KEETON v. HUSTLER MAGAZINE, INC.
Kathy Keeton (Keeton) sued Hustler Magazine, Inc. (Hustler) and several other defendants for libel in the United States District Court for the District of New Hampshire. Keeton alleged that the district court had jurisdiction based on diversity of citizenship since she was a resident of New York and Hustler was an Ohio corporation with its principal place of business in California. Hustler sold 10 to 15 thousand copies of its magazine in New Hampshire each month but Keeton's only connection to New Hampshire was the circulation there of copies of a magazine that she assisted in producing. She chose to sue in New Hampshire because it was the only state in which the statute of limitation for libel six years, the longest in the United States had not run. The district court dismissed the suit on the ground that the due process clause of the Fourteenth Amendment forbade the application of New Hampshire's long-arm statute in order to acquire personal jurisdiction over Hustler. The First Circuit affirmed, finding that Keeton's contacts with New Hampshire were too attenuated for an assertion of personal jurisdiction over Hustler. The Court of Appeals also found the application of the "single publication rule," which would require the court to award Keeton damages caused in all states should she prevail, unfair since most of Keeton's alleged injuries occurred outside of New Hampshire.
Was Hustler's circulation of magazines within the forum state of New Hampshire alone sufficient, without regard to the depth of plaintiff's contacts or the amount of plaintiff's damages caused in New Hampshire, to support an assertion of personal jurisdiction in a libel action based upon the contents of the magazine?
Legal provision: Due Process
Yes. Hustler's regular circulation of magazines in New Hampshire is sufficient to support an assertion of personal jurisdiction in a libel action based on the contents of the magazine. In analyzing whether there are sufficient minimum contacts to permit personal jurisdiction under the Fourteenth Amendment, a court should focus on the relationship among the defendant, the forum, and the litigation. Hustler has continuously and deliberately exploited the New Hampshire market and therefore it must reasonably anticipate being hauled into court there. Keeton did not need to have minimum contacts with the forum state in order for that state to have asserted personal jurisdiction over Hustler. New Hampshire had a sufficient interest in adjudicating the dispute. Moreover, even though most of the harm done to Keeton occurred outside New Hampshire, the same would be true in most libel cases brought anywhere other than plaintiff's state of domicile.
ORAL ARGUMENT BY STEPHEN M. SHAPIRO, ESQ., BY INVITATION OF THE COURT, AS AMICUS CURIAE, IN SUPPORT OF THE JUDGMENT BELOW
Chief Justice Warren E. Burger: We will hear arguments first in Kathy Keeton against Hustler Magazine.
Mr. Grutman, you may proceed whenever you are ready.
Norman Roy Grutman: Mr. Chief Justice, and may it please the Court:
This case presents the question of whether or not the sovereign State of New Hampshire's long-arm statute is to be denied enforcement under the due process clause despite the conduct of Hustler in circulating its magazines in New Hampshire out of which a cause of action for libel arose.
The libel in question was part of a series of unprovoked calumnies and vilifications heaped upon the Plaintiff accusing her of among other things licentious promiscuity and having a venereal disease which in any jurisdiction would be tantamount to libel per se.
The law suit was initially instituted in the state court of Ohio in 1977 where there appeared to be no question about obtaining personal jurisdiction over both Mr. Flynt personally and his magazine.
At the outset of the litigation Ohio specifically applied its own statute of limitations to dismiss the libel claim while upholding the viability of Plaintiff's claim for invasion of privacy.
Relying upon that determination for several years thereafter Plaintiff continued to vigorously prosecute her case in Ohio until on the night before trial was to commence the Ohio trial court reversed itself and applied the New York statute of limitations reparable to the cause of action for invasion of privacy and dismissed the Plaintiff's case entirely out of court.
After the Plaintiff's appeal was affirmed by the Ohio Appellate Court Plaintiff promptly brought a diversity law suit in New Hampshire serving the Defendants under the New Hampshire long-arm statute which the New Hampshire Supreme Court has interpreted as being intended to be extended as far as the Constitution will permit under the due process clause.
The District Court found that while the New Hampshire long-arm statute was satisfied due process forbad entertaining the action and it dismissed it giving two reasons: Plaintiff's lack of connections or contacts with the State of New Hampshire and the alleged lack of New Hampshire's interest in the litigation.
The First Circuit affirmed without disturbing the District Court's evaluation of the Defendant's presence in New Hampshire as regular, systematic and continuous because of the monthly circulation of Hustler seeking to exploit the New Hampshire market place which took place on a continuing basis since 1975.
The reason or the reasoning of the First Circuit in affirming is epitomized in the catchy phrase at the conclusion of its opinion in which it said the New Hampshire tail is too small to wag so large an out of state dog.
The phrase captures what we submit to this Court is the essential misconception of the lower courts in assuming that jurisdiction turns on a little more or a little less of Plaintiff's contacts and damage in the forum overlooking that for 38 years since this Court's opinion in International Shoe the jurisdictional inquiry has always focused on the contacts of the defendant, not the plaintiff.
We submit to the Court that insofar as the assertion that jurisdiction is to be determined there are essentially three levels by which or three tiers by which a determination can be made.
If a defendant by its continuous, systematic process can be said to be doing business then it is dogmatic that general jurisdiction exists in that forum for litigation against that defendant for all kinds of causes of action.
We do not argue in this case that we fall within that rubric.
We submit that synthesizing all of the cases in which this Court has spoken from International Shoe through Mr. Justice White's opinion in World-Wide Volkswagen.
Unidentified Justice: That was the Court's opinion.
Norman Roy Grutman: The Court's opinion written by Mr. Justice White.
The synthesis of those cases holds that where you have purposeful conduct by a defendant directed at the forum in question and out of which conduct the cause of action arises or is generated that satisfies the formula of those minimum contacts which substantial justice and reasonable fair play make it suitable that a defendant should be hailed into that court and be amenable to suit in that jurisdiction.
Unidentified Justice: I am a little surprised, Mr. Grutman.
You do not make much of the Boxite case which came after International Shoe.
You cited in your reply brief but not in--
Norman Roy Grutman: Yes, we do, Your Honor.
The Boxite case as I interpret it has to do with the failure of the defendant who by its waiver to its failure to comply with orders of the court to demonstrate its nonamenability to suit was found by the Court in that case to have subjected itself to a determination that facts could be found against it so that jurisdiction could be properly assessed against that defendant.
Unidentified Justice: --But it certainly bears on World-Wide Volkswagen.
Norman Roy Grutman: I think it does, but I think that Volkswagen in its facts and in the more expansive treatment in the Court's opinion is a case which I think provides the springboard from which the Court can find in this lawsuit that what you have present in this case and what was lacking in Volkswagen.
In Volkswagen you had purely adventitious or fortuitous circumstances by which jurisdiction was asserted against a little automobile dealer in Mesena, New York whose only business was in Mesena, New York and who had no connection with the State of Oklahoma.
Similarly the tri-state regional dealer albeit under the name World-Wide Volkswagen it unlike Hustler in this case in no way for its economic advantage did business in Oklahoma or sold its products in Oklahoma.
As I read what the Court was saying and what your opinion I think pointed to Mr. Justice Blackmun is that you were looking for in the conduct of the defendant willful, purposeful economic activity.
