Morrissey v. William Morrow & Co., Inc.

• Decision Date: 26 July 1984
• Docket Number: No. 82-1213,82-1213
• Citation: 739 F.2d 962
• Parties: , 10 Media L. Rep. 2305 Michael J. MORRISSEY, Appellant, v. WILLIAM MORROW & CO., INC., Bantam Books, Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 962

739 F.2d 962

39 Fed.R.Serv.2d 837, 10 Media L. Rep. 2305

Michael J. MORRISSEY, Appellant, v. WILLIAM MORROW & CO., INC., Bantam Books, Appellees.

No. 82-1213.

United States Court of Appeals Fourth Circuit.

Argued Dec. 8, 1983.

Decided July 26, 1984.

W. Jeffrey Edwards, Richmond, Va. (D. Alan Rudlin, Hunton & Williams, Richmond, Va., Michael J. Morrissey, Washington, D.C., on brief), for appellant.

Bruce W. Sanford, Washington, D.C. (Brian S. Harvey, Baker & Hostetler, Washington, D.C., on brief), for appellees.

Before HALL, MURNAGHAN and CHAPMAN, Circuit Judges.

CHAPMAN, Circuit Judge:

Michael J. Morrissey, a practicing attorney, brought this action against William Morrow and Company, Inc. and Bantam Books, Inc., publishers of the book Spooks: The Haunting of America--The Private Use of Secret Agents alleging claims of defamation, invasion of privacy and injurious falsehood. Federal jurisdiction is alleged under 28 U.S.C. Sec. 1332(a)--diversity jurisdiction. The district court granted defendants' motion for summary judgment finding the action barred by the one year statute of limitations, Va.Code 8.01-248. Plaintiff appeals alleging error of the district judge in (1) refusing to allow additional time for discovery after defendants' motion to dismiss under Federal Rule of Civil Procedure 12(b) had been converted to a motion for summary judgment under Federal Rule of Civil Procedure 56; (2) "ruling on the record then established" that the statute of limitation began to run when the book was generally available to the public; and (3) failing to consider the possible conflict of law problem presented by the plaintiff's claim of invasion of privacy.

Finding no merit in these exceptions, we affirm.

I

The complaint alleges that Morrissey is an attorney and electrical engineer and that William Morrow published the hardback edition of Spooks and Bantam Books published the paperback edition of the same book. The complaint further alleges that publishing of the "false allegations, malicious statements and innuendo and implications assigning this material in the books has been humiliating and embarrassing to the plaintiff, caused him mental distress and has harmed him in his personal and business relationships and has the potential of causing further harm to him particularly in his profession as a lawyer." Plaintiff also alleges that he is an attorney admitted to the Bars of Virginia, the District of Columbia and various federal courts including the United States District Court for the Eastern District of Virginia.

His first action against the present defendants was filed in the United States District Court for the Eastern District of Virginia on December 1, 1980 with the plaintiff appearing pro se. On May 21, 1981 defendants filed a motion for summary judgment upon the ground that the Virginia one year statute of limitations applied to the action and that William Morrow's publication of Spooks occurred in August of 1978 and Bantam Books publication occurred not later than November 20, 1979 and the one year statute of limitations had run before the complaint was filed on December 1, 1980. This motion was accompanied by an affidavit of James D. Landis, vice president and editorial director of William Morrow and an affidavit of Heather Grant Florence, the vice president, secretary and general counsel of Bantam Books. Each affidavit set forth the date that the book was available for sale to the public. The plaintiff filed nothing in response to the motion for summary judgment. The motion was set for hearing on May 29, 1981, but on May 28, 1981, an attorney entered an appearance for Morrissey and obtained a continuance of the hearing on the summary judgment motion until June 5, 1981. A pretrial order had been entered by the district judge on April 1, 1981, establishing a discovery cut off date of June 12, 1981.

