OPINION
PETTINE, District Judge.
The defendants have moved to dismiss the complaint pursuant to the provisions of Rule 12 of the F.R.Civ.P. for (1) lack of jurisdiction, (2) insufficiency of service of process and failure to state a claim. The court will first discuss the defendants’ contention that the plaintiff has failed to state a claim.
The plaintiff in the instant cause, on November 4, 1965, was a Rhode Island corporation which had published a book entitled, “Leading Men In The United States of America.”
The defendant, Sylvia Porter, on the date in question was the author of, and The Hall Syndicate, Inc. was the syndicator and distributor of the newspaper column entitled, “Your Money’s Worth, ‘Phoney Awards’ Can Be Costly,” which said article appeared in the Providence Journal, a newspaper published in the City of Providence, Rhode Island.
The article describes in general terms a nationwide problem concerning phony award schemes which have been the subject of complaints to Better Business Bureaus throughout the country and suggests rules to be followed in deciding whether or not a person should accept an award or honor. It relates to “schemes * * * flourishing throughout the United States” whereby the person is informed he has been granted an award or is offered to have his name listed in a biographical encyclopedia of “prominent leaders” which may have a “big catch in the deal — and a high price to be paid” in that it will be nothing more than an “embarrassingly empty and costly ‘honor.’ ” In substance, it warns that such schemes are not placed upon the merits of the person but rather to obtain costly subscriptions.
The complaint alleges that the article published by the defendant included false, scandalous, malicious and defamatory statements of and concerning the plaintiff. It then accuses the defendant of publishing, writing and distributing libelous material reading,
“ ‘Phony Award’ schemes are now flourishing throughout the United States * * “First, the award-granting concern may have minimum to zero prestige and qualifications for choosing award winners:” “Another promoter offers to list your name in a biographical encyclopedia of ‘prominent leaders.’ However, your ‘prominence’ depends directly on whether you’re willing to commit yourself to pay for copies of the ‘forthcoming’ publication. One operator has sent more than 250,000 such solicitations to ‘leading men’ all over the U. S. in recent years, with an impressive list of well-known companies to which the ‘book’ will be made available. What is meant is that attempts will be made to sell the publication to these companies;” “Hallmarks of phony award schemes are these: you, the prominent businessman, are expected to pay a fee in order to get the award; the source of the award is probably ill-qualified to grant such honors; criteria for the award are vague and meaningless.”
The complaint further states that the foregoing was meant and intended to convey that the plaintiff was and is guilty of being a person who was conducting a “phony award scheme” in the publication of “Leading Men In The United States of America.”
The question is whether or not this complaint is so deficient as to warrant the granting of a motion to dismiss. In this type of case, a dismissal is not justified unless it is clear and apparent to the court that from the allegations it cannot be deducted under any state of facts that the publication was of and concerning the plaintiff.
At common law in an action such as. the one at issue, the pleadings had to set forth averments known as “inducement,” the “colloquium” and the “innuendo.” These were circumscribed to-an extent as does not presently exist under modern practice. Under our present procedures, a complaint is sufficient if in any part of it facts are recited relative to the uttered words so as to make them impute to the plaintiff a defamatory charge.
However liberalized the present rules of pleading may be, the complaint must state a case upon which relief can be granted.
It is this court’s opinion that it cannot be said the publication in question refers to this plaintiff because of the book it publishes. It does not mention the plaintiff by name either directly or indirectly, and the use of such words as “prominent leaders” and “leading men” cannot change this position.
The article does not identify the publisher of any book but rather attacks a scheme, addressed to persons of prominence who wish to be classified as such. The words are insufficient to induce readers of the newspaper to believe that it refers to the plaintiff and its publication. The court notes that the phrase, “leading men” in the publication is in quotations and that the same wording is in the title of the defendants’ publication. The court finds this quite unimpressive, for the article has many phrases in quotation marks all directed to the type of person solicited as subscribers. The potential market is the gullible whose sensitive egos can easily be triggered by the flattery of being classified as “prominent leaders,” “leading men,” “success stories,” “promote incentive and champion (of) the cause of U.S. free enterprise democracy.”
An abundance of law has been cited which clearly points out that the article must refer to some ascertained or ascertainable person who must be the plaintiff.
“Defamatory words, in order to be actionable, must refer to some ascertained or ascertainable person, and that person must be plaintiff. If the words used really contain no reflection on any particular individual, no averment can make them defamatory.”
