An Alabama Supreme Court decision may not give the makers of “Borat” much to celebrate in their legal battle with an etiquette teacher who was unwittingly pranked in the hit “mockumentary.”

The court found Kathie Martin cannot sue “Borat” star Sacha Baron Cohen and the film's production companies in Alabama because she signed an agreement which requires that any claim arising from her appearance in the film be brought in New York.

Several news reports have said Baron Cohen won the case. But the decision was purely jurisdictional –- and there is nothing to stop Martin suing him in New York.

Indeed, the owner of the Etiquette School of Birmingham has already filed court papers in Manhattan Supreme Court in an apparent attempt to make sure any suit in that jurisdiction is not time-barred under the one-year statute of limitations.

The papers consist of a “summons with notice,” which, in New York, can be filed as an alternative to filing a summons and complaint. They are dated Oct. 22, 2007 -– just under one year after the general release of “Borat.”

In the film, Martin tries to teach the title character the finer points of dining etiquette. She managed to maintain her on-camera decorum as Borat showed her nude photos of his son, but sued in Jefferson County (Ala.) Circuit Court, alleging fraud, misappropriation of her likeness, and invasion of privacy.

The suit ultimately did not get past the threshold issue of jurisdiction as the Alabama Supreme Court reversed a trial judge who ruled that the forum-selection clause in the contract between Martin and Springland Films was not enforceable because Springland is not qualified to do business in Alabama.

Under Alabama's “door-closing” statute, “All contracts or agreements made or entered into in this state by foreign corporations prior to obtaining a certificate of authority to transact business in this state shall be held void.”

But Justice Michael Bolin, writing for the court, said the filmmakers had established that the “primary purpose” of the agreement between Springland and Martin was interstate commerce and, therefore, the Commerce Clause of the United States Constitution precludes Alabama from closing its doors on them.

The "Borat" producers are also trying to enforce the same forum-selection clause in a suit filed in Alabama by another etiquette teacher and four of her guests who had the misfortune of dining with Borat. A motion to dismiss for improper venue is pending in that case.

No fewer than 16 plaintiffs (see table) have so far filed a total of 10 lawsuits relating to “Borat.” Martin's is the first to generate a published opinion.

By Matthew Heller
1/19/08