Fairfax was wrong forum for defamation case

A Fairfax Circuit Court should have granted a Hong Kong-based businessman’s motion to dismiss a defamation suit under a statute that allows dismissal of suits brought by non-residents of Virginia. A split Supreme Court of Virginia said in Hotung v. Hotung that the trial judge should have dismissed the suit without prejudice, rather than trying the case to a $600,000 defamation award.

In his defamation action, plaintiff Michael Hotung said the octogenarian defendant, Eric E. Hotung, had once embraced Michael as his biological son, but later renounced the relationship in a way that defamed Michael. Eric apparently is a businessman of some notoriety, and plaintiff Michael said he had reaped benefits in the business world after the defendant in 2001 acknowledged Michael as his son who was born in 1959.

But after Michael went through a contentious and high-profile divorce, Eric expressed his disapproval of Michael’s conduct to a reporter in Hong Kong, and Michael said he lost professional and personal benefits that went along with being Eric’s acknowledged son.

When Michael sued, the trial court concluded it had personal jurisdiction over Eric, and held a hearing on the forum non conveniens issue posed by Eric’s motion to dismiss pursuant to Va. Code § 8.01-265. Eric proffered medical evidence that he was unfit for international travel, and noted that Michael’s complaint asserted that he too lived in Hong Kong. Eric made the alleged defamatory statement at a Hong Kong club, to a Hong Kong newspaper reporter, and the principal witness as to the truth of the statement, Michael’s mother, also was in Hong Kong. In all, Eric identified 15 witnesses of whom only one was not in Hong Kong, and that witness was in New York City.

The trial judge nevertheless said Eric had not proven good cause for dismissal, finding his proffer of medical unfitness insufficient in light of Eric’s capacity during his videotaped deposition.

“To testify in person in this case, both the parties and the witnesses would have been required to engage in lengthy, complicated international travel from Hong Kong to Fairfax,” the Supreme Court wrote in its Feb. 7 unpublished order. “The expense and inconvenience of appearing at trial would have increased proportionally with distance,” the majority said, comparing the case to N&W Ry. Co. v. Williams, 239 Va. 390 (1990).

The high court said the trial court abused its discretion. It vacated the lower court judgment, granted the defendant’s motion and dismissed the complaint without prejudice pursuant to Va. Code § 8.-265. (VLW 014-6-018).

Justice Elizabeth McClanahan dissented, saying the majority ignored the risk that the plaintiff might not be able to sue in another court, and simply compared the level of inconvenience associated with “complicated international travel” between Hong Kong and Virginia with intrastate travel between Roanoke and Portsmouth.