Court of Appeals of North Carolina.

Rebecca P. JONES, Plaintiff v. Susan L. SKELLEY, Defendant.

No. COA08-387.
Decided: March 3, 2009
Gailor, Wallis & Hunt, P.L.L.C., by Kimberly A. Wallis and Jaime H. Davis, Raleigh, for
plaintiff-appellant. Jess, Isenberg & Thompson, by Laura E. Thompson, Southport, for
defendant-appellee.
Rebecca P. Jones (plaintiff) appeals from an order granting summary judgment in favor of
defendant Susan L. Skelley (defendant) and dismissing plaintiff's claims for alienation of
affections and criminal conversation based on lack of subject matter jurisdiction. After
careful review, we reverse and remand.
I.
Background
On 16 March 2006, plaintiff filed a complaint against defendant in Brunswick County Superior
Court asserting claims for alienation of affections and criminal conversation. On 1 November
2007, plaintiff filed a motion for summary judgment as to her criminal conversation claim. On
13 November 2007, defendant filed a motion for summary judgment seeking dismissal of
plaintiff's claims for lack of subject matter jurisdiction, or in the alternative, for an order
granting defendant's motion for the application of South Carolina law. At the motions
hearing, defendant conceded that she had stipulated to personal jurisdiction.1 However,
defendant argued, inter alia, that because the majority of her alleged acts which purportedly
alienated the affections of plaintiff's spouse, Phil V. Jones (Mr.Jones), occurred in South
Carolina, and because plaintiff lived in South Carolina at all times, any tortious injury had to
occur in South Carolina. Because South Carolina does not recognize the tort of alienation of
affections, defendant asserted that the trial court lacked subject matter jurisdiction and was
required to dismiss the alienation of affections claim. As to the criminal conversation claim,
defendant contended that even though she had engaged in sexual intercourse with Mr. Jones
in North Carolina in June 2004 while the Joneses were still married, the court lacked subject
matter jurisdiction because South Carolina abolished the tort of criminal conversation and any
injury or damage would have occurred in South Carolina given that the Joneses were
residents of South Carolina.
Plaintiff argued that North Carolina law is clear that for alienation of affections, the tortious
injury or harm occurs where a defendant's alienating acts occur and that for criminal
conversation, said injury occurs where the sexual intercourse occurs, not where a plaintiff
resides. She asserted that because defendant's alienating acts occurred in both North
Carolina and South Carolina, there was a material question of fact as to where the tortious
injury occurred and consequently, whether North Carolina or South Carolina law applied. As
to the criminal conversation claim, plaintiff contended that North Carolina law is clear that a
defendant can be liable for a single act of post-separation sexual intercourse with another's
spouse in North Carolina, and given that defendant admitted to engaging in sexual intercourse
with her husband in North Carolina while they were still married, she, not defendant, was
entitled to summary judgment.
The trial court granted summary judgment based on lack of subject matter jurisdiction and
dismissed both claims. Plaintiff appeals.
Standard of Review
Under Rule 56, summary judgment shall be entered if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that there is
no genuine issue as to any material fact and that any party is entitled to a judgment as a
matter of law.
Mortgage Co. v. Real Estate, Inc., 39 N.C.App. 1, 3, 249 S.E.2d 727, 729 (1978) (citations
omitted), affirmed per curiam, 297 N.C. 696, 256 S.E.2d 688 (1979).
The burden of establishing the lack of any triable issue of fact is on the party moving for
summary judgment, and the movant's papers are carefully scrutinized while those of the
opposing party are regarded with indulgence. The movant can satisfy this burden either by
proving that an essential element of the opposing party's claim is nonexistent or by showing,
through discovery, that the opposing party cannot produce evidence to support an essential
element of its claim.
Id. at 4, 249 S.E.2d at 729 (citations omitted). While courts must determine if a genuine
issue of material fact exists, they are not authorized to decide an issue of material fact.
Moore v. Fieldcrest Mills, Inc., 296 N.C. 467, 470, 251 S.E.2d 419, 422 (1979). Further, if
there is any question as to the credibility of affiants in a summary judgment motion or if there
is a question which can be resolved only by the weight of the evidence, summary judgment
should be denied. City of Thomasville v. Lease-Afex, Inc., 300 N.C. 651, 655, 268 S.E.2d
190, 193-94 (1980) (citations omitted). In ruling on a motion for summary judgment, the
evidence is viewed in the light most favorable to the non-moving party, and all inferences of
fact must be drawn against the movant and in favor of the nonmovant. Koenig v. Town of
Kure Beach, 178 N.C.App. 500, 503, 631 S.E.2d 884, 887 (2006) (citations omitted). The
standard of review is de novo. Builders Mut. Ins. Co. v. North Main Constr., Ltd., 361 N.C.
85, 88, 637 S.E.2d 528, 530 (2006).
Viewed in the light most favorable to plaintiff, the evidence tends to show that plaintiff and Mr.
Jones married in 1974, moved to South Carolina from North Carolina in 1979, and had eleven
children during their marriage. They separated on 29 January 2004 but did not enter a
formal separation agreement until 21 January 2005. On 31 January 2005, plaintiff filed for
divorce in South Carolina, and on 4 March 2005, she and Mr. Jones divorced. Defendant
admitted that she lived in North Carolina until mid-August 2003 and between March and May
of 2004. At the time plaintiff filed her complaint, defendant lived in South Carolina. Plaintiff
has resided in South Carolina since 1979. Mr. Jones has lived in South Carolina since 1979
as well, with the exception of spending the majority of the 2003 summer living in a friend's
trailer in North Carolina.
Beginning in January 2003, defendant and Mr. Jones began conversing with some regularity
via cell phone. Both testified that their relationship began to deepen in the spring of 2003.
Defendant testified that she and Mr. Jones began to talk frequently via cell phone in the spring
of 2003 and that they would also occasionally meet in parking lots. Defendant and Mr.
Jones both admitted that they concealed their phone conversations, these meetings, and their
relationship from their respective spouses. Mr. Jones testified that he hid this information
from his wife because his relationship with defendant was too close. Defendant admitted to
having secret, lengthy, phone conversations with Mr. Jones and that she remembered being
very close to Mr. Jones before May 2003. She further testified that in February or March
2003, during a rendevous in a South Carolina parking lot, Mr. Jones gave her a letter stating
that he had fallen in love with [her].
On or about 12 May 2003, plaintiff was diagnosed with genital herpes. After her diagnosis,
Mr. Jones left the marital household for the majority of the 2003 summer, and the Joneses
began marriage counseling. Mr. Jones testified that he had never been diagnosed with
genital herpes. He did testify that he had a rash on his penis and that he believed he had
told defendant about this fact; however, Mr. Jones could not explain why he would have told
defendant about the rash given that he denied having any sexual contact with her prior to this
time. On 15 May 2003, defendant was prescribed Valtrex, a drug used to treat the herpes
virus; however, she testified that she had never been diagnosed with herpes and that the
drug was prescribed to treat fever blisters.
