Filed: Jun. 26, 2007
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2007 Decisions States Court of Appeals for the Third Circuit 6-26-2007 Genesis Intl Holding v. Northrop Grumman Precedential or Non-Precedential: Non-Precedential Docket No. 06-3566 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2007 Recommended Citation "Genesis Intl Holding v. Northrop Grumman" (2007). 2007 Decisions. Paper 882. http://digitalcommons.law.villanova.edu/thirdcircuit_2007/882 This decision is brought to you for fre
Summary: Opinions of the United 2007 Decisions States Court of Appeals for the Third Circuit 6-26-2007 Genesis Intl Holding v. Northrop Grumman Precedential or Non-Precedential: Non-Precedential Docket No. 06-3566 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2007 Recommended Citation "Genesis Intl Holding v. Northrop Grumman" (2007). 2007 Decisions. Paper 882. http://digitalcommons.law.villanova.edu/thirdcircuit_2007/882 This decision is brought to you for free..
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Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
6-26-2007
Genesis Intl Holding v. Northrop Grumman
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-3566
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2007
Recommended Citation
"Genesis Intl Holding v. Northrop Grumman" (2007). 2007 Decisions. Paper 882.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/882
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2007 Decisions by an authorized administrator of Villanova
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 06-3566
GENESIS INTERNATIONAL HOLDINGS;
INTERNATIONAL INFRASTRUCTURE CONSORTIUM;
BOBAN JOVANOVIC
v.
NORTHROP GRUMMAN CORPORATION;
DONALD WILHELM; PEGGY HEWINSON; US ALGERIA BUS COUNCIL;
SONATRACH CORPORATION; HALLIBURTON CORPORATION;
BOEING CORPORATION; ANADARKO CORPORATION;
LOCKHEED MARTIN CORPORATION;
HESS CORPORATION f/k/a AMERADA HESS CORPORATION;
PFIZER INC.; SUEZ LNG NA LLC; TEXTRON INC.; RED-MED CORPORATION;
BP AMERICA, INC.; ARAB BANKING CORPORATION;
AIR PROD CORPORATION; RAYTHEON COMPANY;
GENERAL ELECTRIC COMPANY; TEXAS KEYSTONE CORPORATION;
BURLINGTON RESOURCES, INC.; LAMIN DJILANI; ALI DJAZAIRY;
JAMES BAILEY; ISMAEL CHIKHOUNE; ELIZABETH LORD STEWART;
JOHN DOES; GULF KEYSTONE PETROLEUM CORPORATION*
Boban Jovanovic,
Appellant
(*Amended per Order of 9/5/06)
On Appeal from the United States District Court
for the District of New Jersey
D.C. Civil Action No. 05-cv-4487
(Honorable Dennis M. Cavanaugh)
Submitted Pursuant to Third Circuit LAR 34.1(a)
May 25, 2007
Before: SCIRICA, Chief Judge, FUENTES and SMITH, Circuit Judges
(Filed: June 26, 2007)
OPINION OF THE COURT
PER CURIAM.
Boban Jovanovic appeals pro se from the orders of the District Court dismissing
his Second Amended Complaint (“SAC”) and declining to reconsider its rulings. As a
threshold matter, we must address the scope of this appeal.
Jovanovic, who is not a licensed attorney, also seeks to represent or appeal on
behalf of plaintiffs Genesis International Holdings (“Genesis”) and International
Infrastructure Consortium (“IIC”), two companies of which he claims to be a stockholder
and “honorary President.” Jovanovic attempted to represent these companies pro se in the
District Court. The District Court dismissed these companies’ claims without prejudice
because they were not represented by counsel. See Simbraw, Inc. v. United States,
367
F.2d 373, 374 (3d Cir. 1966). These companies also are not represented by counsel on
appeal, so we dismiss their appeals for failure to prosecute. See 3d Cir. LAR 107.2
(1997).1 Thus, we review only those claims that can be construed to seek relief on behalf
1
After the Clerk notified Jovanovic that we would take this action unless a licensed
(continued...)
2
of Jovanovic individually. Having done so, we will affirm in part, reverse in part, and
remand for further proceedings consistent with this opinion.
I.
Genesis was a member of the US-Algeria Business Council (“US-ABC”), a trade
association that promotes commerce between businesses in Algeria and the United States.
