Givens v. Quinn, 93-0737-CV-W-1.

• Court: United States District Courts. 8th Circuit. Western District of Missouri
• Citation: 877 F. Supp. 485
• Docket Number: No. 93-0737-CV-W-1.,93-0737-CV-W-1.
• Parties: Charles J. GIVENS, Plaintiff, v. Jane Bryant QUINN and Does 1-50, inclusive, Defendants.
• Decision Date: 24 March 1994

877 F. Supp. 485

Charles J. GIVENS, Plaintiff,
v.
Jane Bryant QUINN and Does 1-50, inclusive, Defendants.

No. 93-0737-CV-W-1.

United States District Court, W.D. Missouri, Western Division.

March 24, 1994.

877 F. Supp. 486

Timothy Monsees, Kansas City, MO, for plaintiff.

John Parry, Washington, DC, Gene Voight, Joseph Gall, Shook, Hardy, Kansas City, MO, for defendants.

ORDER

WHIPPLE, District Judge.

Defendant¹ Jane Bryant Quinn asks this court to dismiss the first amended complaint. The court will deny the motion to dismiss the first amended complaint, but will dismiss the first count in the complaint for the reasons stated below.

877 F. Supp. 487

I. Background

Plaintiff Charles J. Givens is a resident of Florida who sells financial advice through books and seminars. Quinn is a resident of New York who gives financial advice in her books, magazine articles and a a nationally syndicated newspaper column. An article attached to the first amended complaint notes Quinn's newspaper column is syndicated through the Washington Post.

Givens alleges Quinn defamed him by indicating in her syndicated column and in two Newsweek articles that Givens gives "biased dangerous advice" and leads "his students to financial ruin." The first amended complaint suggests Quinn defamed him because his book knocked Quinn's book off the Best Seller List.

In the original complaint, Givens only alleged Quinn defamed him in a syndicated column that first appeared on November 21, 1991 and appeared in the Kansas City Star on November 24, 1991. In the first amended complaint, Givens adds several other instances of allegedly libelous statements. The first amended complaint states Quinn next defamed Givens in a syndicated column that appeared in the Kansas City Star on April 27, 1993. Quinn allegedly defamed Givens again in a May 17, 1993 and a June 28, 1993 Newsweek article. In response to the May 17, 1993 Newsweek article, Givens questioned Quinn's honesty in a full-page advertisement in the May 27, 1993 edition of USA Today.

Givens filed the original complaint on November 23, 1992, in the Circuit Court of Jackson County, Missouri and on July 2, 1993, Givens served a copy of the summons and the complaint on Quinn. Quinn removed the case to this court. Quinn now asks this court to dismiss the case because the statute of limitations bars Givens' from suing.

II. Statute of Limitations

Quinn does not dispute the syndicated column that appeared on April 27, 1991, in the Kansas City Star and the two articles that appeared in Newsweek survive statute of limitations analysis. Quinn does dispute that a claim for libel based on a syndicated column that first appeared on November 21, 1991 and appeared in the Kansas City Star on November 24, 1991 can survive statute of limitations analysis.

A. Single Publication Rule

Quinn argues the applicable statute of limitations is one year. Quinn correctly notes that Missouri courts apply the statute of limitations from the state where the libel was first published. Quinn argues that this court must apply a one-year and not Missouri's two-year statute of limitations because before the syndicated column appeared in Missouri, it appeared in states that apply a one-year statute of limitations.

Quinn's argument assumes Givens is limited to a single cause of action for a syndicated column that appeared in different newspapers throughout the country and not a cause of action for each newspaper edition. In short, Quinn assumes, without any analysis, the single publication rule applies. If the single publication rule applies, then Givens has one cause of action for the syndicated column that first appeared on November 21, 1991 and this court will use Missouri's borrowing statute to apply a non-Missouri statute of limitations. Finnegan v. Squire Publishers, Inc., 765 S.W.2d 703, 704-05 (Mo.Ct. App.1989) (In libel actions, Missouri will borrow the statute of limitations of the state where the allegedly libelous statement is first published.). If the single publication rule does not apply, then Givens has a cause of action for each newspaper edition the syndicated column appeared in. The syndicated column appeared on November 24, 1991, in the Kansas City Star, which is published in Missouri. Thus, if the single publication rule does not apply, Givens would have a cause of action that originated in Missouri and the court would apply Missouri's two-year statute of limitations.

