Petition for Writ of Certiorari — Jaisinghani v. Capital Cities/ABC, Inc.

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Court, U.%.

FILED

981019 DEC | 619%

No. OFFICE OF THE CLERK

In The

Supreme Court of the United States

October Term, 1998

GUL JAISINGHANI,

Petitioner,

vs.

CAPITAL CITIES/ABC, INC., THE KANSAS CITY

STAR COMPANY, BILL DALTON, DATATIMES

CORPORATION, AND PRODIGY SERVICES

CORPORATION,

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the

Eleventh Circuit

PETITION FOR A WRIT OF CERTIORARI

DAVID T. AZRIN

Counsel of Record

LAW OFFICE OF DAVID T. AZRIN, P.A.

Attorneys for Fetitioner

44 West Flagler Street, Suite 2550

Miami, Florida 33130

(305) 577-0309

Fax: 577-0329

QUESTIONS PRESENTED

te When a _ publisher’ writes and

publishes an article about a businessman with

connections in different states and the

article is circulated nationally and on the

internet, does the law where the publisher is

located normally govern a defamation action by

the businessman against the publisher?

II. Does a person change their domicile

immediately upon a change in their physical

residence coupled with the intent to remain

there indefinitely at the time of.arrival?

LIST OF PARTIES

The names of all parties to the

proceedings in the court whose judgment is

sought to be reviewed here appear in the

Caption of the case. There is no parent or

subsidiary company of any party to be listed.

oe! ve

Beer nee anil

TABLE OF CONTENTS

Question Presented .........e eee eeeees

TASC CE DORGAN ike eho ek re RHE es

Table Of COMECGNCE 2. ccc sccscccccvevecses

Table GE CACACAOIM onc 6 ec v ee wee cece es

Opinions Below ........ccccccccasccesens

Statement of Jurisdiction ..............

Constitutional and Statutory

Provisions Involved ......ccctccscccesee

Statement of the Case .........--eeeeee

Reasons for Granting the Writ...........

ci When a publisher writes and

publishes an article about a

businessman with connections in

different states and the article is

circulated nationally and on the

internet, the law where the

publisher is located should govern

a defamation action by the

iii

Page

iii

businessman against the publisher

II. A person changes their

domicile immediately upon a change

in their physical residence coupled

with the intent to remain there

indefinitely at the time of their

RESAWEE 55.35 Cat CaN a ee 26

Shs COOP R Ceo ns ae oak ees we ke 32

PROUD GIS sot hh eb a eee PESO eee 33

Appendix A -- Order Granting Motion for

Summary Judgment and Dismissing

Case of the United States District

Court for the Southern District of

Florida dated March 26, 1997 ...... 33

Appendix B -- Final Judgment of the

United States District Court for

the Southern District of Florida

Gated Marca. 26, 32997 2.2 6s ab kaw se 56

Appendix C -- Order Affirming District

Court Order of the United States

Court of Appeals for the Eleventh

Circuit dated June 24, 1998 ....... 58

Appendix D -- Order Denying Petition for

Rehearing of the United States

Court of Appeals for the Eleventh

Circuit dated September 18, 1998 .. 60

TABLE OF CITATIONS

Bis) ey ae ee

Co., 389 So.2d 999

(ae SOF ee en a re ae Bee ee eee

Field ~j cs

Beach, 82 So.2d 364

fa Ro oe a a we a Se ee ee ee

Brewer v, Memphis Pub, Co,, 626 F.2d

1238 (5th Cir. 1980), cert.

denied, 452 U.S. 962 (1981) ... 23

Brown v. National Car Rental System,

707 So.2d 394 (Fla. 3d DCA

1998), review denied, 718

So.2d 1234 (Fla. 1998) ait do ete 16

Chappelle v. Beacon Communications Corp, j ’

863 F.Supp. 179 (S.D.N.Y. 1994).. 29, 30

Crowell _v. Clay Hyder Trucking Lines,

700 So.2d 120 (Fla. 2d DCA

1997), xeview denied, 705 So.2d

569 (Fla. 1998)

Davis _v, Costa-Gavras, 580 F.Supp.

1082 (S.D. N.Y. 1984) 22, 23, 24,

Hardin v. McAvoy, 216 F.2d 399

(Sth Cir. 1954) re oe ee

Hopkins v. Lockheed Aircraft Corp, ‘

201 So.2d 743 (Fla. 1967)

Huddleston v. Dwyer, 322 U.S. 232

(1944)

Jewell _v. NYP Holdings, Inc., 1998

WL 68444 (S.D.N.Y. 1998)

Judge v. American Motors Corp., 908

F.2d 1565(1ith Cir.1990) . a7, 24,

Keeton v. Hustler Magazine, 549 A.2d

1187 (N.H. 1988)

Klaxon Co. v. Stentor Electric Mfg.

Co., 313 U.S. 487 (1941)

Lafarge Corp, v. Travelers Indemnity Co.,

438 F.3d i8ii -(iith Cir. 1997)

vil

Leavitt v. Jane L., 518 U.S. 137 (1966)

Ledesma v. Jack Stewart Produce, Inc.,

816 F.2d 482 (Sth Cir. 1987)

Levin v. McPhee, 917 F.Supp. 230

(S.D.N.Y. 1996), aff'd, 119 F.3d

189 (2a Cir. 1997)

Marion Power Shovel Co, v. Hargis,

698 So.2d 1246 (Fla. 3d

DCA 1997)

Mezroub v. Capella, 702 So.2d 562

(Fla. 2d DCA 1997) 26,47; 38,

Paudler v. Paudler, 185 F.2d 901

(Sth Cir. 1950), cert. denied,

341 U.S. 920 (1951)

Perez v. Perez, 164 So.2d 561

(Fla. 3d DCA 1964)

Reynolds v. Ranta, 362 F.Supp. 333

(W.D. Pa. 1973)

Ryder Truck Rental v. Rosenberg, 699

So.2d 713 (Fla. 3d DCA 1997),

viii

20,

19,

al,

review denied, 705 So.2d 570

(Fla. 3d DCA 1998) See pa te cea

Shapiro v. Assoc. Intern, Ins., 899

F.2€ 11316 (13th Cir. 1990)

Soghanalian v. Soghanalian, 693 F.Supp.

