24-2654-cv Donner v. Der Spiegel GMBH & Co. KG, et al.

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 TO 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 Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 23rd day of October, two thousand twenty-five.

PRESENT: RICHARD C. WESLEY, SARAH A. L. MERRIAM, MARIA ARAÚJO KAHN, Circuit Judges.

__________________________________________

REBECCA DONNER,

Plaintiff-Appellant,

v. 24-2654-cv

DER SPIEGEL GMBH & CO. KG; SPIEGEL- VERLAG RUDOLF AUGSTEIN GMBH & CO. KG.,

Defendants-Appellees. __________________________________________

FOR PLAINTIFF-APPELLANT: NATHAN A. HOLCOMB, New York, NY. FOR DEFENDANTS-APPELLEES: ELIZABETH A. MCNAMARA, Davis Wright Tremaine LLP, New York, NY.

Appeal from a September 5, 2024, judgment of the United States District Court for

the Southern District of New York (Koeltl, J.).

UPON DUE CONSIDERATION, the judgment of the District Court is

AFFIRMED.

Plaintiff-appellant Rebecca Donner appeals from the District Court’s order

dismissing her complaint against defendants-appellees Der Spiegel GMBH & Co. KG

and Spiegel-Verlag Rudolf Augstein GMBH & Co. KG (together, “Der Spiegel”), which

are German media companies, for lack of personal jurisdiction. See Donner v. DER

SPIEGEL Gmbh & Co. KG,

(S.D.N.Y. 2024). Donner, an author and

citizen of New York, brought this action against Der Spiegel asserting in the amended

complaint that Der Spiegel defamed her through statements made in an article about

Donner’s book, All the Frequent Troubles of Our Days. Der Spiegel moved to dismiss

the amended complaint pursuant to Federal Rule of Civil Procedure 12(b)(2) for lack of

personal jurisdiction. 1 Donner cross-moved to transfer venue. The District Court granted

Der Spiegel’s motion, holding that it lacked personal jurisdiction over Der Spiegel under

New York’s long-arm statute, Civil Practice Law and Rules (“CPLR”) §§302(a)(1),

302(a)(4), and denied Donner’s cross-motion to transfer venue. Donner appealed.

1 Der Spiegel alternatively moved to dismiss under Rule 12(b)(3) for improper venue and under the doctrine of forum non conveniens. Those alternative bases for dismissal are not before us on appeal.

2 We assume the parties’ familiarity with the underlying facts, procedural history,

and issues on appeal, to which we refer only as necessary to explain our decision.

BACKGROUND

“We review a district court’s dismissal of an action for lack of personal jurisdiction

de novo.” Best Van Lines, Inc. v. Walker,

(2d Cir. 2007). We

“constru[e] all pleadings and affidavits in the light most favorable to the plaintiff and

resolv[e] all doubts in the plaintiff’s favor.” Am. Girl, LLC v. Zembrka,

,

276 (2d Cir. 2024) (citation and quotation marks omitted).

The facts set forth herein are drawn from the amended complaint and the

declarations and exhibits submitted with the parties’ cross-motions. See

Donner

authored All the Frequent Troubles of Our Days, a biography of her great-great-aunt who

moved from America to Germany to join the resistance against Hitler. The book was

published in 2021; in 2022, it was translated into German. On July 22, 2022, while

Donner was living temporarily in California, she was contacted by an Arizona-based

journalist working for Der Spiegel, a German news magazine, about a possible profile.

Donner agreed and ultimately traveled to Berlin to be interviewed for the profile by a

Germany-based journalist for Der Spiegel. The Arizona-based and German-based

journalists co-authored an article about Donner’s book, which Der Spiegel published in

print and online; it was titled “Pure Fantasy” in the print edition and “How Much Poetry

Is There in a Historical Nonfiction Book?” in the online edition. J. App’x at 25. Donner

alleges that the article contains defamatory statements about her.

