*2
Virginia,
the Dis-
admitted
the Bars
(cid:127)
HALL,
and
Before
MURNAGHAN
federal
trict of Columbia
various
CHAPMAN,
Judges.
Circuit
District
including the United States
courts
Virginia.
District of
Court
the Eastern
CHAPMAN,
Judge:
Circuit
de-
practicing
against
attor-
His first action
Morrissey,
J.
Michael
States
brought
William fendants was filed
United
ney,
against
this action
the Eastern District of
Company, Inc. and Bantam District Court for
Morrow and
Books, Inc.,
Spooks: Virginia on
publishers of the book
December
May
appearing pro
Private
se. On
America —The
Haunting
claims of
1981 defendants filed motion for summa-
Agents alleging
Secret
Use of
defamation,
ground
injuri-
ry judgment upon the
that the Vir-
privacy
invasion
applied
jurisdiction
year
is al-
of limitations
ginia
Federal
one
statute
falsehood.
ous
§ 1332(a) diversity
the action
that William Morrow’s
leged under 28 U.S.C.
—
August
Spooks occurred in
granted
de-
The district
jurisdiction.
publication oc-
of 1978 and Bantam
fendants’ motion
Books
20, 1979
year
than November
by the one
curred
later
finding the action barred
had
limitations,
of limitations
8.01-248. and the
statute
Va.Code
statute
complaint
filed on De-
the dis-
run
appeals alleging error of
before
Plaintiff
accompa-
This motion was
(1) refusing to
addition- cember
judge in
allow
trict
Landis,
D.
mo- nied
an affidavit of James
discovery after
time for
defendants’
al
of Wil-
president
Civil vice
and editorial director
Federal Rule of
to dismiss under
interrogatories
filed
in ei-
that he had
of Heather
an affidavit
liam Morrow
action,
secre-
or the second
Florence,
president,
vice
ther the
action
first
Grant
Books.
telephoned
of Bantam
counsel
that he had
tary
general
but stated
date that the
forth the
set
asking
publica-
Each affidavit
date of
defendants
*3
public.
to the
for sale
was available
book
surprised
and seemed
tion information
response to
nothing in
filed
plaintiff
The
He as-
telephone request was denied.
summary judgment.
for
the motion
written a letter to the
that he had
serted
29,
May
hearing on
set for
was
motion
asking
attorneys in June 1981
defendants’
1981,
28,
attorney
an
1981,
May
but
questions, but admitted that these
certain
Morrissey and
for
appearance
entered
interrogatories
not in the form of
were
hearing
a continuance
obtained
under the Federal Rules.
motion until June
The district court found that
had
entered
5,
order
pretrial
A
1981.
discovery in
had
six months to conduct
over
1981,
1,
April
estab-
judge on
district
by the
months to con-
the first action and three
12,
date of June'
discovery cut off
lishing a
action,
he
discovery in the second
but
duct
nothing
dis-
done
to create a factual
had
5,
hearing plaintiffs
the June
At
nothing
opposi-
pute
submitted
and had
discovery
that additional
attorney argued
affidavits, although
tion to the defendants’
the statute of
needed as to
was
21,
May
since
1981 the de-
he had known
granted this
court
the district
issue and
limi-
position as to the statute of
fendants’
hearing
for
again continued
motion and
the content of the defendants’
tations and
were
Depositions
summary judgment.
dates.
affidavits as
scheduled for
plaintiffs
scheduled with
while the
The district court observed that
date
volun-
1981. On that
June
Supreme
had
decided
Court
having
without
the action
dismissed
tarily
adopt
“first-publication
whether
any discovery.
conducted
rule,”
adopt
court
such a
the district
would
19, 1981,
plaintiff filed
November
On
“giving
the benefit of
but
se,
action,
pro
again proceeding
present
treating
paperback
perhaps
edition
alleging
against the same defendants
that for
reaching a different audience so
January
of action. On
the same causes
publi-
purposes,
to dismiss
filed a motion
1982 defendants
the date of accrual of the
cation would be
it was
ground
on the
the new action
But I find that it accrued
cause of action.
limitations.
In
by the statute of
barred
20, 1979.”
at the latest on November
defendants filed af-
support of this motion
the dates of
seeking to establish
Landis,
fidavits
D.
vice
The affidavit of James
sup-
and submitted the same
of William
president
director
and editorial
used in the
of law as
porting memorandum
pertinent part:
Morrow stated
hearing
on this
May 1981 motion.
shipping
began
4. That William Morrow
January
but at
motion was set
to its
Spooks
its
of the book
hearing
con-
Morrissey’s request the
including retail bookstores—
customers—
on
Morrissey
February
until
tinued
1,1978.