Now that is clearly present in this case as it relates to Hustler because Huslter in the Court's opinion directly or indirectly was responsible on a systematic basis from 1975 for sending copies of its magazines into New Hampshire out of which the record shows they derived substantial economic benefit running into millions of dollars.
That was not one insurance policy which this Court found sufficient in McGee v. International Insurance.
That was a 1957 case and again tracing the sweep of this Court's opinions on jurisdiction starting with the germinal case of International Shoe and running through World-Wide Volkswagen into the Boxite case I think the Court has acknowledged that we are seeing an expansion of jurisdiction since the second World War in recognition of the changing facts of life in American society.
I say that on the second level of analysis which our reply brief attempted to explicate for the Court we believe that we are squarely within the philosophical underpinnings by which this Court has formulated those circumstances in which jurisdiction can properly be laid, and again I say the focus must be on the conduct of the defendant.
Respondent's briefs tend to castigate us by opprobrious references to so-called forum shopping, which, while it is sort of a pungent phrase, seems to lose sight of the fact that it is not the plaintiff that creates the forum, it is the defendant, by his conduct in the forum.
Unidentified Justice: Of course, a nationwide publisher creates a forum, presumably, in almost any state, and I suppose it has always been libel plaintiff's position that they are perfectly at liberty to shop.
Norman Roy Grutman: They are what?
Unidentified Justice: They are perfectly at liberty to shop in that kind of--
Norman Roy Grutman: I think that is absolutely correct, Mr. Justice Rehnquist, because libel is a peculiar kind of a tort, and when we are dealing with media defendants that are nationwide in the scope of the economic activities that they pursue, seeking the benefits of the marketplace nationwide, they have the unique ability of simultaneously creating the harm which the libel causes in all of the places where the publication is disseminated.
Now, the publications have the benefit of the single publication rule.
That is a rule which I think is uniformly recognized throughout the country in which the plaintiff is required to prove all of her damage or all of his damage in whichever forum the case is properly brought, but if one were to look at that from the standpoint of the publisher, what should the publisher do in the event of concern with statutes of limitations or the special niche which this Court has carved out for media defendants in libel cases?
This Court in its decisions beginning with Sullivan and working through Gertz against Welsh in the evolution of the public figure doctrine, has established that the states, so long as they do not create liability without fault, may establish standards which are different.
State A may say that it is gross negligence.
State B may say that it is simple negligence.
State C may say it is the malice standard.
Now, assuming that we have a publication, of whatever nature, whether it is acceptable or presumably reputable, if a harm occurs nationwide, then conscientious and responsible lawyering would require that a plaintiff take cognizance of where it would be most propitious to bring the lawsuit, and in that, I think there is neither shame nor disgrace.
I think that it is an incident of our federal system under the peculiarity which adheres in defamation law.
The submission, may it please the Court, which we make, is that we are squarely within all of your prior holdings.
We are the case which International Volkswagen contemplated with the telling difference to which I have alluded and the argument that I have just made.
The contention is, however, made by respondents that there must be, in order for jurisdiction to be appropriate against an out of state resident in an action such as this, a so-called state's interest.
Unidentified Justice: --Do you understand respondent's contention in that regard to mean something more than just the state of New Hampshire was willing to accept this case in a state court?
I suppose it must, because it is obvious that the state of New Hampshire would have accepted this case.
Norman Roy Grutman: --Precisely.
Unidentified Justice: So it must have a constitutional dimension, the term states--
Norman Roy Grutman: --I think that there is a constitutional dimension, and it could primarily be derived from the fact that an indispensable ingredient of state sovereignty is the right of any state to regulate intentional harm which takes place within the perimeter of its geographical confines, particularly where that harm is not unintentional.
Unidentified Justice: --I meant that I thought the respondent's contention that there must be a state interest had a constitutional dimension to it.
Norman Roy Grutman: Beyond what I have said, I am not prepared to concede that.
Unidentified Justice: Well, no, I don't ask you to; but is that your understanding of respondent's contention?
When they talk about a state's interest, it isn't just a question of what New Hampshire wanted in this situation, but that there are some limits on what New Hampshire can do.
Norman Roy Grutman: I am not really sure that I can agree with that, because I think that takes us into a very murky area, where it would be extremely difficult to predict or to understand what kind of state interest they want.
Perhaps, Mr. Justice Rehnquist, in another kind of a case, in a case in which you have something less than purposeful conduct out of which the cause of action arose, and you were looking to ascertain whether jurisdiction could be affirmed, you would have to find affiliating circumstances with the defendant plus a so-called state interest.
Now, that kind of a state interest, if you look for it in this case, and it is to that to which I address my attention, is demonstrated, as we have set forth in our reply brief, by the fact that New Hampshire in 1971 amended its long arm statute so as to permit the use of that statute for non-residents.
It has interpreted its long arm statute to permit the furthest reach permissible under due process.
In Leaper versus Leaper, which was treated by the First Circuit, New Hampshire said it had an interest in protecting not only its residents but non-residents against just such kinds of harm as are involved in a case like this in libel, and lastly, New Hampshire, expressing as another part of the cluster of its evidences of its interest in this case, has a criminal statute which makes it a misdemeanor if anyone intentionally by falsehood holds someone up to the kind of ridicule, calumny, and obloquy which Mr. Flynt did in this case.
So, if you ask me in this case, because I am not really entirely sure whether the respondents are advocating that there should be a general grab-bag of so-called state interests which are highly amorphous that should be considered at every stage in all cases in the equation of ascertaining if jurisdiction exists or not, that is so far cut of the question, I would prefer for the purposes of the adjudication of this case to confine myself simply to the facts of this case, and to point out that if you are looking for state interest, it is abundantly present in all of the indicia to which I have just alluded.
Unidentified Justice: Well, Mr. Grutman, does that include any actual harm to the plaintiff?
Is that alleged in the state of New Hampshire?
Norman Roy Grutman: Yes.
It is... not only is it alleged, it is conceded by the First Circuit that harm occurred in New Hampshire.
Unidentified Justice: That harm being?
Norman Roy Grutman: The harm occurs in the defamation itself, the negative reputation if she doesn't have a positive reputation.
It is the libel, the accusation, the psychic mayhem, which is what Professor Tribe calls it, of simply disseminating something which is itself a libel.
There is no requirement when you speak of harm, Mr. Justice Brennan, as far as I understand it, that the plaintiff has to demonstrate that she suffered her principal injury or loss in that particular state, so long as some harm occurred there, and the harm by definition under the restatement and under the law of New Hampshire would be the circulation, not necessarily where it was published, but the circulation of something which is libelous.
As I think... forgive me.
Unidentified Justice: It is alleged that this particular issue which involved the petitioner--
Norman Roy Grutman: Yes.
Unidentified Justice: --was circulated?
Norman Roy Grutman: Oh, there is no question about that.
There were a minimum of 10,000 copies that month and every month, and there are five issues which we are concerned with.
You see, this is not an isolated case.
It is a total campaign where this media mogul has simply fastened on Ms. Keeton as an object of his ire, and can decide that he can make money all over the country, but he just doesn't want to be sued in New Hampshire.