1091 (S.D.Fla. 1988)

Steele v. General Mills,329 U.S. 433

(1947)

United States v. Raddatz, 447 U.S. 667

(1980)

Willi ; . North © _—e

SAF ie SRT AGAR neo Pee a oe ois

Statutes:

28 U.S.C. Section 1254(1)

28 U.S.C. Section 1332 (a)

Section 95.10, Florida Statutes

(1995)

Section 95.11(4)(g), Florida

Statutes (1995)

Section 340(3), California Code of

CALs Set os a ae ES

Section 516.140, Missouri Revised

Statutes Bhat ee a ea ee es ae ee

Other Authority:

Section 6 of the Restatement (Second)

Conflict of Laws 42; 45,146,237,36,20,26

Section 142 of the Restatement (Second)

Conflict of Laws hohe 6 oe ee, ee ee

Section 145 of the Restatement (Second)

Conflict of Laws Be ee Os) Bae a

od dad RE EES OG LER RAS

Ii eS SRR ao atiieti din SRL hd Lad

OPINIONS BELOW

The opinion of the United States District

Court for the Southern District of Florida,

published at 973 F.Supp. 1450 (S50 Pia.

1997), is reproduced in the Appendix (App. A).

The order of the United States Court of

Appeals for the Eleventh Circuit, published at

149 F.3d 1195 (11th Cir. 1998) (Table) is

reproduced in the Appendix (App. C).

STATEMENT OF JURISDICTION

On June 24, 1998, the United States Court

of Appeals for the Eleventh Circuit issued its

order affirming the district court's order of

dismissal. On September 18, 1998, the court

of appeals entered an order denying a petition

for rehearing. On March 26, 1997, the United

States District Court for the Southern

District of Florida entered its final judgment

and order and opinion dismissing the case.

The jurisdiction of this Court is invoked

under 28 U.S.C. Section 1254(1).

CONSTITUTIONAL AND STATUTORY PROVISIONS

INVOLVED

SECTION 95.10, FLORIDA STATUTES (1995)

95.10 Causes of action arising out of the

state

When the cause of action arose in another

state or territory of the United States, or in

a foreign country, and its laws forbid the

maintenance of the action because of lapse of

time, no action shall be maintained in this

state.

SECTION 95.11(4)(g), FLORIDA STATUTES (1995)

95.11 Limitations other than for the recovery

of real property

Actions other than for recovery of real

property shall be commenced as follows:

(4) Within two years.--

“4

BHA SNS Wikies

(g) An action for libel or slander.

SECTION 340(3), CALIF. CODE OF CIVIL PROCEDURE

340. One year

Within one year:

(3) Libel, slander, assault, battery,

false imprisonment, seduction, injury or death

from wrongful act or neglect, forged or raised

checks, injury to animals by feeder or

veterinarian.

SECTION 516.140, MISSOURI REVISED STATUTES

516.140. What actions within two years

Within two years: An action for libel,

slander, assault, battery, false imprisonment,

criminal conversation, malicious prosecution,

or actions brought under section 290.140,

RSMo.

STATEMENT OF TEE CASE

In the late 1980s, Respondent Kansas City

Star Company (“Newspaper”) peakies looking

into the idea of doing a story on the Veterans

of Foreign Wars, whose main office was located

in Kansas City, Missouri. The Newspaper

believed that it would be interesting to the

readers of the Newspaper to read about the

operation of this large national organization

that had its headquarters in Kansas City.

The reporter assigned to the _ story,

Respondent Bill Dalton (“Reporter”), was

having difficulty finding an interesting angle

for the story. In a telephone conversation

with-a Florida charity regulator, the Reporter

learned about Petitioner Gul Jaisinghani (“Mr.

Jaisinghani”), a businessman who was raising

funds for the Veterans of Foreign Wars in

Florida and other states. The Reporter

decided to make Mr. Jaisinghani the focus of

Iii rie a OE Sy <

his article on the Veterans of Foreign Wars

(“the Article”).

In researching the Article, the Reporter

conducted numerous telephone interviews from

the Newspaper’s office in Kansas City,

Missouri. He interviewed at least 18 people

by telephone in Florida, more people than any

other state.

Mr. Jaisinghani had been doing

fundraising for the Veterans of Foreign Wars

since the mid-1980s. From 1986 to 1992, Mr.

Jaisinghani did more fundraising in Florida

than any other state, raising about $11

million. Mr. Jaisinghani had moved from

California to Florida in the mid-1980s after

he got in a car accident and divorced his

wife. He initially stayed with his sister in

Florida. He then rented an apartment,

purchased a boat where he lived, and then

purchased a condominium in Florida in 1989.

He started fundraising in Florida in 1986. He

hired an accountant in Florida. He also hired

a Florida attorney to handle all of his

fundraising across the country. He opened

bank accounts in his name in Florida. He had

a telephone number listed under his name in

Florida. He had a car that was registered and

insured in Florida. He attended temples in

Florida. Mr. Jaisinghani was treated as a

Florida resident for tax purposes. He did not

Own any property, cars, or bank accounts in

California and he did not have a California

telephone number. Mr. Jaisinghani’s former

landlord, condo property manager, Florida

accountant, and Florida attorney all testified

by affidavit that they considered Mr.

Jaisinghani a Florida resident.

In 1990, Mr. Jaisinghani’s former wife

filed a lawsuit against him in California

attempting to recover certain assets. In

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addition, in 1991, Mr. Jaisinghani was charged

by the Los Angeles District Attorney’s Office

with certain environmental waste violations

stemming from his prior chemical business in

California. As a result of these legal

actions, Mr. Jaisinghani was required to

travel to California frequently to prepare for

hearings and meet with attorneys there.

