Cain v. Hearst Corp.

35 F.3d 562, 1994 WL 500467

• Court: Court of Appeals for the Fifth Circuit
• Decided: August 20, 1993
• Docket: 93-2459
• Status: Published

Opinion

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT _______________

No. 93-2459 Summary Calendar _______________

CLYDE URA CAIN, SR.,

Plaintiff-Appellant,

VERSUS

HEARST CORPORATION, d/b/a the Houston Chronicle Publishing Company,

Defendant-Appellee.

_________________________

Appeal from the United States District Court for the Southern District of Texas _________________________

(August 30, 1993)

Before GARWOOD, SMITH, and DeMOSS, Circuit Judges.

PER CURIAM:

CERTIFICATE FROM THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

TO THE SUPREME COURT OF TEXAS, PURSUANT TO TEX. CONST. ART. 5, § 3- C, and TEX. R. APP. P. 114.

TO THE SUPREME COURT OF TEXAS AND THE HONORABLE JUSTICES THEREOF:

1. STYLE OF THE CASE.

The style of the case in which this certificate is made is

Clyde Ura Cain, Sr., Plaintiff-Appellant v. Hearst Corporation, d/b/a the Houston Chronicle Publishing Company, Defendant-Appel-

lee, No. 93-2459 in the United States Court of Appeals for the

Fifth Circuit, on appeal from the United States District Court

for the Southern District of Texas.

2. STATEMENT OF THE CASE.

The plaintiff-appellant, Clyde Cain, is a prison inmate

serving a life sentence for murder. He filed suit in Texas state

court on January 6, 1993, against the defendant-appellee, Hearst

Corporation, d/b/a the Houston Chronicle Publishing Company ("the

Chronicle"), alleging that an article regarding his conviction,

published in the HOUSTON CHRONICLE on June 30, 1991, invaded his

privacy by placing him in a false light by stating that he had

been associated with a crime organization known as the Dixie Ma-

fia when in fact, according to Cain, he had no association with

any such group. The Chronicle removed on the basis of diversity

jurisdiction.

The Chronicle moved for dismissal under FED. R. CIV. P.

12(b)(6), arguing that Cain's alleged cause of action was identi-

cal to a libel complaint and thus barred by the one-year statute

of limitations in TEX. CIV. PRAC. & REM. CODE ANN. § 16.002 and that,

moreover, Texas does not recognize the "false light" tort. Cain

responded that he "seeks recovery under the recognized legal the-

ory of false light invasion of privacy" subject to the two-year

statute of limitations, presumably referring to TEX. CIV. PRAC. &

REM. CODE ANN. § 16.003. The district court granted the motion,

2 citing Hurlbut v. Gulf Life Ins. Co., 749 S.W.2d 762 (Tex. 1987),

and reasoning therefrom "that irrespective of what the plaintiff

may call his suit, it is, nevertheless, a suit in libel."

The district court entered final judgment on May 3, 1993.

Cain filed a notice of appeal on May 10, 1993.

3. QUESTIONS CERTIFIED.

a. Does Texas recognize the tort of false light invasion of

privacy?

b. If Texas recognizes the tort of false light invasion of

privacy, which statute of limitations governs actions brought

pursuant thereto?

We disclaim any intention or desire that the Supreme Court

of Texas confine its reply to the precise form or scope of the

question certified.

4. THE PARTIES.

The parties are Clyde Ura Cain, Sr., plaintiff-appellant,

and Hearst Corporation, d/b/a the Houston Chronicle Publishing

Company, defendant-appellee.

5. THE ATTORNEYS.

Cain appears pro se. His address is as follows:

401418 Ellis I Unit Texas Department of Criminal Justice, Institutional Division Huntsville, TX 77343

3 The Chronicle is represented by the following attorney:

William W. Ogden Ogden, Gibson & White, L.L.P. 1750 Pennzoil South Tower 711 Louisiana Houston, TX 77002-3095

QUESTIONS CERTIFIED.