Unidentified Justice: Would this apply in Alaska, too?
Norman Roy Grutman: I beg your pardon?
Unidentified Justice: Would it apply in Alaska?
Norman Roy Grutman: It would apply, Mr. Justice Marshall, wherever the magazine was circulated.
It would apply in Honolulu if the publication were circulated there.
It would apply theoretically and, I think, correctly wherever the magazine was circulated, however many copies were circulated.
Unidentified Justice: Just to clarify the point, that would be even if the plaintiff was totally unknown in the jurisdiction before the magazine was circulated?
I think that is correct, Mr. Stevens, so long as Alaska or Hawaii adheres, I believe, to the uniform and universal determination that the tort of libel is perpetrated wherever a defamatory falsehood is circulated.
Wherever a third person reads about it, there is that harm.
What if the publisher had no intention of ever selling any magazines in New Hampshire?
Norman Roy Grutman: A very different case, Mr. Justice White.
Unidentified Justice: I know it is different, but how... what would be--
Norman Roy Grutman: I think that is a case--
Unidentified Justice: --Would the result be different?
Norman Roy Grutman: --It might he different.
It might be different, because in that case you could not say, as you do here, that you have purposeful conduct.
Unidentified Justice: Yes.
Norman Roy Grutman: There you have to look for other... I think your phrase is affiliating circumstances, other connections, judicially cognizable ties--
Unidentified Justice: Is your position that if this case had been brought in the New Hampshire state courts, is it your position that the New Hampshire courts would have been required by the federal Constitution to entertain the suit?
Norman Roy Grutman: --I don't think that is a question that is inherent in the case, but I think that they should have, yes.
Unidentified Justice: And you would say that they would not be entitled just to dismiss the suit?
Norman Roy Grutman: I am not entirely sure of the answer to that question, because that is a state court, and your question postulated a state court.
I believe that because we brought it in federal court, and because of the federal court's unflagging obligation to exercise jurisdiction to its maximum, a federal court could not--
Unidentified Justice: Well, what if you... I suppose you think that the court of appeals held... held that the federal Constitution prohibited New Hampshire from entertaining--
Norman Roy Grutman: --Yes, the federal court would be prohibited.
I am not quite sure of what the answer would be in a state court.
Unidentified Justice: --Well, suppose a state court could have dismissed it without having any problems under the Constitution.
Norman Roy Grutman: Yes--
Unidentified Justice: Could a federal court sitting in that district also dismiss it for the same reason that the--
Norman Roy Grutman: --I do not think so, because the requirements--
Unidentified Justice: --Why not?
Norman Roy Grutman: --Because the requirement--
Unidentified Justice: You couldn't say it's a constitutional problem.
Otherwise, the state would have to entertain it.
Norman Roy Grutman: --Mr. Justice White, I am not sure of the answer to this question.
I have pondered the question.
I think there is a difference between what a state and a federal court could do.
Unidentified Justice: Aren't you claiming, though, that the district court was required to entertain it by the Constitution?
Norman Roy Grutman: Yes, I am.
Unidentified Justice: But you don't have to go that far.
Norman Roy Grutman: Perhaps I don't have to, Mr. Justice Rehnquist.
Unidentified Justice: All you have to prove, really, is that New Hampshire would have entertained it, could have under the Constitution, and this was a federal court sitting in diversity.
Norman Roy Grutman: Exactly.
And because of New Hampshire's statement about its intention of what should be done, namely, that New Hampshire would have taken this case, the district court said that the New Hampshire court would have taken this case if it was a New Hampshire resident.
Unidentified Justice: Well, you do have to... you do have to, though, say that... you do have to say that the Constitution would not have forbidden New Hampshire to entertain--
Norman Roy Grutman: No, I don't think you can force jurisdiction on a state, on a state court, and as again I pointed out, I think there is a very big difference between state courts and federal courts and their obligations.
Unidentified Justice: --Yes, but you have to say that... you have to say that the constitutional holding of the court below was wrong.
You do have to do that.
Norman Roy Grutman: Would you repeat that for me, please, Mr. Justice White?
I didn't hear you.
Unidentified Justice: Well, the court below held that the Constitution forbad.
Norman Roy Grutman: Yes.
Unidentified Justice: You have to overturn that.
Norman Roy Grutman: Yes, I do.
Unidentified Justice: You have to win on that issue.
Norman Roy Grutman: I think I do, and the reason I think I do is because the court's perception of which end of the scope to look through was just backwards.
Unidentified Justice: Well, Mr. Grutman, I understood in part of your colloquy with Justice White, that you think our cases support the proposition that a federal court in a situation like that may have an obligation to take jurisdiction even where the state court doesn't.
I am at a loss to know why that would be in a diversity case.
Norman Roy Grutman: Because I think the obligation which the federal rules require is that a federal court cannot substitute an alternate basis of its own determination which runs contrary to what the state has said, and New Hampshire has said it would take this case.
Unidentified Justice: But diversity is not a constitutional principle.
Norman Roy Grutman: I beg--
Unidentified Justice: Is it?
Norman Roy Grutman: --Which is not a--
Unidentified Justice: Diversity is judicial--
Norman Roy Grutman: --That is correct.
Unidentified Justice: --and not constitutional.
Norman Roy Grutman: That is correct.
Unidentified Justice: Well, how does that put a constitutional burden on somebody?
Norman Roy Grutman: Because once you have diversity, and you have a demonstration--
Unidentified Justice: Well, the only diversity here is that this person has never been in New Hampshire.
Norman Roy Grutman: --Nor had Mr. Flynt been there, but the publication was there, the publication--
Unidentified Justice: I am not talking about any case but this one.
Norman Roy Grutman: --All right.
Unidentified Justice: And you say that she could file case in New Hampshire if she were a citizen.
Norman Roy Grutman: That is what the district court said.
Unidentified Justice: Do you agree with that?
Norman Roy Grutman: No.
Do I believe that she should have been able to?
Yes, except the only disagreement--
Unidentified Justice: Except that she wasn't.
Norman Roy Grutman: --My disagreement is--
Unidentified Justice: So what's that got to do with this case?
Norman Roy Grutman: --It has to do with the fact that there's a discrimination that is being practiced upon a non-resident.
They are saying, although the legislature--
Unidentified Justice: Well, doesn't diversity automatically discriminate?
Norman Roy Grutman: --I think diversity makes for jurisdiction in the federal court.
It is the sine qua non for diversity jurisdiction.
But in a state court, which is where I think we were speaking of, if this case had been brought in the state court, the district court said that New Hampshire would undoubtedly have entertained the case.
Now, because Ms. Keeton was not a New Hampshire plaintiff, a discrimination was practiced against her that finds no support in the New Hampshire decision or in the New Hampshire legislation in which she was deprived of her right to that forum, and while the due process argument is raised against her, I think that is an argument that she could raise on her own behalf along with equal protection.
Unidentified Justice: I have one more question.
Norman Roy Grutman: Yes, sir.
Unidentified Justice: Could she have filed 50 lawsuits?
Norman Roy Grutman: No, she could not, because the single publication rule requires that the plaintiff make an election of that jurisdiction in which she intends to make a claim not only for the harm that occurred in the jurisdiction where she properly brings suit, but for the harm that has occurred wherever the libel has been perpetrated.
