IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 21, 2007
No. 06-11283 Charles R. Fulbruge III
Clerk
NATIONWIDE BI-WEEKLY ADMINISTRATION, INC.,
Plaintiff-Appellant
v.
BELO CORP., THE DALLAS MORNING NEWS, AND SCOTT BURNS
Defendants-Appellees.
Appeal from the United States United States District Court
for the Northern District of Texas
Before DeMOSS, DENNIS, and OWEN, Circuit Judges.
DeMOSS, Circuit Judge:
Nationwide Bi-Weekly Administration (“Nationwide”) brought defamation
and related claims against Belo Corp., THE DALLAS MORNING NEWS, and writer
Scott Burns (collectively referred to as “Belo”) based on an allegedly defamatory
article that appeared in THE DALLAS MORNING NEWS. The district court granted
Belo’s Rule 12(b)(6) motion to dismiss on statute of limitations grounds and
Nationwide appealed to this court. For the reasons stated below, we affirm.
I.
On July 29, 2003, THE DALLAS MORNING NEWS published an article
criticizing a particular mortgage program offered by Nationwide. The article first
appeared in a financial column written by Scott Burns in the newspaper’s print
No. 06-11283
edition and was subsequently made available on its website. THE DALLAS
MORNING NEWS website is readily accessible on the Internet by entering the
proper Internet address or by using a standard Internet search engine.
Based on the article, Nationwide filed suit in Ohio state court on July 28,
2004 against Belo, alleging defamation, tortious interference with prospective
business relations, and business disparagement. However, Nationwide did not
serve Belo until June 2005.
Upon being served, Belo removed to the United States District Court for
the Southern District of Ohio where it brought a timely motion to dismiss for
lack of personal jurisdiction pursuant to Rule 12(b)(2) and for failure to state a
claim pursuant to Rule 12(b)(6). Before the court ruled on Belo’s motion,
Nationwide moved to transfer the case to the Northern District of Texas, where
it could exercise personal jurisdiction over Belo. By order dated March 28, 2006,
the Ohio District Court granted Nationwide’s motion and transferred the case
to the Northern District of Texas pursuant to 28 U.S.C. § 1406(a). That section
permits a court to transfer a case “to any district or division in which it could
have been brought” regardless whether it has personal jurisdiction over the
defendants. 28 U.S.C. § 1406(a); Goldlawr, Inc. v. Heiman, 369 U.S. 463, 466
(1962).
After the suit was docketed in the Northern District of Texas, Belo brought
a Rule 12(b)(6) motion to dismiss on May 30, 2006, arguing that Nationwide’s
suit violated the statute of limitations. The district court granted the motion and
dismissed the case. Nationwide timely appealed.
II.
A. Standard of Review
We review de novo the district court’s dismissal for failure to state a claim
under Rule 12(b)(6). Frank v. Delta Airlines Inc., 314 F.3d 195, 197 (5th Cir.
2002). Dismissal under Rule 12(b)(6) is appropriate when the plaintiff has failed
2
No. 06-11283
to allege “enough facts to state a claim to relief that is plausible on its face” and
fails to “raise a right to relief above the speculative level.” Bell Atl. Corp. v.
Twombly, 127 S. Ct. 1955, 1965, 1974 (2007). We proceed “on the assumption
that all the allegations in the complaint are true (even if doubtful in fact).” Id.
at 1965. However, “[w]e review the district court’s administrative handling of a
case, including its enforcement of the local rules and its own scheduling orders
for abuse of discretion.” Macklin v. City of New Orleans, 293 F.3d 237, 240 (5th
Cir. 2002).
B. Procedural Issues
Nationwide argues that Belo’s Rule 12(b)(6) motion to dismiss, filed on
May 30, 2006 in the Northern District of Texas, was procedurally barred because
(1) it was untimely, and (2) Belo failed to consolidate its defenses in one motion
as required by Rule 12(g).
Nationwide first argues that Belo’s motion was barred because it was
untimely under rules setting deadlines for filing responsive Rule 12(b) motions
or pleadings by defendants. The Northern District of Texas received this case
from the Southern District of Ohio on April 4, 2006, and Belo filed its Rule
12(b)(6) motion on May 30, 2006. Nationwide contends that, assuming the
transfer to the Northern District of Texas constituted a re-filing and re-serving
of their complaint, Belo’s motion was untimely under Rule 12(a)(1)(A). See FED.
