Continental Cablevision v. Storer Broadcasting Co.

• Decision Date: 31 December 1986
• Docket Number: Civ. A. No. 80-2929-S.
• Citation: 653 F. Supp. 451
• Parties: CONTINENTAL CABLEVISION, INC., Plaintiff and Defendant in Counterclaim, v. STORER BROADCASTING COMPANY, Defendant and Plaintiff in Counterclaim.
• Court: U.S. District Court — District of Massachusetts

653 F. Supp. 451

CONTINENTAL CABLEVISION, INC., Plaintiff and Defendant in Counterclaim, v. STORER BROADCASTING COMPANY, Defendant and Plaintiff in Counterclaim.

Civ. A. No. 80-2929-S.

United States District Court, D. Massachusetts.

December 31, 1986.

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Walter R. May, Peabody and Arnold, Boston, Mass., for Continental Cablevision, Inc.

Edward F. McLaughlin, Jr., Nutter, McClennen & Fish, and Peter Resnik, McDermott, Will & Emery, Boston, Mass., for Storer Broadcasting Co.

MEMORANDUM AND ORDER ON CONSOLIDATED PRETRIAL MOTIONS

SKINNER, District Judge.

This litigation began in 1980, when Continental Cablevision, Inc. ("Continental") filed suit in this court against Storer Broadcasting Company ("Storer") alleging, in essence, that Storer defamed Continental in Missouri in order to prevail in a cable television licensing competition which was to determine which firm would receive a license to operate a cable television franchise in Florissant, Missouri. I granted summary judgment to Storer on Cablevision's claims by Memorandum and Order dated December 28, 1984. That Memorandum relates the details of the underlying dispute.

Storer has filed counterclaims against Cablevision for defamation and abuse of process. The counterclaims allege that Continental knew its suit was baseless, and that the suit was filed with the purpose of impugning Storer's reputation for corporate fair dealing and honesty in the hope that this blow to Storer's reputation would improve Continental's competitive position vis-a-vis Storer in cable television licensing proceedings in Missouri and elsewhere. The parties are now preparing for trial on Storer's counterclaims, and have submitted these consolidated pretrial motions.

I have followed the parties' designation and numbering of these consolidated motions. I shall address them in numerical order, except for Continental's motion regarding choice of law and its motion to dismiss Storer's abuse of process counterclaim, which take logical precedence over the other motions.

Continental's Pretrial Motions

IV. Motion Pursuant to Fed.R.Civ.P. 56 That The Law of Massachusetts Applies to All Issues of This Case

The parties of course agree that Massachusetts choice of law rules apply. Klaxon v. Stentor Electric Mfg. Co., Inc., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941). They also both agree that while the traditional rule of lex loci deliciti no longer strictly controls choice of law questions in tort suits, Cohen v. McDonnell Douglas Corp., 389 Mass. 327, 450 N.E.2d 581 (1983); Pevoski v. Pevoski, 371 Mass. 358, 358 N.E.2d 416 (1976), it still provides a useful rule for most multi-state torts. Pevoski, supra, at 359-60, 358 N.E.2d 416; Schulhof v. Northeast Cellulose, Inc., 545 F.Supp. 1200, 1203 (D.Mass.1982). Finally, the parties agree that the current Massachusetts procedure is to "determine the choice-of-law question by assessing various choice-influencing considerations." Bushkin Associates, Inc. v. Raytheon Co., 393 Mass. 622, 631, 473 N.E.2d 662 (1985). In evaluating the relative importance of these various considerations, the Restatement (Second) of Conflict of Laws (1971) is "one obvious source of guidance," id., but Massachusetts courts do not "mechanically" follow the Restatement. Emery Corp. v. Century Bancorp., Inc., 588 F.Supp. 15, 18 (D.Mass.1984); Bushkin, supra.

Beyond these general propositions, the parties differ widely. They disagree as to the specific rules to be applied, the manner in which those rules should be applied, and the relative importance of various contacts. These differences should not be surprising given the Supreme Judicial Court's acknowledgment that "some vagueness in the formulations applied is probably unavoidable." Bushkin, supra, 393 Mass. at 632, 473 N.E.2d 662.

Although Continental chose Massachusetts as the forum in which to bring its original action, there is no doubt that the dispute which gave rise to this litigation occurred in Missouri. The licensing competition at issue was in Missouri, and the statements by Storer upon which Continental based its original claims were made in Missouri. Any effect that those statements had occurred in Missouri as well. Both parties agreed that Missouri law applied to Continental's claims.