Unidentified Justice: And her damages would be the damages to her reputation in New Hampshire?
Norman Roy Grutman: No, they would not.
The damages that she would be entitled to prove in New Hampshire would not be restricted simply to those that were sustained in New Hampshire, but would embrace all of the damages that she had suffered wherever it had occurred.
Unidentified Justice: Including Alaska and Hawaii?
Norman Roy Grutman: Including Alaska, Hawaii, Kampchatga and Tobago, wherever.
Unidentified Justice: Guam?
Norman Roy Grutman: --Pardon, Your Honor?
Unidentified Justice: Why don't you go to Guam while you're at it?
Norman Roy Grutman: Anywhere, Your Honor.
Wherever they occur, she has to bring that to that forum.
Why did she go to Ne Hampshire is obvious, because it was the only remaining jurisdiction in which suit could have been brought.
It was the only statute of limitations that was still viable.
Unidentified Justice: New Hampshire couldn't give remedy for any injury except that which occurred in Ne Hampshire?
Norman Roy Grutman: I disagree, Mr. Justice White.
Unidentified Justice: You just said--
Norman Roy Grutman: --The damages worldwide become--
Unidentified Justice: --In the New Hampshire suit, you could recover.
Norman Roy Grutman: --In the New Hampshire suit, the damages sustained wherever they occur is proof that is to be brought in the New Hampshire action.
Unidentified Justice: Of course, while you say that, you are in effect making an end run around the statute of limitations in all other jurisdictions.
Norman Roy Grutman: That may be a by-product, or that may be a fact, but I do not think because we are a federal system, Mr. Justice Blackmun, I do not think that because we are a federal system, where the statutes of limitations in the 50 states may vary, that as soon as the earliest statute expires, that all of the others simultaneously are extinguished.
Insofar as New Hampshire is--
Unidentified Justice: That isn't what I am asking, but is that one extinguished, the one that has expired?
Is that one extinguished even in New Hampshire?
Norman Roy Grutman: --No, it was not extinguished at the time.
Unidentified Justice: That is your position, and of course I suppose one could take the other position.
Norman Roy Grutman: I think not.
It is unquestionable that at the time this lawsuit was brought, the legislature of New Hampshire had allowed, I believe, a six-year period in which libel actions could be brought before it, and we were within the New Hampshire statute of limitations.
I think it is desirable--
Unidentified Justice: May I ask another question?
Norman Roy Grutman: --Certainly.
Unidentified Justice: The... In the red brief, they take the position that the issue is different as to the corporate publisher and the individual defendant and the parent.
Norman Roy Grutman: That is another case for this morning, Mr. Justice Stevens.
But it raises a point which I think bears mention in this case.
Unidentified Justice: --Well, it is this case.
It is this case.
Jurisdiction over Larry Flynt in--
Norman Roy Grutman: Exactly.
The problem there was that because the district court decided that it didn't have jurisdiction over the publication, it never considered whether it had jurisdiction over the corporation or Mr. Flynt personally, and we were deprived of the opportunity of establishing the record, which I submit responsively we could demonstrate that we will be able to do if on remand we can flesh out the record and demonstrate that--
Unidentified Justice: --Well, but in the trial court, was not jurisdiction overall all three parties challenged?
Norman Roy Grutman: --In which--
Unidentified Justice: In the district court.
Didn't they challenge jurisdiction over all three?
Norman Roy Grutman: --They did, but the district court never considered--
Unidentified Justice: Why didn't you--
Norman Roy Grutman: --The district court said, inasmuch as they are making a determination that there is no jurisdiction over the publication, that will lump together Flynt and the corporation, and we don't thin that that is correct, because the jurisdictional equation must be separately applied to each defendant and that wasn't done in the district court.
Unidentified Justice: --But you had an opportunity to make whatever record you need to as to the other two--
Norman Roy Grutman: No, we did not fully.
I will develop that in my rebuttal, since I notice that my time has presently expired.
Chief Justice Warren E. Burger: Mr. Shapiro.
Stephen M. Shapiro: Thank you, Mr. Chief Justice, and may it please the Court.
My submission as amicus curiae is that the court of appeals correctly applied the due process clause to prevent the forum shopping attempted by plaintiff.
Forum shopping in multi-state defamation cases poses a very real danger to the values of our federal system.
It permits a plaintiff who sleeps on her rights to sue in any state which has the longest statute of limitations, effectively making that statute nationwide and scope and overriding the policies of the other states having a paramount interest in the parties and in the litigation.
This case vividly illustrates that danger.
Unidentified Justice: You say the other states, the other states have a paramount interest in the parties?
Stephen M. Shapiro: --In the parties, Mr. Chief Justice.
That would be--
Unidentified Justice: That seems to negate what you started out with.
Stephen M. Shapiro: --The states that have the paramount interest are New York and Ohio, the states of residence, and also those are the states where the damage from the libel principally occurred.
We say these are the states with a paramount interest, and these are the states where the statute of limitations had expired.
Unidentified Justice: Mr. Shapiro, would not the Ne Hampshire court have the authority if it found jurisdiction to apply the statute of limitations of the other states with respect to the recovery?
Stephen M. Shapiro: One would think that the court should do such a thing, and that it would be reasonable to do so, but the law in New Hampshire is that the statute of limitations is procedural in nature, and that the court therefore applies its own local statute of limitations, bringing back to life a tort action that is dead in the other 49 states where 99 percent of the damages actually arose.
Unidentified Justice: Mr. Shapiro, if your concern is with what you feel to be manipulation of statutes of limitations, it seems to me that is not a jurisdictional argument.
That is perhaps an argument over choice of law, maybe constitutionally mandated choice of law.
Stephen M. Shapiro: We submit that the choice of the forum here for the purpose of escaping the statute of limitations in the 49 other states is indeed a jurisdictional matter, because it implicates the interests of the other 49 states, which is one of the very most fundamental concerns of the due process clause, and imposes burdens on the party and the judicial system that are unreasonable burdens, which is the other leg of the due process analysis.
Unidentified Justice: Mr. Shapiro, this argument doesn't dispose of the case, because you still have got New Hampshire left.
Stephen M. Shapiro: The suit in New Hampshire has been dismissed.
There was a--
Unidentified Justice: Well, I know, but your argument would say New Hampshire couldn't give a remedy for injuries that have already barred somewhere else, but how about the injury in New Hampshire?
Stephen M. Shapiro: --Well, that--
Unidentified Justice: You still have to make that argument.
Stephen M. Shapiro: --We don't have to make that argument for this reason.
This suit is not focused on damages in New Hampshire.
It is focused on damages throughout the entire United States.
Unidentified Justice: Well, it may be, but your argument would only say... would only refer to the injuries outside of New Hampshire, the argument that you have made so far.
Stephen M. Shapiro: If this case was filed in New Hampshire just for New Hampshire damages, it would present a very different issue--
Unidentified Justice: How do we know that she will not be able to prove damages in New Hampshire?
You seem to take that as an assumption, that she can't.
Stephen M. Shapiro: --We take that as a finding of the district court, that she had no reputation of any sort in the jurisdiction.
