Nationwide Bi-Weekly Admin., Inc. v. Belo Corp.

• Decision Date: 21 December 2007
• Docket Number: No. 06-11283.,06-11283.
• Citation: 512 F.3d 137
• Parties: NATIONWIDE BI-WEEKLY ADMINISTRATION, INC., Plaintiff-Appellant, v. BELO CORP., The Dallas Morning News, and Scott Burns, Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

512 F.3d 137

NATIONWIDE BI-WEEKLY ADMINISTRATION, INC., Plaintiff-Appellant, v. BELO CORP., The Dallas Morning News, and Scott Burns, Defendants-Appellees.

No. 06-11283.

United States Court of Appeals, Fifth Circuit.

December 21, 2007.

Martha Hardwick Hofmeister, Derek D. Rollins, Shackelford, Melton & McKinley, Dallas, TX, Barbara Bison Jacobson (argued), Vorys, Sater, Seymour & Pease, Cincinnati, OH, for Plaintiff-Appellant.

Paul Christopher Watler (argued), Jackson Walker, Dallas, TX, for Defendants-Appellees.

Appeal from the United States District Court for the Northern District of Texas.

Before DeMOSS, DENNIS and OWEN, Circuit Judges.

DeMOSS, Circuit Judge:

Nationwide Bi-Weekly Administration ("Nationwide") brought defamation and related claims against Belo Corp., THE DALLAS MORNING NEWS, and writer Scott Burns (collectively referred to as "Belo") based on an allegedly defamatory article that appeared in THE DALLAS MORNING NEWS. The district court granted Belo's Rule 12(b)(6) motion to dismiss on statute of limitations grounds and Nationwide appealed to this court. For the reasons stated below, we affirm.

I.

On July 29, 2003, THE DALLAS MORNING NEWS published an article criticizing a particular mortgage program offered by Nationwide. The article first appeared in a financial column written by Scott Burns in the newspaper's print edition and was subsequently made available on its website. THE DALLAS MORNING NEWS website is readily accessible on the Internet by entering the proper Internet address or by using a standard Internet search engine.

Based on the article, Nationwide filed suit in Ohio state court on July 28, 2004 against Belo, alleging defamation, tortious interference with prospective business relations, and business disparagement. However, Nationwide did not serve Belo until June 2005.

Upon being served, Belo removed to the United States District Court for the Southern District of Ohio where it brought a timely motion to dismiss for lack of personal jurisdiction pursuant to Rule 12(b)(2) and for failure to state a claim pursuant to Rule 12(b)(6). Before the court ruled on Belo's motion, Nationwide moved to transfer the case to the Northern District of Texas, where it could exercise personal jurisdiction over Belo. By order dated March 28, 2006, the Ohio District Court granted Nationwide's motion and transferred the case to the Northern District of Texas pursuant to 28 U.S.C. § 1406(a). That section permits a court to transfer a case "to any district or division in which it could have been brought" regardless whether it has personal jurisdiction over the defendants. 28 U.S.C. § 1406(a); Goldlawr, Inc. v. Heiman, 369 U.S. 463, 466, 82 S.Ct. 913, 8 L.Ed.2d 39 (1962).

After the suit was docketed in the Northern District of Texas, Belo brought a Rule 12(b)(6) motion to dismiss on May 30, 2006, arguing that Nationwide's suit violated the statute of limitations. The district court granted the motion and dismissed the case. Nationwide timely appealed.

II.

A. Standard of Review

We review de novo the district court's dismissal for failure to state a claim under Rule 12(b)(6). Frank v. Delta Airlines Inc., 314 F.3d 195, 197 (5th Cir.2002). Dismissal under Rule 12(b)(6) is appropriate when the plaintiff has failed to allege "enough facts to state a claim to relief that is plausible on its face" and fails to "raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly, ___ U.S. ___, 127 S.Ct. 1955, 1965, 1974, 167 L.Ed.2d 929 (2007). We proceed "on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Id. at 1965. However, "[w]e review the district court's administrative handling of a case, including its enforcement of the local rules and its own scheduling orders for abuse of discretion." Macklin v. City of New Orleans, 293 F.3d 237, 240 (5th Cir.2002).

B. Procedural Issues

Nationwide argues that Belo's Rule 12(b)(6) motion to dismiss, filed on May 30, 2006 in the Northern District of Texas, was procedurally barred because (1) it was untimely, and (2) Belo failed to consolidate its defenses in one motion as required by Rule 12(g).