Shipments of
August
discovery in
any
notice or obtain
did not
August
1978 and
completed by
action, although
with the second
connection
generally available
the book was
de-
grounds
he
aware of
that date.
public
on or before
sold to
affida-
supporting
and the
fendant’s motion
Florence,
Heather
The affidavit of
Grant
the motion he
opposition
vits.
secretary
general coun-
president,
vice
supported by
out that since it was
pointed
Books,
pertinent
stated
of Bantam
sel
stan-
tested
affidavits it must be
'
part:
hearing on Feb-
Rule 56. At the
dards of
began shipping
4. That Bantam Books
plaintiff arrived late
ruary
1982 the
DesPlains,
from its
the book SPOOKS
argued
motion and asked
against the
November
Illinois warehouse on
discovery. He admitted
time for
additional
Morrissey
avail-
concedes that this is a matter
generally
that the book was
to the
committed
discretion
district
in bookstores
sale to
able for
argues that it was an
judge, but
abuse of
on or be-
the United States
throughout
to not allow him additional time
discretion
20, 1979.
November
fore
discovery
to counter the statements in
motion
accompanied the
affidavits
These
explore
the defendants’ affidavits and to
present
action
dismiss filed
omitted from the
facts
affidavits.
January
support
The facts do not
this claim of
noth-
plaintiff had done
Finding that the
abundantly
discretion. It is
clear
abuse of
dispute as to the
a factual
ing to establish
plaintiff engaged
discovery
in no
action, the
the cause of
of accrual of
either his first suit or
action.
summary judgment because
granted
original
In the
action the motion was set
*4
brought within one
had not been
the action
29, 1981,
hearing May
for a
by
8.01-248.
required
as
Va.Code
hearing,
day preceding such
the court
granted a continuance until June
II
again granted
that date the court
On
plaintiffs
brief
The main thrust
hearing
motion to continue the
and allowed
given a
argument is that he was not
oral
discovery,
additional
time for
provided by Federal
time as
reasonable
plaintiff,
by
which was not used
who
12(b)
respond
to
to
of Civil Procedure
Rule
voluntary
on June
took
dismissal
affidavit when the Rule
defendant’s
It can be
that between June
assumed
motion.
converted to a Rule 56
motion was
refiling
and the
of the case on Novem-
12(b) provides:
Rule
The last sentence of
given
must
ber
If,
asserting the defense
on a motion
thought to his lawsuit and how he
some
(6)to dismiss for failure of the
numbered
respond
would
to the Landis
Florence
upon which
pleading to state a claim
judge explained
affidavits. As the trial
granted, matters outside the
relief can be
interroga-
plaintiff,
he could have filed
presented
are
to and not exclud-
pleading
immediately upon
tories
commencement of
court,
treat-
by the
the motion shall be
ed
33(a).
again,
Rule
But
the second action.
summary judgment and
ed as one for
plaintiff.
done
nothing was
Rule
disposed
provided
of as
during
1981 he
argues
He
June
parties
given
op-
reasonable
all
shall be
called the offices of one of
defendants
made
portunity
present
all material
over the tele-
to ask for certain information
pertinent to such a motion
Rule 56.
surprised
that he was
phone. He claimed
56(c)provides:
of Rule
The first sentence
employees did not fur-
when defendants’
shall be served at least
“The motion
by telephone.
him
nish this information to
hear-
the time fixed for the
days before
attorney,
admit-
is inconceivable
ing.”
practice
ted to
the courts of
Columbia,
as well as the
the District
56(e)
of Rule
The last
two sentences
Courts,
expect
would
United States District
state:
use
from such a
information
obtain
summary judgment is
When a motion for
adversary.
telephone
with an
conversation
provided in this
supported
made and
rule,
may
upon
party
an adverse
not rest
Morrissey
not claim that he was
does
allegations or
of his
the mere
denials
by surprise by the motion to dismiss
taken
response, by
affidavits
pleading, but
that it was treated as a Rule
nor the fact
provided in this
page
or as otherwise
He filed a 21
“Memoran-
motion.
