UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
October 5, 1990
ERIC A. FORETICH, VINCENT P. FORETICH, and DORIS FORETICH, Plaintiffs,
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,
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.
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 § 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.
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.
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 with your example they will have the courage to plunge in.
(e) By letter dated October 31, 1988, Trebilcock informed Monroe that having spoken to his editor at Glamour, he understood that Glamour owned "First Publication rights only" and he owned "all reprint rights" to the Glamour article. Trebilcock asked that Monroe put her request in writing to be certain whose permission was required. Trebilcock then provided the following conditions for granting his permission:
(i) "That the copies be used in a non-profit, non-commercial manner."
(ii) That distribution of the copies not begin until November 15, 1988, when the November Glamour would be removed from newsstands.
(iii) That the copies carry a disclaimer stating, "Hiding Hilary is reprinted from the November 1988 issue of Glamour with the permission of the author. Permission does not constitute an endorsement by the author of Glamour magazine of the organization 'The Friends of Elizabeth Morgan' or their actions on behalf of Elizabeth Morgan."
(f) On November 3, 1988, Edkins wrote to Monroe to indicate that Trebilcock, not Conde Nast, owned the rights to the Glamour article. Edkins requested that if Trebilcock gave permission to reprint, "the following credit/copyright line must appear at the end of the article: Courtesy SELF. Copyright 1988 by The Conde Nast Publications."
(g) By letter dated November 7, 1988, Trebilcock advised Cathy Perry, a Pasadena, California, marketing consultant, that he retained "all reprint rights" to the Glamour article and granted permission to reprint 2000 copies -- 1600 for the National Organization for Women and 400 for FOEM -- "under the provision outlined in my previous letter to Alice Monroe." Trebilcock specifically reiterated the requirements that no distribution occur before November 15 and that the reprints include the disclaimer.
(h) By letter dated November 7, 1988, Trebilcock advised Edkins of his arrangement with Perry and Monroe.
(5) Perry arranged with William Tracy & Company of San Francisco to print the 2000 copies of the Glamour article.
(6) FOEM began distributing the FOEM reprints to members of the media and the public in late November 1988. Also in November 1988, FOEM distributed the FOEM reprints at their picketing site outside the D.C. Superior Court. (Affidavit of Alice Monroe at 3-4.)
(7) Eric Foretich, who has an oral surgery practice in northern Virginia, states that he was first informed by a few dentists that they had received copies of the Glamour article in envelopes marked "FOEM" and postmarked Merrifield, Virginia, approximately one month to eight weeks after the issue of Glamour containing it was published. (Foretich dep. at 11, 42). About a dozen Virginia dentists have submitted unsworn written statements indicating that they received the Glamour article or related articles in the mail between 1988 and 1990. Some recall that the envelopes were marked "FOEM" and/or postmarked Merrifield, Virginia. Alice Monroe denies that FOEM undertook "a targeted mailing" to dentist colleagues of Eric Foretich.
(8) Apart from the addition of the disclaimer and a notice of the Conde Nast copyright
and the removal of the advertisements, the FOEM reprints are identical reproductions of the Glamour article as it appeared in the pages of Glamour.
(9) Plaintiffs filed their original complaint in Superior Court on October 16, 1989.
(10) Plaintiffs filed their Motion for Leave to File an Amended Complaint, with the proposed amended complaint attached, on January 18, 1990.
II. Distribution of the FOEM reprints was a republication
As the Court's April 3 Memorandum stated, limitations periods in diversity cases in this Court are fixed by District of Columbia law. Steorts v. American Airlines, Inc., 207 U.S. App. D.C. 369, 647 F.2d 194, 197 (1981). Forum law appropriately controls not only the limitations period itself, but the legal rules for determining whether the statute has run, such as whether or not a republication has occurred. See, e.g., Association for the Preservation of Freedom of Choice v. Simon, 299 F.2d 212 (2nd Cir. 1962).
