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FORETICH v. GLAMOUR

October 5, 1990

ERIC A. FORETICH, VINCENT P. FORETICH, and DORIS FORETICH, Plaintiffs,
v.
GLAMOUR, CONDE NAST PUBLICATIONS, S.I. NEWHOUSE, JR., JUDITH COYNE, and BOB TREBILCOCK, Defendants


Gerhard A. Gesell, United States District Judge.


The opinion of the court was delivered by: GESELL

GERHARD A. GESELL, UNITED STATES DISTRICT JUDGE

 Defendants have moved for partial summary judgment. Plaintiffs have opposed. The motion has been fully briefed.

 This is one of series of suits and countersuits filed in the Washington metropolitan area arising out of a bitter, lengthy, and highly-publicized child custody proceeding before the Superior Court of the District of Columbia. In this instance, Eric Foretich and his mother and father have brought a libel action claiming, primarily, that they were defamed by an article in the November 1988 issue of Glamour magazine. The subject of the article was the court dispute between Eric Foretich and his former wife, Elizabeth Morgan, over their daughter Hilary, which involved allegations that Foretich had sexually abused Hilary, and Morgan's incarceration for failing to disclose Hilary's location to the presiding Superior Court judge.

 The Complaint was filed in the Superior Court on October 16, 1990, and promptly removed by defendants to this Court. Because plaintiffs' formal pleadings have failed to particularize their defamation claims in the manner still required for this type of common law action, *fn1" the Court has been obliged to rule on issues presented seriatim after obtaining further clarification through submission of an Amended Complaint and limited discovery. Still, only the principal claims are now ripe for disposition. *fn2"

 After the initial round of briefing, the Court held that plaintiffs' claims for defamation and emotional distress based on the original publication of the Glamour article were barred by the applicable one-year statute of limitations, D.C. Code ยง 12-301(4). Because the factual record was incomplete with respect to a possible republication of the article, the Court directed that limited discovery proceed on that issue, to be followed by further motion papers. The Court also approved filing of an Amended Complaint. *fn3" Foretich v. Glamour, 741 F. Supp. 247 (D.D.C. 1990).

 The discovery having been completed, defendants now move on additional papers for partial summary judgment arguing that (1) there was no republication of the November 1988 article; (2) even if there was a republication, as a matter of law they cannot be held liable; and (3) even if defendants can be held liable for republication, any claim based on the republication is itself time-barred. For the reasons discussed below, the Court rejects the first two arguments but holds that the third is correct and therefore grants all defendants summary judgment on all claims based on the November 1988 article.

 I. Facts

 The uncontroverted facts relevant to the republication issue are as follows:

 (1) On or about October 12, 1988, Conde Nast, a division of Advance Magazine Publishers, Inc., distributed approximately 2.9 million copies of the "November 1988" issue of Glamour magazine to subscribers and wholesalers.

 (2) The November 1988 Glamour contained an article on the Foretich-Morgan case entitled "Hiding Hilary," ("the Glamour article") written by and credited to defendant Bob Trebilcock, a freelance journalist based in New Hampshire.

 (3) By contract dated May 20, 1988, Glamour had acquired from Trebilcock the first North American rights to the Glamour article, but Trebilcock retained sole rights to grant permission to reprint the article subsequent to its single publication in Glamour.

 (4) By a series of telephone calls and letters, Alice Monroe, Coordinator of Friends of Elizabeth Morgan ("FOEM"), obtained from Trebilcock permission to make 400 copies of the Glamour article ("the FOEM reprints"). FOEM, which operates from a post office in Merrifield, Virginia, is an organization that has supported Morgan in her dispute with Foretich.

 
(a) In late October 1988, following publication of the November 1988 Glamour Monroe contacted the Glamour offices in New York seeking permission to make and distribute copies of the Glamour article. Glamour informed Monroe that she would have to obtain permission from Trebilcock, who owned the reprint rights.
 
(b) In late October 1988, Monroe telephoned Trebilcock and tentatively obtained his permission to reprint the Glamour article.
 
(c) By letter on FOEM stationery dated October 29, 1988, Monroe wrote to Diana Edkins, the Permissions Editor at Glamour requesting permission "to reproduce (photocopy)" the Glamour article. Monroe's letter stated in part:
 
As coordinator of a grassroots organization formed to call public attention to the unjust incarceration of Dr. Elizabeth Morgan, I send literature explaining the truth at the core of this case to a rapidly growing list of individual supporters and newspaper columnists throughout the country. We have extended our thanks to your editor-in-chief, Ms. Ruth Whitney, for her courage in publishing Bob Trebilcock's story. The issue of child sexual abuse is not exactly popular reading, as most of us hate to believe any person could perpetrate such evil, so GLAMOUR should be commended for having the guts to champion an innocent child and the mother who has suffered so much for trying to protect her.
 
I have talked with Bob Trebilcock and he has given his permission as the author, but suggested I also obtain your permission. We plan to photocopy the article, as it is my understanding you cannot provide reprints.
 
(d) By letter on FOEM stationery dated October 30, 1988, to Trebilcock, Monroe requested "written permission to photocopy your article in GLAMOUR." The letter stated in part:
 
Thanks again for the wonderful article you did for GLAMOUR. We desperately need something honest, something we could tell people to read. They all have such misperceptions about the case. You have done us all a great service by providing the only fact-based story available to the public. . . .
 
We plan to send it to our ever-growing list of individuals who support Elizabeth Morgan and also to columnists and journalists throughout the country. The print media have been very leery of investigating this case. Maybe ...

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