For two to three months during the 2003 summer, Mr. Jones lived in North Carolina in a
friend's trailer. In May 2003, defendant left her marital home in North Carolina and moved
into a condominium in North Carolina. Mr. Jones testified that during the 2003 summer, he
and defendant became affectionate but that they only engaged in hugging at her North
Carolina condominium. Despite testifying several times that only hugging occurred at her
North Carolina apartment, defendant ultimately admitted that she and Mr. Jones engaged in
hugging and kissing throughout the 2003 summer. Plaintiff testified that in August 2003, Mr.
Jones admitted to her that he had engaged in sexual intercourse with defendant at her North
Carolina condominium during the 2003 summer and that he had engaged in sexual touching
with defendant prior to May 2003. In addition, on 6 June 2003, plaintiff went to a home
where Mr. Jones was performing construction and found defendant hiding in a closet, albeit
fully clothed. When asked at her deposition why she was hiding in the closet, defendant
testified that she did not want to confront plaintiff. Plaintiff claims this home was located in
Cherry Grove, North Carolina and defendant asserts it was located in Cherry Grove, South
Carolina.
On or about 21 August 2003, plaintiff allowed Mr. Jones to return to the marital residence
because he promised her that he had ended his relationship with defendant and because
plaintiff wanted to work on their marriage. Toward the end of August, defendant attended a
treatment facility in Arizona known as the Meadows. Defendant admitted that while there,
she wrote a letter to Mr. Jones almost every day and sent them to a secret, prearranged post
office box in Surfside, South Carolina. She further admitted that in these letters, she and Mr.
Jones expressed their love for each other. Mr. Jones testified that defendant sent him the
letters at this post office box so she could-just so she could mail me something. So no one
would know about it obviously. He further testified that he and defendant were going to
great lengths to hide their relationship [b]ecause it was an inappropriate emotional
relationship in that it was too close for two people who were married to other individuals.
On 7 October 2003, Mr. Jones left the marital residence for a second time because plaintiff
believed that he and defendant were continuing to see each other and converse on the
telephone. On or about 2 November 2003, the Joneses resumed living together. Plaintiff
testified that Mr. Jones left the marital residence for a third time on 29 January 2004, but that
they resumed marriage counseling with the goal of Mr. Jones returning to the marital home by
June 2004.
In May 2004, plaintiff discovered Mr. Jones and defendant in bed together in the middle of the
night at a residence in South Carolina. Defendant and Mr. Jones both admitted that they
engaged in sexual intercourse on that day, but claimed that it was the first time that they had
done so. Both defendant and Mr. Jones admitted that approximately one month later, in
June 2004, they went on a weekend trip to Wilmington and New Bern, North Carolina where
they engaged in sexual intercourse. Defendant admitted to paying for the majority of
expenses for this trip. Though Mr. Jones initially testified that he and defendant only had sex
on these two occasions, he ultimately admitted that he and defendant began having sex on a
regular basis beginning in May 2004 and that he was currently in a committed relationship
with defendant.
On 21 January 2005, plaintiff and Mr. Jones signed a formal separation agreement, and on 4
March 2005, they divorced. Mr. Jones testified that his relationship with defendant
contributed to the downfall of his marriage.
II. Analysis
A. Alienation of Affections
On appeal, both parties largely reiterate the arguments raised below. Plaintiff contends a
material issue of fact exists as to the state in which the alleged alienation of affections
occurred, North Carolina, which recognizes the tort, or South Carolina, which has abolished
the tort, particularly given this Court's decision in Darnell v. Rupplin, 91 N.C.App. 349, 371
S.E.2d 743 (1988).
Defendant asserts that no material question of fact exists as to the state in which the alleged
alienation occurred because virtually all of the activity which purportedly alienated Mr. Jones's
affections occurred in South Carolina and the minimal acts that took place in North Carolina
could not have and did not cause any alienation of affection between the Plaintiff and [Mr.]
Jones. Specifically, plaintiff argues: (1) the 2003 cell phone calls she made to Mr. Jones
while she resided in North Carolina were not wrongful and malicious conduct; (2) any
alleged alienating acts that occurred in North Carolina prior to Mr. Jones moving back into the
marital household in August and November 2003 could not have alienated Mr. Jones's
affections because the fact that Mr. Jones returned to the marital residence shows he and
plaintiff reconciled; (3) the June 2004 trip to North Carolina could not have alienated Mr.
Jones's affections because Plaintiff was already divorced [from Mr. Jones] when she learned
of said trip and because defendant and Mr. Jones embarked on said trip after plaintiff had
told defendant I don't want him; you can have him subsequent to finding Mr. Jones and
defendant in bed together in May 2004; and (4) if any alienation did occur, it occurred in
South Carolina either during a November 2004 conversation between defendant and plaintiff
or during a January 2005 incident in which plaintiff discovered Mr. Jones spending the night at
defendant's residence in South Carolina because plaintiff testified that after these incidents
she realized she was probably going to have to file for divorce.
Viewing the evidence in its proper light, we agree with plaintiff that the evidence here is
sufficient to survive defendant's motion for summary judgment.
A claim for alienation of affections is a transitory tort because it is based on transactions
that can take place anywhere and that harm the marital relationship. Darnell, 91 N.C.App. at
351, 371 S.E.2d at 745 (citations omitted). The substantive law applicable to a transitory tort
is the law of the state where the tortious injury occurred, and not the substantive law of the
forum state. Id. (citations omitted). The issue of where the tortious injury occurs, and
accordingly which state's law applies, is based on where the alleged alienating conduct
occurred, not the locus of the plaintiff's residence or marriage. Id.; see also Charles E. Daye
& Mark W. Morris, North Carolina Law of Torts 11.25, at 109, n. 47 (2d ed.1999)
[hereinafter, Daye, Torts ] (stating that the law applicable to determine whether alienation of
affections occurred is that of the state in which the conduct occurred); 1 Robert E. Lee, North
Carolina Family Law 5.50, at 421 (5th ed.1993) [hereinafter Lee, Family Law ] (stating that
the Court of Appeals [has] found [in Darnell ] that the place where the conduct occurred
should govern [which state's law applies] in an action for alienation of affections) (footnote
omitted). Accordingly, where the defendant's involvement with [the] plaintiff's [spouse]
spans multiple states, for North Carolina substantive law [to] appl[y], a plaintiff must show
that the tortious injury occurred in North Carolina. Darnell, 91 N.C.App. at 351, 371
S.E.2d at 745. Thus, if the tortious injury occurs in a state that does not recognize alienation
of affections, the case cannot be tried in a North Carolina court. Id. (citations omitted).
To establish a claim for alienation of affections, plaintiff's evidence must prove: (1) plaintiff
and [her husband] were happily married and a genuine love and affection existed between
them; (2) the love and affection was alienated and destroyed; and (3) the wrongful and
malicious acts of defendant produced the alienation of affections.
Id. at 350-51, 371 S.E.2d at 745 (citations omitted; alteration in original).
A claim for alienation of affections is comprised of wrongful acts which deprive a married
person of the affections of his or her spouse-love, society, companionship and comfort of the
other spouse The gist of the tort is an interference with one spouse's mental attitude toward
the other, and the conjugal kindness of the marital relation [Evidence of alienation] is
sufficient if there is no more than a partial loss of [a spouse's] affections.