The common law "multiple publication" rule is that each sale of a writing is a separate publication, giving rise to a cause of action. See Ogden v. Association of the United States Army, 177 F. Supp. 498, 499-500 (D.D.C. 1959). By contrast, the modern "single publication rule" provides that in the case of a single, integrated publication of a periodical or edition of a book or similar aggregate communication, the statute of limitations runs from the date on which a publication was first made available to the general public. See Fleury v. Harper & Row, Publishers, Inc., 698 F.2d 1022, 1026-27 (9th Cir. 1983); Gregoire v. G.P. Putnam's Sons, 298 N.Y. 119, 81 N.E.2d 45 (1945). The "single publication rule" was explicitly adopted by Judge Holtzoff of this Court in Ogden, 177 F. Supp. at 502, and, as indicated in the Court's April 3 Memorandum, the Court does not doubt that this modern rule is the appropriate one in this jurisdiction. See Restatement (Second) of Torts § 577A at 208 (1977).
However, subsequent publications of the same material, such as new editions of a newspaper or book, or rebroadcast of a television program, are new publications, or republications, that trigger a new cause of action and commence a new limitations period. Restatement § 577A comment d at 210; R. Smolla, LAW OF DEFAMATION § 4.13 at 4-66 (1986).
Defendants attempt to paint the FOEM reprints as "incidental secondary distributions" of the Glamour article itself, rather than a distinct republication. See Church of Scientology of Minnesota v. Minnesota Medical Ass'n, 264 N.W.2d 152 (Minn. 1978); Founding Church of Scientology of Washington, D.C. v. American Medical Ass'n, 60 Ill. App. 3d 586, 377 N.E.2d 158, 18 Ill. Dec. 5 (Ill.App.Ct. 1978). Defendants suggest that to hold them liable for the FOEM reprints would expose any publisher or author to liability for any photocopies distributed by it or third parties and thus "cause havoc with the law of libel" (quoting Church of Scientology of Washington, D.C., 377 N.E.2d at 161).
However, this is not a case where some unauthorized party distributed photocopies or where the original publisher did so incident to the original publication. Conde Nast, not Trebilcock, published the November 1988 Glamour. Once that issue was removed from the stands, publication rights in the article reverted to the copyright owner, Trebilcock. Trebilcock, not Conde Nast, granted FOEM permission to distribute the article. Trebilcock granted FOEM permission not to pass out complete copies of the November 1988 Glamour but to make a discrete set of photocopies of his article for FOEM's use.
The fact that the copies distributed were exact photocopies of the text as it appeared in Glamour, with the typesetting and arrangement of copy as it appeared in Glamour (with the only differences being the addition of the disclaimer and copyright notice and removal of advertisements) cannot control. Trebilcock owned the words. He had sold the rights to them to Conde Nast for a period, and the period had expired. The words were his again. He granted FOEM permission to use them. FOEM used the easiest means of reproducing them, i.e. photocopying the article and gaining the benefit of Glamour's typesetting and art direction. But in essence, in spite of the small number of copies authorized, a separate republication occurred.
III. Defendant Trebilcock is liable for the republication
The original publisher of a defamatory statement is liable for a republication only if the republication was reasonably foreseeable. Tavoulareas v. Piro, 245 U.S. App. D.C. 70, 759 F.2d 90, 136 n. 56 (1985), rev'd, 260 U.S. App. D.C. 39, 817 F.2d 762 (1987) (en banc), cert. denied, 484 U.S. 870, 98 L. Ed. 2d 151, 108 S. Ct. 200 (1987). Plaintiffs claim that the liability of defendants Glamour magazine, The Conde Nast Publications, S.I. Newhouse, Jr., and Judith Coyne for the FOEM republication is a genuine issue of material fact, but plaintiffs do not indicate any specific facts that demonstrate such liability under the "reasonably foreseeable" standard. However, based on the undisputed facts it appears that the republication of the Glamour article in the form of the FOEM reprints was reasonably foreseeable to defendant Trebilcock. He affirmatively and deliberately granted permission to FOEM to copy and distribute the Glamour article. The correspondence in the record makes clear that Trebilcock knew that FOEM would be seeking to distribute the article to members of the media and that FOEM was a group dedicated to telling Morgan's side of the story. Whether or not FOEM actually sent copies to dentists and whether or not Trebilcock could foresee such a distribution is of little relevance. Trebilcock knew from his communications with Monroe and his knowledge of the Foretich-Morgan dispute that FOEM's aim was to publicize the controversy and vindicate Morgan and that Monroe believed that further distribution would aid FOEM's efforts. In that sense he could reasonably foresee not only the distribution itself but also the fact that it might tend to create additional publicity adverse to plaintiffs.
IV. The republication claim is barred by the statute of limitations
While the Court concludes that defendant Trebilcock is not free from liability for the FOEM republication as a matter of law, the Court finds that plaintiffs' claims against him for the FOEM republication are time-barred.