At the June 5, 1981 hearing plaintiff's attorney argued that additional discovery was needed as to the statute of limitations issue and the district court granted this motion and again continued the hearing for summary judgment. Depositions were scheduled with plaintiff's scheduled for June 9, 1981. On that date plaintiff voluntarily dismissed the action without having conducted any discovery.

On November 19, 1981, plaintiff filed the present action, again proceeding pro se, against the same defendants and alleging the same causes of action. On January 7, 1982 defendants filed a motion to dismiss the new action on the ground that it was barred by the statute of limitations. In support of this motion defendants filed affidavits seeking to establish the dates of publication and submitted the same supporting memorandum of law as used in the May 1981 motion. The hearing on this motion was set for January 22, 1982, but at Morrissey's request the hearing was continued until February 12, 1982. Morrissey did not notice or obtain any discovery in connection with the second action, although he was aware of the grounds for the defendant's motion and the supporting affidavits. In his opposition to the motion he pointed out that since it was supported by affidavits it must be tested by the standards of Rule 56. At the hearing on February 12, 1982 the plaintiff arrived late and argued against the motion and asked for additional time for discovery. He admitted that he had filed no interrogatories in either the first action or the second action, but stated that he had telephoned one of the defendants asking for date of publication information and seemed surprised that this telephone request was denied. He asserted that he had written a letter to the defendants' attorneys in June 1981 asking certain questions, but admitted that these were not in the form of interrogatories under the Federal Rules.

The district court found that the plaintiff had over six months to conduct discovery in the first action and three months to conduct discovery in the second action, but he had done nothing to create a factual dispute and had submitted nothing in opposition to the defendants' affidavits, although he had known since May 21, 1981 the defendants' position as to the statute of limitations and the content of the defendants' affidavits as to publication dates.

The district court observed that while the Virginia Supreme Court had not decided whether to adopt the "first-publication rule," the district court would adopt such a rule, but "giving the plaintiff the benefit of treating the paperback edition as perhaps reaching a different audience so that for publication purposes, the paperback publication would be the date of accrual of the cause of action. But I find that it accrued at the latest on November 20, 1979."

The affidavit of James D. Landis, vice president and editorial director of William Morrow stated in pertinent part:

4. That William Morrow began shipping its publication of the book Spooks to its customers--including retail bookstores--on August 1, 1978. Shipments of Spooks were completed by August 4, 1978 and the book was generally available and sold to the public on or before that date.

The affidavit of Heather Grant Florence, vice president, secretary and general counsel of Bantam Books, stated in pertinent part:

4. That Bantam Books began shipping the book SPOOKS from its DesPlains, Illinois warehouse on November 9, 1979 and that the book was generally available for sale to the public in bookstores throughout the United States on or before November 20, 1979.

These affidavits accompanied the motion to dismiss filed in the present action on January 7, 1982.

Finding that the plaintiff had done nothing to establish a factual dispute as to the date of accrual of the cause of action, the court granted summary judgment because the action had not been brought within one year as required by Va.Code 8.01-248.

II

The main thrust of plaintiff's brief and oral argument is that he was not given a reasonable time as provided by Federal Rule of Civil Procedure 12(b) to respond to the defendant's affidavit when the Rule 12 motion was converted to a Rule 56 motion. The last sentence of Rule 12(b) provides:

If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.

The first sentence of Rule 56(c) provides: "The motion shall be served at least 10 days before the time fixed for the hearing."

The last two sentences of Rule 56(e) state:

When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.

Morrissey concedes that this is a matter committed to the discretion of the district judge, but argues that it was an abuse of discretion to not allow him additional time for discovery to counter the statements in the defendants' affidavits and to explore any facts omitted from the affidavits.

The facts do not support this claim of abuse of discretion. It is abundantly clear that plaintiff engaged in no discovery in either his first suit or in the present action. In the original action the motion was set for a hearing on May 29, 1981, and on the day preceding such hearing, the court granted a continuance until June 5, 1981. On that date the court again granted a motion to continue the hearing and allowed plaintiff additional time for discovery, which was not used by the plaintiff, who took a voluntary dismissal...