R. CIV. P. 12(a)(1)(A) (requiring a defendant to serve an answer “within 20 days
after being served with the summons and complaint”). Construing this rule as
requiring Belo to file either an answer or a Rule 12(b) motion within 20 days of
the transfer, Nationwide contends that Belo’s May 30th motion was untimely.
Nationwide cites no authority for the proposition that transfer of a case under
§ 1406(a) constitutes a re-filing of the case in the transferee court. We find such
a contention untenable. Nothing in the statutory language of 28 U.S.C. § 1406(a)
suggests that transfer should be treated as a re-filing. Further, when cases are
3
No. 06-11283
transferred from one district to another, all docket entries are transferred and
all pending motions remain pending.
Nationwide’s other arguments relating to the timeliness of Belo’s Rule
12(b)(6) motion also lack merit. Nationwide contends that Belo’s Rule 12(b)(6)
motion was untimely under Rule 12(a)(4)(A), which provides “if the court denies
[a Rule 12(b) motion] or postpones its disposition until the trial on the merits,
the responsive pleading shall be served within 10 days after notice of the court’s
action.” FED. R. CIV. P. 12(a)(4)(A). Application of Rule 12(a)(4)(A) is triggered
when the court (1) denies a motion or (2) postpones disposition of a motion until
trial. See id. Neither the Ohio or the Texas district court denied or postponed
disposition of any Rule 12(b) motion, so that section is inapposite.
Nationwide also asserts that Rule 81(c) renders Belo’s motion untimely.
Rule 81(c) provides that when a defendant removes an action to federal court
before answering a complaint, the defendant has twenty days from receipt of the
initial pleading or service, or five days after filing a notice of removal, whichever
is longer, to file a responsive pleading or motion. FED. R. CIV. P. 81(c). Contrary
to Nationwide’s argument, Rule 81(c) merely set the deadline for Belo to make
its first responsive pleading or motion after removal. See id. Belo satisfied Rule
81(c) by timely filing a responsive motion in the Ohio District Court.
Having concluded that Belo’s Rule 12(b)(6) motion was not untimely under
any of the rules cited by Nationwide that set deadlines for responsive pleadings
and motions, we turn to Nationwide’s argument that Belo failed to consolidate
its defenses as required by Rule 12(g). Rule 12(g) provides in relevant part: “If
a party makes a motion under this rule but omits therefrom any defense or
objection then available . . . the party shall not thereafter make a motion based
on the defense or objection so omitted, except a motion as provided in subdivision
(h)(2).” FED. R. CIV. P. 12(g). Nationwide argues that Belo failed to consolidate
its personal jurisdiction and statute of limitations defenses in the same Rule
4
No. 06-11283
12(b) motion. However, Rule 12(g) did not require consolidation here because
Rule 12(h)(2) explicitly excepts from the consolidation requirement motions
based on the defense of failure to state a claim upon which relief can be granted.
See id. at 12(h)(2).1 In sum, we find that the district court did not abuse its
discretion by considering Belo’s Rule 12(b)(6) motion.
C. Substantive Issues
i. Statute of Limitations
Belo’s Rule 12(b)(6) motion sought dismissal of Nationwide’s claims on
statute of limitations grounds. See Jones v. Alcoa, Inc., 339 F.3d 359, 366 (5th
Cir. 2003) (noting that a statute of limitations defense may be properly asserted
in a Rule 12(b)(6) motion). The parties do not dispute that the Texas statute of
limitations applies to this suit transferred from the Southern District of Ohio to
the Northern District of Texas pursuant to 28 U.S.C. § 1406(a), and we agree.
“[F]ollowing a section 1406(a) transfer, regardless of which party requested the
transfer or the purpose behind the transfer, the transferee court must apply the
choice of law rules of the state in which it sits.” Ellis v. Great Sw. Corp., 646 F.2d
1099, 1110 (5th Cir. Unit A Jun. 1981). Applying the Texas choice of law rules,
we conclude that Texas has the “most significant relationship” to this dispute
and thus, Texas substantive law applies. See id. at 1111 (noting that Texas has
adopted the “most significant relationship test” to determine which state’s
substantive law applies). Further, when Texas substantive law applies, “there
is no question . . . that Texas courts would apply their own state’s statute of
limitations.” Id. at 1112.