showing
specific
Support
facts
must set forth
of Points and Authorities
dum
Opposition
trial. If
to Defendants’ Mo-
genuine
there is a
issue for
of Plaintiff’s
Rule
summary judg-
in which he discussed
respond,
tion to Dismiss”
he does not so
nothing
create an
ment,
presented
shall
entered
but he
appropriate,
if
issue of fact.
him.
against
presented
does not claim that he did
outside matters
to and not
are
Plaintiff
court,
excluded
that he would be re
trial
motion
not know or believe
does
should be
appeal
counter-affidavits. Nor
considered on
as one for
quired to file
though
opportuni
he was denied the
even
the trial
he claim that
discovery
or that he
its action as a dis-
ty
proceed
characterized
requested
plain-
from
missal of the case for failure of the
was denied continuances
he
primarily
upon
asserts that
tiffs to state a claim
which relief
the court. He
granted.
given more time and that
can be
The record reveals that
should have been
parties
given
op-
reasonable.1
both
provided
the time
reasonable
portunity
affidavits and other
Morrissey’s reliance
Johnson
RAC
upon
evidence
which the trial court could
(4th Cir.1974)is
Cir.1973), this court affirmed the district complaint court’s dismissal of the under Appellant’s point second is that based 12(b)(6) Rule where the defendants sub- it, upon the record then before the district judgment mitted affidavits moved for finding court erred in that the statute of or, alternative, pleadings on the in the began run summary judgment. This court stated: “generally public. available” to the became appellate large part argument
The court is not the A of this is little more bound places upon complaint that the trial label that the district court than a further disposition judge its of the case. Whenever did not allow the additional hearing may provide party prior day 1. Rule limited time to a adverse to the 56 does not party opposing requires 56(c). at least 10 opposing a motion. serve affidavits.” Rule movant,' days notice but states: "The August 1978, sold in defendants’ affidavits. to bookstores and to “test” the time years plaintiff’s than point. said on this more two before Enough has been ac- The brought. Landis affidavit Supreme Court has consist- Virginia gen- hardback “was states edition limita- applied statute of ently erally public available and sold on or ac- tion in Va.Code 8.01-248 defamation 4, 1978). (August before date.” With Co., Finance tions. Weaver v. Beneficial nothing challenge from the this Watt (1957); 199 Va. 98 S.E.2d sworn statement as to the of sale date McKelvie, Va. 248 S.E.2d book, dispute the hardback there was no (1978). material to a fact William Morrow was it was The district said as a matter entitled .of law. even single publication rule adopting date of Ban Supreme had not though Court paperback Books edition involved tam ’The court was faced the issue. district yet slightly question.2 different Neither “The making assumption. justified paperback nor the hardback editions are in follow great majority of the States now record, plaintiff’s but brief states as to v. Hus- Keeton rule.” single publication — paperback “The edition book itself con U.S.-,-n. Magazine, tler tains the date of December n. L.Ed.2d 790 104 S.Ct. Argument 1979.” of counsel is not evi (1984). although dence defendants’ acknowl in Restatement This rule is summarized edge an “official date De § 577A(4) (1977): (Second) of Torts printed cember in the (a) publication, only one single As to book”, knowledge publi it is common maintained; damages can be action are cations often hands of the (b) jurisdic- damages suffered in all all appearing before thereon. This is action; tions can be recovered magazines. The particularly May true of *6 (c) the' against for or and magazine monthly usually of a ar issue upon merits plaintiff the of an action the rives on newsstands and at the homes dam- damages bars other action for mid-April. by of subscribers Courts have in all ages parties between the same Hart recognized practice. as common jurisdictions. Time, Inc., (3rd v. 166 mann F.2d 127 published Morrow the Since William Publications, Cir.1947); Weekly v. McGlue edition of and Bantam hardback Inc., (D.Mass.1946); Khau 744 F.Supp. 63 year later the published Books more than a Inc., Publications, ry Playboy 430 edition, the district court ad paperback (S.D.N.Y.1977). F.Supp. 1342 the its attention to latest date of dressed publi arbitrary use of “official publication. There is claim that William recognized as cation dates” has been affiliated Morrow Bantam Books are found not be determinative of argue does companies Fleury v. Har date of publication. the responsibility of the the act one is Publishers, per and Row alleged that Bantam Books other. — (9th Cir.1983), cert. denied U.S. separate agreement into with entered -, (1983) S.Ct. L.Ed.2d publish pa the book William Morrow the court held that official thereby Bantam Books perback version and the cover of the date listed book is inside the malicious falsehoods about restated determining immaterial in when the statute republica a claim This is not plaintiff. run, stating: begins of limitations