Preview
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
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ADAM ROSENDORFF, Motion Sequence #002
Plaintiff, Index No. 152734/2023
-against-
HULU LLC, DEFENDANTS REQUEST
THE WALT DISNEY COMPANY, ORAL ARGUMENT
20TH CENTURY STUDIOS, INC.,
ELIZABETH MERIWETHER,
ELIZABETH MERIWETHER PICTURES, and
SEMI-FORMAL PRODUCTIONS, INC.
Defendants.
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MEMORANDUM OF LAW IN OPPOSITION TO
MOTION TO DISMISS ON GROUNDS OF
FORUM NON CONVENIENS
LAW OFFICE OF RICHARD A. ALTMAN
Attorneys for Plaintiff Adam Rosendorff
150 East 56th Street, Suite 12B
New York, NY 10022
212.633.0123
altmanlaw@earthlink.net
www.altmanlaw.nyc
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TABLE OF CONTENTS
TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
PRELIMINARY STATEMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
POINT I:
THE ISSUE OF PERSONAL JURISDICTION IS RELEVANT ON THIS MOTION . . . . . . . . . 2
POINT II
THE BALANCE OF FACTORS FAVORS DENIAL OF THIS MOTION. . . . . . . . . . . . . . . . . . 3
POINT III:
DEFAMATION CLAIMS CAN BE BROUGHT WHEREVER THE DEFENDANT
CAN BE FOUND, AND ALL OF THE DEFENDANTS CAN BE FOUND IN
NEW YORK . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
POINT IV:
THE EVIDENCE IS INSUFFICIENT TO JUSTIFY DISMISSAL. IF ANYTHING IT
SUPPORTS JURISDICTION AND CONVENIENCE, AND THE CLAIMS SHOULD
REMAIN IN THIS COURT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
1. The plaintiff's residence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
2. The residences of the defendants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Elizabeth Meriwether . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Jordan Helman . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Jennifer Katz . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Michael Showalter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Charles Steinberg . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
POINT V:
THE STATUTE OF LIMITATIONS HAS RUN, BUT DEFENDANTS HAVE NOT
OFFERED TO WAIVE IT (NOR ANY JURISDICTIONAL DEFENSES) IF THIS
ACTION WERE DISMISSED FOR FORUM NON CONVENIENS . . . . . . . . . . . . . . . . . . . . . 14
CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
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TABLE OF AUTHORITIES
CASES
Banco Ambrosiano v Artoc Bank & Trust, 62 NY2d 65 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Boyle v Starwood Hotels & Resorts Worldwide, Inc., 110 AD3d 938 (2d Dept 2013)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 13, 14
Burnham v. Superior Court, 495 U.S. 604 (1990). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Clark v Allen & Overy LLP, 35 Misc 3d 1229[A], 2012 NY Slip Op 50922[U][Sup Ct, NY County
2012]) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 13
English v Avon Prods., Inc., 206 AD3d 404 (1st Dept 2022) . . . . . . . . . . . . . . . . . . . . . . . . 10, 11
Gottwald v Geragos, 2017 NY Slip Op 30755 (Sup Ct, NY County 2017) . . . . . . . . . . . . . . . . 13
Grizzle v. Hertz Corp., 305 AD2d 311 (1st Dept. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Gusinsky v Genger, 2008 NY Slip Op 32951 (Sup Ct, NY County 2008) . . . . . . . . . . . . . . . 9, 13
Islamic Republic of Iran v Pahlavi, 62 NY2d 474 (1984), cert.den. 469 U.S. 1108) . . . . . . . . . 4
J.G. Jewelry PTE. LTD. v TJC Jewelry, Inc. 2020 NY Slip Op 32153 (Sup Ct, NY County 2020)4
JTS Trading Ltd. v Asesores, 178 AD3d 507 ([1st Dept 2019). . . . . . . . . . . . . . . . . . . . . . . . . . . 4
KOA Holdings v Thornton, 208 AD2d 481 (1st Dept 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Mun. High Income Fund, Inc. v Goldman, Sachs & Co., 54 AD3d 591 (1st Dept 2008) . . . . . . 14
OrthoTec, LLC v Healthpoint Capital, LLC, 84 AD3d 702 (1st Dept 2011) . . . . . . . . . . . . . . . . 7
Shin-Etsu Chem. Co. v ICICI Bank Ltd., 9 AD3d 171 (1st Dept 2004) . . . . . . . . . . . . . . . . . . . . 2
Silverman v Minify, LLC, 2016 NY Slip Op 30046 (Sup Ct, NY County 2016). . . . . . . . . . . . . 13
Swissgem S.A. v M&B Ltd., 193 AD3d 472 (1st Dept 2021). . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 7
Travelers Cas. & Sur. Co. v Vale Can. Ltd., 215 AD3d 507 (1st Dept 2023). . . . . . . . . . . . . . . . 4
White & Case, LLP v Suez, SA, 12 AD3d 267 (1st Dept 2004). . . . . . . . . . . . . . . . . . . . . . . . . . 14
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Wilson v Imagesat Intl. N.V., 2012 NY Slip Op 33498 (Sup Ct, NY County 2012) . . . . . . . . . . . 7
STATUTES
CPLR 215 subd. 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
CPLR 302 (a) (1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
CPLR 302 (a)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
CPLR 302(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
CPLR 327 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 14
CPLR 327(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
CPLR 327(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Cal. Civ. Code § 340(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
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Plaintiff Adam Rosendorff, by his attorneys, Law Office of Richard A. Altman, submits this
memorandum of law in opposition to the defendants’ motion to dismiss this action on the basis of
forum non conveniens.
PRELIMINARY STATEMENT
This action is a claim for defamation by fiction, based upon a false and reputation-destroying
portrayal of the plaintiff, a licensed physician, in two episodes of a five-part, nine-hour docudrama
entitled The Dropout. The Dropout was based upon the notorious case of Elizabeth Holmes and
Theranos, the fraudulent blood-testing company, whose widely reported rise and fall led to her and
others’ conviction and imprisonment for federal securities and other crimes. The defendants here
were all involved in one way or another in the docudrama, as script writers, producers, broadcasters,
or parent companies. The episodes which feature the plaintiff were first broadcast in March 2022,
and may still be seen by any subscribers to defendant Hulu LLC.
Defendants, all represented by the same counsel–and thus united in interest–contend that,
because the relevant activities which led to the writing and production of the series took place in
California, the present action should be dismissed on the basis of forum non conveniens. Invoking
the discretionary application of CPLR 327, defendants argue that for the convenience of all of the
parties, the action belongs in California. But their evidence does not satisfy their substantial burden
on such a motion, and can not overcome the plaintiff’s paramount right to the forum of his choice.
Defendants submit five affidavits, either from the individual parties themselves or from
representatives of corporate parties. But the affidavits do not support their arguments for dismissal,
and do not demonstrate that the burden on them to proceed in New York is so great as to overcome
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the strong presumption in favor of plaintiff’s choice. If anything, they support plaintiff’s choice of
forum. That presumption, and other factors to be discussed below, require the denial of this motion.
Defendants further burden the Court with trial transcripts, resumes, copies of California
corporate registrations, newspaper articles about the Holmes trial, and other materials. We would
object to the inclusion in defendants’ motion of various facts from the transcript of the Holmes trial,
the fact that Mr. Rosendorff previously testified in other matters in California, and especially their
questioning his veracity and reputation (see Def. Mem. at 13-14, and referenced exhibits). None of
that material is relevant on this motion, and its inclusion is an unseemly attempt to further damage
his reputation before this case has even begun. The main issues on this motion are simple: where
the parties are, where the claim arose, and whether the factors in favor of California are so significant
as to overcome the strong presumption in favor of Dr. Rosendorff’s right to the forum and counsel
of his choice. We will show that they are not.
ARGUMENT
POINT I
THE ISSUE OF PERSONAL JURISDICTION IS RELEVANT ON THIS MOTION.
