Hickey v. St. Martin's Press, Inc.

• Decision Date: 29 September 1997
• Docket Number: Civil No. H-96-2530.
• Citation: 978 F.Supp. 230
• Parties: George W. HICKEY, JR., Plaintiff, v. ST. MARTIN'S PRESS, INC., et al., Defendants.
• Court: U.S. District Court — District of Maryland

Page 230

978 F.Supp. 230

George W. HICKEY, JR., Plaintiff, v. ST. MARTIN'S PRESS, INC., et al., Defendants.

Civil No. H-96-2530.

United States District Court, D. Maryland.

September 29, 1997.

Mark S. Zaid, James H. Lesar, Washington, DC, for plaintiff.

Lee T. Ellis, Jr., Robert D. Lystad, Baker & Hostetler, LLP, Washington, D.C., for defendants.

ALEXANDER HARVEY, II, Senior District Judge:

George W. Hickey, Jr. ("Hickey") is a retired Special Agent of the United States Secret Service. Between 1963 and 1971, he served in the Presidential and Vice Presidential protective details. On November 22, 1963, at the time of the assassination of President John F. Kennedy in Dallas, Texas, Hickey was riding in the Secret Service vehicle immediately behind the one occupied by the President.

In February of 1992, St. Martin's Press, Inc. ("St.Martin's") published the hardcover edition of Mortal Error. The book was written by Bonar Menninger ("Menninger") and recounts a theory developed by Howard Donahue ("Donahue") that it was a shot from an AR-15 rifle held by Hickey which fatally wounded President Kennedy.

In 1995 and 1996, Hickey filed four different suits in four different jurisdictions, seeking to recover compensatory damages for allegedly defamatory statements contained in Mortal Error. In one or more of these actions, Hickey has named as defendants St. Martin's, St. Martin's Paperbacks, Simon & Schuster, Inc. ("Simon & Schuster"), Menninger and Donahue. He first sued Donahue in April of 1995 in the Circuit Court for Baltimore County. On October 2, 1995, Hickey filed a civil action in the United States District Court for the District of New Hampshire, naming as defendants St. Martin's, St. Martin's Paperbacks, Menninger and Simon & Schuster. On May 16, 1996, Hickey filed a civil action in the United States District Court for the District of Montana naming St. Martin's and Menninger as defendants. On August 14, 1996, Hickey filed a civil action in this Court naming Simon & Schuster and St. Martin's as defendants. That action was docketed as Civil No. H-96-2530.

The Montana suit has now been transferred to this Court and docketed as Civil No. H-97-875. The New Hampshire action has also now been transferred to this Court and has been docketed as Civil No. H-97-1637. By Order dated June 9, 1997, these three federal civil actions have been consolidated for all purposes pursuant to Rule 42(a), F.R.Civ.P. Diversity jurisdiction exists in all three cases under 28 U.S.C. § 1332(a).

Pending before the Court are the following motions: (1) defendants' motion for summary judgment; (2) plaintiff's cross-motion for partial summary judgment; and (3) plaintiff's motion for certification of questions to the Maryland Court of Appeals. Lengthy memoranda and numerous exhibits have been submitted in support of and in opposition to these pending motions. Argument of counsel has been heard at a hearing held in open Court. The principal issue presented by these motions is whether Hickey's claims asserted in the three consolidated cases are barred by limitations.

Following its review of the record here, this Court has concluded that defendants' motion for summary judgment must be granted, that plaintiff's cross-motion for partial summary judgment must be denied, and that plaintiff's motion for certification of questions to the Maryland Court of Appeals must also be denied.

I Background Facts

Reputedly a ballistics and firearms expert, Donahue developed a theory that it was plaintiff Hickey who fired the shot which actually resulted in the death of President Kennedy.¹ This theory is discussed in some detail by Menninger in Mortal Error. The book states that Hickey was riding in the vehicle immediately behind President Kennedy and that, as Hickey was reacting to the shots fired by Lee Harvey Oswald, the vehicle carrying Hickey abruptly changed speed. According to the book, this sudden change of speed caused Hickey to lose his balance and to accidentally discharge his AR-15 rifle in the direction of President Kennedy. Menninger concurs in the Warren Commission's determination that shots fired by Oswald struck the President. However, he asserts in Mortal Error that it was plaintiff's shot which was the fatal wound.

