325 F.3d 87 (2nd Cir. 2003), 00-9220, Van Buskirk v. The New York Times Co.

Docket Nº:00-9220
Citation:325 F.3d 87
Party Name:Van Buskirk v. The New York Times Co.
Case Date:April 02, 2003
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

Page 87

325 F.3d 87 (2nd Cir. 2003)

Robert VAN BUSKIRK, Appellant.


THE NEW YORK TIMES CO., a New York corporation, and John L. Plaster, individually, Appellees.

No. 00-9220.

United States Court of Appeals, Second Circuit

April 2, 2003

Argued: April 9, 2002.

Page 88

Elihu H. Berman, Clearwater, Fla. (Bruce J. Robbins, Eastchester, NY, on the brief), for Appellant.

George Freeman, The New York Times Co. Legal Department, New York, NY, for Appellees.

Before: WINTER, McLAUGHLIN, and POOLER, Circuit Judges.

POOLER, Circuit Judge.

Robert Van Buskirk sued The New York Times Co. ("the Times") and John L. Plaster for libel. The suit against the Times arose from an editorial page article. The suit against Plaster arose from a letter Plaster wrote and posted on an Internet site. While the suit against the Times was filed within the one-year statute of limitations New York imposes for libel actions, the suit against Plaster was not filed within one year of the date Plaster first published his letter on the Internet. Under New York's single publication rule, the statute of limitations begins to accrue on the first date of publication. Van Buskirk argued that the rule should not apply to Internet publications. Because the New York State Court of Appeals recently held that the single publication rule applies to Internet publications, we affirm the district court's dismissal of the claims against Plaster. We also hold the district court properly dismissed Van Buskirk's claims against the Times after finding that the statements at issue were not reasonably susceptible of the defamatory meaning alleged by Van Buskirk's pleadings.


On June 7, 1998, the Cable News Network ("CNN") broadcast a report on a U.S. military incursion, Operation Tailwind, which took place in a village in Laos in September 1970. According to Plaster, CNN, relying primarily on Van Buskirk, suggested that American forces used nerve gas during Operation Tailwind. Plaster, a former Green Beret and author of SOG: The Secret Wars of America's Commandos in Vietnam, wrote a letter critical of the CNN report and published that letter on a website on June 8, 1998.

The Times published a revised version of the letter as an opinion-editorial piece

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(the "Article") on June 18, 1998. Plaster made a number of statements in the Article, including (1) the CNN report alleging U.S. forces used nerve gas to attack a Laotian village during Operation Tailwind was untrue; and (2) Van Buskirk was a source for this untrue statement.

Van Buskirk sued both the Times and Plaster for libel and intentional infliction of emotional distress. The district court dismissed the libel claims against Plaster as barred by the statute of limitations because the letter was first posted on June 8, 1998 and Plaster did not file his amended complaint, which included the Internet claim, until January 14, 2000. Van Buskirk v. The New York Times Co., 2000 WL 1206732, at *1 (S.D.N.Y. Aug.24, 2000). The district court also dismissed the libel claim against the Times, finding the statements at issue were not susceptible to a defamatory meaning. Id., at *3. The intentional infliction of emotional distress claim also was dismissed, and Van Buskirk does not challenge that dismissal on appeal. Id., at *4. The district court denied Van Buskirk's motion for reconsideration on the issue of defamatory meaning. Van Buskirk v. The New York Times Co., 2001 WL 262576, at *1-*2 (S.D.N.Y. March 14, 2001).


We review a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) de novo, "taking as true the material facts alleged in the complaint and drawing all reasonable inferences in favor of the plaintiff." Stuto v. Fleishman, 164 F.3d 820, 824 (2d Cir. 1999).

A. Single publication rule

New York adheres to a single publication rule in determining when the statute of limitations begins to run on a defamation claim. Gregoire v. G.P. Putnam's Sons, 298 N.Y. 119, 125, 81 N.E.2d...

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