Not for Publication in West's Federal Reporter

United States Court of Appeals

For the First Circuit

No. 07-2678

ALEXANDER JOURJINE,

Plaintiff, Appellant,

v.

NOKIA CORP., ET AL.,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Reginald C. Lindsay, U.S. District Judge]

Before

Torruella, Boudin and Howard,

Circuit Judges. 

Dr. Alexander Jourjine on brief pro se.

Joseph L. Kociubes, Jonathan M. Albano, Jason L. Watkins,

Francesca L. Miceli and Bingham McCutchen LLP, on brief for

appellees.

March 6, 2009
Jourjine makes no developed argument directed at this ruling. 1

We deem any argument waived. United States v. Zannino, 895 F.2d 1,

17 (1st Cir. 1990).

Per Curiam. Alexander Jourjine filed suit against Nokia

Corp., Nokia, Inc., and Nokia Svenska AB for defamation and

intentional infliction of emotional distress. Nokia Corp. is a

Finnish corporation (hereinafter "Nokia Finland"). Nokia, Inc. is

a U.S. corporation incorporated in Delaware with a principal place

of business in Dallas, Texas (hereinafter "Nokia U.S."). Nokia

Svenska AB is a Swedish corporation (hereinafter "Nokia Sweden").

Nokia U.S. and Nokia Sweden are each subsidiaries of Nokia Finland,

the parent corporation.

Before trial, Nokia Sweden was dismissed for lack of in

personam jurisdiction. At the close of the evidence, the court

granted Nokia U.S.'s request for judgment as a matter of law on the

claim against it for intentional infliction of emotional distress.1

The remaining claims went to the jury.

The jury rejected the one remaining claim -- the

defamation claim -- against Nokia U.S. It also rejected the

intentional infliction of emotional distress claim against Nokia

Finland. As for the defamation claim, the jury found that Nokia

Finland had negligently published one or more false and defamatory

statements of and concerning Jourjine that were not privileged (or,

if privileged, the privilege was abused), but that the publication

did not cause Jourjine to suffer any injury. Accordingly, the
Although Jourjine also argues that the district court had 2

general jurisdiction over Nokia Sweden, the district court

concluded that Jourjine had only argued specific jurisdiction,

making but a passing reference to general jurisdiction in a

footnote to his memorandum. Jourjine has ignored this district

court finding of an effective waiver.

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court entered a judgment in favor of the defendants. Jourjine has

appealed.

I.

Jourjine challenges the district court's dismissal of

Nokia Sweden for lack of in personam jurisdiction. The district

court concluded that Jourjine had failed to demonstrate that the

court had specific jurisdiction over Nokia Sweden. We review, de 2

novo, the district court's decision. Harlow v. Children's Hosp.,

432 F.3d 50, 57 (1st Cir. 2005). Upon de novo review, we agree

with the district court. Jourjine failed to show any in-forum

activity by Nokia Sweden, much less contacts that were related to

Jourjine's claims of defamation or intentional infliction of

emotional distress.

II.

Jourjine contends that the jury instruction improperly

precluded a finding of defamation per se. He suggests that a

correct instruction on defamation per se would have required the

jury not only to determine whether the defendant "was negligent in

ascertaining whether the statement was true or false" but also
And, in view of the fact that the jury did find one or more 3

of the statements defamatory, Jourjine's present complaint that the

jury instruction precluded a finding of defamation per se is

somewhat puzzling.

We also reject Jourjine's contention that the jury 4

instructions excluded any possibility of finding malice. Jourjine

did not object to the court's instruction and his argument does not

demonstrate plain error by the court.

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whether the defendant was negligent in ascertaining whether the

statement was defamatory.

We need not decide whether Jourjine's present contention

has any merit. It is clear that this contention was affirmatively 3

waived at the charge conference where counsel conceded that

Jourjine's claim was that, if there was negligence, it was

negligence in determining whether the statements were true or false

and that, because he claimed it was defamatory per se, he was not

claiming the defendants were negligent in determining whether it

was defamatory. Tr. 9/18/2007 at pp. 67-68.4

On appeal, Jourjine contends that, because the jury found

that Nokia Finland had defamed him, he was entitled to nominal

damages. Jourjine, however, never requested an instruction on

nominal damages and did not object either to the district court's

failure to instruct on nominal damages or the verdict form which

did not provide for assessment of nominal damages. This claim is,

therefore, forfeit and the plain error standard applies. Jourjine

makes no plain error argument. In any event, we find no plain

error. See Acevedo-Luis v. Pagan, 478 F.3d 35, 39 & n.3 (1st Cir.
Jourjine suggests that counsel objected after the verdict was 5

rendered. The objection, however, was not specifically directed at

the court's failure to instruct on nominal damages. Rather,

counsel argued that the jury, having found the statement to be

defamatory, was required to find damages. The court responded that

the jury could find the action wrongful but that Jourjine had

suffered no injury or, if Jourjine had suffered injury, he had not

demonstrated that the injury had been caused by the defamation.

Even assuming that counsel's post-verdict position is correct,

i.e., that a jury having found defamation is required to find

damages, counsel, nonetheless, did not request such an instruction,

did not object to the court's failure to give such an instruction,

and did not object to the verdict form which did not provide for

such a finding. We would find no plain error.

Jourjine makes a passing complaint that the district court

failed to mention "special damages." Under Massachusetts law,

however, "special damages" refers to economic loss, Ravnikar v.

Bogojavlensky, 438 Mass. 627, 630, 782 N.E.2d 508, 511 (2003), and

the district court instructed on the recovery of compensatory

damages for economic loss. The court's use of the term

"compensatory" instead of "special", to which Jourjine did not

object, was not error.

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2007) (finding no plain error in failing to issue a nominal damages

instruction); see also Lakian v. Globe Newspaper Co., 399 Mass.

379, 383-84, 504 N.E.2d 1046, 1048-49, (1987) (holding that the

failure to award nominal damages is not reversible error when

plaintiff did not object to the verdict form nor the absence of a

jury question directly related to nominal damages).5

III.

Jourjine argues the merits of a postjudgment motion that

he filed in the district court pursuant to Fed. R. Civ. P. 60(b).

However, the denial of such a Rule 60(b) motion is not encompassed

within an earlier-filed appeal of the underlying judgment. It

requires a separately-filed notice of appeal. Williams v. Chater,
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87 F.3d 702, 705 (5th Cir. 1996); Goffman v. Gross, 59 F.3d 668,

673 (7th Cir. 1995); Karras v. Karras, 16 F.3d 245, 247 (8th Cir.

1994); see also Puerto Rico v. SS Zoe Colocotroni, 601 F.2d 39, 42

(1st Cir. 1979) (noting that if the Rule 60(b) motion is denied by

the district court and the denial appealed, we will entertain a

request to consolidate the Rule 60(b) appeal with the pending

appeal from the final judgment where feasible) (emphasis added).

Jourjine failed to file a notice of appeal from the

district court's denial of his Rule 60(b) motion. Accordingly, the

arguments directed at the Rule 60(b) motion are not properly before

us and we will not address them.

IV.

Jourjine argues that he should be permitted to raise new

claims in his appellate brief. There is no basis for permitting

the raising of new claims.

The judgment of the district court entered on September

20, 2007 is affirmed.