English common law, later adopted by American courts, followed the multiple publication rule which provided a cause of action for each copy of a newspaper edition containing a defamatory statement. See, Rinaldi v. Viking Penguin, Inc., 52 N.Y.2d 422, 438 N.Y.S.2d 496, 499-501, 420 N.E.2d 377, 380-81 (1981) (explaining the multiple publication rule and its evolution to the single publication rule in New York, the first state in the country to adopt the single publication rule).

877 F. Supp. 488

Thus, under the multiple publication rule, if a newspaper prints a hundred thousand copies of an edition containing libelous statements, a plaintiff can bring a hundred thousand causes of action against the newspaper. Cf. Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 777, 104 S.Ct. 1473, 1479, 79 L.Ed.2d 790 (1984) (The single publication rule protects defendants from "harassment resulting from multiple suits.") (citing the Restatement (Second) of Torts § 577A, Comment f (1977)). Also, under the multiple publication rule, the statute of limitations does not run until the last copy of the edition is removed from sale — providing the plaintiff with almost complete immunity from any statute of limitations. Restatement (Second) of Torts § 577A, Comment c (1977). Two problems thus exist with the multiple publication rule: the rule allows a plaintiff to bring numerous causes of action against a defendant simply to harass the defendant and it renders the statute of limitations in libel actions a nullity

Missouri, for purposes of venue, judicially adopted the single publication rule presumably, to prevent these two problems. State ex rel. Drake Publishers v. Baker, 859 S.W.2d 201, 204 (Mo.Ct.App.1993); Litzinger v. Pulitzer Publishing Co., 356 S.W.2d 81, 84-87 (Mo.1962). "The single publication rule requires a plaintiff to recover all of his or her damages arising from a libel published in any one edition or issue of a magazine in one action. Restatement (Second) of Torts § 577A (1977)."² See also, Patch v. Playboy Enterprises, Inc., 652 F.2d 754, 757 (8th Cir. 1981) (applying Missouri law).

This court recognizes Missouri courts only reluctantly extend cases interpreting venue to other contexts. Finnegan, 765 S.W.2d at 705. In a case interpreting Missouri's borrowing statute, the court explained why it refused to rely on venue cases:

The borrowing statute is primarily designed to prevent a plaintiff from forum shopping to gain more time to initiate a cause of action. A purpose of statutorily specified venue is to protect the defendant against the risk that a plaintiff will select an unfair or inconvenient place of trial. Additionally, Missouri's venue statute prevents a plaintiff seeking damages for libel in a widely distributed publication from gaining privileges of venue not allowed by law to a plaintiff in tort actions other than libel, in which the cause of action could accrue only in one county.

Id. The court is mindful of this admonition, but does not believe these words of caution apply to determining whether Missouri would apply the single publication rule to multistate defamation cases. This court is not interpreting either Missouri's venue or borrowing statute at this point. The single publication rule is not a choice-of-law rule. Instead, the single publication rule determines how many causes of action a plaintiff might have and when the statute of limitations begins to run. The court believes that Missouri will follow the majority of the states in applying the single publication rule in multistate defamation actions. Keeton, 465 U.S. at 777 n. 8, 104 S.Ct. at 1479 n. 8 ("The great majority of the States now follow the `single publication rule.'"). But see, Lewis v. Reader's Digest Ass'n, Inc., 162 Mont. 401, 512 P.2d 702, 706 (1973) (refusing to follow the single publication rule for all purposes, including venue). Missouri already recognizes the single publication rule for venue purposes and nothing in the case law, dicta or otherwise, suggests Missouri would not apply the rule in other contexts.

Missouri courts have not decided whether the single publication rule applies to the facts

877 F. Supp. 489

of this case. For example, in Finnegan, 765 S.W.2d at 704-05, a Missouri plaintiff sued a newspaper printed in Kansas, but distributed in both Kansas and Missouri for libel. The plaintiff attempted to apply Missouri's two-year statute of limitations, but the court held the Kansas one-year statute of limitations applied instead. Id. The court noted that the Missouri borrowing statute required the court to determine where the cause of action originated. Id. The court held that in libel cases, the court would "borrow" the statute of limitations from the state where the allegedly libelous statements were first published. Id. The defendant printed and originally distributed the newspaper in Kansas, thus the court applied the Kansas statute of limitations. Id. In the present case, however, the court cannot determine where the cause of action originated until it determines how many causes of action exist. In Finnegan, the plaintiff only had one cause of action because under the single publication rule, a plaintiff does not obtain...