Michael J. Morrissey v. William Morrow & Co., Inc., Bantam Books , 739 F.2d 962 ( 1984 )

CHAPMAN, Circuit Judge:

Michael J. Morrissey, a practicing attorney, brought this action against William Morrow and Company, Inc. and Bantam Books, Inc., publishers of the book Spooks: The Haunting of America — The Private Use of Secret Agents alleging claims of defamation, invasion of privacy and injurious falsehood. Federal jurisdiction is alleged under 28 U.S.C. § 1332(a) — diversity jurisdiction. The district court granted defendants’ motion for summary judgment finding the action barred by the one year statute of limitations, Va.Code 8.01-248. Plaintiff appeals alleging error of the district judge in (1) refusing to allow additional time for discovery after defendants’ motion to dismiss under Federal Rule of Civil Procedure 12(b) had been converted to a motion for summary judgment under Federal Rule of Civil Procedure 56; (2) “ruling on the record then established” that the statute of limitation began to run when the book was generally available to the public; and (3) failing to consider the possible conflict of law problem presented by the plaintiff’s claim of invasion of privacy.

Finding no merit in these exceptions, we affirm.

I

The complaint alleges that Morrissey is an attorney and electrical engineer and that William Morrow published the hardback edition of Spooks and Bantam Books published the paperback edition of the same book. The complaint further alleges that publishing of the “false allegations, malicious statements and innuendo and implications assigning this material in the books has been humiliating and embarrassing to the plaintiff, caused him mental distress and has harmed him in his personal and business relationships and has the potential of causing further harm to him particularly in his profession as a lawyer.” Plaintiff also alleges that he is an attorney admitted to the Bars of Virginia, the District of Columbia and various federal courts including the United States District Court for the Eastern District of Virginia.

His first action against the present defendants was filed in the United States District Court for the Eastern District of Virginia on December 1, 1980 with the plaintiff appearing pro se. On May 21, 1981 defendants filed a motion for summary judgment upon the ground that the Virginia one year statute of limitations applied to the action and that William Morrow’s publication of Spooks occurred in August of 1978 and Bantam Books publication occurred not later than November 20, 1979 and the one year statute of limitations had run before the complaint was filed on December 1, 1980. This motion was accompanied by an affidavit of James D. Landis, vice president and editorial director of William Morrow and an affidavit of Heather Grant Florence, the vice president, secretary and general counsel of Bantam Books. Each affidavit set forth the date that the book was available for sale to the public. The plaintiff filed nothing in response to the motion for summary judgment. The motion was set for hearing on May 29, 1981, but on May 28, 1981, an attorney entered an appearance for Morrissey and obtained a continuance of the hearing on the summary judgment motion until June 5, 1981. A pretrial order had been entered by the district judge on April 1, 1981, establishing a discovery cut off date of June' 12, 1981.

At the June 5, 1981 hearing plaintiffs attorney argued that additional discovery was needed as to the statute of limitations issue and the district court granted this motion and again continued the hearing for summary judgment. Depositions were scheduled with plaintiffs scheduled for June 9, 1981. On that date plaintiff voluntarily dismissed the action without having conducted any discovery.

On November 19, 1981, plaintiff filed the present action, again proceeding pro se, against the same defendants and alleging the same causes of action. On January 7, 1982 defendants filed a motion to dismiss the new action on the ground that it was barred by the statute of limitations. In support of this motion defendants filed affidavits seeking to establish the dates of publication and submitted the same supporting memorandum of law as used in the May 1981 motion. The hearing on this motion was set for January 22, 1982, but at Morrissey’s request the hearing was continued until February 12, 1982. Morrissey did not notice or obtain any discovery in connection with the second action, although he was aware of the grounds for the defendant’s motion and the supporting affidavits. In his opposition to the motion he pointed out that since it was supported by affidavits it must be tested by the standards of Rule 56. ' At the hearing on February 12, 1982 the plaintiff arrived late and argued against the motion and asked for additional time for discovery. He admitted that he had filed no interrogatories in either the first action or the second action, but stated that he had telephoned one of the defendants asking for date of publication information and seemed surprised that this telephone request was denied. He asserted that he had written a letter to the defendants’ attorneys in June 1981 asking certain questions, but admitted that these were not in the form of interrogatories under the Federal Rules.