The first consideration for the Court is the existence of personal jurisdiction over the
defendants. It is first because without its arguable existence, there is no need to reach the issue of
forum non conveniens. It is true that “on a motion to dismiss on the ground of forum non conveniens,
jurisdiction over the defendant is presumed” (Shin-Etsu Chem. Co. v ICICI Bank Ltd., 9 AD3d 171,
176 [1st Dept 2004]), but that does not end the inquiry in this case, because the defendants have
separately moved for dismissal on the basis of lack of jurisdiction (Motion Seq. #002).
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Full briefing and consideration of that motion are in abeyance by stipulation of the parties
(see NYSCEF Dkt. # 103), and will only be fully addressed if and after the present motion is denied.
But the issues cannot be entirely postponed; the facial existence of jurisdiction can and should be
examined now, because the affidavits which defendants have submitted necessarily raise it.
Moreover, if, as we argue, the Court should deny the forum non conveniens dismissal, it must then
perforce address the jurisdictional arguments.
While the Court of Appeals did say in Estate of Kainer v UBS AG, 37 NY3d 460 (2021) that
the Court need not resolve the issue of personal jurisdiction before analyzing the forum non
conveniens factors, it can and should still be examined, because jurisdiction is a factor in determining
whether the plaintiff’s choice of forum–which is the most significant consideration–should outweigh
the inconvenience to the defendants. In other words, if the defendants are generally present in New
York, then the inconvenience to them having to litigate here is minimal, and is not sufficient to
overcome the plaintiff’s right to the forum of his choice. Their own materials, and the public records,
show that they are generally present, and that is sufficient to deny this motion.
POINT II
THE BALANCE OF FACTORS FAVORS DENIAL OF THIS MOTION.
CPLR 327(a) provides that “[w]hen the court finds that in the interest of substantial justice
the action should be heard in another forum, the court, on the motion of any party, may stay or
dismiss the action in whole or in part on any conditions that may be just. The domicile or
residence in this state of any party to the action shall not preclude the court from staying or
dismissing the action.”
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First of all, the movant has the heavy burden to persuade the court to dismiss a case which
is otherwise properly brought within its jurisdiction. The Court of Appeals explained the factors:
The burden rests upon the defendant challenging the forum to demonstrate relevant
private or public interest factors which militate against accepting the litigation and
the court, after considering and balancing the various competing factors, must
determine in the exercise of its sound discretion whether to retain jurisdiction or not.
Among the factors to be considered are the burden on the New York courts, the
potential hardship to the defendant, and the unavailability of an alternative forum in
which plaintiff may bring suit. The court may also consider that both parties to the
action are nonresidents and that the transaction out of which the cause of action arose
occurred primarily in a foreign jurisdiction. No one factor is controlling. The great
advantage of the rule of forum non conveniens is its flexibility based upon the facts
and circumstances of each case.
(Islamic Republic of Iran v Pahlavi, 62 NY2d 474, 479 [1984], cert.den. 469 U.S.
1108)(citations omitted).
“Forum non conveniens is a flexible doctrine that depends on the unique facts and
circumstances of each case.” Travelers Cas. & Sur. Co. v Vale Can. Ltd., 215 AD3d 507, 510 (1st
Dept 2023). Among the facts and circumstances which the court may consider are “the residence of
the parties, the location of the various witnesses, where the transaction or event giving rise to the
cause of action occurred, the potential hardship to the defendant in litigating the case in New York,
and the availability of an alternative forum” (Grizzle v. Hertz Corp., 305 AD2d 311, 312 [1st Dept.
2003]). “In determining whether an action should be dismissed for forum non conveniens, plaintiff’s
choice of forum is entitled to strong deference and Defendants must bear the heavy burden of
demonstrating that [the] plaintiff’s selection of New York was not in the interest of substantial
justice” (J.G. Jewelry PTE. LTD. v TJC Jewelry, Inc., 2020 NY Slip Op 32153[U], *16 [Sup Ct, NY
County 2020])(citing Islamic Republic, supra); JTS Trading Ltd. v Asesores, 178 AD3d 507 [1st
Dept 2019](same)); . “[A] plaintiff's choice of forum should rarely be disturbed even when the
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plaintiff is not a New York resident.” (Swissgem S.A. v M&B Ltd., 193 AD3d 472, 472 [1st Dept
2021]).
See generally Banco Ambrosiano v Artoc Bank & Trust, 62 NY2d 65, 73 (1984):
Other factors to consider include the location of witnesses and documentary
evidence, the applicability of foreign law and whether another forum has a substantial
interest in adjudicating the dispute. No one factor is controlling. Unless the balance
is strongly in favor of the defendant, the plaintiff's choice of forum should rarely be
disturbed. The burden rests with the defendant to show that plaintiff’s selection of
New York is not in the interest of substantial justice.
(cleaned up).
The defendants’ submissions are insufficient to satisfy their heavy burden to have this case
dismissed. We turn to those submissions in the next two points.
POINT III
DEFAMATION CLAIMS CAN BE BROUGHT WHEREVER THE DEFENDANT CAN
BE FOUND, AND ALL OF THE DEFENDANTS CAN BE FOUND IN NEW YORK.
There is a threshold consideration here, because of the nature of plaintiff’s claims.
Defamation is a common-law transitory tort1, and “[c]ommon law courts of general jurisdiction
regularly adjudicate transitory tort claims between individuals over whom they exercise personal
jurisdiction, wherever the tort occurred.” (Filartiga v Pena-Irala, 630 F2d 876, 885 [2d Cir 1980]);
“Wherever, by either the common law or the statute law of a State, a right of action has become fixed
and a legal liability incurred, that liability may be enforced and the right of action pursued in any
court which has jurisdiction of such matters and can obtain jurisdiction of the parties...A party legally
1
See Burnham v. Superior Court, 495 U.S. 604, 611 (1990)(quoting Justice Story,
Commentaries on the Conflict of Laws §§ 554, 543 (1846) (“[B]y the common law[,] personal
actions, being transitory, may be brought in any place, where the party defendant may be found.”
(internal quotation marks omitted).
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liable [for a transitory tort] in New Jersey cannot escape that liability by going to New York. ”
(Dennick v Railroad Company, 103 US 11, 18 [1880]).
Thus, a defamatory statement is, generally speaking, actionable wherever the defendant who
made the statement can be found. This is especially true in the internet age, where a defamatory
statement can be read anywhere, and where a plaintiff’s damaged reputation follows wherever she
may be.
In New York, of course, the applicability of this general principle to defamation claims is
sharply restricted by our long-arm statute, CPLR 302(a), which bars bringing them against non-
residents unless they are transacting sufficient unrelated business to be effectively subject to general
jurisdiction, see SPCA of Upstate NY, Inc. v Am. Working Collie Assn., 18 NY3d 400, 403-404
(2012)(“Although defamation claims therefore cannot form the basis for ‘tortious act’ jurisdiction,
such claims may proceed against non-domiciliaries who transact business within the state and
thereby satisfy the requirements of CPLR 302 (a) (1).” So there is not worldwide jurisdiction for the
broadcasting of defamation; in New York, there must be independent presence or activities to
support it, beyond that the statements are published here.
But as we will show, the defendants’ affidavits demonstrate sufficient presence and/or
transaction of business here to satisfy the standard. Moreover, the principal defendant, and other
defendants, are New York domiciliaries and subject to general jurisdiction here. Thus any long-arm
jurisdiction issues are either unnecessary or are in any event satisfied by the defendants’ actual and
sufficient presence here.
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POINT IV
THE EVIDENCE IS INSUFFICIENT TO JUSTIFY DISMISSAL. IF ANYTHING IT
SUPPORTS JURISDICTION AND CONVENIENCE, AND THE CLAIMS SHOULD
REMAIN IN THIS COURT.