Giving the words their natural meaning and reading the article as a whole, the court feels that as a matter of law it is not susceptible of the construction urged by the plaintiff.
The innuendo cannot cure the • vagueness and uncertainty that exists, for its only function is to explain the meaning of words and apply them in the light of other averments in the declaration. It cannot introduce new matter, nor can it supply allegations that are necessary to connect the plaintiff with
the alleged defamatory article.
It cannot make the plaintiff’s identity certain which is otherwise uncertain.
The plaintiff rightfully argues that the complaint should not be deemed insufficient because it is not clear beyond a reasonable doubt that it will be unable to prove its right to relief. In support of this position, it cites Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80; Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 79 S.Ct. 948, 3 L.Ed.2d 988; Leimer v. State Mutual Life Assur. Co., 8 Cir., 108 F.2d 302; Erk v. Glenn L. Martin Co., 4 Cir., 116 F.2d 865; Bragg v. Warwick Shoppers World, Inc. (R.I.) 227 A.2d 582, 584.
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OPINION
PETTINE, District Judge.
The defendants have moved to dismiss the complaint pursuant to the provisions of Rule 12 of the F.R.Civ.P. for (1) lack of jurisdiction, (2) insufficiency of service of process and failure to state a claim. The court will first discuss the defendants’ contention that the plaintiff has failed to state a claim.
The plaintiff in the instant cause, on November 4, 1965, was a Rhode Island corporation which had published a book entitled, “Leading Men In The United States of America.”
The defendant, Sylvia Porter, on the date in question was the author of, and The Hall Syndicate, Inc. was the syndicator and distributor of the newspaper column entitled, “Your Money’s Worth, ‘Phoney Awards’ Can Be Costly,” which said article appeared in the Providence Journal, a newspaper published in the City of Providence, Rhode Island.
The article describes in general terms a nationwide problem concerning phony award schemes which have been the subject of complaints to Better Business Bureaus throughout the country and suggests rules to be followed in deciding whether or not a person should accept an award or honor. It relates to “schemes * * * flourishing throughout the United States” whereby the person is informed he has been granted an award or is offered to have his name listed in a biographical encyclopedia of “prominent leaders” which may have a “big catch in the deal — and a high price to be paid” in that it will be nothing more than an “embarrassingly empty and costly ‘honor.’ ” In substance, it warns that such schemes are not placed upon the merits of the person but rather to obtain costly subscriptions.
The complaint alleges that the article published by the defendant included false, scandalous, malicious and defamatory statements of and concerning the plaintiff. It then accuses the defendant of publishing, writing and distributing libelous material reading,
“ ‘Phony Award’ schemes are now flourishing throughout the United States * * “First, the award-granting concern may have minimum to zero prestige and qualifications for choosing award winners:” “Another promoter offers to list your name in a biographical encyclopedia of ‘prominent leaders.’ However, your ‘prominence’ depends directly on whether you’re willing to commit yourself to pay for copies of the ‘forthcoming’ publication. One operator has sent more than 250,000 such solicitations to ‘leading men’ all over the U. S. in recent years, with an impressive list of well-known companies to which the ‘book’ will be made available. What is meant is that attempts will be made to sell the publication to these companies;” “Hallmarks of phony award schemes are these: you, the prominent businessman, are expected to pay a fee in order to get the award; the source of the award is probably ill-qualified to grant such honors; criteria for the award are vague and meaningless.”
The complaint further states that the foregoing was meant and intended to convey that the plaintiff was and is guilty of being a person who was conducting a “phony award scheme” in the publication of “Leading Men In The United States of America.”
The question is whether or not this complaint is so deficient as to warrant the granting of a motion to dismiss. In this type of case, a dismissal is not justified unless it is clear and apparent to the court that from the allegations it cannot be deducted under any state of facts that the publication was of and concerning the plaintiff.
At common law in an action such as. the one at issue, the pleadings had to set forth averments known as “inducement,” the “colloquium” and the “innuendo.” These were circumscribed to-an extent as does not presently exist under modern practice. Under our present procedures, a complaint is sufficient if in any part of it facts are recited relative to the uttered words so as to make them impute to the plaintiff a defamatory charge.
However liberalized the present rules of pleading may be, the complaint must state a case upon which relief can be granted.
It is this court’s opinion that it cannot be said the publication in question refers to this plaintiff because of the book it publishes. It does not mention the plaintiff by name either directly or indirectly, and the use of such words as “prominent leaders” and “leading men” cannot change this position.