Id. at 350, 371 S.E.2d at 744 (citations omitted; alterations in original). [A]n alienation of
affections claim does not have to be based on pre-separation conduct alone. McCutchen
v. McCutchen, 360 N.C. 280, 285, 624 S.E.2d 620, 625 (2006). Furthermore:
Destruction of the marriage is not a necessary element of the action. Rather, the action
lies for the diminution of affection within the marital relationship. Thus, while damages will
obviously be affected, the action lies for the diminished affection, and a partial loss of affection
is sufficient to support the action.
Daye, Torts 11.22.2, at 107 (footnotes omitted). Finally, as this Court stated in Darnell,
even if it is difficult to discern where the tortious injury occurred, the issue is generally one for
the jury:
We recognize that the injury attributable to the alienation of another's affections is a nebulous
concept, which, unlike a broken bone, is not a readily identifiable event. The establishment
of this tortious injury is further complicated because it may be sustained through one act or
through successive acts of a defendant.
However, even with this knowledge, as long as this cause of action exists in North Carolina,
we conclude that the issue of where the tort took place may not be kept from a jury simply
because it is difficult to discern.
Darnell, 91 N.C.App. at 354, 371 S.E.2d at 747.
Here, when the evidence is viewed in the light most favorable to plaintiff, we believe a
material question of fact exists as to whether the alleged alienation of Mr. Jones's affections
occurred in North Carolina or South Carolina, especially given the clandestine phone calls
defendant made to Mr. Jones in the spring and summer of 2003, the sexual acts that
admittedly and allegedly occurred during the 2003 summer at defendant's North Carolina
condominium, and the 2004 trip to North Carolina during which defendant and Mr. Jones
admitted to engaging in sexual intercourse.
While defendant cites this Court's decision in Coachman v. Gould, 122 N.C.App. 443, 470
S.E.2d 560 (1996), for the proposition that summary judgment is proper here and that the
telephone calls she made from North Carolina to South Carolina, were not wrongful and
malicious conduct, we disagree. A malicious act, in the context of an alienation of affection
claim, has been loosely defined to include any intentional conduct that would probably affect
the marital relationship. Pharr v. Beck, 147 N.C.App. 268, 272, 554 S.E.2d 851, 854 (2001)
(citations and footnote omitted), overruled in part on other grounds by, McCutchen, 360 N.C.
at 285, 624 S.E.2d at 624-25. [M]alicious acts are acts constituting unjustifiable conduct
causing the injury complained of. Coachman, 122 N.C.App. at 448, 470 S.E.2d at 564
(citations omitted). In granting summary judgment in the defendant's favor on the alienation
of affections claim in Coachman, this Court specifically noted that the only possible wrongful
and malicious instances of conduct by [the defendant we]re the phone calls [the defendant]
made to the marital home[.] Id. The Court concluded that the lengthy phone conversations
between the defendant, who resided in Florida, and the plaintiff's spouse, who resided in
North Carolina, were not sufficient evidence of malicious and wrongful conduct because the
plaintiff admitted that the defendant and his wife had an ongoing business relationship, which
provided a valid; inoffensive reason for calling the [marital] home and because [t]here [wa]s
no indication that the phone conversations were marked by salacious whisperings, plans for
clandestine meetings, or any other intonation of improper conduct by defendant. Id. In
contrast, in the instant case, not only is there more evidence to support plaintiff's alienation of
affections claim than existed in Coachman, defendant and Mr. Jones intentionally concealed:
These phone conversations; their in-person meetings with each other, which they arranged
via these phone conversations; and their relationship from their respective spouses.
Next, defendant argues that these phone calls, the clandestine in-person meetings, and the
sexual activity that occurred at her North Carolina condominium during the summer of 2003
did not alienate the affections of Mr. Jones because subsequent to these events, Mr. Jones
returned to the marital home and agreed to work on his marriage. We disagree.
First, we note that defendant's argument appears to assume that simply because a plaintiff
and her spouse agree to resume living together in the marital home and work on their
marriage following a defendant's alleged interference in their marriage, no alienation of
affections has occurred. Defendant's argument is contrary to North Carolina law and ignores
the fact that diminution or destruction [of love and affection] often does not happen all at
once. [Rather] [t]he mischief is a continuing one [.] McCutchen, 360 N.C. at 284, 624
S.E.2d at 623-24 (citations omitted). Furthermore, the mere fact that plaintiff and Mr. Jones
attempted to reconcile, does not conclusively negate the fact that a partial loss of [Mr.
Jones's] affections' could have occurred. Darnell, 91 N.C.App. at 350, 371 S.E.2d at 744
(citation omitted). As stated by our Supreme Court, the fact that spouses continue living
together after the alleged alienation does not preclude the possibility that alienation of
affections has already occurred. McCutchen, 360 N.C. at 284, 624 S.E.2d at 624 (citation
omitted). See also, 1 Lloyd T. Kelso, North Carolina Family Law Practice 5:9, at 277
(2008) ([t]he fact that the [wife] continues to live with the [husband] after knowledge of [his]
adultery, but without condoning it, is no defense, and the fact that the plaintiff and her or his
spouse continue to live in the same house after the spouse's affections have allegedly been
alienated affects only the credibility of the plaintiff's testimony, and is not a defense to a claim
of alienation of affections) (footnotes omitted). As such, the alleged alienating acts that
occurred in North Carolina prior to Mr. Jones's brief returns to the marital residence in August
and November 2003 respectively are relevant and material in determining where the tortious
injury occurred.
Next, defendant argues that her June 2004 trip to North Carolina with Mr. Jones, during which
they engaged in sexual intercourse, could not possibly have alienated the affection of [Mr.]
Jones from Plaintiff because plaintiff was already divorced [from him] when she learned of
said trip[,] and because when she called plaintiff to apologize for hurting her after plaintiff had
found defendant and Mr. Jones in bed together in May 2004, plaintiff told her I don't want
him; you can have him. We disagree.
First, defendant does not cite any authority to establish that a plaintiff-spouse must show
that she was aware of every alienating act prior to divorce in order to assert said acts
alienated her spouse's affection. And, we fail to discern how a plaintiff's lack of awareness
as to a particular alienating act prior to divorce conclusively negates the fact that said act
might have sufficiently diminished her spouse's affections toward her. In addition, defendant
makes no argument and cites no authority as to how plaintiff's statement that she did not want
Mr. Jones and that defendant could have him, which plaintiff testified was made in a state of
anger, conclusively negates the fact that the 2004 trip to North Carolina alienated Mr. Jones's
affections. To the extent that defendant's brief implicates the argument that plaintiff
consented to such activity, we decline to address this issue as defendant neither raised nor
argued the defense of consent below nor does she argue it or cite any authority in support
thereof in her brief.
