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Jack Shepard v. Thehuffingtonpost.Com

November 15, 2012

JACK SHEPARD
PLAINTIFF,
v.
THEHUFFINGTONPOST.COM, INC., DEFENDANT.



The opinion of the court was delivered by: Paul A. Magnuson United States District Court Judge

MEMORANDUM AND ORDER

This matter is before the Court on Defendant's Motion to Dismiss and Plaintiff's Motions for Default Judgment. For the reasons that follow, Defendant's Motion is granted and Plaintiff's Motions are denied.

BACKGROUND

Plaintiff Jack Shepard claims that TheHuffingtonPost.com maliciously libeled him in an article first published online on May 20, 2010. At the time, Shepard was a candidate for Congress. The article was titled "Support Jack Shepard, The Arsonist, For Congress." Shepard first saw the article in April 2011. Shepard alleges that since its original date of publication, the article has been repeatedly republished online by The Huffington Post, as recently as May 25, 2011. Although Shepard says that the later-published versions of the article were "updated" versions of the original, there appears to be is no substantive distinction among the later-published versions of the article and the original.*fn1

Shepard contends that four specific aspects of the article are libelous. First, the article's headline calls Shepard an "arsonist" when, in fact, he was charged with arson but was never convicted because he fled to Italy before trial. The body of the article clarifies that Shepard was "accused of arson in 1982." Second, the article states that Shepard was "[k]icked off the ballot in 2004 for being a fugitive felon," but fails to explain that he was later put back on the ballot. Third, the article correctly states that Shepard was "convicted of criminal sexual conduct and drug possession," but fails to explain extenuating circumstances relating to those convictions. Fourth, the article says that Shepard is "cloistered" in Italy, which he contends incorrectly implies that he is in hiding. DISCUSSION

For purposes of a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the Court takes all facts alleged in the complaint as true. Westcott v. Omaha, 901 F.2d 1486, 1488 (8th Cir. 1990). The Court must construe the factual allegations in the complaint and reasonable inferences arising from the complaint favorably to the plaintiff and will grant a motion to dismiss only if "it appears beyond doubt that the plaintiff can prove no set of facts which would entitle him to relief." Morton v. Becker, 793 F.2d 185, 187 (8th Cir. 1986) (citations omitted). The complaint must include "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).

A. Statute of Limitations

Under Minnesota law, the statute of limitations for a defamation claim is two years. Minn. Stat. § 541.07(1). The limitations period begins to run on the date of publication, not when the statement is discovered by the claimant. Hayes v. Blue Cross Blue Shield of Minn., 21 F. Supp. 2d 960, 978 (D. Minn. 1998) (Erickson, M.J.) (citing Wild v. Rarig, 234 N.W.2d 775, 794 & n.21 (Minn. 1975)). Here, the date of publication was May 20, 2010. Shepard filed his Complaint on June 25, 2012, one month after the limitations period expired.

Shepard argues that because the article was republished as late as May 25, 2011, the limitations period did not begin to accrue until that date. Minnesota long ago adopted the "single-publication rule" under which, the statute of limitations begins to run when a mass-produced newspaper, book or magazine is first released to the public . . . . [T]he "single-publication rule" is the better rule because it reflects the fact of modern-day mass publishing and duplicating and gives effect to the policy of repose underlying the statute of limitations.

Church of Scientology of Minn. v. Minn. State Med. Assoc. Found., 264 N.W.2d at 152, 155 (Minn. 1978). Although not yet addressed by Minnesota courts, the single-publication rule has been applied to Internet publications in many other jurisdictions. The seminal case on this point is Firth v. State of New York, 775 N.E.2d 463 (N.Y. 2002). In Firth, the plaintiff sued the publisher of an investigative report that was published on the Internet. Id. at 464.

The plaintiff argued that because the report was continually available on the Internet, each day resulted in a new publication of the report. Id. at 465. The court held that "a multiple publication rule would implicate an even greater potential for endless retriggering of the statute of limitations, multiplicity of suits and harassment of defendants." Id. at 466. The court further recognized that if it applied the continuous publication rule "[i]nevitably, there would be a serious inhibitory effect on the open, pervasive dissemination of information and ideas over the Internet, which is, of course, its greatest beneficial promise." Id. (citations omitted). Thus, the court held the single-publication rule applies to Internet publications. Id. Every court to consider the issue after Firth has followed suit. See, e.g., In re Philadelphia Newspapers, LLC, 690 F.3d 161, 174 (3d Cir. 2012); Oja v. Army Corps of Eng'rs , 440 F.3d 1122, 1133 (9th Cir. 2006); Van Buskirk v. New York Times Co., 325 F.3d 87, 89 (2d Cir. 2003); Mitan v. Davis, 243 F. Supp. 2d 719, 724 (W.D. Ky. 2003); Churchill v. State, 876 A.2d 311, 316 (N.J. 2005); McCandliss v. Cox Enters., 593 S.E.2d 856, 858 (Ga. 2004); Traditional Cat Ass'n v. Gilbreath, 13 Cal. Rptr. 3d 353, 361-62 (Cal. 2004). There is no reason to believe that Minnesota would not also follow suit.

Therefore, the statute of limitations begins to accrue on the first date of publication where subsequent republications have the same content as the original publication. Shepard argues that the single-publication rule does not apply because the article was "updated" over time. Contrary to his assertions, however, the content of the article does not appear to have changed. Instead, the "new" articles cited by Shepard appear to be hyperlinks to the original article, which do not restart the statute of limitations. See Philadelphia Newspapers, 690 F.3d at 175 (providing a new link to original article "may allow for easy access" to the article, but does "not amount to the restatement or alteration of the allegedly defamatory" content). Accordingly, any subsequent republications of the article were incidental and the single-publication rule applies to bar Shepard's claim.

B. Tolling

Shepard argues that the limitations period should be tolled under the Servicemembers Civil Relief Act, 50 U.S.C. App. § 526. In order for the Act's tolling provision to apply, Shepard must be on "active duty." 50 U.S.C. App. § 511(2)(A)(i). "The term 'active duty' means full-time duty in ...


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