On September 14, 2004, defendant Donald Wilhelm – then-Chairman of the US-ABC and
a Vice President of defendant Northrop Grumman Corporation (“Northrop Grumman”) –
sent a letter to Jovanovic threatening to expel Genesis from the US-ABC. The next day,
defendant Peggy Hewinson – a Northrop Grumman Operations Manager – circulated that
letter by e-mail to the US-ABC Board members. Jovanovic alleges that this
correspondence defamed Genesis and him personally. He further alleges that this
correspondence resulted in the loss of contracts that Genesis and IIC had to develop
certain projects in Algeria and in various injuries personal to him.
Primarily on the basis of this correspondence, Jovanovic asserts ten claims against
26 defendants, many of whom are US-ABC Board members alleged merely to have
received the correspondence and all of whom he accuses of having conspired to bring
about his harm. The District Court dismissed his Second Amended Complaint in its
1
(...continued)
attorney entered an appearance on the companies’ behalf, Jovanovic accused one of the
defendants of raising this issue ex parte and made several arguments in his brief that he
should be allowed to represent or proceed on behalf of the companies. We have
considered all of his arguments and reject them.
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entirety in three separate orders. Two of those orders dismissed claims against certain
defendants (the “jurisdictional defendants”) for lack of personal jurisdiction under Rule
12(b)(2) of the Federal Rules of Civil Procedure, and the third order dismissed the claims
against the remaining defendants under Rule 12(b)(6).2 The District Court also denied
two motions that Jovanovic filed seeking reconsideration of its rulings. Jovanovic
appeals from all five orders.3
II.
A. Rule 12(b)(6) Rulings
“Federal Rule of Civil Procedure 8(a)(2) requires only ‘a short and plain statement
of the claim showing that the pleader is entitled to relief.’” Bell Atlantic Corp. v.
Twombly,
127 S. Ct. 1955, 1964 (2007) (quoting Conley v. Gibson,
355 U.S. 41, 47
(1957)). In determining whether Jovanovich has stated a claim, we must accept his
factual allegations as true and draw all reasonable inferences from them in his favor. See
Alston, 363 F.3d at 233. We agree with the District Court that Jovanovic has failed to
state a claim against the majority of the Rule 12(b)(6) defendants. We believe, however,
2
The jurisdictional defendants are the US-ABC, Arab Banking Corporation,
Burlington Resources, Inc., Gulf Keystone Petroleum Corporation, and individual
defendants James Bailey, Ismael Chikhoune, Lamine Djilani, Elisabeth Lord Stuart, Ali
Djazairy, Wilhelm and Hewinson. We will refer to the remaining defendants, which are
all business entities, as the “Rule 12(b)(6) defendants.”
3
We have jurisdiction pursuant to 28 U.S.C. § 1291. We review the Rule 12(b)(2) and
Rule 12(b)(6) legal conclusions de novo and the denials of reconsideration for abuse of
discretion. See Alston v. Parker,
363 F.3d 229, 233 (3d Cir. 2004); IMO Indus., Inc. v.
Kiekert AG,
155 F.3d 254, 258 (3d Cir. 1998).
4
that he has stated a claim against Northrop Grumman (which did not contest personal
jurisdiction) for vicarious liability for the actions of Wilhelm and Hewinson (who, as
explained below, are not themselves subject to personal jurisdiction in New Jersey).
Jovanovic adequately alleged that those actions defamed him personally.4
To state a claim for defamation, a complaint must allege “(1) that the defendant
made a defamatory statement of fact; (2) concerning the plaintiff; (3) which was false; (4)
which was communicated to persons other than the plaintiff; and (5) fault.” Taj Mahal
Travel, Inc. v. Delta Airlines, Inc.,
164 F.3d 186, 189 (3d Cir. 1998). Here, Jovanovic
alleges that the September 14 letter falsely stated that Jovanovic had lied to the US-ABC
about his and Genesis’s affiliation with various persons and companies, including the
Algerian Ambassador’s son and Northrop Grumman. (SAC ¶¶ 161-62, 274.) That
statement appears susceptible of a defamatory meaning. See Decker v. Princeton Packet,
Inc.,
561 A.2d 1122, 1126 (N.J. 1989) (explaining that “[a] defamatory statement is one
that is false and is ‘injurious to the reputation of another’” or “tends to . . . deter third
persons from associating or dealing with” the victim) (citations omitted). Jovanovic
4
Defamation and vicarious liability are matters of state law. The District Court did not
discuss any particular substantive law or perform a choice of law analysis, but it appears
from the Second Amended Complaint that the law of at least three states (New Jersey,
Delaware and Maryland) potentially governs one or both of these issues. The parties
assume in their briefs that Jovanovic’s claims are governed by New Jersey law. On this
limited record, we cannot conclusively determine whether they are correct. For present
purposes, however, we will assume that they are. On remand, the District Court should
determine the applicable law or laws in the first instance. See Klaxon Co. v. Stentor Elec.
