[00:00:03] Speaker 00: Case number 19-7161, Mark Diamonstein, an individual, appellant, versus Jerry Steadman, an individual, and Jonathan Kelly, an individual. [00:00:12] Speaker 00: Mr. Langberg for the appellant, Mr. Bob for the appellees. [00:00:20] Speaker 00: Mr. Langberg is now unmuted. [00:00:23] Speaker 02: Good morning. [00:00:25] Speaker 02: Good morning, Your Honor, and may it please the court. [00:00:28] Speaker 02: I'm Mitchell Langberg for Mark Diamonstein, the appellant in this case. [00:00:32] Speaker 02: It occurred to me as I was watching these proceedings, Your Honor, that there's people presumably from all over the country listening to these proceedings on YouTube. [00:00:42] Speaker 02: And I wonder if we put judicial proceedings privilege aside and other privileges, if I were so bold and foolish to defame one of Your Honors in the course of this proceeding, would Your Honors have to come to the District Court for the District of Las Vegas to sue me for defamation? [00:01:02] Speaker 02: Or would you in your home state, where your reputation has been harmed, where you suffer mental anguish, where your job perhaps has been put in jeopardy, be able to sue in your home state? [00:01:14] Speaker 02: That's the question. [00:01:16] Speaker 02: That's before the court today, a question that this court has not directly answered. [00:01:19] Speaker 02: Mr. Diamonstein resides in the District of Columbia. [00:01:23] Speaker 02: He works in the District of Columbia. [00:01:26] Speaker 02: When he suffers professional harm to his reputation, District of Columbia is where it's most felt. [00:01:32] Speaker 02: including financial harm, potentially risk to his current job, and potentially his future income or future employment opportunities. [00:01:42] Speaker 02: When he suffers mental anguish, the District of Columbia is where it is felt. [00:01:48] Speaker 02: Yet the appellees, the defendants below, for the purpose of destroying Mr. Diamonstein's reputation, [00:01:56] Speaker 02: in causing him to lose his job in an election for president of the American Postal Workers Union. [00:02:04] Speaker 03: I thought he won the election. [00:02:07] Speaker 02: He did, Your Honor. [00:02:08] Speaker 02: He won the election. [00:02:10] Speaker 02: Causing him to lose his job? [00:02:13] Speaker 02: For the purpose of causing him. [00:02:15] Speaker 02: Their goal was to damage his reputation. [00:02:18] Speaker 02: Okay. [00:02:19] Speaker 02: They published these false and defamatory allegations that accused him of crimes or being involved in money laundering. [00:02:26] Speaker 04: So where is, I just have a couple, just a couple of quick technical questions. [00:02:31] Speaker 04: Okay. [00:02:32] Speaker 04: So the Indiana defendant, he put this on his, on his own website, right? [00:02:40] Speaker 04: Is that where he put it? [00:02:42] Speaker 04: That's correct, your honor. [00:02:44] Speaker 04: And that's accessible. [00:02:46] Speaker 04: Any, anybody could Google that. [00:02:47] Speaker 04: Is that correct? [00:02:49] Speaker 02: That's correct, your honor. [00:02:51] Speaker 04: Okay. [00:02:51] Speaker 04: And then the Wisconsin defendant, that was on his Facebook page. [00:02:55] Speaker 02: That's correct. [00:02:56] Speaker 02: He posted a link to that first article. [00:02:59] Speaker 02: Yes, Your Honor. [00:03:01] Speaker 04: How accessible is that? [00:03:06] Speaker 04: You have to remember, I don't use Facebook. [00:03:10] Speaker 04: At the time this was posted, as I understand it, a Facebook page [00:03:20] Speaker 04: can be limited to just your friends or can be available to anybody, right? [00:03:24] Speaker 04: Do we know from the record what he was? [00:03:27] Speaker 02: Your Honor, I'm sorry for interrupting. [00:03:29] Speaker 02: You broke up for a second. [00:03:31] Speaker 02: But he actually posted it on Facebook. [00:03:34] Speaker 02: A person can create a group or organization, and that defendant had created that, and then he can allow anybody who asks to be a member of that group [00:03:45] Speaker 02: to be a member of that group. [00:03:48] Speaker 02: And this group was targeted towards other members of the American Postal Workers Union. [00:03:52] Speaker 02: So I don't recall offhand how many members of that group. [00:03:56] Speaker 02: I think it was upwards of 3,000 there are, but that's approximately how many people that Facebook post was available to. [00:04:03] Speaker 04: Okay. [00:04:03] Speaker 04: So your theory then is that when something is uploaded or quote uploaded or quote published on the internet, it's published everywhere, right? [00:04:15] Speaker 