Curtis Publishing Company v. Birdsong

• Decision Date: 10 May 1966
• Docket Number: No. 22277.,22277.
• Citation: 360 F.2d 344
• Parties: The CURTIS PUBLISHING COMPANY, Appellant, v. Colonel T. B. BIRDSONG et al., Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

360 F.2d 344 (1966)

The CURTIS PUBLISHING COMPANY, Appellant, v. Colonel T. B. BIRDSONG et al., Appellees.

No. 22277.

United States Court of Appeals Fifth Circuit.

January 26, 1966.

As Amended May 10, 1966.

T. Eric Embry, Birmingham, Ala., Philip H. Strubing, Philadelphia, Pa., Pepper, Hamilton & Scheetz, Philadelphia, Pa., Beddow, Embry & Beddow, Birmingham, Ala., of counsel, for appellant.

Winston B. McCall and M. B. Montgomery, Birmingham, Ala., John Harris Harper, Pritchard, McCall & Jones, Birmingham, Ala., Barnett, Montgomery, McClintock & Cunningham, Jackson, Miss., of counsel, for appellees.

Before MARIS^*, RIVES and BELL, Circuit Judges.

MARIS, Circuit Judge.

This is an interlocutory appeal under 28 U.S.C. § 1292(b) from orders of the District Court for the Northern District of Alabama overruling the defendant's motions to dismiss the plaintiffs' complaint for failure to state a claim upon which relief can be granted and to quash the service of the summons and complaint. The complaint was filed by Colonel T. B. Birdsong, Commander of the Mississippi Highway Patrol, as a class action on behalf of himself and other members of the Patrol against The Curtis Publishing Company, as publisher of The Saturday Evening Post.

The complaint was amended to add as parties plaintiff 14 members of the Patrol. The amended complaint was served on the Alabama statutory agent of Curtis Circulation Company, a wholly owned subsidiary of the defendant. The district court quashed this service on the ground that the statutory agent of Curtis Circulation Company was not an agent of the defendant for the purpose of service of process. Substituted service was then made under the "long-arm" statute of Alabama¹ by serving the summons and amended complaint on the Alabama Secretary of State who mailed copies to the defendant in Philadelphia. Shortly thereafter the plaintiffs filed a second amended complaint. Thereafter the district court overruled the defendant's motions to quash the substituted service and to dismiss the complaint for improper venue but sustained its motion to dismiss the complaint for failure properly to identify the plaintiffs. Thereupon the plaintiffs filed a third amendment to the complaint. The defendant's motion to dismiss this third amended complaint was overruled by the district court.

The complaint, as amended, sought damages for an alleged libel contained in an article appearing in the issue of the Post of November 10, 1962, entitled "What Next in Mississippi?". The article dealt with the tragic events which followed this court's mandate in the case of Meredith v. Fair, 1962, 305 F.2d 343, and described in some detail the events occurring before, during and after the registration of James Meredith as a student at the University of Mississippi at Oxford. The following is alleged to be the libelous portion of the article:

"A sizable portion of blame must go to the gray-uniformed men of the Mississippi Highway Patrol. `Those bastards just walked off and left us,\' said one top official of the Department of Justice."

The claim of libel is based on the use of the words "those bastards" which are averred to be "obscene and fighting words of and concerning plaintiffs and reflecting on their personal reputation." The orders overruling the motion to quash the substituted service and to dismiss the third amended complaint are the subjects of the present appeal.

We consider first the refusal of the district court to quash the substituted service on the defendant under the Alabama "long-arm" statute. That statute, by its express terms, applies only to non-resident persons, firms, partnerships or corporations "who shall do any business or perform any character of work or service in" Alabama. Moreover it applies only to an action "accrued, accruing, or resulting from the doing of such business, or the performing of such work or service, or relating to or as an incident thereof, by any such non-resident, or his, its or their agent, servant or employee." The defendant asserts that it has not done any business or performed any character of work or service in Alabama within the meaning of the statute, and that if it be held that it did business in Alabama through Curtis Circulation Company as its agent, the present action did not accrue or result from the doing of that business.

