Edwards v. Associated Press

• Citation: 512 F.2d 258
• Decision Date: 25 April 1975
• Docket Number: No. 74-2018,74-2018
• Parties: M. C. EDWARDS, Plaintiff-Appellant, v. The ASSOCIATED PRESS, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 258

512 F.2d 258

M. C. EDWARDS, Plaintiff-Appellant, v. The ASSOCIATED PRESS, Defendant-Appellee.

No. 74-2018.

United States Court of Appeals Fifth Circuit.

April 25, 1975.

Stephen C. Edds, Ralph E. Rood, Columbus, Miss., for plaintiff-appellant.

William J. Threadgill, Columbus, Miss., Walter S. Mack, Jr., Richard N. Winfield, New York City, for defendant-appellee.

Appeal from the United States District Court for the Northern District of Mississippi.

Before GOLDBERG and RONEY, Circuit Judges, and LYNNE, District Judge.

LYNNE, District Judge:

This case raises, once more, the question of the length of Mississippi's long-arm statute. The trial court concluded that the Mississippi courts would not require defendant Associated Press ("AP") to submit to their jurisdiction on the facts presented here. 371 F.Supp. 333 (N.D.Miss.1974). We disagree and hold, furthermore, that the statute as construed does not offend the due process clause of the Fourteenth Amendment. Accordingly, we reverse.

Plaintiff's libel complaint is predicated upon the publication by AP upon its wire services of a false report, characterized by AP as the result of an "inadvertent transposition," that plaintiff's request for a rehearing in a marijuana case had been denied by this Court. The report originated with an AP correspondent in New Orleans, Louisiana, was sent to Atlanta, Georgia, then back to New Orleans. From there it was transmitted into Mississippi, where it was broadcast by an AP member in Lowndes County, Mississippi, where plaintiff resides and where, as duly elected Sheriff, he is in the business of law enforcement and security.

Plaintiff obtained service upon defendant through the provisions of the Mississippi long-arm statute, Miss.Code Ann., § 13-3-57 (1972) (Miss.Code Ann., § 1437 (1972 Cum.Supp.)), ¹ which reaches "any foreign . . . corporation . . . who shall make a contract with a resident of this state to be performed in whole or in part by any party in (Mississippi), or who shall commit a tort in whole or in part in (Mississippi) against a resident . . . shall by such act or acts be deemed to be doing business in Mississippi." Plaintiff relies solely upon the commission by defendant of a tort in Mississippi to sustain in personam jurisdiction there. He argues that even if the tort was initiated in New Orleans, the damage to him occurred in Lowndes County, Mississippi, so that the tort was committed "in part" there. This, he contends, satisfies the statute.

Defendant argues, and the district court agreed, that the statutory language does not reach it, since the tort was committed outside Mississippi. It also argues, and the district court agreed, that the Mississippi Supreme Court would not uphold jurisdiction on these facts. Finally, it argues that the intersection of First Amendment with due process considerations here prohibits assertion of jurisdiction.

We naturally look to state law for the rules of decision in this diversity case. ² Unfortunately, the ratio decidendi we must discern has not yet been precisely articulated by the state court of highest jurisdiction in Mississippi.

Uncertainty about the reach of Mississippi's long-arm statute has continued since its amendment in 1964, whereby the "making a contract" and "committing a tort" jurisdictional bases were added. ³ The confusion stems largely from two cases decided by the Mississippi Supreme Court nearly contemporaneously with the adoption of the statute, Mladinich v. Kohn, 250 Miss. 138, 164 So.2d 785 (1964) ("Mladinich I"), and Breckenridge v. Time, Inc., 253 Miss. 835, 179 So.2d 781 (1965).

Mladinich I was decided after legislative adoption of the amendment to the long-arm statute but a few weeks before the effective date of the amendment. The attempted service had been made before passage of the amendment. The court sustained dismissal by the trial court of an action in slander brought by a resident of Mississippi against a resident of Louisiana for a speech the defendant made in Mississippi. In sustaining the dismissal, the court adopted the "three factor" analysis: (1) The nonresident defendant or foreign corporation must purposefully do some act or consummate some transaction in the forum state; (2) the cause of action must arise from, or be connected with, such act or transaction; and (3) the assumption of jurisdiction by the forum state must not offend traditional notions of fair play and substantial justice, consideration being given to the quality, nature, and extent of the activity in the forum state, the relative convenience of the parties, the benefits and protection of the laws of the forum state afforded the respective parties, and the basic equities of the situation.

