Fairley v. ESPN, Inc.

• Decision Date: 11 June 2012
• Docket Number: Civil Action No. 3:12CV174TSL–MTP.
• Citation: Fairley v. ESPN, Inc., 879 F.Supp.2d 552 (S.D. Miss. 2012)
• Parties: Kenneth FAIRLEY, Plaintiff v. ESPN, INC., Jonathan Hock, Marcus Dupree and Alvin Kidd, Defendants.
• Court: U.S. District Court — Southern District of Mississippi

879 F.Supp.2d 552

Kenneth FAIRLEY, Plaintiff

v.ESPN, INC., Jonathan Hock, Marcus Dupree and Alvin Kidd, Defendants.

Civil Action No. 3:12CV174TSL–MTP.

United States District Court,

S.D. Mississippi,

Jackson Division.

June 11, 2012.

Lisa Mishune Ross, Jackson, MS, for Plaintiff.

James W. Shelson, Luther T. Munford, Robert Gregg Mayer, Phelps Dunbar, LLP, Jackson, MS, for Defendants.

MEMORANDUM OPINION AND ORDER

TOM S. LEE, District Judge.

This cause is before the court on the motion of plaintiff Kenneth Fairley to remand pursuant to 28 U.S.C. § 1447. Defendants ESPN, Inc., Jonathan Hock, Marcus Dupree and Alvin Kidd have responded to the motion and the court, having considered the memoranda of authorities, together with attachments, submitted by the parties, concludes the motion should be granted.

Plaintiff Kenneth Fairley filed the present action against defendants ESPN, Inc., Jonathan Hock, Marcus Dupree and Alvin Kidd in the Circuit Court of Hinds County, Mississippi, asserting claims for defamation, conspiracy to defame, intentional infliction of emotional distress and false light invasion of privacy based on alleged defamatory statements in a documentary produced by defendant Jonathan Hock and broadcast by ESPN focusing on the demise of legendary football player Marcus Dupree, entitled “The Best that Never Was—Money, Race, Scandal and College Football.” Plaintiff alleges that in a segment of the documentary featuring Alvin Kidd, Kidd and Dupree made false and defamatory statements about him and slandered him and cast him in a false light when Kidd and Dupree claimed in the documentary that Fairley met them on a back road in Mississippi and took Dupree's $45,000 signing bonus with the New Orleans Breakers and otherwise mismanaged Dupree's money.

Although Kidd, like Fairley, is a citizen of Mississippi, defendants removed the case to this court on the basis of diversity jurisdiction, contending Kidd has been improperly joined because, among other reasons, the claims against Kidd are barred by the statute of limitations. See Rick Bounds Auto Sales, Inc. v. Western Heritage Ins. Co., Civil No. 1:09CV65–HSO–JMR, 2009 WL 1564429, *4 (S.D.Miss. June 2, 2009) (finding resident defendant improperly joined where all claims against him were time-barred). Plaintiff timely moved to remand, arguing that since his complaint alleges facts sufficient to establish that Kidd's statements in the documentary were “of and concerning” or “clearly directed toward” plaintiff, then there is a reasonable possibility that plaintiff could recover against Kidd for defamation, slander and false light. See Gales v. CBS, 269 F.Supp.2d 772 (S.D.Miss.2003) (finding no improper joinder where plaintiff could not show that allegedly defamatory statements by resident defendants were “of and concerning” plaintiff). However, defendants never contended plaintiff could not show the alleged defamatory statements were “of and concerning” him; and plaintiff failed to address defendants' principal position, which was that plaintiff's claims against Kidd are time-barred. And, while defendants response to plaintiff's motion focused entirely on the limitations issue, plaintiff filed no reply addressing their arguments. Notwithstanding this failure, the court has determined that the motion to remand must be granted because the court cannot conclude that plaintiff has no reasonable possibility of establishing that his claim against Kidd is timely.

Mississippi allows causes of action for defamation and related torts to be filed within one year of the first publication, and no later. SeeMiss.Code Ann. § 15–1–35 (providing that “all actions for slanderous words concerning the person or title, for failure to employ, and for libels, shall be commenced within one (1) year next after the cause of such action accrued and not after”). The court in Washington v. Jackson State University, Civil Action No. 3:07cv00074–DPJ–JCS, 2008 WL 2779297 (S.D.Miss. July 14, 2008), set forth the following principles applicable to accrual of defamation claims in Mississippi:

Under Mississippi common law, “[a] cause of action accrues for purposes of the statute of limitations on the date of the first publication of the allegedly defamatory material.” Mize v. Harvey Shapiro Enters., Inc., 714 F.Supp. 220, 224 (N.D.Miss.1989) (citing Wildmon v. Hustler Magazine, Inc., 508 F.Supp. 87, 88–89 (N.D.Miss.1980)). Thus, under this single publication rule,

the one year limitations period in defamation actions begins to run on the date the allegedly defamatory material is first published to a third person or to the public at large; further, as to any single publication of defamatory material, there may be only one cause of action in which damages are recoverable.... Multiple publications of the same work do not ordinarily reset the statute of limitations; only subsequent editions or reprintings, or a rebroadcast of the same story, are considered new publications that trigger a new cause of action and commence a new statute of limitations period.

Lane v. Strang Commc'n Co., 297 F.Supp.2d 897, 900 (N.D.Miss.2003) (citations omitted). The Mississippi Supreme Court has explained the rationale behind this rule as follows:

Since the gravamen of the offense is not the knowledge by the plaintiff nor the injury to his feelings but the degrading of reputation, the right accrue[s] as soon as the paper [is] exhibitedto third persons in whom alone such repute is resident. The tort is then complete even though the damages may continue or even accumulate.

Forman v. Miss. Publishers Corp., 195 Miss. 90, 14 So.2d 344, 347 (Miss.1943).

Washington, 2008 WL 2779297, at *10–11. In their response to the motion, defendants have presented proof that ESPN first broadcast the documentary “The Best That Never Was” on November 9, 2010, more than a year before November 21, 2011, the date on which plaintiff filed his complaint in this cause. Defendants acknowledge that the program was subsequently rebroadcast within the limitations period. However, they submit that while the rebroadcast of a television program starts the statute of limitations running again for the broadcaster, a rebroadcast does not start the limitations anew as to the source, here, Kidd. In support of their position, defendants rely primarily on New York authority, which indeed, does hold that the republication exception to the “single publication rule” does not apply to a defendant who has no control over the decision to republish. The court recognizes there is ample New York authority on this issue. See, e.g, Rinaldi v. Viking Penguin, Inc., 52 N.Y.2d 422, 435, 438 N.Y.S.2d 496, 420 N.E.2d 377 (N.Y.1981)(defamation claims brought pursuant to “republication” exception dismissed on statute of limitations grounds against authors who “had no knowledge of and...