Whether the substituted service of process under the Alabama statute was effective to give the district court personal jurisdiction of the defendant poses at least three questions a negative answer to any one of which will require denial of such jurisdiction. The first of these questions is whether the Legislature of the State of Alabama intended the statute to have a scope broad enough to bring in a nonresident defendant whose activities in the state are no greater than those rather minimal activities in which the defendant in this case engaged. The second question is whether those activities in the State would have been sufficient under the due process clause of the Fourteenth Amendment to establish those minimum contacts, ties and relations with the State of Alabama which the Supreme Court has held to be necessary to support the exercise of extra-territorial jurisdiction. And the third question is whether, under the particular facts of this case, the State of Alabama had a sufficient interest in the litigation to justify, under the due process clause, the exercise of extra-territorial jurisdiction by a court in Alabama over the nonresident defendant. Since we are clear that the answer to this last question is decisive of the issue of jurisdiction we do not reach or attempt to answer the first two questions.

The Supreme Court has made it perfectly clear that in this type of situation the State which seeks to subject a nonresident to its judicial jurisdiction must have a definite interest in the litigation. Thus in the leading case of International Shoe Co. v. State of Washington, 1945, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95, the suit was by the State itself, seeking taxes. In McGee v. International Life Ins. Co., 1957, 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223, the validity of the in personam jurisdiction turned on California's paramount interest in the litigation. The Supreme Court referred to California's "manifest interest" in protecting "its residents." "These residents", the Supreme Court said, 355 U.S. at 223, 78 S.Ct. at 201 "would be at a severe disadvantage if they were forced to follow the insurance company to a distant State." In Hanson v. Denckla, 1958, 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283, the Supreme Court emphasized the absence of substantial State interest in distinguishing McGee. The Court said 357 U.S. at 251, 78 S.Ct. at 1238: "The cause of action in this case is not one that arises out of an act done or transaction consummated in the forum State." In a realistic sense, we believe that the same can be said for the present case.

The article containing the alleged libel was written by Robert Massie, a contract writer dealing with the Post as an independent contractor. Massie, a resident of the State of New York, wrote the article at his home after personally observing the riots of September 30 and October 1, 1962 and spending some ten days of investigation in Mississippi. Thereafter, his manuscript was submitted to the editors of the Post in New York City where it was edited. At no time did Mr. Massie or any representative of the Post visit Alabama or interview residents of this State in connection with the preparation of the article. The article makes no mention of Alabama citizens or residents (the plaintiffs are all citizens and residents of Mississippi) and describes events which took place entirely outside Alabama's boundaries. It cannot be said that the Post article had any greater impact on Alabama than the trust instrument in Hanson had on the Florida litigants. In Hanson the Supreme Court again emphasized that the pivotal factor in McGee was the State's interest in protecting its citizens. Hanson v. Denckla, 1958, 357 U.S. 235, 252, 78 S.Ct. 1228, 2 L.Ed.2d 1283.

There must be a rational nexus between the fundamental events giving rise to the cause of action and the forum State which gives that State sufficient interest in the litigation before it may constitutionally compel litigants to defend in a foreign forum.² This seems to be what the Supreme Court meant when it spoke of the "relation to the fair and orderly administration of the laws which it was the purpose of the due process clause to insure." International Shoe Co. v. State of Washington, 1945, 326 U.S. 310, 319, 66 S.Ct. 154, 160, 90 L.Ed. 95.

What interest does Alabama have in this lawsuit? The injury, if any, is primarily to persons in Mississippi where the plaintiffs live and work and where all the operative events giving rise to this suit occurred. Caldwell v. Crowell-Collier Publishing Co., 5 Cir. 1947, 161 F.2d 333, was a suit by the Governor of Florida against Collier Magazine. Judge Sibley, speaking for this Court, there said 161 F.2d at 335:

"* * * Publication is averred in Florida and throughout the United States, but the injury must have occurred mainly in Florida where the plaintiff resides and holds office, and the law of Florida is principally to be regarded."

In the present case, all of the witnesses as to the operative facts are found in States other than Alabama. The only interest Alabama might have is to protect its citizens against reading libels distributed in Alabama about persons not present in this State. That interest in this litigation is shared by 49 other States, including Mississippi,³ and a number of foreign countries where the Post is sold. Could the plaintiffs commence 50 lawsuits against the defendant? Is Alaska or Hawaii really a proper forum for this suit? We think not. This case raises the difficult problems occasioned by multi-state publications. These situations will grow more common and we...