The article does not identify the publisher of any book but rather attacks a scheme, addressed to persons of prominence who wish to be classified as such. The words are insufficient to induce readers of the newspaper to believe that it refers to the plaintiff and its publication. The court notes that the phrase, “leading men” in the publication is in quotations and that the same wording is in the title of the defendants’ publication. The court finds this quite unimpressive, for the article has many phrases in quotation marks all directed to the type of person solicited as subscribers. The potential market is the gullible whose sensitive egos can easily be triggered by the flattery of being classified as “prominent leaders,” “leading men,” “success stories,” “promote incentive and champion (of) the cause of U.S. free enterprise democracy.”
An abundance of law has been cited which clearly points out that the article must refer to some ascertained or ascertainable person who must be the plaintiff.
“Defamatory words, in order to be actionable, must refer to some ascertained or ascertainable person, and that person must be plaintiff. If the words used really contain no reflection on any particular individual, no averment can make them defamatory.”
Giving the words their natural meaning and reading the article as a whole, the court feels that as a matter of law it is not susceptible of the construction urged by the plaintiff.
The innuendo cannot cure the • vagueness and uncertainty that exists, for its only function is to explain the meaning of words and apply them in the light of other averments in the declaration. It cannot introduce new matter, nor can it supply allegations that are necessary to connect the plaintiff with
the alleged defamatory article.
It cannot make the plaintiff’s identity certain which is otherwise uncertain.
The plaintiff rightfully argues that the complaint should not be deemed insufficient because it is not clear beyond a reasonable doubt that it will be unable to prove its right to relief. In support of this position, it cites Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80; Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 79 S.Ct. 948, 3 L.Ed.2d 988; Leimer v. State Mutual Life Assur. Co., 8 Cir., 108 F.2d 302; Erk v. Glenn L. Martin Co., 4 Cir., 116 F.2d 865; Bragg v. Warwick Shoppers World, Inc. (R.I.) 227 A.2d 582, 584.
This court readily accepts the clear holdings of the plaintiff’s authorities. It is in the application of such law that it feels constrained to hold that the complaint does not set forth a cause of action in libel.
Applying the well settled principles of law in a libel action, the article is not defamatory of the plaintiff or any other person in the biographical encyclopedia publishing industry. The plaintiff has failed to set forth a cause of action and it cannot defend its present position by arguing the liberalization of the rules of pleading. To withstand a motion to dismiss, the complaint upon its face must state a case of libel.
This court finds the complaint to be defective in not stating a cause of action of and concerning the plaintiff. The defendants’ motion to dismiss is granted.
Though this is dispositive of the case, the court will next consider the other issues raised by the defendants’ motion.
Lack of Jurisdiction
The bringing of the action in this District by the plaintiff must satisfy the so-called Rhode Island “minimum contact” statute.
There must be sufficient “minimum contacts” to subject a non-resident corporation or individual to suit within the District of Rhode Island.
We must start with International Shoe Co. v. State of Washington et al., 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed.
95 (1945). The court, 326 U.S. at page 316, 66 S.Ct. at page 158, stated:
“Historically the jurisdiction of courts to render judgment in personam is grounded on their de facto power over the defendant’s person. Hence his presence within the territorial jurisdiction of a court was prerequisite to its rendition of a judgment personally binding him. Pennoyer v. Neff, 95 U.S. 714, 733, 24 L.Ed. 565. But now that the capias ad respondendum has given way to personal service of summons or other form of notice, due process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’ ”
In enacting the minimum contact statute, Section 9-5-33, Rhode Island chose to exercise jurisdiction up to the constitutional limitations. Del Sesto v. Trans-World Airlines, Inc. (D.C.R.I.1962) 201 F.Supp. 879.
“There is no general standard as to what constitutes ‘sufficient contacts’ with the forum and the material factor is ‘the quality and the nature of the corporate activity, rather than mere quantity.’ ” Shealy v. Challenger Manufacturing Company (W.D.S.C.1961) 198 F.Supp. 151, 153 affirmed 4 Cir., 304 F.2d 102, 108 (1962)
In McGee v. International Life Insurance Company, 355 U.S. 220, 222, 78 S.Ct. 199, 201, 2 L.Ed.2d 223, we find the following significant language:
“Since Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565, this Court has held that the Due Process Clause of the Fourteenth Amendment places some limit on the p.ower of state courts to enter binding judgments against persons not served with process within their boundaries. But just where this line of limitation falls has been the subject of prolific controversy, particularly with respect to foreign corporations. In a continuing process of evolution this Court accepted and then abandoned ‘consent,’ ‘doing business,’ and ‘presence’ as the standard for measuring the extent of state judicial power over such corporations. See Henderson, The Position of Foreign Corporations in American Constitutional Law, c. V. More recently in International Shoe Co. v. State of Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95, the Court decided that ‘due process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’ ” “Id., 326 U.S. at page 316, 66 S.Ct. 154 at page 158.”
