Arthaud v. Fuglie , 2023 ND 36 ( 2023 )

FILED
IN THE OFFICE OF THE
CLERK OF SUPREME COURT
MARCH 3, 2023
STATE OF NORTH DAKOTA
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2023 ND 36Jim Arthaud, Plaintiff and Appellant
v.
Jim Fuglie, Defendant and Appellee
No. 20220234
Appeal from the District Court of Burleigh County, South Central Judicial
District, the Honorable Cynthia M. Feland, Judge.
AFFIRMED.
Opinion of the Court by Jensen, Chief Justice, in which Justice Tufte and
District Judge Clark joined. Justice Bahr filed a concurring opinion, in
which Justice McEvers joined.
Mark W. Vyvyan (argued), Minneapolis, MN, and Lawrence Bender (appeared)
and Spencer D. Ptacek (on brief), Bismarck, ND, for plaintiff and appellant.
Chris A. Edison (argued) and Katie L. Winbauer (appeared), Bismarck, ND, for
defendant and appellee.
Arthaud v. Fuglie
No. 20220234
Jensen, Chief Justice.
[¶1] Jim Arthaud appeals a district court judgment granting Jim Fuglie’s
motion to dismiss. Arthaud argued this Court should adopt the “discovery rule”
when determining whether a litigant has timely brought a defamation claim.
We hold it is unnecessary to decide whether to adopt the discovery rule for
defamation claims because the Uniform Single Publication Act precludes the
discovery rule from applying to statements made to the public. We affirm.
I
[¶2] Arthaud sued Fuglie, alleging Fuglie published a defamatory statement
in his internet blog titled “A Bridge to Nowhere.” The blog was published in
August 2018 on Fuglie’s website, “The Prairie Blog.” In the post Fuglie wrote:
Arthaud knows something about dealing with politicians. Here’s a
story from a friend of a friend of a friend. Someone was in
Arthaud’s office and needed something from Sen. John Hoeven.
Arthaud picked up the phone, dialed up Hoeven’s office in
Washington, DC, got Hoeven on the phone, got what his friend
needed, hung up, and said “That’s what $20,000 will get you.”
[¶3] Arthaud brought suit on October 5, 2021, asserting he did not learn
about the post until September 2021. Fuglie responded and filed a motion to
dismiss, arguing Arthaud’s claim was time barred under the applicable statute
of limitations. The district court subsequently granted the motion to dismiss,
finding Arthaud’s claims were time barred under section 28-01-18(1) of the
North Dakota Century Code regardless of whether the discovery rule applies
in defamation cases.
II
[¶4] Arthaud asserts the district court erred in granting Fuglie’s Rule
12(b)(6), N.D.R.Civ.P., motion to dismiss Arthaud’s defamation claim because
the discovery rule should apply to defamation claims and Arthaud did not
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discover the claim until September 2021. We have outlined the following when
reviewing motions to dismiss:
“A motion to dismiss a complaint under N.D.R.Civ.P. 12(b)[6] tests
the legal sufficiency of the claim presented in the complaint.” In re
Estate of Nelson, 2015 ND 122, ¶ 5, 863 N.W.2d 521 (quoting
Brandvold v. Lewis & Clark Pub. Sch. Dist. No. 161, 2011 ND 185,
¶ 6, 803 N.W.2d 827). “On appeal from a dismissal under
N.D.R.Civ.P. 12(b)[6], we construe the complaint in the light most
favorable to the plaintiff and accept as true the well-pleaded
allegations in the complaint.” Id. A district court’s decision
granting a Rule 12(b)(6) motion to dismiss a complaint will be
affirmed “if we cannot ‘discern a potential for proof to support it.’”
Nelson v. McAlester Fuel Co., 2017 ND 49, ¶ 20, 891 N.W.2d 126(quoting Kouba v. State, 2004 ND 186, ¶¶ 4-6, 687 N.W.2d 466).
We review a district court’s decision granting a motion to dismiss
under N.D.R.Civ.P. 12(b)(6) de novo on appeal. Estate of Nelson, at
¶ 5.
Krile v. Lawyer, 2020 ND 176, ¶ 15, 947 N.W.2d 366.
[¶5] Section 28-01-18, N.D.C.C., provides that an action for libel or slander
must be commenced within two years after the claim for relief has accrued. A
cause of action accrues on a defamation claim when the publication of the false
statement is made to a third party. Schultze v. Cont’l Ins. Co., 2000 ND 209, ¶
12, 619 N.W.2d 510. Arthaud argues the discovery rule should apply to
defamation claims, and therefore the running of the statute of limitations
should not begin until Arthaud discovered the blog post. We find it unnecessary
to determine whether the discovery rule should apply to defamation claims
because the Uniform Single Publication Act, as adopted by the North Dakota
legislature, precludes application of the discovery rule when the alleged
defamatory statement was made to the public.
