     14-3815-cv
     Biro v. Condé Nast

                               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.

 1          At a stated term of the United States Court of Appeals for the Second Circuit, held at the
 2   Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 8th
 3   day of December, two thousand and fifteen.
 4
 5   PRESENT:
 6               DENNIS JACOBS,
 7               RAYMOND J. LOHIER, JR.,
 8                     Circuit Judges,
 9               GEOFFREY W. CRAWFORD,*
10                     District Judge.
11   _____________________________________
12
13   PETER PAUL BIRO,
14
15                         Plaintiff-Appellant,
16
17                 v.                                                          No.     14-3815-cv
18
19   CONDÉ NAST, a division of Advance Magazine Publishers Inc.,
20   DAVID GRANN, ADVANCE MAGAZINE PUBLISHERS INC.,
21   LOUISE BLOUIN MEDIA INC., GLOBAL FINE ART
22   REGISTRY LLC, THERESA FRANKS, PADDY JOHNSON,
23   YALE UNIVERSITY PRESS,
24
25                         Defendants-Appellees,
26


     * The Honorable Geoffrey W. Crawford, of the United States District Court for the District of
     Vermont, sitting by designation.
 1   PATRICK BAHNERS, GEORGIA MUSEUM OF ART,
 2   INTERNATIONAL COUNCIL OF MUSEUMS, DAN
 3   RATTINER, MANHATTAN MEDIA LLC, DAN’S PAPERS,
 4   LLC, GAWKER MEDIA LLC, BUSINESS INSIDER, INC.,
 5
 6                     Defendants.
 7   _____________________________________
 8
 9   For Plaintiff-Appellant Peter Paul Biro:           RICHARD A. ALTMAN, Law Office of Richard
10                                                      A. Altman, New York, NY.
11
12   For Defendants-Appellees Condé Nast, a
13   division of Advance Magazine Publishers
14   Inc., Advance Magazine Publishers Inc.,
15   and David Grann:                                   DAVID A. SCHULZ, Levine Sullivan Koch &
16                                                      Schulz, LLP, New York, NY; Chad R.
17                                                      Bowman, Levine Sullivan Koch & Schulz,
18                                                      LLP, Washington, DC.
19
20   For Defendant-Appellee Louise Blouin
21   Media Inc.:                                        Diane Boenig Cavanaugh, Desmond C.B.
22                                                      Lyons, Lyons McGovern, LLP, White
23                                                      Plains, NY.
24
25   For Defendants-Appellees Global Fine
26   Arts Registry LLC and Theresa Franks:              ANTHONY N. GAETA (William A. Friedman,
27                                                      on the brief), Levine DeSantis, LLC,
28                                                      Springfield, NJ.
29
30   For Defendant-Appellee Paddy Johnson:              DARREN W. JOHNSON (Lynn B. Bayard,
31                                                      Danielle B. Polebaum, on the brief), Paul,
32                                                      Weiss, Rifkind, Wharton & Garrison LLP,
33                                                      New York, NY.
34
35   For Defendant-Appellee Yale University
36   Press:                                             FLOYD ABRAMS (Brian Markley, on the
37                                                      brief), Cahill Gordon & Reindel LLP, New
38                                                      York, NY.
39
40
41          Appeal from a judgment of the United States District Court for the Southern District of

42   New York (J. Paul Oetken, Judge).



                                                    2
 1             UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

 2   DECREED that the judgment of the District Court is AFFIRMED.

 3             Peter Paul Biro appeals from a judgment of the United States District Court for the

 4   Southern District of New York (Oetken, J.) dismissing his complaint pursuant to Rules 12(b)(6)

 5   and 12(c) of the Federal Rules of Civil Procedure. In the complaint, Biro principally asserted

 6   claims for defamation arising out of a 2010 article in The New Yorker (the “Article”). The

 7   Article was written by defendant-appellee David Grann, published by defendant-appellee Condé

 8   Nast, a division of Advance Magazine Publishers Inc., and allegedly republished by the remaining

 9   defendants—including Global Fine Art Registry (“FAR”) and Theresa Franks, who also published

10   allegedly defamatory statements about Biro and his ongoing defamation litigation. The District

11   Court held, among other things, that Biro was a limited-purpose public figure and that Biro failed

12   to allege sufficient facts to assert plausible claims that the defendants acted with actual malice. In

13   this summary order, we decide the issues relating to Biro’s status as a limited-purpose public

14   figure and to the sufficiency of Biro’s claims against FAR and Franks.1 With respect to the issues

15   that are the subject of this summary order, we assume the parties’ familiarity with the facts and

16   record of the prior proceedings, to which we refer only as necessary to explain our decision to

17   affirm.

