July 17, 2001
IN THE SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
BANCO NACIONAL de MÉXICO, S.A.
v. Index No. 00603429
MARIO RENATO MENÉNDEZ RODRIGUEZ,
AL GIORDANO, and
THE NARCO NEWS BULLETIN,
REPLY MEMORANDUM OF LAW IN SUPPORT
OF NARCO NEWS BULLETIN'S AND AL GIORDANO'S MOTIONS TO DISMISS
Although Narco News
Bulletin and Al Giordano submitted separate motions to
dismiss, supported by separate memoranda of law, Banamex has
chosen to respond to both motions in a single memorandum. The
reason that Banamex has chosen that strategy is clear: if this
court analyzes the issues before the court individually with
respect to Narco News Bulletin and Al Giordano (as well as with
respect to each allegedly defamatory statement), Banamex's case
must be dismissed. However, by rolling conclusory allegation
after conclusory allegation into one big bundle, Banamex hopes
to survive the defendants' motions to dismiss.
In order to respond in kind to Banamex's opposition, Narco
News Bulletin and Al Giordano have submitted a joint reply memorandum.
However, each defendant would urge the court to consider their
arguments individually, as set forth below.
II. THE COURT SHOULD ANALYZE EACH ALLEGEDLY
DEFAMATORY STATEMENT INDIVIDUALLY AND THEN DISMISS ANY STATEMENT
THAT FAILS TO SUPPORT A CAUSE OF ACTION FOR DEFAMATION
Banamex begins by arguing that the court has no authority
to dismiss allegedly defamatory statements at this stage of the
proceedings, even if such statements on their face: (a) are not
capable of bearing a defamatory meaning, (b) are protected opinion,
or (c) are not of and concerning the plaintiff. In its view,
once a plaintiff, like Banamex, has alleged in a complaint that
a defendant made defamatory statements, the "issue is one
for the jury, not the courts" (Banamex memorandum, p. 2).
Its claim to that effect is a clear misstatement of the law.
To the contrary,
Dismissal of defamation suits for failure of the complaint
to state a cause of action or to state a claim upon which relief
may be granted occurs with relative frequency. One substantial
factor is that the communication complained of is usually before
the court at the outset; indeed, in many jurisdictions it is
required that complaints themselves provide it.
Thus, unlike most litigation, in a libel suit the central
event--the communication about which suit has been brought--is
literally before the judge at the pleading stage. He or she may
assess it upon a motion to dismiss, firsthand and in context.
In libel (but not slander) cases, there is usually no factual
issue as to who said what, when, where, how, or to whom. 1
The trial court may therefore at the earliest stages make
sound determinations as to issues relating to the communication
of which complaint is made. Thus courts routinely consider, on
motions to dismiss, motion for judgment on the pleadings, or
demurrer, issues such as whether the statement at bar is capable
of bearing a defamatory meaning, whether it is "of and concerning"
the plaintiff, whether it is protected opinion, whether there
is jurisdiction over the defendant, and whether the suit is barred
by privilege or the statute of limitations, and they frequently
grant motions on these grounds and others. (Footnotes omitted.)
Robert D. Sack, Sack on Defamation (3d ed., July 2000),
1 The slander allegations here do not
suffer from the infirmities present in the usual slander case.
Here, as in a libel case, there is no factual dispute as to who
said what, when, where, how, or to whom. An audiotape of the
WBAI interview and a videotape of the Columbia Law School event,
which document the allegedly defamatory statements in question
in their full context, were provided to the court with Mr. Giordano's
original affidavit, Exhibits A and B. Banamex has not disputed
Indeed, New York law specifically requires that "[i]n
an action for libel or slander, the particular words complained
of shall be set forth in the complaint" in order that the
court can rule on just such issues at the motion to dismiss stage
of the proceedings. N.Y.L.P. 3016(a).
Whether particular words are defamatory presents a legal
question to be resolved by the court in the first instance .
. . The words must be construed in the context of the entire
statement or publication as a whole, tested against the understanding
of the average reader, and if not reasonably susceptible of a
defamatory meaning, they are not actionable and cannot be made
so by a strained or artificial construction (Aronson v. Wiersma,
65 N.Y.2d 592, 593-594, 493 N.Y.S.2d 1006, 483 N.E.2d 1138).
Alfajr Printing and Pub. v. Zuckerman, 646 N.Y.S.2d
858 (A.D. 2 Dept. 1996).
See Jimenez v. United Federation of Teachers, 657
N.Y.S.2d 672, 673 (A.D. 1 Dept. 1997) (motion to dismiss granted
because the allegations in the complaint: (a) were insufficient
to prove "actual malice with sufficient clarity," and
(b) the statements in question were either not susceptible of
a defamatory meaning or constituted non-actionable opinion).
In addition to having the ability to issue definitive rulings
without further discovery because the statements in question
are before it, there is a second important reason why courts
are encouraged to rule on issues surrounding defamation at the
motion to dismiss stage, rather than at trial. That reason is
to protect First Amendment rights. The substantial monetary cost,
as well as the tremendous inconvenience to a defendant of having
to defend a defamation lawsuit, have significant chilling effects
on the wide-open debate which is at the core of the First Amendment.
New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964).
As the United States Supreme Court stated in Time, Inc. v. Hill,
385 U.S. 374, 389 (1967):
Fear of large verdicts in damage suits for innocent or merely
negligent misstatement, even fear of the expense involved in
their defense, must inevitably cause publishers to "steer
. . . wider of the unlawful zone," and thus "create
the danger that the legitimate utterance will be penalized."
Accordingly, the earlier such lawsuits, if unjustified, can
be dismissed, the less the effect will be on the exercise of
First Amendment rights.2
2 A corollary reason is
that a judicial finding on defamation issues at a preliminary
stage "will both lessen the possibility that a jury will
use the cloak of a general verdict to punish unpopular ideas
or speakers, and assure an appellate court the record and findings
required for review of constitutional decisions. Cf. Speiser
v. Randall, 357 U.S. 513, 525, 78 S.Ct. 1332, 1341, 2 L.Ed.2d
1460; New York Times, 376 U.S. at 285, 84 S.Ct. at 728."
Rosenblatt v. Baer, 383 U.S. 669 at 677 (1966).
Finally, in this particular case, there is a final reason
why this court should rule on whether the statements in question
are capable of having a defamatory meaning now, rather than at
a later stage of the proceedings. Banamex has alleged that defamatory
statements were made in three separate venues: (1) by Mr. Giordano
while he was performing his duties as the moderator at a Columbia
Law School conference, (2) by Mr. Giordano on a post-midnight
radio station interview on WBAI, and (3) by Narco News Bulletin
over an Internet website. To the extent that the statements in
one or more of these venues are found to be nondefamatory and
are dismissed, the facts left for the court to consider in ruling
on the issues of forum non conveniens and jurisdiction will be
different. Therefore, these issues will not be able to be definitively
decided until the court determines what statements remain in
issue for a jury.
For all the above reasons, the court should not hesitate
to rule on the defamatory nature of each communication in question
at this time.