Morrow, and it is obvious tion William precedents complete uni- from record before the district with almost shipped formity occurs at hold court hardback gave purposes of of limita- district the benefit of the statute 2. The considering separate paperback edition as a tions. rejected signifi- communication “most of actual the time relationship” libel, applies the cover of cant test and the sub- the date on printed place wrong. law magazine or stantive newspaper, other McMillan, 219 Va. matter. McMillan v. (1979). S.E.2d 662 Plaintiff resides Vir- F.2d at 1028. ginia, practices Virginia, alleges law in he argues that under Gre Appellant damages Virginia brought suffered Sons, 298 N.Y. Putnam’s goire v. G.P. actions in the United States District his two (1948) determin a test for 81 N.E.2d Virginia. for the Eastern District of Court begins the statute of when There was no reason to consider a conflicts product is the finished to run is “when problem, even if had been con- for sale in accord publisher released sidered, plaintiffs significant “most con- Appellant submits practice.” with trade Virginia. tacts” were in de practice” should have been that “trade facts to grant Under allow the district court before veloped more chance to create a The record before factu- ing summary judgment. the unchal al issue and avoid court contained the district edition would do violence to Rule 56 and the other lenged affidavit beginning shipped from the warehouse Federal Rules of Civil Procedure. 9, 1979, and “that the book was November AFFIRMED. public for sale to the generally available throughout States bookstores United MURNAGHAN, Judge, Circuit dissent- 20, 1979.” There on or before November ing: develop a record on was no reason to My dissent is not addressed to the bulk practice” there was no chal “trade majority opinion. complete- am I too statement lenge to the sworn ly plaintiffs of the view that the com- to the book books were available plaints inadequacy opportunity about throughout the United States on or stores part discovery conduct were ill- before November contrary, founded. On the he was afforded Morrissey submits that there were facts, ample develop time to but he questions” “a whole host of to be resolved represented poorly and himself demonstrat- deciding by the district court before why legal profession ed as a whole However, the statute of limitations issue. very prudence takes a dim view of the sin district court was confronted lawyer when a likelihood of success under- *7 gle issue of the date of and case.1 plead takes to his own properly upon issue the resolved this based My disagreement majority with the lies unchallenged sworn statement that 20, in the conclusions of law to rather date was not later than November assuming everything that
reached even as- IV by factually serted the defendants was properly proven, taken as the hav- Plaintiffs last claim is that the no material to contradict the offered failing trial court erred in to consider the develop the or to affidavits of defendants presented possible conflict of law situation brought facts other than those forward privacy. in He his claim for invasion of Impatience the defendants. with a law- argues right inva, law of common yer’s inadequate performance should not privacy recognized sion of in the District proposition minds to the evident of and since he had contacts blind our Columbia case, posture of the even the District of Columbia this cause of ac that the factual recognized. fully taken from the defendants’ tion should Also, quite favor should be affirmed on the for reasons not in accord defendants’ expressed majority opinion, plaintiff’s privacy. those I con- claim of invasion of cur in the decision that published simply view, legal justi- a because it is “available.” does afford point of a that has been read some denying trial. Evidence fication required. member of As from the major point departure of My Time, Inc., Court Hartmann v. 166 F.2d provisions in around the majority centers 127, 132, (3d Cir.1947), was careful-to filed the defendants relat- affidavits point Legislature Pennsyl- “The of out: ... subject extent of distri- ing to the crucial of scarcely vania can have intended the mere of In the case the hardback edition bution. libel, a printing publishing of without Co., Inc., Morrow & produced by William it, period of to start the limitation run- copies that affidavit established ” ning.” It went on that “we to announce “generally available sold book but the magazine cannot doubt was 4, August (emphasis supplied) or before by persons privileged read in Illinois year (indeed, a more than more than prior January 1944.” suit hard- years) was filed. The two before me, consequently manifestly summary judgment, was To where back edition ap- conflicting as well as the time fixed inferences statements published outside limitations, namely, against of fact are be construed statute of plicable seeking summary judgment, year. party of Va.Code 8.01-248 period United Diebold, Inc., (1977 Repl.Vol.) year fixes for causes v. States U.S. (1962); no limitation fixed 82 8 L.Ed.2d action for which other S.Ct. of