02: That is correct, Your Honor. [00:04:17] Speaker 02: It is published everywhere. [00:04:20] Speaker 02: But that does not mean, Your Honor, that there is either jurisdiction or venue everywhere. [00:04:25] Speaker 02: Of course, there can't be. [00:04:27] Speaker 02: And the case out of the District of Maryland that we cited with an extension. [00:04:32] Speaker 04: There can't be venue in Wyoming in this case, right? [00:04:35] Speaker 04: But under your theory, venue would be proper wherever in a defamation case, wherever the person [00:04:44] Speaker 04: the target of the alleged allegedly defamatory statement. [00:04:49] Speaker 02: Lift, correct. [00:04:51] Speaker 02: That's correct. [00:04:53] Speaker 02: Yes, because in most circumstances, and I'm not sure that I can [00:04:58] Speaker 02: I can think of a particular circumstance offhand. [00:05:04] Speaker 02: I don't want to make that absolute, but I think that one could adopt the discussion in the Seidel case out of the District of Maryland that at least allows for that to be in most cases. [00:05:15] Speaker 02: And also, by the way, this court's decision in Crane, which was about personal jurisdiction, but also talked about where the injury is most substantially felt. [00:05:24] Speaker 02: And of course, again, Your Honor, we're talking about a statute [00:05:28] Speaker 02: that allows venue wherever a substantial part of the events giving rise to the claim occurred. [00:05:36] Speaker 02: And substantial, as the cases have informed us, does not mean the largest part or the most part, but a substantial part. [00:05:45] Speaker 02: And following just about any court's jurisprudence in defamation law, which admittedly in this day and age presents some unique circumstances, we all know [00:05:56] Speaker 02: as this court said in Crane, the act of defamation is not where it originates, but it's where it arrives. [00:06:04] Speaker 02: It's where it's read. [00:06:05] Speaker 02: It's where the readers have some reputational impact on them about the target. [00:06:14] Speaker 02: And so that could be just about any state. [00:06:17] Speaker 02: So the cases. [00:06:20] Speaker 04: The defendants as they say in their brief in response to crane. [00:06:23] Speaker 04: Well, that's a that case involves personal jurisdiction not venue. [00:06:28] Speaker 04: That's true. [00:06:30] Speaker 04: What's your answer to that. [00:06:32] Speaker 04: Well, I mean, I wish personal jurisdiction. [00:06:36] Speaker 02: It is a personal jurisdiction case case and we cited in our reply brief in a footnote and and I will try to pull it up your honor. [00:06:43] Speaker 02: that the courts have recognized that the issues of venue and personal jurisdiction are closely related. [00:06:49] Speaker 02: And that doesn't mean they're identical, but certainly in this context, because the issue of venue looks at where a substantial part of the claim arises. [00:07:03] Speaker 02: In a defamation case, particularly an online defamation case where we have this issue that it goes everywhere, we need to look at other indicia [00:07:11] Speaker 02: And what the courts have done for both personal jurisdiction and venue is look to where the harm is most substantially felt. [00:07:19] Speaker 02: And so the court can look at the Crane case because there's a great discussion about where harm, where defamation occurs and where harm is felt. [00:07:28] Speaker 02: And then we can move to the district court cases that have almost uniformly, but not uniformly taken the approach that we offer in our brief. [00:07:38] Speaker 02: And again, I keep mentioning the Seidel case, but we also cite [00:07:41] Speaker 02: Wright and Miller that cites a host of district court cases from all over the country that talk about this issue, which seems logical, especially in the context of the illogical result that would otherwise happen. [00:07:59] Speaker 02: It's logical for the reasons I said. [00:08:01] Speaker 02: Whether I was foolish enough to defame one of you or the defendants in this case who defamed Mr. Diamonstein, the effect is felt at home. [00:08:11] Speaker 02: and at work, which are both the same place for Mr. Diamonstein. [00:08:14] Speaker 02: That is one of the places where the publication necessarily occurs. [00:08:19] Speaker 02: That is where he is injured. [00:08:21] Speaker 02: That is where he suffers his mental anguish. [00:08:24] Speaker 02: That is where the courts and the law, whose job it is to protect Mr. Diamonstein, the state that has interest, the district, and the absurd result in the other [00:08:36] Speaker 02: situation would be that we have these two defendants who may