Hickey v. St. Martins Press

• Court: District Court, D. New Hampshire
• Decided: May 9, 1997
• Docket: CV-95-475-M
• Status: Published

Opinion

Hickey v. St. Martins Press CV-95-475-M 05/09/97 UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

George W. Hickey, Jr., Plaintiff

v. Civil No. 95-475-M

St. Martin's Press, St. Martin's Paperbacks, Bonar Menninger, and Simon & Schuster, Inc., Defendants

O R D E R

George W. Hickey, Jr., brings this action seeking

compensation for damages allegedly sustained as a result of

defendants' publication of defamatory statements about him. He

claims that the book Mortal Error, written by defendant Bonar

Menninger and published in various iterations by St. Martin's

Press ("St. Martin's"), St. Martin's Paperbacks ("SMP"), and

Simon & Schuster ("S&S"), falsely accuses him, a former secret

service agent, of having accidentally fired the shot that killed

President Kennedy.

Presently before the court are several discovery motions,

along with motions to clarify this court's order dated September

30, 1996. Additionally, defendant Simon & Schuster, Inc. has

moved to dismiss the republication claims pending against it for lack of personal jurisdiction and/or improper venue. Defendants

have also moved to transfer this case to the United States

District Court for the District of Maryland, plaintiff's home

state, where a substantially similar defamation action is

pending.

Facts

George Hickey is a retired Special Agent of the United

States Secret Service. From 1963 to 1971, he served in the

presidential and vice-presidential protective details. On the

day of President Kennedy's assassination, Hickey was riding in

the Secret Service vehicle immediately behind the President's

limousine. As is well known, the assassin was subseguently

identified as Lee Harvey Oswald, and, after examining the

circumstances surrounding the President's assassination, the

Warren Commission concluded that Oswald acted alone.

Nevertheless, since 1963, numerous other theories regarding

President Kennedy's assassination have surfaced. Since at least

the early 1970's, Howard Donahue has publicly stated his belief

that, in the confusion following Lee Harvey Oswald's first shot,

Hickey inadvertently discharged his AR-15 rifle, firing the fatal

bullet that struck President Kennedy.

2 In February, 1992, St. Martin's published the hardcover

edition of Mortal Error, written by Bonar Menninger, which

details Donahue's theories regarding the Kennedy assassination,

including numerous statements regarding Hickey's alleged

involvement not only in the shooting, but also in an alleged

coverup that followed. In April, 1992, the audiotape version of

Mortal Error, published by S&S, went on sale in New Hampshire.

And, most recently, in September, 1992, SMP published the

paperback edition of Mortal Error.

On October 2, 1995, plaintiff filed his complaint against

defendants in this forum. Subseguently, on December 5, 1995, he

filed his first amended complaint, and on January 26, 1996, he

filed a second amended complaint in this court. Then, on May 16,

1996, plaintiff filed a complaint against St. Martin's Press and

Bonar Menninger in the United States District Court for the

District of Montana. Less than three months later, on August 14,

1996, he filed a similar action against St. Martin's Press, St.

Martin's Paperback, and Simon & Schuster, Inc., in the United

States District Court for the District of Maryland. Counsel for

plaintiff has also threatened to file similar actions in England,

in Wisconsin, and in other states.

3 On November 8, 1996, the United States District Court for

the District of Maryland stayed the case pending before it, until

this court and the Montana court had ruled upon the motions to

transfer which were pending before them. It held that, "If those

courts transfer their earlier filed actions to this Court, the

stay entered in this Court could be lifted and the actions could

be consolidated here." Hickey v. St. Martin's Press, Civil No.

H-96-2530, slip op. at 6 (D.Md. November 8, 1996) . In an order

dated March 24, 1997, the United States District Court for the

District of Montana transferred the action pending before it to

the United States District Court for the District of Maryland.

Discussion

I. Defendants' Motion to Transfer

In its order dated September 30, 1996, this court dismissed

plaintiffs' claims based upon three published versions of the

book Mortal Error: a hardback edition, a paperback edition, and

an audiotape version. What remain are plaintiff's

"republication" claims, in which he alleges that defendants are

liable for damages he sustained when third parties republished

allegedly defamatory statements contained in the various

iterations of Mortal Error. As defendants note, these facts

4 place this case in an unusual posture. Plaintiff's claims

against the publishers of Mortal Error have been dismissed as

barred by the applicable statute of limitations, so plaintiff's

remaining claims seek to hold those publishers liable exclusively

for third-party references to Mortal Error.

In light of the recent developments in this case (including,

of course, the developments in the United States District Courts

in Montana and Maryland), the court has concluded that it would

be appropriate and just to transfer this proceeding to the United

States District Court for the District of Maryland. Section

1404(a) of Title 28 of the United States Code provides that:

For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any district or division where it might have been brought.

28 U.S.C. § 1404(a). Plainly, this action "might have been

brought" in the District of Maryland; plaintiff actually filed an

action in that forum. Moreover, this case is appropriate for

transfer to the District of Maryland because: (1) plaintiff has,

by virtue of filing a substantially similar action in that forum,

conceded that venue is proper; (2) plaintiff is a resident of

Maryland, which suggests, among other things, that Maryland has a

5 particular interest in hearing this matter; (3) Howard Donahue

(the ballistics expert who first advocated the theory of

President Kennedy's assassination which is articulated in Mortal

Error) is a resident of Maryland; (4) Donahue's wife, who

defendants assert figures prominently in the book and in

plaintiff's claims, is also a resident of Maryland; (5) defendant

Bonar Menninger researched and prepared Mortal Error primarily in

Maryland and Virginia; (6) plaintiff has yet to identify a single

witness who resides in New Hampshire; (7) plaintiff has

apparently acknowledged that "much of the evidence that would be

used in this case is within the [District of Columbia]

metropolitan area" (Plaintiff's Memorandum in Opposition to

Defendants' Motion to Stay Proceedings, filed in United States

District Court for the District of Maryland (guoted by defendants

in their memorandum in support of motion to transfer venue)); and

(8) as plaintiff himself concedes, he is elderly and in poor

health and seeks prompt judicial review of his claims before his

health deteriorates further or he passes away (a goal most

readily accomplished by litigating his defamation claims against

defendants in a single forum, close to his home).

