Dymond v. National Broadcasting Co., Inc.

• Decision Date: 14 March 1983
• Docket Number: Civ. A. No. 82-427.
• Citation: 559 F. Supp. 734
• Parties: F. Irvin DYMOND, Plaintiff, v. NATIONAL BROADCASTING COMPANY, INC., a subsidiary of Radio Corporation of America, and George Schlatter, d/b/a Schlatter Productions, Defendants.
• Court: U.S. District Court — District of Delaware

559 F. Supp. 734

F. Irvin DYMOND, Plaintiff, v. NATIONAL BROADCASTING COMPANY, INC., a subsidiary of Radio Corporation of America, and George Schlatter, d/b/a Schlatter Productions, Defendants.

Civ. A. No. 82-427.

United States District Court, D. Delaware.

March 14, 1983.

Harry H. Rhodes, III, of Brown, Shiels & Chasanov, Dover, Del., for plaintiff; John C. Lowe, of Lowe, Gordon, Jacobs & Snook, Ltd., Charlottesville, Va., of counsel.

William Prickett, and Richard R. Wier, Jr., of Prickett, Jones, Elliott, Kristol & Schnee, Wilmington, Del., for defendant, National Broadcasting Co., Inc.

OPINION

CALEB M. WRIGHT, Senior District Judge.

Presently before the Court are the plaintiff's, F. Irvin Dymond, motion to amend his complaint to state a cause of action under Delaware law and the defendant's, National Broadcasting Company (hereinafter "NBC"), motion to dismiss the complaint based on the Louisiana statute of limitations. The facts as presently developed are as follows.

On October 3, 1980, NBC, a Delaware corporation, broadcast the television program "Speak Up America" to a nationwide television audience. The plaintiff claimed that he was slandered when a guest on "Speak Up America" stated that Clay Shaw's attorney had been convicted of perjury.¹ The plaintiff, a lawyer who lives and practices in the State of Louisiana, was Clay Shaw's attorney and rendered and practiced law in that State during the relevant time period.

On October 13, 1981, the plaintiff filed suit in the United States District Court for the Eastern District of Louisiana against NBC and George Schlatter, the producer of "Speak Up America", alleging defamation. When the plaintiff learned that his action was barred by the one-year Louisiana statute of limitations, he voluntarily nonsuited his Louisiana action on September 28, 1982. On July 7, 1982, the plaintiff filed the same suit in the United States District Court for Delaware. The complaint filed with the Court was identical to the Louisiana complaint and failed to allege a cause of action in Delaware.

On December 14, 1982, the plaintiff filed a motion to amend his complaint to allege that the television program was viewed in Delaware and that the plaintiff's reputation was injured in Delaware. At oral argument on March 4, 1983, the Court, pursuant to Fed.R.Civ.P. 15(a), granted the plaintiff's motion.

Consequently, the Court is left with the defendant NBC's motion to dismiss. NBC alleges that even if the complaint states a Delaware cause of action, Delaware law requires the application of the Louisiana statute of limitations to the present multistate defamation case. Consequently, because the Louisiana statute of limitations is one year, this action also would be barred in Delaware. The plaintiff argues that Delaware law with its two year statute of limitations should apply because the complaint states that the broadcast caused injury to the plaintiff in Delaware. It is the plaintiff's unsupported contention that an allegedly defamed plaintiff may sue in any state in which he has suffered injury and have the law of that state control the substantive aspects of the litigation. The issue for the Court, consequently, is whether it should apply the Delaware two year statute of limitations or the Louisiana one year statute of limitations in a multistate defamation action where the plaintiff lives and works in the State of Louisiana.

A Federal District Court sitting in diversity in Delaware must apply Delaware conflict of law rules in determining what state law will govern. See, e.g., Klaxon Co. v. Stentor Elec. Mfg. Co., Inc., 313 U.S. 487, 496, 61 S.Ct. 1020, 1021, 85 L.Ed. 1477 (1941); Erie Railroad Co. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 822, 82 L.Ed. 1188 (1938); National Instrument Laboratories, Inc. v. Hycel, Inc., 478 F.Supp. 1179, 1181 (D.Del.1979). Traditionally under the common law, statutes of limitations were considered procedural for conflict of law purposes and therefore states generally would apply their own statute of limitations to a dispute arising in another state. See, Note, The Choice of Law in Multistate Defamation—A Functional Approach, 77 Harv.L. Rev. 1463, 1482 (1964). More recently, however, most states including Delaware have adopted borrowing statutes which hold generally that a foreign statute of limitations will govern in certain situations. See, Note, Statute of Limitations: Lex Loci or Lex Fori, 47 Va.L.Rev. 299, 308 (1961).

