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Faigin v. Doubleday Dell Publishing Group

October 11, 1996

A.J. FAIGIN, PLAINTIFF-APPELLANT,

v.

DOUBLEDAY DELL PUBLISHING GROUP, INC., DEFENDANT-APPELLEE.



Appeal from the United States District Court for the Eastern District of Wisconsin. No. 94 C 616 Robert W. Warren, Judge.

Before BAUER, ROVNER, and EVANS, Circuit Judges.

ROVNER, Circuit Judge.

ARGUED NOVEMBER 30, 1995

DECIDED OCTOBER 11, 1996

Sports agent A.J. Faigin represented James E. Kelly, a quarterback for the National Football League's Buffalo Bills, from 1983 to 1987. Kelly spoke unfavorably of Faigin in an autobiography (ARMED AND DANGEROUS) that he co-wrote with sports writer Vic Carucci. Faigin filed a diversity suit against Kelly, Carucci, and the book's publisher, Doubleday Dell Publishing Group, Inc., claiming defamation and the intentional infliction of emotional distress. Faigin filed the suit first in the Northern District of Illinois, voluntarily dismissed it, and then re-filed in the Eastern District of Wisconsin. There the district court dismissed Kelly and Carucci for lack of personal jurisdiction, a ruling that Faigin does not challenge on appeal. The court also granted summary judgment in favor of Doubleday on the defamation claim, finding it to be untimely. *fn1 We disagree and reverse.

I.

Wisconsin has a two-year statute of limitations for libel actions, and Faigin's suit was filed within that two-year period; but the state also has a borrowing statute designed "to resolve conflicts between jurisdictions on statute of limitations questions." McMahon v. Pennsylvania Life Ins. Co., 891 F.2d 1251, 1257 (7th Cir. 1989). We, of course, look to such statutes in deciding which statute of limitations will govern a diversity case. Klaxon v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496-98, 61 S. Ct. 1020, 1021-22 (1941). Wisconsin's statute provides:

(1) If an action is brought in this state on a foreign cause of action and the foreign period of limitation which applies has expired, no action may be maintained in this state.

(2) If an action is brought in this state on a foreign cause of action and the foreign period of limitation which applies to that action has not expired, but the applicable Wisconsin period of limitation has expired, no action may be maintained in this state. Wis. Stat. sec. 893.07. (Subsection (1) is the pertinent provision here, of course.)

Wisconsin considers a cause of action "foreign" if the underlying injury occurred outside the state. Guertin v. Harbour Assurance Co. of Bermuda, Ltd., 415 N.W.2d 831, 833-34 (Wis. 1987); Scott v. First State Ins. Co., 456 N.W.2d 152, 154 (Wis. 1990).

"It is clear," the district court noted, "that Wisconsin is a place of the plaintiff's injury." Faigin v. Kelly, No. 94 C 616, Decision and Order at 16 (Feb. 6, 1995) (citing Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 777, 104 S. Ct. 1473, 1479 (1984)) (emphasis in original). At least forty-one copies of ARMED AND DANGEROUS were sold in Wisconsin, and Faigin has conducted some business within the state; Faigin's reputation, consequently, suffered harm within Wisconsin's borders. Id. Yet, "Faigin has alleged injury in other states as well." Id. And as Doubleday points out, the ties to Wisconsin are otherwise weak: Faigin lives in California, and Doubleday is a Delaware corporation with its principal place of business being New York. Kelly and Carucci live in New York and wrote ARMED AND DANGEROUS there. The book was printed outside of Wisconsin. Of all the copies Doubleday sold directly, less than two-tenths of one percent were sold to Wisconsin bookstores. Looking principally to the Wisconsin Supreme Court's decision in Guertin and the Eighth Circuit's decision in Patch v. Playboy Enters., Inc., 652 F.2d 754 (8th Cir. 1981) (per curiam) (applying Missouri's borrowing statute), the district court concluded that when the plaintiff's injury has occurred in more than one state, it amounts to a "foreign" cause of action governed by Wisconsin's borrowing statute, notwithstanding the fact that Wisconsin is one of the states in which injury occurred. Decision and Order at 18. As a result, the district court found the case governed by the shortest statute of limitations among the states where the plaintiff was injured. Id. New York (whence the defendants hail), California (where Faigin lives), and Pennsylvania (the other state in addition to Wisconsin in which Faigin alleges he was injured) all have one-year statutes of limitations for libel. Because Faigin's suit was filed more than one year after his claim for defamation accrued, it was untimely. *fn2

II.

No Wisconsin court has yet considered whether a multi-state defamation case in which at least some injury occurs within Wisconsin's borders constitutes a "foreign" cause of action for purposes of the state's borrowing statute. We must therefore do our best to predict what the Wisconsin Supreme Court would say if presented with this question. Todd v. Societe Bic, S.A., 21 F.3d 1402, 1412 (7th Cir.) (en banc), cert. denied, 115 S. Ct. 359 (1994).

We do, of course, know how Wisconsin identifies a cause of action that is "foreign" for purposes of the borrowing statute. When the Wisconsin Judicial Council redrafted the borrowing statute in 1979, it understood the term "foreign cause of action" to be synonymous with the language of the former version of the statute, which spoke in terms of injuries "received without this state." This persuaded the Wisconsin Supreme Court that a cause of action is "foreign" if the underlying injury occurred outside the state. Guertin, 415 N.W.2d at 834 (approving Johnson v. Deltadynamics, Inc., 813 F.2d 944, 945-46 (7th Cir. 1987)). The court eschewed any consideration of whether the cause of action has significant contacts with Wisconsin, emphasizing that this familiar conflict-of-laws ...


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