1
Relatedly, Nationwide argues that Belo’s statement that Nationwide “obviously has
an interest in obtaining relief, but that relief can be had in Texas” should equitably estop Belo
from asserting a statute of limitations defense in Texas. However, that statement was made
in connection with Belo’s Rule 12(b)(2) motion as part of a discussion concerning personal
jurisdiction. We decline to read this statement out of context and find that Belo has conceded
that Nationwide could successfully bring suit in Texas. At most, this statement could be
interpreted as conceding personal jurisdiction in Texas.
5
No. 06-11283
Texas has adopted a one-year statute of limitations for libel claims. See
TEX. CIV. PRAC. & REM. CODE § 16.002(a). The one-year limitations period begins
to run when publication of the libelous statement is complete, which is “the last
day of the mass distribution of copies of the printed matter.” Holloway v. Butler,
662 S.W.2d 688, 692 (Tex. App.—Houston [14th Dist.] 1983, writ ref’d n.r.e.).
“On that date, the publisher of the statement has made the libelous matter
available to his intended audience and the tort is complete.” Stephan v. Baylor
Med. Ctr. at Garland, 20 S.W.3d 880, 889 (Tex. App.—Dallas 2000, no pet.).
Because the period begins to run on the date the publication is complete, this
rule is commonly referred to as the “single publication rule.” See id.; see also
Williamson v. New Times, Inc., 980 S.W.2d 706, 710 (Tex. App.—Fort Worth
1998, no pet.).
An important purpose of the single publication rule is to prevent plaintiffs
from bringing stale and repetitive defamation claims against publishers. See
Holloway, 662 S.W.2d at 691. As a result, retail sales of individual copies after
the publication date and sales of back issues do not trigger a new limitations
period. Id. at 692. However, separate printings of the original content are
considered subsequent publications. Stephan, 20 S.W.3d at 889 (reasoning that
in the case of separate printings “it is apparent that the publisher intends to
reach different audiences and this intention justifies a new cause of action”).
It is uncontested that THE DALLAS MORNING NEWS published the allegedly
defamatory article in its July 29, 2003 print edition, and that Nationwide filed
its complaint on July 28, 2004—within the allowed period. However, “the mere
[timely] filing of a suit will not interrupt or toll the running of a statute of
limitation; to interrupt the statute, the use of diligence in procuring the issuance
and service of citation is required.” Ellis, 646 F.2d at 1112 (internal quotation
marks omitted) (applying Texas law). Nationwide failed to serve Belo until June
2005, more than 10 months after filing suit. The district court, citing this
6
No. 06-11283
lengthy and unexplained delay, found that Nationwide failed to exercise due
diligence in serving Belo and dismissed the suit on statute of limitations
grounds. See id. at 1114 (surveying Texas cases and concluding that
“unexplained delay of as little as six months demonstrates as a matter of law
that the plaintiff lacked diligence in obtaining the issuance and service of
process.”).
On appeal, Nationwide does not appear to challenge the proposition that,
if its claim rested solely on publication of the article in the print edition, its claim
is barred. Nationwide instead argues that the article’s availability on THE
DALLAS MORNING NEWS website mandates a different result. This is so,
according to Nationwide, because each time a viewer accesses the article from
the website a “republication” occurs for statute of limitations purposes. This
concept, widely argued but virtually always rejected, is referred to as the
“continuous publication rule.”
ii. Continuous Publication Rule and Internet Publication
As mentioned, Texas applies the single publication rule to libel cases
involving mass media publications. Holloway, 662 S.W.2d at 692. However,
Texas courts have not yet considered whether the single publication rule should
apply to Internet publications. Accordingly, this court is “required to follow the
rule we believe the Texas Supreme Court would adopt.” Am. Indem. Lloyds v.
Travelers Prop. & Cas. Ins. Co., 335 F.3d 429, 435 (5th Cir. 2003). “[I]n making
[our] Erie guess, we consider, among other sources, treatises, . . . decisions from
other jurisdictions . . . and the majority rule.” Id. (internal quotation marks
omitted). We may also consider Texas public policy interests.
7
No. 06-11283
In this case, decisions from other jurisdictions prove the most instructive.2
In considering decisions from other jurisdictions, we have found only one that
applied the continuous publication rule. See Swafford v. Memphis Individual
Practice Ass’n, No. 02A01-9612-CV-00311, 1998 WL 281935, at *8 (Tenn. Ct.