Under 10 Del.C. § 8121,² Delaware has made the policy determination in conflict of law decisions that when a cause of action arises outside of Delaware, and that action would be barred in the state in which it arose because of that state's statute of limitations, the cause of action cannot be brought in Delaware. Consequently, a federal court sitting in diversity must apply the forum state's borrowing statute to a cause of action arising outside the forum state. See generally Wells v. Simonds Abrasive Co., 345 U.S. 514, 73 S.Ct. 856, 97 L.Ed. 1211 (1953).

The question that the Court confronts is where does the "cause of action" arise in a multistate defamation action. The courts of Delaware have not been confronted with this question before. Further, while many cases from other jurisdictions analyze choice of law questions in multistate defamation cases, the Court has found no precedent discussing where a "cause of action" arises in a multistate defamation action. The issue the Court must decide is whether the factors used in determining where a "cause of action" arises for purposes of 10 Del.C. § 8121 are the same factors a Delaware Court would use in determining which state substantive law would apply in choice of law determinations. An initial question, therefore, is how "cause of action" is defined under 10 Del.C. § 8121.

Delaware cases construing the term "cause of action" in 10 Del.C. § 8121 are of little help in defining how the courts should determine where a "cause of action" arises in a multistate defamation suit. Generally, the tortious injuries involved in the Delaware cases construing 10 Del.C. § 8121 clearly occur in a single state; therefore, the cause of action arises in that state. See, e.g., Frombach v. Gilbert Associates, 236 A.2d 363, 365 (Del.1967), cert. denied, 391 U.S. 906, 88 S.Ct. 1655, 20 L.Ed.2d 419 (1968) (where tort injury occurred in Pennsylvania, Pennsylvania statute of limitations apply); Chesapeake Util. Corp. v. Chesapeake and Potomac Telephone Co. of Maryland, 401 A.2d 101, 104 (Del.Super.Ct. 1979) (because injury occurred in Maryland, Maryland statute of limitations applied). In a multistate defamation case, however, the plaintiff could argue that tortious injury occurs in all fifty states. If the allegedly defamed plaintiff suffered injury in all of the fifty states, the plaintiff arguably could claim that a cause of action arises in every state. Consequently, if a "cause of action" arises wherever the plaintiff suffers injury, Dymond would be able to sue in Delaware to recover for the injuries he has suffered in Delaware. The end result of this definition of "cause of action" would be that this Court would have to apply the libel law of all the states that received NBC's broadcast because a cause of action has arisen in each of these states. See generally Ettore v. Philco Television Broadcasting Corp., 229 F.2d 481 (3d Cir.1956). This is a result which should be avoided. See Palmisano v. News Syndicate Co., Inc., 130 F.Supp. 17, 19 n. 1 (S.D.N.Y.1955).

In order to determine properly how the term "cause of action" should be defined in a multistate defamation suit, it is necessary to uncover the legislative purpose behind the Delaware borrowing statute. Section 8121 was enacted to prevent forum shopping. See Pack v. Beech Aircraft Corp., 132 A.2d 54, 57 (Del.1957). Furthermore, in judicially enacting a similar borrowing policy, the New Jersey Supreme Court in Heavner v. Uniroyal, Inc., 63 N.J. 130, 305 A.2d 412 (1973) also has stated that the purpose of the borrowing rule is to discourage forum shopping litigants with few ties to New Jersey from gaining the benefit of New Jersey's favorable statute of limitations. Id. 305 A.2d at 415-18; see Henry v. Richardson-Merrell, Inc., 508 F.2d 28, 32 (3d Cir.1975). The issue the Court confronts is how to best effectuate this policy consideration.

The State of New Jersey has decided that the most efficient way to enforce this policy is to consider a foreign state's statute of limitations part of that state's substantive body of law. See, e.g., Busik v. Levine, 63 N.J. 351, 307 A.2d 571, 577-78 (1973); Breslin v. Liberty Mutual Insurance Co., 125 N.J.Super. 320, 310 A.2d 527, 533 (Law Div.1973). The United States Court of Appeals for the Third Circuit in construing New Jersey law has stated the following:

In determining whether the present cause of action is timebarred, New Jersey choice of law rules therefore require a determination of which law will govern the merits of a case.

Henry v. Richardson-Merrell, Inc., 508 F.2d 28, 32 (3d Cir.1975). Consequently, New Jersey will apply a foreign state's statute of limitations whenever it will apply the foreign state's substantive law to the merits of the case.

The Court believes that the State of Delaware also would apply this method of effectuating its borrowing statute. When the Delaware Legislature enacted 10 Del.C. § 8121, it determined that in certain delineated circumstances, a foreign state's statute of limitations would be considered part of that state's substantive body of law. Therefore, similarly to New Jersey, the Delaware courts will apply the foreign state's statute of limitations whenever it would apply the foreign state's substantive law. Consequently, and solely for the purposes of 10 Del.C. § 8121, the Court determines that it will use that body of case law surrounding substantive choice of law determinations in order to determine where the "cause of action" arises in a...