As pertinent to the jurisdictional question before us, both Der Spiegel entities are

3 organized under German law and headquartered in Germany. Der Spiegel contracts with

“a third-party German service provider called IPS Pressevertrieb (‘IPS’), which buys

copies of Der Spiegel in Germany and sells them to international partners.” J. App’x

at 46. In turn, “IPS partners with a company called Data Media Inc., located in Buffalo,

New York, to market and manage subscriptions within the United States.”

“Data

Media operates as the ‘Known Office of Publication’ for Der Spiegel.” 2 Id. at 47. Der

Spiegel’s main United States office is located in Washington, D.C.; at one time, it

maintained an office in New York, but it decided in 2020 to close that office. See id.

at 49.

With respect to distribution, Donner alleges that the print edition of Der Spiegel is

“sold at international newsstands in New York City, including Casa Magazines (22 8th

Avenue), Soho News International (186 Prince St.), and International News & Magazines

(302 E. 86th St.).” 3 Id. at 17. The print edition “appeared in Issue 38/2022 of Der

Spiegel,” and “17 copies of th[at] issue were sold from newsstands in New York, as

compared to 128,857 total copies sold worldwide.” Id. at 48. As for online access,

Donner alleges that Der Spiegel’s online subscription service, SPIEGEL+, is marketed

“through an interactive website to users around the world, including in the United

States.” Id. at 17. U.S. subscribers are “invited [to] enter payment details for PayPal or

2 The United States Postal Service “requires the maintenance of a ‘Known Office of Publication’ to authorize mailing privileges for periodicals.” J. App’x at 47. USPS defines a “Known Office of Publication” as “a public office where normal business of the publication is conducted during normal posted business hours.” Id. at 16. 3 The magazine was available at six newsstands in New York. See id. at 48.

4 Visa in order to obtain access to SPIEGEL+.” Id. Donner alleges that “[t]he online

version of [the] article at issue in this case was behind the paywall on Der Spiegel’s

website, with access limited to subscribers who had purchased a SPIEGEL+ online

subscription.” Id. at 18.

DISCUSSION

“In order to survive a motion to dismiss for lack of personal jurisdiction, a plaintiff

must make a prima facie showing that jurisdiction exists.” Best Van Lines,

(citation and quotation marks omitted). “Such a showing entails making legally

sufficient allegations of jurisdiction, including an averment of facts that, if credited,

would suffice to establish jurisdiction over the defendant.” Charles Schwab Corp. v.

Bank of Am. Corp.,

(2d Cir. 2018) (citation and quotation marks omitted)

(alteration adopted). A plaintiff must first demonstrate that personal jurisdiction is

appropriate under the forum state’s long-arm statute; if it is, she must next show that the

exercise of jurisdiction “comports with the requisites of due process.” Whitaker v. Am.

Telecasting, Inc.,

(2d Cir. 2001) (citation and quotation marks

omitted).

Accordingly, to determine whether the United States District Court for the

Southern District of New York has personal jurisdiction over Der Spiegel, “we look first

to the law of the State of New York, in which the district court sits.” Best Van Lines,

(citation omitted). “The reach of New York’s long-arm statute . . . does not

coincide with the limits of the Due Process Clause.”

; see also David D. Siegel

& Patrick M. Connors,

(6th ed. 2018). Thus, if jurisdiction is improper

5 under New York’s long-arm statute, CPLR §302, we need not reach the due process

inquiry. See id. at 242.

On appeal, Donner contends that the District Court erred in concluding that it

lacked personal jurisdiction over Der Spiegel pursuant to CPLR §§302(a)(1) or 302(a)(4).

We disagree.

I. CPLR §302(a)(1)

Under CPLR §302(a)(1), a federal court sitting in New York “may exercise

personal jurisdiction over any non-domiciliary, . . . who in person or through an agent[]

transacts any business within the state or contracts anywhere to supply goods or services

in the state.” CPLR §302(a)(1). “To determine the existence of jurisdiction under section

302(a)(1), a court must decide (1) whether the defendant ‘transacts any business’ in New

York and, if so, (2) whether this cause of action ‘aris[es] from’ such a business

transaction.” Best Van Lines,

(citation omitted); see also Johnson v.

