Keeton v. Hustler Magazine, Inc., 81-1489

• Decision Date: 16 June 1982
• Docket Number: No. 81-1489,81-1489
• Citation: 682 F.2d 33
• Parties: 8 Media L. Rep. 1748 Kathy KEETON, Plaintiff, Appellant, v. HUSTLER MAGAZINE, INC., et al., Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

Page 33

682 F.2d 33

8 Media L. Rep. 1748

Kathy KEETON, Plaintiff, Appellant, v. HUSTLER MAGAZINE, INC., et al., Defendants, Appellees.

No. 81-1489.

United States Court of Appeals First Circuit.

Argued Jan. 6, 1982.

Decided June 16, 1982.

Jeffrey H. Daichman, with whom W. Michael Dunn, Sheehan, Phinney, Bass & Green, Professional Association, Manchester, N. H., Norman Roy Grutman, and Grutman, Schafrann & Miller, New York City, were on brief, for appellant.

C. William Brownfield, Columbus, Ohio, with whom Dort S. Bigg, Gregory A. Holmes, Wiggin & Nourie, Manchester, N. H. and Brownfield, Bowen, Bally & Sturtz, Columbus, Ohio, were on brief, for appellees.

Before COFFIN, Chief Judge, BOWNES and BREYER, Circuit Judges.

BREYER, Circuit Judge.

The plaintiff-appellant in this case is a resident of New York who claims that she was libeled by photographs and comments that appeared in "Hustler Magazine" and "The Best of Hustler." She sues several Ohio corporations and one California resident involved in the enterprises that published the "libelous" materials. Originally she brought suit in Ohio, where the magazines were published. There, her libel claim was dismissed as barred by the Ohio statute of limitations and her invasion of privacy claim was dismissed as barred by the New York statute of limitations, which the Ohio court considered to be "migratory." Plaintiff then brought this suit in New Hampshire, which, she says, is the only state remaining in which the statute of limitations has not run. The relevant New Hampshire "long arm" statutes (see appendix) authorizing service of process on defendants seek to extend jurisdiction over nonresidents to the fullest extent permitted under the federal constitution. Leeper v. Leeper, 114 N.H. 294, 296, 319 A.2d 626 (1974); Roy v. North American Newspaper Alliance, Inc., 106 N.H. 92, 95, 205 A.2d 844 (1964). The federal district court dismissed this suit on the ground that the federal constitution-in particular the Due Process Clause of the Fourteenth Amendment-would not permit New Hampshire to exercise jurisdiction over defendants in this instance. We affirm its decision.

The district court reasonably concluded that defendants' contacts with New Hampshire consist of sending magazines there to be circulated through independent distributors. Their circulation in New Hampshire amounts to less than one percent of their total circulation in the United States. Plaintiff's contacts with New Hampshire consist of the facts that her name is listed Implicit in this emphasis on reasonableness is the understanding that the burden on the defendant, while always a primary concern, will in an appropriate case be considered in light of other relevant factors, including the forum State's interest in adjudicating the dispute, see McGee v. International Life Ins. Co., 355 U.S. 220, 223 (78 S.Ct. 199, 201, 2 L.Ed.2d 223) (1957); the plaintiff's interest in obtaining convenient and effective relief, see Kulko v. California Superior Court, (436 U.S. 84, 92 (98 S.Ct. 1690, 1696, 56 L.Ed.2d 132) (1978) ), at least when that interest is not adequately protected by the plaintiff's power to choose the forum, cf. Shaffer v. Heitner, 433 U.S. 186, 211, n.37 (97 S.Ct. 2569, 2583, 53 L.Ed.2d 683) (1977); the interstate judicial system's interest in obtaining the most efficient resolution of controversies; and the shared interest of the several States in furthering fundamental substantive social policies, see Kulko v. California Superior Court, supra 436 U.S. at 93, 98 (98 S.Ct. at 1697, 1700.)

as a corporate officer or staff member of a magazine ("Penthouse") and that she is an editor of others ("Viva" and "Omni") which have also circulated in New Hampshire. The basic legal standard imposed by the Due Process Clause is whether it is "reasonable" or basically "fair" to subject the defendant to suit in this forum under these circumstances. International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945); Seymour v. Parke, Davis & Co., 423 F.2d 584 (1st Cir. 1970). And, the Supreme Court has recently provided guidance for interpreting the "reasonableness" standard. In World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 292, 100 S.Ct. 559, 564, 62 L.Ed.2d 490 (1980), it wrote,

