Jenkins v. Fawcett Publications, Inc.

• Decision Date: 01 May 1962
• Docket Number: Civ. A. No. 843.
• Citation: 204 F. Supp. 361
• Parties: Alma JENKINS, Plaintiff, v. FAWCETT PUBLICATIONS, INC., a corporation, Defendant.
• Court: U.S. District Court — Northern District of Florida

204 F. Supp. 361

Alma JENKINS, Plaintiff, v. FAWCETT PUBLICATIONS, INC., a corporation, Defendant.

Civ. A. No. 843.

United States District Court N. D. Florida, Tallahassee Division.

May 1, 1962.

Wilfred C. Varn, of Ervin, Pennington & Varn, Tallahassee, Fla., for plaintiff.

Louis M. Jepeway, of Jepeway & Gassen, Miami, Fla., for defendant.

CARSWELL, Chief Judge.

Plaintiff, a citizen of Florida, instituted suit against the defendant, a Delaware corporation, having a principal place of business in Greenwich, Connecticut, and in New York City, New York. Plaintiff's husband was murdered in the course of his employment as a cab driver. In one of its publications, "Startling Detective", the defendant published a story using the widow's picture without her consent. She seeks damages based on the invasion by defendant of her right to privacy.

Service of process was attempted by plaintiff on the Secretary of State under the Florida Statutes, Section 47.16¹ and Section 47.30, F.S.A., on the ground that the defendant was "doing business" or engaged in a business venture in the State of Florida and was, therefore, amenable to substituted service of process through the Secretary of State.

The defendant moved to dismiss and to quash service of process, contending that it was neither doing business nor engaged in a business venture within the meaning of the statute, and, therefore, the Court lacked jurisdiction over the person of the defendant. In support of its motion to dismiss and to quash, the Vice President and General Manager and a director of the defendant corporation filed an affidavit alleging that Fawcett Publications is not authorized to do business in Florida, that it does not do business in the State of Florida, that it owns no property nor does it have any office, telephone listing, or any agent designated to accept service of process in the State of Florida.

"Startling Detective" magazine is published by the defendant and is shipped from Louisville, Kentucky, by common carrier and mailed to subscribers and independent wholesale distributors, who buy the magazine for resale on news stands and other retail outlets. The orders which defendant receives from the various independent wholesale distributors are received at Greenwich, Connecticut. Payments made by the distributors to the defendant are also made at Greenwich.

The affidavit states further that the defendant has never qualified to do business in the State of Florida and does not operate, conduct and engage in or carry on a business or business venture in the State of Florida, nor does defendant have an office or agency in the State of Florida. Any magazine published by defendant reaches the general public through newsstand sales at retail, and are sold by independent contractors and dealers, who purchase these magazines from defendant in interstate commerce through orders directed to defendant at Greenwich, Connecticut. The independent dealers and contractors sell magazines published by other publishers and defendant has no control whatsoever over the business dealings of the independent contractors purchasing at wholesale from the defendant. The affiadvit states that the defendant does not through jobbers, brokers, or distributors sell, consign or lease by any means whatsoever tangible or intangible personal property to any firm or corporation in the State of Florida.

Through another affidavit the defendant states that articles appearing in "Startling Detective" are purchased from free lance independent writers and are not agents or employees of defendant.

In answers to interrogatories the defendant sets forth the names and addresses of seventeen independent wholesale distributors, who purchased the subject issue of "Startling Detective" magazine for resale on newsstands within the State of Florida.

In order to determine whether this Court has jurisdiction over the person of defendant, acquired through substituted service of process, it must first be determined if the defendant was "carrying on a business or a business venture" in the State of Florida. If not, then the question is whether in dealing through the news dealers in the State of Florida defendant was selling through "wholesalers or distributors" within the meaning of Florida Statutes thus giving effect to the conclusive presumption that defendant was carrying on a business or a business venture in the State of Florida.

Florida Statutes, Section 47.16, F.S.A., provides a method of substituted service in lieu of personal service. One invoking the provisions of this statute carries the burden of presenting facts which clearly justify its applicability, for this statute is strictly construed. Strasser Construction Corp. v. Linn, 97 So.2d 458 (Fla.1957), citing Rorick v. Stilwell, 101 Fla. 4, 133 So. 609 (1931).

Each case must be resolved on the basis of the facts revealed by the record of the particular case. Mason v. Mason Products Co., 67 So.2d 762 (Fla.1953).

In construing statutes dealing with substituted service of process in other jurisdictions, the Courts have held that where local independent contractors purchase magazines from non-resident publishers for sale to retail news dealers, the nonresident publishers are not "doing business" within that state, so as to render themselves subject to substituted service of process under state statutes.

We must look to the acts of the persons sought to be served to determine whether their activities or the activities of persons within the state over which the publishers exercise some modicum of control are acts which...