1. The plaintiff’s residence.
The defendants make much over Dr. Rosendorff’s present residence and past activities in
California surrounding the Holmes trial and his reputation there. But in his affidavit in opposition2,
he explains his long history and intimate familiarity with New York, that he attended medical school
here, that his family is here, that he has visited here many times, and that he intends to do so more
in the future, to be with his aging parents. He lived here for years, is not a complete stranger to New
York, and intends to return. That matters greatly: “the sole plaintiff is an American citizen who is
in the process of reestablishing his primary residence in New York, a State with which he has many
prior business and personal connections.” (Wilson v Imagesat Intl. N.V., 2012 NY Slip Op 33498[U],
*17 [Sup Ct, NY County 2012])(denying motion).
“Generally, unless the balance is strongly in favor of the defendant, the plaintiff’s choice of
forum should rarely be disturbed. This is true even though plaintiff is not a New York resident. The
fact that defendants are New York residents weighs against forum non conveniens dismissal.”
(OrthoTec, LLC v Healthpoint Capital, LLC, 84 AD3d 702 [1st Dept 2011])(cleaned up); “[A]
plaintiff’s choice of forum should rarely be disturbed even when the plaintiff is not a New York
resident.” (Swissgem S.A. v M&B Ltd., supra (citing OrthoTec, LLC, supra).
2
Plaintiff drafted the text of his affidavit entirely on his own; counsel only put it into proper
form.
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Thus, Dr. Rosendorff’s choice to proceed here should control, even though he is not at this
time a New York resident. By contrast, the defendants’s connections to New York are more than
enough to support the action’s remaining here. They are all found here, and that suffices.
2. The residences of the defendants.
We review next the defendants’ five affidavits. They in no way satisfy the heavy burden
required for forum non conveniens dismissal.
Elizabeth Meriwether:
Ms. Meriwether says that she moved from California to New York in August 2023, where
she now resides, at least part of the time. She says that “it would be no less convenient for me if this
case were litigated in California.” Affid, ¶ 3 at 2. But that has it exactly backwards. The issue is
whether it would be far more inconvenient for her to litigate in New York, and given that she now
resides here, it obviously would not be. Moreover, she says that she “was the showrunner3, lead
writer, and an executive producer for the docudrama, The Dropout.” Id. As such, she was “tasked
with developing the Series. I oversaw a team of writers on each episode who drafted the outlines and
scripts for each episode. Each outline and script was edited by me and I was ultimately responsible
for the scripts and overall management of the production” (emphasis added). Therefore by her own
admission she had primary responsibility for the portrayal of the plaintiff and is surely a central party
and witness. And she is now living here. Moreover, defendant Elizabeth Meriwether Pictures is, as
of August 15, 2023, a registered Foreign Business Corporation in New York (Exh. A).
3
“A showrunner is an established writer and the top-level executive producer of a television
series production, who outranks other creative personnel, including episode directors, in contrast to
feature films, in which the director has creative control over the production, and the executive
producer's role is limited to investing.” en.wikipedia.org/wiki/Showrunner (accessed November 1,
2023).
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When a key witness is in New York, the case should remain here, see Clark v Allen & Overy
LLP, 35 Misc 3d 1229[A], 1229A, 2012 NY Slip Op 50922[U], *6 [Sup Ct, NY County 2012])
(denying motion; “most of the events at issue took place in Moscow. It is undisputed, however, that
plaintiff now resides in New York State and that defendant law firm maintains an office here.”);
Gusinsky v Genger, 2008 NY Slip Op 32951[U] [Sup Ct, NY County 2008])(same).
As a New York resident, Ms. Meriwether is also subject to general jurisdiction here, pursuant
to CPLR 302 (a)(4), in that she “possesses any real property situated within the state.” So she cannot
plausibly argue that she should not be sued here, nor that participating in the litigation here is an
unfair burden. Furthermore Elizabeth Meriwether Pictures is a registered Foreign Business
Corporation here. Given her central position and responsibility, her affidavit is alone sufficient
grounds for denying this motion.
Jordan Helman:
Mr. Helman states that he resides in California (although his affidavit was apparently sworn
to in Virginia), and that he is the Head of Scripted Content for defendant Hulu. He further says that
“we relied on the showrunner Liz Meriwether and her writing team to research and create the
characters and write the scripts” and that he “provid[ed] comments.” Affid., ¶ 4 at 2. But then he
adds, “The Dropout...is available for viewing on Hulu’s streaming service to anyone in the United
States who subscribes to Hulu.” Id. ¶ 5. So although he may disclaim responsibility for anything in
the script, he acknowledges that they broadcast The Dropout to any subscribers in New York. And
there are quite a few of them who pay for the privilege.4 Thus Hulu is subject to jurisdiction here for
4
“Today, Hulu has 39.4 million paying subscribers and nearly 100 million total viewers.”
https://backlinko.com/hulu-users (accessed November 1, 2023). We may safely assume that a large
number are in New York State.
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any claims arising out of that broadcast. “By purposefully availing itself of the privilege of
conducting business in New York State, a defendant should foresee the possibility of having to
defend a lawsuit here” (English v Avon Prods., Inc., 206 AD3d 404, 407 [1st Dept 2022]). The
English decision came after the Court of Appeals’s sharply restricting jurisdiction over foreign
corporations in Ayala v Ayala, 37 NY3d 274 (2021), which held that mere registration of foreign
corporations here does not thereby automatically subject them to general jurisdiction. Yet the
Appellate Division found Avon subject to jurisdiction here. The result for Hulu should be no
different, and New York is not an inconvenient forum.
Jennifer Katz:
Ms. Katz states that she is the Manager, Creative Affairs, at Searchlight Pictures, and worked
with Ms. Meriwether, providing “comments on outlines, scripts and video cuts.” Affid., ¶ 4 at 2. But
neither she nor Searchlight Pictures is a party to this action, and there does not appear to be any basis
for her to be a witness. So her affidavit signifies nothing. Moreover, she does not explain anything
regarding Searchlight’s actual activities in bringing The Dropout to Hulu, and in any event offers no
evidence to support dismissal of this action. However, it is too soon to say.
Michael Showalter:
Mr. Showalter states that he is “the founder and principal of Semi-Formal Productions, Inc.”
(Affid., ¶ 1 at 1), and that he resides in California (although his affidavit curiously states that it was
sworn to in New York County, and was notarized in Virginia). He denies any creative involvement
in the script of The Dropout, but then oddly says that “[a]s a formal matter, the principal place of
business of Semi-Formal Productions, Inc. is an office address in New York. We do not actually
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maintain a functional office there. The address in New York is where my business manager works
and where mail delivered to the corporation is received by my manager.”
In fact, Semi-Formal Productions, Inc. has an office at 200 Park Ave South in Manhattan,
an address which is somewhat more substantial than a mail drop. His statement that its principal
place of business is here contradicts his assertion that it is not a functional office; it cannot be both.
In any event, this defendant is subject to general jurisdiction in New York. They cannot have it both
ways; see English, supra.
Charles Steinberg:
Mr. Steinberg states that he is Associate General Counsel of The Walt Disney Company
“TWDC”), that it is a Delaware corporation with a principal place of business in California, and that
Disney “is the indirect parent company of Defendants 20th Century Studios and Hulu, LLC, as well
as of Searchlight Pictures, Inc., which I understand was involved with the miniseries The Dropout.
TWDC did not participate in the production, filming, development, or writing of The Dropout. That
work was performed by the indirect subsidiaries responsible for that production.” (Affid., ¶ 2-3 at
1-2) “Involved” and “indirect parent” are understatements; it was reported on November 2, 2023 that
“Disney to buy remaining 33% stake in Hulu from Comcast for at least $8.6 bln,” see
https://www.reuters.com/markets/deals/disney-buy-remaining-33-stake-hulu-comcast-2023-11-01/
(accessed November 3, 2023). So Disney owns most (and soon all) of Hulu, the company responsible
for broadcasting the material which is the subject of this action. And independently, it cannot be
seriously argued that Disney is not doing sufficient business in New York to be subject to suit here.
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Summary:
In sum, the individuals who are key witnesses–Ms. Meriwether, Mr. Helman and Mr.
Showalter–and the corporate defendants are all either present in New York or subject to jurisdiction
here. Those affiants who truly have no involvement in The Dropout are free to move to dismiss the
claims against them on the merits. But at the present time, there is no basis for dismissal for forum
non conveniens.
