Novel v. Garrison

• Decision Date: 02 January 1969
• Docket Number: No. 67 C 1895.,67 C 1895.
• Citation: 294 F. Supp. 825
• Parties: Gordon NOVEL, Plaintiff, v. Jim GARRISON and HMH Publishing Co., Inc., a Delaware corporation, Defendants.
• Court: U.S. District Court — Northern District of Illinois

294 F. Supp. 825

Gordon NOVEL, Plaintiff, v. Jim GARRISON and HMH Publishing Co., Inc., a Delaware corporation, Defendants.

No. 67 C 1895.

United States District Court N. D. Illinois, E. D.

January 2, 1969.

Elmer Gertz, Chicago, Ill. (for the Plaintiff)

Sheldon Karon, Stephen C. Shamberg and Friedman, Koven, Salzman, Koenigsberg, Specks & Homer, Chicago, Ill. (for Defendant Garrison)

Deutsch, Kerrigan & Stiles, New Orleans, La. (for Defendant Garrison)

David J. Krupp, Devoe, Shadur, Mikva & Plotkin, Chicago, Ill. (for Defendant HMH Publishing Co.)

MEMORANDUM AND ORDER

CAMPBELL, Chief Judge.

This is a libel action brought by plaintiff, a citizen of Ohio, against defendants Jim Garrison, a citizen of Louisiana, ("Garrison") and HMH Publishing Co., Inc., ("HMH") a corporation incorporated under the laws of Delaware and having its principal place of business in the state of Illinois. Defendant Garrison is the elected District Attorney of Orleans Parish, Louisiana. Defendant HMH is publisher of a widely circulated magazine known as Playboy. The cause of action alleged herein grows out of an interview given by defendant Garrison to the HMH Publishing Co. and regarding his widely publicized investigation into the assassination of President John F. Kennedy. The interview resulted in a lengthy article which was published in Playboy Magazine and which plaintiff alleges was libelous. Defendant HMH does not question the jurisdiction of this court and has filed its answer to plaintiff's complaint. Defendant Garrison has filed a motion to dismiss in which he argues that this court lacks jurisdiction over his person and also that the case should be dismissed for improper venue.

In support of his motion to dismiss, defendant Garrison has filed an affidavit stating that prior to June 24, 1967 Mr. Mark Lane, an attorney and author, asked Garrison if he would grant an interview to Eric Norden, a free lance writer, for publication in Playboy Magazine. Garrison met with Norden in New Orleans and later communicated with him by telephone while Norden was in Brooklyn, New York. At no time was Garrison personally present in the state of Illinois in connection with the interview which is the subject matter of this action. Garrison further states that he has not been in Illinois more than twice in the past 40 years and not at all in the past two years. Garrison received no payment for the article printed in Playboy.

Before publication of the article, Garrison learned that Playboy's principal office was in Chicago.¹ In fact, he received a number of telephone calls from Playboy's Chicago office with reference to the interview. It is clear from a reading of all the pleadings, affidavits and answers to interrogatories filed herein that at the time of publication Garrison knew that the interview would be printed and published by HMH in Playboy Magazine in Chicago, Illinois, and be distributed from Chicago throughout the state of Illinois as well as many other states.² Galley proofs of the interview had been sent to Garrison from Chicago and upon receipt Garrison made notations and changes and returned the proofs to Playboy's office in Chicago.³ Defendant Garrison participated in numerous and lengthy telephone calls with the Playboy office in Chicago dealing with the subject matter, form and content of the interview. Various documents and memoranda were also exchanged by mail.⁴

The interview appeared in Playboy's issue of October, 1967. There were apparently seven editions⁵ of that issue, all edited and printed in Chicago, Illinois, and either delivered here to the post office for mailing or to various carriers for shipment to local points of distribution. Only the central edition is distributed in Illinois. Five of the six editions, other than the central edition, were placed on sale at newsstands and mailed to subscribers at least seven days before they were available to subscribers or purchasers in Illinois. More than sixty per cent of the copies were thus placed on sale at newsstands outside Illinois and mailed to subscribers outside Illinois a week before any copies were placed on sale in Illinois or mailed to Illinois subscribers.

Garrison also appeared on various television shows originating in New York, but carried into Illinois. A newspaper, National Insider, which is edited, printed and published in Illinois, carried a number of articles dealing with the Garrison investigation. One of the articles was by-lined "Jim Garrison"⁶. Garrison denies that any of these articles were written with his authorization.⁷ In any event, these articles are not the subject matter of this suit. Plaintiff relates their existence only to illustrate, for jurisdictional purposes, Garrison's contacts with Illinois.