The district court found that the plaintiff had over six months to conduct discovery in the first action and three months to conduct discovery in the second action, but he had done nothing to create a factual dispute and had submitted nothing in opposition to the defendants’ affidavits, although he had known since May 21, 1981 the defendants’ position as to the statute of limitations and the content of the defendants’ affidavits as to publication dates.

The district court observed that while the Virginia Supreme Court had not decided whether to adopt the “first-publication rule,” the district court would adopt such a rule, but “giving the plaintiff the benefit of treating the paperback edition as perhaps reaching a different audience so that for publication purposes, the paperback publication would be the date of accrual of the cause of action. But I find that it accrued at the latest on November 20, 1979.”

The affidavit of James D. Landis, vice president and editorial director of William Morrow stated in pertinent part:

4. That William Morrow began shipping its publication of the book Spooks to its customers — including retail bookstores— on August 1,1978. Shipments of Spooks were completed by August 4, 1978 and the book was generally available and sold to the public on or before that date.

The affidavit of Heather Grant Florence, vice president, secretary and general counsel of Bantam Books, stated in pertinent part:

4. That Bantam Books began shipping the book SPOOKS from its DesPlains, Illinois warehouse on November 9, 1979, and that the book was generally available for sale to the public in bookstores throughout the United States on or before November 20, 1979.

These affidavits accompanied the motion to dismiss filed in the present action on January 7, 1982.

Finding that the plaintiff had done nothing to establish a factual dispute as to the date of accrual of the cause of action, the court granted summary judgment because the action had not been brought within one year as required by Va.Code 8.01-248.

II

The main thrust of plaintiffs brief and oral argument is that he was not given a reasonable time as provided by Federal Rule of Civil Procedure 12(b) to respond to the defendant’s affidavit when the Rule 12 motion was converted to a Rule 56 motion. The last sentence of Rule 12(b) provides:

If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.

The first sentence of Rule 56(c) provides: “The motion shall be served at least 10 days before the time fixed for the hearing.”

The last two sentences of Rule 56(e) state:

When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.

Morrissey concedes that this is a matter committed to the discretion of the district judge, but argues that it was an abuse of discretion to not allow him additional time for discovery to counter the statements in the defendants’ affidavits and to explore any facts omitted from the affidavits.

The facts do not support this claim of abuse of discretion. It is abundantly clear that plaintiff engaged in no discovery in either his first suit or in the present action. In the original action the motion was set for a hearing on May 29, 1981, and on the day preceding such hearing, the court granted a continuance until June 5, 1981. On that date the court again granted a motion to continue the hearing and allowed plaintiff additional time for discovery, which was not used by the plaintiff, who took a voluntary dismissal on June 9, 1981.

It can be assumed that between June 9, 1981 and the refiling of the case on November 19, 1981, the plaintiff must have given some thought to his lawsuit and how he would respond to the Landis and Florence affidavits. As the trial judge explained to the plaintiff, he could have filed interrogatories immediately upon commencement of the second action. Rule 33(a). But again, nothing was done by the plaintiff.

He argues that during June 1981 he called the offices of one of the defendants to ask for certain information over the telephone. He claimed that he was surprised when defendants’ employees did not furnish this information to him by telephone. It is inconceivable that any attorney, admitted to practice in the courts of Virginia and the District of Columbia, as well as the United States District Courts, would expect to obtain or use information from such a telephone conversation with an adversary.

Morrissey does not claim that he was taken by surprise by the motion to dismiss nor the fact that it was treated as a Rule 56 motion. He filed a 21 page “Memorandum of Points and Authorities in Support of Plaintiff’s Opposition to Defendants’ Motion to Dismiss” in which he discussed Rule 56, but he presented nothing to create an issue of fact.