On Sunday, September 22, 1992, the

Newspaper published the front page Article

about Mr. Jaisinghani, accusing him of

stealing donors’ money, running two sets of

books, hiding stolen cash in his underwear and

socks, siphoning stolen money to BCCI in Hong

Kong, suggesting that he had a connection with

the on-going BCCI scandal, and engaging in

illegal fundraising tactics. The Article

featured a half-page unflattering picture of

Mr. Jaisinghani with his jacket pocket open.

~The statements in the Article were false.

The Reporter distorted and exaggerated facts,

relied upon unreliable sources, and ignored

red flags which showed that the information he

was getting was false.

The Article was written, edited, and

published in Kansas City, Missouri. The

primary circulation was Missouri and Kansas.

Mr. Jaisinghani first read the Article

after purchasing a copy in Florida. He

immediately contacted his Florida attorney who

also bought a copy in Florida. Prior to

publication, Mr. Jaisinghani had instructed

his Florida attorney to write a letter to the

Reporter notifying him that the information he

was apparently relying upon was not reliable.

After publication, Mr. Jaisinghani instructed

his Florida attorney to write another letter

to the Newspaper demanding a retraction. In

addition, Mr. Jaisinghani also contacted an

attorney in Kansas City, Missouri about

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bringing a lawsuit against the Newspaper.

The Article caused damage to Mr.

Jaisinghani’s reputation across the country.

In particular, the Article hurt Mr.

Jaisinghani’s reputation in Missouri with the

national VFW officers, who in turn put

pressure on the _ state chapters for Mr.

Jaisinghani to disassociate himself from his

fundraising companies. Missouri VFW members

also contacted state VFW officers in other

states in which Mr. Jaisinghani did business.

In addition, a Missouri VFW member posted a

summary of the Article on Prodigy’s on-line

computer service, which was distributed

nationwide and caused further damage to Mr.

Jaisinghani. The Article hurt his ability to

renew his Florida contract and to obtain new

fundraising contracts in North Carolina and

South Carolina, among others.

Mr. Jaisinghani filed this lawsuit for

defamation in the United States District Court

for the Southern District of Florida, based on

diversity jurisdiction under 28 U.S.C. § 1332

(a), on September 19, 1994, against the

Newspaper, the Reporter, the Newspaper’s

parent company, Datatimes, a computer on-line

service that carried the Newspaper, and

Prodigy, a computer service that carried a

summary of the Article posted by a Prodigy

subscriber residing in Missouri. On March 26,

1997, the district court entered an order

granting the Newspaper’s motion for summary

judgment and dismissing the case based on

California’s statute of limitations. (App.

A).

The district court interpreted Florida’s

choice of law test to require the court to

weigh the four factors listed in section

145(2) of the Restatement (Second) Conflict of

Laws, namely: 1) the place where the injury

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occurred; 2) the place where the conduct

causing the injury occurred; 3) the domicile,

residence, nationality, place of incorporation

and place of business of the parties; and 4)

the place where the relationship, if any,

between the parties is centered. (App. A, 4).

The district court did not make any

mention of section 6 of the Restatement which

provides that the choice of law decision must

be made based upon an examination of certain

policy interests listed in section 6.

The district court held that three of the

factors listed in section 145(2) (place of

injury, place of conduct, and place of

relationship) did not weigh dispositively in

favor of any particular state. The court

therefore held that the choice of law test

hinged on the third factor. (App. A, 45). The

court dismissed the fact that the Article was

written and published in Missouri and that the

—— Se

Newspaper was located there. (App. A, 44).

The court therefore held that Mr.

Jaisinghani’s domicile was the determining

factor. The court acknowledged that Mr.

Jaisinghani had moved to Florida in the mid

1980s. (App. A, 50). Nevertheless, the court

held that it was a temporary move and

therefore Mr. Jaisinghani had not changed his

domicile. (App. A, 52). The court held that

because Mr. Jaisinghani had more contacts in

his life with California, California law

should apply. (App. A, 53-54). The court

therefore dismissed the action because,

although it was brought within Florida and

Missouri’s two-year statutes of limitations,

it was not brought within California’s one-

year statute of limitations. (App. A, 13).

On June 24, 1998, the United States Court

of Appeals for the Eleventh Circuit affirmed

the district court decision without an

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opinion. (App. C). On September 18, 1998, the

court of appeals denied a petition for

rehearing without opinion. (App. D).

REASONS FOR GRANTING THE WRIT

The district court, sitting in diversity,

was required to apply Florida’s choice of law

principles to attempt to achieve the same

results that would have been obtained had the

case been heard in the Florida courts. Klaxon

Co. v. Stentor Electric Mfg. Co., 313 U.S8.

487, 496 (1941); Shapiro v. Assoc, Intern.

Ins., 899 F.2d 1116 (11th Cir. 1990).This

Court should grant the Petition for Writ of

Certiorari because the lower federal court’s

determination of the state law choice of law

determination was simply wrong. Leavitt v.

Jane L., 518 U.S. 137 (1996) (granting

petition to review lower federal’s court’s

incorrect state law ruling); Steele v. General

Mills, 329 U.S. 433 (1947); Huddleston v.

Dwyer, 322 U.S. 232 (1944). The ‘judgment of

the lower federal court should be reversed

because intervening state court decisions

show that the federal court determination was

incorrect. Huddleston, 322 U.8.. at 235

(“Until such time as the case is no longer sub

judice, the duty rests upon federal courts to

apply state law under the Rules of Decision

statute in accordance with the then

contro\ling decision of the highest state

court”). This Court owes no deference to the

lower federal court’s adjudication of state

law. Leavitt, 518 U.S. at 145.

Moreover, the court of appeals was

required to review the district court’s

decision de novo to make an independent

determination of the issues. United States v.

Raddatz, 447 U.S. 667, 690 (1980); Lafarge

Corn, v. Travelers Indemnity Co., 118 F.3d

159313, 2524 (330a:- Cit SST Instead, the

court of appeals apparently made no

independent aualysis of the issues, and simply

affirmed the district court’s order without

even writing an opinion.