Nicosia v. De Rooy, 72 F.Supp. 1093 (N.D. Cal. 1999)
is illustrative. There, the court found that:
[g]enerally, a [United States] district court may not consider
any material beyond the pleadings in ruling on a Rule 12(b)(6)
motion. Hal Roach Studios, Inc. v. Richard Feiner & Co.,
Inc., 896 F.2d 1542, 1555, n. 19 (9th Cir. 1989). Material
which is properly submitted as part of the complaint may, however,
be considered. Id. In addition, documents specifically referred
to in a complaint, though not physically attached to the pleading,
may be considered where authenticity is unquestioned. Branch
v. Tunnell, 14 F.3d 449, 454 (9th Cir. 1994). 3
also Aligo v. Time-Life Books Inc. (1994 WL 715605), 23
Media L. Rep. (BNA) 1315 (N.D. Cal. 1994), where the court
ruled on issues concerning the content of magazine and broadcast
materials even though the full documents were not attached to
the complaint. "[A] court may consider 'documents whose
contents are alleged in a complaint and whose authenticity no
party questions, but which are not physically attached to the
pleading'" (citation omitted).
Id. at 1100.
In Nicosia, the court had before it thirteen allegedly
defamatory statements made on an Internet website. On the defendant's
motion to dismiss, the court considered the statements one by
one, with regard to whether each statement was capable of a defamatory
meaning and/or was an assertion of protected opinion. 4 (The court then went on to consider whether
the plaintiff had set forth in its complaint, with the requisite
sufficient specificity, proof of actual malice.5)
court found that eleven of the statements in question were non-actionable,
while two made a threshold showing that they were actionable.
The court dismissed the remaining two statements because the
plaintiff failed to set forth specific enough allegations in
its complaint to meet its burden of showing that the defendant
"must have realized the statement was inaccurate at the
time he made it." Nicosia at 1109. Examining the
statements in their context, the court found that the plaintiff
could never meet its burden of proving actual malice.
The method of analysis used by this court should be no different.
Banamex made five allegations of slander by Mr. Giordano in its
complaint: two during a Columbia Law School forum (Banamex complaint,
paragraphs 22 and 24) and three during a radio interview on WBAI
(Banamex complaint, paragraph 18). Banamex also made eleven allegations
of libel by Narco News Bulletin on "its" website (Banamex
complaint, paragraphs 27, 29-38).
All these statements are now before the court in their full
context. The content of the statements will never become more
clear than they are today. 6
Therefore, where, as here, Mr. Giordano and Narco News Bulletin
have filed motions to dismiss on the grounds that the statements:
(a) are not capable of being construed as malicious, (b) are
protected opinion, (c) are not of and concerning Banamex, and
(d) are privileged statements about a legal proceeding, the court
should rule on the statements in contention individually at this
Only portions of the oral statements in question were set forth
in Banamex's complaint but, as noted above, the entire statements,
in their full context, are now before the court through Mr. Giordano's
supplementation in the form of an audiotape and a videotape,
both of approximately two hours' duration. Similarly, although
certain articles posted on Narco News Bulletin were appended
to Banamex's complaint, the complete set of articles posted on
Narco News Bulletin from its inception to the date of the filing
of this lawsuit have been supplied to the court in order that
the statements in question can be read in their full context,
which includes the hundreds of Internet links set forth in those
documents. These links refer the reader to underlying documents
which support the opinions contained in the Narco News Bulletin
website papers. Third Affidavit of Al Giordano, Exhibit A.
Once the statements are analyzed, one by one, the court will
conclude that none of the statements should survive a motion
The statements in question are analyzed seriatim below.
A. First Allegedly Defamatory Statement Made
by Mr. Giordano at Columbia Law School (paragraph 22)
In paragraph 22 of its complaint, Banamex alleges that:
[d]efendant Giordano asserted at the [Columbia Law School]
conference that Banamex's Chairman and General Director is "a
key drug trafficker" who imports "hundreds of tons
of Colombian cocaine by boat onto his properties . . . and then
by airplane towards the United States off [his] private airfield."
Giordano further asserted that "documentation" exists
establishing the truth of these assertions.
Mr. Giordano admits that if those statements about Roberto
Hernandez had been asserted by Mr. Giordano in the form that
Banamex alleges, there might be an issue for the jury as to whether
such statements were made with malice, at least as to Roberto
Hernandez (the issue of whether the statements are of and concerning
Banamex would still remain to be decided by the court on Mr.
Giordano's motion to dismiss). However, what Mr. Giordano actually
said at Columbia Law School was distorted by Banamex and is far
different from the words attributed to him by Banamex in paragraph
22. In an attempt to be able to allege slander where there is
none, Banamex has "cut and pasted" Mr. Giordano's words
to take them totally out of context. Mr. Giordano's actual words,
which came as he was explaining to the Columbia Law School audience
how he came to know Por Esto! and Mario Menendez are not capable
of bearing a defamatory meaning:
I had traveled to Merida in the Yucatan peninsula of Mexico
to cover the anti-drug summit between President Bill Clinton
and President Ernesto Zedillo. This was a completely manufactured
event . . .
A newspaper which I had never heard of called Por Esto!,
a daily, tabloid-size with color photos, very interesting paper.
And Por Esto! had done a three-part series that week on the host
of the Clinton-Zedillo anti-drug summit, a banker by the name
of Roberto Hernandez. And actually, this was nothing new. Por
Esto! had been writing about Hernandez, president of Banamex,
the National Bank of Mexico, since December 1996, and his role
as a key drug trafficker and importer of hundreds of tons of
Colombian cocaine by boat onto his properties. We're going to
see the documentation in a few minutes, and then by airplane
towards the United States from Mr. Hernandez's private airfield.
Mr. Hernandez is one of the most politically powerful people
An accurate factual statement is not actionable. And all
Mr. Giordano did in the above statement was accurately describe
for the audience at the law school what a daily Mexican newspaper
had been reporting about Roberto Hernandez. This was not defamation.
7 Mr. Giordano's statement
could only be found capable of bearing a defamatory meaning if
Banamex was disputing the accuracy of Mr. Giordano's statement
that Por Esto! had written about Roberto Hernandez's "role
as a key drug trafficker and importer of hundreds of tons of
cocaine." But Banamex is not doing that. Indeed, Banamex
has sued Mario Menendez as a co-defendant precisely because Por
Esto! printed those exact words.
7 Mr. Giordano's statement is no more
susceptible of bearing a defamatory meaning than if a Mexican
journalist had introduced Carl Bernstein and Robert Woodward
in the 1970s in the following way:
I had traveled to Washington, D.C.
to cover a meeting between President Richard Nixon and Mexican
economic officials, a completely manufactured event.
Reporters by the name of Carl Bernstein
and Bob Woodward from a newspaper which I had never heard of
called the Washington Post, a very interesting paper, had done
a three-part series on the President. And actually this was nothing
new. The newspaper had been writing about Nixon for years and
his role in a criminal cover-up. Those reporters are here today
and we are going to hear and see their documentation. Richard
Nixon is the most politically powerful person in the United States.
At no time in Mr. Giordano's statement concerning how he
came to know Mr. Menendez did Mr. Giordano accuse Roberto Hernandez
of being a drug trafficker. Indeed, at no point in his statement
did Mr. Giordano ever indicate that he personally agreed with
Mr. Menendez's claims or documentation. 8
Banamex also alleges in paragraph 22 of its complaint that Mr.
Giordano's statement to the audience that it would be able to
see Mr. Menendez's "documentation in a few minutes"
was defamatory. But, as above, accurate statements cannot be
slander. It is not in dispute that Mr. Menendez did, in fact,
project that documentation, which consisted of photos, maps and
documents setting forth the facts upon which his news stories
were based, onto a screen for the audience.
