    10-5079-cv
    Penachio v. Benedict



                            UNITED STATES COURT OF APPEALS
                                FOR THE SECOND CIRCUIT

                                           SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR
AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

            At a stated term of the United States Court of Appeals for the Second Circuit, held at the
    Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
    on the 4th day of January, two thousand twelve.

    PRESENT:
                ROBERT D. SACK,
                ROBERT A. KATZMANN,
                BARRINGTON D. PARKER,
                      Circuit Judges.
    __________________________________________

    ANNE PENACHIO, PATRICK J. CARR,

                      Plaintiffs-Appellants,

                             v.                                           10-5079-cv

    DIANE BENEDICT, VERONIQUE VAN PELT,

                Defendants-Appellees.
    __________________________________________

    FOR APPELLANTS:                  Patrick J. Carr, pro se, Scarsdale, N.Y.; Anne Penachio, pro se,
                                     White Plains, N.Y.

    FOR APPELLEES:                   John S. Rand (Lawrence T. D’Aloise, Jr., on the brief), Clark,
                                     Gagliardi & Miller, P.C., White Plains, N.Y.


         Appeal from a judgment of the United States District Court for the Southern District of
    New York (Preska, C.J.).
          UPON DUE CONSIDERATION IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

          Appellants Anne Penachio and Patrick J. Carr, proceeding pro se, appeal the district

court’s judgment granting Diane Benedict and Veronique Van Pelt’s motion to dismiss the

complaint pursuant to Fed. R. Civ. P. 12(b)(2) for lack of personal jurisdiction. We assume the

parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on

appeal.

          We review de novo a district court’s dismissal of a complaint under Fed. R. Civ. P.

12(b)(2). See Metro. Life Ins. Co. v. Roberson-Ceco Corp., 84 F.3d 560, 567 (2d Cir. 1996). On

a Rule 12(b)(2) motion, plaintiff carries the burden of demonstrating that jurisdiction exists, see

Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 507 (2d Cir. 1994), and where the

district court did not conduct “a full-blown evidentiary hearing on a motion, the plaintiff need

make only a prima facie showing of jurisdiction,” Marine Midland Bank, N.A. v. Miller, 664

F.2d 899, 904 (2d Cir. 1981). In order to resolve a motion to dismiss for lack of personal

jurisdiction, a district court must “determine whether there is jurisdiction over the defendant

under the relevant forum state’s laws,” Bank Brussels Lambert v. Fiddler Gonzalez & Rodriguez,

171 F.3d 779, 784 (2d Cir. 1999), which, in this case, are the various subsections of New York’s

Civil Practice and Rules (“C.P.L.R.”) § 302(a).

          Having conducted an independent and de novo review of the record in light of these

principles, we affirm for substantially the same reasons stated in the thorough and well-reasoned

orders below: the magistrate judge’s July 6, 2010 report and recommendation and the district

court’s November 9, 2010 order. In order to evaluate whether personal jurisdiction exists

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pursuant to C.P.L.R. § 302(a)(1), we must determine: (1) whether Benedict or Van Pelt

transacted any business in New York, and, if so, (2) whether there was an articulable nexus, or

substantial relationship, between the defamatory conduct and the actions that occurred in New

York. Best Van Lines, Inc. v. Walker, 490 F.3d 239, 246 (2d Cir. 2007).

       New York courts construe the “transacting business” test more narrowly in defamation

cases than in other contexts. Id. at 248. New York courts do not interpret “transacting business”

to include “defamatory utterances” sent into New York state, unless the conduct also included

“something more.” Best Van Lines, 490 F.3d at 248-49. Here, Penachio and Carr argue that the

“something more” was established because Benedict and Van Pelt had been physically present in

New York for a guardianship proceeding, had contacted New York residents by email and

telephone, and had called upon New Yorkers to respond to their YouTube videos. However, this

argument is foreclosed by SPCA of Upstate N.Y., Inc. v. Am. Working Collie Ass’n, in which the

Third Department held that a person’s defamatory comments on a website, coupled with phone

calls to New York and donation of money to a New York entity, were insufficient to establish

the “something more” required by C.P.L.R. § 302(a)(1). See generally 903 N.Y.S.2d 562 (3d

Dep’t 2010), leave to appeal granted, 915 N.Y.S.2d 213 (2010).

       Furthermore, even if Benedict and Van Pelt had transacted business within the meaning

of C.P.L.R. § 302(a)(1), they cannot demonstrate that an articulable nexus or a substantial

relationship existed between the alleged defamatory conduct and the actions that occurred in

New York. The relevant legal standards were discussed by the New York Court of Appeals in

Talbot v. Johnson Newspaper Corp., 71 N.Y.2d 827 (1998). In that case, a daughter told her

father about two drunk driving incidents involving the coach at her university. Id. at 828. After

the father wrote letters to the university describing the alleged actions of the coach, which were
                                                 3
subsequently published in a newspaper, the coach filed a defamation action against the father,

daughter, and newspaper. Id. at 828-29. The father and daughter, both California residents

conducting no business in New York, sought to dismiss for want of personal jurisdiction. Id. In

affirming the Appellate Division’s dismissal of the complaint, the New York Court of Appeals

held that the coach had failed to demonstrate the required nexus between defendants’ New York

“business,” the daughter’s pursuit of a college degree in New York, and the coach’s cause of

action.

          We agree with the Appellate Division that CPLR 302(a)(1) -- the section that governs the
          issue in this defamation action -- does not support the exercise of personal jurisdiction
          over the [defendants]. Essential to the maintenance of this action against the [defendants]
          are some “purposeful activities” within the State and a “substantial relationship” between
          those activities and the transaction out of which the cause of action arose (McGowan v
          Smith, 52 NY2d 268, 272). Even if [the daughter’s] previous enrollment and attendance
          at a New York university satisfied the requirement of purposeful activities in New York,
          there was no showing that -- years after termination of that relationship -- there was the
          required nexus between the [defendants’] New York “business” and the present cause of
          action. While appellants urge that jurisdiction may constitutionally be premised on
          broader standards articulated by the United States Supreme Court (see, e.g., Asahi Metal
          Indus. v Superior Ct., 480 U.S. 102, --, 107 S Ct 1026, 1033), the New York long-arm
          statute ( CPLR 302) does not provide for in personam jurisdiction in every case in which
          due process would permit it (Banco Ambrosiano v Artoc Bank & Trust, 62 NY2d 65, 71).


Id. at 829-30. Cf. Legros v. Irving, 327 N.Y.S.2d 371, 373 (1st Dep’t 1971) (finding substantial

relationship between allegedly defamatory book and defendant’s New York business

transactions because “virtually all the work attendant upon publication of the book occurred in

New York [;] [t]he book was in part researched in this State[;] . . . negotiations with [the

publisher] took place in New York; the contract with [the publisher] was executed in New York;

[and] the book was printed in New York”). So too in this case, defendants’ alleged defamatory

comments were not made while they were physically present in New York, but rather were



                                                   4
published after they had returned to their out-of-state domiciles. Although the YouTube videos

bear a relationship to the proceedings in New York and defendants’ alleged commercial interest

in New York, the district court correctly found that defendants’ interaction with New York

during the publication of the videos was too marginal to establish the required articulable nexus.

Accordingly, the district court properly determined that plaintiffs failed to show a substantial

relationship between the defamatory videos and the actions of the defendants in New York State.

       We have considered plaintiffs’ remaining arguments and have found them to be without

merit. Accordingly, the judgment of the district court is hereby AFFIRMED.


                                              FOR THE COURT:
                                              Catherine O’Hagan Wolfe, Clerk




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