As for the documents of the trial, they are available on PACER to the extent they are not
already in the possession of the defendants. As for the documents which are of primary importance,
such as script drafts, memos, emails among the writers, and the like, they are presumably all in the
possession of Ms. Meriwether, and she is here in New York. In any event, as the Court said in Boyle
v Starwood Hotels & Resorts Worldwide, Inc., 110 AD3d 938, 947 (2d Dept 2013)(Austin, J.,
dissenting), “the claimed unavailability of relevant documents for the defense of this action rings
hollow. Today, we have the ability to digitally locate and transmit thousands of pages of documents
around the world in the blink of an eye.”
The factors which defendants proffer in favor of dismissal are as follows:
1. Plaintiff’s present residence in California.
2. Defendant Meriwether’s part-time residence in California.
3. The non-residence in New York of persons who are not central to the claims, one of whom
is not even a party.
4. The existence of documents, trial records and other materials in California.
By contrast, the factors which weigh against dismissal include:
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1. Plaintiff’s choice of forum, past and present personal and family connections to New York,
desire to return and restore his reputation here.
2. The presence in New York of the key witnesses, especially the showrunner and head
writer, Ms. Meriwether.
3. The doing-business considerations of the corporate defendants, sufficient to subject them
to general jurisdiction here.
4. Plaintiff’s choice of counsel. See Clark and Gusinsky, supra, and Silverman v Minify, LLC,
2016 NY Slip Op 30046[U], *16 [Sup Ct, NY County 2016])(denying motion; “all parties have
already retained New York counsel”). So have all of the parties here.
5. As for the location of documents and evidence, we need only note the Court’s comment
in Boyle, supra. Indeed, defendants have already provided some transcripts of the Holmes trial as
exhibits to their motion. And since the easing of the COVID-19 pandemic, we have all learned of
the possibility and utility of remote depositions and court appearances by video, thus obviating any
travel inconvenience and unnecessary expense.
Finally, there is Gottwald v Geragos, 2017 NY Slip Op 30755[U], *4 (Sup Ct, NY County
2017), which sums up the facts in a very similar case, one where the plaintiff claimed he was
defamed by a California attorney who, on social media, had insinuated that the plaintiff was a rapist:
While California may be a preferred location for defendants, and certainly would not
be an unreasonable forum for the resolution of this dispute, the nexus between New
York and the allegations of the complaint is sufficient to leave plaintiff’s choice of
forum undisturbed. Although defendants have their primary offices in California,
defendants have put themselves out as New York legal service providers. They avail
themselves of New York business, have offices located in New York, and are
currently engaged in other New York litigation matters. Finally, New York is a hub
for media and entertainment business such that it should not be a significant or
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inconvenient burden for parties and potential witnesses to travel to a New York court.
Accordingly, the motions to dismiss for forum non conveniens are denied.
The present defendants’ motion for dismissal, based on forum non conveniens should
similarly be denied.
POINT V
THE STATUTE OF LIMITATIONS HAS RUN, BUT DEFENDANTS HAVE NOT
OFFERED TO WAIVE IT (NOR ANY JURISDICTIONAL DEFENSES) IF THIS
ACTION WERE DISMISSED FOR FORUM NON CONVENIENS.
Another factor to be considered is the statute of limitations. This action was commenced
toward the end of the one-year statute of limitations for defamation claims in New York, CPLR 215
subd. 3, and it has run since then. California also has a one-year statute (Cal. Civ. Code § 340(c)),
and it has also run. So a new suit in California would unquestionably be time-barred. Generally, a
forum non conveniens dismissal is without prejudice, because the plaintiff still must retain the right
to have his claims adjudicated somewhere, albeit just not in his chosen forum. On occasion, a
defendant who seeks dismissal offers to waive the statute of limitations and any jurisdictional
objections as a condition, but there is no such offer here. To the contrary, these defendants in their
Notice of Motion (at 1) move “to dismiss with prejudice all claims in this action against it pursuant
to CPLR 327” and in their Memorandum of Law “request that the Court dismiss the Complaint, with
prejudice, pursuant to CPLR 327(c).” Def. Memo at 16 (emphases added). But the defendants here
want it all; in their view plaintiff should be out of court altogether, whether here or in California.
Courts have conditioned forum non conveniens dismissals on the defendant’s waiver of
jurisdictional and limitations defenses, see KOA Holdings v Thornton, 208 AD2d 481 (1st Dept
1994). But “offering such options to the plaintiffs is problematic” (Boyle, supra, 110 AD3d at 946).
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And it is indeed problematic, see Mun. High Income Fund, Inc. v Goldman, Sachs & Co., 54 AD3d
591 (1st Dept 2008)(prior action dismissed in Michigan for forum non conveniens without waiver
of statute of limitations was dismissed on that basis when later brought in New York); White & Case,
LLP v Suez, SA, 12 AD3d 267 (1st Dept 2004)(same). There is no reason for the plaintiff to be
subject to such uncertainty. The present case was timely brought in New York, the parties and
witnesses and documents are here, and it should remain here.
One may legitimately question the defendants’ good faith here, in moving for dismissal of
this action with prejudice, knowing full well that the statute of limitations has expired both in New
York and California, while simultaneously preserving their jurisdictional and pleading defenses for
the next round of motion papers. The Court should not condone this tactic.
CONCLUSION
Based upon the foregoing, defendants’ motion for dismissal on the basis of forum non
conveniens should be denied.
Dated: New York, New York
November 3, 2023
LAW OFFICE OF RICHARD A. ALTMAN
Attorneys for Plaintiff Adam Rosendorff
150 East 56th Street, Suite 12B
New York, NY 10022
212.633.0123
altmanlaw@earthlink.net
www.altmanlaw.nyc
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Certificate Pursuant to Part 202.8-b of the Uniform Civil Rules for the Supreme Court
I, Richard A. Altman, certify that, pursuant to Part 202 of the Uniform Civil Rules for the
Supreme Court, the Memorandum of Law in Opposition to Defendants’ Motion to Dismiss the
Complaint contains 4438 words.