or may not have worked in collusion with each other, that a venue this determination contrary to what we assert would result in Mr. Diamonstein either having venue in no court or having to raise the same claims based on the same facts and circumstances and the same defamatory allegations in two different district courts. [00:09:02] Speaker 02: Because there's no evidence that there's personal jurisdiction of either defendant [00:09:06] Speaker 02: in the other defendant's home state. [00:09:10] Speaker 02: So, Your Honor, if there's no more questions, I'd like to reserve the balance of my time. [00:09:13] Speaker 04: Either of my colleagues have any questions? [00:09:15] Speaker 04: We'll hear from Mr. Bopp. [00:09:18] Speaker 02: No. [00:09:18] Speaker 03: Thank you. [00:09:20] Speaker 05: No. [00:09:25] Speaker 05: OK. [00:09:25] Speaker 05: Thank you very much, Your Honor. [00:09:26] Speaker 05: Jim Bopp for the defendants. [00:09:29] Speaker 05: I think the essential problem of the plaintiff's argument is they misunderstand what the facts are about. [00:09:36] Speaker 05: This was about campaign speech in the context of an election. [00:09:44] Speaker 05: The election was for president of the union. [00:09:47] Speaker 05: And the people who vote on that in that election are the members. [00:09:52] Speaker 05: The members are all over the United States. [00:09:55] Speaker 05: So the targets, if you will, or relevant recipients of the information are members who are all over the United States [00:10:05] Speaker 05: Few of them are in DC. [00:10:07] Speaker 05: DC does not even have the largest chapter. [00:10:12] Speaker 05: And that's what the district court found, that the alleged defamation, if anything, would damage the reputation of the president of the union with union members in the context of an election. [00:10:29] Speaker 04: Mr. Vaughn, can I just take you back to, can we start with the statute here for a minute? [00:10:36] Speaker 04: The statute says that venue is proper in a judicial district where a substantial part of the events giving rise to the claim occur, okay? [00:10:50] Speaker 04: Now, the claim here is defamation, right? [00:10:53] Speaker 04: It's a defamation case. [00:10:55] Speaker 04: And under DC law, to prove defamation, you have to show at least publication and injury. [00:11:04] Speaker 04: They have to show at least those two things, injury and publication. [00:11:08] Speaker 04: And this is a motion to dismiss. [00:11:10] Speaker 04: So we look at the complaint and the complaint alleges that he suffered, that he works in the district, that he suffered injury and mental reputation in the district. [00:11:25] Speaker 04: And so why, for purposes of a motion to dismiss, isn't that adequate? [00:11:33] Speaker 04: Why isn't that enough to say that the substantial portions of this claim arise in the district? [00:11:42] Speaker 04: This is where the injury was, and this is where the publication occurred. [00:11:48] Speaker 04: The complaint does explain the conflict. [00:11:52] Speaker 04: The motion to dismiss. [00:11:54] Speaker 04: We don't know. [00:11:54] Speaker 04: I mean, even if there's only one member of the union in the district, we just don't know that at this point. [00:12:00] Speaker 04: I mean, you might be able to show. [00:12:03] Speaker 04: in summary judgment that there aren't any union members in the district, I don't know, but he's made these allegations. [00:12:10] Speaker 05: Yes, well, two things. [00:12:12] Speaker 05: One, you have to look at the context, which is in the complaint. [00:12:15] Speaker 05: And the context is this was a campaign speech about his election. [00:12:21] Speaker 05: The election occurs by votes of members all throughout the United States. [00:12:26] Speaker 04: Right, but his allegation is that the allegedly defamatory statement [00:12:32] Speaker 04: injured him with members in the district. [00:12:35] Speaker 04: This is where he was injured. [00:12:37] Speaker 04: In fact, from his point of view, they don't even have to be in the district, right? [00:12:44] Speaker 04: If they affected their vote anywhere in the country, they injured him in the district. [00:12:50] Speaker 05: Isn't that right? [00:12:51] Speaker 05: No, because he's running for an office in the union. [00:12:59] Speaker 05: The fact that the union headquarters happens to be in D.C. [00:13:02] Speaker 05: is of no pertinence. [00:13:06] Speaker 04: Secondly... He's in the district of Columbia. [00:13:09] Speaker 04: This is where he was injured. [00:13:10] Speaker 04: If he was injured anywhere, he was injured here, wasn't he? [00:13:13] Speaker 04: Where else