[¶6] The Uniform Single Publication Act provides:
No person may have more than one claim for relief for damages for
libel or slander or invasion of privacy or any other tort founded
upon any single publication or exhibition or utterance, such as any
one edition of a newspaper or book or magazine or any one
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presentation to an audience or any one broadcast over radio or
television or any one exhibition of a motion picture. Recovery in
any action must include all damages for any such tort suffered by
the plaintiff in all jurisdictions.
A judgment in any jurisdiction for or against the plaintiff upon the
substantive merits of any action for damages founded upon a
single publication or exhibition or utterance as described in this
section bars any other action for damages by the same plaintiff
against the same defendant founded upon the same publication or
exhibition or utterance.
N.D.C.C § 14-02-10. The Uniform Single Publication Act prevents endless
retriggering of the statute of limitations by requiring the defamation claim to
accrue upon the first publication of the statement. The language of the act
implies the discovery rule is inapplicable in cases where the alleged
defamatory remark was made to the public. Other courts have reached the
same conclusion, rejecting application of the discovery rule to libels published
in books, magazines, and newspapers. See Barrett v. Catacombs Press, 64
F.Supp.2d 440, 444-446 (E.D. Pa. 1999); Holloway v. Butler, 662 S.W.2d 688,
693 (Tex. App. 1983). The Supreme Court of California noted that “application
of the discovery rule would undermine the protection provided by the single-
publication rule.” Shively v. Bozanich, 80 P.3d 676, 688 (Cal. 2003).
[¶7] The Uniform Single Publication Act’s purpose is to prevent both multiple
and stale defamation claims. These purposes would be frustrated by
application of the discovery rule where the alleged defamatory remark was
published through a public format, such as the internet. We hold the Uniform
Single Publication Act prevents application of the discovery rule to remarks
made to the public regardless of the media used for the publication of the
statement.
[¶8] An action for libel or slander must be commenced within two years after
the claim for relief has accrued. N.D.C.C. § 28-01-18. A cause of action accrues
on a defamation claim when the publication of the false statement is made to
a third party. Schultze, 2000 ND 209, ¶ 12. Fuglie’s blog post was published on
his website on August 2, 2018, and was available to the public on that date.
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Arthaud commenced this lawsuit on October 5, 2021. Arthaud failed to
commence the lawsuit within the two years provided for under the statute of
limitations. Upon a de novo review, we conclude Arthaud’s defamation claim is
time barred under N.D.C.C. § 28-01-18.
III
[¶9] The Uniform Single Publication Act precludes application of the
discovery rule when the defamatory remarks were made to the public. Arthaud
failed to commence this action within the applicable statute of limitations. We
affirm the judgment.
[¶10] Jon J. Jensen, C.J.
Jerod E. Tufte
Honorable Cherie L. Clark, D.J.
[¶11] The Honorable Cherie L. Clark, D.J., sitting in place of Crothers, J.,
disqualified.
Bahr, Justice, concurring.
[¶12] I concur with the majority’s result. However, I write separately because
I do not agree the language of the Uniform Single Publication Act “implies the
discovery rule is inapplicable in cases where the alleged defamatory remark
was made to the public,” as stated in the majority opinion. Majority, at ¶ 6.
[¶13] The Act states, “No person may have more than one claim for relief for
damages for libel or slander or invasion of privacy or any other tort founded
upon any single publication or exhibition or utterance[.]” N.D.C.C. § 14-02-10.
The statute goes on to give examples by stating “such as any one edition of a
newspaper or book or magazine or any one presentation to an audience or any
one broadcast over radio or television or any one exhibition of a motion
picture.” Id. Those examples are limited to public statements, but the statute
does not explicitly limit claims for damages only to alleged defamatory
statements made to the public. The plain language of the statute states no
person may have more than one claim for relief for damages for any tort
founded upon any single publication, exhibition, or utterance. Thus, the Act
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applies to all publications, exhibitions, and utterances, not only when the
alleged defamatory statement or communication is made to the public. See
Hebrew Acad. of San Francisco v. Goldman, 173 P.3d 1004, 1008 (Cal. 2007)
(stating the single-publication rule, codified in the Uniform Single Publication
Act, “applies without limitation to all publications”). The Act also does not
explicitly address when a claim accrues and the statute of limitations begins
to run. See Bradford v. Am. Media Operations, Inc., 882 F.Supp. 1508, 1514
(E.D.Pa. 1995) (stating, “On its face, the Uniform Single Publication Act only
limits the number of suits a plaintiff may bring on a single publication of
defamatory material; it is silent as to when the statute of limitations begins to
accrue on a defamation or invasion of privacy claim.”).