I. WHEN A PUBLISHER WRITES AND PUBLISHES AN

ARTICLE ABOUT A BUSINESSMAN WITH CONNECTIONS

IN DIFFERENT STATES AND THE ARTICLE IS

CIRCULATED NATIONALLY AND ON THE INTERNET, THE

LAW WHERE THE PUBLISHER IS LOCATED SHOULD

GOVERN A DEFAMATION ACTION FILED BY ‘THE

BUSINESSMAN AGAINST THE PUBLISHER.

Florida law provides that the choice of

law determination is based primarily upon

which state has an interest in applying the

particular rule. The choice of law decision

is based on the Restatement’s section 6

principles, namely each state’s interest in

the particular law, the parties’ expectations,

the need for certainty, predictability,

uniformity, ease of determination, and the

needs of the interstate system. Bishop v.

Florida Specialty Paint Co,, 389 So.2d 999,

1001 & n.1 (Fla. 1980) (adopting “the more

flexible, modern approach”); Hopkins v.

Lockheed Aircraft Corp., 201 So.2d 743, 747

(Fla. 1967).

Subsequent to the district court’s

decision, numerous recent decisions by the

Florida state appellate courts have emphasized

that Florida’s choice of law test must examine

the section 6 principles. See, e.g., Brown v.

National Car Rental System, 707 So.2d 394, 395

(Fla. 3d DCA 1998), xeview denied, 718 So.2d

1234 (Fla. 1998) (court must apply the section

6 principles to decide the choice of law);

Mezroub v. Capella, 702 So.2d 562 (Fla. 2d DCA

1997); Crowell _v, Clay Hyder Trucking Lines,

700 So.2d 120 (Fla. 2d DCA 1997), review

denied, 705 So.2d 569 (Fla. 1998); Ryder Truck

Rental _v. Rosenberger, 699 So.2d 713 (Fla. 3d

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DCA 1997), review denied, 705 So.2d 570 (Fla.

1998); Marion Power Shovel Co, v. Hargis, 698

So.2d 1246 (Fla. 3d DCA 1997) .’

In Mezroub, the Florida appeals court

explained that: “[{t]his is not a _ simple

‘center of gravity’ or ‘contacts counting’

test. Rather, the court must determine which

state or states have a true interest in the

| ta gudge v. American Motors Corp,, 908 F.2d

1565, 1568-1574 (11th Cir. 1990), the federal appeals

court itself acknowledged that, under Florida law,

“we must, as mandated by section 145(1), turn to the

factors delireated in section 6 to determine which

sovereign has tne most significant contact.” 908

F.2d at 1569. (citations omitted) . “As a general

proposition, it is fitting that the state whose

policy interest are most deeply affected should have

its local law applied.” 908 F.2d at 1570 (citations

omitted). Moreover, the court emphasized that: “ [A]

court should never apply the law of a state if the

policy considerations which underlie that state’s

rule will not in any way be advanced by the rule’s

application.” 908 F.2d at 1570 n.5S.

application of their law, by examining the

various factual contacts in light of the

rather malleable principles set forth in

section 6.” 702 So.2d at 565. In Mezroub, the

Florida appellate court held that the choice

of law determination should be determined by

Restatement section 142. Mezroub, 702 So.2d

at 565. Section 142 provides that the forum

must apply its own statute of limitations

permitting the claim unless: (a) maintenance

of the claim would serve no _ substantial

interest of the forum; and (b)-the claim would

be barred under the statute of limitations of

a state having a more significant relationship

to the parties and the occurrence.

The district court committed plain error

because it did not examine any of the section

6 factors and did not even mention section 6.

In addition, the court did not even mention

section 142.

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It is plain that, applying section 142,

the Newspaper cannot satisfy its burden.

Maintenance of the claim in Florida will

clearly serve Florida’s substantial interests.

First, maintenance of the claim here will

foster Florida’s interest in providing a forum

for redress for a person who was doing

substantial business in the state, as Mr.

Jaisinghani did. In addition, Florida has an

interest in maintaining the suit because the

Article addressed Mr. Jaisinghani’s

saogeabinn in Florida, relying primarily upon

the charity regulator who first told the

Reporter about Mr. Jaisinghani’s fundraising.

In addition, the Reporter interviewed more

people in Florida than any other state and

many of the witnesses are located in Florida.

Accordingly, under Mezroub, section 142

mandates the application of Florida’s statute

of limitations.

In addition, it is plain that applying

the section 6 factors mandates the application

of Missouri law.

Regarding the relevant policy interests

of the interested states, a statute of

limitations serves to protect two interests:

1) protect the state’s residents from being

subjected to stale lawsuits; and 2) protect

the state’s courts from being clogged by stale

lawsuits. Mezroub, 702 So.2d at 565 (applying

Florida’s statute of limitations even though

injury and conduct occurred in Georgia because

Georgia did not have any interest in applying

its statute of limitations, especially because

there were no Georgia defendants); Ledesma v.

Jack Stewart Produce, Inc., 816 F.2d 482, 484

(9th Cir. 1987) (refused to apply California’s

statute of limitations to action by California

resident based on car accident in Arizona

because California had no interest in applying

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its statute of limitations to action against

non-residents); Keeton v. Hustler Magazine,

549 A.2d 1187 (N.H.1988) (discussing purpose

of statute of limitations).

Here, California has nog interest in

applying its statute of limitations to this

lawsuit because there are no California

defendants. In addition, because the lawsuit

was filed in Florida, the state of California

has no interest in protecting its courts from

being clogged with stale lawsuits.

At the same time, Missouri does have an

interest in applying its Statute of

limitations to this lawsuit because this is a

lawsuit against a Missouri newspaper and

reporter. Missouri has made a policy

decision that its residents may be subjected

to such claims for two years. Mo. Rev. Stat.

516.140. In addition, Florida has a policy

interest in providing redress to persons doing

business in its state who are harmed by out-

of-state defamatory acts for a period of two

years. Fla.Stat. 95.11(4) (g).

With respect to the parties’ just ied

expectations, publishers justifiaoly expect

that the law where their activities are based

will govern their conduct.

