David v. National Lampoon, Inc.

• Decision Date: 21 January 1977
• Docket Number: Civ. A. No. 76-232.
• Court: U.S. District Court — District of South Carolina
• Parties: Eugene Sinclair DAVID, Jr., Plaintiff, v. The NATIONAL LAMPOON, INC., Defendant.

432 F. Supp. 1097

Eugene Sinclair DAVID, Jr., Plaintiff, v. The NATIONAL LAMPOON, INC., Defendant.

Civ. A. No. 76-232.

United States District Court, D. South Carolina, Columbia Division.

January 21, 1977.

James Keven Holmes, Francis T. Draine, Lourie, Draine & Curlee, Columbia, S.C., for plaintiff.

James M. Brailsford, III, Robinson, McFadden, Moore & Pope, Columbia, S.C., for defendant.

ORDER ON DEFENDANT'S MOTION TO DISMISS FOR LACK OF JURISDICTION

HEMPHILL, District Judge.

This action is before the court on defendant's motion to dismiss for a lack of personal jurisdiction. The defendant is a satirical magazine which distributes its monthly publication nationally. One of the basic types of humor exhibited by the defendant magazine is its parodies of other national magazines. In September, 1973, the defendant published a parody of a wartime issue of "Life" magazine which contained a picture of the plaintiff accompanied by a caption which, although possibly humorous to some, was apparently offensive and embarrassing to the plaintiff. This picture, with accompanying caption, also appeared in a subsequent publication known as "Best of Lampoon, No. 5", which was a special issue consisting of a collection of the more popular articles that had appeared in the defendant's regular monthly publication. Consequently, the plaintiff sued for invasion of privacy. The defendant now argues that their contacts with the State of South Carolina are sufficiently lacking in quantity and quality so that the assumption of jurisdiction in this case, pursuant to Rule 4, Federal Rules of Procedure, would offend the "traditional notions of fair play and substantial justice" outlined in the case of International Shoe Co. v. Washington¹ and its progeny.

The relevant jurisdictional facts are as follows. The defendant is a New York corporation with its principal place of business in New York, and has no offices, telephone or business directory listings, registered agents, bank accounts, real or personal property, corporate books or records, employees or agents in the State of South Carolina. It is not authorized or registered to do business in South Carolina. The defendant's magazines are edited and published in New York and printed in Kansas. The defendant sells its product to an independent, unaffiliated national distributor for wholesale distribution.

National Lampoon, Inc., has the following contacts with the State of South Carolina. In 1974-1976 an average of 4,226 magazines were sold per month in South Carolina with an average monthly subscription rate of 818. There were an estimated 2600 copies of "special" issues, or collections of the best articles from other issues sold in South Carolina for the same period. The Lampoon's revenues from sales in the State of South Carolina during the year 1975-76 amount to .6 of 1% of total revenues. The percentage of revenues from the September, 1973 issue was also .6 of 1%. South Carolina revenues from the "Best of Lampoon, No. 5" equalled approximately .85 of 1% of total sales from that issue. Although the defendants maintain that they received no advertising revenue from South Carolina, they admit that they submit data on their South Carolina distribution to perspective advertisers, no doubt in an effort to attract their patronage. The defendant also actively solicits subscriptions and the retail distributors for their publications in South Carolina. The defendant admittedly distributed, into the State of South Carolina, an estimated 4,000 to 6,000 copies of the publication which allegedly resulted in harm to the plaintiff.

In determining whether or not this court may exercise personal jurisdiction over a foreign corporation, it must first determine if such jurisdiction exists under the "long arm" statutes² of South Carolina and then move to the question of whether the exercise of such jurisdiction would be violative of due process.

This court finds, as it has in the past, that "these statutes were intended to afford and do afford the courts of South Carolina the full reach of jurisdiction permitted by the due process clause of the United States Constitution." Duplan Corp. v. Deering Milliken, Inc., D.C., 334 F.Supp. 703 (1971); citing Shealy v. Challenger Mfg. Co., 304 F.2d 102, 107 (4th Cir. 1962); Textured Fibres, Inc. v. Deering Milliken Research Corp., D.C., 302 F.Supp. 487 (1969). The due process limitations on state court jurisdiction were initially formulated by the Supreme Court in the landmark decision of International Shoe Co. v. Washington, supra. In that case the court held that due process of law as guaranteed in the United States Constitution requires that a foreign corporation have certain "minimum contacts" with a forum state so that the exercise of jurisdiction does not offend "traditional notions of fair play and substantial justice". In discussing the required analytical process, the court said:

It is evident that the criteria by which we mark the boundary line between those activities which justify the subjection of a corporation to suit, and those which do not, cannot be simply mechanical or quantitative. . . . Whether due process is satisfied must depend rather upon the quality and nature of the activity in relation to the fair and orderly administration of laws which it was the purpose of the due process clause to insure. 326 U.S. at 319, 66 S.Ct. at 159.

In Hardy v. Pioneer Parachute Co., Inc., 531 F.2d 193 (4th Cir. 1976), the Fourth Circuit, in applying the doctrine of International Shoe, stated that "a single transaction is sufficient contact to satisfy the standard if it gives rise to the liability asserted in the suit . . . No unconstitutional burden is imposed on a foreign corporation by requiring it to defend a suit in a forum located in a state where it has advertised and sold the product whose use gave rise to the cause of action." (Citations omitted). 531 F.2d at 195. That case involved a products liability action and the defendant argues that the jurisdiction rulings in products liability cases are inapplicable to the present case. This distinction appears to be an artificial one. This court can see no real legal distinction between a publisher who causes a publication which allegedly harmed the plaintiff to be distributed in the state and a manufacturer who ships an allegedly defective...