Loan, provided. Savings Included in that by statute is Phoenix Inc. v. Aetna Co., only category Casualty Surety are not defamation but inva- record, (4th injurious Cir.1967), privacy falsehood as as it now sion stands, support jury finding would well. single copy version contrast, however, paper- striking or, indeed, had been book sold other- only was asserted the exe- back edition wise reach distributed so as to member “generally to have been cuted affidavit Indeed, the public. it is hard to read the available for sale” or before November. change in the deliberate contents (one days eleven before any affidavit delete reference to a sale filed). suit acknowledg- than the books other substantially history differ- provider ment that affidavit was merits attention. An ent affidavit some book, certainly unaware of sale of and undated affidavit included unexecuted least, any year prior at sale than a more language parrotted in the file filing of suit. affidavit and stated that William Morrow indeed, simple proposition, is a paperback edition of the book had been publication is what commences accrual of sold on or before November an action for defamation and associated However, unexecuted, being the document torts, Publishers, Fleury Harper Row& another, Moreover, nullity. substi- (9th Cir.1983), F.2d affidavit, fully by an executed execu- tute (Second) Torts, citing Restatement Books, May dated officer of tive Bantam *8 §§ 558, (1977), publication simply 577 merely that the book stated paper- has not been made out insofar as the on or “generally available for sale” before back edition is concerned. 20,1979. literally There is noth- November place, that a ever took Counsel for the defendants were candid ing to establish sale or, indeed, acknowledging frankly with the Court in December that before single publication constituting publica- that the rule2 does not occurrence any other critic, scope publica- to a far as to tion, free extend its so have such as distribution publica- though printed for a first edition also count as A book occurred. single majority's perceptions complete ences stem from of what accord with am in I arises, publication exactly, it Virginia, rule is and when and how holding when occasion will My single publication applied. adopt differ- is to be rule. 970 publication, publication gives and each edition. Coun- second separate,
tion for
separate
also conceded
rise to
cause of action. Thus
for defendants
sel
Spooks was-not
mere-
of
version
paperback
it
is said that a new cause of action
edition, but
of the first
reprinting
ly a
copy of a
accrues on the sale of each
edition.3
second
rather a veritable
book, newspaper,
maga-
defamatory
or
reasons,
the conclusion
zine.4
those
For
my
with that of
I come is at odds
which
defendants,
however,
rightfully
in
The
remains to
colleagues.
respected panel
majority
the view of the members
why that
is so.
detail
in some
set out
single publi
myself,
and of
assert
course,
law, of
before
early common
At
rule, developed
relatively
re
cation
reproduction and
widespread
the advent of
widely
past,
supplanted
cent
dis
taking
place over
frequent
books, magazine
newspapers
tributed
appearing
item
areas,
copy of an
large
each
in
the older view of the common law. Still
considered
be
once was
more than
evolution,5
a state of
and neither definitive
starting the
with each
separate publication,
ly accepted
rejected
Virginia,
nor
running
all over
of
statute
.single publication
operates
modify
rule
v. Harm-
Duke
Brunswick
See
again.
of
early
protect
common law and to
er,
75;
Eng.Rep.
Q.B.
[1849],
promulgation
large multiples
of
Rule in Li-
Publication
Single
The
Note,
book, magazine,
newspaper
from
same
or
Misapplied,
A Fiction
bel:
62 Harv.L.Rev.
exposure
separate,
to a
distinct and inde
(1949):
every
pendent
lawsuit based on
one of
unprivi-
consists
Traditionally,
libel
judge
district
identical
items.6
defamatory mat-
of
leged communication
but,
my understanding
defamed;
adopted,
person other than the
ter to a
law, misapplied
single publication rule.7
such communication constitutes
each
not, however,
first,
itself, admittedly,
That
would
were
By
hardback edi-
conclusion
lapse
because of the
held
errone-
tion is not actionable
While,
year
publication.
any way
ously granted, preclude
than one
since
more
renewal
might
argued
theory,
adequate
in abstract
with
William Morrow of its motion
ambiguous
as to
William Morrow affidavit
substantiating
supporting affidavits or other
ma-
many copies
period
had been sold in the
how
way
demonstrating that it was in no
terials
responsible
1, 1980, and,
December
than a
before
more
paperback
edition.
therefore,
sale was insufficient to
the volume of
application
single publication
deal,
course,
problems growing
invoke
4. We
with
representation
defendants,
plaintiff's inadequate
of himself
repeated publications
out of
consequences.
cannot be excused of all
its
parties,
publications
not with re
third
August
years elapsed from
More than two
may may
consequences
be natural
brought.
publishers
before suit was
original publications. See Weaver v. Beneficial
a second edition warranted. The reed
deemed
Co:,
(1957).