“Publishers, authors, and film makers

consciously attempt to mold their conduct to

legal norms, with the expectation that the

legal consequences of their conduct will be

predictable. Their justified expectation

that their conduct will be judged by the

rules of jurisdictions in which they carry on

their activities merits protection.”

Davis v. Costa-Gavras, 580 F.Supp. 1082, 1092

(S.D. N.Y. 1984). Therefore, in a multi-state

libel case, especially where the plaintiff

has contacts with different states and

suffered damage in different states, “the

eft wear

eT A rani ee a

State where defendants’ significant acts and

omissions gave rise to their liability is the

most appropriate source of legal norms.” 580

F.Supp. at 1093. See also Brewer v. Memphis

Pub. Co., 626 F.2d 1238 (Sth Cir. 1980), cert.

denied, 452 U.S. 962 (1981) (the state where a

reporter was based had “an abiding interest

in the lawsuit”); Jewell v. NYP Holdings.

Inc., 1998 WL 684444 (S.D.N.Y. 1998) (New York

law applied to action filed by Georgia

resident regarding New York newspaper’s false

Statements regarding his alleged involvement

in Olympic bombing in Georgia); Levin v.

McPhee, 917 F.Supp. 930 - (8.D0.8.¥. 4996),

aff'd, 119 F.3d 189 (2a Cir. 1997) (New York

law applied to action against New York

newspaper because it had greatest- interest in

regulating newspaper’s conduct) .

Here, the Newspaper reasonably expected

that Missouri law would govern its actions

because the Article was conceived, written,

edited, and primarily circulated in Missouri.

With respect to the principles of

certainty, predictability, and uniformity, and

ease of determination, where a plaintiff has

contacts in different states, application of

the law of the publisher’s home state fosters

the interests of certainty, predictability,

uniformity, and ease of determination. Davis,

580 F.Supp. at 1092 (in multi-sate libel suit

where the damage was diffused, applying the

law of the publisher’s state advanced the

interests of certainty, predictability,

uniformity and ease of determination).

Moreover, the choice of law decision must

consider equitable considerations, where the

law applied will bar entirely the Plaintiff's

ability to obtain redress as here. Judge, 908

F.24 at i573.

With respect to the needs of the

interstate system, these interests are also

advanced by application of Missouri law. The

needs of the interstate system involve the

need to promote interstate commerce as well as

the free flow of information. Judge, 908 F.2d

at 1572; Davis, 580 F.Supp. at 1092.

Uncertainty regarding the choice of law may

have a harmful effect on publisher’s attempts

to mold their conduct and frame appropriate

contractual relationships to protect their

interests. Davis, 580 F.Supp. at 1092.

With respect to the policies underlying

the field, the policies underlying defamation

law - namely to provide aggrieved persons with

a forum for redress - are advanced by applying

Missouri or Florida’s statute of limitations.

Ledesma, 816 F.2d at 484.

This Court should review the district

court’s decision because the district court

simply got it wrong. The district court did

not even mention section 6 or 142 of the

Restatement as mandated by Florida law. In

addition, the district court’s decision has

wider implications for publishers because

there is uncertainty about what law applies to

actions regarding publication of articles

Mationally and on the _ internet. This

uncertainty interferes with the free flow of

information.

il. A PERSON CHANGES THEIR DOMICILE

IMMEDIATELY UPON A CHANGE IN THEIR PHYSICAL

RESIDENCE COUPLED WITH THE INTENT TO REMAIN

THERE INDEFINITELY UPON THEIR ARRIVAL.

The lower federal court decision was also

wrong because it applied the incorrect test to

decide Mr. Jaisinghani’s domicile. Florida

law clearly provides that a person changes his

domicil immediately upon arrival to Florida,

provided that the person has a subjective

intention at the time of arrival to make it

his new home, even if the person contemplates

the possibility of eventually returning, later

acquires doubts about remaining in the new

home, or later is called upon to leave.

Bloomfield v. City of St, Petersburg Beach, 82

So. 2d 364, 368 (Fla. 1955) (Florida became

Plaintiff’s new legal domicile at the time he

moved to Florida even though he went back to

Michigan for a year and kept his Michigan

driver's license). A change of domicile is

accomplished immediately upon moving to

another state with the intention to make the

new state one’s new home. Perez v. Perez, 164

So. 2d 561, 562 (Fla. 3d DCA 1964). The test

is based upon the person’s intention upon

arrival in the state. “It is not important if

there is within contemplation a vague

possibility of eventually going elsewhere, or

even of returning whence once came.” Perez,

164 So.2d at 563, quoting Hardin v. McAvoy,

216 F.2d 399, 402 (Sth Cir. 1954). . The fact

that the plaintiff may later have acquired

doubts about remaining in his new home or may

have been called upon to leave it is not

relevant, so long as the subsequent doubt or

the circumstance of leaving does not indicate

that the intention to make the place the

plaintiff’s home never existed. Hardin, 216

F.2d at 402. See also Paudler v,. Paudler, 185

F.2d 901, 903 (Sth Cir. 1950) (applying same

test), cert. denied, 341 U.S. 920 (1951).

When physical presence is coupled with the

intention of making it his present home, “the

change in domicile is instantaneous.” Hardin,

216 F.2d at 402 (plaintiff acquired a new

domicile in Florida, even though he had

testified that he intended to return to

Georgia as soon as he made enough money in

Florida). This Court has explained:

“the fact that a stay in a state is not for

long is not necessarily fatal to the

existence of a domicile. .. . The essential

fact that raises a change of abode to a

change of domicile is the absence of any

intention to live elsewhere.”

Williams v. State of North Carolina, 317 U.S.

