Mize v. Harvey Shapiro Enterprises, Inc., Civ. A. No. WC 88-89-D-D.

• Decision Date: 17 May 1989
• Docket Number: Civ. A. No. WC 88-89-D-D.
• Citation: 714 F. Supp. 220
• Parties: Marie MIZE, Plaintiff, v. HARVEY SHAPIRO ENTERPRISES, INC., et al., Defendants.
• Court: U.S. District Court — Northern District of Mississippi

714 F. Supp. 220

Marie MIZE, Plaintiff, v. HARVEY SHAPIRO ENTERPRISES, INC., et al., Defendants.

Civ. A. No. WC 88-89-D-D.

United States District Court, N.D. Mississippi, W.D.

May 17, 1989.

Omar D. Craig, Oxford, Miss., for plaintiff.

David L. Calder, Sumners, Hickman & Rayburn, Oxford, Miss., for defendants.

MEMORANDUM OPINION

DAVIDSON, District Judge.

This cause is before the court on the defendants' motions to dismiss or, in the alternative, for summary judgment. The moving defendants argue that the plaintiff is unable to establish the elements of its claim and that the court cannot hear the claims because of a bar by the statute of limitations and the lack of in personam jurisdiction. After considering the motion, briefs, relevant authorities, and the record as a whole, the court is of the opinion that the defendants' motion is well taken.

I. Factual Background

Plaintiff Marie Mize ("Mize") brought this action on July 13, 1988 against certain magazine publishers claiming defamation and invasion of privacy. The complaint was amended on August 8, 1988 to add another defendant. Mize is a Mississippi resident and any injury which was suffered took place in Mississippi. The defendants are as follows: Harvey Shapiro Enterprises, Inc. ("Harvey"), Jerome Phillips, d/b/a Modern Publications ("Phillips"), S.S.M. Publications, Inc. ("S.S.M."), and Adam George, Inc. ("George"). Harvey is a nonresident corporation doing business in New York which publishes a magazine styled "Harvey for Loving People." George is a non-resident corporation doing business in New York which publishes a magazine styled "Hooker." Harvey Shapiro has stated in an affidavit that he is president of Adam George, Inc. Phillips is a non-resident who publishes a magazine styled "Southern Swing Fever" out of Florida. S.S.M. is a non-resident corporation doing business in Tennessee which publishes "Southern Swinger Magazine" and "Swinger's Express Magazine." These magazines apparently purport to be swinger meeting guides and contain personal advertisements and nude photos from readers.

The plaintiff alleges that the advertisement in George's Hooker magazine stated the following:

MISSISSIPPI + F-787,017-HMS JACKSON HOT BI FEMALE wants motel meetings with couples, single men, and Bi females. I love it all, Fr., Gr., toys, B & D, 69's and more. Will answer all. Hot color photos. SESE. Sexy phone calls. Hot correspondence.

Defendants provided the court with a photocopy of the advertisement and photo at issue. The plaintiff did not have access to the advertisement in Harvey's magazine, but the defendant has stated by sworn affidavit that the magazine did not publish the "name, address, post office box number or telephone number of Marie Mize, a resident of Oxford, Lafayette County, Mississippi, whose post office address is Post Office Box 784, Oxford, Mississippi." Harvey has admitted that it published an advertisement in "Harvey for loving people" which was identical to the text and photograph in the "Hooker" advertisement published through George.

Plaintiff states that she never submitted this material to the magazines and never consented to the advertisements. The plaintiff has become aware of the advertisements through an investigation conducted after she began receiving mail relating to some of these advertisements. Plaintiff alleges that she has been inundated with letters and photographs and has received anonymous telephone calls because of these advertisements. The plaintiff alleges that she has received a letter from someone stating "I have seen your ad in Harvey's." Plaintiff further alleges that the code used in the advertisements identified her as the person in the advertisement through her post office box address.

Defendants Harvey and George have presented motions to dismiss and for summary judgment. Defendants Phillips and S.S.M. are not part of this motion. These two defendants published the same type advertisements, but their magazines went further and printed the plaintiff's complete address, including the Oxford post office box number. The information provided in these advertisements was sufficient to identify the plaintiff. However, Phillips and S.S.M. are not considered in this motion.

II. Conclusions of Law

Plaintiff bases jurisdiction on diversity of citizenship. The law of the State of Mississippi governs this action. Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). Plaintiff's claims are separate and distinct against each defendant. Defendants Harvey and George have moved to dismiss this action or, in the alternative, for summary judgment on the ground that the advertisements were not directed toward the plaintiff and did not identify her in any way. The defendants also claim the statute of limitations bars this action and challenge the court's jurisdiction. The court will consider these issues in reverse order.