App. June 2, 1998). Nationwide believes the Texas Supreme Court would be
inclined to follow Swafford’s lead and hold that each time a reader accesses the
article on THE DALLAS MORNING NEWS website a new publication occurs.
However, our reading of Swafford and subsequent cases fails to persuade us that
Texas would adopt its holding here.
Swafford involved a restricted-access online database containing
information about individual doctors. Id. at *1. The database allegedly provided
defamatory information about an individual doctor to health care facilities who
requested his information. Id. The Tennessee Court of Appeals, reasoning that
the database limited access to authorized users and only released information
in response to “an affirmative request by a hospital,” refused to apply the single
publication rule. Id. at *5, *8. The court noted that no “aggregate publication”
occurs when users of the database request information, and thus, “the
justification for the single publication rule, a vast multiplicity of lawsuits
resulting from a mass publication, is simply not present.” Id. at *8.
2
This is not to say that secondary sources are silent on this issue. See, e.g., 50 AM. JUR.
2D Libel § 245 (“The single-publication rule applies to internet publishing.”). Several law
review comments also discuss the issue. Compare Sapna Kumar, Comment, Website Libel and
the Single Publication Rule, 70 U. CHI. L. REV. 639, 662 (2003) (recognizing potential abuses
of the rule in the Internet context, but advocating for its extension as long as the “website is
truly available to the public”) and Lori A. Wood, Note, Cyber-Defamation and the Single
Publication Rule, 81 B.U. L. REV. 895, 913-14 (2001) (advocating application of the single
publication rule to generally accessible Internet sites) with Odelia Braun, Comment, Internet
Publications and Defamation: Why the Single Publication Rule Should Not Apply, 32 GOLDEN
GATE U. L. REV. 325, 332-37 (2002) (arguing against application of the rule to the Internet).
8
No. 06-11283
Swafford is factually distinguishable from the case at bar. The information
at issue in Swafford was not publicly available and “could hardly be considered
an aggregate communication comparable to typical Internet publication.” Oja v.
U.S. Army Corps of Eng’rs, 440 F.3d 1122, 1133 (9th Cir. 2006) (internal
quotation marks omitted) (discussing Swafford). In contrast, the article at issue
here was undisputably posted on the website and made widely available to the
public via the Internet. This distinction is material because, as Swafford itself
noted, a primary purpose of the single publication rule is to prevent the
multiplicity of suits that may follow widespread dissemination. See Swafford,
1998 WL 281935, at *8.
In addition to this factual distinction, we are influenced by the fact that
apparently no court has followed Swafford. However, a number of cases have
refused to follow Swafford and have applied the single publication rule to
Internet publications. Of these, perhaps the most influential is Firth v. State,
775 N.E.2d 463, 466 (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 constantly available on the Internet, each day resulted in a new
publication of the report. Id. at 465. The New York Court of Appeals, after
considering the competing policy arguments, 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. Further, the court 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. Thus, the court held the single
publication rule applies to Internet publications. Id.
9
No. 06-11283
Every court to consider the issue after Firth has followed suit in holding
that the single publication rule applies to information widely available on the
Internet. See, e.g., Oja, 440 F.3d at 1133; 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. Super. Ct. App. Div. 2005);
McCandliss v. Cox Enters., 593 S.E.2d 856, 858 (Ga. Ct. App. 2004); Traditional
Cat Ass'n, Inc. v. Gilbreath, 13 Cal. Rptr. 3d 353, 361-62 (Cal. Ct. App. 2004).3
Given that every case to consider the issue has applied the single publication
rule to publicly available Internet articles, it is clearly the majority approach.
See Churchill, 876 A.2d at 316 (agreeing with the “almost unanimous” view of
other courts that the single publication rule applies to Internet publications); see
also Kumar, 70 U. CHI. L. REV. at 650 (“The idea that publication on the Web
and traditional print publishing are similar enough to merit application of the
single publication rule is not controversial.”). Furthermore, we find the rationale
behind the widespread acceptance of the single publication rule in the Internet
context persuasive.
