Fleury v. Harper & Row, Publishers, Inc.

• Decision Date: 09 February 1983
• Docket Number: No. 81-5830,81-5830
• Citation: 698 F.2d 1022
• Parties: 9 Media L. Rep. 1200 Darcia M. FLEURY, Donald L. Fleury, Susan Adele Fleury, and Darleen Ann Fleury, Plaintiffs-Appellants, v. HARPER & ROW, PUBLISHERS, INC., a foreign corporation; Mannitou Enterprises Unlimited, Inc., a foreign corporation; and Linda Goodman, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1022

698 F.2d 1022

9 Media L. Rep. 1200

Darcia M. FLEURY, Donald L. Fleury, Susan Adele Fleury, and Darleen Ann Fleury, Plaintiffs-Appellants, v. HARPER & ROW, PUBLISHERS, INC., a foreign corporation;

Mannitou Enterprises Unlimited, Inc., a foreign

corporation; and Linda Goodman,

Defendants-Appellees.

No. 81-5830.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Sept. 7, 1982.

Decided Feb. 9, 1983.

Stanley Fleishman, Los Angeles, Cal., for plaintiffs-appellants.

Paul P. Selvin, Selvin & Weiner, Los Angeles, Cal., for defendants-appellees.

Appeal from the United States District Court for the Southern District of California.

Before ELY and CHOY, Circuit Judges, and THOMPSON, ^* District judge.

BRUCE R. THOMPSON, District Judge:

This is a diversity action for invasion of privacy, libel, intentional infliction of emotional distress and injunctive relief (stated in four separate claims for relief), arising from the publication by defendants of the book "Love Signs" authored by defendant Linda Goodman. The district court's jurisdiction was predicated on 28 U.S.C. Sec. 1332(a). The appeal is from an order of the district court granting summary judgment for defendants, and a subsequent order denying a motion to alter or amend upon the ground that the causes of action are barred by the statute of limitation. Appellate jurisdiction is predicated on 28 U.S.C. Sec. 1291.

The undisputed facts of record are that Harper & Row Publishers, Inc. intended that "Love Signs" would be a major publication for the 1978 Christmas trade. The author completed the manuscript by late summer 1978. Harper & Row in the spring or early summer of 1978 published its "Fall August through December 1978" list in which Linda Goodman's "Love Signs" was featured for release in November 1978. The August 28, 1978 issue of Publisher's Weekly, the professional journal for trade publishing, contained an announcement that "Love Signs" would be available in November 1978. The issue of the same magazine, dated November 13, 1978, which was placed in circulation approximately a week before the date on the publication, contained a review of "Love Signs" and announced its availability in November.

The release date for the book announced by Harper & Row was November 9, 1978. This was the date when the publisher ordered the release of the book in accordance with trade practice for distribution through shippers for delivery to dealers and distributors for sale. Shipments commenced from the warehouse situated in Scranton, Pennsylvania on November 10, 1978. On that date, approximately 10,000 copies were shipped, and by November 14, 1978, approximately 30,000 copies had been shipped from the warehouse to bookstores throughout the United States.

Books were displayed and on sale at the public bookstore in the Harper & Row Building, 10 East 53rd Street, New York City, on and after November 13, 1978. They were also displayed for sale in the major bookstores on Fifth Avenue before November 16, 1978. An author's party was held in the Harper & Row offices on November 14, 1978, which was attended by between 30 and 50 persons, many of whom received autographed copies of the book.

The shipping documents show a shipment of 50 books by air freight to Rochester, Minnesota on November 10, 1978. The bulk of the shipments were made by truck carrier. Deliveries to New York City are normally accomplished in one day. Shipments to the West Coast normally take about two weeks. By November 14, 1978, substantial shipments had been made to distributors and bookstores in New York, Michigan, California, Illinois and Florida.

There is no evidence that a copy of "Love Signs" had been received in California by November 16, 1978. The official publication date for the book, selected by the author Linda Goodman, was December 25, 1978, and this was the date given to the copyright office and the date used by most reviews of the book.

This action was commenced on November 16, 1979.

The parties identified three states whose laws might control the disposition of the case, Pennsylvania, New York, and California. All three have adopted the single publication rule, Pennsylvania and California by statute, and New York by court decision. Each of the three states has a one-year statute of limitation governing this type of action. The district court made no choice of law, opining that it was unnecessary inasmuch as the law of the three states is the same. This conclusion is not necessarily correct, however, inasmuch as Pennsylvania has interpreted its single publication statute to permit the plaintiff to select any delivery or sale of a book as the offending publication and collect damages for injuries to reputation suffered for one year thereafter. Dominiak v. National Enquirer, 439 Pa. 222, 266 A.2d 626 (1970). Hence, we deem it appropriate to make a choice of law.

