White v. Fawcett Publications

• Decision Date: 20 January 1971
• Docket Number: Civ. A. No. 18851-3.
• Citation: 324 F. Supp. 403
• Parties: Howard Lee WHITE, Plaintiff, v. FAWCETT PUBLICATIONS, Defendant.
• Court: U.S. District Court — Western District of Missouri

324 F. Supp. 403

Howard Lee WHITE, Plaintiff, v. FAWCETT PUBLICATIONS, Defendant.

Civ. A. No. 18851-3.

United States District Court, W. D. Missouri, W. D.

November 30, 1970.

As Amended December 1, 1970.

Order January 20, 1971.

Howard Lee White, pro se.

No appearance for defendant.

ORDER GRANTING PLAINTIFF LEAVE TO PROCEED IN FORMA PAUPERIS AND JUDGMENT OF DISMISSAL WITHOUT PREJUDICE

WILLIAM H. BECKER, Chief Judge.

Plaintiff has filed in this Court his application for leave to proceed in forma pauperis in filing a civil action against "Fawcett Publications of New York". Plaintiff states that defendant published a "very libelous and harmful" story in its January 1967 issue of True Magazine in a story called "The Case of the Bold Penman." Plaintiff therefore demands the sum of twenty million dollars in damages.

Plaintiff does not affirmatively state the jurisdiction of this Court and jurisdiction is not inferable from the facts alleged by him in his application. He states that defendant is a "New York and Connecticut" corporation and that he is currently confined in the United States Medical Center in Springfield, Missouri. Ordinarily, the citizenship of a prisoner remains in the State of which he was a citizen before his imprisonment. 25 Am.Jur.2d, Domicil § 41, p. 31; 1 Moore's Federal Practice ¶ 0.142 5.-2, p. 1484, n. 5. Ott v. Ciccone (W.D.Mo.) 326 F.Supp. 609, and cases therein cited. Plaintiff does not contend that his citizenship is in Missouri, nor that it is in a state other than New York or Connecticut. Plaintiff therefore does not state diversity of citizenship as is required for federal jurisdiction under the provisions of Section 1332, Title 28, United States Code, which would be the only possibly applicable jurisdictional statute in this case.

Further, it is readily apparent that the Statute of Limitations under Missouri law has run and that this suit is barred by it. Section 516.140 RSMo, V.A.M.S., provides that an action for libel must be brought within two years of the date of the libel. Under the applicable Missouri law, a libel action accrues at the time of the publication of the allegedly libelous statements. Brown v. Chicago, Rock Island & Pacific Railroad Co. (C.A.8) 323 F.2d 420, affirming (W.D.Mo.) 212 F.Supp. 832. In this case, the libelous publication is alleged to have taken place in January 1967, more than two years before the filing of the complaint in this case. It does not matter that plaintiff may not have seen the issue until later. Brown v. Chicago, Rock Island & Pacific Railroad Co., supra. Even in the event that the law of another state with a longer Statute of Limitations might be pertinent to this case, Missouri's shorter two-year Statute of Limitations would still apply as the Statute of the forum to bar the suit. This Court, in Keaton v. Crayton (W.D. Mo.) Civil Action No. 16262-3, stated as follows:

"Under Missouri choice of law doctrines which this Court is bound to follow under the doctrine of Guaranty Trust Co. v. York, 326 U.S. 99, 65 S. Ct. 1464, 89 L.Ed.2d 2079, questions concerning the limitations of actions brought in Missouri are considered to be `procedural' matters governed by the law of the forum, Missouri. Nelson v. Browning, Mo., 391 S.W.2d 873, l. c. 881. Under Missouri law an action for a tort committed in a foreign state which would be barred by the Statute of Limitations in Missouri, if committed in Missouri, cannot be maintained in the state of the forum, Missouri, even though the action is not barred in the state where the cause of action arose. Farthing v. Sams, 296 Mo. 442, 247 S.W. 111; Carter v. Burns, 332 Mo. 1128, 61 S.W.2d 933; Restatement, Conflict of Laws, Section 603; and Mo.Anno. Restatement, Conflict of Laws, Section 603."

The Missouri Savings Statute, Section 516.170 RSMo, V.A.M.S., tolling the running of the applicable Statute of Limitations during the term of imprisonment under sentence for less than life has been held inapplicable to prisoners under federal sentences in the United States Medical Center. Hill v. Gentry (C.A.8) 280 F.2d 88. Thus, the statute cannot be applied in the case at bar.