_______________________________
RICHARD A. ALTMAN
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Preview
FILED: NEW YORK COUNTY CLERK 11/04/2023 11:10 AM INDEX NO. 152734/2023 NYSCEF DOC. NO. 105 RECEIVED NYSCEF: 11/04/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK -------------------------------------------------------------------x ADAM ROSENDORFF, Motion Sequence #002 Plaintiff, Index No. 152734/2023 -against- HULU LLC, DEFENDANTS REQUEST THE WALT DISNEY COMPANY, ORAL ARGUMENT 20TH CENTURY STUDIOS, INC., ELIZABETH MERIWETHER, ELIZABETH MERIWETHER PICTURES, and SEMI-FORMAL PRODUCTIONS, INC. Defendants. -------------------------------------------------------------------x MEMORANDUM OF LAW IN OPPOSITION TO MOTION TO DISMISS ON GROUNDS OF FORUM NON CONVENIENS LAW OFFICE OF RICHARD A. ALTMAN Attorneys for Plaintiff Adam Rosendorff 150 East 56th Street, Suite 12B New York, NY 10022 212.633.0123 altmanlaw@earthlink.net www.altmanlaw.nyc 1 of 20 FILED: NEW YORK COUNTY CLERK 11/04/2023 11:10 AM INDEX NO. 152734/2023 NYSCEF DOC. NO. 105 RECEIVED NYSCEF: 11/04/2023 TABLE OF CONTENTS TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii PRELIMINARY STATEMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 POINT I: THE ISSUE OF PERSONAL JURISDICTION IS RELEVANT ON THIS MOTION . . . . . . . . . 2 POINT II THE BALANCE OF FACTORS FAVORS DENIAL OF THIS MOTION. . . . . . . . . . . . . . . . . . 3 POINT III: DEFAMATION CLAIMS CAN BE BROUGHT WHEREVER THE DEFENDANT CAN BE FOUND, AND ALL OF THE DEFENDANTS CAN BE FOUND IN NEW YORK . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 POINT IV: THE EVIDENCE IS INSUFFICIENT TO JUSTIFY DISMISSAL. IF ANYTHING IT SUPPORTS JURISDICTION AND CONVENIENCE, AND THE CLAIMS SHOULD REMAIN IN THIS COURT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 1. The plaintiff's residence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 2. The residences of the defendants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Elizabeth Meriwether . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Jordan Helman . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Jennifer Katz . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Michael Showalter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Charles Steinberg . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 POINT V: THE STATUTE OF LIMITATIONS HAS RUN, BUT DEFENDANTS HAVE NOT OFFERED TO WAIVE IT (NOR ANY JURISDICTIONAL DEFENSES) IF THIS ACTION WERE DISMISSED FOR FORUM NON CONVENIENS . . . . . . . . . . . . . . . . . . . . . 14 CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 -i- 2 of 20 FILED: NEW YORK COUNTY CLERK 11/04/2023 11:10 AM INDEX NO. 152734/2023 NYSCEF DOC. NO. 105 RECEIVED NYSCEF: 11/04/2023 TABLE OF AUTHORITIES CASES Banco Ambrosiano v Artoc Bank & Trust, 62 NY2d 65 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Boyle v Starwood Hotels & Resorts Worldwide, Inc., 110 AD3d 938 (2d Dept 2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 13, 14 Burnham v. Superior Court, 495 U.S. 604 (1990). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Clark v Allen & Overy LLP, 35 Misc 3d 1229[A], 2012 NY Slip Op 50922[U][Sup Ct, NY County 2012]) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 13 English v Avon Prods., Inc., 206 AD3d 404 (1st Dept 2022) . . . . . . . . . . . . . . . . . . . . . . . . 10, 11 Gottwald v Geragos, 2017 NY Slip Op 30755 (Sup Ct, NY County 2017) . . . . . . . . . . . . . . . . 13 Grizzle v. Hertz Corp., 305 AD2d 311 (1st Dept. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Gusinsky v Genger, 2008 NY Slip Op 32951 (Sup Ct, NY County 2008) . . . . . . . . . . . . . . . 9, 13 Islamic Republic of Iran v Pahlavi, 62 NY2d 474 (1984), cert.den. 469 U.S. 1108) . . . . . . . . . 4 J.G. Jewelry PTE. LTD. v TJC Jewelry, Inc. 2020 NY Slip Op 32153 (Sup Ct, NY County 2020)4 JTS Trading Ltd. v Asesores, 178 AD3d 507 ([1st Dept 2019). . . . . . . . . . . . . . . . . . . . . . . . . . . 4 KOA Holdings v Thornton, 208 AD2d 481 (1st Dept 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Mun. High Income Fund, Inc. v Goldman, Sachs & Co., 54 AD3d 591 (1st Dept 2008) . . . . . . 14 OrthoTec, LLC v Healthpoint Capital, LLC, 84 AD3d 702 (1st Dept 2011) . . . . . . . . . . . . . . . . 7 Shin-Etsu Chem. Co. v ICICI Bank Ltd., 9 AD3d 171 (1st Dept 2004) . . . . . . . . . . . . . . . . . . . . 2 Silverman v Minify, LLC, 2016 NY Slip Op 30046 (Sup Ct, NY County 2016). . . . . . . . . . . . . 13 Swissgem S.A. v M&B Ltd., 193 AD3d 472 (1st Dept 2021). . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 7 Travelers Cas. & Sur. Co. v Vale Can. Ltd., 215 AD3d 507 (1st Dept 2023). . . . . . . . . . . . . . . . 4 White & Case, LLP v Suez, SA, 12 AD3d 267 (1st Dept 2004). . . . . . . . . . . . . . . . . . . . . . . . . . 14 -ii- 3 of 20 FILED: NEW YORK COUNTY CLERK 11/04/2023 11:10 AM INDEX NO. 152734/2023 NYSCEF DOC. NO. 105 RECEIVED NYSCEF: 11/04/2023 Wilson v Imagesat Intl. N.V., 2012 NY Slip Op 33498 (Sup Ct, NY County 2012) . . . . . . . . . . . 7 STATUTES CPLR 215 subd. 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 CPLR 302 (a) (1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 CPLR 302 (a)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 CPLR 302(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 CPLR 327 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 14 CPLR 327(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 CPLR 327(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Cal. Civ. Code § 340(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 -iii- 4 of 20 FILED: NEW YORK COUNTY CLERK 11/04/2023 11:10 AM INDEX NO. 152734/2023 NYSCEF DOC. NO. 105 RECEIVED NYSCEF: 11/04/2023 Plaintiff Adam Rosendorff, by his attorneys, Law Office of Richard A. Altman, submits this memorandum of law in opposition to the defendants’ motion to dismiss this action on the basis of forum non conveniens. PRELIMINARY STATEMENT This action is a claim for defamation by fiction, based upon a false and reputation-destroying portrayal of the plaintiff, a licensed physician, in two episodes of a five-part, nine-hour docudrama entitled The Dropout. The Dropout was based upon the notorious case of Elizabeth Holmes and Theranos, the fraudulent blood-testing company, whose widely reported rise and fall led to her and others’ conviction and imprisonment for federal securities and other crimes. The defendants here were all involved in one way or another in the docudrama, as script writers, producers, broadcasters, or parent companies. The episodes which feature the plaintiff were first broadcast in March 2022, and may still be seen by any subscribers to defendant Hulu LLC. Defendants, all represented by the same counsel–and thus united in interest–contend that, because the relevant activities which led to the writing and production of the series took place in California, the present action should be dismissed on the basis of forum non conveniens. Invoking the discretionary application of CPLR 327, defendants argue that for the convenience of all of the parties, the action belongs in California. But their evidence does not satisfy their substantial burden on such a motion, and can not overcome the plaintiff’s paramount right to the forum of his choice. Defendants submit five affidavits, either from the individual parties themselves or from representatives of corporate parties. But the affidavits do not support their arguments for dismissal, and do not demonstrate that the burden on them to proceed in New York is so great as to overcome -1- 5 of 20 FILED: NEW YORK COUNTY CLERK 11/04/2023 11:10 AM INDEX NO. 152734/2023 NYSCEF DOC. NO. 105 RECEIVED NYSCEF: 11/04/2023 the strong presumption in favor of plaintiff’s choice. If anything, they support plaintiff’s choice of forum. That presumption, and other factors to be discussed below, require the denial of this motion. Defendants further burden the Court with trial transcripts, resumes, copies of California corporate registrations, newspaper articles about the Holmes trial, and other materials. We would object to the inclusion in defendants’ motion of various facts from the transcript of the Holmes trial, the fact that Mr. Rosendorff previously testified in other matters in California, and especially their questioning his veracity and reputation (see Def. Mem. at 13-14, and referenced exhibits). None of that material is relevant on this motion, and its inclusion is an unseemly attempt to further damage his reputation before this case has even begun. The main issues on this motion are simple: where the parties are, where the claim arose, and whether the factors in favor of California are so significant as to overcome the strong presumption in favor of Dr. Rosendorff’s right to the forum and counsel of his choice. We will show that they are