Furthermore, even if this court somehow
were to find that Mr. Giordano's statement was defamatory, an
action for defamation based on the above statement still would
not be actionable because disclosure of all the facts underlying
an accusation, even if that statement is defamatory in nature
on its face, defeats such a claim.
There is no special rule of law making
criminal slurs actionable regardless of whether they are asserted
as opinion or fact in New York. To the contrary, "accusations
of criminality" are "not actionable" if the "facts
on which they are based are fully and accurately set forth":
in determining whether a particular
communication is actionable, we continue to recognize and utilize
the important distinction between a statement of opinion that
implies a basis in facts which are not disclosed to the reader
or listener (see Hotchner v. Castillo-Puche, 2d Cir.,
551 F.2d 910, 913, cert. denied sub nom. Hotchner v. Doubleday
& Co., 434 U.S. 834, 98 S.Ct. 120, 54 L.Ed.2d 95; Restatement
[Second] of Torts, §566), and a statement of opinion
that is accompanied by a recitation of the facts on which it
Gross v. New York Times Co., 603 N.Y.S.2d 813 at 817, 818.
Similarly, "[a]ccusations of criminal
activity, like other statements, are not actionable if the underlying
facts are disclosed. In re Yagman, 796 F.2d 1165, 1174
(9th Cir. 1986); Dunn v. Gannett New York Newspapers,
833 F.2d 446, 453-54 (3rd Cir. 1987)"; Nicosia v. De
Rooy, supra at 1103.
The reason for the rule is simple.
Once the underlying facts are disclosed, the audience can judge
for itself whether the facts support the allegations.
Moreover, even assuming hypothetically that this court were
to find that Mr. Giordano's words would allow a jury to determine
if they were actionable as to Roberto Hernandez, Mr. Giordano's
words clearly did not defame the plaintiff, which is Banamex.
Mr. Giordano's statement concerned Por Esto!'s reporting of Roberto
Hernandez's actions, not Banamex's actions. Banamex was mentioned
only in the context of identifying Roberto Hernandez. Mr. Giordano's
statement did not infer, imply or suggest, in any way, that Banamex,
as a business, had participated in any aspect of drug trafficking.
It is black letter law is that a statement about the actions
of an officer of a corporation (unrelated to the business of
the corporation) is not considered to be of and concerning the
corporation itself. For example, the Comments to the Restatement
on Torts state that "[a] corporation is not defamed by communications
defamatory of its officers, agents or stockholders unless they
also reflect discredit upon the method by which the corporation
conducts its business." Restatement of the Law, Second,
The Restatement is in accordance with New York law. Afftrex,
Ltd. v. General Electric Co., 161 A.D.2d 855, 856, 555 N.Y.S.2d
903, 905 (3d Dep't 1990) (a corporation had no cause of action
because of an allegedly defamatory statement made against an
individual identified as its owner); Cohn v. National Broadcasting
Co., 67 A.D.2d 140, 414 N.Y.S.2d 906, 909 (1st Dep't 1979),
aff'd, 50 N.Y.2d 885, 430 N.Y.S.2d 265 (a law firm cannot maintain
an action of defamation based on defamation of its principal
producer of income--"no such derivative claim for defamation
exists"); Warner Instrument Co. v. Ingersoll, 157
F. 311 (C.C.D.N.Y. 1907) ("to merely attack or challenge
the rectitude of the officers or members of a corporation, and
to hold them or either of them up to scorn, hatred, contempt,
or obloquy for acts done in their official capacity, or which
would render them liable to criminal prosecution, does not give
the corporation a right of action for libel"); The Adirondack
Record, Inc. v. Lawrence, 202 A.D. 251 (3d Dep't 1922) ("A
corporation cannot maintain an action for slander or libel upon
words spoken or published solely of and concerning its officers
or members"); Cal-Therm Industries, Inc. v. Dun &
Bradstreet, Inc., 75 F.Supp. 541 (S.D.N.Y. 1948) (holding
that a corporation cannot maintain an action for defamation based
on statements concerning its officers or members).
The law in New York is no different than the law in other
jurisdictions. See Church of Scientology v. Flynn, 578
F.Supp. 266, 268 (D. Mass. 1984); Provisional Gov't of New
Afrika v. American Broadcasting Cos., 609 F.Supp. 104, 108
(D. D.C. 1985).
Since the law in New York is clear that: (a) a corporation
can only recover for defamatory statements concerning its officers
or employees if those statements directly concern the business
of the corporation and (b) the above statement of Mr. Giordano
at Columbia Law School is not of and concerning the business
of Banamex, this court should dismiss the statement not only
because it was not capable of bearing a defamatory nature, but
also because it is not "of and concerning" Banamex.
there is no law in New York specifically on this point, arguably,
Banamex is required to prove with "convincing clarity"
that the statements in question are of and concerning it. In
New York Times, the Supreme Court held that the plaintiff
has the burden of proving "actual malice" with "convincing
clarity." New York Times Co. v. Sullivan, 376 U.S. 254,
285-86 (1964). Accord: Jimenez v. United Federation of Teachers,
supra, p. 673. That heavy burden of "convincing clarity"
has likewise been held to be applicable to the question of whether
a statement is "of and concerning" the plaintiff in
other jurisdictions. See Anders v. Newsweek, Inc., 727
F.Supp. 1065 (S.D. Miss. 1989), aff'd, 949 F.2d 1159 (5th Cir.
1991) (plaintiff must prove by clear and convincing evidence
that language at issue was clearly directed toward plaintiff
and was clearly and unmistakably defamatory); Wright v. Dollar
General Corp., 602 So. 2d 772 (La. Ct. App. 1992) (plaintiff
must prove all elements of claim by clear and convincing proof);
Spears v. McCormick & Company, Inc., 520 So. 2d 805
(La. Ct. App. 1987); Celebrezze v. Dayton Newspapers, Inc.,
41 Ohio App. 3d 343, 535 N.E.2d 755 (1988) (all critical elements
of public-plaintiff case must be proven by clear and convincing
B. Second Allegedly Defamatory Statement
Made by Mr. Giordano at Columbia Law School
The second allegedly defamatory statement of Mr. Giordano
is set forth by Banamex in paragraph 24 of Banamex's complaint.
It too must be dismissed because: (a) it is no more defamatory
in nature than the statement in paragraph 22 discussed above,
and (b) it is not "of and concerning" Banamex.
In paragraph 24, Banamex again commits the same error of
taking Mr. Giordano's words out of context in order to be able
to allege a prima facie case of slander. Paragraph 24 alleges
Later in the [Columbia Law School] conference, Giordano represented
that he had personally investigated the assertions made in Por
Esto! of drug trafficking by the "narco banker" Hernandez,
and confirmed that they were "pretty convincing."
However, Mr. Giordano's actual words are quite different
from the allegation. Mr. Giordano, in fact, said:
When I began investigating the story of Clinton holding
his anti-drug summit on the property of a narco-banker . . .
I received a telephone call at my house in Mexico from Sam Dillon,
who I had never met. . . . First he picked my brain for information.
He wanted to know what I had, what I was going to publish. I
said, "Sam I'm still in the middle of my investigation
to see whether these allegations on the part of Por Esto! are
true. But it seems pretty convincing." Sam Dillon lost
his cool and began screaming at me. (Emphasis added.)