Finally, defendant appears to argue that if any alienation occurred here, it conclusively did not
occur until November 2004 when plaintiff purportedly realized via a discussion with defendant
in South Carolina that she was going to have to get a divorce, or until January 2005, when
plaintiff discovered defendant and Mr. Jones together at defendant's South Carolina
residence, which purportedly prompted plaintiff to file for divorce. We disagree. As we
stated supra, [d]estruction of the marriage is not a necessary element of [alienation of
affections]. Rather, the action lies for the diminution of affection within the marital
relationship. Daye, Torts 11.22.2, at 107 (footnote omitted). Hence, while this evidence
supports the fact that prior to this point, plaintiff was still trying to salvage her marriage with
Mr. Jones and that she believed it was still possible, this does not conclusively negate the fact
that defendant might have already sufficiently alienated Mr. Jones's affections toward plaintiff.
Furthermore, we note that when viewed in the light most favorable to plaintiff, the November
2004 conversation actually lends support to plaintiff's claim that the alienation had already
occurred and that defendant was puzzled as to how plaintiff had not already grasped that fact.
Specifically, defendant allegedly stated to plaintiff:
Don't you get it? What does it take for you to get it? I wonder just what does it take for
you to get it. You catch us here and there and, you know, at The Collins and all these
telephone conversations. What does it take for you? I just don't understand[.]
In sum, because we conclude that when the evidence here is viewed in the light most
favorable to plaintiff, a material issue of fact exists as to whether the alleged alienation of
affections occurred in North Carolina or South Carolina, we hold the trial court erred in
granting summary judgment based on lack of subject matter jurisdiction.
B. Criminal Conversation
Plaintiff asserts the court erred with respect to her criminal conversation claim because
North Carolina law is clear that she, not defendant, was entitled to summary judgment.
Although defendant acknowledges case law to the contrary[,] she argues that a single
occurrence of sexual intercourse between her and Mr. Jones in North Carolina in June 2004,
which occurred while plaintiff and her husband were separated and subsequent to plaintiff
telling her that she did not want Mr. Jones, does not constitute an interest of the State to give
North Carolina subject matter jurisdiction. We agree with plaintiff.
To withstand [a] defendant's motion for summary judgment on [a] claim of criminal
conversation, plaintiff must present evidence demonstrating: (1) marriage between the
spouses and (2) sexual intercourse between defendant and plaintiff's spouse during the
marriage. Coachman, 122 N.C.App. at 446, 470 S.E.2d at 563 (citation omitted). In
addition, a plaintiff must also show that the tortious injuries [the] criminal conversation,
occurred in North Carolina before North Carolina substantive law can be applied. Cooper v.
Shealy, 140 N.C.App. 729, 736, 537 S.E.2d 854, 859 (2000) (citation omitted).
Consequently, a plaintiff must show that a defendant engaged in sexual intercourse with her
spouse in North Carolina. North Carolina law is clear that a claim for criminal conversation
can be based solely on post-separation conduct. Johnson v. Pearce, 148 N.C.App. 199, 201,
557 S.E.2d 189, 190-91 (2001). Even where spouses enter into a separation agreement
containing provisions which purportedly address and waive their right to exclusive sexual
intercourse with the other, this Court, reasoning that such provision[s] relate[ ] only to the
spouse['s] rights against each other and not against third parties, has held that the existence
of [such a] separation agreement between [a] plaintiff and [her spouse] does not shield [a]
defendant from liability for criminal conversation based on [a defendant's] post-separation
sexual relationship with [the plaintiff's spouse]. Nunn v. Allen, 154 N.C.App. 523, 536, 574
S.E.2d 35, 43-44 (2002), disc. review denied, 356 N.C. 675, 577 S.E.2d 630 (2003). Finally,
a plaintiff may recover for criminal conversation where the evidence merely shows a single
encounter of sexual intercourse between a defendant and her spouse. See, e.g., Warner v.
Torrence, 2 N.C.App. 384, 163 S.E.2d 90 (1968).
Here, there is no material question of fact that defendant engaged in sexual intercourse with
Mr. Jones in North Carolina while he and plaintiff were still married and prior to the execution
of a separation agreement. While defendant argues that North Carolina does not have
subject matter jurisdiction because at the time the June 2004 intercourse occurred, neither the
parties nor Mr. Jones were residents of North Carolina and because North Carolina has no
interest in the exclusive right of the sexual relationship between South Carolina residents, we
note that [i]n actions arising in tort, [North Carolina employs] the doctrine of lex loci delicti
[which] provides that the law of the state where the tort was allegedly committed controls the
substantive issues of the case. Gbye v. Gbye, 130 N.C.App. 585, 585, 503 S.E.2d 434, 434
(citation omitted), disc. review denied, 349 N.C. 357, 517 S.E.2d 893 (1998). North Carolina
case law reveals a steadfast adherence by our courts to the traditional application of the lex
loci delicti doctrine. Id. at 587, 503 S.E.2d at 435 (citations omitted). Furthermore, as
noted by this Court, our Supreme Court has stated that lex loci delicti is a rule not to be
abandoned in this State[.] Id. at 588, 503 S.E.2d at 436 (citing Boudreau v. Baughman, 322
N.C. 331, 336, 368 S.E.2d 849, 854 (1988)). Accordingly, we hold that the trial court erred in
granting summary judgment based on lack of subject matter jurisdiction in defendant's favor
and that the trial court should have entered summary judgment in plaintiff's favor as there is
no issue of material fact regarding plaintiff's criminal conversation claim arising out of the June
2004 sexual intercourse and plaintiff was entitled to judgment as a matter of law.
We note that while the vast majority of states have abolished the torts of alienation of
affections and criminal conversation, our Supreme Court has clearly stated that both torts
exist in North Carolina and that only our legislature or our Supreme Court can abolish them.
Cannon v. Miller, 313 N.C. 324, 327 S.E.2d 888 (1985). Furthermore, until the legislature or
Supreme Court acts to modify these torts, we are bound both by the decisions of that Court as
well as by prior decisions of this Court. Johnson, 148 N.C.App. at 202, 557 S.E.2d at 191
(citations omitted).
III. Conclusion
In sum, we conclude that the trial court erred in granting summary judgment in defendant's
favor and dismissing plaintiff's claim for alienation of affections based on lack of subject matter
jurisdiction because when the evidence is viewed in the light most favorable to plaintiff, a
material question of fact exists as to the state in which defendant's alleged alienation of Mr.
Jones's affections occurred. We further conclude that the trial court erred in granting
summary judgment in defendant's favor and dismissing plaintiff's criminal conversation claim
because it is undisputed that defendant engaged in sexual intercourse with Mr. Jones in North
Carolina in June 2004, while he was still married to plaintiff; as such, plaintiff, not defendant,
was entitled to summary judgment on the criminal conversation claim. Accordingly, we
reverse the trial court's order and remand for further proceedings not inconsistent with this
opinion.
Reversed and remanded.
FOOTNOTES
1. Defendant also admits to stipulating to personal jurisdiction in this matter on appeal.
United States Court of Appeals,Seventh Circuit.
Joseph KAMELGARD, Plaintiff-Appellant/Cross-Appellee, v. Jerzy MACURA, Defendant-
Appellee/Cross-Appellant.
Nos. 08-4254, 09-1030.
