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Laughlin v. Perot

Posted: Thu Oct 23, 2014 5:50 am
by Administrator
Laughlin v. Perot
Not Reported in F.Supp., 1997 WL 135676
March 12, 1997

********B. Libel and Slander Claims

*4 Defendants have also raised the defense that Plaintiffs' libel and slander claims are time-barred. Plaintiffs argue that, because the allegedly libelous and slanderous conduct took place in Missouri and the damages allegedly suffered by Plaintiffs also occurred in the state of Missouri, Missouri substantive law should govern. Defendants, on the other hand, argue that this Court should apply the law of the forum state, that is Texas, to matters of procedure.
While it is true that Texas, adopting the Second Restatement “significant relationship” test,FN17 requires the forum court to apply the law of the state where the tort occurred, matters of procedure and remedy are governed by the laws of the state where the action is maintained.FN18 What is a matter of substance and what is a matter of procedure is determined by the forum according to its own laws.FN19 As this Court is hearing these claims on diversity jurisdiction, it must apply the law as would the Texas Supreme Court.FN20 Texas courts characterize statutes of limitations as procedural rather than substantive, and thus apply the limitations period proscribed by the forum state's law.FN21

FN17. Restatement 2d, Conflict of Laws §§ 6, 145.

FN18. Morris v. LTV Corp., 725 F.2d 1024, 1027 (5th Cir.1984); State of California v. Copus, 158 Tex. 196, 309 S.W.2d 227, 230 (Tex.1958), cert. denied, 356 U.S. 967, 78 S.Ct. 1006, 2 L.Ed.2d 1074.

FN19. Tennimon v. Bell Helicopter Textron, Inc., 823 F.2d 68, 70 (5th Cir.1987).

FN20. Hanna v. Plumer, 380 U.S. 460, 85 S.Ct. 1136, 14 L.Ed.2d 8 (1965); Erie R. Co. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 82 L.Ed. 1188 (1938).

FN21. Johansen v. E.I. Du Pont de Nemours & Co., 810 F.2d 1377, 1381 (5th Cir.1987), cert. denied, 484 U.S. 849, 108 S.Ct. 148, 98 L.Ed.2d 104; Chevalier v. Animal Rehabilitation Ctr., Inc., 839 F.Supp. 1224, 1233, n. 3 (N.D.Tex.1993).

However, Texas courts recognize that where a statute creates both the right on which the action is based and incorporates a specific limitation on that cause of action, the limitation qualifies the right so that it becomes a part of the substantive law. Johansen, 810 F.2d 1377. That is not the case here. See Rev.State.Mo. § 516.140 (1986).

Under Texas law, an action for injury from libel or slander must be commenced within one year after the day the cause of action accrues.FN22 A cause of action for libel or slander accrues on the date of the statement's publication.FN23 Plaintiffs' complaint states that McClure made defamatory statements at a press conference on May 29, 1992 and at other times between May 19 and the beginning of June 1992. The complaint also states that McClure published defamatory statements in a document circulated at a meeting attended by Plaintiffs on May 19, 1992. Plaintiffs did not file their suit until May 4, 1994-almost two years after the defamatory statements were published. Plaintiffs' claims for libel and slander are therefore barred by limitations.

FN22. Civ.Prac. & Rem.C. § 16.002.

FN23. Chevalier, 839 F.Supp. at 1231.

C. False Imprisonment and Negligence Claims

Plaintiffs' complaint states that they were falsely imprisoned on May 19, 1992 when McClure and other volunteers prevented them from leaving a meeting at the Missouri for Perot office. Their claims asserted against Perot for negligence are premised on the contention that he had a duty to ensure that his agents did not engage in the activities which form the basis of the FCRA, invasion of privacy, libel, slander and false imprisonment. All of the actions supporting the negligence claims occurred in April and May 1992.
For the same reasons detailed above, Texas law also governs the limitations period for the tort of false imprisonment and negligence. Texas law provides for a two year statute of limitations for both these actions.FN24 This lawsuit was filed in this court on October 26, 1995, more than two years after the torts allegedly occurred. However, under section 16.064a of the Texas Civil Practice and Remedies Code, in the event a claim is filed in a court which does not have personal jurisdiction over the defendants, plaintiffs are allowed sixty days following the dismissal for lack of jurisdiction to refile in the proper jurisdiction in Texas. Plaintiffs' suits were dismissed by the Missouri district court for lack of personal jurisdiction on September 1, 1995. The Laughlin complaint was filed in this court on October 26, 1995, less than sixty days after the order granting the Motion to Dismiss. Therefore, Plaintiffs Laughlin, Dyck and Alspaw's claims for false imprisonment and negligence are not time-barred. However, Plaintiff Dotzler's suit was not filed in this court until November 8, 1995-some sixty-nine days after the dismissal by the Missouri court. Therefore, the Texas saving statute does not toll the limitations period and his claim for negligence should be dismissed. FN25

FN24. Tex.Civ.Prac. & Rem.Code § 16.003.