[¶14] Although I disagree the language of the Uniform Single Publication Act
implies the discovery rule is inapplicable in cases where the alleged
defamatory remark was made to the public, I agree with the majority’s result
because the Act is a uniform law and other courts have interpreted the Act in
a similar manner as the majority. See In re Estate of Hall, 2019 ND 196, ¶ 8,
931 N.W.2d 482 (stating, “When a uniform statute is interpreted it must be
construed to effectuate its general purpose to make the law uniform in the
states which enacted it.”); N.D.C.C. § 1-02-13. We interpret uniform laws in a
uniform manner, and we may “seek guidance from decisions in other states
which have interpreted similar provisions of uniform laws.” Gooss v. Gooss,
2020 ND 233, ¶ 7, 951 N.W.2d 247. Thus, I concur with the majority’s
conclusion, not because of the language of the Uniform Single Publication Act,
but because we should interpret the Act consistent with the manner in which
other courts have interpreted it.
[¶15] However, I note courts in states that adopted the Act have also held the
discovery rule applies in limited circumstances, including when the alleged
defamatory statement was hidden from view or inherently undiscoverable. See
Shively v. Bozanich, 80 P.3d 676, 687-90 (Cal. 2003) (acknowledging the
discovery rule has been applied in defamation cases where the alleged
defamatory statement occurred in private or in confidential publications not
readily available to the plaintiff or public); Tom Olesker’s Exciting World of
Fashion, Inc. v. Dun & Bradstreet, Inc., 334 N.E.2d 160, 164 (Ill. 1975) (holding
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the discovery rule applied to alleged defamation by credit reporting agency);
Holloway v. Butler, 662 S.W.2d 688, 692-93 (Tex. Ct. App. 1983)
(acknowledging the discovery rule may not apply when the plaintiff does not
have the ability to know of the negligent act); Atkinson v. McLaughlin, 462
F.Supp.2d 1038, 1056 (D.N.D. 2006) (discussing North Dakota law and
concluding the discovery rule applies to defamation claims only under limited
circumstances where the alleged defamatory statements are secretive or
inherently undiscoverable); Barrett v. Catacombs Press, 64 F.Supp.2d 440, 445
(E.D.Pa. 1999) (stating the discovery rule applies only to those situations
where no amount of vigilance will enable the plaintiff to detect an injury).
States that have not adopted the Act also recognize this limited exception and
apply the discovery rule in certain types of defamation cases. See, e.g., Sears,
Roebuck and Co. v. Ulman, 412 A.2d 1240, 1243-44 (Md. 1980) (holding the
discovery rule applied in case where defendant allegedly filed a false credit
report with a credit agency); White v. Gurnsey, 618 P.2d 975, 935-37 (Or. Ct.
App. 1980) (holding discovery rule applies to defamation actions involving
publications of a confidential nature); Kelley v. Rinkle, 532 S.W.2d 947, 949
(Tex. 1976) (holding the discovery rule applied when the alleged defamation
occurred in a report to a credit agency).
[¶16] I further note the district court did not rely on the Uniform Single
Publication Act in reaching its conclusion. Rather, the court followed the
holdings of the majority of courts addressing the applicability of the discovery
rule to defamation claims and the decision of the United States District Court
of North Dakota in Atkinson, 462 F.Supp.2d 1038. The court explained the
majority of courts “have carved out a narrow exception and held that the
discovery rule applies only in limited circumstances where the alleged
defamatory statement was secretive or inherently undiscoverable . . . .” With
regard to Atkinson, the court quoted the federal court as finding that, “[I]f
given the opportunity, the North Dakota Supreme Court would apply the
discovery rule to defamation claims but only in those limited circumstances
where the allegedly defamatory statements are secretive or inherently
undiscoverable.” (Quoting 462 F.Supp.2d at 1056.) Based on the multiple cases
cited by the district court, Atkinson, and the cases I cite in the previous
paragraph, I would conclude the discovery rule only applies to defamation
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claims where the allegedly defamatory statements are secretive or inherently
undiscoverable.
[¶17] I agree the discovery rule does not apply in this case. I concur with the
majority that the judgment should be affirmed.
[¶18] Lisa Fair McEvers
Douglas A. Bahr
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