United States District Court, D. Massachusetts
November 13, 2014
HAYAT SINDI, Plaintiff,
SAMIA EL-MOSLIMANY and ANN EL-MOSLIMANY, Defendants
For Hayat Sindi, Plaintiff: David H. Rich, Michael T. Allen, LEAD ATTORNEYS, Todd & Weld, Boston, MA.
For Samia El-Moslimany, Ann El-Moslimany, Defendants: George R. White, Jr., Morrison Mahoney LLP, Boston, MA.
REPORT AND RECOMMENDATION ON DEFENDANTS' MOTION TO DISMISS OR TRANSFER
Judith Gail Dein, United States Magistrate Judge.
In this action, the plaintiff Hayat Sindi (" Sindi") contends that the defendant Samia El-Moslimany (" Samia") and her mother Ann El-Moslimany (" Ann") have engaged in a campaign to discredit Sindi personally and professionally because they believe that Sindi was the cause of Samia's marital difficulties. This " campaign" has included, without limitation, the creation of blogs focusing on Sindi, the sending of emails and other online communications to various audiences, and the defendants' appearance at conferences and public events which Sindi was attending in order to distribute leaflets about her. In her complaint, Sindi has brought claims for defamation, libel and slander (Count I), tortious interference with contractual relationships (Count II), tortious interference with prospective business relationships (Count III), intentional infliction of emotional distress (Count IV), and for a permanent injunction (Count V).
This matter is presently before the court on the defendants' motion to dismiss the complaint or, alternatively, to transfer venue. (Docket No. 39). By their motion, the defendants argue that the complaint should be dismissed, with prejudice, pursuant to Fed.R.Civ.P. 12(b)(2) for lack of personal jurisdiction; pursuant to Fed.R.Civ.P. 12(b)(3) for improper venue; pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted; and pursuant to Fed.R.Civ.P. 41(b) because the complaint is so verbose, repetitive, argumentative and confusing that the defendants cannot fairly be expected to respond to it. Ann also moves to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(5) for insufficient service of process. In the alternative, Samia and Ann move to transfer venue to the United States District Court for the Western District of Washington, where they reside, or to Saudi Arabia pursuant to the doctrine of forum non conveniens. Sindi takes issue with the defendants' legal and factual analyses. Both parties have filed extensive pleadings in connection with this motion.
For all the reasons detailed herein, this court concludes that this court can exercise personal jurisdiction over Samia and Ann, that venue is proper in Massachusetts, and that the complaint states a claim for which relief can be granted and is not unduly verbose. This court concludes further that Ann has not been appropriately served with the complaint. Therefore, this court recommends to the District Judge to whom this case is assigned that Ann be dismissed from the case, but that the defendants' motion to dismiss or transfer otherwise be DENIED.
II. STATEMENT OF FACTS
When determining whether a plaintiff has met her burden of proving that in personam jurisdiction exists, the court " accepts properly supported proffers of evidence by a plaintiff as true." Boit v. Gar-Tec Prods., Inc., 967 F.2d 671, 675 (1st Cir. 1992). Moreover, the court must " construe the facts in the light most favorable to the plaintiff[.]" Phillips v. Prairie Eye Ctr., 530 F.3d 22, 24 (1st Cir. 2008). Similarly, when ruling on a motion to dismiss brought under Fed.R.Civ.P. 12(b)(6), the court must accept as true all well-pleaded facts, and give the plaintiff the benefit of all reasonable inferences. See Cooperman v. Individual, Inc., 171 F.3d 43, 46 (1st Cir. 1999). Applying these standards to the instant case, the relevant facts are as follows.
Sindi is a scientist, entrepreneur, and philanthropist who was born in Saudi Arabia. (Compl. ¶ ¶ 7, 8). She is a dual citizen of Saudi Arabia and the United Kingdom, and she maintains residences in both countries. (Sindi Aff. ¶ 3). Sindi has attested that she has been a resident of Massachusetts since 2006, when she was invited to participate as a Visiting Scholar at Harvard University at the laboratory and research group of Professor George Whitesides. (Id. ¶ 2). As confirmed by her landlord, Sindi has an apartment in Boston, Massachusetts and, as confirmed by the bank, she has maintained a bank account at the Cambridge Trust Company since 2007. (Id. Ex. 1; Phillips Aff. ¶ ¶ 2-4). While the defendants challenge the amount of time Sindi actually spends in the United States, they do not assert that she lives elsewhere in this country. (See Defs. Reply).
Sindi has won awards and honors from the British House of Commons, Cambridge University, the Massachusetts Institute of Technology, UNESCO, Harvard Business School, and the U.S.A. Science and Engineering Festival, and she has been named as the inventor or co-inventor of nine patents. (Compl. ¶ 7). She is the founder or co-founder of several companies, including Sonoptix Co. in the United Kingdom and Diagnostics for All, an American company. (Id. ¶ ¶ 14, 15). Of particular relevance in the instant case, Sindi is the founder and CEO of a Saudi Arabian corporation known as the Institute for Imagination and Ingenuity, Inc., and of an American company by the same name (the American company being referred to herein as " i2 Institute"). (Sindi Supp. Aff. ¶ ¶ 2-3). This dispute centers, in large part, on the alleged efforts undertaken by the defendants to convey negative information about Sindi to persons either involved with the i2 Institute or who Sindi hoped to involve in the i2 Institute.
The evidence in the record establishes that the i2 Institute is a Delaware corporation headquartered in Massachusetts. (Sindi Aff. ¶ 4). As Sindi attested:
the i2 Institute invites applications for fellows -- all of whom are already accomplished inventors, scientists, or entrepreneurs -- from whom it selects a small group. These i2 Institute Fellows then come to Boston in order to learn the best practices of American entrepreneurship in conjunction with the Harvard Innovation Laboratory, the MIT Media Lab, and other local non-profit organizations. The goal is to expose the i2 Fellows to the creativity and dynamism that characterizes the culture of start-up companies, technological and scientific innovation, and venture capital investment so characteristic of Boston.