287, 299 n.9 (1942). See also Bloomfield, 82

So. 2d at 369 (the fact that party returned to

previous state for a full year did not destroy

new residency in Florida); Chappelle v. Beacon

Communications Corp., 863 F.Supp. 179, 182

(S.D.N.Y. 1994) (New York domicile not

destroyed by the fact that party resided in

California several months a year) ;

Soghanalian v. Soghanalian, 693 F.Supp. 1091,

1093 (S.D. Fla. 1988) (considered New York

resident even though only spent 25 days a

years in New York) .°

The fact that Mr. Jaisinghani maintained his

California driver’s license does not change the

Here, the lower federal court got it

wrong when it required that the plaintiff must

prove that his physical move was permanent and

not “temporary.” (App. A, 52). The lower

federal court held that the fact that Mr.

Jaisinghani contemplated the possibility of

returning to California and was later called

analysis. The courts have frequently held that a

person changed their domicile even though they kept

their old driver’s license. See, e.9., Chappelle,

863 F.Supp. at 182 (considered New York resident even

tnough he still had a California driver’s license) ;

Reynolds, 362 F.Supp. at 334 (considered

Pennsylvania domiciliary even though still had Ohio

driver’s license); Bloomfield, 82 So. 2d at 368

(considered Florida resident even though he still had

a Michigan driver’s license). There are often

reasons for not changing a person’s driver’s license

such as the inconvenience or the fact that the

license has not yet expired. Reynolds v. Ranta, 362

F.Supp. 333, 334 (W.D. Pa. 1973).

upon to return to attend to certain legal

proceedings in California meant that he never

in fact changed his domicile to Florida. The

court applied the incorrect legal test. The

correct test is whether when Mr. Jaisinghani

physically moved to Florida in the mid 1980s,

he intended to remain indefinitely. The fact

that he may have had the vague contemplation

of returning or that he was later required to

return for certain legal proceedings is not

relevant to the determination.

In .ddition, this Court should address

this issue because it has wider applications

for persons across the country who change

their residency with the intent to make it

their new home. Many states such as Florida

encourage people to move to their state. The

determination of a verson’s domicile is

important for various reasons, including tax

residency. The lower federal court’s

—

incorrect determination casts doubt on the

legal residency of many people who have moved

from state to state for the purpose of

establishing a new domicile. Granting this

petition will give the Court the opportunity

to correct this error of law and provide

guidance on this important issue.

Iiz.

CONCLUSION

For the reasons stated, the petition for

writ of certiorari should be granted.

Respectfully submitted,

Worlds ie

DAVID T. AZRIN-

LAW OFFICE OF DAVID T.

AZRIN, P.A.

Courthouse Tower

44 West Flagler Street

Suite 2550

Miami, Florida 33130

(305) 577-0309

Fax: 577-0329

ATTORNEYS FOR PETITIONER

APPENDIX A

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 94-1927-CIV-NESBITT

GUL JAISINGHANI,

Plaintiff,

vs. ORDER GRANTING MOTION

CAPITAL CITIES/ABC, AND DISMISSING CASE

THC. , GC Gi.,

Defendants.

This cause comes before the Court upon

Defendants Capital Cities/ABC, Inc., The

Kansas City Star Company, Bill Dalton, and

DataTimes Corp.’s (“the Capital Cities

Defendants”) Motion for Summary Judgment,

filed November 28, 1995 (DE #125) and

Defendant Prodigy Services Corp.’s Motion for

Summary Judgment, filed November 28, 1995 (DE

#129). While each Motion for Summary Judgment

alleges many grounds for relief’, the Court

will limit itself to a discussion of the

threshold issue of the statute of limitations

for purposes of this Order.

There is no dispute that the suit was

brought one years and three hundred and sixty

four days after the limitations period had

begun to run. Defendants argue that

California’s one-year statute of limitations

These grounds are: (1) That California’s one-

year statute of limitations bars the action against

all defendants; (2) the statements sued upon are

constitutionally privileged; (3) Plaintiff cannot

show substantial falsity; (4) the statements sued

upon are protected by qualified judicial and public

records privileges; (5) Plaintiff cannot show that

Capital Cities/ABC published the statements sued

upon; and (6) Plaintiff failed to provide DataTimes

and Prodigy with presuit notice required by Florida

law and cannot show that DataTimes and Prodigy

published the statements sued upon.

Ct a a ec SIN ik,

— en gg on 7

Ri ie spender aimee diver a sea kos

applies, barring all of Plaintiff’s claims and

necessitating dismissal of the entire case.

See Cal.Code.Civ.Proc. § 340(3). Plaintiff

disagrees, contending that Florida’s two-year

statute of limitations applies, allowing his

claims to proceed. See Fl. Stat. §

95.11(4) (g). the Court heard oral argument on

this issue on January 13, 1997 at which time

the parties agreed that the question of

whether the statute of limitations had run is

a threshold issue of law for the Court to

decide prior to trial.

a FACTUAL BACKGROUND

On September 20, 1992, Defendant Kansas

City Star Company, a newspaper publisher,

published a news report entitled “VFW

donations: Who benefits? Fund-raiser takes

$0% of the money given for veterans.” The

report included seven separate articles that

examined the many charitable activities of the

Veterans of Foreign Wars (“VFW”). The lead

article focused on Plaintiff, Gul Jaisinghani,

a private fundraiser who raised $27 million

for VFW state departments in five years in

eleven states from Florida to California. The

main thesis of the article was that

Plaintiff’s organization kept 90% of all

contributions for its expenses and profits.

Plaintiff, who is a citizen of India with

residences in both Florida and California,

filed his Complaint alleging diversity

jurisdiction on September 19, 1994. The

Complaint includes a single count for

defamation against all defendants. Plaintiff

alleges that the article contains several

false statements. As Defendants he has named

Bill Dalton, the article’s author, the Kansas

City Star Company and its parent corporation

Capital Cities/ABC, DataTimes, an on-line

computer services that carries the Kansas City

Star, and Prodigy, another on-line computer

service on which a summarized version of the

article repeating the allegedly false

statements to other subscribers was posted.