For example, some courts have reasoned that the “functional similarities
between print and Internet publication” support application of the single
publication rule to both types of media. Oja, 440 F.3d at 1131; see also Firth, 775
N.E.2d at 465 (“Communications accessible over a public Web site resemble
those contained in traditional mass media, only on a far grander scale.”). As one
court noted, “A statement electronically located on a server which is called up
when a web page is accessed, is no different from a statement on a paper page
in a book lying on a shelf which is accessed by the reader when the book is
opened.” Mitan, 243 F. Supp. 2d at 724. While we recognize that important
differences exist between print media and the Internet, we agree that the
3
We note that this is not an exhaustive list of all cases to have applied the single
publication rule to Internet publications.
10
No. 06-11283
similarities between the two media support application of a consistent rule. See
Oja, 440 F.3d at 1130-31.
Nationwide attempts to distinguish Internet publication, where editors
can easily alter or remove content, from print media where publishers
“relinquish all right of control, title, and interest in the printed matter” upon
publication. New Times, 980 S.W.2d at 710. In Oja, the Ninth Circuit rejected
a similar argument:
It is true that an Internet publisher may have greater control over
the availability of content posted on its server than a print publisher
has over its printed stock; however, that fact alone does not corrupt
the analogy between Internet and print publication, given that the
single publication rule generally applies to books in a publisher’s
stock that could have been withdrawn following their initial
availability for sale but were not.
Oja, 440 F.3d at 1131 n.10.
In other words, a website’s control over its content is akin to a publisher’s
control over its stock. See id. When a publisher continues to make an allegedly
defamatory book available from its stock, courts have held that action does not
constitute republication, even though the publisher could have withdrawn the
book. Van Buskirk v. New York Times Co., No. 99 Civ. 4265(MBM), 2000 WL
1206732, at *2 (S.D.N.Y. 2000), aff’d, 325 F.3d 87 (2d Cir. 2003). Likewise, the
continued availability of an article on a website should not result in
republication, despite the website’s ability to remove it.
Perhaps more important than the similarities between print media and
the Internet, strong policy considerations support application of the single
publication rule to information publicly available on the Internet. See Firth, 775
N.E.2d at 466 (discussing the “potential for endless retriggering of the statute
of limitations, multiplicity of suits and harassment of defendants” and warning
of a corresponding chilling effect on Internet communication). We agree that
these policy considerations favor application of the single publication rule here
11
No. 06-11283
and we note that application of the rule in this context appears consistent with
the policies cited by Texas courts in adopting and applying the single publication
rule to print media: to support the statute of limitations and to prevent the filing
of stale claims. See Holloway, 662 S.W. 2d at 691.
Nationwide points out several competing public policy arguments. First,
“the publication of defamatory and private information on the web has the
potential to be vastly more offensive and harmful than it might otherwise be in
a more circumscribed publication.” See Oja, 440 F.3d at 1129. To the extent this
argument is based on the fact that more people will be exposed to Internet
publications because those publications are likely accessible for a potentially
indefinite period, we feel it is outweighed by the competing policy interests of
enforcing the statute of limitations and preventing stale claims. See Holloway,
662 S.W. 2d at 691. To the extent this argument is premised on the fact that an
Internet publication has the potential to reach more people because of broader
readership (without any temporal component), it is likely relevant only to the
issue of damages, not to the triggering of the statute of limitations.
Nationwide also argues that (1) Texas courts have a policy of recognizing
continuing torts, especially in trademark infringement cases, which it argues are
analogous, see Two Pesos, Inc. v. Gulf Ins. Co., 901 S.W.2d 495, 500 (Tex.
App.—Houston [14th Dist.] 1995, no writ), and (2) that Texas courts have a
policy of holding the media to a standard of truthfulness. See Huckabee v. Time
Warner Entm’t Co., 19 S.W.3d 413, 421 (Tex. 2000). Even assuming these
propositions are true as a general matter, we need not look to general themes in
Texas law for guidance when Texas courts have stated clear policy reasons for
applying the single publication rule to mass media. We find those reasons
persuasive in this context as well.
Based on the near unanimity of the large number of courts to apply the
single publication rule to Internet publications, the fact that the only case to
12
No. 06-11283
hold otherwise (Swafford) is distinguishable, and because sound policy reasons
support its application in this context, we hold that the Texas Supreme Court
would likely adopt the single publication rule for Internet publications.
Applying the single publication rule here, the statute of limitations began
to run on July 29, 2003, the date the initial print publication was complete. See
Stephan, 20 S.W.3d at 889. The only remaining issue is whether posting the
article on THE DALLAS MORNING NEWS website constituted a republication giving
rise to a new statute of limitations.