Thus, the Supreme Court would have us judge "reasonableness" and "fairness" not exclusively from the point of view of defendants' contacts with the state. To the contrary, "(i)f a defendant has certain judicially cognizable ties with a State, a variety of factors relating to the particular cause of action may be relevant to the determination whether the exercise of jurisdiction would comport with 'traditional notions of fair play and substantial justice.' " Rush v. Savchuk, 444 U.S. 320, 332, 100 S.Ct. 571, 579, 62 L.Ed.2d 516 (1980) (emphasis supplied). We have previously noted the relevance of all these factors, Seymour v. Parke, Davis & Co., supra, as has the State of New Hampshire in interpreting its jurisdictional statute. Leeper v. Leeper, 114 N.H. at 296, 319 A.2d 626.

Applying these standards to this case, we first note that defendants' contacts with the state are minimal; they have no offices, employees, bank accounts, real property or other business connections there. Plaintiff's contacts are even fewer, consisting of her name on the masthead of, at most, three magazines. And, New Hampshire's interest consist of a desire to deter wrongful conduct within its boundaries, Leeper v. Leeper, 114 N.H. at 298, 319 A.2d 626, a desire to protect its citizens from reading libels about outsiders. Curtis Publishing Co. v. Birdsong, 360 F.2d 344, 347 (5th Cir. 1966), or a desire to prevent injuries to the reputations of outsiders from occurring within the state because those outsiders may someday be hurt if they turn up in New Hampshire or because there may be a spillover effect on their reputations elsewhere. There is no allegation suggesting that the allegedly defamatory publication was "aimed exclusively" or primarily at New Hampshire, see Edwards v. Associated Press, 512 F.2d 258, 267-68 (5th Cir. 1975), or that it caused a "substantial effect" on that state, see Anselmi v. Denver Post, Inc., 552 F.2d 316, 325 (10th Cir.), cert. denied sub nom. Times Mirror Co. v. Anselmi, 432 U.S. 911, 97 S.Ct. 2960, 53 L.Ed.2d 1084 (1977); Church of Scientology of California v. Adams, 584 F.2d 893, 898 (9th Cir. 1978).

The major factor favoring plaintiff is that she is suing in part for damages suffered in New Hampshire. Case law makes clear that defendants' few contacts with New Hampshire-sending in magazines-would be sufficient to support a suit by a New Hampshire resident for libel occurring in New Hampshire. Buckley v. New York Post Corp., 373 F.2d 175 (2d Cir. 1967); see The major factor favoring defendants is that most damages that plaintiff seeks arose outside the state of New Hampshire. We held specifically in Seymour v. Parke, Davis & Co., supra, that an out-of-state plaintiff could not bring against an out-of-state defendant (with a few state contacts) a suit based upon out-of-state activity. Although at least one Supreme Court case has allowed an "out-of-state plaintiff/out-of-state defendant/out-of-state activity" suit, Perkins v. Benguet Consol. Mining Corp., 342 U.S. 437, 72 S.Ct. 413, 96 L.Ed. 485 (1952), in that case the Court noted defendant's intense "continuous and systematic business contacts" with the forum state (offices, corporate officers, secretaries) and that the only alternate forum was highly inconvenient (the Philippines)-factors missing both in Seymour and here.

Curtis Publishing Co. v. Golino, 383 F.2d 586, 591-92 (5th Cir. 1967). See also R. Sack, Libel, Slander and Related Problems 509-10 (1980). In such case, defendant's minimal presence would combine with plaintiff's many contacts, New Hampshire's interest in protecting its residents, and the fact that defendant's presence itself caused the injury-in making it fair to allow the suit. The Supreme Court has also suggested that if the defendant has launched "its products into the stream of commerce with the expectation that they will be purchased by consumers in the forum State," an out-of-state plaintiff might be able to sue in the forum state for in-state injury. See World-Wide Volkswagen v. Woodson, 444 U.S. at 297-98, 100 S.Ct. at 567-68.

In other words, Buckley combined with Volkswagen would seem to allow this suit insofar as it alleges New Hampshire-based defamation, but Seymour would seem to forbid it insofar as it is based upon outside-New Hampshire activity. The difficulty with the case lies in the fact that, unlike Seymour, some of the activity about which the plaintiff complains took place in New Hampshire, but unlike Buckley, plaintiff lives outside of New Hampshire and most of the activity about which plaintiff complains took place outside...