This statement was not slander. Mr. Giordano was recounting
for the audience a telephone conversation which took place when
he "began investigating the [Por Esto!] story of Clinton
holding his anti-drug summit on the property of a narco-banker"
Mr. Giordano did nothing more than say that during the beginning
phase in his investigation "to see whether these allegations
on the part of Por Esto! are true," he had told another
reporter that the allegations seemed "pretty convincing"
This statement was not slander. It was a statement of pure
protected opinion. The New York courts have:
[E]ndorsed a methodology derived from Steinhilber v. Alphonse,
68 N.Y.2d 283, 508 N.Y.S.2d 901, 501 N.E.2d 550, supra that requires
that a court look "at the content of the whole communication,
its tone and apparent purpose" (Immuno AG v. Moor-Jankowski,
supra, 77 N.Y.2d at 254, 566 N.Y.S.2d 906, 567 N.E.2d 1270).
Designed to avoid "the fine parsing . . . that might now
be required under Federal law" (id., at 255, 566 N.Y.S.3d
906, 567 N.E.2d 1270), the State law approach was viewed as better
able to "assure that--with due regard for the protection
of individual reputation--the cherished constitutional guarantee
of free speech is preserved" (id., at 256, 566 N.Y.S.2d
906, 567 N.E.2d 1270).
As in 600 W. 115th St.:
[W]hen the factors discussed above as part of our Federal
analysis are considered under a State contextual analysis, it
is clear that, to the extent they make up the "content,
tone and purpose" of [Mr. Giordano's] communication, they
dictate a finding that [Mr. Giordano's] speech was a statement
of opinion and advocacy and not a presentation alleging objective
inquiry of defamatory content entails an examination of the challenged
statements with a view toward (1) whether the specific language
in issue has a precise meaning which is readily understood; (2)
whether the statements are capable of being proven true or false;
and (3) whether either the full context of the communication
in which the statement appears or the broader social context
and surrounding circumstances are such as to "'signal. .
. readers or listeners that what is being read or heard is likely
to be opinion, not fact,'" Gross v. New York Times Co.,
603 N.Y.S.2d 813, 817 (Ct. App. 1993).
In this case, any reasonable person in the audience at Columbia
Law School that night would have been aware from Mr. Giordano's
words--"pretty convinced," "when I began investigating
the story"--that the statement in question was his opinion,
not a factual allegation of truth.
Furthermore, Mr. Giordano's statement was not of and concerning
Banamex. Indeed, Banamex was never mentioned in the statement.
For both these reasons, the second allegedly defamatory statement
made by Mr. Giordano at Columbia Law School must be dismissed.
C. First Allegedly Defamatory Statement Made
on WBAI (paragraph 18)
Mr. Giordano's first allegedly defamatory statement made
on WBAI is set forth in paragraph 18 of the Banamex complaint:
. . . I read in Mr. Menendez's daily newspaper, Por Esto!
that the host of the anti-drug summit between the two presidents,
Clinton and Zedillo, was the most powerful banker in Mexico,
who himself was a money launderer and a drug trafficker. And
Por Esto! went further than just saying that he was a money launderer
and drug trafficker, they went and took pictures of the cocaine
on his property--a very dangerous job his reporters did; they
are very valiant journalists. Pictures of the cocaine containers
washed up on his beaches, the 43 kilometers of pristine beaches
and Mayan ruins that this man has bought up. His name is Roberto
Hernandez; he is the president of the National Bank of Mexico,
Again, Banamex is simply wrong in its claim that this is
slander. This statement is very similar to the introduction that
Mr. Giordano made of Mr. Menendez at Columbia Law School, discussed
above. Mr. Giordano is explaining on WBAI radio how he came to
know of Por Esto! and what he had read in the newspaper for the
audience. Mr. Giordano did not assert in the statement that the
allegations made in Mr. Menendez's story were true, nor did he
adopt the statements made by Por Esto! as his own. Since there
is no suggestion that Mr. Giordano misstated what he had read
in Por Esto!, there is no defamation.11
one personal viewpoint expressed by Mr. Giordano in his statement
is that the Por Esto! reporters, by trespassing onto private
property to take pictures of cocaine containers had acted "valiantly"
in undertaking "a dangerous job." This was plainly
a statement of opinion.
Equally importantly, Banamex, again, is only mentioned in
the context of identifying Roberto Hernandez: "His name
is Roberto Hernandez; he is the president of the National Bank
of Mexico." As such, the statement was not of and concerning
Accordingly, the first allegedly defamatory statement in
paragraph 18 should be dismissed.
D. Second Statement Made on WBAI (Paragraph
Mr. Giordano's second allegedly defamatory statement made
on WBAI was as follows:
. . . We are here with somebody [Mr. Menendez] who is involved
in the front lines of an international battle that has grave
consequences, and he needs our support here in New York and here
in the United States of America so that the Mexican government
and the U.S. government understand that the American people are
behind people who tell the truth, like Mario Menendez.
This statement is no more actionable than Mr. Giordano's
first statement. The statement is one of "advocacy,"
in which Mr. Giordano indicates that in his opinion, Mr. Menendez
tells the truth and should be supported by the American people.
Certainly, the average person hearing Mr. Giordano's statement
would not take it to be a factually defamatory statement. Furthermore,
it plainly must be dismissed because it is not of and concerning
Banamex. The statement does not even mention Roberto Hernandez,
let alone Banamex.
E. Third Statement Made on WBAI (Paragraph
Approximately one hour after the second statement, Mr. Giordano
made his third allegedly slanderous statement:
. . . And these things that my favorite philosophy graduate
is saying here, that Mario Menendez is saying, is that these
are not invented. He has published the photos. He has published
the eyewitnesses. He has published the testimony. In this three-part
series, there were 40 different photos proving this. And the
photos don't lie.
Again, a jury would not be justified in finding that Mr.
Giordano slandered Banamex in this statement. The statement followed
a lengthy discussion between Mr. Menendez and the WBAI host announcer
about journalism, as well as the actions and inactions of the
United States and Mexican governments with respect to the war
on drugs. Their discussion did not mention Roberto Hernandez.
Even assuming that it is proper to relate Mr. Giordano's statement
back to his first statement about Por Esto! over one hour earlier,
nothing he said was untrue. He simply told the audience that
his "favorite philosophy student," Mr. Menendez, (a)
"is saying" that his allegations in Por Esto! "are
not invented," (b) that he has published in Por Esto! (i)
forty "photos," (ii) names of "eyewitnesses"
and (iii) "testimony," and, furthermore, that (c) "photos
do not lie." There is nothing that Mr. Giordano said about
Mario Menendez's statements that Banamex disputes. Indeed, these
particular statements are exactly why Banamex is suing Mario
In addition, the three allegedly defamatory statements made
on WBAI should be dismissed because none of them are "of
and concerning" Banamex. Only the first statement even mentioned
Banamex and that was only in the context of identifying Roberto
Mr. Giordano's three statements on WBAI radio did not in
any way refer to the corporate activities of Banamex. There was
absolutely no implication in any of the statements that Banamex
had or was engaged in or involved with any illegal activity.
In short, there was not the requisite "connection"
between an officer of a corporation and the corporation sufficient
to allow Banamex to bring a libel claim.
Accordingly, each of the three statements made at WBAI set
forth in paragraph 18 should be dismissed pursuant to CPLR 3211(a)(7).
III. BANAMEX DID NOT ALLEGE IN ITS COMPLAINT
WITH THE REQUIRED MINIMUM SPECIFICITY THAT EITHER MR. GIORDANO
OR NARCO NEWS BULLETIN ACTED WITH RECKLESS DISREGARD OF THE TRUTH
It is well established in New York (as well as elsewhere)
that a statement concerning a public official or public figure,
even if defamatory by nature, is constitutionally privileged
unless such statement was made with actual malice.