S.E.2d
Finance
199 Va.
‘
keep
simply
the case alive on that
is
theory
too thin to
invoke the
of insufficient
Note, The Choice
Law in Multistate
5. See
rule, bearing
single publication
in mind
Privacy:
and Invasion
An Un-
Defamation
absolutely nothing
plaintiff has done
to show
Problem,
(1947).
60 Harv.L.Rev. 941
solved
August
1978 and December
that sales between
point
rendering
were trivial to the
single publication rule constitutes a de-
6. The
inap-
application
single
rule
parture
law of libel.”
"from the conventional
propriate.
Time, Inc.,
(3d
tate however, too. Virginia would do so suits..... may be that but one
The fact
Id. at 1044.
occurred,
that numerous
to have
so
deemed
“single publication” was at its
The term
suits,
copy
different
of the same
each on a
merely a convenient tool to ex-
inception
book, may not or
newspaper, magazine or
rule that
causes of action
press the
all
brought,
not even indi-
does
need
litigat-
widely
libel must be
circulated
cate,
certainly
impose,
does not
a re-
trial,
sale need
ed in
and that each
pur-
for statute of limitations
quirement,
proved.
separately pleaded and
not be
the earliest individual item to
poses, that
extension,
By process
logical
of formal
single
when the
appear shall determine
purposes where
it has been invoked for
occurred,
thereby fixing the
application
ques-
advisability
of its
Note,
of accrual of
action.11
____
tionable
Rule in Libel: A Fic-
Single Publication
at 1049.
Id.
Misapplied, 62 Harv.L.Rev. 1041:
tion
had, almost
there are
While
cases
increasing
tenden-
...
there has been
silentio,
“single” publication
converted
single-publication fic-
sub
cy
employ
publication12there are also cases
purposes beyond
those for which to “first”
12,300
(1948) (Sales
copies
Publishing Corp.,
than
v. Interstate
of no fewer
Zuck
Cf.
instituted;
Cir.1963) (accrual
(2d
began
years
2d
before suit was
F.
over 2'A
contemporary magazine of wide circu-
year);
when "a
was one
Cassius v.
statute of limitations
appeared
for sale
Mortimer,
(S.D.N.Y.1957),
lation” "first
on the newstands
F.Supp. 74
af-
public,
ship-
than on the date of
to the’
rather
opinion,
F.2d
per curiam without
firmed
carrier to wholesale distribu-
ment
common
(2d Cir.1958) (A
apply-
diversity
perforce
action
tors”).
distrib-
law involved a book 99%
New York
years before
uted
the trade more than 3
'A
Time, Inc.,
(3d
v.
973
course,
is,
knowledge
of
common
to be more reasoned
appear
what
accepting
customarily show a later “offi
approaches.13
magazines
date
the actual
publication
cial”
than
one.
that,
quite
even
possible
to me
It seems
reaching the news stands in mid-Octo
First
Spooks
ultimately enough copies
if
ber, magazine may
itself as the
a
describe
publi-
single
the
bring
time
at some
sold to
practice probably
the
November issue. The
cor-
play, nevertheless
into
cation rule
purposes—
accrual
designed
give
appearance
to
for
to
of timeli
rect date
choose
running
i.e.,
of the
which,
the
for
commencement
copies
picked up
to
first
ness even
earliest
not be the
of limitations—would
November, may
in
and read
late
fact be
copy was
single
a
sold
which even
date on
Perhaps
sadly dated.
such considerations
to a member
distributed
or otherwise
Weekly
led
court in McGlue v.
Publica
the
first
be the
date
but rather would
public,
tions, Inc.,
(D.Mass.1946)
F.Supp. 744
to
63
number
been
a sufficient
had
by which
conclude,
widely
so
as
far
the
disseminated-
single publication
to render the
published
concerned, that,
magazine Newsweek was
applicable.
rule
publication
single
purposes,
for
rule
the
Furthermore,
turn out that
if it should
appearance and
actual date of
sale
not
paper-
the
copies of
were sufficient
there
published
maga
the
date
on the
ostensible
Spooks published before
back version
However, Newsweek
zine should control.
