Rebozo v. Washington Post Co.

• Decision Date: 16 July 1975
• Docket Number: No. 74-3046,74-3046
• Citation: 515 F.2d 1208
• Parties: Charles G. REBOZO, Plaintiff-Appellee, v. WASHINGTON POST COMPANY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1208

515 F.2d 1208

Charles G. REBOZO, Plaintiff-Appellee, v. WASHINGTON POST COMPANY, Defendant-Appellant.

No. 74-3046.

United States Court of Appeals Fifth Circuit.

July 16, 1975.

Edward Bennett Williams, Charles H. Wilson, Jr., Jerry L. Shulman, Paul R. Connolly, Washington, D. C., Talbot D'Alemberte, Miami, Fla., for defendant-appellant.

William Frates, Miami, Fla., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before GEWIN, MORGAN and ADAMS, ^* Circuit Judges.

GEWIN, Circuit Judge:

The appellant Washington Post Company (Company) brings this interlocutory appeal ¹ from the denial of its motion to dismiss for want of personal jurisdiction in a libel action instituted by the appellee, Charles G. Rebozo. The suit was brought against the Company in Florida following publication in the October 25, 1973 edition of "The Washington Post", and circulation in the forum, of an allegedly defamatory newsstory. The Erie bound district court found the Company susceptible to jurisdiction under Florida's long arm statute and we affirm. ²

The pertinent Florida statute providing for the assertion of in personam jurisdiction over non-resident defendants, F.S.A. § 48.193 (1973) provides in part as follows:

(1) Any person, whether or not a citizen or resident of this state, who personally or through an agent does any of the acts enumerated in this subsection thereby submits that person and, if he is a natural person, his personal representative to the jurisdiction of the courts of this state for any cause of action arising from the doing of any of the following:

(a) Operates, conducts, engages in, or carries on a business or business venture in this state or has an office or agency within this state.

(b) Commits a tortious act within this state.

(f) Causes injury to persons or property within this state arising out of an act or omission outside of this state by the defendant, provided that at the time of the injury either:

1. . . .

2. Products, materials, or things processed, serviced, or manufactured by the defendant anywhere were used or consumed within this state in the ordinary course of commerce, trade, or use, and the use of consumption resulted in the injury.

The district court found that the Florida statute authorized the assertion of jurisdiction over the Company under both subsections (1)(b), the "tortious act" portion, and (1)(f)2, the "products liability" segment of the long arm provision. The district court ruled, however, that jurisdiction was not properly assertable under section (1)(a) the "business venture" provision. The Company contends that the Florida long arm statute does not provide for assertion of jurisdiction in the circumstances of this case and that even if it could be so construed, first amendment considerations prevent the constitutional exercise of state jurisdictional power. The appellee disputes the district court's holding that F.S.A. § 48.193(1)(a) does not serve to bring the Company within the court's jurisdiction. For reasons to be developed later in this opinion we confine ourselves to a construction of the "tortious act" section of the Florida long arm statute in holding that the district court has jurisdiction to hear this case. ³

Drawing liberally from the order of the district court denying the Company's motion to dismiss, we note the following factual matters which are relevant to the disposition of this litigation.

(1) The Company is a foreign corporation not qualified or authorized to transact business in Florida. It has neither offices, telephone listings, real property, not other assets in Florida. In addition there are no Company agents or employees residing in the forum.

(2) "The Washington Post" is an operating division of the Company. The "Post" is circulated in Florida by direct mailing to unsolicited individual subscribers and to independent wholesalers and newsstands. Subscription renewals are solicited by "The Washington Post."

(3) The average circulation of the "Post" in the forum during the 6 month period ending on September 30, 1973 was: (a) 622 copies daily, constituting 0.117% of the newspaper's total daily circulation, and (b) 684 copies Sunday, constituting 0.097% of the "Post's" total Sunday circulation.

(4) During 1973 the Company derived $42,000 from Florida-related advertising published in "The Washington Post." This revenue comprised 0.4% of the newspaper's total 1973 advertising lineage.

(5) "The Washington Post" gathers Florida news through one independent contractor (stringer) who resides in the forum, and by dispatching reporters to Florida on special assignments. In the 12 month period preceding December 11, 1973, reporters from the "Post" spent 288 days in Florida and produced 143 articles which were published in the newspaper. Many of the articles dealt with former President Nixon's Florida activities or with Florida's professional sports teams.