She was a virtual unknown in the jurisdiction.
She had never lived there, never owned any property there, had virtually no ties with the forum.
If she did--
Unidentified Justice: That may be, but suppose there was proof of it.
Your argument would not forbid New Hampshire to give a remedy for that.
Stephen M. Shapiro: --Not necessarily.
I say that is a closer question, because it still has elements of inconvenience.
There still is a question about the palpability of the state's interest.
Unidentified Justice: I know, but the holding that you are seemingly defending is that the Constitution of the United States prevented the district court from entertaining this suit even if, as I understand it, there was damage in New Hampshire.
Stephen M. Shapiro: That's correct, because the purpose of this lawsuit is to recover damages in all 50 states.
Unidentified Justice: You haven't answered that one yet.
Stephen M. Shapiro: If the suit was focused solely on damages in the state of New Hampshire, we say it would be a different case, and it may be--
Unidentified Justice: Well, it may be different, but what would the result be jurisdictionally?
Stephen M. Shapiro: --I say that that is a fence sitter for this reason.
You would not be trampling--
Unidentified Justice: Well, which side are you going to fall off of?
Stephen M. Shapiro: --I would submit in that case that there may well be jurisdiction over that particular limited cause of action, although it is not at all clear, because the lack of state interest and the inconvenience to the parties is present.
Unidentified Justice: Well, I know, but aren't there allegations here of injury in the state of New Hampshire?
Stephen M. Shapiro: There is nothing but a general allegation of $80 million in damages throughout the United States.
Nothing is focused on the state of Ne Hampshire.
Unidentified Justice: Well, I know, but he might prove it whenever he had a chance to prove it.
Stephen M. Shapiro: Well, there were affidavits submitted, Your Honor, in the district court.
Unidentified Justice: I know, but there has been no ruling on it.
That is a... They dismissed the case, dismissed the case for lack of jurisdiction.
Everything has to be resolved against affidavits at this point, because they have never had an opportunity to put in their proof.
Stephen M. Shapiro: It is the plaintiff's burden to show that the state of New Hampshire had an interest in this cause of action that was filed in this jurisdiction, and there is another lack of evidence, affidavits, arguments in the briefs to that effect.
Unidentified Justice: Well, maybe she can prove it if she has her day in court, and if that happens, the federal court might decide, agreeing with you, that the damages could be only the damages suffered in the state of New Hampshire.
Stephen M. Shapiro: I would submit to Your Honor that that would be inconsistent first with the single publication rule, which says that you have to subsume all of your damages in a single piece of litigation.
It is inconsistent with the theory of this complaint, which is seeking $80 million in damages for nationwide injury.
Unidentified Justice: That may be, but the judgment you are defending, the judgment you are defending here is that there is no jurisdiction in the district court because of the federal Constitution to hear even a case about damages in New Hampshire.
Stephen M. Shapiro: We disagree, Your Honor, with that interpretation.
The essence of this holding is that this suit is intended--
Unidentified Justice: Well, what if we don't agree with you.
What if we don't agree with you?
What are we going to do about the district court's constitutional holding that there could not be a suit in New Hampshire for New Hampshire damages?
Stephen M. Shapiro: --I would suggest to you, Your Honor, that that is simply not the holding in this case.
If another pleading were filed that focused in exclusively on injuries in New Hampshire, that question would be presented, but that--
Unidentified Justice: Say it focused on both, clearly both.
Say any fool reading it would know it focused on both.
Stephen M. Shapiro: --Well, in that situation, if the Court were disposed to look at the case as one seeking both 1 percent of the damages in New Hampshire and 90 percent of the damages in other jurisdictions, if the Court were to do that, the correct constitutional result would he that only that 1 percent of the damages in the local jurisdiction could be collected, because collection of the 99 percent from the rest of the jurisdictions would infringe the statute of limitations in those states.
Unidentified Justice: But that is not a reason for dismissing the whole suit.
You say that they are seeking nationwide damages, and perhaps they might recover New Hampshire damages only, but certainly New Hampshire is one of the 50 states, and it is part of the nation, and so that when they seek nationwide damages, it probably includes some small segment that happened in New Hampshire.
Stephen M. Shapiro: Well, I would submit that if the Court wore disposed to redraft the complaint in this manner to make it a New Hampshire damage proceeding, and to remand with the opinion stating that only damages in that jurisdiction are constitutionally collectible, that perhaps would be a constitutionally permissible result, but it would require a reformulation of the complaint, a reformulation of the--
Unidentified Justice: It would also require reversing the district court's jurisdictional holding, and which I take it you would think we should do, if it were just strictly a New Hampshire suit.
Stephen M. Shapiro: --I said initially that I thought that that was a much closer case.
I am not persuaded that even that case is one that is within the constitutional power of the district court.
Unidentified Justice: You are still on the case.
You are still on the case.
Stephen M. Shapiro: In light of the Court's analysis of this question and discussion of the question, it is perhaps worth focusing on a little more.
I am very doubtful about the constitutionality of even that localized proceeding, even though that hasn't been briefed, even though that is not the nature of the complaint, and even though that isn't the argument of my brother, Mr. Grutman.
I am doubtful about it because the parties still have a most indirect and tenuous connection with this forum.
There is a very substantial burden o them.
I don't think that the state of New Hampshire--
Unidentified Justice: Mr. Shapiro, you say the parties have a very indirect and tenuous connection with this forum.
Let's take the defendant.
The defendant, as I understand it, sent to New Hampshire six, eight, 10,000 copies of the magazine each month.
How can you call that an indirect and tenuous connection?
Stephen M. Shapiro: --Those copies, by the way, Mr. Justice, were sent through an independent distributor in Connecticut--
Unidentified Justice: Well, do you think that--
Stephen M. Shapiro: --were sold by independent retailers and wholesalers in the state of Connecticut.
Unidentified Justice: --Don't you think the corporate defendant intended that to happen?
Stephen M. Shapiro: There is no doubt that he did, and that there is some connection with the forum state.
I don't dispute that.
However, both of the courts below correctly characterized it as a tenuous and a spars connection.
Unidentified Justice: Why is that either... why is that correct?
Stephen M. Shapiro: Because it is... there is no presence of property in the jurisdiction.
There is no agent in the jurisdiction.
There is merely selling products in the jurisdiction, like the rest of the 50 states in the United States, and to say that this is a substantial continuous presence is to say, as Mr. Grutman did, that this company is present everywhere, and that the plaintiff can pick and choose among the 50 states and sue in Hawaii or sue in Alaska.
Unidentified Justice: If the corporate defendant chooses to publish hundreds of thousands of copies of a magazine and libel somebody in it, it is present everywhere.
Stephen M. Shapiro: The answer is, Mr. Justice, that we are talking about the selection of a reasonable forum to litigate this particular dispute, and that requires consideration of the location of the parties.
It requires a consideration of the interests of the other states in the federal system, and to permit this lawsuit, which seeks recovery of $80 million for damage throughout the country to proceed, runs roughshod over the policies of the other states in the Union.
Unidentified Justice: Maybe they won't be able to make the proof for the other 49 states, and how does this Court concern itself with that problem at this stage, before there has been any evidence and before there has been any trial?