Plaintiff does not claim that he did not know or believe that he would be required to file counter-affidavits. Nor does he claim that he was denied the opportunity to proceed with the discovery or that he was denied continuances requested from the court. He primarily asserts that he should have been given more time and that the time provided was not reasonable.¹

Morrissey’s reliance on Johnson v. RAC Corporation, 491 F.2d 510 (4th Cir.1974) is misplaced. In that case the court found that prejudice had resulted from the unexpected treatment of a motion under Rule 12(b)(6) as a summary judgment motion and the plaintiff had not had a “reasonable opportunity” to file material in opposition to a Rule 56 motion. In Johnson the plaintiff had filed extensive interrogatories which sought to counter the defendant’s affidavit, but no discovery was permitted until the motion to dismiss was heard. Thereby the plaintiff was prevented from exercising his rights to discovery which could have produced an issue of fact. By contrast, Morrissey simply did not use the discovery procedures available to him in either the first suit or the present suit, although he was well aware of the defendants’ position as to the statute of limitations and the content of the supporting affidavits. Morrissey, an attorney, knowingly and willfully did not avail himself of the opportunities for discovery, and we cannot say that the district court was in error in finding that he had a reasonable time in which to present affidavits or other materials in opposition to defendants’ motion.

In Clarke v. Volpe, 481 F.2d 634 (4th Cir.1973), this court affirmed the district court’s dismissal of the complaint under Rule 12(b)(6) where the defendants submitted affidavits and moved for judgment on the pleadings or, in the alternative, for summary judgment. This court stated:

The appellate court is not bound by the label that the district court places upon its disposition of the case. Whenever outside matters are presented to and not excluded by the trial court, the motion should be considered on appeal as one for summary judgment even though the trial court characterized its action as a dismissal of the case for failure of the plaintiffs to state a claim upon which relief can be granted. The record reveals that both parties were given a reasonable opportunity to present affidavits and other evidence upon which the trial court could properly determine whether summary judgment should be entered. Only the defendants availed themselves of such opportunity. When such circumstances appear from the record the appellate court, for the sake of judicial economy, should make an immediate determination of the issue rather than remand the case to the trial court for disposition.

481 F.2d at 635-636.

Failure of a litigant to file counter-affidavits may be treated as a conscious waiver. See Hummer v. Dalton, 657 F.2d 621, 626 (4th Cir.1981), which involved a prisoner proceeding pro se. Morrissey is an attorney knowledgeable in the rules of procedure, who took the time to prepare a léngthy memorandum of law in opposition to the defendants’ summary judgment motion. His failure to conduct any discovery or submit any opposing affidavits in either of his cases, given the time available and the continuances granted, can only be viewed as a waiver of such rights.

“Time and tide wait on no man,” and the district court waited long enough for the present plaintiff.

Ill

Appellant’s second point is that based upon the record then before it, the district court erred in finding that the statute of limitations began to run when the books became “generally available” to the public. A large part of this argument is little more than a further complaint that the trial judge did not allow the plaintiff additional time to “test” the defendants’ affidavits. Enough has been said on this point.

The Virginia Supreme Court has consistently applied the one year statute of limitation in Va.Code 8.01-248 to defamation actions. Weaver v. Beneficial Finance Co., 199 Va. 196, 98 S.E.2d 687 (1957); Watt v. McKelvie, 219 Va. 645, 248 S.E.2d 826 (1978).

The district court said that it was adopting the single publication rule even though the Virginia Supreme Court had not yet faced the issue. ’The district court was justified in making this assumption. “The great majority of the States now follow the single publication rule.” Keeton v. Hustler Magazine, Inc., — U.S.-,-n. 8, 104 S.Ct. 1473, 1480 n. 8, 79 L.Ed.2d 790 (1984).

This rule is summarized in Restatement (Second) of Torts § 577A(4) (1977):

As to any single publication, (a) only one action for damages can be maintained; (b) all damages suffered in all jurisdictions can be recovered in the one action; and (c) a judgment for or against the' plaintiff upon the merits of an action for damages bars any other action for damages between the same parties in all jurisdictions.