“Looking back over this long history of litigation a trend is clearly discernible toward expanding the permissible scope of state jurisdiction over foreign corporations and other nonresidents. In part this is attributable to the fundamental transformation of our national economy over the years.”
In Rhode Island, the Judicial Council, which recommended the adoption of the Act, stated its purpose in the following language:
“It is the purpose of the proposed act to make full use of the jurisdiction permitted by these recent decisions and to direct that the Rhode Island Courts hold non-residents amenable to suit in every case except those where the due process of the Federal constitution interferes.”
Twenty-First Report of the Judicial Council to the Governor, March, 1960 pp 8, 9.
It is clear that there are no specific guidelines as to what constitutes “minimum contact” with the forum state. It is also clear that this issue must be decided upon a case to case basis and that the only thing that the
due process clause demands is that there be such contacts with the state of the forum that the maintenance of the suit does not offend traditional notions of fair play and substantial justice.
Whether or not the defendants have, in fact, had sufficient minimum contact with the state of Rhode Island to subject them to service of process and thus amenable to suit, requires an examination of the affidavits filed with this motion.
The affidavit of Sylvia Porter avers that the Providence Journal is not her agent and that she has no contractual relations with it. It clearly discloses that she has no contact with Rhode Island. Her column is syndicated by The Hall Syndicate, Inc. pursuant to a written agreement and appears in many newspapers throughout the country, including the Providence Journal. Any contract made with the Providence Journal was made by or through The Hall Syndicate, Inc. The affidavit further sets forth that she has never transacted business nor performed any work in Rhode Island, either in connection with the preparation of her column or in connection with any other business; she has never resided in this state and except for one visit in 1951 as the recipient of an honorary degree, she has never visited this state.
The plaintiff concedes these facts in its argument to the court but states we must look to the relation of The Hall Syndicate, Inc. and Sylvia Porter. It also points out that a full page ad appearing on September 3, 1967 in a regular section of the Providence Journal carrying a picture of the columnist at her typewriter and reciting among other things, “You’ll find her helping you with your business or family financial problems,” offers the only conclusion that she is advertising her product through the Providence Journal. Whether or not this argument has merit need not be considered, for there are no facts justifying such a conclusion. On the contrary, an evaluation of all the facts infers that such ad was the independent act of the Providence Journal.
In this court’s opinion, plaintiff’s argument is not persuasive. From the uneontradicted facts, it must be concluded she has no contact with the State of Rhode Island. Her only connection with it is that the product of her labors —a newspaper column — appears on a syndicated basis in the Providence Journal. This constitutes an insufficient relationship with the State of Rhode Island to permit the maintenance of a suit against her in this jurisdiction.
There is no showing that Sylvia Porter, by virtue of her contracts with The Hall Syndicate, Inc., had retained or exercised any control over the pub- . lication of her column. Nowhere in the evidence do we find that she, in any way, personally transacted any business, in this state.
It is just as true in this case as it' was in DeCosta v. Columbia Broadcasting System, Inc. et al. C.A. No. 3130-(D.C.R.I.1964) wherein this court stated, “In my judgment this case is clearly distinguishable from that of Sanders Associates, Inc. v. Galion Iron Works & Mfg. Co., 1962, 1 Cir., 304 F.2d 915,. where the court found that the non-resident or foreign defendant corporation exercised such a degree of control and leverage over the distributor of its products in New Hampshire as to make it reasonable that it should be subject to service of process in New Hampshire.”
In the judgment of this court, it would be a violation of the Due Process-Clause of the Fourteenth Amendment to the United States Constitution to allow this suit to be maintained against Sylvia Porter.
To do so would offend
“traditional notions of fair play and substantial justice.” .Accordingly, the motion of the defendant, Sylvia Porter, to dismiss the complaint as to her for want of jurisdiction must be and is granted.
