Anselmi v. Denver Post, Inc.

• Decision Date: 20 June 1977
• Docket Number: 76-1099,Nos. 75-1998,75-1999,s. 75-1998
• Citation: 552 F.2d 316
• Parties: 2 Media L. Rep. 1530 Donald Ray ANSELMI, Plaintiff-Appellant, v. The DENVER POST, INC., a Colorado Corporation, et al., Defendants-Appellees. Raymond B. WHITAKER, Plaintiff-Appellant, v. The DENVER POST, INC., a Colorado Corporation, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 316

552 F.2d 316

2 Media L. Rep. 1530

Donald Ray ANSELMI, Plaintiff-Appellant, v. The DENVER POST, INC., a Colorado Corporation, et al.,

Defendants-Appellees.

Raymond B. WHITAKER, Plaintiff-Appellant, v. The DENVER POST, INC., a Colorado Corporation, et al.,

Defendants-Appellees.

Nos. 75-1998, 75-1999, 76-1099.

United States Court of Appeals, Tenth Circuit.

Argued Jan. 24, 1977.

Decided March 7, 1977.

Rehearing Denied March 29, 1977.

Certiorari Denied June 20, 1977. See 97 S.Ct. 2960.

Edward P. Moriarity, Casper, Wyo. (G. L. Spence, Casper, Wyo., on the brief), for plaintiff-appellant Anselmi.

F. M. Andrews, Jr., Riverton, Wyo., for plaintiff-appellant Whitaker.

Robert S. Warren of Gibson, Dunn & Crutcher, Los Angeles, Cal. (Paul B. Godfrey of Godfrey & Sundahl, Cheyenne, Wyo., and Richard P. Levy of Gibson, Dunn & Crutcher, Los Angeles, Cal., on the brief), for defendant-appellee The Times Mirror Co.

Before SETH, BARRETT and DOYLE, Circuit Judges.

WILLIAM E. DOYLE, Circuit Judge.

In this appeal from a dismissal of a defamation action, the issues presented to us are threshold ones: (1) whether the Wyoming Long-Arm Statute applies, and (2) the presence or absence of sufficient contacts in Wyoming of The Times Mirror Corporation, a California corporation, to constitute a basis for the exercise of personal jurisdiction over it by the United Stated District Court for the District of Wyoming. The trial court, Judge Kerr, dismissed the action against The Times Mirror Corporation for want of personal jurisdiction. 401 F.Supp. 60. We reverse.

The article which is here claimed to be defamatory appeared in The Los Angeles Times newspaper on July 5, 1974. It concerned alleged criminal activities in Wyoming and especially in the City of Rock Springs. It was entitled "U. S. Tries to Close Up 'Wide Open' Wyoming." The plaintiffs Donald Ray Anselmi and Raymond B. Whitaker were expressly named in the article which said that they had testified before a grand jury in Los Angeles and were asked if they had bought guns in Wyoming which they knew had been stolen in California. The Times article commented that even if the gun running was provable, the incidents hardly appeared to be high crimes. However, it added that members of the Federal Crime Strike Force are attempting to determine " * * * if * * * (these) politicians are involved in more serious matters." The alleged libelous article discussed many types of organized crime in Rock Springs including murders for hire, jewel and fur thievery and other high crimes. Plaintiffs allege that the innuendos in the article imply that they were heavily involved in these high crimes. The further allegations are that the article was untrue and was printed with malicious intent, or in the alternative, with a reckless disregard for its truth.

Further allegations are to the effect that contemporaneously with the publication of the July 5, 1974 story in the Los Angeles Times, defendant through the Los Angeles Times news service, a wholly-owned business, caused a story to be released for publication by subscriber newspapers throughout the United States. The defendant vehemently denies this statement and in its brief argues that it has no news service subscribers in Wyoming and that any publication of the articles there took place in violation of the copyright of the Los Angeles Times and without its permission.

The Times Mirror is, as we have noted, a California corporation having its principal place of business in California. It publishes the Los Angeles Times which is first distributed there. It does not, of course, have any offices, listings, employees or assets in Wyoming, but some syndicated features are sold to newspapers subscribers in Wyoming. This amounts to about $2000. Also, a Times Mirror representative visits the state twice a year. Also, some direct mail solicitations are sent to Wyoming newspapers and there are mail solicitations of advertising sent into Wyoming and other states.

The plaintiff, Anselmi, lives in Rock Springs, Wyoming, and is engaged in business there. The plaintiff, Whitaker, is an attorney who resides in and practices law in Casper. He also has some business in Rock Springs.