Ward,

(2005). “Courts look to the totality of the defendant’s activities

within the forum to determine whether a defendant has ‘transact[ed] business’ in such a

way that it constitutes ‘purposeful activity’ satisfying the first part of the test.” Best Van

Lines,

(citations omitted). “As for the second part of the test, [a] suit will

be deemed to have arisen out of a party’s activities in New York if there is an articulable

nexus, or a substantial relationship, between the claim asserted and the actions that

occurred in New York.”

(citation and quotation marks omitted); see also SPCA of

Upstate N.Y., Inc. v. Am. Working Collie Ass’n,

(2012). Donner has

not met her burden under either prong.

6 First, Der Spiegel does not “transact business” within New York for purposes of

Donner’s defamation action. “New York courts construe ‘transacts any business within

the state’ more narrowly in defamation cases.” Best Van Lines,

(quoting

CPLR §302(a)(1)). Transacting business does not “include mere defamatory utterances

sent into the state.” Id. (citation and quotation marks omitted). “In other words, when

the defamatory publication itself constitutes the alleged ‘transact[ion of] business’ for the

purposes of section 302(a)(1), more than the distribution of a libelous statement must be

made within the state to establish long-arm jurisdiction over the person distributing it.”

Id. (citation and quotation marks omitted) (emphasis added). Put simply, “where the

defendants’ out-of-state conduct involved defamatory statements projected into New York

and targeting New Yorkers,” New York courts have found jurisdiction “only where the

conduct also included something more.” Id. at 249.

Donner contends that Der Spiegel “transacts business” in New York because it

“use[s] a ‘Known Office of Publication’ in Buffalo, New York to distribute print

magazines throughout the United States,” and “use[s] an interactive website to sell [its]

online SPIEGEL+ service to subscribers in New York.” Donner Br. at 15, 17. Those

allegations, however, are insufficient to establish the “something more” required under

New York law.

With respect to the USPS Known Office of Publication, Der Spiegel does not own

or otherwise directly operate out of the Buffalo location. Instead, Der Spiegel contracts

with a third-party, IPS, which buys copies of Der Spiegel; IPS, in turn, partners with Data

Media Inc., another third-party entity with which Der Spiegel does not contract, which

7 operates the Known Office of Publication and markets and manages subscriptions within

the United States. Even accepting that there is a link – however attenuated – to Der

Spiegel, the mere distribution of Der Spiegel’s publications through the Buffalo location

is insufficient to establish jurisdiction over Der Spiegel in New York. See Best Van Lines,

(“[M]ore than the distribution of a libelous statement must be made

within the state.”). The fact that SPIEGEL+ is accessible by paid subscribers in New

York (and worldwide) is likewise insufficient: “[T]he posting of defamatory material on a

website accessible in New York does not, without more, constitute ‘transacting business’

in New York.”

(citation omitted) (alteration adopted).

Moreover, Donner has not alleged that any of the work associated with the article

occurred in New York, so as to establish the requisite “something more.” Donner

acknowledges that the article was authored by Der Spiegel employees living in Arizona

and Germany; and Donner was living in California at the time of Der Spiegel’s outreach

to her and traveled to Berlin to be interviewed by one of the article’s authors. The

marked absence of affirmative conduct within New York counsels against the exercise of

personal jurisdiction. Cf. Legros v. Irving,

(1st Dep’t 1971) (finding

personal jurisdiction proper where “virtually all the work attendant upon publication of

the book occurred in New York” including research, negotiation, and contract execution);

Sovik v. Healing Network,

(4th Dep’t 1997) (finding personal

jurisdiction proper where “defendants . . . drafted the [defamatory] letter and either

distributed or authorized the distribution of the letter in the Buffalo area and, thus, [had]

8 active involvement and personal control over the writing and distribution of the allegedly

defamatory statement”).