A. Personal Jurisdiction

Jurisdiction is the threshold issue in federal court. When the court's in personam jurisdiction is challenged, the burden rests upon the party asserting jurisdiction to prove the facts necessary to establish jurisdiction over the non-resident defendants. Caldwell v. Palmetto State Sav. Bank, 811 F.2d 916, 917 (5th Cir.1987); Cosper v. Allred, 592 F.Supp. 376, 378 (N.D.Miss.1984). The issue turns on whether jurisdiction would have been present in an action before a Mississippi state court. DeMelo v. Toche Marine, Inc., 711 F.2d 1260, 1264 (5th Cir.1983). "First, the law of the forum state must provide for the assertion of such jurisdiction; and second, the exercise of jurisdiction under state law must comport with the dictates of the Fourteenth Amendment due process clause." Smith v. DeWalt Products Corp., 743 F.2d 277, 278 (5th Cir.1984).

The Mississippi long-arm statute establishes in personam jurisdiction where there is a contract, tort, or "doing business" in the state. Miss.Code.Ann. § 13-3-57. Section 13-3-57 provides in pertinent part that "any non-resident person ... who shall ... commit a tort in whole or in part in this state against a resident ... of this state ... shall by such act or acts be deemed to be doing business in Mississippi." The tort occurred where the injury took place. Estate of Portnoy v. Cessna Aircraft Corp., 730 F.2d 286, 290 (5th Cir.1984). "The tort is not complete until injury occurs and if the injury occurs in the state, then, under the amended statute, the tort is committed, at least in part, in this state, and inpersonam jurisdiction of the non-resident tort feasor is conferred upon the Mississippi Court." Smith v. Temco, Inc., 252 So.2d 212, 216 (Miss.1971). The plaintiff alleges that the defendants committed the torts of defamation and invasion of privacy upon a Mississippi resident in the State of Mississippi. This is sufficient for purposes of in personam jurisdiction without establishing the elements of the torts alleged. The motion to dismiss for failure to state a claim will be considered separately.

The plaintiff has not established that Harvey and George satisfy the "doing business" test and has not asserted a contract between the parties. The defendants have not done any direct business with the plaintiff which satisfies the tripartite "doing business" test established in Mladinich v. Kohn, 250 Miss. 138, 164 So.2d 785, 790 (1964). This more restrictive "doing business" test does not apply to the tort category. Thompson v. Chrysler Motors Corp., 755 F.2d 1162, 1167 (5th Cir.1985).

The court is of the opinion that the plaintiff has alleged facts which are sufficient to establish that a tort was committed in this state and that the defendants' actions satisfy Mississippi's long-arm statute.¹

The exercise of jurisdiction over the defendants must meet the separate requirements of Mississippi's long-arm statute and the Constitution. The due process clause requires that: (1) the defendant must have purposefully established "minimum contacts" in the forum state; and (2) the assertion of jurisdiction must comport with the traditional notions of "fair play and substantial justice." International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945); Burger King Corp. v. Rudzewicz, 471 U.S. 462, 476, 105 S.Ct. 2174, 2184, 85 L.Ed.2d 528, 543 (1985).

Mississippi has a significant interest in redressing injuries that actually occur within the State. Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 776, 104 S.Ct. 1473, 1479, 79 L.Ed.2d 790, 798-99 (1984). The dissemination of material into a state is sufficient to establish "minimum contacts" when this activity within the state allegedly injured the plaintiff. Libel occurs wherever the offending material is circulated. Defamatory statements harm both the subject of the falsehood and the reader of the falsehood. Keeton, 465 U.S. at 776-77, 104 S.Ct. at 1479, 79 L.Ed.2d at 799. The Supreme Court has found that a publisher can reasonably anticipate being haled into court to defend a libel action based on the contents of its magazine in a state where it has distributed magazines. Keeton, 465 U.S. at 781, 104 S.Ct. at 1481, 79 L.Ed.2d at 801. Although it is not necessary for the plaintiff to reside in Mississippi if the injury occurred in Mississippi, the plaintiff does reside in Mississippi and apparently asserts the infliction of an injury in her home state and nowhere else.

The court finds that it is fair and reasonable to require the publishers to defend this action in Mississippi. The plaintiff's interest in obtaining convenient and effective relief, the State's interest in adjudicating the dispute, and the interstate judicial system's interest in obtaining an efficient resolution of the controversy outweighs the inconvenience to the defendants. See World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 292, 100 S.Ct. 559, 564, 62 L.Ed.2d 490, 498 (1980). In Keeton, the Supreme Court found no unfairness in calling a publisher to answer for...