Decided: October 23, 2009
Before POSNER, FLAUM, and ROVNER, Circuit Judges. Miles J. Zaremski, Attorney
(argued), Zaremski Law Group, Northbrook, IL, for Plaintiff-Appellant. Daniel M. Purdom,
Attorney, Adam L. Saper, Attorney, Hinshaw & Culbertson, Chicago, IL, for Defendant-
Appellee.
The plaintiff, a bariatric surgeon who lives and practices in New Jersey, brought this diversity
suit in the federal district court in Chicago. He claims to have been defamed by the
defendant, another bariatric surgeon, who practices in New York. The district judge dismissed
the suit without prejudice, on the ground that venue in Chicago was improper, and the plaintiff
appeals. The defendant cross-appeals, claiming that the dismissal of the suit should have
been with prejudice because the suit is time-barred. The cross-appeal is proper-and the
plaintiff's challenge to it and his request for sanctions for the filing of the cross-appeal is
frivolous and itself sanctionable-because it seeks relief beyond what the defendant obtained
from the district court. Greenlaw v. United States, --- U.S. ----, 128 S.Ct. 2559, 2564, 171
L.Ed.2d 399 (2008); Stone Container Corp. v. Hartford Steam Boiler Inspection & Ins. Co.,
165 F.3d 1157, 1159 (7th Cir.1999); Abbs v. Sullivan, 963 F.2d 918, 924 (7th Cir.1992).
The plaintiff had testified against the defendant in a malpractice suit in New York, and the
defendant had retaliated-according to the plaintiff's complaint-by mailing a defamatory letter
on or about March 1, 2006, to the American College of Surgeons, which is located in Chicago.
The defendant had on that day mailed what the plaintiff believes to be an identical or nearly
identical letter of complaint about the plaintiff's testimony to the American Society of Bariatric
Surgeons (now the American Society for Metabolic and Bariatric Surgery), in Florida. That
letter is in the record, but the letter to the American College of Surgeons (if there is such a
letter) is not, and the plaintiff has seen neither the original nor a copy. On April 5, however,
he received a letter from an official of the American College of Surgeons, notifying him that the
College had received a complaint about his testimony as an expert witness in the New York
malpractice suit against the defendant. But the letter did not identify the complainant.
The College's disciplinary committee assigned three bariatric surgeons to investigate the
complaint. In October the College sent the plaintiff a letter charging him with unprofessional
conduct. But in March of the following year, after he had informed the College that the
defendant had been sued for malpractice 30 times, the College wrote the plaintiff that its
disciplinary committee had voted to take no further action with regard to this matter.
The plaintiff claims not to have known that the defendant was the source of complaints against
him until June 13, 2007, when at a convention in California a bariatric surgeon told him about
the Florida letter. After that he put two and two together and concluded that the defendant
must have been the author of the complaint to the College. His previous ignorance of the
putative source of the complaint is a little hard to credit, since the College had told him that the
complaint concerned his conduct in the malpractice suit against the defendant. But we'll
assume it's true-it has to be, or his goose is cooked, because he didn't file this suit until June
3, 2008. That was more than a year after the alleged defamation by the two letters but just
under a year after the conversation in California; and the Illinois statute of limitations, which
the plaintiff contends is applicable to his suit (the defendant disagrees, and their disagreement
is the principal issue in the appeals), requires that a suit for defamation be brought within a
year of the publication of the defamatory statement, 735 ILCS 5/13-201; Davis v. Cook
County, 534 F.3d 650, 654 (7th Cir.2008)-unless the plaintiff could not have discovered the
defamation within that period. Tom Olesker's Exciting World of Fashion, Inc. v. Dun &
Bradstreet, Inc., 61 Ill.2d 129, 334 N.E.2d 160, 164 (1975); Goodman v. Harbor Market, Ltd.,
278 Ill.App.3d 684, 215 Ill.Dec. 263, 663 N.E.2d 13, 17-18 n. 3 (1996); Schweihs v. Burdick,
96 F.3d 917, 920 (7th Cir.1996) (Illinois law).
We begin our analysis with the issue of the missing letter to the American College of
Surgeons. To proceed in a libel suit without the statement that is alleged to be defamatory is
unconventional, though there are a few such cases. Trail v. Boys & Girls Clubs of Northwest
Indiana, 845 N.E.2d 130, 137-38 (Ind.2006), for example, was a libel suit by a disgruntled
former employee against his supervisors complaining about a biased report that cast him in a
negative light. He had not seen the report, and the court ordered the suit dismissed,
explaining that without the statement the court cannot actually determine if the statement is
legally defamatory. We haven't found a case in which such a suit was successful, but we
don't think there is or should be an absolute rule that without the corpus delicti, as it were, a
libel suit must fail. The allegedly libelous document might have disappeared through no fault
of the plaintiff and there might be evidence of its existence and contents, such as testimony by
persons who had read it-just as key evidence in a slander case, because slander is oral, is the
testimony of persons who heard it. Robison v. Lescrenier, 721 F.2d 1101, 1104 (7th
Cir.1983); Simon v. Shearson Lehman Brothers, Inc., 895 F.2d 1304, 1309 (11th Cir.1990);
Gasbarra v. Park-Ohio, Inc., 382 F.Supp. 399, 403 (N.D.Ill.1974); Israel Travel Advisory
Service Inc. v. Israel Identity Tours, Inc., No. 92-C-2379, 1994 WL 30984 (N.D.Ill. Jan.28,
1994), affirmed, 61 F.3d 1250 (7th Cir.1995).
The plaintiff contends that he asked the College for the letter and the College wouldn't give it
to him-indeed, would neither admit nor deny the existence of such a letter. He had joined
the College as a defendant; and in its motion to dismiss (which was granted) the College
argued that if there was such a letter it was privileged by the Illinois Medical Studies Act, 735
ILCS 5/8-2101 (all information, interviews, reports, statements, memoranda,
recommendations, letters of reference or other third party confidential assessments of a health
care practitioner's professional competence, or other data of the Illinois State Medical
Society, [or] allied medical societies used in the course of internal quality control for
improving patient care shall be privileged [and] strictly confidential); Jenkins v. Wu, 102
Ill.2d 468, 82 Ill.Dec. 382, 468 N.E.2d 1162, 1168-69 (1984); cf. Austin v. American
Association of Neurological Surgeons, 253 F.3d 967, 974 (7th Cir.2001) (Illinois law); by the
status of the College as a quasi-judicial body, Illinois College of Optometry v. Labombarda,
910 F.Supp. 431, 432-34 (N.D.Ill.1996); and by the common law privilege for a
communication that the defendant had a duty to make and did not disseminate any further
than necessary. Kuwik v. Starmark Star Marketing & Administration, Inc., 156 Ill.2d 16, 188
Ill.Dec. 765, 619 N.E.2d 129, 132-35 (1993); In re Himmel, 125 Ill.2d 531, 127 Ill.Dec. 708,
533 N.E.2d 790 (1988); Smock v. Nolan, 361 F.3d 367, 372 (7th Cir.2004) (Illinois law); J.D.
Edwards & Co. v. Podany, 168 F.3d 1020, 1022 (7th Cir.1999) (same); Jones v. Western &
Southern Life Ins. Co., 91 F.3d 1032, 1035 (7th Cir.1996) (same). A professional, including
a doctor (see American Medical Association, Code of Medical Ethics, Opinion 9.031
(Reporting Impaired, Incompetent, or Unethical Colleagues), June 2004, www.ama-assn.org/
ama/pub/physician-resources/medical-ethics/ code-medical-ethics/opinion9031.shtml (visited
Oct. 4, 2009)), has a duty to notify the proper public or private authorities of unprofessional
conduct, which he observes, by a fellow professional.
