Second Circuit Affirms Lower Court Ruling of Bin Mahfoud Motion To Dismiss

In what is labeled a case of “libel tourism,” the Second Circuit has affirmed a lower court’s ruling that it lacks personal jurisdiction over defendant Khalid Salim Bin Mahfouz in the case of Ehrenfeld v. Bin Mahfoud. Mr. Bin Mahfoud “obtained a default libel judgment against [Rachel Ehrenfeld] enjoining the further publication of the statements about Mahfouz in England and Wales. Thereafter Ehrenfeld sought a declaratory judgment under the Declaratory Judgment Act…against Mahfouz in the District Court…that (1) Mahfouz could not prevail on a libel claim against her under federal or New York law; and (2) the English judgment would not be enforceable in the United States, and New York in particular, on constitutional and public policy grounds.”

The Second Circuit certified a question to the New York Court of Appeal: “whether New York’s long-arm statute confers personal jurisdiction over a person (1) who sued a New York resident in a non-U.S. jurisdiction; and (2) whose contacts with New York stemmed entirely from the foreign lawsuit and whose success in the foreign suit resulted in acts that must be performed by the subject of the suit in New York.” The New York appellate court answered “no,” and also refused to assert jurisdiction over the defendant.

Ultimately, said the Second Circuit, “For a number of reasons, plaintiff’s arguments are legally unavailing. First, plaintiff filed her complaint in the district court in December 2004 and up to this point has apparently not raised a federal constitutional challenge to a reading of N.Y. C.P.L.R. [Sec.] 302(a)(1) that would deny  jurisdiction over defendant. To be sure, plaintiff sought a declaration from the district court that enforcement of the English judgment in the United States would contravene the First Amendment….She also argued before the district court and this Court that defendant Mahfouz’s contacts with New York were part of a scheme to abridge her free speech rights in New York. Plaintiff made the argument that the freedom of speech implications of the case, rising under both the First Amendment and the New York Constitution, compelled certification of the jurisdictional issue to the New York Court of Appeals. We heeded that suggestion and granted her certification request based on the public  policy significance of the matter…. Plaintiff, however, has not made the argument that the First Amendment would compel us to assert jurisdiction over defendant in any case, regardless of the reading by the Courtof Appeals of the state long-arm statute….Her failure to mount an attack on First Amendment grounds against denial of personal jurisdiction over defendant Mahfouz at any prior stage of this prolonged litigation in the federal courts amounts to a waiver of the claim.”

Read the entire decision here. For more about the number of cases in which Mr. Bin Mahfouz has been involved, see this post from the Chronicle of Higher Education’s blog and this prior post from Media Law Prof.