Brown v. Courier Herald Pub. Co., Inc., Civ. A. No. CV388-25 to CV388-27 and CV388-39.

• Decision Date: 11 November 1988
• Docket Number: Civ. A. No. CV388-25 to CV388-27 and CV388-39.
• Citation: 700 F. Supp. 534
• Parties: R. Lynn BROWN, Plaintiff, v. COURIER HERALD PUBLISHING COMPANY, INC. d/b/a The Courier Herald and the Associated Press, Defendants. R. Lynn BROWN, Plaintiff, v. Gene ROGERS d/b/a W.U.F.F. Radio and The Associated Press, Defendants. R. Lynn BROWN, Plaintiff, v. Edwin H. BOWEN d/b/a Telfair Enterprise and the Associated Press, Defendants. R. Lynn BROWN, Plaintiff, v. The ALBANY HERALD PUBLISHING CO., INC. d/b/a The Albany Herald and the Associated Press, Defendants.
• Court: U.S. District Court — Southern District of Georgia

700 F. Supp. 534

R. Lynn BROWN, Plaintiff, v. COURIER HERALD PUBLISHING COMPANY, INC. d/b/a The Courier Herald and the Associated Press, Defendants.

R. Lynn BROWN, Plaintiff, v. Gene ROGERS d/b/a W.U.F.F. Radio and The Associated Press, Defendants.

R. Lynn BROWN, Plaintiff, v. Edwin H. BOWEN d/b/a Telfair Enterprise and the Associated Press, Defendants.

R. Lynn BROWN, Plaintiff, v. The ALBANY HERALD PUBLISHING CO., INC. d/b/a The Albany Herald and the Associated Press, Defendants.

Civ. A. Nos. CV388-25 to CV388-27 and CV388-39.

United States District Court, S.D. Georgia, Dublin Division.

November 11, 1988.

Pamela M. Richards, Warner Robins, Ga., for plaintiff.

David E. Hudson, Augusta, Ga., Francis M. Lewis, Dublin, Ga., for Courier Herald Pub. Co., Inc. and Associated Press.

William E. Hicks, Milton Harrison, Eastman, Ga., David E. Hudson, Augusta, Ga., for Gene Rogers and Associated Press.

David E. Hudson, Augusta, Ga., Lamar Murdaugh, McRae, Ga., for Edwin H. Bowen and Associated Press.

William H. Major, Atlanta, Ga., David E. Hudson, Augusta, Ga., David M. Zacks, Atlanta, Ga., for Albany Herald Pub. Co., Inc. and Associated Press.

ORDER

BOWEN, District Judge.

Before the Court are (a) the suggestion for consolidation of the captioned cases made by certain parties; (b) the motions of plaintiff and defendant Gene Rogers d/b/a W.U.F.F. Radio ("Big Wuff Radio") (hereinafter "Rogers") to remand the captioned cases to the Georgia state courts in which they were filed; and (c) certain defendants' motions for summary judgment based on the so-called "wire service defense."

FACTS

Plaintiff filed four separate actions in Georgia state courts in four different counties. Each action involved an admittedly inaccurate Associated Press ("AP") release that identified plaintiff as an indictee who had threatened the life of a federal witness. This news story was published in the next editions of three local newspapers and transmitted by W.U.F.F. Radio. Plaintiff alleges that the libel damaged him. Each of plaintiff's actions names as defendants AP and a local media organization. Asserting 28 U.S.C. § 1441(c) (1982) (section 1441(c)), as its basis, AP removed all four actions to federal court. After one of the actions was transferred to this Court, all four actions currently are pending in the Dublin Division of this District.

CONSOLIDATION

The captioned cases are based on separate publications of the same AP release, and many of the factual and legal issues in the cases are identical. Consolidation of the captioned cases would promote judicial economy. Civil action number CV388-025 was the first of the four captioned cases that AP removed to this Court. Accordingly, the captioned cases hereby are CONSOLIDATED into CV388-025 for all purposes. See Fed.R.Civ.P. 42(a). All further expressions in this order relate to the captioned cases as consolidated. In the future, the caption of the case shall so reflect.

JURISDICTION

A federal court must examine its jurisdiction sua sponte even if no party raises the issue. See Mount Healthy City Bd. of Educ. v. Doyle, 429 U.S. 274, 278, 97 S.Ct. 568, 571, 50 L.Ed.2d 471 (1977). Moreover, "the mere consent of parties cannot confer upon a court of the United States the jurisdiction to hear and decide a case." See American Fire & Casualty Co. v. Finn, 341 U.S. 6, 18 n. 17, 71 S.Ct. 534, 542 n. 17, 95 L.Ed. 702 (citations omitted). Therefore, this Court will consider its jurisdiction over all parties in this consolidated case even though most of the parties apparently have no objection to proceeding in this Court.

This Court does not have jurisdiction over cases in which nondiverse defendants are present unless the case otherwise is removable under section 1441(c). See American Fire & Casualty Co. v. Finn, 341 U.S. 6, 16-19, 71 S.Ct. 534, 541-43, 95 L.Ed. 702 (1951). Therefore, because nondiverse defendants are present in this case, the only possible basis for this Court's jurisdiction is section 1441(c).