(Id. ¶ 6). Its Articles of Incorporation list the i2 Institute as a Delaware corporation, and Sindi as the sole incorporator, with an address in Boston. (Id. ¶ 4 & Ex. 2). In July 2013, when the first group of fellows arrived in Boston to begin training, the i2 Institute was registered as a corporation in Massachusetts (it allegedly not being necessary to register in Massachusetts before then). (Id. ¶ 8).
Sindi has submitted the affidavit of Herman de Bode, who was the Chairman of the Board of the i2 Institute until approximately July 2013. (de Bode Aff. ¶ ¶ 1, 2). As he attested:
Dr Sindi's activities on behalf of the i2 Institute in the United States are centered in Massachusetts. The i2 Institute solicits applications for fellowships from promising inventors, scientist, and entrepreneurs throughout the Middle East in order to bring them to Boston to participate in intensive training in the best practices of American entrepreneurship. The i2 Institute teaches aspiring businessmen and women to develop American-style business plans, basic skills of finance, as well as the ingredients of successful tech-company startups. The i2 Institute's ultimate mission is to foster economic development and entrepreneurship in the Middle East through this exchange. The fellows return to their home countries to start businesses.
(Id. ¶ 3). Sindi has also submitted the affidavit of Joichi Ito, the Director of the MIT Media Lab. As he attests, he was approached by Sindi to participate in the i2 Institute, which " wished to foster promising technological professionals from the Arab world by bringing them to Massachusetts for training with, among other institutions, MIT." (Ito Aff. ¶ 2). Thus, while the defendants deny that Sindi resides in Massachusetts, this court finds that Sindi has provided " properly supported proffers of evidence" of her residence and work in Massachusetts, which will be accepted as true for present purposes.
See Boit, 967 F.2d at 675.
The Parties' Dispute
According to her complaint, Sindi met Foaud Dehlawi, an information-technology specialist, in November 2010. (Compl. ¶ ¶ 17-18). At the time, Dehlawi was married to Samia. (Id. ¶ 17). Samia is a dual citizen of the United States and Saudi Arabia. (Samia Aff. ¶ 4). She resides in the State of Washington when in the United States. (Id. ¶ 6). Ann also apparently lives in Washington although, as discussed below, her precise address is in dispute. (See id. ¶ 3; Allen Aff. Ex. A).
Sindi contends that in the middle of January 2011, Dehlawi informed her that he was having marital problems and was planning on a divorce. (Compl. ¶ 19). Sindi and Dehlawi continued to have a professional relationship, which was never physical. (Id.). In the course of 2011, however, Samia " became enraged and jealous at the thought that her husband had a romantic engagement with Ms. Sindi." (Id. ¶ 20). Although her conjecture about the relationship allegedly was erroneous, beginning in September 2011, Samia and her mother launched " a relentless campaign of defamation" against the plaintiff. (Id.). Sindi claims that through private emails, online posts commenting on articles written about her, posts on the blog the defendants created called " TrueHayatSindi.BlogSpot.com, " leafleting at events at which Sindi was speaking, and other communications, Samia and Ann have published and spread defamatory statements about Sindi's career and achievements. (E.g., id. at ¶ ¶ 23, 24, 31, 32, 34, 37, 45). While the defendants deny that their statements are actionable, with limited exceptions, they do not dispute that they engaged in the challenged conduct.
The statements to which Sindi objects include, without limitation, allegedly false accusations that she bought or plagiarized her PhD, that she has committed " unethical actions" in connection with her entrepreneurial and business enterprises, that she has lied about her business experience, that she has lied about her age to qualify for awards for " young" professionals and that she is an " academic fraud." (Id. ¶ ¶ 27, 47, 57). According to Sindi, there have been frequent violent and/or abusive responses to Samia's various publications. (Id. ¶ 50). For example, in response to Samia's facebook postings about Sindi, one commenter stated that Sindi " could find herself in the street being stoned or jailed . . . ." (Id.).
According to Sindi, the defendants launched their campaign at a time when she was forming the i2 Institute, and they greatly interfered with her ability to raise funds and attract supporters for her business in Massachusetts. While some of the defendants' actions took place outside of Massachusetts, as detailed herein, they largely were designed to harm Sindi in the Commonwealth, and had adverse impacts on Sindi's professional life and relationships in Massachusetts. (See Pl. Opp. at 5-9).
In particular, but without limitation, the El-Moslimanys personally appeared at the Conference of the Council for the Advancement of Muslim Professionals (" CAMP") in Princeton, New Jersey, on or around April 4, 2012, where Sindi was speaking and soliciting investors. (Compl. ¶ 44). There they spread banners accusing Sindi of being a fraud, and directed onlookers to their website-blog, TrueHayatSindi.BlogSpot.com. (Id. ¶ 45). They also distributed leaflets making accusations about Sindi, and wrote to the CAMP organizers challenging Sindi's professional qualifications and reputation. (Id. ¶ ¶ 44, 47). Samia continued her campaign at the Nifty Fifty conference held in Washington, D.C. during the period April 27-29, 2012. (Id. ¶ 52). Sindi was a speaker at the conference, which was intended to promote interest in science and engineering among middle and high school students. (Id.; Sindi Aff. ¶ 16). During the conference, Samia handed out disparaging leaflets about Sindi and directed people to her website-blog, which continued to post negative statements about Sindi. (Id. ¶ ¶ 53-55). Sindi promoted the i2 Institute at these appearances, and it is her contention that the defendants' conduct interfered with her ability to launch and promote the Institute. (See, e.g., Sindi Aff. ¶ 16).