Since William Morrow published the hardback edition of Spooks and Bantam Books more than a year later published the paperback edition, the district court addressed its attention to the latest date of publication. There is no claim that William Morrow and Bantam Books are affiliated companies and plaintiff does not argue that the act of one is the responsibility of the other. It is alleged that Bantam Books entered into a separate agreement with William Morrow to publish the book in paperback version and thereby Bantam Books restated the malicious falsehoods about the plaintiff. This is not a claim of republication by William Morrow, and it is obvious that from the record before the district court the hardback publication was shipped to bookstores and sold in August 1978, more than two years before plaintiff’s action was brought. The Landis affidavit states that the hardback edition “was generally available and sold to the public on or before that date.” (August 4, 1978). With nothing from the plaintiff to challenge this sworn statement as to the date of sale of the hardback book, there was no dispute as to a material fact and William Morrow was entitled to judgment as a matter .of law.

The date of publication for the Bantam Books paperback edition involved a slightly different question.² Neither the paperback nor the hardback editions are in the record, but plaintiff’s brief states as to the paperback edition “The book itself contains the publication date of December 16, 1979.” Argument of counsel is not evidence and although defendants’ acknowledge an “official publication date of December 19, 1979 printed in the paperback book”, it is common knowledge that publications are often in the hands of the public before the date appearing thereon. This is particularly true of magazines. The May issue of a monthly magazine usually arrives on the newsstands and at the homes of subscribers by mid-April. Courts have recognized this as common practice. Hartmann v. Time, Inc., 166 F.2d 127 (3rd Cir.1947); McGlue v. Weekly Publications, Inc., 63 F.Supp. 744 (D.Mass.1946); Khaury v. Playboy Publications, Inc., 430 F.Supp. 1342 (S.D.N.Y.1977).

The use of arbitrary “official publication dates” has been recognized as to books and found not to be determinative of the date of publication. In Fleury v. Harper and Row Publishers, Inc., 698 F.2d 1022 (9th Cir.1983), cert. denied — U.S. -, 104 S.Ct. 149, 78 L.Ed.2d 139 (1983) the court held that the official publication date listed inside the cover of the book is immaterial in determining when the statute of limitations begins to run, stating:

The precedents with almost complete uniformity hold that publication occurs at the time of actual communication of the libel, not the date on the cover of the newspaper, magazine or other printed matter.

698 F.2d at 1028.

Appellant argues that under Gregoire v. G.P. Putnam’s Sons, 298 N.Y. 119, 81 N.E.2d 45, 49 (1948) a test for determining when the statute of limitations begins to run is “when the finished product is released by the publisher for sale in accord with trade practice.” Appellant submits that “trade practice” should have been developed by the district court before granting summary judgment. The record before the district court contained the unchallenged affidavit that the paperback edition was shipped from the warehouse beginning November 9, 1979, and “that the book was generally available for sale to the public in bookstores throughout the United States on or before November 20, 1979.” There was no reason to develop a record on “trade practice” when there was no challenge to the sworn statement that the books were available to the public in bookstores throughout the United States on or before November 20, 1979.

Morrissey submits that there were “a whole host of questions” to be resolved by the district court before deciding the statute of limitations issue. However, the district court was confronted with the single issue of the date of publication and properly resolved this issue based upon the unchallenged sworn statement that this date was not later than November 20, 1979.

IV

Plaintiffs last claim is that the trial court erred in failing to consider the possible conflict of law situation presented in his claim for invasion of privacy. He argues that the common law right of inva,sion of privacy is recognized in the District of Columbia and since he had contacts in the District of Columbia this cause of action should have been recognized.

Virginia has rejected the “most significant relationship” test and applies the substantive law of the place of the wrong. McMillan v. McMillan, 219 Va. 1127, 253 S.E.2d 662 (1979). Plaintiff resides in Virginia, practices law in Virginia, alleges he suffered damages in Virginia and brought his two actions in the United States District Court for the Eastern District of Virginia. There was no reason to consider a conflicts problem, and even if one had been considered, plaintiffs “most significant contacts” were in Virginia.

Under the present facts to allow the plaintiff one more chance to create a factual issue and avoid summary judgment would do violence to Rule 56 and the other Federal Rules of Civil Procedure.

AFFIRMED.

1 . Rule 56 does not provide limited time to a party opposing a motion. It requires at least 10 days notice by the movant,' but states: "The adverse party prior to the day of hearing may serve opposing affidavits.” Rule 56(c).

2 . The district court gave plaintiff the benefit of considering the paperback edition as a separate publication for purposes of the statute of limitations.