In a diversity case the federal court must apply the conflict of law rules that the forum state would apply. Klaxon Co. v. Stentor Electric Manufacturing Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941). California has adopted the "governmental-interest approach" in preference to the traditional dogma in tort cases of applying the law of the place where the tort was committed. The modern conflicts philosophy is elucidated in two opinions of the California Supreme Court: Reich v. Purcell, 67 Cal.2d 551, 432 P.2d 727 (1967); Hurtado v. Superior Court of Sacramento County, 11 Cal.3d 574, 114 Cal.Rptr. 106, 522 P.2d 666 (1974). See also, Ashland Chemical Co. v. Provence, 129 Cal.App.3d 790, 181 Cal.Rptr. 340 (1982). To make a choice of law the court examines the policy underlying the laws of the involved states to determine which states are "interested" in having their laws applied to the issue in question. A state will have an interest in having its law applied if the policies underlying the law would be thereby advanced. Libel and invasion of privacy are transitory torts to which the law of the forum will normally be applied absent a strong governmental interest of another jurisdiction. Pennsylvania is merely the state where the books were warehoused. None of the parties resides there and Pennsylvania has no interest in having its single publication rule applied to this case. California is the state where all the plaintiffs were domiciled throughout the transactions involved, and the state where the major damage to their privacy and reputations should have occurred. Inasmuch as it is the forum state, application of its laws is preferred. Kasel v. Remington Arms Co., 24 Cal.App.3d 711, 101 Cal.Rptr. 314 (1972). Defendant Harper & Row has its place of business in New York City, and the state of New York has an interest in having its laws applied for the protection of its residents against multiplicity of suits and the pressing of stale claims, but inasmuch as the laws of the state of New York are identical with those of California, there is no reason to reject the law of the forum. Hence the laws of California are applicable to the resolution of this case. 12 Cal.Jur.3d, Conflict of Laws, Sec. 19, pp. 498-500; Annot. 58 A.L.R.2d 650, 652 (1958).

McGuire v. Brightman, 79 Cal.App.3d 776, 145 Cal.Rptr. 256 (1978), is an instructive case involving the dissemination of a libel in South Dakota, where the plaintiffs resided. A default judgment was obtained in South Dakota after defendant had been served under South Dakota's long-arm statute. Enforcement of the judgment was sought by action in California and the issue presented was whether the South Dakota court had in personam jurisdiction of defendant. The court affirmed the validity of the South Dakota judgment and discussed at length the decision in Anselmi v. Denver Post, Inc., 552 F.2d 316 (10th Cir.1977), saying in part:

The court's first step in Anselmi was to examine Wyoming law. That examination revealed that Wyoming would probably not follow the single publication rule if the issue were presently raised. Anselmi took the further step, however, of asking whether, even assuming the single publication rule were applied in Wyoming, it would apply to preclude jurisdiction over out of state publishers sending libelous material into the forum state. Relying upon Judge Friendly's decision in Buckley v. New York Post Corporation (2d Cir.1967) 373 F.2d 175, the changes made to the Restatement, and other authority, the Anselmi court concluded that whatever the single publication rule's value in preventing multiplicity of actions and almost endless tolling of the statute of limitations, it would be improperly applied if used to prevent suit in the state of the plaintiff's residence for libel appearing in a newspaper published in a distant state. This conclusion was further supported by the difficulty in reconciling use of the single publication rule with the long-arm statute for torts, since the essence of defamation is injury to the reputation of the plaintiff in his home area where he is known.

McGuire v. Brightman, Id. 145 Cal.Rptr. at 261-262.

Having concluded that the law of California governs this case, we are aided by the principle that substantial deference should be accorded the district judge's interpretation or construction of the law of the state in which he sits.

This standard was discussed in Gaines v. Haughton, 645 F.2d 761 (9th Cir.1981). The opinion reads, in part:

Ordinarily, an appellate court can freely review questions of law. Miller v. United States, 587 F.2d 991, 994 (9th Cir.1978). However, when a federal court is in the position of interpreting state law with no definitive guidance from the state's highest court, see Commissioner v. Estate of Bosch, 387 U.S. 456, 465, 87 S.Ct. 1776, 1782, 18 L.Ed.2d 886 (1967), we accord "substantial deference" to the district judge's interpretation or construction of the law of the state in which he sits. Kabatoff v. Safeco Ins. Co. of America, 627 F.2d 207, 209 (9th Cir.1980); Associated...