The Los Angeles Times had, previous to the publication in question, sent three reporters to investigate and to gather news in Rock Springs and other Wyoming towns. Two of them spent three days each and the other spent approximately ten days in Wyoming. All of this activity was to gather news for the story in controversy. The one who was there more than a week spent about $1,000. The other two spent $665. The story giving rise to the lawsuit carried a Rock Springs, Wyoming dateline.

The complaints of both Anselmi and Whitaker allege that the Los Angeles Times exchanged information with The Denver Post and vice versa. The Los Angeles Times and The Denver Post are alleged to have worked together in the development of the Rock Springs crime story which is the basis of this lawsuit. The first story was published in The Denver Post on June 23, 1974, and thereafter it was made available to the news services to which the Post subscribed, including United Press International (UPI) and the Associated Press and was circulated through those wire services in Wyoming and, of course, throughout the country.

During this time of initial publication, the Times Mirror through the Los Angeles Times continued the development of its own story and thereafter published an expanded and more detailed version of it on July 5, 1974. It is alleged that this story was made available for further distribution and republication through the Times to its news services, the UPI and the Associated Press. These stories appeared in a number of Wyoming newspapers and in other newspapers across the nation. Further allegations tell about additional publications following the release of the Los Angeles Times story.

The district court's dismissal which was entered on the second day of October relied on Insull v. New York World-Telegram Corporation, 273 F.2d 166 (7th Cir. 1959), cert. denied, 362 U.S. 942, 80 S.Ct. 807, 4 L.Ed.2d 770 (1960), for its holding that because the single publication rule applied, the tortious act occurred not in Illinois where there was distribution of the paper and where the complaint was filed, but in New York where the paper was first published. Judge Kerr applied the reasoning of the Insull case to the fact situation at bar saying that the Wyoming Long-Arm Statute did not apply as a basis for jurisdiction. Wyo.Stat. Section 5-4.2(a)(iii) and (iv). The trial court held that part (iii) was inapplicable because the act was complete in California and not in Wyoming and subsection (iv) was ruled out by reason of the lack of evidence of doing a volume of business in Wyoming.

The contentions of the plaintiffs are that the trial court erred in the following respects:

First, in its holding that it was without jurisdiction under Wyoming Statutes, Section 5-4.2(a)(iii).

Second, that the court erred in determining that jurisdiction could not be exercised over the Times Mirror Company since it did not carry on a regular course of business in Wyoming.

Third, that the court erred in refusing to defer a ruling on the defendant's motion to dismiss, which request was made by the plaintiff for the reason that jurisdictional discovery was then in progress and it was not completed. The court lacked sufficient facts to rule.

I.

WHETHER JURISDICTION EXISTS UNDER THE WYOMING LONG-ARM STATUTES, SECTIONS 5-4.2(A)(III) AND (IV)

The relevant provisions of the Wyoming Long-Arm Statute which were considered by the court are subsections (iii) and (iv). They provide:

(Section) 5-4.2. Same Personal jurisdiction where otherwise not provided by law. (a) In addition to all other bases of jurisdiction otherwise authorized or provided by law, any court of this state may exercise personal jurisdiction over a person, who acts directly or by an agent, as to a claim for relief arising from the person's

(iii) causing tortious injury by an act or omission in this state;

(iv) causing tortious injury in this state by an act or omission outside this state if he regularly does or solicits business, or engages in any other persistent course of conduct in this state or derives substantial revenue from goods consumed or services used in this state.

In reliance on Insull, supra, ¹ Judge Kerr reasoned that the single publication rule applied in Wyoming and that the Insull case was germane; that the defamation under the rule was capable of having but a single publication and that occurred in California, not in Wyoming; that by reason of California's exclusive jurisdiction Wyoming was precluded from entertaining the case. Thus subsection (iii), supra, which calls for a tort being committed in Wyoming was by its terms inapplicable since the final act occurred in California.

As to subsection (iv), which calls for regular soliciting of business or engaging in a persistent course of conduct or deriving substantial revenue from goods consumed or services rendered, it was ruled out for lack of the necessary volume of business in Wyoming.

We agree with the trial court's ruling as to the non-applicability of subsection (iv), for this is not a "doing business" set of facts. We must, however, disagree with the trial court's holding that subsection (iii) does not apply because of the single publication rule. In our view that section, which simply demands causing tortious injury in Wyoming, governs. Where, as here, it is alleged that a defamatory statement has been sent into Wyoming and causes injury to a Wyoming resident, subsection (iii) is at least potentially applicable depending on the other facts. It is also our view that the single publication rule has nothing to do with the concept of personal jurisdiction such as is presented here. Efforts to link it exclusively to a particular forum court is a distortion. The rule is...