Il. DISCUSSION

In Florida, defamation suits must be

brought within two years of the publication of

the defamatory statements. Pl. State 4

95.11(4) (g). Florida, however, has a

borrowing statute, which provides that “[w] hen

the cause of action arose in another state or

territory of the United States, or in a

foreign country, and its laws forbid the

maintenance of the action because of lapse of

time, no action shall be maintained in this

state.” Fl. Stat. § 95.10. The purpose of

the borrowing statute is to prevent forum

shopping. Madera v. Hall, 717 F.Supp. 812,

815 (S.D. Fla. 1989), vacated on different

grounds, 916 F.2d 1510 (11th Cir. 1990);

Celotex Corp, v,. Meehan, 523 So.2d 141, 143

(Fla. 1988). So, if the cause of action arose

in another state whose statute of limitations

would bar the claims, Florida courts will

“borrow” the other state’s statute of

limitations, barring the action. Celotex

Cor., 523 So.2d at i143. Thus, the first

inquiry of a district court is to determine

where the cause of action arose according to

Florida law. Madera, 717 S.Supp. at 815.

Florida has adopted the “significant

relationship” test to determine where the

cause of action arose. Celotex Corp,., 523

So.2d at 144; Bates v,. Cook, Inc., 509 So.2d

1112, 1115 (Fla. 1987). Under this test, the

cause of action arises in the state with the

most significant relationship to the parties

and the tortious act or occurrence. To

determine which state has the most significant

relationship to the case, Florida follows the

approach outlined in the Restatement (second)

of Conflicts of Laws § 145(2) and weighs the

following factors: (1) the place where the

injury occurred; (2) the place where the

conduct causing the injury occurred; (3) the

domicile, residence, nationality, place of

incorporation and place of business of the

parties; and (4) the place where’ the

relationship, if any, between the parties is

centered. Celotex, 523 So.2d at 144.

Plaintiff and Defendants contend that

this issue is one of pure law solely to be

determined by the Court. Digioia v. H. Koch &

Sons, 944 F.2d 809, 811 (11th Cir. 1991);

Shapiro v. Associated Int’] Ins, Co,, 899 F.2d

1116, 1118 (11th Cir. 1990); and American

J f

885 F.2d 826, 830 (lith Cir. 1989). Thus,

this Court will determine in which direction

the significant relationship factors weigh,

based on the facts presented to the Court, and

determine whether Florida or California bears

the most significant relationship to this

case.

The first factor, location of the injury,

is indecisive; that is, the injury occurred in

both California and Florida as well as other

states in which the article was published.

Normally, in libel cases such as this, the

location of the injury is held to occur

wherever the periodical is circulated.

Stepanian v. Addis, 782 F.2d 902, 903 (11th

Cir. 1986)°; Madera v. Hall, 717 F.Supp. 812,

Stepanian was decided before Celotex Corp, v.

Meehan, 523 So.2d 141, 143 (Fla. 1988) and thus did

not utilize the significant relationship test. The

Court’s analysis was brief and appeared to rely

primarily on where the allegedly libelous statements

were published to determine whether Florida’s

borrowing statute applied. It is therefore

;

ee ee |

815 (S.D. Fla. 1989); vacated on different

grounds, 916 F.2d 1510 (11th Cir. 1990).

Here, the offending newspaper was circulated

in both California and Florida, as well as

other states not relevant. Thus, the injury

could be held to have occurred in both states.

Plaintiff attempts to argue, citing cases

such as Madera, that the place where the most

damage has been alleged to occur is the place

where the most injury was done to Plaintiff’s

reputation and should bear the most

significant relationship to the cause of

action. In this case, that proposition is not

entirely clear. While Plaintiff alleges and

provides extensive evidence that their ability

to acquire fundraising contracts in Florida

appropriate to rely on this case for the proposition

that the injury in a libel case occurs where the

publication is circulated, but not to determine how

to apply the borrowing statute.

has been damaged. Plaintiff does not show how

this damage is unique to Florida. Plaintiff’s

business is a national business with offices

and contracts throughout the United States.

Plaintiff was actively lobbying for contracts

in many states and each one of these contracts

had the potential to be damaged by the

allegations in this article. Additionally,

Plaintiff has not shown that these business

opportunities were pending at the time of the

publication of the article. Even though

Plaintiff had no- active contracts in

California as well, he still maintained a base

of operations there, keeping his main

accountant and lawyer in California. Thus,

based on the evidence in the record and at

oral argument, it can not be said that the

injury occurred more significantly in either

Florida or California.

The second factor, the location of the

conduct giving rise to the injury, is likewise

not dispositive. The “Kansas City Star” is

published in Missouri, which weighs in favor

of neither California nor Florida. Plaintiff

contends, in the alternative, that the case

bears the most significant relationship with

Missouri, which, like Florida, has a two-year

statute of limitations and that Missouri’s

statute of limitations should apply. The only

connection Missouri has with this. case,

however, is that it is the location of

publication, which is not sufficient, standing

alone, to render it the state with the most

significant relationship. Additionally, the

article was republished throughout the country

making Missouri’s relationship less

Significant. Thus, the second factor of the

test provides no help in weighing between

California and Florida.

The fourth factor, the place where the

relationship between the parties is centered,

weighs in favor of California, but not so

Significantly that it, alone, would cause

California to have the most’ significant

relationship. While researching the article,

the author, Bill Dalton, tried to contact

Plaintiff in both Florida and California. He

was finally successful but only marginally so,

in California, when he attempted to question

Plaintiff in a courthouse. Plaintiff

responded by essentially stating that he had

no comment. Plaintiff did, however, direct

his attorney to respond to Defendant’s

questioning from Florida, but this was not a

Significant amount of the research done on the

article. The article was primarily about his_

businesses and actions in California and most

of the research was done there. This is the

extent of the parties’ “relationship.”

Thus, the statute of limitations issue

Daa etc A lc See RN

5k rn 52 Ne tase ed stn nd RE ll ei>

od A aR S Ut me, $0 at Re eer

Ai Siri cis

hinges on the third factor of the test, and

since the Kansas City Star Company and Bill

Dalton are located in Missouri, the

dispositive issue is Plaintiff’s domicile,

residence, and place of business.

Unfortunately, these are the most difficult

questions to answer. Plaintiff has conducted

fundraising activities in several states,

including both California and Florida, and

maintains residences in both Florida and

California, so he has relationships with both

states. The issue before this Court is which

of those relationships bears the most

significance to this case.