The Donahue theory discussed in Mortal Error first received media coverage in the Baltimore Sun in 1977. On November 1, 1991, Hickey was formally notified that St. Martin's intended to publish the book. Hickey had previously declined to speak to Menninger or Donahue concerning the latter's theory and continued to do so after he learned that the book was about to be published. In February of 1992, St. Martin's published the hard cover edition of Mortal Error. In April of 1992, Simon & Schuster published an audiotape version, and in September of 1992, St. Martin's published the paperback edition. More than two and one-half years later, on April 21, 1995, Hickey filed his first defamation action. That suit was instituted in the Circuit Court for Baltimore County and named Donahue as the only defendants. Hickey v. Donahue, Cir. Ct. for Balto. Co., Case No. 108/268/95CV3513. The Donahue action was later settled, and on February 21, 1996, a stipulation and notice of voluntary dismissal was filed by the parties dismissing the case with prejudice.

Meanwhile, Hickey had filed suit in the United States District Court for the District of New Hampshire on October 2, 1995. Hickey v. St. Martin's Press, et al., Civil No. C-95-475-M. Dispositive motions were later filed by the defendants in the New Hampshire case. In an Order dated September 30, 1996, District Judge Stephen J. McAuliffe held that Hickey's claims based on publication of the hard cover version, the audiotape version and the paperback edition of Mortal Error were barred by the applicable three-year New Hampshire statute of limitations. The Court further held that claims seeking damages flowing from third-party republications of the allegedly defamatory statements contained in Mortal Error were not time-barred.

As noted, the Montana suit had been filed on May 16, 1996 and had named St. Martin's and Menninger as the defendants. Hickey v. St. Martin's Press, et al., No. CV-96-053-GF. In that case, defendant Menninger filed a motion to dismiss the complaint for lack of personal jurisdiction, and defendant St. Martin's filed a motion requesting the Court to transfer the case to this Court or to stay proceedings pending resolution of the New Hampshire action. In a Memorandum and Order dated March 24, 1997, Senior District Judge Paul G. Hatfield transferred the Montana case to this Court pursuant to 28 U.S.C. § 1404(a).

Meanwhile, further motions were filed by the defendants in the New Hampshire case. Noting that Hickey's case was pending in this Court and that the District of Montana action had earlier been transferred here, Judge McAuliffe entered an Order on May 9, 1997 transferring the New Hampshire action to this Court pursuant to 28 U.S.C. § 1404(a). As noted, all three of Hickey's pending suits have now been consolidated by Order of this Court.

II Summary Judgment Principles

It is well established that a defendant moving for summary judgment bears the burden of showing the absence of any genuine issue of material fact and that it is entitled to judgment as a matter of law. Barwick v. Celotex Corp., 736 F.2d 946, 958 (4th Cir. 1984). Where, as here, the nonmoving party will bear the ultimate burden of persuasion at trial, "the burden on the moving party [at the summary judgment stage] may be discharged by `showing' — that is, pointing out to the district court — that there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265 (1986). One of the purposes of Rule 56 of the Federal Rules of Civil Procedure is to require a plaintiff, in advance of trial and after a motion for summary judgment has been filed and properly supported, to come forward with some minimal facts to show that the defendant may be liable under the claims alleged. See F.R.Civ.P. 56(e). If the nonmoving party "fail[s] to make a sufficient showing on an essential element of [his] case with respect to which [he] has the burden of proof," then "the plain Language of Rule 56(c) mandates the entry of summary judgment." Catrett, 477 U.S. at 323, 106 S.Ct. at 2552.

While the facts and all reasonable inferences drawn therefrom must be viewed in the light most favorable to the party opposing the motion, Ross v. Communications Satellite Corp., 759 F.2d 355, 364 (4th Cir. 1985), "when the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). "`A mere scintilla of evidence is not enough to create a fact issue; there must be evidence on which a jury might rely.'" Barwick, 736 F.2d at 958-59 (quoting Seago v. North Carolina Theatres, Inc., 42 F.R.D. 627, 640 (E.D.N.C.1966), aff'd, 388 F.2d 987 (4th Cir.1967), cert. denied, 390 U.S. 959, 88 S.Ct. 1039, 19 L.Ed.2d 1153 (1968)). Moreover, only disputed issues of material fact, determined by reference to the applicable substantive law, will preclude the entry of summary judgment. "Factual disputes that are irrelevant or unnecessary will not be counted." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986).

In the absence of the necessary minimal showing by a plaintiff that a defendant may be liable under the claims alleged, the defendant should not be required to undergo the considerable expense of preparing for and participating in a trial. See Catrett, 477 U.S. at 323-24, 106 S.Ct. at 2552-53; Anderson, 477 U.S. at 256-57, 106 S.Ct. at 2514-15. Indeed, the Fourth Circuit has stated that, with regard to motions...