Before MEDINA, WATERMAN and MOORE, Circuit Judges.
The primary issue in these appeals is the time at which a cause of action for libel accrues, for purposes of the statute of limitations, under the New York "single publication rule".
Appellant, John Zuck, brought these consolidated actions against Interstate Publishing Corp., publisher of the magazine "Movie World", and several individuals connected with Interstate,*fn1 alleging that he was libeled by an article published in an issue of "Movie World" dated March 1961. The actions were commenced in the United States District Court for the Southern District of New York on December 22, 1961; jurisdiction was based upon a diversity of citizenship.*fn2
Before trial, defendants moved for summary judgment, Rule 56, Fed.R.Civ.P., setting up the defense of the statute of limitations. In support of their motions they filed affidavits, not contested by appellant, asserting that the March 1961 issue of "Movie World" was printed by Art Color Printing Company at Dunellen, New Jersey, and that all copies of the issue were delivered by Art Color to the exclusive distributor of that magazine (Independent News Company) or to carriers designated by it, on or before December 15, 1960. Thereafter, defendants asserted, the magazines were delivered to news dealers throughout the United States and were placed on newsstands for sale to the public beginning December 22, 1960.
On the basis of these facts the district judge granted defendants' motion for summary judgment, holding that plaintiff's cause of action was barred under both New York's and New Jersey's one year statutes of limitations. N.Y.Civil Practice Act § 51-a; N.J.S.A. 2A:14-3. He ruled that under the New York single publication rule, Gregoire v. G. P. Putnam's Sons, 298 N.Y. 119, 81 N.E.2d 45 (1948), plaintiff's sole cause of action arose when all copies of the magazine were delivered to the wholesale distributor or placed on common carriers for shipment to news dealers - in this instance more than one year prior to the commencement of these proceedings.
Zuck appeals, claiming that if his cause of action is controlled by New York substantive law, it accrued on December 22, 1960, when the bulk of the allegedly libelous magazines were placed on sale to the public.*fn3 He maintains, however, that his cause of action arose in New Jersey and that it is not time barred under New Jersey law.*fn4 We hold with the appellant and reverse and remand the cause for further proceedings below.
Traditionally, libel consists in the unprivileged communication of defamatory material to a person other than the defamed. Each such communication constitutes a publication and each publication gives rise to a separate cause of action. Duke of Brunswick v. Harmer, 14 Q.B. 185, 117 Eng.Rep. 75 (1849); Restatement, Torts, § 578, comment b (1938); Odgers, Libel and Slander 132, 493 (6th ed. 1929). These traditional principles, however, antedate mass publication and nationwide distribution of printed information by our modern processes. When applied to a contemporary magazine of wide circulation, for example, they create the possibility that a single defamatory statement will give rise to millions of causes of action, one for each person who reads the offending periodical.
Recognizing the difficulties of pleading and the opportunities for harassment of defendants which a literal application of these principles would create, the New York courts ruled, before the turn of this century, that a person aggrieved by defamatory matter appearing in a newspaper was allowed but one suit in which to recover for all publications made by the defendant up to the time the action was commenced. Galligan v. Sun Printing & Publishing Ass'n, 25 Misc. 355, 54 N.Y.S. 471 (1898); Enos v. Enos, 135 N.Y. 609, 32 N.E. 123 (1892). The plaintiff in such a suit was permitted to make a single count allegation that the defamatory matter had been printed and extensively circulated. See, e.g., Fried, Mendelson & Co. v. Edmund Halstead, Ltd., 203 App.Div. 113, 196 N.Y.S. 285 (1922); Johnston v. Macfadden Newspapers Corp., 238 App.Div. 68, 263 N.Y.S. 561 (1933).
These early rules of pleading and compulsory joinder, however, did not prevent further actions for republication of the defamatory matter after the commencement of the original suit. Galligan v. Sun Printing & Publ. Ass'n, supra. Despite New York's short statute of limitations for libel actions, therefore, the publisher of a widely-distributed newspaper periodical, or book, remained liable to suit so long as any copies of the offending matter remained in circulation. To eliminate this possibility of commencement of further actions, which possibility was thought to subvert the policy of New York's statute of limitations, the New York court, in Wolfson v. Syracuse Newspapers, Inc., 254 App.Div. 211, 4 N.Y.S.2d 640 (1938), aff'd, 279 N.Y. 716, 18 N.E.2d 676 (1939), created the single publication rule. Under this rule the publication of a single edition of a libelous newspaper or periodical gives rise to but one cause of action, after the accrual of which subsequent distributions may increase plaintiff's compensable damages but do not create independent causes of action or start the statute of limitations running anew. The accrual of this single cause of action is said to occur upon the "publication" of the offending matter. In Wolfson, however, the term "publication" no longer referred to any unprivileged communication of the defamatory matter to a third person, but was employed in a different, and not wholly specified manner:
"The number of separate publications of the alleged libels and the causes of action arising therefrom in plaintiff's favor [are] not gauged by the number of copies of the single edition in which the articles appeared and which defendant circulated by sale or otherwise. '* * * [In] the publication of a defamatory article in a newspaper publicly circulated there is but one publication, and that at the place where the newspaper is published.'" 4 N.Y.S.2d at 642.
For purposes of the single publication rule, some dispute remains as to precisely what stage in the preparation and distribution of a periodical the moment of legal publication occurs. The leading New York case is Gregoire v. G. P. Putnam's Sons, 298 N.Y. 119, 81 N.E.2d 45 (1948). There the Court of Appeals extended the rule to bar an action for libelous matter contained in a book, several copies of which were sold more than five years after the initial printing and distribution of the edition. The court stated:
"Although it may not be said that the publication and dissemination of books has reached that degree of mass production and widespread distribution now prevalent in fields invaded by newspapers and periodicals, it is our view that the publication of a libelous book, involving styling, printing, binding and those other acts which enable a publisher on a given date to release to the public thousands of copies of a single printing or impression, affords the one libeled a legal basis for only one cause of action which arises when the finished product is released by the publisher for sale in accord with trade practice." 298 N.Y. at 126, 81 N.E.2d at 49 (emphasis supplied).
Though the language is not without ambiguity, it suggests that the date of legal publication is to be the official "release" or "on sale" date, which in this case was December 22, 1960, rather than the earlier point in the distribution process which the court below selected. The "Gregoire test" appears to have been so interpreted by Judge Hincks when he sat on the United States District Court for the District of Connecticut. Fouts v. ...