For the foregoing reasons, it appears that this cause should be dismissed without prejudice to plaintiff's possible filing of a later complaint in which he may state the jurisdiction of the Court or otherwise state that his case is an exception to the controlling Statute of Limitations. It was held in Hellebrand v. Hoctor (C.A.8) 331 F.2d 453, affirming (E.D.Mo.) 222 F.Supp. 81, that a dismissal without prejudice with leave to file a later complaint or to amend the complaint to state that the claim is not barred by the Statute of Limitations was proper in a case where "the complaint on its face is barred by the Statute of Limitations" and "the plaintiff (failed to) bring himself within one of the exceptions contained in the * * * disability statute." 331 F.2d at 455. That is the appropriate action to be taken in the case at bar. It is therefore

Ordered that plaintiff be, and he is hereby, granted leave to proceed in forma pauperis. It is further

Adjudged that this cause be, and it is hereby, dismissed without prejudice to plaintiff's later amending this claim to state a cause of action or filing an amended complaint which states a cause of action not barred by the applicable Missouri Statute of Limitations.

ORDER DENYING PLAINTIFF LEAVE TO FILE AMENDED COMPLAINT

On November 30, 1970, a judgment of dismissal without prejudice of the original complaint herein was entered because of the running of the applicable Missouri Statute of Limitations, § 516.140 RSMo, V.A.M.S. In that complaint, plaintiff had sought damages for an alleged libel committed against him by defendant in its January 1967 issue of True Magazine in an article called "The Case of the Bold Penman." Under the authority of Hellebrand v. Hoctor (C.A. 8) 331 F.2d 453 affirming (E.D.Mo.) 222 F.Supp. 81, the dismissal was without prejudice to the filing of an amended complaint in which plaintiff might bring himself within some exception to the Statute of Limitations.

On December 11, 1970, the Court received a proposed amended complaint from plaintiff, together with a proposed form of summons to be served on defendant. Subsequently, the Court received numerous other documents and proposed pleadings from plaintiff, all asserting the below-considered theories of federal jurisdiction. In the proposed amended complaint, plaintiff expressly invokes federal jurisdiction on the principle of diversity of citizenship under § 1332, Title 28, United States Code. He states that defendant is "licensed as a corporation under the laws of the state(s) of New York and Connecticut"; that "none of the defendant corporation is a citizen of either Tennessee or the state of Missouri";¹ and that plaintiff "does reside in the judicial district of this court in accordance with 28 USC 1391." Those allegations, however, do not sufficiently allege diversity of citizenship. It is settled that an allegation of the principal place of business of a corporate party is necessary to establish diversity of citizenship. § 1332(c), Title 28, U.S.C.; Chapman v. Ozark Forest Products, Inc. (W.D.Mo.) 246 F.Supp. 816, 817; 1A Moore's Federal Practice ¶ 0.1683.-4, pp. 1204-1205. Further, it is equally well settled that an allegation of residence does not suffice as the allegation of citizenship as required under § 1332, supra. Russell v. New Amsterdam Cas. Co. (C.A.8) 325 F.2d 996. Therefore, plaintiff does not sufficiently state the jurisdiction of this Court under the diversity statute. Elsewhere, in a letter to the Court dated December 2, 1970, plaintiff alleges that "my citizenship is in Tennessee." Such would constitute a sufficient allegation of plaintiff's citizenship. Further, the Court will presume that the complaint could be amended with respect to defendant's principal place of business to state diversity of citizenship. Therefore, plaintiff's pro se complaint will not be denied filing for failure to state diversity of citizenship.

Plaintiff further alleges that this action should not be considered a libel suit "in the standard and common interpretation of `libel suits'" but as "a suit in which the Plaintiff complains that the Defendant has invaded his constitutional right to privacy" (emphasis added) and therefore as a suit under "28 USC 1441(b) and under the Civil Rights Act of Title 28, Section 1343(1) as mentioned in Section 1985 of Title 42." But it is well established that, to state a claim under the Federal Civil Rights Act, § 1983, Title 42, United States Code, the denial must be under the color of state law. Defendant in this case is not alleged to have been acting under the color of state law, nor is such inferable from the allegations of the proposed amended complaint. Further, no conspiracy to deny plaintiff any federal civil right is or can be alleged in order to state a claim under the provisions of § 1985 of Title 42, United States Code.

Leave, therefore, should be denied to file the amended complaint because (1) no claim is stated under the Federal Civil Rights Act and (2) the claim is barred by the Missouri two-year statute of limitations.

Assuming that plaintiff states diversity of citizenship in accordance with the foregoing considerations, his claim cannot now be considered in this Court because, as noted in the judgment dismissing his original complaint in this action, the Missouri two-year Statute of Limitations will apply to bar the bringing of this action in this Court. Plaintiff, however, asserts that the Missouri Statute of Limitations does not apply to him because:

"Section 516.140 is not applicable in the suit at bar because that statute is inapplicable to U.S. Medical Center inmates simply because such federal prisoners cannot and must not be limited by state ministerial statutes passed by states and legislatures in which they are merely forced to reside because of

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