Patch v. Playboy Enterprises, Inc.

• Decision Date: 07 July 1981
• Docket Number: No. 80-1241,80-1241
• Citation: 652 F.2d 754
• Parties: 7 Media L. Rep. 1717 Richard M. PATCH, Appellant, v. PLAYBOY ENTERPRISES, INC. and Frank Browning, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 754

652 F.2d 754

7 Media L. Rep. 1717

Richard M. PATCH, Appellant, v. PLAYBOY ENTERPRISES, INC. and Frank Browning, Appellees.

No. 80-1241.

United States Court of Appeals,

Eighth Circuit.

Submitted Dec. 10, 1980.

Decided July 7, 1981.

R. Dickey Hamilton (argued), Sharon Baldwin, Shadur, Krupp & Miller, Chicago, Ill., John T. Martin, Sam L. Colville, Shook, Hardy & Bacon, Kansas City, Mo., for appellees.

Edward P. McSweeney (argued), John D. Anderson, for appellant.

Before LAY, Chief Judge, ROSS and McMILLIAN, Circuit Judges.

PER CURIAM.

Richard Patch allegedly was libeled by an article in the February 1976 issue of Playboy. Approximately twenty-three months after its first publication, on December 30, 1977, Patch brought this action in Missouri state court against Playboy Enterprises, Inc., and the author of the article ¹ for libel. After removal to the United States District Court for the Western District of Missouri, the case was dismissed as barred by the Illinois one-year statute of limitations for libel actions. ² The district court determined that the Missouri borrowing statute ³ required the application of the Illinois one-year limit because the cause of action "originated" in Illinois, where the February 1976 issue of Playboy was first published. On appeal, Patch argues that Missouri's two-year statute of limitations on libel applies to his claim. ⁴

The issue in this case is where Patch's cause of action for libel "originated" within the meaning of the Missouri borrowing statute. Patch argues that his claim originated in Missouri because he lives there. Playboy argues that the claim originated in Illinois because Playboy (1) has its principal place of business in Chicago, (2) edited, assembled, and printed the February 1976 issue there, and (3) distributed the article to its readers from Chicago.

The Missouri courts have not determined where a libel action accrues ⁵ when a nonresident publisher circulates allegedly defamatory statements about a Missouri resident in a nationwide publication. In tort cases, Missouri courts have borrowed the statute of limitations of another state when the last act necessary for the cause of action or the injury occurred outside Missouri. ⁶ A majority of states are said to follow this place of injury rule. Estes, Borrowing Statutes of Limitations and the Conflict of Laws, 15 U.Fla.L.Rev. 33, 47 (1962); Vernon, Statutes of Limitations in the Conflict of Laws: Borrowing Statutes, 32 Rocky Mt. L.Rev. 287, 302 (1960). This rule works well for injuries caused by a single act or for injuries occurring at a single location, but does not determine where a libel action originates because the injury occurs, potentially, in many places at the same time. The place of injury rule does not answer whether the place of first injury, most injury, or any injury governs, and, for that reason, does not tell us where a cause of action for libel originates.

The purpose of a borrowing statute is primarily to prevent a plaintiff from forum shopping for a statute of limitations. The statute prevents a plaintiff from gaining more time to bring an action merely by suing in a forum other than where the cause of action accrued. The anti-forum shopping policy of borrowing statutes leads to the conclusion that Patch's claim originated in Illinois, when considered in the context of a nonresident plaintiff suing a nonresident publisher in Missouri for libel. For example, if an Illinois resident sued Playboy for libel in Missouri, it would be necessary to apply the Illinois one-year statute of limitations to avoid the forum shopping consequences which Missouri's borrowing statute was designed to eliminate. Patch, of course, is a Missouri resident, but residents and nonresidents are treated the same under the Missouri borrowing statute. Trzecki v. Gruenewald, 532 S.W.2d 209, 212 (Mo.1976). Thus, to give effect to the anti-forum shopping principles of the statute, we hold that Patch's claim originated in Illinois.

Although the words "origin" and "originate" connote inception, beginning, and ultimate source, Patch argues that a cause of action can "originate" in more than one place. The distribution of libelous material within a state has often been held to constitute commission of a tort within the state for purposes of service of process under state long-arm statutes. ⁷ Also, the state of first publication has been found not to determine "where the claim arose" for federal venue purposes in a libel case involving publishers and plaintiffs from different states. ⁸ The multiple-origins theory would hold that a cause of action "originates" or "accrues" where a tort is committed; in other words, libel actions would originate practically everywhere for nationwide publications. In effect, this rule would exempt libel actions from borrowing statutes. The advantage of the multiple origins theory would be that residents of Missouri would have two years to bring libel actions for injury to his or her reputation in the community regardless whether the publisher was a resident or not. The disadvantage of such a result, however, and our reason for rejecting the theory, is that it ignores the forum shopping consequences which borrowing statutes were designed to eliminate.