Sindi returned to Massachusetts in April 2012, in between the conferences. While in Massachusetts, she received harassing phone calls from Samia, which resulted in Sindi filing a report with the Boston Police. (Id. ¶ 14, Ex. 3). In addition, during this time Samia apparently visited Sindi's town of Needham, Massachusetts. Sindi has alleged that Samia " was literally following her around and speaking directly to neighbors near her residence." (Compl. ¶ 49). Such communications allegedly included " the same falsehoods she had published in the past" i.e., " falsely contending that Ms. Sindi was a fraud, among other slanderous statements." (Id.).
Sindi also claims that Samia and Ann have emailed several of her colleagues, including board members of the i2 Institute, to spread their defamatory statements. (Id. at ¶ 57). For example, in or around December 22, 2012, Ann sent an email to the board members of the i2 Institute, which included the same type of accusations as described above. (Id.). She also sent an email to Dr. Ito, Director of MIT's media lab. (Ito Aff. ¶ 3). As Ann apparently wrote in part:
I have done extensive research on Hayat Sindi, finding her personal, professional and academic resume is fraught with complete untruths and exaggeration, calling into question her credentials as a scholar and a professional. I am also the mother of Samia El-Moslimany, a Saudi-American woman whose family has been torn apart by the premeditated and destructive actions of Hayat Sindi.
(Allen Aff. at Ex. A). The email is signed
and the sender's email address is listed as:
Ann El-Moslimany < firstname.lastname@example.org>="">
(Id.). Another lengthy email containing similar accusations about Sindi's personal and professional life was sent to a number of participants in an i2 Institute Conference, which was to be held in Riyadh, Saudi Arabia on February 17, 2014. (Allen Aff. Ex. B at p. 2 of 5). While purporting to come from " Matt Smith, " the tone and content is similar to the other communications from the defendants. In this email, the sender describes Sindi as " an illusion perpetuated by the West-Cambridge, Harvard, National Geographic, the UN." (Id. at p. 3 of 5). It also states therein that " it is important to know that we have personally interviewed everyone mentioned below and we are ready to refer you directly to sources of the information that prove her qualifications are fictional." (Id. (emphasis added); see also id. at Exs. C & D (screenshots of " Tweets" sent to MIT Media Lab, Harvard Innovation Laboratory and apparently an associate of Sindi's challenging Sindi's credentials)). On April 12, 2014, shortly before a court hearing in this case, Sindi's counsel received in Massachusetts an email communication from Samia including the statement " YouCantShutMeUp." (Id. at Ex. E).
Sindi contends that the defendants' actions have harmed her reputation and impaired her ability to solicit donors for the i2 Institute, have disrupted the i2 Institute's partnerships with other Massachusetts non-profit institutions, and have " severely disrupted" the fellowship program. (Sindi Aff. ¶ 17). As Dr. deBode also attests:
In my opinion, Samia and Ann El-Moslimany made it much harder to solicit investors, donors, and other contributors to the i2 Institute and harmed not only Dr. Sindi personally but also placed (and places) her hard work and promotion of the i2 Institute in jeopardy, including her partnerships with other Massachusetts institutions.
(deBode Aff. ¶ 9).
The Saudi Litigation
The parties have also submitted information about litigation between Sindi and Samia in Saudi Arabia. It appears that Samia " petition[ed] the Saudi government Prosecutor to have Dr. Sindi criminally prosecuted for what is similar to 'alienation of affection' or 'criminal conversation.'" (Basalem Aff. ¶ 3). In addition, Sindi brought a claim in Saudi Arabia against Samia which " addresses Dr. Sindi's honor as a Muslim woman." (Id. ¶ 14). It does not appear that either of these lawsuits raises the same claims as those which form the basis of the instant case -- i.e., claims of damage to Sindi's professional reputation. (See also Alim Aff. ¶ 10 (Sindi successfully proved that Samia had made offensive statements via Facebook - the truth of which were irrelevant to the court's finding, and Sindi was found guilty of participating in an illicit relationship with Samia's husband)). In any event, the parties have represented to this court that all cases in Saudi Arabia have been appealed.
Additional facts are set forth below where appropriate.
III. ANALYSIS - MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION
A. Standard of Review
In the instant case, at least one party, Samia, is a citizen of the United States, and, therefore, the federal court can exercise subject matter jurisdiction over this dispute. See Compagnie Nationale Air France v. Castano, 358 F.2d 203, 206 (1st Cir. 1966) (jurisdiction under 28 U.S.C. § 1332 requires citizenship of at least one party). While the defendants challenge Sindi's status as a domiciliary of Massachusetts, there is no requirement that a plaintiff bring an action where she is domiciled. See Piper Aircraft Co. v. Reyno, 454 U.S. 235, 255-56, 102 S.Ct. 252, 266, 70 L.Ed.2d 419 (1981) (plaintiff's contact with chosen forum relevant in connection with motion to transfer, but court recognizes that plaintiff may be nonresident of that forum). Thus, the relevant inquiry in the instant case is whether this court may exercise personal jurisdiction over the defendants.
In order to exercise personal jurisdiction over a defendant, the court must find sufficient contacts between the defendant and the forum to satisfy both the state's long-arm statute and the due process clause of the Fourteenth Amendment. Sawtelle v. Farrell, 70 F.3d 1381, 1387 (1st Cir. 1995); Ticketmaster-New York, Inc. v. Alioto, 26 F.3d 201, 204 (1st Cir. 1994). " [T]he Supreme Judicial Court of Massachusetts has interpreted the state's long-arm statute as an assertion of jurisdiction over the person to the limits allowed by the Constitution of the United States." Phillips v. Prairie Eye Ctr., 530 F.3d 22, 26 (1st Cir. 2008) (quotations and citations omitted). Accordingly, it is appropriate to dispense with the statutory inquiry and " proceed directly to the constitutional analysis[.]" Id.; see also Sawtelle, 70 F.3d at 1388 (" [w]hen a state's long-arm statute is coextensive with the outer limits of due process, the court's attention properly turns to the issue of whether the exercise of personal jurisdiction comports with federal constitutional standards.").