Stephen M. Shapiro: I think the Court has to take the complaint the way it is drafted as a nationwide libel complaint and not a complaint for damages in the state of New Hampshire.
Unidentified Justice: People don't always get everything that they ask for in a complaint, do they?
Stephen M. Shapiro: Well, as I said, Mr. Chief Justice, I am even doubtful about the constitutional validity of sustaining this merely as a proceeding to collect damages in the state of New Hampshire, in light of the burdens on the parties that would be produced by this sort of forum shopping, by the lack of direct state interest compared to the interests of New York and Ohio, and by the other factors that this Court mentioned in the Volkswagen case, which I would like to enumerate.
Unidentified Justice: Mr. Shapiro, I am afraid we are no giving you much chance to argue your case, but you suggest that the plaintiff has little or no interest because she may not have been known in New Hampshire but let's assume that she was not known at all therefore had no favorable reputation there.
Is it no possible that after these publications, she had a ba reputation in New Hampshire?
Stephen M. Shapiro: Well, I would submit that compared to the interests of the states with predominant, or, I say, paramount interest in the suit the state of domicile of the plaintiff and the state o domicile for the defendants who committed this allege wrong, that any such interest is a very abstract interest.
Unidentified Justice: Doesn't the state have an interest in protecting the name of a person who receives the sort of publicity this individual has received in New Hampshire, even though she was totally unknown before?
Stephen M. Shapiro: We think that that interest, although it is possible to articulate it, is not a sufficiently substantial interest to permit this overriding of the statutes of limitations in the 49 other states, including the state of domicile and the state where the damage occurred.
Now, undoubtedly it is true that a completely unknown person who has unflattering things said about them in the jurisdiction would experience some discomfort about this.
It is something that they don't want to occur.
But if you compare that interest to the interest of the state of New York, where she lived, had her reputation, had her professional relations and ties, that is the state which traditionally under common law principles is perceived as the state that has the paramount interest in a multi-state defamation action.
There is a body of law on this subject.
It is not just a matter of inferences about what the most reasonable forum is.
According to the restatement of conflicts, the states that have a real palpable interest in a multi-state defamation proceeding are the state where the plaintiff lives, the state, if there is another state, where she has a more well established reputation, such as the state where she works, the domicile of the defendant, because the state is responsible for the conduct of local residents, and the principal place of business of the defendant.
These are the logical focuses of a multi-state defamation case, and to say that the plaintiff is privileged to simply sue in Alaska or Hawaii or any other state in the Union without regard to the convenience of the parties, without regard to where the witnesses come from, which is here in New York and Ohio, and without regard to the needs of the judicial system, where a jury and a judge would have to sit through an extensive trial--
Unidentified Justice: Well, Mr. Shapiro, wouldn't you--
Stephen M. Shapiro: --is to invite forum shopping on the grandest scale.
Unidentified Justice: --Wouldn't you normally take care of that under the forum non-convenience doctrine, assuming that it were in a federal court and several jurisdictions were available?
It just simply isn't an option here because the statute of limitations has expired.
Stephen M. Shapiro: That's correct.
Unidentified Justice: But isn't that how you would normally take care of those concerns?
Stephen M. Shapiro: I believe, Justice O'Connor, that this 1401(a), the forum non-convenience statute, has been traditionally held and consistently held not to even come into play unless personal jurisdiction is established in the forum, and here we say the choice of forum is so unreasonable and the burdens are so great and the disregard of the interests of the other states and the convenience of the witnesses is so great that the forum is a constitutionally deficient forum initially, and that you can't simply transfer a case under Section 1404.
It has to be dismissed.
And one of the undesirable consequences of simply permitting a transfer under 1404 would be that it would permit forum shopping with a vengeance.
The plaintiff would file the suit in the state with the longest statute of limitations, and then simply have the case transferred back to her place of residence, and get the benefit of the longer statute of limitations.
Unidentified Justice: Mr. Shapiro, you used the term forum shopping several times, and you speak of it rather opprobriously, as perhaps you have a right to, but there is no general constitutional provision against forum shopping, if you mean by that that the plaintiff chooses the forum in which it can get jurisdiction over the defendant in the most favorable terms to it.
Stephen M. Shapiro: We think the Constitution says something in addition to this, and that is that the forum has to be a reasonable and a fair forum from the point of view of all the parties, and from the point of view of the other states in the federal system.
There are two things that the due process clause guarantees, a fair forum for the parties and the witnesses, and a forum which is reasonable in light of the needs of the other 49 states in the Union.
These are the factors.
Unidentified Justice: Mr. Shapiro, may I interrupt you on that point?
Supposing this suit had been brought promptly after... within six months of the libel, so that the statute of limitations had not run in other states.
Would you still argue that New Hampshire had no constitutional power to entertain the suit?
Stephen M. Shapiro: Again, that is a closer question.
I am not sure I can give the correct answer to you, but it would certainly remove this element of trampling on the statute of limitations of the 49 other states.
That would be gone.
But it would still be an extremely inconvenient forum.
The defendants, the witnesses are all domiciled in other states.
The defendant is an individual paraplegic living in the state of California.
Highly inconvenient for them.
And it is inconvenient, we say, for the federal judiciary, too, to require a local court and a local jury to entertain a case such as this, an extended proceeding in which there is no palpable local concern, and this is a factor that the courts mention.
Unidentified Justice: Well, are you then arguing that the only constitutionally permissible forum was Ohio or New York?
Stephen M. Shapiro: That is essentially correct.
The state of plaintiff's residence is constitutionally permissible.
The state of Ohio, which was the place of business and the domicile of the defendants, would be constitutionally permissible under all circumstances, and the principal place of business, if there was one.
Unidentified Justice: Would you make the same argument even if most of the magazines were circulated in some third state, say, California or Illinois?
Stephen M. Shapiro: Yes, yes, we would.
The restatement... I would refer the Court to th restatement, Section 150, which has a very good discussion of which states really do have a palpable interest in a multi-state defamation case, and the place where the plaintiff lives, not only because that is convenient, but because that is a state that really has an interest in the outcome, and the state where the defendant resides, and the state where the defendant has principal place of business.
There is an additional state occasionally if the plaintiff works in another state and her reputation is better developed in that forum.
That would be a reasonable selection of forum in this instance, too.
Unidentified Justice: Mr. Shapiro, would you help me on one respect?
You referred a while ago to New Hampshire's statute of limitations situation as a procedural matter.
Stephen M. Shapiro: Yes, Your Honor.
Unidentified Justice: There was an action in Ohio in this litigation, and dismissed because the Ohio court applied the New York statute of limitations.
Is that procedural in Ohio or substantive?
Stephen M. Shapiro: The court treated it as substantive because it was a special statutory cause of action, and the statute of limitations was a precondition to the existence of the cause of action.
That is why it was treated as a migratory matter.
Unidentified Justice: If it is substantive, could you argue that the case is res judicata?
Stephen M. Shapiro: --It refers, I think, to a different cause of action.
It is the cause of action for privacy, whereas this is a cause of action for libel, and they have been treated as separate and independent causes of action, so I wouldn't press the res judicata argument.
Unidentified Justice: Maybe I missed it, but do you agree that it could have been filed only for the damages in New Hampshire?