1,
the sin-
to establish that
December
1979
readership,
has had enormous
and it would
pur-
for limitations
gle publication
been reasonable for the court to have
as
normally
applied
of a
be
poses, would
judicial
general
notice of
taken
awareness
1, 1979, there will
to December
prior
date
unreliability
of the “official” issue
the
question of the
for resolution
remain
date,
concerned,
far as Newsweek was
so
publica-
printed
significance
tile
date
first
ascertain
occ
1979,
tion,
appear-
sometime December
4
urred.1
paperback edition.
ing
copies
Customary
respecting
may
facts
control,
purposes,
accrual
for
If were
same,
may just well
they
be
but
as
be
suit,
1,
obviously the
commenced December
different,
magazines.15
those
timely.
from
for
We
1980,
would have
that,
magazine],
although
single publication
issue of the
since
rule did
legal
proof
publication in the
passed
is no
prior
apply,
year
had
occurred).
from
date
there
still
not
date,
for sum-
to that
motion
sense
mary
on which accrual
pursuant
to Rule 56 should
Enquirer,
Pa.
v. National
439
13. Dominiak
willing
granted. We arc not
not have been
dispose
(1970)
publi-
(rejecting
initial
A.2d 626
266
of the motion on such
narrow
accrual,
constituting
ma-
cation as
one
believe,
view of
ground. We cannot
opting
publication, but
jority
re-
comprised
magazines
great number of
which
damages
appear-
stricting recovery
those
issue,
January 17
not
that "Life”dated
prior
filing
the date of
within
by persons
privileged
not
within-the two
read
concurrer,
judges,
of 7
One
selected
suit.
very
days which followed its
wide-
or three
when the
date the time
accrual
spread
To hold otherwise would
distribution.
allegedly
defamed individual’s com-
reaches
totally
unrealistic
would -inflict
preferred
munity.
the date of first
Two others
interpretation
a senseless
wooden
suit
the state
Rule
Inc.,
Magazine,
brought.);
v.
Wildmon Hustler
Time, Inc.,
Ill.App.
334
Winrod v.
78
also
Cf.
(N.D.Miss.1980) ("...
F.Supp.
(also
(1948)
dealing with an issue of
N.E.2d 708
in a mass distributed
of action for libel
cause
publication
publish
widely
magazine
Life
disseminated
periodical is
sub-
when the
accrues
cover).
printed
days
before the date
ed 2
...”) (empha-
stantially
to the
distributed
important distinction from the
supplied).
sis
widespread
evident fact that
lies in the
case
Spooks, prior to December
distribution
Inc.,
Time,
Hartmann v.
14. Cf.
1979, has
been established.
Cir.1947):
(3d
Publications,
Khaury
Playboy
15. Consider
makes the
are
We
aware
(S.D.N.Y.1977)
F.Supp.
n. 1
do
argument
affidavits
defendant’s
magazine
OUI bore
reading
an issue of the
where
publication
there was a
show that
but an on-sale
January
date of October
prior
[the
material
accused
September
designated. A
copies
date of
stated on
"official”
example,
purposes
many daily
at
know,
morning, newspapers
least,
enjoy
did not
the book
publish
of wide circulation
bulldog
limited
success, and that
it was not
editions,
commercial
copies
appear
of which
on the
*12
to
facts are needed
widely sold. Additional
and,
prior midnight
streets and are sold
to
ascertain,
Spooks, whether
in the case of
therefore,
day
on the
before the date set
n
Books,
publisher
paper
Bantam
out in the masthead.
It seems in those
book, and for other
of that
back edition
unlikely
customary
circumstances
that the
it,
by
a custom
brought to market
as
statute of limitations for defama-
matter, consistently chose an unrealis
ary
automatically
tion will
be reduced to 364
designating
the time
tically late date
days
non-negligible,
because of a
but cer-
expected to occ
publication was
at which
tainly
primary
day
not
distribution on the
lacking
so far
as to whether
ur.16 Details
prior
newspaper
to the date on which the
knew,
known,
or should have
fashion,
principally is sold.18 In the same
necessary
would also
to
practice
of the
be
if
publication
paper-
the bulk of the
of the
analysis and resolution of
permit intelligent
Spooks
only
back edition of
occurred
on or
publisher
was
the issue of whether
1,1979,
after
conforming
December
thus
asserting
publication
a
date
estopped from
date,
printed
publication
“official”
per-
very one which it had
different from the
haps that date should be selected as the
know,
things
as
stand
asserted. We do
pur-
one on which accrual for limitations
now,
appearance
of the
when news of
poses
place.