Surprisingly, my research revealed only two cases in either a federal circuit court or the Supreme Court in which the court applied section 1441(c) to a libel action against at least two separate defendants in which there were separate publications of the same allegedly libelous material. See Marrical v. Detroit News, Inc., 805 F.2d 169, 170 (6th Cir.1986); M.F. Patterson Dental Supply Co. v. Wadley, 401 F.2d 167, 169 (10th Cir.1968). In both of those cases, the courts assumed, without analysis, that removal was proper under section 1441(c). Because of the complete absence of any controlling, or even persuasive, appellate authority on the issue, this Court's task is to apply the language of section 1441(c), as authoritatively construed by the Supreme Court in American Fire & Casualty Co. v. Finn, 341 U.S. 6, 9-14, 71 S.Ct. 534, 537-40, 95 L.Ed. 702 (1951), to the facts of this case.

Section 1441(c) provides that:

whenever a separate and independent claim or cause of action, which would be removable if sued upon alone, is joined with one or more otherwise nonremovable claims or causes of action, the entire case may be removed and the district court may determine all issues therein, or, in its discretion, may remand all matters not otherwise within its original jurisdiction.

28 U.S.C. § 1441(c) (1982).

Construing this provision, the Supreme Court concluded "that where there is a single wrong to plaintiff, for which relief is sought, arising from an interlocked series of transactions, there is no separate and independent claim or cause of action under § 1441(c)." 341 U.S. at 14, 71 S.Ct. at 540 (footnote omitted).

In Finn, plaintiff alleged alternative claims against two insurance companies and their local agent for recovery of a single fire loss. See 341 U.S. at 7-8, 71 S.Ct. at 537; Seymour v. A.S. Abell Co., 557 F.Supp. 951, 953 (D.Md.1983). In this case, contrastingly, plaintiff does not allege alternative grounds for relief against AP and the local media defendants, but instead alleges that he was wronged by each separate publication. Cf. 557 F.Supp. at 953. Significantly, although plaintiff alleges that defendants are jointly liable for his alleged injury, he does not allege a conspiracy or joint action. Cf. id. at 953-54. "It is a well-established principle of tort law that each publication of a libel constitutes a separate and independent tort." Id. (citing Cianci v. New Times Publishing Co., 639 F.2d 54, 60-61 (2d Cir.1980); Dixson v. Newsweek, Inc., 562 F.2d 626, 630-31 (10th Cir.1977)). Therefore, because plaintiff does not allege a conspiracy or joint action, plaintiff's claims against each defendant are separate and independent claims or causes of action within the meaning of section 1441(c). 557 F.Supp. at 954 (citing numerous cases). Accordingly, this case properly was removed under section 1441(c), and this Court has jurisdiction over this case. Therefore, all pending motions to remand this case are DENIED.

WIRE SERVICE DEFENSE

Defendants Courier Herald Publishing Company, Inc., d/b/a The Courier Herald ("Courier Herald"), Edwin H. Bowen d/b/a Telfair Enterprise ("Bowen"), and The Albany Herald Publishing Company, Inc., d/b/a The Albany Herald ("Albany Herald"), move that this Court grant summary judgment in their favor based on the wire service defense. The Georgia courts have not had the occasion to decide whether Georgia should adopt the wire service defense. Nevertheless, this Court's duty is to decide, not avoid the question. See Meredith v. City of Winter Haven, 320 U.S. 228, 237-38, 64 S.Ct. 7, 12-13, 88 L.Ed. 9 (1943); Stool v. J.C. Penney Co., 404 F.2d 562, 563 (5th Cir.1968); 19 C. Wright, A. Miller, E. Cooper, Federal Practice & Procedure § 4507 at 99 (1982) hereinafter "Wright".

This Court's task under Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 822, 82 L.Ed. 1188 (1938), and its progeny is to discern whether the Supreme Court of Georgia would adopt the wire service defense if the issue was properly presented to that Court. A federal court should consider all available legal sources, including decisions from other jurisdictions, when the court endeavors to vicariously create state law for the purpose of deciding the case before it. Imperial Enter. v. Fireman's Fund Ins. Co., 535 F.2d 287, 290 (5th Cir.1976) (citing Tompkins v. City of El Paso, 449 F.2d 842 (5th Cir.1971)); Wright, supra § 4507 at 100-101. The federal court may not adopt its own policy preference, however, but must choose the rule that it believes the state's highest court is likely to adopt sometime in the future from all that is known about its methods of reaching decisions. See 535 F.2d at 290; Wright, supra § 4507 at 103. With these principles in mind, I will render my best judgment concerning whether the Supreme Court of Georgia would adopt the wire service defense if the issue properly were presented to it. Under the present rules, I cannot certify the question to the Supreme Court of Georgia.

The wire service defense first was introduced in Layne v. Tribune Co., 108 Fla. 177, 146 So. 234 (1933) (en banc). The wire service defense is available if a local media organization republishes a release from a reputable news agency without substantial change and without actually knowing that the article is false. See Nelson v. Associated Press, Inc., 667 F.Supp. 1468, 1478-80 (S.D.Fla.1987). The defense is available if there is nothing on the face of the wire service release that would put the local media organization on notice that the news story may be inaccurate. See id. at 1479. The rationale for providing the defense is that placing a duty on local media organizations to independently verify wire service releases "would be time consuming and expensive, and imposing such a burden would probably force smaller publishers to confine themselves to stories about purely local events." Id. (quoting Appleby v. Daily Hampshire Gazette, 395 Mass. 32, 478 N.E.2d 721,...