Stephen M. Shapiro: I am very doubtful about that, although I say it is a closer question, and this--
Unidentified Justice: My problem is, how can we rule on all the multiple states if they would have jurisdiction there?
The only thing the multiple states would do would go to the damages.
Stephen M. Shapiro: --We--
Unidentified Justice: Am I right?
Stephen M. Shapiro: --Initially, Your Honor, I think if the Court were disposed to look at the case that way, if it were to say in the opinion that damages are restricted to the forum, which has a connection with the parties, that would be a substantial contribution to this body of law, and it would be a significant holding, but if... our position still is that even if it was restricted to damages in the state of New Hampshire, that there are very serious constitutional questions about even that, because it is such an unreasonable choice of forum from the point of view of the parties who live in Ohio and California and New York--
Unidentified Justice: Well, is forum non-convenience a constitutional point?
Stephen M. Shapiro: --When it becomes as egregious as this--
Unidentified Justice: How could it be?
Stephen M. Shapiro: --Well, this Court has said the balance of inconvenience--
Unidentified Justice: Which section of the Constitution does it--
Stephen M. Shapiro: --Due process clause, Fifth Amendment.
That if the balance of inconvenience is sufficiently severe--
Unidentified Justice: --In a civil case?
Stephen M. Shapiro: --Yes.
The International Shoe case.
If the balance of inconvenience and the choice of forum with respect to the interests of all the states is sufficiently unreasonable, it is a due process violation.
Unidentified Justice: But haven't all of our minimum contacts cases come up out of state courts, or have some of them come from federal courts?
Stephen M. Shapiro: Many of these cases... in this Court only from state courts, but the federal court sits as a state court in diversity.
It applies as state law non-statute, and the same constitutional due process provisions apply to the federal court when it sits as a state court in diversity.
Unidentified Justice: Are you as confident of your answer as you sound?
Stephen M. Shapiro: Yes.
I have read--
Unidentified Justice: But no case from this Court supports that proposition.
Stephen M. Shapiro: --Simply because I don't think a diversity case has reached this Court that presents this problem, but I believe it is unanimously accepted in the lower courts that the federal court sits as a state tribunal applying the state long arm statute.
Unidentified Justice: You see, in some... if you are out of the diversity field of... you may have nationwide service of process in some cases--
Stephen M. Shapiro: Oh, yes.
Unidentified Justice: --that may make it much easier to try a case in federal court than in the corresponding state court.
Stephen M. Shapiro: Absolutely.
When Congress acts... enacts a special jurisdictional statute that expands service in a securities case or an antitrust case, that is a different matter.
In this case the district court sitting in diversity just applies the state long arm statute.
There is no other provision conferring more expansive jurisdiction coming from Congress.
That is the essence of the holdings that I referred Your Honor to.
Unidentified Justice: It would be a waste of time if we spend all our time and decide this case on diversity, and then next year Congress gives up diversity?
Stephen M. Shapiro: That is a possibility, of course, that Congress may--
Unidentified Justice: It sort of shows that it really is a constitutional point.
Stephen M. Shapiro: --I believe it is a constitutional point.
I would like, if I may, to refer to the factors that this Court has said are dispositive in deciding whether personal jurisdiction is appropriate in a case such as this.
Unidentified Justice: Mr. Shapiro, before you do, I may have... perhaps I missed it, but if the suit hadn't been barred in Ohio and had gone forward, but it was barred everywhere else--
Stephen M. Shapiro: Yes.
Unidentified Justice: --have you said, could the recovery be nationwide then?
Stephen M. Shapiro: Yes, it could, and the reason for that, Your Honor, is that that is a state that has a paramount interest in the litigation.
Unidentified Justice: But you wouldn't say then--
Stephen M. Shapiro: It would stop the tail from wagging the dog.
Unidentified Justice: --You wouldn't say then that there was some effort to run around the statute of limitations of all the other states?
Stephen M. Shapiro: We make no such contention.
If a constitutionally reasonable forum is selected, then we have no trouble with the single publication rule, and damages can be awarded for the entire nation.
Unidentified Justice: Thank you.
Stephen M. Shapiro: The factors that this Court has mentioned in its recent decisions are the forum's interest in deciding the dispute, the burden on the defendant, the plaintiff's interest in convenient relief, the judicial system's interest in efficient disposition of suits, and the shared interests of all of the states in efficient application of their own substantive policies.
And we submit that each of these factors weighs very heavily against the choice of forum in this particular case.
The burden here on the defendants is a very substantial one.
The defendants were all domiciled and had their place of business in Ohio.
The individual defendant is a paraplegic, residing in the state of California, and as the uncontradicted affidavits show, all of the evidence for the defense must come from New York, California, and Ohio.
None of it comes from the state of New Hampshire.
And these persons aren't even within the subpoena power of the New Hampshire court.
Unidentified Justice: Are you suggesting the difficulty of traveling to New Hampshire for the trial of the case because of some disability?
Stephen M. Shapiro: This is a factor to be weighed.
Justice Brennan has made the point in a number of his opinions that litigation involves real people with differences, and this man is confined to a wheelchair, and is under continuous medical care, which makes traveling across the country for an extended trial in another jurisdiction a very significant burden.
Unidentified Justice: You distinguish the travel across the country for a trial from the travel to Washington for a similar purpose?
Stephen M. Shapiro: I do indeed.
An extended trial in an $80 million cause of action is a very substantial and grueling ordeal.
The plaintiff is, of course, entitled to seek convenient relief.
The trouble here is that she is seeking inconvenient relief from the point of view of everybody concerned.
It is inconvenient from her point of view.
This isn't her home.
It is inconvenient from the point of view of each of the defendants.
It is inconvenient from the point of view of each of the witnesses.
And it is grossly inconvenient from the point of view of the local court and the local jury that would be required to devote their own scarce time to resolve this stale controversy, in which neither they nor their neighbors have any palpable interest.
And in our view, the state of New Hampshire's interest in this litigation--
Unidentified Justice: Well, let me inquire there.
Just a minute, Mr. Shapiro.
You say, in which they have no interest.
Doesn't everyone of the 200 and some million people in this country have an interest when someone else is damaged and injured, if they can show that they have been?
Stephen M. Shapiro: --We think not, Your Honor.
As this Court--
Unidentified Justice: You mean, all the rest of the people are totally indifferent?
Stephen M. Shapiro: --The states are not keepers of the residents of other states, as this Court held in Mite against Edgar.
The state's interest is in protecting its own residents, and this is the--
Unidentified Justice: Yes, but under that argument, they should not have extended their long arm... the benefits of the long arm statute to non-residents.
Stephen M. Shapiro: --And indeed, we don't think that they have.
If the Court looks at the opinions that Mr. Grutman has cited, the Leeper case and the Roy case, you will see that the New Hampshire court applies the very same analysis that we are talking about here.
There has to be a palpable state interest, and there is a prohibition against forum shopping under this very statute.
They apply the same constitutional principles that we are relying on here.
Unidentified Justice: But the court of appeals and the district court were against you on that point of New Hampshire law.
They said New Hampshire would have entertained this suit.
Stephen M. Shapiro: What they said is that New Hampshire applies the same due process test that this Court has to apply.