As noted above, the single publication rule provides that when an allegedly
defamatory statement is published in a new format, such as when a hardcover
book is republished in paperback form, it is considered “republished” and the
statute of limitations begins to run from the date of republication. See Firth, 775
N.E.2d at 466 (citing RESTATEMENT (SECOND) OF TORTS § 577A cmt. d.); see also
Holloway, 662 S.W.2d at 692 (“[W]e are not limiting a plaintiff to a single cause
of action in the event the same information appears in separate printings of the
same publication or in different publications.”). “The justification for this
exception . . . is that the subsequent publication is intended to and actually
reaches a new audience.” Firth, 775 N.E.2d at 466.
We need not decide whether posting this article on THE DALLAS MORNING
NEWS website constituted a republication because, even if it did, dismissal was
appropriate. If the posting of the article on the website resulted in a
republication, the statute of limitations would begin to run from the date it was
posted. Here it is almost certain that the article was posted on the website
shortly after it appeared in the print edition, but the exact date of posting is not
in the record. However, Nationwide concedes, through its attorney’s affidavit,
that the article was available online on April 4, 2004. See Bison aff. ¶ 5. Even
assuming that the first day the article was available on the website was April
4, 2004, Nationwide’s suit is time-barred.
13
No. 06-11283
Assuming Internet republication on April 4, 2004, the statute of
limitations would begin to run on that date. Nationwide’s complaint, filed on
July 28, 2004, would have been timely. But recall that Nationwide did not serve
Belo until June 2005, which is more than one year after April 4, 2004, and more
than 10 months after filing the complaint. “If a plaintiff files suit within the
limitations period, but serves the defendant after the limitations period has
expired, the date of service relates back to the date of filing if the plaintiff
exercises due diligence in obtaining service.” See Auten v. DJ Clark, Inc., 209
S.W.3d 695, 698 (Tex. App.—Houston [14th Dist] 2006, no writ). We agree with
the district court that Nationwide’s more than 10-month unexplained delay in
serving Belo was unreasonable as a matter of law, and thus, even under this
generous scenario, dismissal was proper. See id. at 698-99.
iii. Nationwide’s Business Disparagement and Tortious Interference Claims
In addition to its defamation claim, Nationwide brought claims for
business disparagement and tortious interference with prospective business
relations. A two-year statute of limitations typically applies to those causes of
action. See TEX. CIV. PRAC. & REM. CODE § 16.003. However, when allegedly
defamatory statements form the sole basis for a plaintiff’s tortious interference
claim, defamation’s one-year statute of limitations applies. See Martinez v.
Hardy, 864 S.W.2d 767, 776 (Tex. App.—Houston [14th Dist.] 1993, no writ).
Likewise, Texas courts have applied a one-year statute of limitations to business
disparagement claims when the gravamen of the complaint is defamatory injury
to the plaintiff’s reputation and there is no evidence of direct pecuniary loss to
give rise to special damages. See Hurlbut v. Gulf Atl. Life Ins. Co., 749 S.W.2d
762, 766-67 (Tex. 1987). “If the damages alleged are primarily personal and
general —e.g., injury to personal reputation, humiliation, or mental anguish
—then the cause of action is one for libel or slander, even though incidental or
14
No. 06-11283
consequential professional losses are also pleaded and proved.” New Times, 980
S.W.2d at 710-11.
We agree with the district court that the one-year statute of limitations
applies. Regarding Nationwide’s tortious interference claim, the court noted that
Nationwide based the claim on the fact that “prospective customers have seen
the false statements in the article.” Thus, this claim is indistinguishable from
Nationwide’s defamation claim. See Proctor & Gamble Co. v. Amway Corp., 80
F. Supp. 2d 639, 657 (S.D. Tex. 1999), aff’d in part, reversed in part on other
grounds, 242 F.3d 539 (5th Cir. 2001). Regarding the business disparagement
claim, the district court held that Nationwide failed to provide any meaningful
basis upon which to distinguish it from the defamation claim, and that
Nationwide failed to allege any specific economic loss. We find no error in this
conclusion.
III.
Finding that Nationwide’s claims are barred by the statute of limitations,
we AFFIRM the judgment of the district court.
AFFIRMED.
15