could he have been injured? [00:13:16] Speaker 05: He alleges his injury to be with respect to the election for president of the union. [00:13:24] Speaker 05: That's what he alleges. [00:13:25] Speaker 05: he doesn't even allege that anyone in the district ever saw or read the blog posts at issue. [00:13:35] Speaker 05: So if the complaint fails just simply on causation, what is the, if no one read the post, how can he claim an injury in DC? [00:13:48] Speaker 05: And secondly, if [00:13:49] Speaker 05: You know, this statute needs to be read to protect defendants. [00:13:54] Speaker 05: It's written to protect defendants. [00:13:56] Speaker 05: And his theory means that he could sue anywhere in the United States, or even perhaps in the world, because anyone in the United States or the world could see this post, potentially. [00:14:12] Speaker 01: But that contradicts what you just said. [00:14:14] Speaker 01: Right. [00:14:15] Speaker 01: I mean, you're saying [00:14:18] Speaker 01: that the injury that he is alleging is the injury to because someone may have seen the post and believed it and that would have caused them not to have voted for him. [00:14:39] Speaker 01: So you're saying that the theory of his complaint [00:14:42] Speaker 01: is that the injury is essentially wherever union members are. [00:14:49] Speaker 01: But I guess what Judge Tatel was saying is that, isn't it also a fair reading of the complaint that he's saying that he is injured because his reputation is harmed and that injures him? [00:15:07] Speaker 05: Yes, and the problem with this broad reading is that it reads out of the statute the word substantial. [00:15:14] Speaker 05: You know, it can't be just one union member in Alaska read the post and therefore he can be sued in Alaska. [00:15:23] Speaker 05: I mean, these defendants can be sued in Alaska. [00:15:27] Speaker 05: They're reading out the word substantial. [00:15:30] Speaker 05: And of course, that's much different than, for instance, the Walden case where [00:15:36] Speaker 05: the National Enquirer was allowed to sue in California, but there was a substantiality showing. [00:15:44] Speaker 05: This is where most of the subscriptions of the National Enquirer were, and if they suffered loss of subscriptions in California, it could substantially affect the publication. [00:15:56] Speaker 05: Well, none of those showings are here. [00:15:59] Speaker 05: I mean, the only pertinent [00:16:04] Speaker 05: The most pertinent fact is this is campaign speech directed at union members who are voting in an election. [00:16:14] Speaker 05: And any loss is the loss of the election that he is talking about, that it would adversely affect his reelection as president. [00:16:25] Speaker 05: So... Suppose instead of... [00:16:30] Speaker 04: The defendants, having put this on the internet, they had sent a letter to every member of the union. [00:16:40] Speaker 05: It would be the same situation. [00:16:43] Speaker 05: Then you would not be proper. [00:16:46] Speaker 05: Except in that case, that fact would demonstrate the likelihood that somebody actually in District of Columbia actually saw it and read it. [00:16:57] Speaker 05: I mean, he doesn't... Why? [00:16:59] Speaker 05: Well, because to read something on the internet, you have to access the website. [00:17:08] Speaker 04: This is a motion to dismiss. [00:17:10] Speaker 04: He says he was injured. [00:17:12] Speaker 05: Well, but he doesn't prove causation that anybody read it in DC. [00:17:18] Speaker 05: I mean, it's from the complaint. [00:17:20] Speaker 05: It doesn't say anything about that. [00:17:23] Speaker 05: And when you're talking about posts on an internet, there are steps that people have to take in order to access it. [00:17:33] Speaker 03: The issue that we're discussing has come up over many years, but not in the context of the internet, but in the context of newspapers. [00:17:43] Speaker 03: For example, the New York Times, which newspapers appear in probably every jurisdiction, every state of [00:17:51] Speaker 03: of the union. [00:17:52] Speaker 03: And one of the problems that your interpretation of the venue statute seems to solve is that you could get a libel action from something printed in the New York Times and have a cause of action in every state of the union. [00:18:10] Speaker 03: I mean, that's one of the things that motivated the Supreme Court to decide New York Times versus Sullivan in the way that they did. [00:18:18] Speaker 03: And so, which leads me to this question, what if he had sued simply in the Superior Court where the 1391 doesn't apply? [00:18:29] Speaker 05: I think it's pretty clear that the