Continental argues that Massachusetts law applies to the Storer counterclaims because those claims are based on Continental's lawsuit which was filed and prosecuted in Massachusetts. In particular, Continental argues that the alleged defamatory statement was the lawsuit itself, so that the place of the defamation was Massachusetts, and Massachusetts law should therefore apply to the defamation claim. Furthermore, it argues that since the process being abused was Massachusetts process, and Massachusetts is the state which cares most whether its process is abused, Massachusetts law should apply to the abuse of process claim as well.

Storer claims that Missouri law applies. Storer points to the original dispute between the parties, which occurred in Missouri. Storer claims that the purpose of Continental's alleged defamatory lawsuit was to affect the cable licensing process in Missouri. Moreover, Storer claims that to effect this illicit end, Continental principally published the defamation in Missouri. Finally, Storer claims that though Massachusetts process was abused, the actual abuse of process occurred in Missouri where Continental attempted to make capital out of the filing of its lawsuit.

I agree with Storer's characterization of the dispute as centering in Missouri. Moreover, to the extent that Storer can prove its allegations, to allow Continental to choose the law by choosing where to defame Storer would itself constitute a kind of abuse of process. I think that it is necessary to prevent this kind of defendant's choice of forum, and I rule that Missouri law applies to both of Storer's counterclaims.

As my 1984 memorandum makes clear, until Continental filed its lawsuit in 1980, all events in the dispute occurred in Missouri. Massachusetts law is much more favorable to defamation (and abuse of process) defendants than Missouri law. Even so, Continental must have known that it was safe in filing in Massachusetts because, since the Missouri contacts were so overwhelming, and the Massachusetts contacts were nil except for Continental's residence, Missouri law was sure to apply to Continental's claims. If Storer is correct in its allegations, then Continental's decision to file in Massachusetts makes sense as an effort to minimize its potential counterclaim liability. This analysis is in fact confirmed by Continental's memorandum in support of its pretrial motions, which states that Continental expected Massachusetts law to apply. Memorandum of Continental Cablevision, Inc. In Support of Consolidated Pretrial Motions, at 20. Since Continental did not argue that Missouri law applies to its claims, the statement that Continental expected Massachusetts law to apply must mean that Continental was anticipating Storer's counterclaims. Plaintiff's right to choose the forum in which it wants to bring suit does not extend so far as to allow a party to control the choice of law to be applied to counterclaims against it.

Under Continental's theory, it could have filed suit in Alaska, as long as Storer did significant business in Alaska, if Alaska law regarding defamation and abuse of process was most pro-defendant, and a federal court sitting in Alaska would have to apply Alaska law to Storer's counterclaims even though the transaction and every single event prior to the lawsuit — and most of the events after the filing of the lawsuit — took place in Missouri. Filing a suit in a particular forum in order to preempt choice of law questions regarding potential counterclaims hardly creates the kind of justified expectation on the part of Continental that this court should protect. That Continental is resident in Massachusetts does not, by itself, make Continental's argument correct. Cohen v. Hathaway, 595 F.Supp. 579 (D.Mass.1984).

In a defamation action, the injury occurs where the defamatory statement is published. In a case of multi-state publication, the Restatement suggests that either the law of the state of residence of the plaintiff, or the law of the state "where the defamatory communication caused plaintiff the greatest injury to its reputation" should apply. Restatement, supra, § 150. Continental's alleged defamation of Storer was not necessarily published where the lawsuit was filed; publication occurs when third parties are made aware of the defamatory statements. While Continental filed a press release notifying the press of the suit in Massachusetts, it also sent letters to various residents of Missouri with some control over the cable licensing process in an attempt to affect cable licensing in Missouri. Therefore, the alleged defamatory statements were published in Missouri as well. Storer has plausibly alleged that the place of greatest injury to it occurred in Missouri. Under the Restatement guidelines for multi-state defamations, Missouri law should apply.

Even if this action is not seen as one of multi-state defamation, Missouri could be seen as the place of publication, for the reasons given above. While Storer alleges that Continental hoped to harm Storer's reputation nationwide, Storer's principal allegation is that Continental hoped to influence the cable licensing process in Missouri, and that Continental used the pendency of its lawsuit to that end by informing various Missouri decision makers of the lawsuit. Therefore, the specific publication of the alleged defamatory statement to those Missourians is relevant for choice of law purposes.

"The place where the relationship, if any, between the parties is centered," is an important factor in choice of law questions in tort suits. Restatement, supra, § 145(2)(d). While Massachusetts has not, as noted, adopted...