Due process requires the court to determine whether the defendant has maintained " certain minimum contacts" with the forum 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, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1954) (quoting Milliken v. Meyer, 311 U.S. 457, 463, 61 S.Ct. 339, 343, 85 L.Ed. 278 (1940)). Accordingly, " [t]he accepted mode of analysis for questions involving personal jurisdiction concentrates on the quality and quantity of the potential defendant's contacts with the forum." Phillips Exeter Acad. v. Howard Phillips Fund, Inc., 196 F.3d 284, 288 (1st Cir. 1999). " Jurisdiction is proper . . . where the contacts proximately result from actions by the defendant himself that create a substantial connection with the forum State."
Asahi Metal Indus. Co., Ltd. v. Superior Court of Cal. Solano County, 480 U.S. 102, 109, 107 S.Ct. 1026, 1030, 94 L.Ed.2d 92 (1987) (quotations and citations omitted).
The court may exercise two types of personal jurisdiction -- general or specific. " General jurisdiction 'exists when the litigation is not directly founded on the defendant's forum-based contacts, but the defendant has nevertheless engaged in continuous and systematic activity, unrelated to the suit, in the forum state." Mass. Sch. of Law v. Am. Bar Ass'n, 142 F.3d 26, 34 (1st Cir. 1998) ( quoting United Elec., Radio & Mach. Workers v. 163 Pleasant St. Corp., 960 F.2d 1080, 1088 (1st Cir. 1992)). In the instant case, there is no contention that this court has general jurisdiction over the defendants, so this type of jurisdiction will not be discussed further.
" Specific jurisdiction exists when there is a demonstrable nexus between a plaintiff's claim and a defendant's forum-based activities, such as when the litigation itself is founded directly on those activities." Id. " Determining whether the plaintiff has alleged sufficient facts for a finding of specific jurisdiction requires a three-part analysis." United States v. Swiss Am. Bank, Ltd., 274 F.3d 610, 620 (1st Cir. 2001). " An affirmative finding on each of the three elements of the test is required to support a finding of specific jurisdiction." Phillips Exeter Acad. v. Howard Phillips Fund, Inc., 196 F.3d 284, 288 (1st Cir. 1999). First, the court must decide whether the claim underlying the litigation directly " relates to or arises out of the defendant's contacts with the forum." Id. This " relatedness requirement" " focuses on the nexus between the defendant's contacts and the plaintiff's cause of action."
Ticketmaster-New York, 26 F.3d at 206. It ensures that the defendant will not be subject to personal jurisdiction unless its contacts with the forum state caused the alleged harm. See id. at 207.
Second, the court must determine whether the defendant's contacts with the forum " represent a purposeful availment of the privilege of conducting activities in the forum state, thereby invoking the benefits and protections of that state's laws and making the defendant's involuntary presence before the state's courts foreseeable."
Sawtelle, 70 F.3d at 1389 (quotation and citations omitted). " [T]he cornerstones upon which the concept of purposeful availment rest are voluntariness and foreseeability." Id. at 1391. Voluntariness exists when a defendant deliberately has engaged in significant activities within the forum, but not when the defendant's contacts with the forum are " random, fortuitous, or attenuated" or result solely from " the unilateral activity of another party or a third person." Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475-76, 105 S.Ct. 2174, 2183-84, 85 L.Ed.2d 528 (1985) (internal quotations and citations omitted). Foreseeability exists when the defendant " should reasonably anticipate being haled into court there." Id. at 474, 105 S.Ct. at 2183 (internal quotation and citation omitted).
Finally, if the first two parts of the test for specific jurisdiction are fulfilled, the court must determine whether the exercise of personal jurisdiction is reasonable in light of the so-called " Gestalt factors."
Sawtelle, 70 F.3d at 1394. This requires the court to consider " (1) the defendant's burden of appearing; (2) the forum state's interest in adjudicating the dispute; (3) the plaintiff's interest in obtaining convenient and effective relief; (4) the judicial system's interest in obtaining the most effective resolution of the controversy; and (5) the common interests of all sovereigns in promoting substantive social policies." Id. Even when the lawsuit arises out of the defendant's purposefully generated contacts with the forum, the court may decline to exercise personal jurisdiction if doing so would be unreasonable and fundamentally unfair.
See Burger King, 47 U.S. at 476-78, 105 S.Ct. at 2184-85; Ticketmaster-New York, 26 F.3d at 209-10. Applying these principles in the instant case compels the conclusion that this court may appropriately exercise personal jurisdiction over the defendants.
B. Analysis of Personal Jurisdiction Factors
" The requirement that a suit arise out of, or be related to, the defendant's in-forum activities comprises the least developed prong of the due process inquiry."
Swiss Am. Bank, 274 F.3d at 621. This " requirement focuses on the nexus between defendant's contacts and the plaintiff's cause of action." Id. (quotation and citation omitted). " The relatedness test is a 'flexible, relaxed standard.'" Astro-Med, Inc. v. Nihon Kohden Am., Inc., 591 F.3d 1, 9 (1st Cir. 2009) (quotation and citation omitted).
In the instant case, there is evidence that some of the harm Sindi claims arose out of Samia's actions in Massachusetts, such as when she came to Needham, Massachusetts and when she allegedly followed Sindi around. Such conduct in Massachusetts is directly related to the plaintiff's claims. Even more significantly, however, the defendants' conduct allegedly caused injury to Sindi's reputation in Massachusetts -- it allegedly affected her relationship with Massachusetts organizations and interfered with her ability to create relationships between the i2 Institute and these Massachusetts entities. A " defendant need not be physically present in the forum state to cause injury (and thus 'activity' for jurisdictional purposes) in the forum state." Id. at 10 (quotation and citation omitted). " In-forum injury" which is related to the plaintiff's claims is sufficient to satisfy the relatedness requirement. Id.; see also Upromise, Inc. v. Angus, No. 13-cv-12363-DJC, 2014 WL 212598, at *11 (D. Mass. Jan. 21, 2014) (although breach of contract and tortious conduct occurred in Florida, fact that injury was felt in Massachusetts satisfies the " relatedness" requirement). Thus, the first prong of the jurisdictional analysis has been satisfied.