Superior Court does not have personal jurisdiction. [00:18:35] Speaker 03: It would be decided on personal jurisdiction. [00:18:40] Speaker 05: Yes, and the court below didn't reach that even though he expressed serious doubt. [00:18:44] Speaker 05: about whether there was personal jurisdiction. [00:18:46] Speaker 03: And let me just follow up on that. [00:18:49] Speaker 03: I mean, I understand that Mr. Langberg argues that while the payment of dues, union dues, but my understanding is that the payment is that the old checkoff system is gone. [00:19:02] Speaker 03: And it's a deduction from wages and the deduction would have occurred where these two gentlemen were employed by the postal. [00:19:09] Speaker 03: Right. [00:19:10] Speaker 03: And not only that, but the money is collected by the local union, not by the international. [00:19:15] Speaker 03: Isn't that correct? [00:19:17] Speaker 05: Yes. [00:19:17] Speaker 05: And that's, you know, again, this is such a broad interpretation that that would mean if that was a sufficient minimal contact under the D.C. [00:19:27] Speaker 05: statute and under the Constitution, [00:19:30] Speaker 05: That would mean that everybody that joins any organization could be sued basically wherever the organization is, just by the mere membership or the mere payment of dues. [00:19:46] Speaker 05: So that, you know, well, we're not protecting defendants anymore with this. [00:19:50] Speaker 05: We're empowering situations in which there can be actually grotesque [00:19:58] Speaker 05: form shopping, looking for, you know, the state that has either, uh, you know, the best laws anywhere in the United States or perhaps the world. [00:20:07] Speaker 05: And, uh, and that, and that turns the statute on his head. [00:20:12] Speaker 01: So the protection, I don't, I don't, um, must be missing something. [00:20:15] Speaker 01: I don't understand the form shopping concern here where the plaintiff is selecting the jurisdiction where he lives and works. [00:20:25] Speaker 05: Well, but he's claiming an injury. [00:20:29] Speaker 05: What is pertinent about where he lives and works is he's claiming an injury there. [00:20:34] Speaker 05: But of course, as he concedes, any member who read the blog post, they are claiming that the reputation of this guy running for reelection would be adversely affected. [00:20:49] Speaker 05: And therefore, one member reads the blog post [00:20:53] Speaker 05: they don't even allege that, but let's assume, reads the blog post, can be sued anywhere because they'll say that's where the injury occurs. [00:21:01] Speaker 05: The pertinence of living and working is the common sense idea in some cases where, you know, that's where the decision makers are that decide whether or not you're going to be employed. [00:21:17] Speaker 05: Okay. [00:21:17] Speaker 05: So the supervisors and the, you know, plant supervisors, et cetera, [00:21:21] Speaker 05: decide whether you're going to be employed. [00:21:24] Speaker 05: Well, that's not the case here. [00:21:25] Speaker 05: It's members all over the United States that decide whether or not he's going to be. [00:21:29] Speaker 03: The other, the other consideration that that's troubled me a little bit is that the, the venue statute 1391 B2, I think it is, doesn't speak in terms of where the injury occurred. [00:21:43] Speaker 03: The injury could have occurred anywhere, but the statute talks about where, where the events leading to the injury occurred. [00:21:51] Speaker 05: And of course, the events are the posting of the items on the internet. [00:21:59] Speaker 05: And I would think they would have to allege that somebody actually read them that was pertinent to the jurisdiction they're claiming. [00:22:07] Speaker 05: And it's important to read this venue statute as Congress intended, that it was to protect the defendants, not to enable the plaintiffs to sue absolutely wherever [00:22:21] Speaker 05: they want to. [00:22:24] Speaker 05: I see my time is up, thank you. [00:22:29] Speaker 00: And did council have any time left? [00:22:32] Speaker 00: Council had no time remaining. [00:22:34] Speaker 00: Council had one minute and 15 seconds, I'm sorry. [00:22:37] Speaker 02: Okay, go ahead. [00:22:41] Speaker 02: It's interesting that I'm arguing for a more conservative approach to venue than council is arguing. [00:22:47] Speaker 02: Nobody has argued that every place [00:22:51] Speaker 02: where it's published results in venue. [00:22:55] Speaker 02: What we've said is that a substantial part, so as the statute says, a substantial part of the events giving rise to the claim occurred. [00:23:04] Speaker 02: And as I've