Because stringent defamation laws--or, more often, the fear
of their imposition--can deter and silence people who would otherwise
involve themselves in the public debate, the Supreme Court has
fashioned broad protection under the Federal Constitution for
civic participants, most notably by requiring plaintiffs who
are public officials (New York Times Co. v. Sullivan,
supra) or public figures (Curtis Publi. Co. v. Butts,
388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094) to show actual
malice on the part of the defendant (see also Gertz v. Robert
Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789).
600 West 115th St. Corp. v. Von Gutfield, 589 N.Y.S.2d
825 at 829 (Ct. App. 1992).
"Implicit in the Sullivan-Gertz line of cases has
been the understanding that, when the rules of defamation are
drawn too finely, when any erroneous statement is likely to open
the statement maker to liability, First Amendment values suffer
because would-be communicators, fearing lawsuits, may be reluctant
to risk expressing themselves. To avoid that result, and the
resulting impoverishment of the public forum, the Court has been
willing to allow in some circumstances otherwise valid claims
of reputational harm to go uncompensated in order to encourage
citizens and media outlets to express themselves freely when
matters of public interest are at issue. In the balance to be
struck between the State's interest in protecting its citizens
from reputational injury and the Constitution's requirement that
the State not unduly burden its citizens seeking to participate
in the fundamental processes of governance, the scale is not
even." 600 West 115th St., supra at 829.
Therefore, even if Banamex proves the statements in question
to be capable of a defamatory meaning and of and concerning Banamex,
in order to succeed on its claim, Banamex will have to show that
Mr. Giordano's statements were published with actual malice.
Banamex is clearly a public figure under existing case law and
Mr. Giordano's statements about it were matters of public interest.
See Ithaca College v. Yale Daily News Publishing Co.,
105 Misc. 2d 793, 433 N.Y.S.2d 530 (Sup. Ct. Tompkins Co.
1980), aff'd 85 A.D.2d 817, 445 N.Y.S.2d 621 (3d Dept. 1981)
(corporation may be deemed a public figure generally because
of its size and influence, or because of action it has taken
that invites public comment); Gertz v. Robert Welch, Inc.,
418 U.S. 323 (1974); Reliance Ins. v. Barron's, 442 F.Supp.
1341 (S.D.N.Y. 1977) (defamatory article was of legitimate public
concern because it related to a large, publicly held, government-regulated
The proof of actual malice is extremely difficult. It has
been defined by the New York courts as requiring a showing by
the plaintiff with "convincing clarity" that the defendant
made the statement in question "with knowledge that it was
false or with reckless disregard of whether it was false or not."
Freeman v. Johnston, 614 N.Y.S.2d 377 at 379 (Ct. App.
In the case before the court, that proof will be impossible.
Mr. Giordano's statements almost universally state that they
were founded on the Por Esto! articles (as well as on the Mexican
court's dismissals of libel complaints against Mario Menendez).
In virtually every statement of Mr. Giordano claimed by Banamex
to be defamatory, he refers to the Por Esto! articles and the
documentation contained in those articles, e.g., photographs
and eyewitness statements. Mr. Giordano's repeated references
to those articles and that documentation forecloses any possibility
that Banamex will be able to prove that Mr. Giordano acted with
reckless disregard as to the truth.
Even at the complaint stage of a defamation action, Banamex
is required to make a sufficiently specific allegation in its
complaint to support a claim that Mr. Giordano did not have a
good faith and reasonable basis to believe that the articles
in Por Esto! were true. Having failed to provide any such specificity
in its complaint and having such proof specifically belied by
Mr. Giordano's reliance on the content of a well-known and well-read
Mexican daily newspaper, Por Esto!, dismissal is appropriate.
repeated barren conclusory allegations in its complaint that
Mr. Giordano "knew" that Mario Menendez's articles
were "untrue" is not enough to allow the case to proceed
down the long and expensive road to trial.
IV. THE NARCO NEWS BULLETIN IS NOT SUBJECT
TO PERSONAL JURISDICTION IN NEW YORK
This court should consider the issue of jurisdiction over
Narco News Bulletin (as well as the issue of forum non conveniens)
separate and apart from the oral statements Mr. Giordano made
at Columbia Law School and on WBAI. This is true for several
First, Banamex named Narco News Bulletin as a separate defendant
in the lawsuit. Even now, despite clear proof that Narco News
Bulletin is not an entity capable of being sued, Banamex has
chosen not to amend its complaint and voluntarily dismiss Narco
News Bulletin as a defendant. Therefore, as a matter of law,
personal jurisdiction with respect to Narco News Bulletin should
be considered separately from personal jurisdiction over Al Giordano.
Second, the general rule is that defamatory statements should
be considered separately for jurisdictional purposes. Robert
D. Sack, Sack on Defamation, p. 16-3 (3d ed., July 2000).
This rule is particularly applicable in this case, where the
website known as the Narco News Bulletin was not even in existence
at the time of Mr. Giordano's oral statements at the Columbia
Law School forum and on radio station WBAI. 14
court will, of course, necessarily consider jurisdiction over
the Narco News Bulletin separately from Mr. Giordano's oral statements,
should it dismiss the slander count as argued above.
B. Personal Jurisdiction Over Narco News
Bulletin in New York Would, in Fact, Have Significant Implications
for Websites Around the World
Banamex begins its jurisdictional argument by making an important
concession. It concedes that it "does not . . . contend
that Giordano's website is subject to personal jurisdiction in
New York because it is available 24 hours per day, seven days
per week, to any New York citizen who chooses to 'log' onto it."
Banamex memorandum at 12. In other words, it agrees with Narco
News Bulletin that the mere availability of a website to New
York residents cannot be used as a factor in determining whether
to confer jurisdiction. 15
This concession not only is important but it is totally necessary,
since an Internet website cannot limit access to its work to
particular states or send differing versions of its communication
to different jurisdictions. Therefore, if jurisdiction over a
defendant website in a particular state were to rest, in any
part, on the mere availability of the website's message in that
state, Internet sites would be forced either to comply with the
regulations imposed by the state with the most stringent standard,
or forego Internet communication of its message altogether.
Banamex then implicitly concedes that the availability of
a website to New York residents, plus minor incidental contacts
between Narco News Bulletin and New York, will not provide the
basis for a finding of personal jurisdiction. Instead, Banamex
suggests that "the exercise of personal jurisdiction over
Giordano in this case is plainly justified based on his conduct
in New York and the publication of defamatory falsehoods on an
interactive, New York-based website."
However, neither provides a basis for the personal jurisdiction
Banamex seeks. Narco News Bulletin is neither an interactive
website nor a New York-based website. (These two issues are explored
directly below. 16 )
noted above, Banamex's claims against Mr. Giordano based on slander
should be considered separately from Banamex's claims against
Narco News Bulletin for libel. Therefore, Mr. Giordano's conduct
in New York in March 2000 is not material to the website jurisdictional
issue (see argument above).
C. Narco News Bulletin is Not an Interactive
Banamex has correctly conceded that the availability of information
from a non-interactive website located in another jurisdiction
does not confer personal jurisdiction over that website in New
York. Therefore, Banamex, in its opposition, attempts to label
Narco News Bulletin an interactive website and thereby differentiate
Narco News Bulletin from the two leading New York federal cases
cited by Narco News Bulletin.
