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Civil Procedure – Personal Jurisdiction – Defamatory E-Mail

Although some persons in Virginia might have received an allegedly defamatory e-mail affecting plaintiff security contractor’s business, the contractor has not shown that the allegedly harmful conduct was directed at Virginia contacts or caused plaintiff damage in Virginia, and a Norfolk U.S. District Court dismisses as a defendant a California resident who provided information for the e-mail, for lack of personal jurisdiction.

Plaintiff Richard Galustian argues this court has personal jurisdiction over defendant Col. John Holly, a California resident, pursuant to his involvement in a conspiracy with defendant Lawrence Peter to defame Galustian. Both Holly and Peter were employed in Iraq. Galustian alleges Peter knowingly e-mailed a fraudulent Iraqi warrant, which he had obtained from Holly, to members of the Private Security Company Association of Iraq (PSCAI). Galustian alleges the defamatory e-mail was published in Virginia, as at least nine PSCAI members have operating facilities in Virginia, and other government-related individuals allegedly received the warrant in or through the Pentagon, which is located in Virginia. For purposes of the personal jurisdictional analysis, the court will assume the e-mail sent by Peter to members of PSCAI was actually opened and read in Virginia.

Galustian has alleged no facts to support the conclusion that Holly purposefully availed himself of the Virginia forum. The alleged conspiracy between Holly and Peter was formed in Iraq. Similarly, Peter sent the allegedly defamatory e-mail from his location in Iraq. The only alleged contact with Virginia is the opening of the allegedly defamatory e-mail in this forum. The court will evaluate the defamatory effects in Virginia of the e-mail sent by Peter.

The amended complaint has no allegations suggesting that Virginia was the focal point of the alleged harm. Galustian alleges his consultant company has lost substantial business in Iraq as a result of his damaged reputation. Although he alleges the e-mail was opened in Virginia, Galustian is a subject of the United Kingdom and a resident of the United Arab Emirates, who does business in the Middle East, and therefore, the majority of the damage to his reputation would be expected to occur elsewhere, not in Virginia. The court finds Iraq, and not Virginia, was the focal point of the alleged harm.

Galustian has alleged no facts to suggest the e-mail was intended for a Virginia audience, even if it was in fact opened in Virginia.

Galustian has failed to allege facts sufficient to support jurisdiction over Holly based upon the “effects test.” The court finds it lacks personal jurisdiction over Holly, and he is dismissed as a defendant.
The court now looks to whether Iraq is an available forum as to Peter, the remaining defendant. The issue of availability turns on whether Peter is immune from process in Iraq due to Order 17. Peter has satisfied his burden of proving he is not subject to Order 17 immunity. Even if an Iraqi court were later to find Peter immune, the State Department may always waive that immunity on Peter’s behalf. The court finds Peter has satisfied his burden in showing Iraq to be an available forum. The court is satisfied that Galustian, as a foreign plaintiff, may bring an action in Iraq against Peter, an American citizen, based on the alleged defamation that occurred in Iraq. Peter has satisfied his burden with respect to the adequacy of the Iraqi forum. Also, although Peter owns a home in Virginia, he currently spends about 330 days per year in Iraq.

The court grants Peter’s motion to dismiss on forum non conveniens grounds.

Galustian v. Peter (Smith, J.) No. 2:08cv59, Nov. 9, 2010; USDC at Norfolk, Va.; Frank A. Edgar Jr. for plaintiff; Robert W. Johnson II, Matthew B. Kirsner for defendants. VLW 010-3-599, 26 pp.

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