Buckley v. New York Times Company

• Decision Date: 04 December 1964
• Docket Number: No. 20452,20851-20853,20716.,20717,20514,20452
• Citation: 338 F.2d 470
• Parties: E. Ross BUCKLEY, Appellant, v. The NEW YORK TIMES COMPANY, Appellee. E. Ross BUCKLEY, Appellant, v. The COMMERCIAL APPEAL, Appellee, E. Ross BUCKLEY, Appellant, v. The NEW YORK HERALD TRIBUNE, Appellee. E. Ross BUCKLEY, Appellant, v. The CINCINNATI POST AND TIMES STAR, Appellee. E. Ross BUCKLEY, Appellant, v. The CHARLESTON GAZETTE, Appellee. E. Ross BUCKLEY, Appellant, v. DES MOINES TOWN REGISTER, Appellee. E. Ross BUCKLEY, Appellant, v. The FLORIDA TIMES-UNION, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

338 F.2d 470 (1964)

E. Ross BUCKLEY, Appellant, v. The NEW YORK TIMES COMPANY, Appellee.

E. Ross BUCKLEY, Appellant, v. The COMMERCIAL APPEAL, Appellee, E. Ross BUCKLEY, Appellant, v. The NEW YORK HERALD TRIBUNE, Appellee.

E. Ross BUCKLEY, Appellant, v. The CINCINNATI POST AND TIMES STAR, Appellee.

E. Ross BUCKLEY, Appellant, v. The CHARLESTON GAZETTE, Appellee.

E. Ross BUCKLEY, Appellant, v. DES MOINES TOWN REGISTER, Appellee.

E. Ross BUCKLEY, Appellant, v. The FLORIDA TIMES-UNION, Appellee.

Nos. 20452, 20717, 20851-20853, 20514, 20716.

United States Court of Appeals Fifth Circuit.

October 26, 1964.

Rehearing Denied December 4, 1964.

Gibson Tucker, Jr., New Orleans, La., Tucker & Schonekas, New Orleans, La., for appellant.

R. Emmett Kerrigan, Thomas F. Daly, Deutsch, Kerrigan & Stiles, New Orleans, La., Lord, Day & Lord, New York City, Armistead F. Clay, Memphis, Tenn., E. Douglas Hamilton, New York City, John F. Novatney, Jr., Rocky River, Ohio, F. Paul Chambers, Charleston, W. Va., Raymond T. Jackson, Cleveland, Ohio, for New York Times Co. and others.

George V. Baus, New Orleans, La., for Des Moines Town Register.

Harold B. Wahl, Jacksonville, Fla., for Florida Times-Union.

Before BROWN and WISDOM, Circuit Judges, and JOHNSON, District Judge.

JOHNSON, District Judge.

These consolidated libel actions for damages are all based on an Associated Press story which stated that the Roman Catholic Archbishop of New Orleans had threatened excommunication by personal letters to Catholics seated on the platform of a militantly segregationist White Citizens Council meeting in New Orleans; that Buckley, then the Republican candidate for Mayor of New Orleans, was on the platform, but denied receiving such a letter.¹

Federal jurisdiction in each case was based on diversity of citizenship, and since none of the defendants had qualified to do business in Louisiana, service was accomplished under the substituted service provision of Louisiana law, which allows such service of process upon a foreign corporation not qualified to do business but doing business in the State, in an action arising out of such business activity.² In each case the newspaper company filed a motion to quash the service and have the action dismissed. In each case the District Court quashed the service and dismissed the action; all of the decisions were based, generally, upon the finding by the District Court³ that the defendants were not "doing business" within the State to a degree sufficient to subject them to substituted service under the Louisiana statute.

The parties argue several questions, such as: Was the service proper under the Louisiana statute? Must the business engaged in be connected with the wrong alleged? Does Louisiana follow the "single publication rule"? and Did the newspaper companies have sufficient contact with the forum state to an extent that Louisiana's exercise of jurisdiction does not offend the due process clause of the Fourteenth Amendment? It is apparent that the Louisiana statute is intended to go the permissible limits of due process in exercising this jurisdiction in personam over foreign corporations allowed by International Shoe Co. v. Washington, (1945), 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95; Perkins v. Benguet Consolidated Mining Co., (1952), 342 U.S. 437, 72 S.Ct. 413, 96 L.Ed. 485; McGee v. International Life Ins. Co., (1957), 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223; and Hanson v. Denckla, (1958), 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283. In this connection see Stanga v. McCormick Shipping Corporation, (5th Cir. 1959), 268 F.2d 544. It is not necessary, therefore, for this Court, under the requirements of Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, to ascertain whether the State law was intended to encompass the challenged service. For the reasons hereinafter appearing, the only question necessary for this Court to decide in these cases is whether the activities of the newspaper companies were sufficient to constitute "minimum contact" within the meaning of the rule. Since this is a fact question, it is necessary to examine the business activities of each defendant within Louisiana at the time of the attempted service.⁴