Patch's suggestion that we adopt a most significant contacts test for determining where his cause of action originated is without support in Missouri law. Trzecki v. Gruenewald, 532 S.W.2d 209, 211-12 (Mo.1976).

Since the parties focused on some Missouri venue cases and the single publication rule, we refer briefly to these matters to indicate why they were not the basis for our decision.

The Missouri Supreme Court has held that a cause of action for libel accrues in the county where first published for purposes of venue among Missouri counties. State ex rel. Allen v. Barker, 581 S.W.2d 818, 826 (Mo.1979); Litzinger v. Pulitzer Publishing Co., 356 S.W.2d 81 (Mo.1962), cert. denied, 374 U.S. 831, 83 S.Ct. 1872, 10 L.Ed.2d 1053 (1963). Playboy argues that, by analogy, a cause of action for libel originates in the state where first published for purposes of borrowing a statute of limitations. Venue statutes and borrowing statutes, however, serve different policies. The purpose of statutorily specified venue is to protect the defendant against the risk that a plaintiff will select an unfair or inconvenient place of trial. Leroy v. Great Western United Corp., 443 U.S. 173, 183-84, 99 S.Ct. 2710, 2716, 61 L.Ed.2d 464 (1979). Fairness to and convenience of the resident publisher justify interpreting the words "where the claim accrued" so as to limit the plaintiff's ability to select the venue that best suits his or her convenience. The Missouri legislature, however, established venue rules for nonresident publishers which are different from those for resident publishers. Nonresident publishers apparently can be required to defend a libel action in any county in the state, including that of the plaintiff's residence. Mo.Rev.Stat. § 508.010(4). This difference in Missouri's venue rules for resident and nonresident publishers diminishes the relevance of the Missouri venue cases involving resident publishers for this appeal, which involves a question of borrowing another state's statute of limitations in a libel action against a nonresident publisher. See generally Edwards v. Associated Press, 512 F.2d 258, 263-64 & nn. 14 & 15 (5th Cir. 1975).

Playboy also argues that the single publication rule dictates that Patch's claim originated in Illinois because the February 1976 issue was allegedly first published in Illinois. The single publication rule requires a plaintiff to recover all his or her damages arising from a libel published in any one edition or issue of a magazine in one action. Restatement (Second) of Torts § 577A (1977). In many jurisdictions, the rule also identifies when a cause of action accrues for purposes of tolling the statute of limitations. Hartmann v. Time, Inc., 166 F.2d 127, 135 (3d Cir.), cert. denied, 334 U.S. 838, 68 S.Ct. 1495, 92 L.Ed. 1763 (1948). Cf. Domniak v. National Enquirer, 439 Pa. 222, 266 A.2d 626 (1970). As previously indicated, the single publication rule has generally not been used to determine where the tort of libel occurred for purposes of service of process or where the claim for libel arose in a federal venue case. The reasons for limiting the single publication rule to its purposes of permitting only one action and determining when a cause accrued are well stated by Judge Friendly in Buckley v. New York Post Corp., 373 F.2d 175, 179-80 (2d Cir. 1967), and need not be repeated here.

We affirm the judgment of the district court on the grounds that Patch's cause of action originated in Illinois and is barred by the Missouri borrowing statute. We reach this conclusion not by analogies to state or federal venue cases, service of process cases, or the single publication rule, because these legal principles serve purposes different from the purpose of the Missouri borrowing statute. Rather, it is only by holding that Patch's claim originated in Illinois that the anti-forum shopping purpose of the Missouri borrowing statute can be consistently applied to residents and nonresidents.

Judgment affirmed.

McMILLIAN, Circuit Judge, concurring.

I concur with the result reached by the majority and I feel compelled to state separately my reasons for so concurring. I part company with the other members of this panel concerning the use of the Missouri venue cases. While I concede these venue cases are not dispositive, the analogy between Missouri's venue and borrowing statutes is helpful in determining how Missouri courts would decide where appellant's cause of action for libel accrued.

Choice of Law Which Statute of Limitations Governs?

The district court correctly phrased the second issue presented as "where did Mr. Patch's libel action against these defendants accrue?" All parties agree that the...