The plaintiff made no effort to obtain the supposed letter to the American College of Surgeons
by compulsory process and seems to have had no plans to do so. As we'll see, he
apparently did not realize that he could obtain it, however unwilling the College was to divulge
it, by subpoena under Rule 45 of the civil rules unless the College prevailed on one of its
claims of privilege.
In light of the plaintiff's failure to obtain the letter, the claim based on it is probably going
nowhere even if the letter exists and is not privileged. Indeed the claim may have been
dismissed already-and on the merits, rather than for improper venue. The district judge termed
the plaintiff's assertion that he could not identify the alleged defamatory statement made by
the defendant because this information is solely in [the College's possession] meritless, given
his discovery rights. Later the judge described the plaintiff's complaint as insufficient to the
extent Kamelgard claims Macura made unidentified defamatory statements to American
College of Surgeons and therefore there presently appears to be no venue in this court for
Kamelgard's claims against Macura. Unless Kamelgard remedies this situation within 10
days, his entire complaint shall be dismissed without prejudice for lack of venue.
Presumably the judge thought that if the plaintiff couldn't obtain the letter on which he based
his claim against the College of Surgeons, the claim had no merit and therefore Illinois (where
the College's headquarters are located) had no connection to the suit: a New Jersey resident
would be suing in Illinois a New York resident over a letter mailed to Florida from New York
(presumably-but certainly not from Illinois).
When the judge turned down a request by the plaintiff to clarify what she meant by discovery
rights, the plaintiff's lawyer moved to take deposition testimony under Rule 27 of the civil
rules. The judge referred the motion to a magistrate judge, who held a hearing at which he
expressed bafflement at the plaintiff's invocation of that rule, which governs depositions taken
before suit (to preserve evidence) or pending appeal, neither being a concern pertinent to this
case. He asked why the plaintiff wasn't proceeding under Rule 45, which governs
subpoenas. The plaintiff's lawyer was unacquainted with that rule and, it soon became clear,
was in any event not seeking production of the letter, which he could have done (subject to a
defense of privilege, Fed.R.Civ.P. 45(c)(3)(A)(iii)) by serving a subpoena duces tecum on the
College. Fed.R.Civ.P. 26(b)(1), 45; Gotham Holdings, LP v. Health Grades, Inc., 580 F.3d
664. (7th Cir.2009); Capital Co. v. Fox, 85 F.2d 97, 100-01 (2d Cir.1936) (L.Hand, J.).
Instead he wanted to depose the bariatric surgeon who had told him in June 2007 in California
about the investigation by the College and the defendant's letter to the American Society of
Bariatric Surgeons.
The magistrate judge noted that the plaintiff's lawyer had withdrawn his motion to proceed
under Rule 27, and suggested that he proceed under Rule 45 to obtain the letter, but he did
not do so. It seems that he may not know how to use compulsory process to obtain a
document from a third party for use in a proceeding in a federal court.
The district judge seems to have considered the failure to obtain the letter that the plaintiff
thinks is in the College's possession fatal to his claim that the letter defamed him. For
remember that she had said that if he didn't identify the defamatory statements that he
claimed the defendant had made to the College, she would dismiss the case for improper
venue, since, as we said, without defamatory statements to the College, Illinois has no
connection to the suit. He never did identify the statements, and while the dismissal of the
suit was without prejudice, probably that was only because the claim against the defendant for
defamation by means of the mailing to Florida was still alive when the judge ruled, though that
claim was abandoned, both in the defendant's reply brief in this court and by his lawyer at the
oral argument, for reasons explained later in this opinion.
The most natural interpretation of the district judge's series of orders is thus that the plaintiff
having failed even to attempt by use of process to obtain information that the judge thought
vital to his claim of having been defamed in Illinois, that claim was dismissed under Rule
12(b)(6) (failure to state a claim), leaving just the claim based on the letter to Florida, which
did not support venue in Illinois. A dismissal for failure to state a claim is a dismissal on the
merits, Fed.R.Civ.P. 41(b), unless the dismissal order states otherwise; and a dismissal on
the merits is normally with prejudice and thus a bar to relitigation. Federated Department
Stores, Inc. v. Moitie, 452 U.S. 394, 399 n. 3, 101 S.Ct. 2424, 69 L.Ed.2d 103 (1981);
Waypoint Aviation Services Inc. v. Sandel Avionics, Inc., 469 F.3d 1071, 1073 (7th Cir.2006);
9 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure 2373, pp. 739-42
(3d ed.2008). The usual exception is where the court gives the plaintiff an opportunity to
cure the defect in his complaint by filing an amended complaint. Kaplan v. Shure Brothers,
Inc., 266 F.3d 598, 601 (7th Cir.2001); Bastian v. Petren Resources Corp., 892 F.2d 680, 682
(7th Cir.1990); McLean v. United States, 566 F.3d 391, 400 (4th Cir.2009). The judge had
already given the plaintiff an opportunity to cure the defect (the absence of the letter or its
contents), and the plaintiff's lawyer had flubbed it.
We are supported in our interpretation of the district judge's actions by the fact that unless she
intended to dismiss the claim arising from the supposed letter on the merits, her ruling on
venue would not make sense. For if that claim were viable, Illinois would be as good a
venue for litigating it as anywhere, since the parties are residents of two different states and
one of the alleged defamatory statements on which the suit is based was made in Illinois and
the other in a fourth state, Florida. See 28 U.S.C. 1391(a)(2); Askew v. Sheriff of Cook
County, 568 F.3d 632, 636 (7th Cir.2009); Reliance Ins. Co. v. Polyvision Corp., 474 F.3d 54,
59 (2d Cir.2007); Uffner v. La Reunion Francaise, S.A., 244 F.3d 38, 43 (1st Cir.2001); 14D
Charles A. Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure
3806.1, pp. 199-216 (3d ed. 2007).
At argument the plaintiff's lawyer told us that the Florida letter had been mentioned in the
complaint only to bolster the claim arising from the conjectured letter to the American
College of Surgeons; the Florida letter was merely circumstantial evidence that the defendant
had written a similar letter to the American College of Surgeons. So if the claim based on
the Illinois letter was properly dismissed on the merits, then since the claim based on the
Florida letter has been abandoned, the defendant is entitled to dismissal of the entire suit with
prejudice, as he seeks. But there is uncertainty about what the district judge did or meant to
do; the defendant has pitched his defense (and cross-appeal) on a separate ground-choice of
law; and the plaintiff has some evidence that there was a defamatory letter to the American
College of Surgeons. Given the simultaneous mailing to Florida and the fact that the
defendant was the likeliest person to complain to the American College of Surgeons about the
plaintiff's testimony in a malpractice suit against him, he probably did mail an identical or
nearly identical letter to the College. Against this it could be argued that the plaintiff's failure
to use compulsory process suggests doubt on his part about what that endeavor would have
produced-perhaps no letter, perhaps no defamatory statements in the letter. But that would
be an inference for the jury to draw or not as it wished.