The degree of interactivity is one factor that distinguishes
this case from Hearst Corp. v. Goldberger, No. 96 Civ.
3620, 1997 WL 97097 (S.D.N.Y. Feb. 26, 1997) and Bensusan
Rest. Corp. v. King, 937 F.Supp. 295 (S.D.N.Y. 1996). In
Hearst Corp., the magistrate judge found that defendant's web
site was "at most, an announcement of the future availability
of his services for attorneys," and thus most closely akin
to an advertisement in a national magazine. See 1997 WL 97097,
at *10. As such, the web site's mere existence could not suffice
to confer personal jurisdiction. See id. (citing Davidson
Extrusions, Inc. v. Touche Ross & Co., 131 A.D. 2d 421,
424, 516 N.Y.S. 2d 230, 232 (2d Dep't 1987)). In Bensusan, the
defendant web site only posted the schedule of shows and provided
information about a music club, but provided no means for ordering
tickets or otherwise utilize the information provided on that
site. See 937 F.Supp. at 299.
Banamex memorandum at p. 11, x 13.
Interestingly enough, Banamex begins its argument on this
issue by properly defining an interactive website as one that
allows "an exchange of information between the browser's
computer and [the] host computer." Blumenthal v. Drudge,
992 F.Supp. 44, 56 (D.D.C. 1998). (Banamex memorandum at 18.)
See also Zippo Manufacturing Co. v. Zippo Dot Com, Inc.,
952 F.Supp. 1119 (E.D. Penn. 1997) (an interactive website is
one where users directly exchange information with host computers)
(in Zippo, Internet contracts with seven Internet service
providers and 3,000 residents of Pennsylvania were found sufficient
to confer jurisdiction).
However, Banamex then quickly goes off-course with its bald-faced
claim that Narco News Bulletin is an interactive website. This
is factually untrue. From the date of Narco News Bulletin's inception
until the date of the filing of this lawsuit, it is undisputed
that there was no "exchange of information" between
any "browser's computer" (in New York or elsewhere)
and Mr. Giordano's "host computer" in Maryland (affidavit
of Al Giordano with respect to Narco News Bulletin, par. 22).
The Drudge court properly explained the type of activity
(none of which is present here) which makes a website interactive.
The Drudge Report's web site allows browsers, including District
of Columbia residents, to directly e-mail defendant Drudge, thus
allowing an exchange of information between the browser's computer
and Drudge's host computer. Hearing Tr. at 42-42, 61; see Zippo
Mfg. Co. v. Zippo Dot Com, Inc., 952 F.Supp. at 1124. In
addition, browsers who access the website may request subscriptions
to the Drudge Report, again by directly e-mailing their requests
to Drudge's host computer. In turn, as each new edition of the
Drudge Report is created, it is then sent by Drudge to every
e-mail address on his subscription mailing list, which includes
the e-mail addresses of all browsers who have requested subscriptions
by directly e-mailing Drudge through his web site. The constant
exchange of information and direct communication that District
of Columbia Internet users are able to have with Drudge's host
computer via his web site is the epitome of web site interactivity.
Id. at 56.
admits that it was only after its lawsuit was filed that Narco
News Bulletin established a subscription service like the one
in Blumenthal. Banamex memorandum at 18. However, events
that occur after the filing of a lawsuit cannot be used to establish
jurisdiction (see argument below, pp. 22-23).
Implicitly recognizing no such activity occurred on Narco
News Bulletin's host computer, Banamex tries to skirt the issue
by claiming that Narco News Bulletin's website invitation to
its readers to send their "comments, criticisms, news tips
and participation (as well as your nominations for Narco-of-the-Month
and Hero-of-the-Month") to a different web address 18 renders Narco News Bulletin
an interactive website.19
In Drudge, e-mail went to the domain name address Drudge@Drudgereport.com--the
same computer from which the defendant published his website.
Mr. Giordano did not use or promote his e-mail address at Narconews.com
prior to the filing of this lawsuit. He used an e-mail address
at Hotmail.com, in Redmond, Washington, not the Narco News Bulletin
host computer in Maryland (see affidavit of Al Giordano with
respect to Narco News Bulletin, paragraph 22).
websites found passive, or noninteractive, for jurisdictional
purposes in Bensusan and Hearst invited activity, as did the
Narco News Bulletin website. In Hearst, information was
provided on the website concerning future services, while in
Bensusan the e-mail address of the Blue Club of B.B. King
had the very same "click and send an e-mail" feature
that was contained on Narco News Bulletin.
But to allow this type of activity to satisfy the definition
of an interactive website would be to ignore the definition of
an interactive website agreed on by the courts in Drudge,
Hearst, Bensusan and Zippo: one in which
there is an "exchange of information between the browser's
computer and [the] host computer." Banamex is requesting
that this court redefine the word "interactive" in
the context of Internet law. That invitation should be rejected.
Where there is no such exchange with a host computer, as here,
a website is noninteractive for jurisdictional purposes.
D. Narco News Bulletin is Not New York Based
Banamex also asserts a number of "facts" which
it claims cumulatively show that Narco News Bulletin was New
York-based and/or New York-directed, thus providing personal
jurisdiction over Narco News Bulletin. They are examined one
by one below.
1. Nexus Between the Subject Matter of the
Narco News Bulletin's Articles and New York
Banamex first relies on the proposition in Drudge that a
nexus between the website and the state in which the lawsuit
is brought is a factor which can be considered in deciding whether
to confer jurisdiction. Analytically, Banamex is correct. But,
factually, it fails.
In Drudge, there was a clear nexus between both: (a)
the subject matter of the particular article alleged to be defamatory
and Washington, D.C., the forum in which the plaintiff sued,
as well as (b) the general subject matter of the Drudge website
and Washington, D.C. First, the subject matter of the article
in question there was an allegation of spousal abuse, specifically
directed at a White House employee and resident of Washington,
D.C., Sidney Blumenthal. Second, the Drudge website itself was
directed at Washington, D.C.:
The subject matter of the Drudge  Report primarily
concerns political [*57] gossip and rumor in Washington, D.C.
Defendant Drudge characterizes himself as the "Thomas Paine
of the Internet, . . . who is circulating information for the
citizenry reporting on [federal] governmental abuses. . . . and
earthquakes . . . at the White House. Hearing Tr. at 37, 41;
see Pls.' Opp'n. Ex. 1. Even though Drudge may not advertise
in physical locations or in local newspapers in Washington, D.C.,
the subject matter of the Drudge Report is directly related to
the political world of the Nation's capital and is quintessentially
"inside the Beltway" gossip and rumor. Drudge specifically
targets readers in the District of Columbia by virtue of the
subjects he covers . . . By targeting the Blumenthals, who work
in the White House and live in the District of Columbia, Drudge
knew that "the primary and most devastating effects of the
[statements he made] would be felt" in the District of Columbia.
Telco Communications v. An Apple A Day, 977 F.Supp. at
Id. at 57.
Here, neither factor is present with regard to Narco News
Bulletin and New York. The allegedly defamatory sections of the
articles on Narco News Bulletin in question are all directed
at a resident of Mexico, Roberto Hernandez, who has no claimed
connection to New York. Secondly, Narco News Bulletin is not
directed in any way, shape, or form toward New York. Each and
every one of its eighty-two articles, which have been provided
to the court in full, focus on political issues in Mexico, Central
America or the Caribbean. None involve New York. 20
making its articles available in English, it is fair to say that
Narco News Bulletin has directed its articles toward the English-speaking
world. However, its articles are no more directed toward New
York than Kansas, Nova Scotia, London, or English speaking populations
in foreign countries throughout the world. Narco News Bulletin
has no "special connection," as Banamex would have
it, to New York.
