Faigin v. Doubleday Dell Pub. Group, Inc., 95-2702

• Decision Date: 04 December 1996
• Docket Number: No. 95-2702,95-2702
• Citation: Faigin v. Doubleday Dell Pub. Group, Inc., 98 F.3d 268 (7th Cir. 1996)
• Parties: 24 Media L. Rep. 2590 A.J. FAIGIN, Plaintiff-Appellant, v. DOUBLEDAY DELL PUBLISHING GROUP, INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 268

98 F.3d 268

24 Media L. Rep. 2590

A.J. FAIGIN, Plaintiff-Appellant, v. DOUBLEDAY DELL PUBLISHING GROUP, INC., Defendant-Appellee.

No. 95-2702.

United States Court of Appeals Seventh Circuit.

Argued Nov. 30, 1995.

Decided Oct. 11, 1996.

Rehearing and Suggestion for Rehearing En Banc Denied Dec. 4, 1996.

Daniel M. Leep, McNally, Maloney & Peterson, Milwaukee, WI, Alan J. Mandel (argued), Chicago, IL, for Plaintiff-Appellant.

John R. Dawson, Lisa M. Arent (argued), Foley & Lardner, Milwaukee, WI, for Defendant-Appellee.

Before BAUER, ROVNER, and EVANS, Circuit Judges.

ILANA DIAMOND ROVNER, Circuit Judge.

Sports agent A.J. Faigin represented James E. Kelly, a quarterback for the National Football League's Buffalo Bills, from 1983 to 1987. Kelly spoke unfavorably of Faigin in an autobiography (ARMED AND DANGEROUS) that he co-wrote with sports writer Vic Carucci. Faigin filed a diversity suit against Kelly, Carucci, and the book's publisher, Doubleday Dell Publishing Group, Inc., claiming defamation and the intentional infliction of emotional distress. Faigin filed the suit first in the Northern District of Illinois, voluntarily dismissed it, and then re-filed in the Eastern District of Wisconsin. There the district court dismissed Kelly and Carucci for lack of personal jurisdiction, a ruling that Faigin does not challenge on appeal. The court also granted summary judgment in favor of Doubleday on the defamation claim, finding it to be untimely. ¹ We disagree and reverse.

I.

Wisconsin has a two-year statute of limitations for libel actions, and Faigin's suit was filed within that two-year period; but the state also has a borrowing statute designed "to resolve conflicts between jurisdictions on statute of limitations questions." McMahon v. Pennsylvania Life Ins. Co., 891 F.2d 1251, 1257 (7th Cir.1989). We, of course, look to such statutes in deciding which statute of limitations will govern a diversity case. Klaxon v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496-98, 61 S.Ct. 1020, 1021-22, 85 L.Ed. 1477 (1941). Wisconsin's statute provides:

(1) If an action is brought in this state on a foreign cause of action and the foreign period of limitation which applies has expired, no action may be maintained in this state.

(2) If an action is brought in this state on a foreign cause of action and the foreign period of limitation which applies to that action has not expired, but the applicable Wisconsin period of limitation has expired, no action may be maintained in this state.

Wis.Stat. § 893.07. (Subsection (1) is the pertinent provision here, of course.) Wisconsin considers a cause of action "foreign" if the underlying injury occurred outside the state. Guertin v. Harbour Assurance Co. of Bermuda, Ltd., 141 Wis.2d 622, 415 N.W.2d 831, 833-34 (1987); Scott v. First State Ins. Co., 155 Wis.2d 608, 456 N.W.2d 152, 154 (1990).

"It is clear," the district court noted, "that Wisconsin is a place of the plaintiff's injury." Faigin v. Kelly, No. 94 C 616, Decision and Order at 16 (Feb. 6, 1995) (citing Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 777, 104 S.Ct. 1473, 1479, 79 L.Ed.2d 790 (1984)) (emphasis in original). At least forty-one copies of ARMED AND DANGEROUS were sold in Wisconsin, and Faigin has conducted some business within the state; Faigin's reputation, consequently, suffered harm within Wisconsin's borders. Id. Yet, "Faigin has alleged injury in other states as well." Id. And as Doubleday points out, the ties to Wisconsin are otherwise weak: Faigin lives in California, and Doubleday is a Delaware corporation with its principal place of business being New York. Kelly and Carucci live in New York and wrote ARMED AND DANGEROUS there. The book was printed outside of Wisconsin. Of all the copies Doubleday sold directly, less than two-tenths of one percent were sold to Wisconsin bookstores. Looking principally to the Wisconsin Supreme Court's decision in Guertin and the Eighth Circuit's decision in Patch v. Playboy Enters., Inc., 652 F.2d 754 (8th Cir.1981) (per curiam) (applying Missouri's borrowing statute), the district court concluded that when the plaintiff's injury has occurred in more than one state, it amounts to a "foreign" cause of action governed by Wisconsin's borrowing statute, notwithstanding the fact that Wisconsin is one of the states in which injury occurred. Decision and Order at 18. As a result, the district court found the case governed by the shortest statute of limitations among the states where the plaintiff was injured. Id. New York (whence the defendants hail), California (where Faigin lives), and Pennsylvania (the other state in addition to Wisconsin in which Faigin alleges he was injured) all have one-year statutes of limitations for libel. Because Faigin's suit was filed more than one year after his claim for defamation accrued, it was untimely. ²

II.