So on to choice of law. The defendant argues that the applicable law in this case is not
Illinois law, as he had thought initially, until the district judge had questioned it (and as the
plaintiff continues to argue), but New Jersey law. If he is right, the suit is time-barred
because New Jersey, though like Illinois it has a one-year statute of limitations for defamation
suits, 2A NJSA 14-3; In re Breen, 113 N.J. 522, 552 A.2d 105, 111 (1989); Doug Grant,
Inc. v. Greate Bay Casino Corp., 3 F.Supp.2d 518, 538 (D.N.J.1998), has no discovery rule for
such suits. Palestri v. Monogram Models, Inc., 875 F.2d 66, 70 (3d Cir.1989) (New Jersey
law); Lawrence v. Bauer Publishing & Printing Ltd., 78 N.J. 371, 396 A.2d 569, 570-71 (1979)
(concurring opinion). In Williams v. Bell Telephone Laboratories Inc., 132 N.J. 109, 623 A.2d
234, 239 (1993) (per curiam), the New Jersey supreme court suggested a willingness to
reconsider the issue in a future case, but it has yet to do so.
It used to be a flat rule (called lex loci delicti-the law of the place of the wrong) that the law
applicable in a tort case is the law of the place where the tort occurred. Slater v. Mexican
National R.R., 194 U.S. 120, 126, 24 S.Ct. 581, 48 L.Ed. 900 (1904) (Holmes, J.); Loucks v.
Standard Oil Co., 224 N.Y. 99, 120 N.E. 198, 201-02 (1918) (Cardozo, J.); Restatement of
Conflict of Laws 377-378 (1934); 2 Joseph H. Beale, A Treatise on the Conflict of Laws
377.2, pp. 1287-88 (1935). And that means the place where the injury caused by the tort
occurred. Townsend v. Sears, Roebuck & Co., 227 Ill.2d 147, 316 Ill.Dec. 505, 879 N.E.2d
893, 899-900 (2007); Abdullahi v. Pfizer, Inc., 562 F.3d 163, 190 (2d Cir.2009); Abad v.
Bayer Corp., 563 F.3d 663, 669 (7th Cir.2009); Kuehn v. Childrens Hospital, 119 F.3d 1296,
1301 (7th Cir.1997); Rozenfeld v. Medical Protective Co., 73 F.3d 154, 155-56 (7th Cir.1996).
Injury is necessary to make an act a tort because there is no tort without an injury. Id. at 156;
Janmark, Inc. v. Reidy, 132 F.3d 1200, 1202 (7th Cir.1997); Kanar v. United States, 118 F.3d
527, 531 (7th Cir.1997); W. Page Keeton et al., Prosser & Keeton on the Law of Torts 1, p.
4 (5th ed. 1984). The theory of the old rule (if it can be dignified with the word theory), lex
loci delicti, as explained in the Holmes and Cardozo opinions that we cited, is that the right to
a tort remedy vests upon injury; the existence and scope of the right therefore depend on the
law of the place of injury; and the vested right, viewed as a piece of property acquired in the
place of injury, is carried by the plaintiff, like the turtle's shell, to wherever he decides to sue.
The old rule came to seem too rigid, mainly because of such anomalies as suits between
citizens of the same state when it was not the state where the accident had occurred. The
rule has been reduced, in effect, to a presumption, in Illinois as in other states. See Ingersoll
v. Klein, 46 Ill.2d 42, 262 N.E.2d 593, 595 (1970); Ferguson v. Kasbohm, 131 Ill.App.3d 424,
86 Ill.Dec. 605, 475 N.E.2d 984, 986-87 (1985); Carris v. Marriott Int'l, Inc., 466 F.3d 558,
560-61 (7th Cir.2006) (Illinois law); Spinozzi v. ITT Sheraton Corp., 174 F.3d 842, 844-45 (7th
Cir.1999) (same); Travelers Indemnity Co. v. Lake, 594 A.2d 38, 47 (Del.1991); Pevoski v.
Pevoski, 371 Mass. 358, 358 N.E.2d 416, 417 (1976); Restatement (Second) of Conflict of
Laws 145 comment e, 146 (1971). We say in effect because most states, including
Illinois, nowadays apply the law of the state that has the most significant relationship to the
claim, e.g., Ingersoll v. Klein, supra; Esser v. McIntyre, 169 Ill.2d 292, 214 Ill.Dec. 693, 661
N.E.2d 1138, 1141 (1996); P.V. ex rel. T.V. v. Camp Jaycee, 197 N.J. 132, 962 A.2d 453,
461 (2008); Restatement, supra 145(1), rather than the lex loci delicti. But as we
explained in the Spinozzi case, the state with the most significant relation to a claim is usually
the state in which the tort (and therefore the injury) occurred. That state has the greatest
interest in striking a reasonable balance among safety, cost, and other factors pertinent to the
design and administration of a system of tort law. Most people affected whether as victims
or as injurers by accidents and other injury-causing events are residents of the jurisdiction in
which the event takes place. So if law can be assumed to be generally responsive to the
values and preferences of the people who live in the community that formulated the law, the
law of the place of the accident can be expected to reflect the values and preferences of the
people most likely to be involved in accidents-can be expected, in other words, to be
responsive and responsible law, law that internalizes the costs and benefits of the people
affected by it. 174 F.3d at 845.
Defamation, however, is a tort that the old rule, now a presumption, very often doesn't fit,
because often the defamatory statement is communicated in more than one state. There is
also ambiguity concerning the injury caused by defamation-does it occur just where the
plaintiff incurs some tangible harm such as a loss of income, or where his reputation is
impaired, and if the latter does he have a reputation in a state in which the statement is
communicated even if no one there has ever heard of him?
When the defamatory statement is communicated in many different states, it makes sense
to apply the law of the plaintiff's domicile, and that is the usual result in Illinois. See Velle
Transcendental Research Ass'n, Inc. v. Esquire, Inc., 41 Ill.App.3d 799, 354 N.E.2d 622, 625
(1976); Snead v. Forbes, Inc., 2 Ill.App.3d 22, 275 N.E.2d 746, 748-49 (1971); Rice v. Nova
Biomedical Corp., 38 F.3d 909, 915-16 (7th Cir.1994) (Illinois law), as elsewhere. Selle v.