6 Authority to transfer a case pursuant to 28 U.S.C. §1404(a)

is committed to the court's broad discretion. United States ex

rel. LaVallev v. First Nat'l. Bank, 625 F.Supp. 591, 594 (D.N.H.

1985). In light of the foregoing factors, the court holds that

transfer of this case to the United States District Court for the

District of Maryland is appropriate. See Norwood v. Kirkpatrick,

349 U.S. 29, 32 (1955) ("When Congress adopted §1404 (a), it

intended to do more than just codify the existing law on forum

non conveniens. . . As a conseguence, we believe that Congress,

by the term 'for the convenience of parties and witnesses, in the

interest of justice,' intended to permit courts to grant

transfers upon a lesser showing of inconvenience."); Stewart

Organization, Inc. v. Ricoh Corp., 487 U.S. 22, 30 (1988) ("The

district court also must weigh in the balance the convenience of

the witnesses and those public-interest factors of systemic

integrity and fairness that, in addition to private concerns,

come under the heading of 'the interest of justice.'"); Driver v.

Helms, 577 F.2d 147, 157 (1st Cir. 1978) ("We would expect courts

to be sympathetic to motions for change of venue when defendants

would otherwise be substantially prejudiced and when there is an

alternative venue that would protect the parties' rights.").

7 rev'd on other grounds sub nom, Stafford v. Briggs, 444 U.S. 527

(1980) .

Here, as in United States ex rel. LaVallev, supra,

plaintiffs "have not convinced the court that the convenience of

the parties and witnesses involved would be best served by

keeping this action in New Hampshire. 'The plaintiff may not, by

choice of an inconvenient forum, inflict upon the defendant

expense and trouble not necessary to plaintiff's own right to

pursue his remedy.'" JCd. at 594 (guoting United States v.

General Motors Corp., 183 F.Supp. 858, 860 (S.D.N.Y. I960)).

And, although plaintiff filed his action against defendants in

this forum first, the court concludes that the interests of

justice and concerns for the convenience witnesses and the

parties counsel strongly in favor of transfer. C f . Northwest

Airlines, Inc. v. American Airlines, Inc., 989 F.2d 1002, 1006

(8th Cir. 1993) ("To conserve judicial resources and avoid

conflicting rulings, the first-filed rule gives priority, for

purposes of choosing among possible venues when parallel

litigation has been instituted in separate courts, to the party

who first establishes jurisdiction. The rule, however, yields to the interests of justice, and will not be applied where a court

finds ''compelling circumstances' supporting its abrogation.").

Moreover, transferring this matter to the United States

District Court for the District of Maryland will minimize the

risk that defendants and any potential witnesses will have to

bear the costs and inconvenience associated with litigating

plaintiff's claims in numerous federal forums. It will also

minimize the risk that separately tried cases might result in

inconsistent verdicts. Finally, although the transfer of this

case to the District of Maryland will not preclude plaintiff from

filing future actions in other districts (or abroad), it will

facilitate the orderly resolution, in a single forum, of all

claims presently pending against the defendants and, therefore,

promote the efficient use of judicial resources.

II. Remainina Pending Motions

To insure that the Maryland District Court is not unduly

burdened by this court's decision to transfer this proceeding,

the court will briefly address the remaining outstanding motions

filed by the parties. Hopefully, this matter will then be in a procedural posture which enables the parties to conduct orderly

discovery and, if appropriate, proceed to a trial on the merits.

1. Defendants' unopposed motion for clarification of the court's order dated September 30, 1996 (document no. 51) is granted. Count 3 of plaintiff's second amended complaint is dismissed as barred by the applicable statute of limitations.

2. Defendants' motion for further clarification (document no. 52) is granted in part and denied in part. The claims alleged in paragraph 4 0 (c) of the Second Amended Complaint are dismissed as barred by the statute of limitations. In all other respects, defendants' motion is denied, without prejudice to the refiling of such a motion, if appropriate, with the United States District Court for the District of Maryland.

3. Defendants' motion to stay discovery (document no. 57) is granted. This matter shall be transferred to the United States District Court for the District of Maryland in a stayed status. That court may then enter an order structuring discovery in the manner it deems most appropriate.

4. Plaintiff's motion to compel discovery and for sanctions (document no. 62) is denied.

5. Defendants' motion to continue trial date (document no. 63) is denied as moot. The United States District Court for the District of Maryland will schedule a trial date, consistent with the preexisting demands of its civil docket.

Conclusion

For the reasons discussed above, the court hereby orders the

transfer of this case, with discovery in a stayed status, to the

10 United States District Court for the District of Maryland.

Defendants' motion to dismiss or in the alternative to transfer

(document no. 53) is granted in part and denied in part. To the

extent it seeks the dismissal of this action, it is denied. To

the extent it seeks transfer of this action to the District of

Maryland, it is granted.

The final pretrial conference before this court, scheduled

for Thursday, June 19, 1997 at 8:30 a.m., is, in light of the

court's decision to transfer this case, canceled.

SO ORDERED.

Steven J. McAuliffe United States District Judge

May 9, 1997

cc: James H. Lesar, Esg. Mark S. Zaid, Esg. Mark H. Campbell, Esg. William L. Chapman, Esg.