2. Purposeful Availment
" In the context of a defamation suit, the First Circuit has indicated that " '[t]he decisive due process issue . . . is whether the defendants' activities satisfy the purposeful availment requirement.'" Neelon v. Krueger, No. 12-11198-FDS, 2013 WL 2384318, at *5 (D. Mass. May 29, 2013) (quoting Noonan v. Winston Co., 135 F.3d 85, 90 (1st Cir. 1998)). For purposes of a defamation suit, " 'purposeful availment' is determined by where the effects of the defamatory statements are intended to be felt." Cohane v. Nat'l Collegiate Athletic Ass'n., No. 14-10494-RGS, 2014 WL 1820782, at *5 (D. Mass. May 8, 2014) (citing Calder v. Jones, 465 U.S. 783, 788-90, 104 S.Ct. 1482, 1486-87, 79 L.Ed.2d 804 (1984)). Thus, " the focus of the 'purposeful availment' inquiry is whether it 'can be fairly inferred that [defendants] intended the brunt of the injury to be felt' in the forum state." Neelon, 2013 WL 2384318, at *6 (quoting Hugel v. McNell, 886 F.2d 1, 5 (1st Cir. 1989)). The record in the instant case establishes that it can be fairly inferred that the defendants intended their actions to harm Sindi's relationships with business endeavors in Massachusetts. Moreover, Massachusetts is where, in the United States, Sindi " had an established reputation[.]" Hugel, 886 F.2d at 5 (dissemination of false information likely to cause harm where plaintiff had an established reputation). Because the defendants' actions were aimed at impugning that reputation, they were intended to cause harm to the plaintiff in the present forum.
Without belaboring the facts, Ann corresponded directly with Ito, the Director of MIT's Media Lab, with the stated purpose of discrediting Samia's credentials and preventing the development of a business relationship with the Media Lab in Massachusetts. The defendants also sent emails and " tweets" to the Harvard Innovation Laboratory and the MIT Media Lab, both of which are located in Massachusetts, disparaging Sindi. (See Allen Aff. ¶ 2, Ex. C). Given that the defendants intentionally directed their negative comments to actual and potential business associates of Sindi's in Massachusetts, and did so for the apparent purpose of harming Sindi's reputation and preventing Sindi from developing her business here, " the hailing of the defendant[s] into a Massachusetts court to answer for [their] actions was foreseeable, if not inevitable." Abiomed, Inc. v. Turnbull, 379 F.Supp.2d 90, 92, 95 (D. Mass. 2005) (Massachusetts court has jurisdiction over foreign defendant who " engaged in a protracted campaign of defamation and misrepresentation" against a Massachusetts company " through an internet message board."). Therefore, the second prong of the jurisdictional analysis has been met.
3. Gestalt Factors
In defamation suits, " [e]ven if plaintiff has demonstrated that both the relatedness and purposeful availment requirements have been met, the court's exercise of jurisdiction must also 'comport with fair play and substantial justice.'"
Neelon, 2013 WL 2384318, at *7 (quoting U.S.S. Yachts, Inc. v. Ocean Yachts, Inc., 894 F.2d 9, 11 (1st Cir. 1990)). " The Supreme Court has identified five 'gestalt factors' that bear upon the fairness of subjecting nonresidents to this Court's jurisdiction." Id. (quoting
Sawtelle, 70 F.3d at 1394). These factors are " (1) the defendant's burden of appearing; (2) the forum state's interest in adjudicating the dispute; (3) the plaintiff's interest in obtaining convenient and effective relief; (4) the judicial system's interest in obtaining the most effective resolution of the controversy; and (5) the common interests of all sovereigns in promoting substantive social policies."
Sawtelle, 70 F.3d at 1394. As detailed herein, on balance the Gestalt factors also support the exercise of personal jurisdiction in the instant case.
It is well-recognized that " defending in a foreign jurisdiction almost always presents some measure of inconvenience, " as a result of which the defendant's burden " becomes meaningful only where [that] party can demonstrate a 'special or unusual burden.'" Id. at 1395 (citation omitted). In the instant case, the defendants have not alleged any special or unusual burden. Moreover, the record shows that the defendants have traveled to the east coast of the United States for the purpose of spreading their message about the plaintiff. It further appears that the defendants engage in international travel frequently. Therefore, requiring them to travel to appear in Massachusetts is not unduly burdensome.
With respect to the second gestalt factor, the purpose of assessing the forum state's interest " 'is not to compare the forum's interest to that of some other jurisdiction, but to determine the extent to which the forum has an interest.'" Id. (quoting Foster-Miller, Inc. v. Babcock & Wilcox Canada, 46 F.3d 138, 151 (1st Cir. 1995)). Furthermore, a state " 'generally has a 'manifest interest' in providing its resident with a convenient forum for redressing injuries inflicted by out of state actors.'"
Neelon, 2013 WL 2384318, at *8 (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 473, 105 S.Ct. 2174, 2182, 85 L.Ed.2d 528 (1985)). " Here, a Massachusetts resident . . . alleges that [she] has been the victim of defamation and other intentional torts that have caused [her] injury within the Commonwealth. . . . Thus, Massachusetts has a clear interest in the outcome of this dispute." Id.