The New York Herald Tribune, a corporation, has no office, place of business, officers, agents or employees in Louisiana; it has no agent for service of process; it is not listed in any telephone directory, and has no assets within the State of Louisiana. The corporation publishes a daily paper, which is edited, published, printed and principally circulated in the State of New York. The only copies of the paper sold at newsstands in Louisiana are sold through independent distributors pursuant to arrangements made in New York. There are no subscriptions solicited from Louisiana residents; however, copies of the paper are sent directly by mail to Louisiana residents under subscriptions applied for in New York. For the years 1960, 1961 and 1962, there was a daily circulation of newspapers by this corporation through the mail in Louisiana of 43, 34 and 40, respectively; of the total circulation, the Louisiana percentage for the same years was .00012%, .00009% and .00011%, respectively. This corporation has no regular reporters and rarely sent reporters into Louisiana. The corporation has no advertising salesmen in Louisiana, and the total advertising from Louisiana for each of the same years referred to above as it relates to the total linage was approximately .0001%.

The Charleston Gazette, published and circulated principally in West Virginia, has no office, place of business, assets, agents or employees in the State of Louisiana; no subscription solicitation is made of Louisiana residents. The subscriptions from residents of Louisiana (five in April of 1962 and three in July, 1963) resulted from unsolicited orders sent to and accepted in West Virginia. One copy of the paper was sold in Louisiana on April 2, 1962 — the date of the alleged libel — by an independent distributor.

The Cincinnati Post and Times Star is published by the E. W. Scripps Company in Ohio; it is principally circulated in the State of Ohio; an average of thirteen copies of this paper was circulated to Louisiana residents in 1962, these copies having been mailed directly from Ohio in response to unsolicited orders sent to and accepted by the company in Ohio.

The New York Times Company is edited and published in New York and is sent directly to subscribers and independent distributors from New York. The Times Company has no office or resident agents or employees in Louisiana of any kind. The only connections of the Times Company with Louisiana are: the sending of less than a thousandth of one per cent, in the aggregate, of its newspapers from New York to subscribers and to independent distributors in Louisiana; the occasional solicitation of advertising (an amount less than one thousandth of one per cent, in the aggregate) by traveling representatives; two such trips were made in 1960, three in 1961 and four in 1962; and the occasional sending of staff reporters to Louisiana on special assignments (there are no regular Times reporters in Louisiana); this occurred eight times in 1960, twice in 1961 and eleven times in 1962.

The Commercial Appeal, published by the Memphis Publishing Company, a Delaware corporation, has no office, place of business, assets, officers, agents or employees in Louisiana. The newspaper is edited, published and principally circulated in the State of Tennessee. No agents or employees of this company solicit subscriptions from Louisiana residents. The small percentage of its papers that is distributed in Louisiana (approximately nine one hundredths of one per cent) results from unsolicited applications sent to and accepted by the company in Tennessee. The Commercial Appeal has no advertising agents in and does not solicit advertising in Louisiana. On an average of three or four times each year the company sends reporters to Louisiana on special assignments, principally to cover sporting events.

The Florida Times-Union is edited, published and principally distributed in Jacksonville, Florida. During the years 1960-62, this newspaper had an average of ten subscribers in Louisiana who received the Sunday edition and seven who received the daily edition. All of these subscriptions were acquired by applications sent to and accepted by this company in Jacksonville, Florida. There were no regular Times-Union reporters in Louisiana, no office, place of business, agents or employees in the state; no regular advertising agents were retained in Louisiana; all advertising — an extremely small percentage — that originated in Louisiana was accepted in Florida.

The Des Moines Town Register (Des Moines Register and Tribune Company) is edited, published and distributed principally in the State of Iowa; it has no registered or authorized agents, representatives or employees within the State of Louisiana. This company did not solicit business for subscriptions or advertising in Louisiana during the years 1960, 1961 and 1962. The five subscribers in Louisiana during those years made their applications by mail to the newspaper company in Des Moines, Iowa. For the year 1962 the only advertising by this company that was received from Louisiana was four inches from the New Orleans Spring Fiesta.

The law is well settled that the mere circulation of a periodical through the mails to subscribers and independent distributors constitutes neither doing business nor engaging in a business activity. Street & Smith Publications v. Spikes (5th Cir. 1941), 120 F.2d 895, cert. denied 314 U.S. 653, 62 S.Ct. 102, 86 L.Ed.2d 524; Insull v. New York World-Telegram Corp. (7th Cir. 1959), 273 F.2d 166.

The law is also clear that sporadic news gathering by reporters on special assignment and the solicitation of a small amount of advertising do not constitute doing business nor engaging in...