2. Narco News Bulletin Held a Legal Defense
Fundraising Party in New York
Banamex then claims that Narco News Bulletin is New York-based,
because it held a party in New York to raise funds for its defense
of this lawsuit (Banamex memorandum at 16). However, Banamex
should know better than to make a claim of jurisdiction based
on post-lawsuit filing activities, especially when those activities
were made necessary by the need to defend itself from Banamex's
lawsuit. Activities of a defendant in a forum state which occur
after the date of the filing of a lawsuit, cannot be used to
confer jurisdiction over that defendant. Only pre-litigation
contacts are relevant to the jurisdictional question. See, e.g.,
Metropolitan Life Ins. Co. v. Robertson-Ceco Corp., 84
F.3d 560, 569 (2d Cir.), cert. denied, 136 L.Ed.2d 398, 117 S.Ct.
508 (1996); Connecticut Artcraft Corp. v. Smith, 574 F.Supp.
626, 630 (D. Conn. 1983) (same); Lachman v. Bank of Louisiana
in New Orleans, 510 F.Supp. 753, 757 (N.D. Ohio 1981) (same);
In re Puerto Rico Air Disaster Litig., 340 F.Supp. 492,
298 and n. 19 (D.P.R. 1972).
Indeed, Narco News Bulletin's post-litigation contacts with
New York were to raise money for its legal defense and were due
to Banamex's choice of the New York forum. See, e.g., Educational
Testing Serv. v. Katzman, 631 F.Supp. 550, 556 (D.N.J. 1986)
(defendant's contacts with the forum "subsequent to the
filing of the complaint, but which are not the result of his
defense of this case, are relevant to determining" personal
Accordingly, the post-filing activities of Al Giordano and/or
Narco News Bulletin cannot be used as a factor to be considered
in determining jurisdiction.
3. Post Office Box in New York
It is not in dispute that Narco News Bulletin listed a New
York post office box as its address. But it is equally not in
dispute that the post office box was never used by Narco News
Bulletin (affidavit of Al Giordano with respect to Narco News
Bulletin, par. 20). A non-used post office box address of a defendant
in the forum jurisdiction cannot be used as a factor to support
a finding of personal jurisdiction.
4. "Affiliations" with New York
Banamex's attempts to make much of Narco News Bulletin's
"affiliation" with the Media Channel. But that "affiliation"
is unrelated to the allegedly defamatory statements and should
not be weighed as a factor in deciding whether Narco News Bulletin
is subject to personal jurisdiction.
Narco News Bulletin's "affiliation" with the Media
Channel means that it, along with over six hundred other Media
Channel website "affiliates" worldwide, simply stated
its "affiliation," or support of, that site. 21 There is no other relationship,
financial or otherwise, between the two.
third affidavit of Al Giordano, para. 13 and 14.
If this "affiliation" was allowed to be a factor
in supporting a finding that New York had jurisdiction over Narco
News Bulletin, it would significantly decrease linkage between
websites worldwide. Websites, knowing that such affiliations
could be used to confer jurisdiction in New York, would quickly
end such relationships.
The ruling advocated by Banamex would not be in keeping with
New York's specific and often repeated intention to open, not
close, its doors to the national and international press. The
many Internet organizations that have chosen to locate in New
York precisely because of its long and proud tradition concerning
media freedom would soon find the chilling effect of such a decision
drying up and ending their affiliations with websites throughout
5. Location of Narco News Bulletin's Internet
Banamex claims that one factor that militates in favor of
a finding of jurisdiction is that Narco News Bulletin's internet
service provider is located in New York.
However, as explained in Narco News Bulletin's initial memorandum,
it is the physical location of the host or server computer (which,
in this case, is located in Maryland 22
) that has been deemed significant in Internet law to
date. No decision has found that the incidental location of the
billing source for that server is a factor to be considered in
the jurisdictional analysis. 23
See affidavit of Raj Dutt.
In fact, in Jewish Defense Organization v. Ranban, 72
Cal. App. 4th 1045, 85 Cal. Rptr. 2d 611 (1999), the court declined
to find jurisdiction in California even where the defendant had
contracts with three Internet service providers: "If the
[court] found personal jurisdiction, based on the happenstance
of the physical location of the Internet server, every complaint
arising out of the alleged tort on the Internet would automatically
result in personal jurisdiction wherever the Internet server
is located. That would not comport with traditional notions of
what qualifies as purposeful activity invoking the benefits and
protections of the forum state." Id. at 1057, n. 1.
6. Funding from New York for Narco News Bulletin
In Drudge, jurisdiction was based partly on the fact that
monies were received from fifteen Washington, D.C. residents
in response to the defendant's fundraising efforts on its website.
But here, although there was a website-based fundraising appeal,
no monies were received from New York as a result (third affidavit
of Al Giordano, par. 15).
Since Banamex has conceded that the mere existence of a website
that posts information not directed to, but merely available
to New York residents, cannot be used as a factor in conferring
jurisdiction, the mere posting of an appeal on that website,
not directed to, but merely available to New York residents,
likewise should not be a factor in the consideration of personal
jurisdiction, when that appeal resulted in no funds.
7. Collaboration with the Lindesmith Center
The last remaining factor upon which Banamex urges personal
jurisdiction over Narco News Bulletin is Al Giordano's collaboration
with the Lindesmith Center, a New York and California based organization.
However, as Al Giordano clearly spells out in his third affidavit,
his personal collaboration with the Lindesmith Center was unrelated
to Narco News Bulletin's activities (par. 12). This is sufficient
to be a factor in conferring jurisdiction, since the New York
Court of Appeals has construed §302(a)(1) to require that
the claim asserted must "bear a substantial relationship
to the transaction out of which the instant action arose,"
and that "[e]ssential to the maintenance of a suit against
a nondomiciliary is the existence of some articulable nexus between
the business transacted and the cause of action sued upon,"
McGowan v. Smith, 52 N.Y.2d 268, 272, 419 N.E.2d 321,
323, 437 N.Y.S.2d 643, 645 (1981), a standard the New York Court
of Appeals reiterated in Talbot v. Johnson Newspaper Corp.,
71 N.Y.2d 827, 829, 522 N.E.3d 1027, 1029, 527 N.Y.S.2d 729,
V. THE ACTIONS AGAINST BOTH NARCO NEWS BULLETIN
AND MR. GIORDANO SHOULD BE DISMISSED ON FORUM NON CONVENIENS
The issue of whether the action should be dismissed on forum
non conveniens grounds, like the issue of jurisdiction, should
be considered separately from both Narco News Bulletin and Mr.
Giordano. However, dismissal is required for both defendants.
The factors to be considered under New York law are similar,
if not identical, to the factors which the United States Supreme
Court suggests should be considered in such an analysis: (1)
the availability of an alternative forum, (2) "the relative
ease of access to sources of proof," (3) "availability
of compulsory process for attendance of unwilling" witnesses,
(4) "the cost of obtaining [the] attendance of willing"
witnesses, (5) the "possibility of [a] view of [the] premises,
if [a] view would be appropriate [in] the action," (6) "all
other practical problems that make trial of a case easy, expeditious
and inexpensive," (7) local interest in the controversy,
(8) the administrative difficulties caused by the congestion
of local court dockets with foreign lawsuits, (9) the avoidance
of unnecessary problems in choice of law and the application
of foreign law, and (10) the imposition of jury duty on residents
of a jurisdiction having little relationship to the controversy.
