet the requirements of due process.” Robbins v. Ingham, 

, 

 (2006) (citation omitted).
      {29}   State courts may exercise personal jurisdiction over an out-of-state
defendant who has “certain minimum contacts with [the state] such that the
maintenance of the suit does not offend ‘traditional notions of fair play and
substantial justice.’” Int’l Shoe Co. v. Washington, 

 (1945)
(quoting Milliken v. Meyer, 

 (1940)).
      {30}   International Shoe’s progeny have differentiated between specific,
case-linked jurisdiction and general jurisdiction. See Helicopteros Nacionales de
Colombia, S.A. v. Hall, 

 (1984); Perkins v. Benguet Consol. Mining Co.,

 (1952).
      {31}   Specific jurisdiction depends on a relationship between the underlying
controversy and the forum, the principal question being whether the specific
activity or occurrence giving rise to the claim took place in the forum state and
should, therefore, be subject to the state’s regulation. Goodyear Dunlop Tires
Operations, S.A. v. Brown, 

 (2011). As the Supreme Court
noted in Goodyear, specific jurisdiction involves an inquiry “whether there was
‘some act by which the defendant purposefully avail[ed] itself of the privilege of
conducting activities within the forum State, thus invoking the benefits and
protections of its laws.’” 

 at 2854 (quoting Hanson v. Denckla, 

(1958)).
      {32}   Here, the Court need not address specific jurisdiction to decide this
matter because Plaintiffs concede that the Court lacks specific jurisdiction as to
NDTV. (See Pls.’ Br. Opp’n Def.’s Mot. Dismiss 2.) All parties agree that the
allegedly slanderous news report occurred in India, not in North Carolina.
      {33}   “A court may assert general jurisdiction over foreign . . . corporations
to hear any and all claims against them when their affiliations with the State are so
‘continuous and systematic’ as to render them essentially at home in the forum
State.” Goodyear, 

.
       {34}    Plaintiffs contend that NDTV is subject to general jurisdiction in North
Carolina based on the North Carolina Court of Appeals’ holding in Brown v. Meter
that “the appropriate question . . . is whether the [d]efendant[] [has] ‘purposefully
injected [its] product into the stream of commerce without any indication that [it]
desired to limit the area of distribution . . . so as to exclude North Carolina.’”
Brown, 

, 

 (quoting Bush v. BASF Wyandotte
Corp., 

, 

 (1983)).
       {35}    The Court finds Plaintiffs’ arguments unavailing for the reasons set
forth below.
       {36}    As previously noted, the Brown decision was reversed by the United
States Supreme Court in Goodyear. The Supreme Court explained in Goodyear
that the “[f]low of a manufacturer’s products into the forum . . . may bolster an
affiliation germane to specific [i.e., not general] jurisdiction.” 131 U.S. at 2855
(emphasis in original) (citing World-Wide Volkswagen Corp. v. Woodson, 

 (1980)).
       {37}    In dismissing Plaintiffs’ related slander per se claim against codefendant Sun TV, this Court held that “the ‘stream of commerce’ theory of general
jurisdiction is not properly applied to causes of action other than products liability
claims.” Danius, 

 ¶ 45 (citing Goodyear, 

).3


                          Danius that “[n]o court in North Carolina has ever applied the
3 While this Court noted in

‘stream of commerce’ analysis to a defamation case,” Danius, 

 ¶ 46, there is
precedent in our case law for denying personal jurisdiction as to claims arising from
publication of allegedly defamatory material in a foreign jurisdiction that is subsequently
distributed in North Carolina by independent third parties. Putnam v. Triangle
Publications, Inc., 

 (1957). In Putnam, the plaintiff alleged invasion of privacy
and defamation against the defendant, a magazine publisher incorporated in Delaware
with its primary place of business in Pennsylvania. 

. Like NDTV in the present
case, the defendant in Putnam had “no financial interest of any kind in any wholesale or
retail dealer in North Carolina[,] . . . never made any payments to them[,] . . . [and] never
exercised, or attempted to exercise, any control, supervision or direction over the policy,
management or details of the business of these wholesale news dealers or retailers, or their
personnel, or over the methods employed by them for the purpose of promoting the sales of
publications, except to the limited extent that the normal relations between them result in
general advice or suggestions concerning sales methods and distribution.” 

