first amendment protections would still apply to a suit seeking to apply Indian law, where defendant's publication of the Book in India was either unintentional, indirect or unsubstantial. Under this scenario, defendant would have intentionally abandoned his first amendment protections and subjected himself to Mexican law, but not the law of any nation into which the Book might somehow be introduced.
Plaintiff asserts that, as Simon & Schuster is no longer a defendant, its affidavit can no longer serve as the basis to convert defendant's motion to dismiss into a motion for summary judgment under Fed. R. Civ. P. 12(b). However, Judge Plunkett, to whom this case was originally assigned, in ruling on plaintiff's motion to strike affidavits, rather than striking the Simon & Schuster affidavit, strongly urged plaintiff to submit a counter-affidavit. Judge Plunkett's decision not to exclude the affidavit and to request a counter-affidavit effectively operated to convert the motion to dismiss into a motion for summary judgment five years ago. Simon & Schuster's dismissal does not "deconvert" it. Simon & Schuster's affidavit remains relevant even after its dismissal, as summary judgment may be granted based upon non-party affidavits. Simon & Schuster is the publisher of the Book. It may be the only publisher of the Book. Although this conclusion is called into question by Simon & Schuster's averment that it does not have the rights to sell or distribute the Book in India. Affidavit at para. 5. Thus, either some other entity has the Indian rights or no one does (Hersh retained them). If Simon & Schuster is the only publisher of the Book, its affidavit denying Indian publication certainly is evidence that Hersh, for whom it is publishing the Book, did not publish the Book in India. Furthermore, as Judge Plunkett noted, the issue of whether foreign defamation law is applicable "is probably a mixed question of fact and law." Transcript of Proceedings before Honorable Paul E. Plunkett, August 31, 1984 at 8. The court agrees and concludes that it may sua sponte order the submission of affidavits necessary to resolve a mixed question of fact and law.
Finally, as defendant notes, plaintiff bears the burden of proving such intentional direct publication. Placing this burden on plaintiff's shoulders is consistent with his general shouldering of the burdens of proof in a defamation case. See Grzelak v. Calumet Publishing Company, Inc., 543 F.2d 579, 582 (7th Cir. 1975) (plaintiff bears burden of proving "actual malice"); Lal v. CBS, Inc., 726 F.2d 97, 100 (3rd Cir 1984) (plaintiff bears burden of proving abandonment of privilege). However, while plaintiff may have the burden of proof on the issue of defendant's abandonment of first amendment rights, the court will not create a presumption against abandonment. Defendant, as moving party, still must put forth a factual basis for the conclusion that no genuine issue exists on that matter. Here defendant may do so by averring that Simon & Schuster is the only publisher of the Book, in effect adopting Simon & Schuster's affidavit, or defendant may set forth the circumstances under which he published the Book, specifically denying his own intentional direct publication of the Book in India in a manner consistent with the intent to abandon his first amendment rights. If defendant can do either, then plaintiff, in order to survive this motion, must submit his own affidavits on this matter.
Plaintiff has requested an "additional 28 days in which to obtain factual evidence of defendant's publication of the Book . . ." Yet, plaintiff has known for five years that publication of the Book in India would be an issue, has, according to defendant, completed his deposition of Hersh, and has so far failed to submit an affidavit. Defendant has 7 days from the date of this order in which to submit affidavits. If defendant does so, plaintiff has an additional 7 days in which to submit counter-affidavits.
IT IS SO ORDERED.
DATED: July 14, 1989
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