18             We review de novo the District Court’s determination that Biro was a limited-purpose

19   public figure. See Celle v. Filipino Reporter Enters. Inc., 209 F.3d 163, 176 (2d Cir. 2000).



     1
       In a separate opinion filed simultaneously with this summary order, we address whether Rule 8
     of the Federal Rules of Civil Procedure requires a limited-purpose public figure to allege sufficient
     facts to assert a plausible claim of actual malice in a defamation action or whether it permits the
     plaintiff to aver generally that a defendant acted with actual malice.
                                                       3
 1   Based on Biro’s “own complaint and affidavits,” Yiamouyiannis v. Consumers Union, 619 F.2d

 2   932, 938 (2d Cir. 1980), we evaluate whether Biro has “(1) successfully invited public attention to

 3   his views in an effort to influence others prior to the incident that is the subject of litigation; (2)

 4   voluntarily injected himself into a public controversy related to the subject of the litigation; (3)

 5   assumed a position of prominence in the public controversy; and (4) maintained regular and

 6   continuing access to the media,” Lerman v. Flynt Distrib. Co., 745 F.2d 123, 136-37 (2d Cir.

 7   1984).

 8            We affirm the District Court’s holding that Biro is a limited-purpose public figure. Biro

 9   invited public scrutiny of his forensic methods to authenticate art by (1) participating in several

10   documentaries, including a feature-length film; (2) agreeing to frequent interviews about the

11   validity and usefulness of using fingerprint analysis to authenticate art; (3) seeking and obtaining

12   fame and clients for himself in the process; and (4) resorting to the press to defend his positions on

13   various controversies relating to his work. Indeed, Biro’s work was public and controversial even

14   before the Article’s publication. A prior article in 2008 described Biro’s authentications of two

15   Jackson Pollock paintings as “controversial,” and in his complaint Biro describes himself as “a

16   leading authority in [the] emerging field” of using fingerprint analysis to authenticate art.

17            Biro argues that even if he is a limited-purpose public figure, the alleged defamatory

18   statements are unrelated to the relevant public controversy—that is, to Biro’s participation in the

19   controversy regarding the validity of using fingerprint analysis to authenticate art. In the District

20   Court, Biro did no more than mention this argument in passing; therefore, we deem it forfeited and

21   decline to consider it. See In re Nortel Networks Corp. Sec. Litig., 539 F.3d 129, 132-33 (2d Cir.

22   2008).

                                                        4
 1          Biro separately challenges the District Court’s dismissal of his claim against Franks for

 2   lack of personal jurisdiction based on the exception for defamation actions set forth in New York’s

 3   long-arm statute. See N.Y. C.P.L.R. § 302(a)(3). Biro argues that the court could have exercised

 4   personal jurisdiction under N.Y. C.P.L.R. § 302(a)(1). Because Biro did not raise this argument

 5   before the District Court and raised it only in his Reply Brief on appeal, however, we decline to

 6   consider it. See Norton v. Sam’s Club, 145 F.3d 114, 117-18 (2d Cir. 1998).

 7          Finally, we agree with the District Court that Biro failed to plausibly allege actual malice in

 8   the claim against FAR and Franks, who are alleged to have made separate defamatory statements

 9   about Biro and his ongoing defamation litigation on the FAR website. In particular, Biro failed to

10   allege sufficient facts suggesting that FAR or Franks “entertained serious doubts as to the truth” of

11   their statements. St. Amant v. Thompson, 390 U.S. 727, 731 (1968). We conclude that the

12   District Court did not abuse its discretion in denying discovery on the issue of actual malice after

13   Biro failed to plausibly plead it. See Ashcroft v. Iqbal, 556 U.S. 662 (2009); Bell Atl. Corp. v.

14   Twombly, 550 U.S. 544 (2007).

15          We have considered all of Biro’s remaining arguments that are not the subject of the

16   accompanying opinion and conclude that they are without merit. For the foregoing reasons, the

17   judgment of the District Court is AFFIRMED.

18
19                                                 FOR THE COURT:
20                                                 Catherine O’Hagan Wolfe, Clerk of Court
21




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