Plaintiff argues that Garrison is subject to the jurisdiction of this court because by the above activities he has within the meaning of the Illinois "long arm" statute,⁸ either (a) transacted business in Illinois;⁹ or (b) committed a tortious act within this state.¹⁰

DOING BUSINESS

It is the contention of plaintiff that the Playboy article and the many other articles and television appearances taken together constitute the "transaction of business" within the meaning of the Illinois Act. Garrison, in turn argues that the various articles (other than the Playboy interview) and the television appearances have no bearing on the jurisdictional issue, "since longarm jurisdiction may be based only on the transactions from which the claim arose."¹¹ While I do not necessarily agree that to assert jurisdiction under the Illinois Act a claim must be related to defendants activities within the state, (Gordon v. International Tel. and Tel. Corp., (N.D.Ill., 1967) 273 F.Supp. 164, I do find from all of the facts that even under the liberal interpretation generally afforded the Illinois Act, Garrison was not transacting business or engaged in any business transaction in Illinois. (See Koplin v. Saul Lerner Co. Inc., 52 Ill.App.2d 97, 201 N.E.2d 763 (1964)).

THE COMMISSION OF A TORTIOUS ACT

Plaintiff next argues that by sending the alleged libelous article into Illinois to be edited, printed and published here, and by his participation in that editing and publishing by phone and by mail, Garrison has committed a tortious act within this state. Defendant argues that no tortious act was committed in Illinois because an essential element of the alleged libel—the publication—occurred elsewhere.¹² And, the "single publication" rule, as interpreted by the Illinois courts, limits the place of the tort to the state where it was first published. Garrison further argues that, even were the tort committed here, because this is a libel action certain "First Amendment considerations" prohibit the court from exerting jurisdiction over his person.

THE ILLINOIS LONG-ARM STATUTE

A discussion of the historical setting of the Illinois long-arm statute appropriately starts with International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945), wherein the United States Supreme Court established the now well settled principle that certain minimum contacts with a state may subject the actor to the jurisdiction of the courts of that state. On the impetus of International Shoe the Illinois legislature enacted § 17 of the Civil Practice Act. The Supreme Court of Illinois in construing the breadth of the Illinois Act has concluded that it was the intent of the Illinois legislature in adopting § 17 to expand the in personam jurisdiction of its courts to the limits permitted under the due process clause of the Fourteenth Amendment. (Nelson v. Miller, 11 Ill.2d 378, 143 N.E.2d 673 (1957)). The reach of the tortious act provision was realized in Gray v. American Radiator and Standard Sanitary Corporation, 22 Ill.2d 432, 176 N.E. 2d 761 (1961). In Gray, an Ohio manufacturer sold a valve to an assembler in Pennsylvania where it was incorporated in a water heater which was eventually shipped into Illinois where it exploded, injuring plaintiff a resident of Illinois. The Court held that the Ohio manufacturer was subject to the jurisdiction of Illinois. In later cases, the Illinois courts have continued the ambitious policies of Gray and have exerted jurisdiction on the most minimal of contacts. (See Ziegler v. Hodges, 80 Ill.App.2d 210, 224 N.E.2d 12 (1967); Koplin v. Thomas, Haab & Botts, 73 Ill.App.2d 242, 219 N.E.2d 646 (1966)).

Were this a defective valve case instead of a libel action it could be concluded without question that the Illinois act anticipates the exertion of jurisdiction under the circumstances presented here. Defendant Garrison fully knew and understood that his product was being "shipped into Illinois" and that if libelous it could cause injury in Illinois. The facts of this case are thus much stronger than those in Gray. Compare and consider the relative forseeability in Gray with this case where Garrison actually sent the alleged libel into Illinois and knew that the material he sent to Illinois would be edited and printed here and eventually shipped from this jurisdiction to the many points of distribution throughout the country. It is argued, however, that because this is a libel case other considerations are brought to bear, which require a contrary result.

SINGLE PUBLICATION RULE

Garrison argues that under the Illinois version of the single publication rule, "the tort of libel by a newspaper or magazine is committed at the time and place of first publication, which occurs when the periodical first goes on sale to the public or first reaches its subscribers". Thus in this case "* * * the interview was first published when Playboy's October-1967 issue went on sale and reached subscribers outside of Illinois." To support this position Garrison cites and relies on the decision of the Seventh Circuit Court of Appeals in Insull v. New York World Telegram Corp., 273 F.2d 166 (1959) and concludes, "under the Insull holding, any...