Plaintiffs' claims for defamation and for intentional infliction of emotional distress are, as previously indicated, governed by the one-year limitations period for libel set by D.C. Code § 12-301. See Foretich v. Glamour, 741 F. Supp. at 251. Defamation occurs on publication, and the statute of limitations runs from the date of publication. Fitzgerald v. Seamans, 180 U.S. App. D.C. 75, 553 F.2d 220, 227 (1977). Under the single publication rule, the date of publication for the FOEM reprints was the date they were "published," i.e. the date the first copies were distributed. There is no dispute that FOEM began distributing the FOEM reprints in November 1988.
Publication of the FOEM reprints thus occurred less than one year before the original Complaint was filed on October 16, 1988. However, the original Complaint did not claim that defendants were liable for the FOEM reprints. It simply alleged:
Upon information and belief, copies of the Glamour article were sent by the Friends of Elizabeth Morgan to many of the dentists with whom Dr. Foretich has professional relationships and acquaintance.
By contrast, the Amended Complaint, filed as an exhibit to plaintiffs' motion for leave to amend on January 18, 1990, repeated the above paragraph, added that FOEM distributed copies at their picketing sites and then alleged:
Upon information and belief, the November 1988 article has been used by the Friends of Elizabeth Morgan, with the permission of Glamour, to facilitate the creation of a negative image of Dr. Foretich and the D.C. Superior Court.
The Amended Complaint was filed more than one year after the start of the FOEM distribution of reprints authorized by Trebilcock. Accordingly, the new claim in the Amended Complaint that Glamour authorized the FOEM republication can be maintained only if it is related back to the date of filing of the original Complaint.
Federal Rule of Civil Procedure 15(c) states:
RELATION BACK OF AMENDMENTS: Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading.
The general practice under Rule 15(c) is to permit relation back so long as the new claim arose out of the defendant's conduct as set forth in the original complaint and the original complaint gave defendant notice sufficient to avoid prejudice. See Schiavone v. Fortune, 477 U.S. 21, 91 L. Ed. 2d 18, 106 S. Ct. 2379 (1986); 6A Wright and Miller, Federal Practice and Procedure § 1497.
Courts have repeatedly refused, however, to relate back a defamation claim based on a separate republication where the original complaint did not allege such republication. See Jackson v. Ideal Publishing Corp., 274 F. Supp. 318 (E.D.Pa. 1967); Rickman v. Cone Mills Corp., 129 F.R.D. 181 (D.Kan. 1989); Cole v. Atlanta Gas Light Co., 144 Ga. App. 575, 241 S.E.2d 462 (1978); Municipal Training Center, Inc. v. National Broadcasting Corp., 87 Misc. 2d 1044, 387 N.Y.S.2d 40 (N.Y.Sup.Ct. 1976). Cf. Kakuris v. Klein, 88 Ill. App. 3d 597, 410 N.E.2d 984, 988-89, 43 Ill. Dec. 851 (1980); Pendrell v. Chatham College, 386 F. Supp. 341 (W.D.Pa. 1974); Hartmann v. Time, Inc., 64 F. Supp. 671 (E.D.Pa. 1946), modified, 166 F.2d 127 (3rd Cir. 1947); cert. denied, 334 U.S. 838, 92 L. Ed. 1763, 68 S. Ct. 1495 (1948). Similarly here, Trebilcock's role in the FOEM republication was a separate occurrence from the original publication, and relation back as to him is not appropriate under Rule 15(c).
Clearly it was not until the Amended Complaint was filed in January 1990 that plaintiffs even suggested that they sought to claim for specific conduct by defendants with respect to any republication of the Glamour article by FOEM. At the time he received service of the original Complaint, Trebilcock knew that he had played a role in the FOEM distribution, but he had no reasonable basis to believe from the face of the complaint that he was being sued for anything other than the original publication in Glamour. It was appropriate for him and all other defendants, as well as counsel, to believe that the reference in the original complaint to the FOEM distribution was an allegation relevant to plaintiff's claim of harm from the original publication rather than a distinct claim of conduct by one or more defendants. Moreover, Monroe had represented to Trebilcock that the 400 copies would go to members of the media and Morgan supporters. Nothing in the record indicates that Trebilcock had reason to suspect that the 400 reprints he had authorized were the copies plaintiffs, in the original Complaint, claimed were sent to dentist colleagues of Eric Foretich.