FN25. Dotzler's complaint did not assert a cause of action for false imprisonment.********

Re: Laughlin v. Perot

Posted: Thu Oct 23, 2014 5:50 am
by Administrator
Laughlin, Dyck, Alspaw, and Mark Dotzler v. Ross Perot, Mark Alan Blahnik and The Callahan & Gibbons Group, CA 3-95-CV-2577-R, United States District Court for the Northern District of Texas, Dallas Division, 1997 U.S. Dist. LEXIS 4987, (March 12, 1997) (Judge Buchmeyer.

Pre se plaintiffs sued Perot and PerotÂ’s Security Chief and a private investigative firm for alleged illegal access of their credit reports. Plaintiffs were Perot volunteers during 1994 Presidential Campaign. Plaintiffs were part of an effort to get Perot on the Missouri ballot. They were also four of eleven self-selected Missouri electors for Perot. Plaintiffs claim a secretive investigation was performed on them by Perot, through Blahnik. Further, that Blahnik hired Callaghan & Gibbons, private investigators, to obtain credit reports from TRW through a report reseller U.S. Datalink. Further, reports were pulled from Equifax through an allegedly stolen access code from Equifax subscriber, Orix Credit Alliance. Plaintiffs claim they were approached by Perot security and told that they were being replace "for misconduct" and PerotÂ’s close compatriots would replace them. Plaintiffs assert defamation too. Plaintiffs claim they were directed to resign or suffer a large smear campaign. Further, they claimed they were "forcefully" detained and threatened great deal. The history of events is detailed in the opinion.

PlaintiffÂ’s first lawsuit in Missouri resulted in a number of the defendants being dismissed for lack of personal jurisdiction. Dotzler v. Perot, 899 F.Supp. 416 (E.D. Mo. 1995).

[Query: How could a nationwide Presidential candidate not be subject to personal jurisdiction in each state?]

Thereafter, the Court granted Summary Judgment to TRW and U.S. Datalink, finding the reports at issue were not subject to the FCRA as they were not "consumer reports", under 1681a. Dotzler v. Perot, 914 F.Supp. 328 (E.D. Mo. 1996).

Plaintiff re-filed this suit in Texas against Perot, Glahnik and Callaghan & Gibbons. Defendants filed a Motion to Dismiss per FRCP 12(b)(6) and Collaghan & Gibbons, a California-based entity also raises personal jurisdiction.

Plaintiffs claims arise from 1992 inquires. Plaintiffs timely filed suit in Missouri; but these defendants were dismissed for lack of personal jurisdiction in May, 1994. Plaintiffs re-filed against these defendants in Texas (this suit) in October and November, 1995. Plaintiffs argue the Texas Savings Statute should apply to avoid prescription. But that statute only provides a 60 day window to refile in a proper jurisdiction (Texas).

But, further, that statute does not afford a grace period where a federal statute has a limitations provision. See Holmberg, 327 U.S. 392, 395. The Court found the FCRA claims prescribed. The Court applied Texas state law on prescription of state law claims. The Court found the libeland slander claims prescribed.

Strangely, DyckÂ’s and AlspawÂ’s claims for false imprisonment were not prescribed, but all of the negligence claims were prescribed.

Next, the Court addressed Callaghan & GibbosnÂ’s (C&G) FRCP 12(b)(1) Motion to Dismiss for Lack of Personal Jurisdiction. Federal Courts do no have nationwide personal jurisdiction and have no broader powers over out-of-state persons than do the local state cours. See 484 U.S. 97, 109-111, 108 S.Ct. 404.

TexasÂ’ Long Arm is co-extensive with the due process clause. The Court detailed the due process and minimum contacts analysis. Plaintiff did not contend that general jurisdiction existed but that specific jurisdiction existed. Plaintiffs opposed the Motion, claiming C&G contracted by Mail with PPC and Melbye, Texas residents, and partially performed its contract in Texas by contacting U.S. Datalink and obtaining a consumer report. Further, plaintiffs argued that C&G secured a consumer report from U.S. Datalink in violation of the FCRA, thus committed a tort, in whole or in part, in Texas. The Court found the phone calls between PPC/Melbye and C&G "cannot satisfy the requirement of "minimum contacts."" The Court found that faxing the report to Melbye in Texas and receiving payment by mail from the PPC Texas office and accessing published information in California from a database service, which happens to be headquartered in Texas, are not "purposeful availments" by C&G of the benefits, and protections of TexasÂ’ laws so as to satisfy specific personal jurisdiction. The Court went on to find excise of jurisdiction would be unfair and unreasonable to C&G.

The Court stated that plaintiffs should shave sued C&G in California.