not. ARGUMENT POINT I THE ISSUE OF PERSONAL JURISDICTION IS RELEVANT ON THIS MOTION. The first consideration for the Court is the existence of personal jurisdiction over the defendants. It is first because without its arguable existence, there is no need to reach the issue of forum non conveniens. It is true that “on a motion to dismiss on the ground of forum non conveniens, jurisdiction over the defendant is presumed” (Shin-Etsu Chem. Co. v ICICI Bank Ltd., 9 AD3d 171, 176 [1st Dept 2004]), but that does not end the inquiry in this case, because the defendants have separately moved for dismissal on the basis of lack of jurisdiction (Motion Seq. #002). -2- 6 of 20 FILED: NEW YORK COUNTY CLERK 11/04/2023 11:10 AM INDEX NO. 152734/2023 NYSCEF DOC. NO. 105 RECEIVED NYSCEF: 11/04/2023 Full briefing and consideration of that motion are in abeyance by stipulation of the parties (see NYSCEF Dkt. # 103), and will only be fully addressed if and after the present motion is denied. But the issues cannot be entirely postponed; the facial existence of jurisdiction can and should be examined now, because the affidavits which defendants have submitted necessarily raise it. Moreover, if, as we argue, the Court should deny the forum non conveniens dismissal, it must then perforce address the jurisdictional arguments. While the Court of Appeals did say in Estate of Kainer v UBS AG, 37 NY3d 460 (2021) that the Court need not resolve the issue of personal jurisdiction before analyzing the forum non conveniens factors, it can and should still be examined, because jurisdiction is a factor in determining whether the plaintiff’s choice of forum–which is the most significant consideration–should outweigh the inconvenience to the defendants. In other words, if the defendants are generally present in New York, then the inconvenience to them having to litigate here is minimal, and is not sufficient to overcome the plaintiff’s right to the forum of his choice. Their own materials, and the public records, show that they are generally present, and that is sufficient to deny this motion. POINT II THE BALANCE OF FACTORS FAVORS DENIAL OF THIS MOTION. CPLR 327(a) provides that “[w]hen the court finds that in the interest of substantial justice the action should be heard in another forum, the court, on the motion of any party, may stay or dismiss the action in whole or in part on any conditions that may be just. The domicile or residence in this state of any party to the action shall not preclude the court from staying or dismissing the action.” -3- 7 of 20 FILED: NEW YORK COUNTY CLERK 11/04/2023 11:10 AM INDEX NO. 152734/2023 NYSCEF DOC. NO. 105 RECEIVED NYSCEF: 11/04/2023 First of all, the movant has the heavy burden to persuade the court to dismiss a case which is otherwise properly brought within its jurisdiction. The Court of Appeals explained the factors: The burden rests upon the defendant challenging the forum to demonstrate relevant private or public interest factors which militate against accepting the litigation and the court, after considering and balancing the various competing factors, must determine in the exercise of its sound discretion whether to retain jurisdiction or not. Among the factors to be considered are the burden on the New York courts, the potential hardship to the defendant, and the unavailability of an alternative forum in which plaintiff may bring suit. The court may also consider that both parties to the action are nonresidents and that the transaction out of which the cause of action arose occurred primarily in a foreign jurisdiction. No one factor is controlling. The great advantage of the rule of forum non conveniens is its flexibility based upon the facts and circumstances of each case. (Islamic Republic of Iran v Pahlavi, 62 NY2d 474, 479 [1984], cert.den. 469 U.S. 1108)(citations omitted). “Forum non conveniens is a flexible doctrine that depends on the unique facts and circumstances of each case.” Travelers Cas. & Sur. Co. v Vale Can. Ltd., 215 AD3d 507, 510 (1st Dept 2023). Among the facts and circumstances which the court may consider are “the residence of the parties, the location of the various witnesses, where the transaction or event giving rise to the cause of action occurred, the potential hardship to the defendant in litigating the case in New York, and the availability of an alternative forum” (Grizzle v. Hertz Corp., 305 AD2d 311, 312 [1st Dept. 2003]). “In determining whether an action should be dismissed for forum non conveniens, plaintiff’s choice of forum is entitled to strong deference and Defendants must bear the heavy burden of demonstrating that [the] plaintiff’s selection of New York was not in the interest of substantial justice” (J.G. Jewelry PTE. LTD. v TJC Jewelry, Inc., 2020 NY Slip Op 32153[U], *16 [Sup Ct, NY County 2020])(citing Islamic Republic, supra); JTS Trading Ltd. v Asesores, 178 AD3d 507 [1st Dept 2019](same)); . “[A] plaintiff's choice of forum should rarely be disturbed even when the -4- 8 of 20 FILED: NEW YORK COUNTY CLERK 11/04/2023 11:10 AM INDEX NO. 152734/2023 NYSCEF DOC. NO. 105 RECEIVED NYSCEF: 11/04/2023 plaintiff is not a New York resident.” (Swissgem S.A. v M&B Ltd., 193 AD3d 472, 472 [1st Dept 2021]). See generally Banco Ambrosiano v Artoc Bank & Trust, 62 NY2d 65, 73 (1984): Other factors to consider include the location of witnesses and documentary evidence, the applicability of foreign law and whether another forum has a substantial interest in adjudicating the dispute. No one factor is controlling. Unless the balance is strongly in favor of the defendant, the plaintiff's choice of forum should rarely be disturbed. The burden rests with the defendant to show that plaintiff’s selection of New York is not in the interest of substantial justice. (cleaned up). The defendants’ submissions are insufficient to satisfy their heavy burden to have this case dismissed. We turn to those submissions in the next two points. POINT III DEFAMATION CLAIMS CAN BE BROUGHT WHEREVER THE DEFENDANT CAN BE FOUND, AND ALL OF THE DEFENDANTS CAN BE FOUND IN NEW YORK. There is a threshold consideration here, because of the nature of plaintiff’s claims. Defamation is a common-law transitory tort1, and “[c]ommon law courts of general jurisdiction regularly adjudicate transitory tort claims between individuals over whom they exercise personal jurisdiction, wherever the tort occurred.” (Filartiga v Pena-Irala, 630 F2d 876, 885 [2d Cir 1980]); “Wherever, by either the common law or the statute law of a State, a right of action has become fixed and a legal liability incurred, that liability may be enforced and the right of action pursued in any court which has jurisdiction of such matters and can obtain jurisdiction of the parties...A party legally 1 See Burnham v. Superior Court, 495 U.S. 604, 611 (1990)(quoting Justice Story, Commentaries on the Conflict of Laws §§ 554, 543 (1846) (“[B]y the common law[,] personal actions, being transitory, may be brought in any place, where the party defendant may be found.” (internal quotation marks omitted). -5- 9 of 20 FILED: NEW YORK COUNTY CLERK 11/04/2023 11:10 AM INDEX NO. 152734/2023 NYSCEF DOC. NO. 105 RECEIVED NYSCEF: 11/04/2023 liable [for a transitory tort] in New Jersey cannot escape that liability by going to New York. ” (Dennick v Railroad Company, 103 US 11, 18 [1880]). Thus, a defamatory statement is, generally speaking, actionable wherever the defendant who made the statement can be found. This is especially true in the internet age, where a defamatory statement can be read anywhere, and where a plaintiff’s damaged reputation follows wherever she may be. In New York, of course, the applicability of this general principle to defamation claims is sharply restricted by our long-arm statute, CPLR 302(a), which bars bringing them against non- residents unless they are transacting sufficient unrelated business to be effectively subject to general jurisdiction, see SPCA of Upstate NY, Inc. v Am. Working Collie Assn., 18 NY3d 400, 403-404 (2012)(“Although defamation claims therefore cannot form the basis for ‘tortious act’ jurisdiction, such claims may proceed against non-domiciliaries who transact business within the state and thereby satisfy the requirements of CPLR 302 (a) (1).” So there is not worldwide jurisdiction for the broadcasting of defamation; in New York, there must be independent presence or activities to support it, beyond that the statements are published here. But as we will show, the defendants’ affidavits demonstrate sufficient presence and/or transaction of business here to satisfy the standard. Moreover, the principal defendant, and other defendants, are New York domiciliaries and subject to general jurisdiction here. Thus any long-arm jurisdiction issues are either unnecessary or are in any event satisfied by the defendants’ actual and sufficient presence here. -6- 10 of 20 FILED: NEW YORK COUNTY CLERK 11/04/2023 11:10 AM INDEX NO. 152734/2023 NYSCEF DOC. NO. 105 RECEIVED NYSCEF: 11/04/2023 POINT IV THE EVIDENCE IS INSUFFICIENT TO JUSTIFY DISMISSAL. IF ANYTHING IT SUPPORTS JURISDICTION AND CONVENIENCE, AND THE CLAIMS SHOULD REMAIN IN THIS COURT. 