Moreover, even the Amended Complaint failed to give adequate notice of the republication claim, because it names the wrong defendant, Glamour, as responsible for the republication, and only obliquely at best infers, rather than claims, that a republication occurred. Indeed, plaintiffs never even claimed that a republication occurred in their briefs on defendants' original dispositive motion; the issue was suggested sua sponte by the Court in its April 3 Memorandum for clarification.
Plaintiffs assert that "at a minimum, any republications after January 18, 1989, are certainly not time-barred." But there is no evidence in the record of any liability of any defendant for any republication beyond the permission given by Trebilcock to FOEM in November 1988 and the FOEM distribution that began later that month. The single publication rule applies to the FOEM distribution as it would to any other publication or republication, and the statute runs from the start, not the end, of the republication.
Accordingly, plaintiffs' claims in the Amended Complaint for defamation and intentional infliction of emotional distress based on the republication by FOEM of the Glamour article are barred by the applicable one-year statute of limitations, and defendants' Motion for Partial Summary Judgment will be granted.
V. Remaining claims
With the central claims in the case now dismissed, the Court turns to plaintiffs' remaining claims. It is not clear from the Amended Complaint precisely which words, if any, in the January 1989 and December 1989 issues of Glamour plaintiffs claim are defamatory. Moreover, further briefing of some of the remaining issues may be appropriate in light of the Supreme Court's decision in Milkovich v. Lorain Journal Co., 497 U.S. 1, 111 L. Ed. 2d 1, 58 U.S.L.W. 4846, 110 S. Ct. 2695 (1990).
Plaintiffs, if they are to proceed with the case, are directed to file, by October 22, 1990, a detailed statement of the remaining claims in the Amended Complaint for which they seek relief. The statement shall not address any claims dismissed by the Court and shall not add any new claims. In pleading the defamation claim, plaintiffs' statement shall directly quote the precise statements in the January 1989 and/or December 1989 editions of Glamour plaintiffs claim are defamatory. Plaintiff shall also plead with respect to each allegedly defamatory statement the alleged inducement, if any. Except if necessary to state the inducements, the statement shall not add any new factual assertions. If any claim for intentional infliction of emotional distress arising entirely from the January 1989 and December 1989 issues of Glamour remains in the case, plaintiffs shall plead the precise facts underlying the claim and set forth any special damages.
Defendants shall file a new brief in support of their dispositive motion by November 5, 1990. Plaintiffs may respond by November 19, 1990, and defendants may reply by November 26, 1990. General discovery remains stayed pending resolution of this motion. An appropriate Order is attached.
ORDER - October 5, 1990, Filed
Upon consideration of defendants' Motion for Partial Summary Judgment, the opposition thereto, and the entire record herein, and for the reasons stated in the accompanying Memorandum, it is hereby
ORDERED that defendants' Motion for Partial Summary Judgment is granted; and it is further
ORDERED that all claims against all defendants in the Amended Complaint for defamation and intentional infliction of emotional distress concerning the article "Hiding Hilary" in the November 1988 Glamour magazine and any republication of that article are dismissed with prejudice as barred by the applicable statute of limitations, D.C. Code § 12-301(4); and it is further
ORDERED that plaintiffs, if they are to proceed with the case, shall file, by October 22, 1990, a detailed statement of the remaining claims in the Amended Complaint for which they seek relief. The statement shall not address any claims dismissed by the Court and shall not add any new claims. In pleading the defamation claim, plaintiffs' statement shall directly quote the precise statements in the January 1989 and/or December 1989 editions of Glamour plaintiffs claim are defamatory. Plaintiff shall also plead with respect to each allegedly defamatory statement the alleged inducement, if any. Except if necessary to state the inducements, the statement shall not add any new factual assertions. If any claim for intentional infliction of emotional distress arising entirely from the January 1989 and December 1989 issues of Glamour remains in the case, plaintiffs shall plead the precise facts underlying the claim and set forth any special damages; and it is further
ORDERED that defendants shall file a new brief in support of their dispositive motion by November 5, 1990. Plaintiffs may respond by November 19, 1990, and defendants may reply by November 26, 1990; and it is further
ORDERED that no extensions of time will be granted; and it is further
ORDERED that general discovery remains stayed pending resolution of the motion.