said, this court recognized and crane as other courts have recognized, it's the receipt of the publication and it is also the harm to the reputation that give rise to the claim. [00:23:16] Speaker 02: And those occurred substantially, not exclusively, but substantially. [00:23:21] Speaker 03: But the events, it has to be the events giving rise a substantial to a claim, right? [00:23:31] Speaker 02: It doesn't say where the injury occurred. [00:23:36] Speaker 02: No, but Your Honor, damage to reputation is one of the events that give rise to the claim. [00:23:42] Speaker 03: And so is the initial posting. [00:23:45] Speaker 03: Where did the initial posting occur? [00:23:49] Speaker 02: Well, those occurred in their home states, Your Honor. [00:23:51] Speaker 02: And as we know, while none of us would argue that venue could exist or should exist everywhere, [00:23:57] Speaker 02: We also know that the law is not that venue only exists in one jurisdiction. [00:24:02] Speaker 02: So here, there might be for each defendant two jurisdictions where venue is proper, both the District of Columbia and the defendant's home jurisdictions. [00:24:10] Speaker 02: Remember, they targeted this. [00:24:13] Speaker 02: Mr. Bob seems to argue that this is to protect defendants, but defamation law is to protect [00:24:18] Speaker 02: the people who have been defamed. [00:24:20] Speaker 02: These defendants aimed their attack at Mr. Diamonstein in DC. [00:24:26] Speaker 02: They intended for him to lose his job in DC by damaging his reputation. [00:24:31] Speaker 02: They intended him to suffer mental anguish in DC by an attack on his reputation. [00:24:37] Speaker 02: And let's recall also that under DC law, harm is presumed when there is defamation per se, as we have alleged, which means [00:24:48] Speaker 02: that the harm is assumed to happen everywhere that his reputation. [00:24:53] Speaker 03: Where is personal jurisdiction? [00:24:56] Speaker 03: How do you get the personal jurisdiction in the District of Columbia? [00:25:01] Speaker 02: Well, Your Honor, I believe that under the Crane case, personal jurisdiction occurs in DC, exists in DC. [00:25:09] Speaker 02: Obviously, it exists in the defendant's home states. [00:25:12] Speaker 02: But I believe that the District of Columbia also has personal jurisdiction over these defendants under the Crane case because they caused injury in the District of Columbia. [00:25:23] Speaker 02: That's what they intended to do. [00:25:25] Speaker 02: And we don't even need to get to the District of Columbia plus factors under that standard. [00:25:32] Speaker 02: If we even get to the District of Columbia plus factors, I might note that we're not alleging that simply because they're members of an organization that pay dues, [00:25:41] Speaker 02: But in addition, through this organization, they negotiate their employment contracts in the District of Columbia. [00:25:51] Speaker 02: So the organization acts as their agent to do things that they otherwise would be doing in the District of Columbia, which we believe in addition to the other. [00:26:01] Speaker 03: These individuals negotiate their employment contracts in the District of Columbia? [00:26:06] Speaker 02: They're through the union that they belong to. [00:26:09] Speaker 02: The national union handles things like negotiating health benefits on with the with the United States Postal Service. [00:26:22] Speaker 02: and other collective bargaining issues. [00:26:23] Speaker 02: So there's some things that happen at the local union. [00:26:26] Speaker 02: They pay dues to both the local union and the national union. [00:26:30] Speaker 02: And they, through their membership in the union, have that union act as their agent in the District of Columbia to negotiate with the United States Postal Service, which, if there were no union, they would have to do on their own on an individual basis. [00:26:45] Speaker 02: We believe that's a significant plus. [00:26:46] Speaker 03: Are you familiar with our GTA New Media case? [00:26:51] Speaker 02: I can't say that I am, Your Honor. [00:26:52] Speaker 03: Okay. [00:26:53] Speaker 03: We held there that the mere fact that something can be downloaded from the internet in the District of Columbia is not sufficient to confer personal jurisdiction. [00:27:03] Speaker 03: And I just wonder how you distinguish that case. [00:27:06] Speaker 02: Well, I don't, so that's not too different from other cases. [00:27:09] Speaker 02: I think that that is a, I'm not prepared to say a uniform rule because I haven't dealt with it in every district, but I think the rule is the same in the Ninth Circuit, which I'm