1. The plaintiff’s residence. The defendants make much over Dr. Rosendorff’s present residence and past activities in California surrounding the Holmes trial and his reputation there. But in his affidavit in opposition2, he explains his long history and intimate familiarity with New York, that he attended medical school here, that his family is here, that he has visited here many times, and that he intends to do so more in the future, to be with his aging parents. He lived here for years, is not a complete stranger to New York, and intends to return. That matters greatly: “the sole plaintiff is an American citizen who is in the process of reestablishing his primary residence in New York, a State with which he has many prior business and personal connections.” (Wilson v Imagesat Intl. N.V., 2012 NY Slip Op 33498[U], *17 [Sup Ct, NY County 2012])(denying motion). “Generally, unless the balance is strongly in favor of the defendant, the plaintiff’s choice of forum should rarely be disturbed. This is true even though plaintiff is not a New York resident. The fact that defendants are New York residents weighs against forum non conveniens dismissal.” (OrthoTec, LLC v Healthpoint Capital, LLC, 84 AD3d 702 [1st Dept 2011])(cleaned up); “[A] plaintiff’s choice of forum should rarely be disturbed even when the plaintiff is not a New York resident.” (Swissgem S.A. v M&B Ltd., supra (citing OrthoTec, LLC, supra). 2 Plaintiff drafted the text of his affidavit entirely on his own; counsel only put it into proper form. -7- 11 of 20 FILED: NEW YORK COUNTY CLERK 11/04/2023 11:10 AM INDEX NO. 152734/2023 NYSCEF DOC. NO. 105 RECEIVED NYSCEF: 11/04/2023 Thus, Dr. Rosendorff’s choice to proceed here should control, even though he is not at this time a New York resident. By contrast, the defendants’s connections to New York are more than enough to support the action’s remaining here. They are all found here, and that suffices. 2. The residences of the defendants. We review next the defendants’ five affidavits. They in no way satisfy the heavy burden required for forum non conveniens dismissal. Elizabeth Meriwether: Ms. Meriwether says that she moved from California to New York in August 2023, where she now resides, at least part of the time. She says that “it would be no less convenient for me if this case were litigated in California.” Affid, ¶ 3 at 2. But that has it exactly backwards. The issue is whether it would be far more inconvenient for her to litigate in New York, and given that she now resides here, it obviously would not be. Moreover, she says that she “was the showrunner3, lead writer, and an executive producer for the docudrama, The Dropout.” Id. As such, she was “tasked with developing the Series. I oversaw a team of writers on each episode who drafted the outlines and scripts for each episode. Each outline and script was edited by me and I was ultimately responsible for the scripts and overall management of the production” (emphasis added). Therefore by her own admission she had primary responsibility for the portrayal of the plaintiff and is surely a central party and witness. And she is now living here. Moreover, defendant Elizabeth Meriwether Pictures is, as of August 15, 2023, a registered Foreign Business Corporation in New York (Exh. A). 3 “A showrunner is an established writer and the top-level executive producer of a television series production, who outranks other creative personnel, including episode directors, in contrast to feature films, in which the director has creative control over the production, and the executive producer's role is limited to investing.” en.wikipedia.org/wiki/Showrunner (accessed November 1, 2023). -8- 12 of 20 FILED: NEW YORK COUNTY CLERK 11/04/2023 11:10 AM INDEX NO. 152734/2023 NYSCEF DOC. NO. 105 RECEIVED NYSCEF: 11/04/2023 When a key witness is in New York, the case should remain here, see Clark v Allen & Overy LLP, 35 Misc 3d 1229[A], 1229A, 2012 NY Slip Op 50922[U], *6 [Sup Ct, NY County 2012]) (denying motion; “most of the events at issue took place in Moscow. It is undisputed, however, that plaintiff now resides in New York State and that defendant law firm maintains an office here.”); Gusinsky v Genger, 2008 NY Slip Op 32951[U] [Sup Ct, NY County 2008])(same). As a New York resident, Ms. Meriwether is also subject to general jurisdiction here, pursuant to CPLR 302 (a)(4), in that she “possesses any real property situated within the state.” So she cannot plausibly argue that she should not be sued here, nor that participating in the litigation here is an unfair burden. Furthermore Elizabeth Meriwether Pictures is a registered Foreign Business Corporation here. Given her central position and responsibility, her affidavit is alone sufficient grounds for denying this motion. Jordan Helman: Mr. Helman states that he resides in California (although his affidavit was apparently sworn to in Virginia), and that he is the Head of Scripted Content for defendant Hulu. He further says that “we relied on the showrunner Liz Meriwether and her writing team to research and create the characters and write the scripts” and that he “provid[ed] comments.” Affid., ¶ 4 at 2. But then he adds, “The Dropout...is available for viewing on Hulu’s streaming service to anyone in the United States who subscribes to Hulu.” Id. ¶ 5. So although he may disclaim responsibility for anything in the script, he acknowledges that they broadcast The Dropout to any subscribers in New York. And there are quite a few of them who pay for the privilege.4 Thus Hulu is subject to jurisdiction here for 4 “Today, Hulu has 39.4 million paying subscribers and nearly 100 million total viewers.” https://backlinko.com/hulu-users (accessed November 1, 2023). We may safely assume that a large number are in New York State. -9- 13 of 20 FILED: NEW YORK COUNTY CLERK 11/04/2023 11:10 AM INDEX NO. 152734/2023 NYSCEF DOC. NO. 105 RECEIVED NYSCEF: 11/04/2023 any claims arising out of that broadcast. “By purposefully availing itself of the privilege of conducting business in New York State, a defendant should foresee the possibility of having to defend a lawsuit here” (English v Avon Prods., Inc., 206 AD3d 404, 407 [1st Dept 2022]). The English decision came after the Court of Appeals’s sharply restricting jurisdiction over foreign corporations in Ayala v Ayala, 37 NY3d 274 (2021), which held that mere registration of foreign corporations here does not thereby automatically subject them to general jurisdiction. Yet the Appellate Division found Avon subject to jurisdiction here. The result for Hulu should be no different, and New York is not an inconvenient forum. Jennifer Katz: Ms. Katz states that she is the Manager, Creative Affairs, at Searchlight Pictures, and worked with Ms. Meriwether, providing “comments on outlines, scripts and video cuts.” Affid., ¶ 4 at 2. But neither she nor Searchlight Pictures is a party to this action, and there does not appear to be any basis for her to be a witness. So her affidavit signifies nothing. Moreover, she does not explain anything regarding Searchlight’s actual activities in bringing The Dropout to Hulu, and in any event offers no evidence to support dismissal of this action. However, it is too soon to say. Michael Showalter: Mr. Showalter states that he is “the founder and principal of Semi-Formal Productions, Inc.” (Affid., ¶ 1 at 1), and that he resides in California (although his affidavit curiously states that it was sworn to in New York County, and was notarized in Virginia). He denies any creative involvement in the script of The Dropout, but then oddly says that “[a]s a formal matter, the principal place of business of Semi-Formal Productions, Inc. is an office address in New York. We do not actually -10- 14 of 20 FILED: NEW YORK COUNTY CLERK 11/04/2023 11:10 AM INDEX NO. 152734/2023 NYSCEF DOC. NO. 105 RECEIVED NYSCEF: 11/04/2023 maintain a functional office there. The address in New York is where my business manager works and where mail delivered to the corporation is received by my manager.” In fact, Semi-Formal Productions, Inc. has an office at 200 Park Ave South in Manhattan, an address which is somewhat more substantial than a mail drop. His statement that its principal place of business is here contradicts his assertion that it is not a functional office; it cannot be both. In any event, this defendant is subject to general jurisdiction in New York. They cannot have it both ways; see English, supra. Charles Steinberg: Mr. Steinberg states that he