The plaintiff's interest, and the judicial system's interest, in obtaining convenient and effective relief favors Massachusetts as well. As an initial matter, " a plaintiff's choice of forum must be accorded a degree of deference with respect to the issue of [her] own convenience."
Sawtelle, 70 F.3d at 1395. Here, Sindi lives in Massachusetts when she is in the United States, and she has elected to bring suit here. Moreover, the Commonwealth appears to be the location of various non-party witnesses who would have information about the defendants' actions as well as the impact, if any, of their actions on Sindi's reputation and business ventures in Massachusetts. Under these circumstances, Massachusetts is the best locale for obtaining convenient and effective relief.
The final gestalt factor requires the court " to consider the common interests of all sovereigns in promoting substantive social policies." Sawtelle, 70 F.3d at 1394. This factor is neutral since this case involves a personal dispute and not policy issues. Since the other gestalt factors weigh heavily in favor of Massachusetts, however, the final prong of the personal jurisdiction analysis has been met. Thus, for all these reasons this court has personal jurisdiction over the defendants, and their motion to dismiss for lack of personal jurisdiction should be denied.
IV. ANALYSIS: VENUE
A. Motion to Dismiss Due to Improper Venue
The defendants have moved to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(3) for improper venue. For the reasons detailed herein, this court recommends that the motion be denied.
28 U.S.C. § 1391 provides that venue is proper in:
(1) a judicial district in which any defendant resides, if all defendants are residents of the State in which the district is located; (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated; or (3) if there is no district in which an action may otherwise be brought as provided in this section, any judicial district in which any defendant is subject to the court's personal jurisdiction with respect to such action.
28 U.S.C. § 1391(b). In the instant case, it is not disputed that the defendants are not residents of Massachusetts, and that there are districts in which this action may otherwise be brought. However, venue is proper pursuant to § 1391(b)(2) because " a substantial part of the events or omissions giving rise to the claim" occurred here in Massachusetts.
" When an objection to venue has been raised, the burden is on the plaintiff to establish that venue is proper in the judicial district in which the action has been brought." Transamerica Corp. v. Trans-Am. Leasing Corp., 670 F.Supp. 1089, 1090 (D. Mass. 1987). Courts " are not required to determine the best venue, merely a proper venue." Astro-Med, Inc. v. Nihon Kohden Am., Inc., 591 F.3d 1, 12 (1st Cir. 2009).
In determining whether Massachusetts is the district in which a substantial part of the events occurred, the court looks " not to a single 'triggering event' prompting the action, but to the entire sequence of events underlying the claim." Id. (quoting Uffner v. La Reunion Francaise, S.A., 244 F.3d 38, 42 (1st Cir. 2001) (additional citation omitted)). The court does not " focus on the actions of one party[, ]" but rather takes a " holistic view of the acts underlying a claim." Id. (quoting Uffner, 244 F.3d at 43 n.6). In addition, in determining whether " a substantial portion of the acts giving rise to the plaintiff's claim occurred in this district[, ] . . . the court also must consider the availability of witnesses, the accessibility of other relevant evidence and the convenience of the defendant." Johnson Creative Arts, Inc. v. Wool Masters, Inc., 573 F.Supp. 1106, 1112 (D. Mass. 1983). These factors establish that venue is appropriate in Massachusetts.
Sindi resides in Massachusetts, and the activities of the defendants, as detailed above, were directed at people and organizations in Massachusetts with whom Sindi had business dealings or hoped to have business dealings. Samia appeared in Massachusetts, allegedly to notify Massachusetts residents about Sindi's shortcomings, and to discredit her personally and professionally. Both Samia and Ann traveled to the east coast to spread information about Sindi and/or communicated about Sindi with individuals who were located in Massachusetts. As detailed above, there are likely to be witnesses in Massachusetts, both with respect to the defendants' actions in Massachusetts and with respect to the harm the plaintiff has allegedly suffered. Under such circumstances, venue is proper in Massachusetts.
B. Motion to Transfer Venue
The defendants have requested that this matter be transferred to the United States District Court for the Western District of Washington, where they both presumably reside (although, as detailed below, Ann has refused to provide a specific address as to where she resides). For the reasons detailed below, this court concludes that no transfer is warranted.
28 U.S.C. § 1404(a) provides that " [f]or the convenience of the parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought[.]" Since the defendants reside in Washington, the action could have been brought there. See 28 U.S.C. § 1391(b)(1). Nevertheless, transfer is not warranted where, as here, convenience and the interest of justice do not favor transfer. World Energy Alts., LLC v. Settlemyre Indus., Inc., 671 F.Supp.2d 215, 217 (D. Mass. 2009).
" 'Section 1404(a) is intended to place discretion in the district court to adjudicate motions for transfer according to an individualized, case-by-case consideration of convenience and fairness.'"
Astro-Med, Inc., 591 F.3d at 12 (quoting Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29, 108 S.Ct. 2239, 2244, 101 L.Ed.2d 22 (1988)) (additional quotations and citation omitted). " [T]he statute's purpose is 'to prevent the waste of time, energy and money and to protect litigants, witnesses and the public against unnecessary inconvenience and expense.'"
World Energy Alts., LLC., 671 F.Supp.2d at 217 (quoting Van Dusen v. Barrack, 376 U.S. 612, 616, 84 S.Ct. 805, 809, 11 L.Ed.2d 945 (1964)). " A number of factors have developed to measure the convenience of litigating in a particular court including 1) the plaintiff's choice of forum, 2) the convenience of the parties, 3) the convenience of witnesses and location of documents, 4) any connection between the forum and the issues, 5) the law to be applied and 6) the state or public interest at stake." Kleinerman v. Luxtron Corp., 107 F.Supp.2d 122, 125 (D. Mass. 2000) (citation omitted). See also Turnley v. Banc of Am. Inv. Servs., Inc., 576 F.Supp.2d 204, 217 (D. Mass. 2008) (" Bearing in mind that the plaintiffs' choice of forum is entitled to great weight -- . . . the Court must consider several factors, including the convenience of the parties and witnesses, the availability of documents, and the interests of justice[.]"). Consideration of these factors, which are similar to those previously discussed, favor retaining the suit in Massachusetts for the reasons detailed above.