Gulf Oil Corp. v. Gilbert, 330 U.S. 501 (1947).
These ten factors militate heavily against allowing the case
to proceed in New York. Perhaps the clearest reason why the case
should be dismissed in New York and proceed in Mexico, is that
if the case proceeds to trial in New York, the major issue to
be decided by the jury will be whether Mr. Giordano acted with
actual malice. The answer to that will be based on Mr. Giordano's
investigation which took place in the Yucatan of Mexico. That
investigation included Mr. Giordano's interviews with Por Esto!
reporters and interviews with persons acquainted with Mario Menendez
(third affidavit of Al Giordano, par. 11). These individuals,
all of whom reside in Mexico, will be witnesses at trial. None
of them will be subject to compulsory process in New York.
Banamex's assertion that the case will consist primarily
of New York witnesses is totally specious. The videotape of a
Columbia Law School event and the audiotape of the WBAI interview
will serve as the complete record of what Mr. Giordano said in
New York. No one from New York will need to be called to testify
as to what, when, or where Mr. Giordano made his statements.
Banamex's further claim, that it intends to call New York
witnesses to interpret Mr. Giordano's statements, verges on the
absurd. As Banamex well knows, the issue of actual malice will
be decided by a jury based on an objective standard of what Mr.
Giordano knew. There is no precedent allowing witnesses to testify
at trial as to the meaning they personally might have given to
Mr. Giordano's statements. The jury will be instructed to determine
whether Mr. Giordano, in view of the knowledge that he held at
the time that he made his statements, made his statements knowing
them to be false, as Banamex has alleged. If the statements were
not made with knowledge of their falsity, the jury will be instructed
to return verdicts for Mr. Giordano and Narco News Bulletin.
VI. BANAMEX'S ARGUMENT WITH REGARD TO CONFLICT
OF LAW FAILS TO ANALYZE THE STATEMENTS MADE ON NARCO NEWS BULLETIN
Banamex's analysis of the conflict of law issues in its opposition
fails because it ignores the clear law holding that each discrete
claim of defamation is subject to a separate conflict of law
analysis. Wells v. Liddy, 186 F.3d 505, 522-31 (1999).
In other words, Banamex's claims of slander based on statements
made in New York must be analyzed separately from its claims
of libel based on statements on Narco News Bulletin for conflict
of law purposes. 24
In fact, Mr. Giordano did not raise the issue of conflict of
law in his memorandum in support of his motion to dismiss. the
issue of conflict of law was raised only in the memorandum of
Narco News Bulletin.
In its memorandum, Banamex totally fails to differentiate
between the two. When an analysis is conducted with respect to
which substantive law applies to the statements made on Narco
News Bulletin, it is clear that Mexican law has the most significant
interest in that piece of litigation and that its law will apply.
This is in accordance with the Restatement (Second) of Conflict
of Laws, Sec. 150(1) for multi-state defamation and is also in
accordance with New York and federal law.
Accordingly, if Narco News Bulletin is correct in its position
that under Mexican law, Banamex's right to proceed with a civil
defamation case is predicated on a court finding of criminal
liability, the lawsuit against Narco News Bulletin should be
dismissed at this time.
VII. NARCO NEWS BULLETIN AND MALICE
Contrary to the assertions of Banamex, each one of the eight
allegedly defamatory articles posted on Narco News Bulletin is
not actionable, either because: (a) it is not capable of bearing
a defamatory meaning, (b) it is protected opinion, or (c) it
is not of and concerning Banamex.
Under New York law, each article should be reviewed individually
in its full context. Given the length of the articles in question
and the scope of the related linked articles on Narco News Bulletin,
that analysis has been conducted for each article in the form
of an affidavit from Al Giordano entitled "Second Affidavit
of Al Giordano," which is incorporated herein.
VIII. BANAMEX'S TORTIOUS INTERFERENCE CLAIMS
AGAINST GIORDANO AND THE NARCO NEWS BULLETIN MUST BE DISMISSED
Banamex has essentially conceded that its claim of interference
with prospective business relations against Mr. Giordano and
Narco News Bulletin must be dismissed because of its failure
to regard the New York cases cited in Narco News Bulletin's brief
(Banamex memorandum at 43). Those cases clearly hold that conclusory
allegations which merely recite the elements of the tort of interference
with contractual relations will not survive a motion to dismiss.
See Schuckman Realty, Inc. v. Marine Midland Bank, N.A.,
244 A.D.2d 400, 664 N.Y.S.2d 73 (2d Dept. 1997) (dismissing complaint
because allegations in support of claim for tortious interference
were "devoid of factual basis and vague and conclusory");
Chemical Bank v. Etinger, 196 A.D.2d 711, 602 N.Y.S.2d
332 (1st Dept. 1993) ("conclusory allegations of conspiracy
and improper interference were insufficient to meet requirements
for establishing liability"); Riddell Sports, Inc. v.
Brooks, 872 F.Supp. 73, 78-79 (S.D.N.Y. 1995) (allegations
too vague to support essential finding that the plaintiff would
have consummated contractual relationships if not for the defendant's
conduct); Business Networks of New York v. Complete Network
Solutions, Inc., 265 A.D.2d 194, 696 N.Y.S.2d 433 (1st Dept.
1999) (cause of action for tortious interference with prospective
business relations dismissed for failure to allege any specific
prospective business relations with which the defendant interfered);
M.J.&.K Co., Inc. v. Matthew Bender and Company, 220
A.D.2d 388, 631 N.Y.S.2d 938 (2d Dept. 1995) (plaintiffs' mere
contention that third parties canceled contracts with them was
insufficient because it offered no specific factual basis to
support the allegation); Pontos Renovations v. Kitano Arms
Corp., 226 A.D.2d 191, 640 N.Y.S.2d 525 (1st Dept. 1996);
Porr v. NYNEX, 170 Misc.2d 203, 650 N.Y.S.2d 509 (Sup. 1996);
Couri v. Westchester Country Club, Inc., 186 A.D.2d 712,
589 N.Y.S.2d 491 (2d Dept. 1992); Greschler v. Greschler,
71 A.D.2d 322, 422 N.Y.S.2d 718 (1980).
For the above reasons, and the facts contained in Al Giordano's
second and third affidavits and Raj Dutt's affidavit, the defendants
Narco News Bulletin and Al Giordano respectfully request this
court to dismiss the complaint in its entirety.
Narco News Bulletin
by Its Attorneys
Dated: July 12, 2001 ____________________________________
Lesser, Newman, Souweine & Nasser
39 Main Street
Northampton, MA 01060
Dated: July 12, 2001 _____________________________________
6 West 20th Street, Suite 10A
New York, NY 10011
Dated: July 12, 2001 ___________________________________
Mailing address for purposes
of this case:
c/o Lesser, Newman, Souweine & Nasser
39 Main Street
Northampton, MA 01060
This memorandum is accompanied
by three new affidavits of July 2001:
Affidavit by Raj Dutt
And a New Exhibit:
"The Mexico Papers,"
by Al Giordano
This memorandum and accompanying
exhibits are offered to the Court in support of:
Which were filed together
in April 2000 with:
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