is Associate General Counsel of The Walt Disney Company “TWDC”), that it is a Delaware corporation with a principal place of business in California, and that Disney “is the indirect parent company of Defendants 20th Century Studios and Hulu, LLC, as well as of Searchlight Pictures, Inc., which I understand was involved with the miniseries The Dropout. TWDC did not participate in the production, filming, development, or writing of The Dropout. That work was performed by the indirect subsidiaries responsible for that production.” (Affid., ¶ 2-3 at 1-2) “Involved” and “indirect parent” are understatements; it was reported on November 2, 2023 that “Disney to buy remaining 33% stake in Hulu from Comcast for at least $8.6 bln,” see https://www.reuters.com/markets/deals/disney-buy-remaining-33-stake-hulu-comcast-2023-11-01/ (accessed November 3, 2023). So Disney owns most (and soon all) of Hulu, the company responsible for broadcasting the material which is the subject of this action. And independently, it cannot be seriously argued that Disney is not doing sufficient business in New York to be subject to suit here. -11- 15 of 20 FILED: NEW YORK COUNTY CLERK 11/04/2023 11:10 AM INDEX NO. 152734/2023 NYSCEF DOC. NO. 105 RECEIVED NYSCEF: 11/04/2023 Summary: In sum, the individuals who are key witnesses–Ms. Meriwether, Mr. Helman and Mr. Showalter–and the corporate defendants are all either present in New York or subject to jurisdiction here. Those affiants who truly have no involvement in The Dropout are free to move to dismiss the claims against them on the merits. But at the present time, there is no basis for dismissal for forum non conveniens. As for the documents of the trial, they are available on PACER to the extent they are not already in the possession of the defendants. As for the documents which are of primary importance, such as script drafts, memos, emails among the writers, and the like, they are presumably all in the possession of Ms. Meriwether, and she is here in New York. In any event, as the Court said in Boyle v Starwood Hotels & Resorts Worldwide, Inc., 110 AD3d 938, 947 (2d Dept 2013)(Austin, J., dissenting), “the claimed unavailability of relevant documents for the defense of this action rings hollow. Today, we have the ability to digitally locate and transmit thousands of pages of documents around the world in the blink of an eye.” The factors which defendants proffer in favor of dismissal are as follows: 1. Plaintiff’s present residence in California. 2. Defendant Meriwether’s part-time residence in California. 3. The non-residence in New York of persons who are not central to the claims, one of whom is not even a party. 4. The existence of documents, trial records and other materials in California. By contrast, the factors which weigh against dismissal include: -12- 16 of 20 FILED: NEW YORK COUNTY CLERK 11/04/2023 11:10 AM INDEX NO. 152734/2023 NYSCEF DOC. NO. 105 RECEIVED NYSCEF: 11/04/2023 1. Plaintiff’s choice of forum, past and present personal and family connections to New York, desire to return and restore his reputation here. 2. The presence in New York of the key witnesses, especially the showrunner and head writer, Ms. Meriwether. 3. The doing-business considerations of the corporate defendants, sufficient to subject them to general jurisdiction here. 4. Plaintiff’s choice of counsel. See Clark and Gusinsky, supra, and Silverman v Minify, LLC, 2016 NY Slip Op 30046[U], *16 [Sup Ct, NY County 2016])(denying motion; “all parties have already retained New York counsel”). So have all of the parties here. 5. As for the location of documents and evidence, we need only note the Court’s comment in Boyle, supra. Indeed, defendants have already provided some transcripts of the Holmes trial as exhibits to their motion. And since the easing of the COVID-19 pandemic, we have all learned of the possibility and utility of remote depositions and court appearances by video, thus obviating any travel inconvenience and unnecessary expense. Finally, there is Gottwald v Geragos, 2017 NY Slip Op 30755[U], *4 (Sup Ct, NY County 2017), which sums up the facts in a very similar case, one where the plaintiff claimed he was defamed by a California attorney who, on social media, had insinuated that the plaintiff was a rapist: While California may be a preferred location for defendants, and certainly would not be an unreasonable forum for the resolution of this dispute, the nexus between New York and the allegations of the complaint is sufficient to leave plaintiff’s choice of forum undisturbed. Although defendants have their primary offices in California, defendants have put themselves out as New York legal service providers. They avail themselves of New York business, have offices located in New York, and are currently engaged in other New York litigation matters. Finally, New York is a hub for media and entertainment business such that it should not be a significant or -13- 17 of 20 FILED: NEW YORK COUNTY CLERK 11/04/2023 11:10 AM INDEX NO. 152734/2023 NYSCEF DOC. NO. 105 RECEIVED NYSCEF: 11/04/2023 inconvenient burden for parties and potential witnesses to travel to a New York court. Accordingly, the motions to dismiss for forum non conveniens are denied. The present defendants’ motion for dismissal, based on forum non conveniens should similarly be denied. POINT V THE STATUTE OF LIMITATIONS HAS RUN, BUT DEFENDANTS HAVE NOT OFFERED TO WAIVE IT (NOR ANY JURISDICTIONAL DEFENSES) IF THIS ACTION WERE DISMISSED FOR FORUM NON CONVENIENS. Another factor to be considered is the statute of limitations. This action was commenced toward the end of the one-year statute of limitations for defamation claims in New York, CPLR 215 subd. 3, and it has run since then. California also has a one-year statute (Cal. Civ. Code § 340(c)), and it has also run. So a new suit in California would unquestionably be time-barred. Generally, a forum non conveniens dismissal is without prejudice, because the plaintiff still must retain the right to have his claims adjudicated somewhere, albeit just not in his chosen forum. On occasion, a defendant who seeks dismissal offers to waive the statute of limitations and any jurisdictional objections as a condition, but there is no such offer here. To the contrary, these defendants in their Notice of Motion (at 1) move “to dismiss with prejudice all claims in this action against it pursuant to CPLR 327” and in their Memorandum of Law “request that the Court dismiss the Complaint, with prejudice, pursuant to CPLR 327(c).” Def. Memo at 16 (emphases added). But the defendants here want it all; in their view plaintiff should be out of court altogether, whether here or in California. Courts have conditioned forum non conveniens dismissals on the defendant’s waiver of jurisdictional and limitations defenses, see KOA Holdings v Thornton, 208 AD2d 481 (1st Dept 1994). But “offering such options to the plaintiffs is problematic” (Boyle, supra, 110 AD3d at 946). -14- 18 of 20 FILED: NEW YORK COUNTY CLERK 11/04/2023 11:10 AM INDEX NO. 152734/2023 NYSCEF DOC. NO. 105 RECEIVED NYSCEF: 11/04/2023 And it is indeed problematic, see Mun. High Income Fund, Inc. v Goldman, Sachs & Co., 54 AD3d 591 (1st Dept 2008)(prior action dismissed in Michigan for forum non conveniens without waiver of statute of limitations was dismissed on that basis when later brought in New York); White & Case, LLP v Suez, SA, 12 AD3d 267 (1st Dept 2004)(same). There is no reason for the plaintiff to be subject to such uncertainty. The present case was timely brought in New York, the parties and witnesses and documents are here, and it should remain here. One may legitimately question the defendants’ good faith here, in moving for dismissal of this action with prejudice, knowing full well that the statute of limitations has expired both in New York and California, while simultaneously preserving their jurisdictional and pleading defenses for the next round of motion papers. The Court should not condone this tactic. CONCLUSION Based upon the foregoing, defendants’ motion for dismissal on the basis of forum non conveniens should be denied. Dated: New York, New York November 3, 2023 LAW OFFICE OF RICHARD A. ALTMAN Attorneys for Plaintiff Adam Rosendorff 150 East 56th Street, Suite 12B New York, NY 10022 212.633.0123 altmanlaw@earthlink.net www.altmanlaw.nyc -15- 19 of 20 FILED: NEW YORK COUNTY CLERK 11/04/2023 11:10 AM INDEX NO. 152734/2023 NYSCEF DOC. NO. 105 RECEIVED NYSCEF: 11/04/2023 Certificate Pursuant to Part 202.8-b of the Uniform Civil Rules for the Supreme Court I, Richard A. Altman, certify that, pursuant to Part 202 of the Uniform Civil Rules for the Supreme Court, the Memorandum of Law in Opposition to Defendants’ Motion to Dismiss the Complaint contains 4438 words. _______________________________ RICHARD A. ALTMAN -16- 20 of 20