It is also significant that in addressing a motion to transfer, there is a " strong presumption in favor of the plaintiff's choice of forum[, ]" and " the burden of proof rest[s] with the party seeking to transfer[.]"
Astro-Med, Inc., 591 F.3d at 13 (additional quotations and citation omitted). " Because there is a presumption in favor of plaintiff's choice, transfer is not appropriate where its effect is merely to shift the inconvenience from one party to the other."
Kleinerman, 107 F.Supp.2d at 125. In the instant case, as detailed above, there are witnesses in Massachusetts, a number of challenged events took place in Massachusetts, and the injury Sindi alleges to have suffered occurred in Massachusetts. Moreover, all of the plaintiff's claims are based on Massachusetts state law. Other than the convenience of the defendants themselves, there is no basis to transfer the venue of this case. The defendants are highly mobile, and they do not allege any undue burden in litigating this matter in Massachusetts, Sindi's home in the United States. In light of the fact that the plaintiff's choice of forum is entitled to great weight, and considering the other relevant factors, the request to transfer venue should be denied.
C. Motion to Dismiss -- Forum Non Conveniens
The defendants have moved to dismiss this case on the grounds of forum non conveniens, arguing that this matter is more appropriately tried in Saudi Arabia. " 'When a defendant moves for dismissal on forum non conveniens grounds, it bears the burden of showing both that an adequate alternative forum exists and that considerations of convenience and judicial efficiency strongly favor litigating the claim in the alternative forum.'" Interface Partners Int'l Ltd. v. Hananel, 575 F.3d 97, 101 (1st Cir. 2009) (quoting Iragorri v. Int'l Elevator, Inc., 203 F.3d 8, 12 (1st Cir. 2000)). The defendants in the instant case have failed to satisfy either prong.
" The first condition is usually met 'if the defendant demonstrates that the alternative forum addresses the types of claims that the plaintiff has brought and that the defendant is amenable to service of process there.'" Id. (additional citations omitted). In the instant case, the defendants have not met their burden of establishing that the types of claims brought in the instant case can be prosecuted in Saudi Arabia. As detailed above, the litigation in which the parties have engaged in that country has not involved any claims of harm to Sindi's professional reputation. Rather, a great deal of the litigation seems to have been focused on claims similar to alienation of affection or criminal conversation, both of which have been abolished in Massachusetts. See Mass. Gen. Laws ch. 207, § 47B. Moreover, Saudi Arabia does not seem to have a comparable defamation action to that brought here. As the defendants themselves recognize, in the Kingdom of Saudi Arabia the truth of a statement is irrelevant to a claim of defamation. (See Alim Aff. ¶ 10). Thus, it is not clear that the instant action can, in fact, be prosecuted in Saudi Arabia.
Even more significantly, the defendants cannot establish that considerations of convenience and judicial efficiency strongly favor litigating this case in Saudi Arabia. As the First Circuit has explained, to satisfy this condition,
" the defendant must show that the compendium of factors relevant to the private and public interests implicated by the case strongly favors dismissal." [ Iragorri, 203 F.3d at 12 (citing Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508-09, 67 S.Ct. 839, 91 L.Ed. 1055 (1947)]. Guided by the Supreme Court in Gilbert, we have stated that:
[c]onsiderations relevant to the litigants' private interests include " the relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; [the] possibility of view of premises, if view would be appropriate to the action; ... [and the trial judge's consideration of] all other practical problems that make trial of a case easy, expeditious and inexpensive." Id. ( quoting Gilbert,
330 U.S. at 508, 67 S.Ct. 839).
With respect to the public interest factors, we have stated that the district court should consider " such things as the administrative difficulties of docket congestion; the general goal of 'having localized controversies decided at home, ' and concomitantly, ease of access to the proceedings on the part of interested citizens; the trier's relative familiarity with the appropriate rules of decision; and the burdens of jury duty." Id. ( quoting Gilbert, 330 U.S. at 508-09, 67 S.Ct. 839).
Interface, 575 F.3d at 101. All of these factors warrant maintenance of the action here in the United States.
With respect to the private interest factors, the conduct complained of took place in the United States, the witnesses are here, the allegedly defamatory communications are in English, and Massachusetts law applies. There is no evidence that reluctant witnesses could be compelled to testify in Saudi Arabia, and the costs of obtaining the attendance of witnesses -- either willing or unwilling -- is likely to be substantial. Since all the parties are either residents of or frequent visitors to the United States, it is most efficient to hold the trial here. Similarly, with respect to the public interest factors there is no reason why this matter cannot be maintained here. Cases which involve the types of issues raised here are routinely tried in the state and federal courts of the Commonwealth. In short, defendants have stated no strong reason to litigate this matter in Saudi Arabia.
For all these reasons, this court recommends that the defendants' motion to dismiss for improper venue and/or to change venue be denied.
V. ANALYSIS: SERVICE OF PROCESS
Ann has moved to dismiss the complaint against her due to insufficient process. Specifically, she contends that service by delivery to her last and usual address was to an address where she has not lived for 27 years, and no one signed for the package at that address. The package sent certified mail, return receipt requested, was returned to plaintiff's attorney as " undeliverable." The record in this case establishes that Ann signed an email with an address of " Seattle Washington." However, in all the pleadings filed in this case, there is no mention by the defendants of Ann's actual Seattle, Washington address.