They didn't say one way or the other whether the state would fit this within the literal language of the provision, although I... correct that.
They did say that there is some doing business here, but under the statute as interpreted in New Hampshire you have to weigh the palpability of the local state interest and you have to determine whether there is forum shopping going on.
I have very little doubt that the state of New Hampshire would do with this case precisely what the district court did.
That is, to dismiss it.
Plaintiff doesn't get much argument... support for the argument that she is presenting here with the theory that the tort took place in New Hampshire.
This is, of course, the keystone of her submission.
This argument is too abstract to be helpful in a case that involves a defamation in 50 different states.
If the tort took place in New Hampshire, it also took place in Alaska, and in Hawaii, and in every other state.
Unidentified Justice: Well, if I put together a defective locomotive and run it through 50 states and it does harm in each of the 50 states, a tort has occurred in all 50 states.
If someone publishes a libel and circulates it in 50 states, presumably harm has occurred in all 50 states.
That is the choice of the publisher.
Stephen M. Shapiro: Well, this defective product exploded, if you will, in the state of New York.
It didn't explode in 50 different states.
That, we submit, is just a jurisdictional fiction.
Practical questions of federalism don't just disappear by saying the tort took place everywhere and therefore the plaintiff can forum shop throughout the whole country and pick the most inconvenient place in the whole nation, which is a burden on the court and the witnesses and which runs roughshod over the policies of the other 50 states.
It is simply too facile to say that this tort took place everywhere without regard to which states really had the paramount interest in the controversy, which is New York and Ohio and not New Hampshire, and not Alaska, and not Hawaii.
Unidentified Justice: What you are saying is that jurisdiction should not follow injury.
Stephen M. Shapiro: We say that in a multistate defamation case where there is an argument that a little bit of injury occurred throughout the whole country, you have to look beyond that analysis.
Unidentified Justice: Where do we get the statement... what is the support for your statement that a little injury occurred all over the country?
Stephen M. Shapiro: Because my--
Unidentified Justice: Would that be the allegation of the complaint?
Stephen M. Shapiro: --The proof before the district court was that 99 percent of these magazines were circulated in other states, and that the plaintiff had never been in the state of New Hampshire and was not known in the state of New Hampshire.
She worked and lived in New York, and that is where the brunt of this tort fell.
We are not saying, of course, that the due process clause imposes technical or restrictive requirements on plaintiff.
There is no argument here that the plaintiff didn't know that she had been libeled in 1975--
Unidentified Justice: Your position is that the multiple complaint can be filed in only two states, where the defendant is or where the plaintiff is.
Is that your position?
Stephen M. Shapiro: --It may be a bit broader than that.
It's plaintiff's residence, defendant's residence, defendant's principal place of business--
Unidentified Justice: Well, then you don't have a multiple state action, do you?
Stephen M. Shapiro: --And in each of these states you could have a proceeding to collect damages everywhere.
Unidentified Justice: You just want the whole... you want the whole system thrown out, of multiple action.
Stephen M. Shapiro: We are quite content with the single publication rule.
It is just, it has to be applied in a constitutionally reasonable forum, not a forum pulled out of a hat for the purpose of getting the longest statute of limitations in the entire nation.
Unidentified Justice: Well, you can prove damages in any state?
Stephen M. Shapiro: The plaintiff, under the single publication rule, has to prove all of her damages in whatever state she picks.
Unidentified Justice: Right.
Stephen M. Shapiro: And we say that that--
Unidentified Justice: In any.
In all 50 states--
Stephen M. Shapiro: --All 50 states.
That's the rule.
Unidentified Justice: --she can prove damages.
Stephen M. Shapiro: Yes, and that is why it is so important--
Unidentified Justice: But wouldn't that require witnesses?
Stephen M. Shapiro: --If she picks a constitutionally reasonable forum, she can then collect damages for the entire country.
Unidentified Justice: You are just against forum shopping.
Stephen M. Shapiro: You are right, Mr. Justice.
I am against forum shopping.
Unidentified Justice: It is awful late.
It is awful late in the game.
Stephen M. Shapiro: And we read this Court's decisions to prohibit forum shopping when there is not a reasonable selection of forum in light of the burdens to the parties and the interests of the 50 states.
Chief Justice Warren E. Burger: Do you have anything further, Mr. Grutman?
ORAL ARGUMENT OF NORMAN ROY GRUTMAN, ESQ., ON BEHALF OF THE PETITIONER -- REBUTTAL
Norman Roy Grutman: Yes, Mr. Chief Justice.
I would like to begin by responding to a question which you put to my colleague, and pointing to that place in the record, which is to be found at 15-A of the appendix, where the First Circuit said.
"The major factor favoring plaintiff is that she is suing in part for damages suffered in New Hampshire. "
which is an acknowledgement of the fact that she did suffer injury in New Hampshire,
"and although the defendant's contacts with New Hampshire are sparse, they were not random, isolated, or transitory. "
"The general course of conduct in circulating magazines throughout the state was purposefully directed at New Hampshire. "
Counsel has spoken to the Court about that state which has the paramount interest, and although the language was written by Mr. Justice Brennan in his dissent in Volkswagen, I do not think he was expressing anything with which the Court would disagree when he said that,
"A defendant has no constitutional entitlement to the best forum or, for that matter, to any particular forum. "
"Under even the most restrictive view of International Shoe, several states could have jurisdiction over a particular cause of action. "
That is certainly the case in this lawsuit.
I promised that I would allude to something Mr. Justice Stevens raised at the conclusion of my principal remarks, and I would like not to omit what I was saying when I originally concluded, and that was namely that the district court focused on the plaintiff's lack of contacts, and therefore they never reached the minimum contacts of Flynt or of his publication, and they therefore dismissed a fortiori because of plaintiff's lack of contacts, and I submit that on remand we would, and T represent this responsibly, be able to demonstrate that Flynt had those contacts himself, as did the corporation, which would satisfy the International Shoe formula as to them.
The references made by counsel to the restatement were to the restatement of conflict, and I think that what is spoken of in that restatement primarily has to do with choice of law, not with jurisdiction or definition as to what constitutes a tort.
There was a considerable reference to the inconvenience which, Madame Justice O'Connor, I think, is clearly dealt with under Section 1404(a) by which, after jurisdiction has been determined, the federal court has the flexibility by which under forum non-convenience to designate some other forum in which the case could be tried, but it ought to be mentioned that under the Van Dusen case, the corpus juris that would be applied so far as the statute of limitations is concerned is the corpus juris of the forum in which the action was brought, namely, New Hampshire.
Essentially, what this Court has heard this morning is a claim which the respondents argue that other states' statutes of limitations prohibit New Hampshire from exercising a jurisdiction which for itself it has determined at six years.
I would conclude, Mr. Chief Justice and members of this Court, by observing that that is an incident of federalism.
It is a reflection of our diversity.
If you travel around this country and look at the airports in which you land, we are so homogeneous it is almost impossible to know where you are, but I think that it is worthwhile that this Court should preserve the diversity which in no inconsiderable measure has been part of the richness and greatness of this country.
Chief Justice Warren E. Burger: Thank you, gentlemen.
The case is submitted.