Second, even assuming that Der Spiegel transacts business in New York, Donner’s

“cause of action” does not “‘aris[e] from’ that business transaction or transactions.” Best

Van Lines,

. “New York courts have held that a claim ‘aris[es] from’ a

particular transaction when there is ‘some articulable nexus between the business

transacted and the cause of action sued upon,’ or when ‘there is a substantial relationship

between the transaction and the claim asserted.’”

(citation omitted). Donner’s claims

“arise from” allegedly defamatory statements made by Der Spiegel in an article available

worldwide, and not from the fact of Data Media Inc.’s use of a location in Buffalo, the

ability of New Yorkers to access Der Spiegel’s articles online, or the need for New York

SPIEGEL+ subscribers to remit payment through PayPal or Visa. 4 See Talbot v. Johnson

Newspaper Corp.,

(1988) (defamation action based on letters sent by

California residents about incident occurring at New York school did not arise out of

defendants’ transactions in New York, namely defendants’ daughter’s attendance at the

New York school).

We therefore conclude that Donner has failed to establish that personal jurisdiction

over Der Spiegel is proper pursuant to CPLR §302(a)(1).

4 In Best Van Lines, this Court rejected an argument that the receipt of payments from people within the United States, including in New York, was a sufficient basis for the exercise of personal jurisdiction, where there was “no articulable nexus, or a substantial relationship, between the [payments received] and the allegedly defamatory conduct.” Best Van Lines,

(citation and quotation marks omitted).

9 II. CPLR §302(a)(4)

Personal jurisdiction over Der Spiegel is likewise improper under CPLR

§302(a)(4). Under that provision, a federal court in New York may exercise personal

jurisdiction over a “non-domiciliary, . . . who in person or through an agent . . . owns,

uses or possesses any real property situated within the state.” CPLR §302(a)(4). A

plaintiff seeking to establish jurisdiction under that section must show that her cause of

action arises from the defendant’s ownership, use, or possession of that real property. See

Vaval v. Stanco, LLC,

, 1468 (2d Dep’t 2023); Zeidan v. Scott’s Dev. Co.,

, 1640 (4th Dep’t 2019).

Donner asserts that jurisdiction under §302(a)(4) is proper simply because Data

Media Inc. uses an office in Buffalo to distribute issues of Der Spiegel. However, as

mentioned, Donner’s causes of action arise out of Der Spiegel’s allegedly defamatory

statements in a specific article, and not out of the fact of Der Spiegel’s or Data Media

Inc.’s ownership, use, or possession of a Known Office of Publication in Buffalo. See

Vaval, 219 A.D.3d at 1468 (plaintiff asserting product liability claims arising out of faulty

brake “failed to make a prima facie showing that the causes of action asserted against

[defendant] arose from [defendant’s] ownership of the New York property”); Zeidan, 173

A.D.3d at 1640 (“Although plaintiffs alleged that defendant . . . owns property in New

York, there is no indication in the record that such ownership gave rise to plaintiffs’

allegations of negligence at the water park [owned by defendant] in Pennsylvania.”).

10 Accordingly, Donner has not shown that personal jurisdiction over Der Spiegel is proper

under CPLR §302(a)(4). 5

* * *

Because we affirm the District Court’s holding as to the lack of personal

jurisdiction under New York’s long-arm statute, we do not analyze the propriety of

jurisdiction under the Due Process Clause. We have considered the parties’ remaining

arguments and find them to be without merit. For the foregoing reasons, the judgment of

the District Court is AFFIRMED.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court

5 Because Donner’s causes of action do not arise from the ownership or use of the Buffalo Known Office of Publication, we need not consider whether Data Media Inc.’s use of that location suffices to establish jurisdiction over Der Spiegel under agency principles.

11