While this "three factor" analysis has been utilized to define the outer reaches of permissible state power, ⁴ in Mladinich I the Mississippi Supreme Court nevertheless seems to have engrafted an additional, restrictive requirement upon the analysis, namely, the requirement of "doing business" in Mississippi. See Smith v. Temco, Inc., 252 So.2d 212, 215 (Miss.1971). Despite the fact that Mladinich I expressly disclaimed any interpretation of the amendments to the long-arm statute, its analysis, including the restrictive "doing business" gloss on the three-factor analysis, was applied in subsequent cases dealing with the amended statute. ⁵

In Breckenridge v. Time, Inc., supra, 253 Miss. 835, 179 So.2d 781, the court held that jurisdiction of a libel suit against Time, Inc., was unwarranted. The court first assumed that the amended statute applied to the facts before it, but nevertheless held that the corporation had not purposefully done any act in Mississippi and that jurisdiction would offend "traditional notions of fair play and substantial justice." 253 Miss. at 843, 179 So.2d at 784. This rationale, however, was based upon federal constitutional considerations, not upon statutory construction. ⁶ The Mississippi Supreme Court later characterized Breckenridge as a federal, constitutional holding in Mladinich v. Kohn, 186 So.2d 481, 484 (Miss.1966) ("Mladinich II"):

In Breckenridge v. Time, Inc., (253 Miss. 835), 179 So.2d 781 (Miss.1965), the Court assumed, but did not decide, that (the amended long-arm statute) applied retroactively. The case went off on another issue, namely, that Mississippi courts had no in personam jurisdiction over defendant because it had no minimal contacts in this state. (emphasis supplied).

Further support that Breckenridge was not a case of statutory construction may be drawn from Smith v. Temco, Inc., supra, 252 So.2d 212, where the court, in discussing the amended statute, notes:

The statute, as amended in 1964, has not been construed previously by this Court. In Dawkins v. White Products Corporation, 443 F.2d 589, decided by the United States Court of Appeals for the Fifth Circuit on May 20, 1971, the Court of Appeals . . . correctly concluded that this Court had never passed upon the effect of the 1964 amendments. ⁷

Even were we to read Breckenridge as a case construing the amended long-arm statute, the result would be no different. In Breckenridge, Time, Inc., had no employees or agents in Mississippi, while AP has five news correspondents and a technician who work from office space "loaned" to AP by two of its member papers. ⁸ More significantly, the Mississippi Supreme Court found that Time, Inc., "did not purposefully do any act or consummate any transaction in this state, . . . ." 253 Miss. at 843, 179 So.2d at 784. Here, however, AP beamed its erroneous report into Mississippi only, ⁹ for the purpose of disseminating it in the logically relevant market.

Appellee's strong reliance upon Breckenridge and upon Mladinich I, then, is misplaced. Neither of those cases provides the authoritative construction of Mississippi's amended long-arm statute which Erie requires this Court to seek and follow. ¹⁰

The more pertinent authority here is Smith v. Temco, Inc., supra, 252 So.2d 212, where the Supreme Court of Mississippi upheld jurisdiction over a nonresident manufacturer in a suit based upon injuries suffered by a purchaser of one of the manufacturer's products. The court, construing the amended statute for the first time as we have seen, holds:

By the (amendments), there can be no doubt that the intention of the Legislature was to broaden the scope of the statute and to enlarge the jurisdiction of the Mississippi courts so as to reach nonresident defendants in two new and distinct categories: (1) The nonresident defendant who shall make a contract with a resident to be fulfilled in the State in whole or in part, and (2) the nonresident defendant who shall commit a tort, in whole or in part, in this State against a resident of the State. ¹¹

Although Smith is a products liability case, there is nothing in it to indicate that this Court should restrict the expansive reading given the amended statute. We are therefore inclined to follow the clear language of the statute. ¹² See Dawkins v. White Products Corp. of Middleville, Mich., 443 F.2d 589, 594 (5th Cir. 1971).

We must now turn to the question whether the tort was committed "in whole or in part" in Mississippi. ¹³ Mississippi has adopted the "single publication" rule for purposes of venue in defamation suits. Forman v. Miss. Publishers Corp., 195 Miss. 90, 14 So.2d 344, 148 A.L.R. 469 (1943). Appellee argues that this rule requires a finding that the tort alleged here was complete in New Orleans where AP first published the report. It would follow that the tort occurred neither wholly nor partially in Mississippi, so that the terms of the long-arm statute would not apply to this tort. We disagree.

Forman treats the question of proper venue in a libel action against a foreign corporation qualified to do business in Mississippi and domiciled in Hinds County, Mississippi. The defendant published and first circulated the allegedly libelous article in Hinds County, but...