(6) The Company is a joint venturer in the Los Angeles Times-Washington Post News Service (News Service). The News Service, 50% of which is owned by the Company, distributes to subscribers newsstories written by employees of the "Post" and "The Los Angeles Times." It is not a separate entity. The News Service's material is distributed to 10 Florida based newspapers. In the 12 month period preceding December 11, 1973 the News Service derived $88,536.30 in revenue from Florida. The allegedly libelous newsstory giving rise to this suit was distributed on the wire of the News Service and published by Florida subscribers to the News Service. None of the Florida newspapers were explicitly named in the appellee's complaint.

(7) Newsweek, Inc., a foreign corporation, is a wholly owned subsidiary of the company which circulates "Newsweek" magazine in Florida.

(8) Post-Newsweek Stations, Florida, Inc., is a wholly owned subsidiary of Post-Newsweek Stations, Inc., a foreign corporation, which is in turn a wholly owned subsidiary of the Company. Post-Newsweek Stations, Florida, Inc., operates two television stations in Florida.

Resolution of the issue whether a state may properly assert in personam jurisdiction over a non-resident defendant involves a dual inquiry. See, e. g., Jetco Electronic Industries, Inc. v. Gardiner, 473 F.2d 1228, 1232 (5th Cir. 1973). The first question is whether the state has by statute provided for the assertion of jurisdiction in the context of the situation under scrutiny. Assuming the initial inquiry is answered affirmatively, the question then arises whether the assertion of jurisdiction is constitutionally permissible.

Accordingly, our first task is to ascertain the scope of the Florida long arm statute not yet construed by the state's highest court. ⁴ Florida Statutes, § 48.193(1)(a) F.S.A. (1973) provides that a person submits to the jurisdiction of the Florida courts for any cause of action arising from the operation of a business or a business venture in the forum. The district court holding that section 48.193(1)(a) does not significantly differ from its predecessor, section 48.181 F.S.A., ⁵ imposed upon the newer statute judicial incrustations which had evolved upon section 48.181. ⁶ While the similar wording of the statutes lends support to the district court's position, such a narrow reading of section 48.193(1)(a) arguably impinges upon an attempt by the Florida legislature to broaden the state's jurisdictional authority. We are disinclined, however, unnecessarily to construe a section of the Florida statute so susceptible to differing views and we reserve comment on section 48.193(1)(a) until the Florida courts have spoken or until different circumstances more clearly signal the proper result.

Florida Statutes §§ 48.193(1)(b) and (f) require, respectively, that the non-resident defendant commit a tortious act within the forum, or cause injury to a resident of the state by an act or omission outside the forum that is, for example, by the introduction of a defective product into the stream of commerce which subsequently causes injury in Florida. The Company contends the alleged libel in this case occurred in Washington, D.C. and that the "tortious act" section of the long arm statute contemplates only a situation in which an act in Florida causes injury in Florida. The district court, on the other hand, construed the statute broadly to include not only that set of events but also the situation in which a foreign tortious act causes injury within the forum. See generally, Buckley v. New York Post Corporation, 373 F.2d 175, 178-9 (2d Cir. 1967). Since we agree with the district court that the Florida courts would construe section 48.193(1)(b) to allow the assertion of jurisdiction over the Company for an alleged libel published in "The Washington Post" and circulated in Florida, it is unnecessary for jurisdictional purposes to discuss the Company's contention that the libel occurred in Washington, D.C. Jetco Electronic Industries, Inc. v. Gardiner,473 F.2d 1228, 1232 n.5 (5th Cir. 1973). Stated differently, the libel if proved, would for purposes of the Florida long arm statute constitute the commission of a tortious act in the forum. The injury to the appellee's reputation "caused by sending a libel into the state where he lives could still be considered as arising from 'tortious conduct' in that state. . . ." Buckley v. New York Post Corporation, 373 F.2d 175, 179 (2d Cir. 1967).

Such a construction is by no means unprecedented. The Illinois long arm statute, ⁷ the first designed to exploit the limits of jurisdictional due process articulated in International Shoe Company v. State of Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945), is construed in precisely this manner. Process Church of Final Judgment v. Sanders, 338 F.Supp. 1396 (N.D.Ill.1972); Gray v. American Radiator & Standard Sanitary Corp., 22 Ill.2d 432, 176 N.E.2d 761 (1961). The fact that the tortious act section of the...