No Wisconsin court has yet considered whether a multistate defamation case in which at least some injury occurs within Wisconsin's borders constitutes a "foreign" cause of action for purposes of the state's borrowing statute. We must therefore do our best to predict what the Wisconsin Supreme Court would say if presented with this question. Todd v. Societe Bic, S.A., 21 F.3d 1402, 1412 (7th Cir.) (en banc), cert. denied, 513 U.S. 947, 115 S.Ct. 359, 130 L.Ed.2d 312 (1994).

We do, of course, know how Wisconsin identifies a cause of action that is "foreign" for purposes of the borrowing statute. When the Wisconsin Judicial Council redrafted the borrowing statute in 1979, it understood the term "foreign cause of action" to be synonymous with the language of the former version of the statute, which spoke in terms of injuries "received without this state." This persuaded the Wisconsin Supreme Court that a cause of action is "foreign" if the underlying injury occurred outside the state. Guertin, 415 N.W.2d at 834 (approving Johnson v. Deltadynamics, Inc., 813 F.2d 944, 945-46 (7th Cir.1987)). The court eschewed any consideration of whether the cause of action has significant contacts with Wisconsin, emphasizing that this familiar conflict-of-laws inquiry is appropriate only after the court has determined pursuant to the borrowing statute that the cause of action is timely. Id. That determination is governed by the place of injury. Id. at 834-35.

However tricky the "place of injury" test might be in other circumstances (e.g., Johnson, 813 F.2d at 946), it is straightforward enough here. As the district court recognized, the evidence certainly supports the conclusion that Faigin was injured in Wisconsin (assuming, of course, that ARMED AND DANGEROUS really did defame him); it also supports the conclusion that he was additionally injured in other states. This is a quirk of libel law: the plaintiff is generally considered to be injured wherever the defamatory writing is published. Keeton, 465 U.S. at 777, 104 S.Ct. at 1479. In other words, although it is clear where Faigin allegedly was injured, the place of injury cannot be narrowed to one state. What to do?

The district court thought that the Wisconsin courts would treat a multi-state defamation action as "foreign," despite the fact of the plaintiff's injury within Wisconsin borders, in part based on certain language in Guertin. Decision and Order at 18. Recall that section 893.07, which we quoted earlier, invokes the foreign limitations period for a foreign cause of action if that period has expired; but, if the foreign limitations period has not expired and the Wisconsin limitations period has, section 893.07(2) provides that it is the Wisconsin period which governs. This led the Wisconsin Supreme Court to remark in Guertin:

The manifest intent of the legislature in enacting this borrowing statute was to adopt the shortest possible limitation period for actions litigated in this state potentially subject to more than one statute of limitations. The policies advanced by such a statute include the reduction of forum shopping, the prevention of stale claims, the expedient litigation of controverted matters, and the avoidance of uncertainty in assessing the timeliness of bringing an action in this state without the necessity of a court hearing to make such a determination, thereby preserving scarce judicial resources.

415 N.W.2d at 835 (emphasis supplied). The district court thought that the highlighted language spoke to the situation we confront in this case: a lawsuit stemming from injuries that occur in multiple states and thus is potentially subject to more than one statute of limitations. Decision and Order at 18. It is tempting to seize upon this language, we agree. But ultimately, nothing in Guertin really addresses this case. Any case, "foreign" or not, might be subject to more than one statute of limitations, and it was only foreign causes of action to which the court spoke in Guertin. Thus, however strongly Guertin confirms that Wisconsin wishes to apply the shortest possible statute of limitations for "foreign" causes of action, that recognized purpose begs the question whether a multistate defamation case is "foreign."

The district court also looked to the Eighth Circuit's decision in Patch v. Playboy Enters., Inc., supra, but the Missouri borrowing statute at issue in Patch differs in a key respect from Wisconsin's statute. The Missouri statute provides:

Whenever a cause of action has been fully barred by the laws of the state, territory or country in which it originated, said bar shall be a complete defense to any action thereon, brought in any of the courts of this state.

Mo.Rev.Stat. § 516.190 (emphasis supplied). The Eighth Circuit was thus called upon to decide where the plaintiff's libel claim had "originated" for purposes of the borrowing statute. The plaintiff was a Missouri resident, and presumably copies of PLAYBOY magazine, in which he allegedly was libeled, were circulated in Missouri. On the other hand, PLAYBOY had its principal place of business...