Nationwide first argues that Belo's motion was barred because it was untimely under rules setting deadlines for filing responsive Rule 12(b) motions or pleadings by defendants. The Northern District of Texas received this case from the Southern District of Ohio on April 4, 2006, and Belo filed its Rule 12(b)(6) motion on May 30, 2006. Nationwide contends that, assuming the transfer to the Northern District of Texas constituted a re-filing and re-serving of their complaint, Belo's motion was untimely under Rule 12(a)(1)(A). See FED.R.CIV.P. 12(a)(1)(A) (requiring a defendant to serve an answer "within 20 days after being served with the summons and complaint"). Construing this rule as requiring Belo to file either an answer or a Rule 12(b) motion within 20 days of the transfer, Nationwide contends that Belo's May 30th motion was untimely. Nationwide cites no authority for the proposition that transfer of a case under § 1406(a) constitutes a re-filing of the case in the transferee court. We find such a contention untenable. Nothing in the statutory language of 28 U.S.C. § 1406(a) suggests that transfer should be treated as a refiling. Further, when cases are transferred from one district to another, all docket entries are transferred and all pending motions remain pending.

Nationwide's other arguments relating to the timeliness of Belo's Rule 12(b)(6) motion also lack merit. Nationwide contends that Belo's Rule 12(b)(6) motion was untimely under Rule 12(a)(4)(A), which provides "if the court denies [a Rule 12(b) motion] or postpones its disposition until the trial on the merits, the responsive pleading shall be served within 10 days after notice of the court's action." FED. R. CIV. P. 12(a)(4)(A). Application of Rule 12(a)(4)(A) is triggered when the court (1) denies a motion or (2) postpones disposition of a motion until trial. See id. Neither the Ohio or the Texas district court denied or postponed disposition of any Rule 12(b) motion, so that section is inapposite.

Nationwide also asserts that Rule 81(c) renders Belo's motion untimely. Rule 81(c) provides that when a defendant removes an action to federal court before answering a complaint, the defendant has twenty days from receipt of the initial pleading or service, or five days after filing a notice of removal, whichever is longer, to file a responsive pleading or motion. FED. R. CIV. P. 81(c). Contrary to Nationwide's argument, Rule 81(c) merely set the deadline for Belo to make its first responsive pleading or motion after removal. See id. Belo satisfied Rule 81(c) by timely filing a responsive motion in the Ohio District Court.

Having concluded that Belo's Rule 12(b)(6) motion was not untimely under any of the rules cited by Nationwide that set deadlines for responsive pleadings and motions, we turn to Nationwide's argument that Belo failed to consolidate its defenses as required by Rule 12(g). Rule 12(g) provides in relevant part: "If a party makes a motion under this rule but omits therefrom any defense or objection then available ... the party shall not thereafter make a motion based on the defense or objection so omitted, except a motion as provided in subdivision (h)(2)." FED. R. CIV. P. 12(g). Nationwide argues that Belo failed to consolidate its personal jurisdiction and statute of limitations defenses in the same Rule 12(b) motion. However, Rule 12(g) did not require consolidation here because Rule 12(h)(2) explicitly excepts from the consolidation requirement motions based on the defense of failure to state a claim upon which relief can be granted. See id. at 12(h)(2).¹ In sum, we find that the district court did not abuse its discretion by considering Belo's Rule 12(b)(6) motion.

C. Substantive Issues

i. Statute of Limitations

Belo's Rule 12(b)(6) motion sought dismissal of Nationwide's claims on statute of limitations grounds. See Jones v. Alcoa, Inc., 339 F.3d 359, 366 (5th Cir. 2003) (noting that a statute of limitations defense may be properly asserted in a Rule 12(b)(6) motion). The parties do not dispute that the Texas statute of limitations applies to this suit transferred from the Southern District of Ohio to the Northern District of Texas pursuant to 28 U.S.C. § 1406(a), and we agree. "[F]ollowing a section 1406(a) transfer, regardless of which party requested the transfer or the purpose behind the transfer, the transferee court must apply the choice of law rules of the state in which it sits." Ellis v. Great Sw. Corp., 646 F.2d 1099, 1110 (5th Cir.1981). Applying the Texas choice of law rules, we conclude that Texas has the "most significant relationship" to this dispute and thus, Texas substantive law applies. See id. at 1111 (noting that Texas has adopted the "most significant relationship test" to determine which state's substantive law applies). Further, when Texas substantive law applies, "there is no question ... that Texas courts would apply their own state's statute of limitations." Id. at 1112.

Texas has adopted a one-year statute of limitations for libel claims. See TEX. CIV. PRAC. & REM.CODE § 16.002(a). The one-year limitations period begins to run when publication of the libelous statement is complete, which is "the last day of the mass distribution of copies of the printed matter." Holloway v. Butler, 662 S.W.2d 688, 692 (Tex.App.—Houston [14th Dist.] 1983, writ ref'd n.r.e.). "On that date, the publisher of the statement has made the libelous matter available to his intended audience and the tort is complete." Stephan v. Baylor Med. Ctr. at Garland, 20 S.W.3d 880, 889 (Tex.App.—Dallas 2000, no pet.). Because the period begins to run on the date the publication is complete, this rule is commonly referred to as the "single publication rule." See id.; see also Williamson v. New Times, Inc., 980 S.W.2d...