93-2459 | 5th Cir. | Aug 20, 1993
Before GARWOOD, SMITH, and DeMOSS, Circuit Judges. PER CURIAM:
CERTIFICATE FROM THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT TO THE SUPREME COURT OF TEXAS, PURSUANT TO T EX . C ONST . ART . 5, § 3- C, and T EX . R. A PP . P. 114. TO THE SUPREME COURT OF TEXAS AND THE HONORABLE JUSTICES THEREOF: 1. S TYLE OF THE C ASE .
The style of the case in which this certificate is made is Clyde Ura Cain, Sr., Plaintiff-Appellant v. Hearst Corporation, d/b/a the Houston Chronicle Publishing Company, Defendant-Appel- lee, No. 93-2459 in the United States Court of Appeals for the Fifth Circuit, on appeal from the United States District Court for the Southern District of Texas. 2. S TATEMENT OF THE C ASE .
The plaintiff-appellant, Clyde Cain, is a prison inmate serving a life sentence for murder. He filed suit in Texas state court on January 6, 1993, against the defendant-appellee, Hearst Corporation, d/b/a the Houston Chronicle Publishing Company ("the Chronicle"), alleging that an article regarding his conviction, published in the H OUSTON C HRONICLE on June 30, 1991, invaded his privacy by placing him in a false light by stating that he had been associated with a crime organization known as the Dixie Ma- fia when in fact, according to Cain, he had no association with any such group. The Chronicle removed on the basis of diversity jurisdiction.
The Chronicle moved for dismissal under F ED . R. C IV . P. 12(b)(6), arguing that Cain's alleged cause of action was identi- cal to a libel complaint and thus barred by the one-year statute of limitations in T EX . C IV . P RAC . & R EM . C ODE A NN . § 16.002 and that, moreover, Texas does not recognize the "false light" tort. Cain responded that he "seeks recovery under the recognized legal the- ory of false light invasion of privacy" subject to the two-year statute of limitations, presumably referring to T EX . C IV . P RAC . & R EM . C ODE A NN . § 16.003. The district court granted the motion, citing Hurlbut v. Gulf Life Ins. Co., 749 S.W.2d 762" date_filed="1987-12-16" court="Tex." case_name="Hurlbut v. Gulf Atlantic Life Insurance Co.">749 S.W.2d 762 (Tex. 1987), and reasoning therefrom "that irrespective of what the plaintiff may call his suit, it is, nevertheless, a suit in libel."
The district court entered final judgment on May 3, 1993. Cain filed a notice of appeal on May 10, 1993. 3. Q UESTIONS C ERTIFIED .
a. Does Texas recognize the tort of false light invasion of privacy? b. If Texas recognizes the tort of false light invasion of privacy, which statute of limitations governs actions brought pursuant thereto?
We disclaim any intention or desire that the Supreme Court of Texas confine its reply to the precise form or scope of the question certified. 4. T HE P ARTIES .
The parties are Clyde Ura Cain, Sr., plaintiff-appellant, and Hearst Corporation, d/b/a the Houston Chronicle Publishing Company, defendant-appellee. 5. T HE A TTORNEYS .
Cain appears pro se. His address is as follows: 401418 Ellis I Unit Texas Department of Criminal Justice, Institutional Division Huntsville, TX 77343
The Chronicle is represented by the following attorney: William W. Ogden Ogden, Gibson & White, L.L.P. 1750 Pennzoil South Tower 711 Louisiana Houston, TX 77002-3095