Mfg. Co.,
313 U.S. 487, 496 (1941); Lebegern v. Forman,
471 F.3d 424, 428 (3d Cir.
2006).
5
further alleges that Hewinson circulated that letter to multiple third parties. (SAC ¶¶ 168,
171.) Finally, Jovanovic alleges that the letter was malicious, intended to defame him
personally, caused various recipients to end business relationships with him personally,
and caused him various other personal injuries, including “loss of personal reputation.”
(Id. ¶¶ 272-73, 278-80.) These allegations are sufficient to state a claim for defamation.
Jovanovic also has adequately alleged that Northrop Grumman is vicariously liable
on this claim. Generally, an employer is liable for intentional torts, including defamation,
committed by its employees within the scope of their employment. See Printing Mart-
Morristown v. Sharp Elecs. Corp.,
563 A.2d 31, 47-48 (N.J. 1989). Jovanovic has
adequately alleged that Wilhelm and Hewinson were acting within the scope of their
employment here.
According to Jovanovic, Northrop Grumman first became involved in Algerian
projects “through” Wilhelm, and Wilhelm’s subsequent election as Chairman of the US-
ABC (allegedly as a Northrop Grumman “agent”) allowed Northrop Grumman to
“strengthen [its] monopoly and control of US-ABC.” (Id. ¶¶ 124, 132-33.) Wilhelm later
invited Jovanovic to meet with him “at his Northrop Grumman office” and, when
Jovanovic arrived, Hewinson greeted him and introduced herself as a Northrop Grumman
manager. (Id. ¶¶ 145-47.) At that meeting, Wilhelm and Jovanovic discussed various
issues regarding the US-ABC. Jovanovic told Wilhelm that he thought Wilhelm’s
position as US-ABC Chairman might subject Northrop Grumman to legal liability, and
encouraged Wilhelm to resign. (Id. ¶¶ 148-51.) The next month, Wilhelm drafted the
6
September 14 letter threatening to expel Genesis from the US-ABC. Jovanovic alleges
that Wilhelm drafted the letter as an “agent” of Northrop Grumman and that Hewinson
circulated it by e-mail, which he alleges was “sent to all recipients by . . . Northrop
Grumman, via Northrop Grummans [sic] e-mail server system.” (Id. ¶¶ 166, 171.)
Taking these allegations as true, and drawing all reasonable inferences therefrom in
Jovanovic’s favor, Jovanovich has adequately alleged that Wilhelm and Hewinson were
acting within the scope of their employment when they drafted and circulated the
correspondence at issue. Accordingly, Jovanovic is entitled at this stage to proceed
against Northrop Grumman.
We stress the limited nature of this holding. The claims of Genesis and IIC have
been dismissed, so Jovanovic can seek damages only for any injuries sustained by him
personally, not by Genesis or IIC. On this limited record, we will not attempt to
categorize each specific injury that Jovanovic alleges. We observe, however, that this
limitation might significantly reduce whatever recovery might otherwise have been
available on this claim.
7
B. Rule 12(b)(2) Rulings
After reviewing the issue de novo, we agree with the District Court that Jovanovic
failed to make a prima facie showing that any of the jurisdictional defendants is subject to
specific or general personal jurisdiction in New Jersey. See Mellon Bank (East) PSFS,
Nat’l Ass’n v. Farino,
960 F.2d 1217, 1223 (3d Cir. 1992). We will not reiterate the
District Court’s analysis, except to state that we agree with its application of the “effects
test” as set forth in IMO Industries. Our conclusion that Jovanovic has stated a claim
against Northrop Grumman on the basis of Wilhelm’s and Hewinson’s alleged actions
does not change this result with respect to those individuals. See Calder v. Jones,
465
U.S. 783, 790 (1984) (explaining that employer’s contacts with a forum cannot subject
employees to personal jurisdiction and that each defendant’s contacts with the forum must
instead “be assessed individually”).
C. Reconsideration Rulings
Finally, inasmuch as we are partially reversing the District Court’s Rule 12(b)(6)
ruling, we will reverse its denial of Jovanovic’s motion for reconsideration of that ruling
to the same extent. We otherwise find no abuse of discretion in the District Court’s
denials of reconsideration and will affirm them in all other respects.
8