Pierce, 494 N.W.2d 634, 636-37 (S.D.1993); Williams v. United States, 71 F.3d 502, 506 (5th
Cir.1995) (Texas law); Reeves v. American Broadcasting Cos., 719 F.2d 602, 605 (2d
Cir.1983) (New York law); Hanley v. Tribune Publishing Co., 527 F.2d 68, 70 (9th Cir.1975)
(Nevada law); Restatement, supra, 150(2) and comment e (1971). But see Wainwright's
Vacations LLC v. Pan American Airways Corp., 130 F.Supp.2d 712, 721-22 (D.Md.2001)
(Maryland law). That is where the principal injury from a defamation will occur because it is
where the victim works and lives and where (in the usual case) most of the people-family,
friends, business associates, etc.-are found with whom he has personal or commercial
transactions, which might be impaired by defamation. Snead v. Forbes, Inc., supra, 275
N.E.2d at 748-49; Crane v. New York Zoological Society, 894 F.2d 454, 457 (D.C.Cir.1990);
Hanley v. Tribune Publishing Co., supra, 527 F.2d at 70; Fitzpatrick v. Milky Way
Productions, Inc., 537 F.Supp. 165, 171 (E.D.Pa.1982). And it is where, according to
Learned Hand, he feels the sting of defamation. Hand said that the gravamen of the wrong
in defamation is not so much the injury to reputation, measured by the opinions of others, as
the feelings, that is, the repulsion or the light esteem, which those opinions engender.
Burton v. Crowell Publishing Co., 82 F.2d 154, 156 (2d Cir.1936) (L.Hand, J.).
The Restatement, while stating that in a defamation case the state of most significant
relationship will usually be the state where the person was domiciled at the time, adds-if the
matter complained of was published in that state. Restatement, supra, 150(2). In the
law of defamation, the word published just means that the defamatory statement was made
to someone other than the plaintiff. Frank v. Kaminsky, 109 Ill. 26 (1884); Emery v.
Northeast Illinois Regional Commuter R.R., 377 Ill.App.3d 1013, 317 Ill.Dec. 10, 880 N.E.2d
1002, 1009 (2007); Barnes v. Yahoo!, Inc., 570 F.3d 1096, 1104 (9th Cir.2009). There is no
actionable defamation if the recipient of a letter that libels him, no copy of which has been sent
to anyone else, tears it up without communicating its contents to anyone (that is, without self-
publication, as in Rice v. Nova Biomedical Corp., supra ). For then he cannot suffer an
injury to his reputation, or the repulsion that he feels because of the bad opinion of him that
readers of the libel form.
No defamatory letter, so far as appears, was mailed to New Jersey; there was no
publication there. But absence of publication in the plaintiff's domicile should not be an
absolute bar to the application of the law of that domicile. What is true, rather, is that the
presumption of the applicability of that law may be rebutted by showing that the plaintiff
incurred no harm at all in his domicile state (an approach intimated in Ramsey v. Fox News
Network, LLC, 351 F.Supp.2d 1145, 1149 (D.Colo.2005), and Arochem Int'l, Inc. v. Buirkle,
767 F.Supp. 1243, 1246-47 (S.D.N.Y.1991)), and if no one in that state had seen or learned of
the defamatory statement, even second hand, this would be a powerful rebuttal to the
presumption that there was harm there. But notice that Hand's analysis would suggest that
the state of the plaintiff's domicile would still be the primary site of the plaintiff's injury, implying
that its law would govern, even if the defamation had been communicated entirely to people in
other states and no one in the plaintiff's state-besides the plaintiff-was even aware of it.
The plaintiff is eager to abandon his Florida claim because it would make his suit one charging
multistate defamation, and would thus point-although, as we have just seen, not unwaveringly-
to the application of New Jersey law. He prefers a claim limited to Illinois and governed by
Illinois law (assuming his Illinois claim survived his inability or unwillingness to make a serious
effort to obtain the letter to the College of Surgeons), with its discovery rule. But abandoning
the Florida claim does not establish that Illinois law should trump New Jersey law. The
American College of Surgeons is located in Illinois but is no longer accused of anything, and
so Illinois has no interest in the case. Injury to the plaintiff's reputation, if that should be
presumed to occur every time a bariatric surgeon (or perhaps anyone) learns about the
complaint to the College, would occur wherever members who heard about the complaint live
and work, and that could be anywhere in the United States. There is nothing to suggest that
more bariatric surgeons heard about it in Illinois than in New York or New Jersey or California
or any other major state. It's not as if bariatric surgeons are concentrated in Illinois. Of the
1,712 members of the American Society for Metabolic and Bariatric Surgery who are actually
practicing surgery, only 54 are in Illinois. (The top states are California, Texas, New York,
and Florida, with 193, 180, 117, and 103 such members.) The five members of the College
of Surgeons' disciplinary committee, which received the complaint about the plaintiff and
referred it to the three bariatric surgeons, would be among the surgeons most likely to have
lost esteem for the plaintiff on the basis of the defendant's letter (always assuming that there
was such a letter and that it was defamatory). But none of the five lives or practices in
Illinois, and none of them is a bariatric surgeon. There is no indication of where the three
bariatric surgeons who evaluated the complaint practice.
The plaintiff's argument that he is injured whenever someone reads or hears about the
complaint to the American College of Surgeons could, if thought a basis for resolving choice of
law issues, lead to ridiculous forum-shopping. If a bariatric surgeon in Iceland read a
newspaper article about the complaint against the plaintiff, could the plaintiff ask the Illinois
court to apply Icelandic law? The plaintiff has no reputation in Iceland to be damaged by an
Icelander who reads about him in an Icelandic newspaper, so unless he were planning to
move to that country he wouldn't suffer any injury for which defamation law would provide a
remedy. Mattox v. News Syndicate Co., 176 F.2d 897, 900 (2d Cir.1949) (L.Hand, J.);
Arrowsmith v. United Press Int'l, 320 F.2d 219, 234 (2d Cir.1963) (Friendly, J.); cf.
Restatement, supra, 145, comment e.
It is true that general damages can be awarded in defamation cases against private
persons, which is to say damages not based on proof of tangible injury. Cook v. East Shore
Newspapers, Inc., 327 Ill.App. 559, 64 N.E.2d 751, 767 (1945); Dishnow v. School District of
Rib Lake, 77 F.3d 194, 199 (7th Cir.1996) (Wisconsin law); Israel Travel Advisory Service,
Inc. v. Israel Identity Tours, Inc., 61 F.3d 1250, 1255 (7th Cir.1995) (Illinois law); Marcone v.
Penthouse Int'l Magazine for Men, 754 F.2d 1072, 1080 (3d Cir.1985) (Pennsylvania law).
That is related to Hand's point in the Burton case; in Marcone the court remarked that the
plaintiff was entitled to recover [general damages] for injury to his reputation as well as for
personal humiliation and mental anguish. 754 F.2d at 1080 (emphasis added). The same
point is made in the Cook case, 64 N.E.2d at 767, an Illinois case. But only New Jersey,
where the plaintiff has his practice and is therefore likely to suffer tangible harm from
defamation that impugns his professional integrity and competence, even if the defamation is
not published there, has a substantial interest in protecting him from defamation; and it is
therefore New Jersey law that should apply. So the suit is indeed time-barred, and should,
as the defendant urges in his cross-appeal, have been dismissed with prejudice. The
judgment of the district court dismissing the suit is therefore modified to make the dismissal
with prejudice.
POSNER, Circuit Judge.
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