much more familiar with. [00:27:19] Speaker 02: But we're that party. [00:27:22] Speaker 04: No, go ahead. [00:27:23] Speaker 04: You finish. [00:27:25] Speaker 02: Well, I apologize. [00:27:26] Speaker 02: I'm supposed to stop as soon as you start speaking. [00:27:29] Speaker 04: No, not when we interrupt you. [00:27:33] Speaker 02: Well, since we're not talking. [00:27:34] Speaker 04: You're not arguing that we have to decide personal jurisdiction here, are you? [00:27:45] Speaker 02: The district court didn't decide that, right? [00:27:48] Speaker 02: That's correct, Your Honor. [00:27:49] Speaker 02: The district court did not decide the issue. [00:27:51] Speaker 02: I don't believe it's before the court at this time. [00:27:54] Speaker 04: It's not before. [00:27:54] Speaker 04: So if we were to agree with you on venue, we would send it back to the district court, right, to decide personal jurisdiction, correct? [00:28:02] Speaker 04: I agree with that, Your Honor. [00:28:04] Speaker 04: Yeah. [00:28:05] Speaker 03: Even what? [00:28:08] Speaker 03: I just wanted to point out that there are precedents in our court that say that when you have a venue question, [00:28:16] Speaker 03: and a personal jurisdiction question that you should decide, excuse me. [00:28:25] Speaker 03: You should decide the personal jurisdiction question first. [00:28:30] Speaker 03: Are you familiar with those cases? [00:28:32] Speaker 02: Yes, your honor. [00:28:33] Speaker 02: And I think that counsel, frankly, for both sides, and I don't mean to put words in Mr. Bob's mouth, but I think based on the briefings below, you would see that counsel for both sides believed that the court would decide the personal jurisdiction issue first. [00:28:47] Speaker 03: Yeah, but didn't. [00:28:48] Speaker 03: And then there is at least one case in our circuit that says if the district court goes ahead and decides venue without addressing personal jurisdiction, the district court has to give reasons for doing it that way. [00:29:01] Speaker 02: I'm not familiar with that authority, Your Honor, but it makes sense. [00:29:05] Speaker 04: Yeah. [00:29:05] Speaker 04: OK. [00:29:07] Speaker 04: What about Mr. Bob's argument that there's no allegation that anybody in the District of Columbia read this? [00:29:17] Speaker 02: Were it necessary, and I don't think it is, but were it necessary to make that allegation, then the court below should have given us leave to amend because that certainly is not something that's not curable, particularly on a simple venue motion. [00:29:31] Speaker 02: Well, do you think it's necessary? [00:29:33] Speaker 02: What's your argument for it not being necessary? [00:29:36] Speaker 02: I don't think it's necessary because I think, as Your Honor mentioned before, [00:29:39] Speaker 02: It actually doesn't matter whether anybody in the district read it. [00:29:43] Speaker 02: The fact is that even if every single person who read it was in every single jurisdiction that the union members were in, except the district. [00:29:53] Speaker 02: The harm to reputation affects Mr. Diamonstein in the district, both for his potential current and future employment, for emotional distress, as we've discussed, and for other things and [00:30:05] Speaker 02: And that's exactly one of the things also that the presumed damages rule is supposed to address. [00:30:10] Speaker 02: Presumed damages without, I see we're way over, but presumed damages, there are some deformations that are so bad, the per se deformations, that a person might not even know who it's been communicated to, who has the first person told the second person to the third person. [00:30:27] Speaker 02: And so presumed damages allows a person to bring a defamation claim without any proof of actual harm to reputation whatsoever. [00:30:35] Speaker 02: allowing the jury to presume such damages and determine what harm that is. [00:30:40] Speaker 02: And the last point related to that, Your Honor, if I may, it'll take 12 seconds, is if the court were to look at the cases throughout the country on issues of statute of limitations for defamation that's published on the internet, a plaintiff can never say, I didn't see it. [00:30:59] Speaker 02: I'm sorry, I didn't see it. [00:31:01] Speaker 02: So the statute of limitations didn't run because of delayed discovery. [00:31:04] Speaker 02: because the law presumes that something that's out on the internet is seen by everybody that it's available to be seen by, at least for procedural issues. [00:31:16] Speaker 04: Okay, thank you. [00:31:17] Speaker 04: Mr. Langberg, Mr. Bob, thank you both. [00:31:20] Speaker 04: The case is submitted.