 The Putnam
court added that “[t]hese wholesale news dealers do not hold themselves out to the public or
         {38}   Even if Plaintiffs’ “stream of commerce” arguments applied to a
general jurisdiction analysis of this case, Plaintiffs have not sufficiently alleged that
NDTV has the minimal contacts required to establish general jurisdiction in this
state.
         {39}   This Court has previously addressed personal jurisdiction in
connection with Internet publication of allegedly defamatory statements that a
defendant “knew or should have known would be published or republished in North
Carolina.” Peterson v. Robertson, 

 (N.C. Super. Ct. May 25, 1999),
http://www.ncbusinesscourt.net/opinions/1999%20NCBC%202.htm, rev’d on other
grounds, 

, 

 (2000) (unpublished opinion). In
Peterson, this Court rejected the plaintiff’s argument that “making slanderous or
libelous statements that may become part of the information base searchable on the
Internet can subject a nonresident to jurisdiction in any forum[, n]or does the fact
that [defendant’s] television program is broadcast worldwide subject him to
jurisdiction in any forum.” Peterson, 

.4
         {40}   In reversing the North Carolina Court of Appeals’ decision in Brown v.
Meter, the Supreme Court of the United States stated that “[u]nder the sprawling
view of general jurisdiction urged by respondents and embraced by the North


the trade as being agents or representatives of defendant, and they do not do business [o]n
its behalf.” 

4 The North Carolina Court of Appeals has since adopted a test set forth by the federal

Court of Appeals for the Fourth Circuit for deciding personal jurisdiction over Internet-based tort (i.e., defamation) claims. Popma, 

, 

. Under
this test, a North Carolina court may exercise personal jurisdiction over an out-of-state
defendant who “(1) directs electronic activity into the State, (2) with the manifested intent
of engaging in business or other interactions within the State, and (3) that activity creates,
in a person within the State, a potential cause of action cognizable in the State’s courts.”
Havey v. Valentine, 

, 

 (2005). The Court
here notes that the Havey test, dependent as it is upon the relationship between the
defendant’s manifest intent and the plaintiff’s injury, appears, under Goodyear, to be one of
specific, not general, jurisdiction. See Goodyear, 131 U.S. at 2855. Therefore, the Court
does not find the Havey test appropriate to a general jurisdiction analysis. While Plaintiffs
identify a cause of action arising from defamatory statements allegedly made available to
North Carolina residents via the Internet, NDTV’s Affidavit plainly refutes any allegation
that NDTV itself directed such transmissions into North Carolina—by means of satellite or
Internet—or that NDTV ever intended to transact business in the state.
Carolina Court of Appeals, any substantial manufacturer or seller of goods would be
amenable to suit, on any claim for relief, wherever its products are distributed.”
Goodyear, 

 (emphasis added).
      {41}   The facts before this Court suggest that NDTV’s contacts with North
Carolina are attributable to mere distribution of its communications by a third
party within North Carolina. Plaintiffs do not challenge NDTV’s denial that this
distribution was the result of intentional or targeted conduct by NDTV. The Court,
therefore, declines to find general jurisdiction over NDTV based on contacts that
are, at best, highly attenuated. See Goodyear, 131 S. Ct. at 2856–57; see also
Danius, 

 ¶¶ 51–53.
      {42}   The Court holds, therefore, that jurisdiction over NDTV in this case
does not comport with the due process requirements of general jurisdiction.
      {43}   In addition to challenging personal jurisdiction, NDTV has moved for
dismissal on forum non conveniens grounds pursuant to North Carolina General
Statutes section 1-75.12(a).
      {44}   Section 1-75.12(a) provides that a North Carolina trial court may, in
its sound discretion, stay the action on defendant’s motion if the defendant consents
to suit in another jurisdiction that the judge finds would provide “a convenient,
reasonable, and fair place of trial,” and the judge also finds “that it would work
substantial injustice for the action to be tried in a court of this State.” N.C. GEN.
STAT. § 1-75.12(a).
      {45}   Having concluded that it lacks both personal and general jurisdiction
over NDTV, the Court does not reach this alternative basis for dismissal.
      {46}   For the foregoing reasons, the Court GRANTS NDTV’s Motion to
Dismiss.
                                        IV.
                                  CONCLUSION
      {47}   The Court concludes that it lacks jurisdiction over Defendant NDTV
and therefore, all claims against NDTV in Plaintiffs’ Complaint are hereby
DISMISSED with prejudice.
         ORDERED this the 22nd day of March, 2012.
      SO ORDERED,