first took
edition of
first came to
plaintiffs
attention.
determined,
If it were
as I believe it
be, that,
should
at the
state of
all,
participated
have
All in
both sides
record,
development
a
inadequate
presentation
a
of facts too
defendants’ favor on statute of limitation
whether, and,
yet
as to
if
permit as
decision
grounds
unwarranted,
would be
extent,
we must
so,
pub-
an
later
to what
embossed
only
consider not
the defamation claim but
lishing
ignored
date can be
in favor of the
multiple publica-
by
also the other tort claims asserted
earliest date on which
tion in fact has come to market.17 For
as well.19
the claim
First
for invá-
1,779,990
(exact
copies
unspecified)
total of
were distributed to the
date was October
22,
22,
September
well before
1975. Suit
1979. Suit was not instituted until October
1980,
September
refusing
was filed on
In
1976.
so
chances were better
than to that
date,
give
effect to
official
limitations had run even if the
industry-wide
rely
rely
court declined to rule "that the
did
entitled
on the official
post-dating magazines
practice
Moon,
constitutes
lulling
date.
into false
’’
‘active concealment.’
security,
estoppel
and hence
basis for
favor,
plaintiff's
consequently,
lacking.
were
place
Fleury Harper
reliance on
Defendants
16.
need,
purposes
judice, yet
We
of the case sub
Publishers, Inc.,
(9th
& Row
incomplete that, run, constituting a cause of have not an inexcusable falsehood injurious should, falsehood also exists pleaded, action for turn out to consti- are law and statute Virginia. lie, lie, Decisional especially tute a a deliberate it is subject. They say on the nei-' both silent action, possible quite that the cause of hav- only “Nay.” That means ther “Yea” nor the first reared its head for time court, parties, that neither the nor Virginia, indeed viable in the Common- recog- either any Virginia decision located wealth. refusing recognize, such a nizing, or advanced, I For the reasons would re- However, fact that a action. cause of time, verse. At the same I should not wish defamatory should not lie is not blatant appear unsympathetic judge to a district recovery if it in fact harms and preclude dealing inept performance by with an coun- uttered a de- especially if it has been (the parties sel for one of Thus, intending injure.20 fendant himself). In the event of remand the dis- job might speak or write competitor for a judge surely possessed, trict would lacking of another that he she inadequate performance, case of a similar might controlling qualification. He assert plenary power dispose finally (or actually years nonage of someone *14 exceeding discretionary ease without age. customarily years) He now and, powers, especially, without further might person the other was too claim that beyond contemplated amendment short, thereby failing to meet a tall or too opinion. job. controlling requirement size for the defame, knowing lie would not but if time, ig- At the same it should not be prove could that he would nored that defendants’ counsel did not do hired, the one the deliber- have been absent power all in their to make matters easier fact, per- ate misstatement of he should be judge for the district to understand. Per- supra, mitted to recover. Prosser See haps, belatedly brought if counsel into the § 128, pp. 915-926. represent appeal case to remain, readily appears why Virginia No reason were to and were the case reversed remanded, egregious inadequa- law would not so hold. The common law and such jurisdictions having had occasion to con- lawyerlike performance cies in would be generally accepted sider the matter avoided. injurious the existence of falsehood as a question viable tort. The fact that the
never come on for decision in the Common- denying is scant the ex-
wealth reason
istence of a cause of action. There must nearly first time everything.
be a
Con-
advantage,
20. Words not
defamatory
may
prospective
in themselves
of loss of a
if,
917).
recovery
by proper incorporation
support a
Id. at
...”
complaint
colloqui-
into the
of inducement or
words,
that,
In other
not follow
where
does
innuendo,
um, topped
off with an indicative
injury proceeds from the use of words because
plaintiff pleads
defamatory
that the words were
of their untruthfulness rather than their libelous
application
and so
the defend-
understood
content, and harm is demonstrated to have oc-
recovery
ant. The fact that
for libel
curred,
actions
recovery
Quite
is barred.
to the con-
general damages
greatly
has been
circum-
customarily supplies
remedy
trary, the law
scribed,
Welch,
e.g.,
see
Robert
right wrong.
Gertz
(1974),
short,
U.S.