As to the defendant, The Hall Syndicate, Inc., the affidavit shows it is incorporated in the State of New York with its principal office in New York City; it is in the business of syndicating and distributing comic features and columns to various newspapers within the United States; its relationship with the Providence Journal is purely a contractual one of servicing the Journal with certain features recited in its contracts ; there is no relationship of agency, employment or master and servant between them; the Providence Journal is not an employee, agent or servant of the defendant, The Hall Syndicate, Inc. is not qualified to do business in Rhode Island and does not do business in the State.
The full extent of its physical activity within the State is solely that on two or three occasions during a calendar year, a salesman of the syndicate may call upon some of the editors of newspapers within the State to display to them the various features which the syndicate may be offering for newspaper publication. It has no office,
office
personnel,
employees or
agents
of
any kind within Rhode Island, nor does
it maintain any banking facilities or have a telephone listing. In addition to the Providence Journal, it services four other publications in Rhode Island.
The plaintiff argues this is sufficient minimum contact, concluding that it establishes a regular system of having salesmen call to sell the features and keep the businesses in this area cognizant of the latest developments that are available. The plaintiff further points out that as many as twenty features are sold.
The court finds this argument unimpressive. From the affidavit, it is clear a buyer-seller relationship exists and that there is no agency as is alleged in the complaint.
The contracts for the various features annexed to the motion show they are made in New York and that the only connection The Hall Syndicate, Inc. has with Rhode Island is that salesmen come into the State two or three times a year. In this court’s judgment, it can hardly be said this is sufficient minimum contact to authorize a suit in Rhode Island not growing out of the relationship of the salesmen in the State.
The United States Supreme Court did not intend through its decision in the International Shoe case to do away with established concepts of jurisdiction.
In determining the question whether process has been satisfied, it is no easy task to do total justice to a qualitative analysis of the defendants’ local activities. International Shoe Co. v. State of Washington et al., supra, at page 319, 66 S.Ct. at page 160 tells us it turns on the “ * * * quality and nature of the activity in relation to the fair and orderly administration of the laws which it was the purpose of the due process clause to insure.” If the salesmen had committed a tort while in Rhode Island, there might be some ground for saying a suit could arise out of that tort against The Hall Syndicate, Inc. in Rhode Island but here the suit is not based on any activity of the salesman in Rhode Island. It is based on articles which appeared in the Providence Journal.
Sanders Associates, Inc. v. Galion Iron Works & Mfg. Co., supra, is clear precedent that a non-resident or foreign corporation must exercise such control and leverage over the distributor of its products as to make it reasonable that it should be subject to service of process in the foreign state. Analogous cases have been decided in other circuits.
In my opinion, the mere solicitation of business in this state by salesmen of the foreign corporation does not subject it to the jurisdiction of this court.
It is the quality and nature of the activity in Rhode Island which the court finds significant. It is nothing more or less than a contractual relationship — a naked buyer and seller relationship devoid of any duties or responsibilities within this foreign state.
It is the judgment of this court that “traditional notions of fair play and substantial justice” dictate that The Hall Syndicate, Inc. should not be subjected to suit in this jurisdiction. The motion to dismiss the complaint as to it for want of jurisdiction must be and is granted.
Insufficiency of Service of Process
The suit in question was brought against the defendants without service of process against them. Service was made on the Providence Journal through its attorney for service of process on the theory that the Providence Journal was the agent or servant of the defendants. No service was made on the defendants personally by mail or by publication.
Suffice it to say that since the Providence Journal was not an agent for Sylvia Porter, service as to her was insufficient.
As to The Hall Syndicate, Inc., since the Providence Journal was not its agent of any kind, service here too was insufficient.
The burden of proving jurisdictional facts is on the plaintiff and this is not satisfied by mere conclusory statements that one corporation was the agent of the defendants.
This court has concluded that in view of the affidavits filed by Sylvia Porter and The Hall Syndicate, Inc., it is apparent that the Providence Journal was not an agent of the defendants; therefore, service of process upon it was insufficient service on the defendants.
Finally, the court must consider Subsection (7) of Rule 4(d) F.R.Civ.P. which provides that service would be sufficient if made in the manner prescribed by the law of the state in which
the District Court is held. Rule 4(d) of the Rhode Island Rules of Civil Procedure
is almost identical to the Federal Rule 4(d). Clearly, there was no compliance.
Rhode Island Rule 4(e) prescribes the method of making service outside the state on an individual or corporation but requires service by mailing or by a disinterested person outside the state.
This was not done.
Since there has also been a failure to satisfy the above cited sections of the Rhode Island Rules of Civil Procedure, the action must be and is dismissed because of improper and insufficient service of process.