Sindi has not opposed Ann's motion to dismiss due to insufficient process, as a result of which this court is constrained to recommend that the case against her be dismissed. The issue of service on Ann has been addressed previously by the court in connection with a motion to remand. Specifically, Sindi filed this action in state court. The defendants removed the case to this court, in response to which Sindi moved to remand. In denying the motion to remand, Judge O'Toole found that Samia's attempt to remove the case was invalid, as she had been properly served but the notice of removal was filed more than 30 days after service. (Docket No. 33 at 2-3). However, Judge O'Toole found that Ann had properly removed the case although she had not been served. As Judge O'Toole explained, " the plaintiff has not carried the burden of showing effective service as to Ann El-Moslimany" but since a party who has not been properly served remains capable of removing an action to federal court, the removal to federal court by Ann was found to be timely. (Id. at 3 (citing Sutler v. Redland Ins. Co., 2012 WL 5240124, at *2 (D. Mass. 2012)). Accordingly, the defendants were required to respond to the complaint in this court. They responded with the instant motion to dismiss.
In light of the prior finding of the court that plaintiff had not met her burden of proving proper service on Ann, and the fact that Sindi has not challenged that finding or submitted any additional evidence of service in connection with her opposition to the defendants' motion to dismiss, this court recommends that Ann's motion to dismiss due to insufficient service be allowed.
VI. ANALYSIS: MOTION TO DISMISS
FOR FAILURE TO STATE A CLAIM
The defendants have moved to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted. In their argument they only address the plaintiff's defamation claim. (See Defs. Mem. at 13). Moreover they argue that the only types of statements Sindi is claiming are defamatory are statements to the effect that the plaintiff's relationship with Samia's husband was romantic, and not just professional. Such statements, according to the defendants, " either were not made by Defendants, were not false, or were pure opinion." (Id.). For the reasons detailed herein, this court recommends that the motion to dismiss for failure to state a defamation claim be denied.
Motions to dismiss under Rule 12(b)(6) test the sufficiency of the pleadings. Therefore, when confronted with a motion to dismiss, the court accepts as true all well-pleaded facts and draws all reasonable inferences in favor of the plaintiff. Cooperman v. Individual, Inc., 171 F.3d 43, 46 (1st Cir. 1999). Dismissal is only appropriate if the complaint, so viewed, fails to allege a " plausible entitlement to relief." Rodriguez-Ortiz v. Margo Caribe, Inc., 490 F.3d 92, 95 (1st Cir. 2007) (quoting Bell A. Corp. v. Twombly, 550 U.S. 544, 559, 127 S.Ct. 1955, 1967, 167 L.Ed.2d 929 (2007)).
" To prevail on a defamation claim under Massachusetts law, 'a plaintiff must show that the defendant was at fault for the publication of a false statement of and concerning the plaintiff which was capable of damaging his or her reputation in the community, and which either caused economic loss or is actionable without proof of economic loss.'" Damon v. Moore, 520 F.3d 98, 103 (1st Cir. 2008)). Statements that " may prejudice the plaintiff's profession or business, " are actionable " without proof of economic loss." Ravnikar v. Bogojavlensky, 438 Mass. 627, 630, 782 N.E.2d 508, 511 (2003). In considering a motion to dismiss for failure to state a claim, " [t]he court is not called upon to determine the ultimate issue of whether the statement is defamatory, but to answer the threshold question of whether the communication is reasonably susceptible of a defamatory meaning."
Damon, 520 F.3d at 103 (internal quotation and citation omitted).
In the instant case, the defendants have ignored the majority of statements which the plaintiff claims are defamatory. As detailed above, in the challenged statements the defendants accuse Sindi of falsifying her credentials and plagiarizing her thesis, among other things. There can be little question that these statements are " susceptible to defamatory meaning" since they are designed " to injure the plaintiff's reputation, or hold the plaintiff up to scorn, hatred, ridicule or contempt, in the minds of any considerable and respectable segment in the community.'" Id. Therefore, the complaint states a claim for defamation, and the defendants' motion to dismiss for failure to state a claim should be denied.
VII. ANALYSIS: SUFFICIENCY OF THE PLEADING
Finally, the defendants have moved to dismiss the complaint pursuant to Fed.R.Civ.P. 8(a) on the grounds that the complaint is " rambling, speculative, overbroad, and disorganized." (Defs. Mem. at 15). This court disagrees.
Fed. R. Civ. P. 8(a) provides in relevant part that " [a] pleading that states a claim for relief must contain . . . a short and plain statement of the claim showing that the pleader is entitled to relief . . . ." Fed.R.Civ.P. 8(a)(2). The statement must " give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Phelps v. Local 0222, No. 09-11218-JLT, 2010 WL 3342031, at *5 (D. Mass. Aug. 20, 2010) (quoting Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512, 122 S.Ct. 992, 998, 152 L.Ed.2d 1 (2002)) (quotations and citations omitted). In addition, the pleadings " must afford the defendants a meaningful opportunity to mount a defense." Benyamin v. Commonwealth Med. UMass Med. Ctr., Inc., No. 11-40126-FDS, 2011 WL 2681195, at *2, (D. Mass. July 6, 2011) (quoting Diaz-Rivera v. Rivera-Rodriguez, 377 F.3d 119, 123(1st Cir. 2004)) (internal punctuation and additional citations omitted). At a minimum, " the complaint should at least set forth minimal facts as to who did what to whom, when, where, and why." Id. (quotation omitted).
While the instant complaint may contain some extraneous material, it basically spells out the dispute between the parties, identifies the (numerous) communications and conduct of the defendants which the plaintiff believes are actionable, and identifies why the plaintiff believes the accusations against her are false. It clearly identifies the causes of action which are being pursued. The defendants are well-advised as to the factual and legal claims being asserted against them. There is no basis to dismiss the complaint under Fed.R.Civ.P. 8(a).
For all the reasons described herein, this court recommends to the District Judge to whom this case is assigned that Ann be dismissed from the case, but that the defendants' motion to dismiss or transfer (Docket No. 39) otherwise be DENIED.