Domicile is established by physical

presence in a place and an intent to remain

there indefinitely. Mississippi Band of

Choctaw Indians v. Holyfield, 490 U.S. 30, 37

(1989). The concept of “domicile” must be

distinguished from that of “residence;” a

person can have only one domicile, but may

have many residences. Jd, Once established,

a person’s domicile continues in that same

place until he establishes a new domicile.

Id.; see also, Wright & Miller § 3612 at 535-

36. To establish a new domicile, one must be

physically present in the new place and

possess the intent to remain there

indefinitely. Scoggins v. Pollock, 727 F.2d

1025, 1026 (11th Cir. 1984). In general, the

law favors one’s established domicile over a

putative new domicile unless one is clearly

shown to have changed domicile, and one’s

domicile is presumed to be the same as one’s

residence. Wright & Miller § 3612 at 534-35.

The factors considered in determining domicile

are mumerous and include home ownership,

driver’s license, voting registration,

location of family, location of business and

where taxes are paid. Id. at 532-35. The

individual’s own declarations are usually

accorded little weight when in conflict with

the facts or when the question is close.

Hendry v. Masonite Corp,, 455 F.2d 955, 956

(Sth Cir.), cert, denied, 409 U.S. 1023

(1972); Wright & Miller § 3612 at 532.

Plaintiff was born in India and moved to

this country in 1959. He moved to California

in the 1960's where he attended the University

of Southern California, started a family, and

began the first of several California-based

businesses. In the early 1980's, while still

based in California, Plaintiff began his VFW

fund-raising activities, which are the subject

of the allegedly libelous article. His fund-

raising business began in California, expanded

next to Texas, then to Florida. From Florida,

Plaintiff expanded the business to Louisiana,

Colorado, Georgia, Indiana, Illinois,

Michigan, Oklahoma, and Nevada.

In the mid 1980s, Plaintiff began to

experience legal problems in California, both

Civil and criminal, which stemmed from his

various businesses, including his fund-raising

business. In 1986 he and his wife divorced.

His wife got the California house, and he

rented an apartment in North Miami, Florida,

where his sister lived and where he was at the

time conducting vigorous fund-raising

activities. He later moved to a boat owned by

his daughter, which was docked in Bayside,

Miami. During this time, his business center

remained in California, even though he was no

longer soliciting funds for the fund-raising

business in California. For instance, his

principal accountant, Chabil Vasani, is

located in California, as are the majority of

his attorneys. More importantly, he

maintained, and maintains to this day, a

California driver’s license and never obtained

“i

Rv tetas. ot

a Florida license. In addition, his

girlfriend, Sylvia Arvayo, who served as an

officer and owner of several of his fund-

raising companies, resides in California.

In 1980, Plaintiff purchased a

condominium in North Miami Beach in his

daughter’s name that was later transferred to

Plaintiff in his own name. He owns a car in

Florida, but it is not registered to him and

could not be as he does not have a Florida

driver’s license. The following year,

Plaintiff returned to California to deal with

his various legal problems and took up

residence with his girlfriend in Long Beach.

Plaintiff has testified in a deposition that

since early 1991 he has spent 70%-80% of his

time in California. Also, Plaintiff admitted

that he has been physically present in

California for more time than any other state.

His utilities bills since 1991 indicate that

he has used very little power in the North

Miami Beach condominium and has made few phone

calls from the unit.

Thus, Plaintiff has never established a

domicile in Florida, despite the move there in

the mid 1980's. He was clearly domiciled in

California since the 1960's. To establish a

domicile in Florida, Plaintiff would have to

establish not only physical presence there but

he also would need the intent to remain there

indefinitely. The burden is on Plaintiff to

demonstrate that he changed his domicile to

Florida; the presumption is that it remained

in California. See Wright & Miller § 3612

534-35. Although he clearly had some

important contacts with Florida, the rented

apartment, boat, and later condominium, there

is really no evidence that his business center

ever moved from California.

The fact that Plaintiff established a

fund-raising business in Florida does not

support a change in place of business to

Florida, because the very nature of his

business requires him to establish businesses

in many states. Nor is there any evidence of

an intent to remain in Florida indefinitely.

Indeed, the evidence indicates that Plaintiff

intended to return (or remain) in California.

He still maintains a California driver’s

license and never attempted to obtain one in

Florida, his principal accountant remained in

California, he has lived in California most of

his life, and his girlfriend lives in

California. Moreover, he only moved to

Florida, where his sister lives, when he lost

his house to his wife. This was merely a

temporary move.

Most important, however, is Plaintiff’s

own admissions in the form of sworn statements

claiming his residence and domicile as

California. Since January 1992, Plaintiff has

identified his girlfriend’s address in

California as his place of residence in seven

sworn statements. He gave one of these

statements in a lawsuit in California, one in

a lawsuit in Michigan, and the remaining five

to various officials in Florida. These were

not self serving statements made at the time

for convenience, but statements purporting

Plaintiff's belief as to the state with which

he has the most contacts. The article in

question in this case was published on

September 20, 1992, nine months after the

first of these sworn statements. Thus, at the

very least, Plaintiff owas residing in

California at the time of publication.

The significant relationship analysis, as

well as that for domicile, residence, and

place of business, require the Court to weigh

the totality of the circumstances of the case.

Celotex Corp., 523 So.2d at 143. In doing so,

the Court finds that Plaintiff is a California

citizen who took up residence in Florida for a

brief period while he was going through his

divorce and legal troubles back in California.

Plaintiff spent the better part of his life in

California, developed several businesses

there, was married, raised a family and

divorced there, started and maintained a fund-

raising business’ there, lived with his

girlfriend there, and finally, was indicted

and tried there. Clearly, Plaintiff himself

has a more significant relationship with

California than with any other state.

Moreover, the article in question focused on

Plaintiff’s fundraising and other activities

in California. It thus seems fitting that the

California statute of limitations should apply

to his libel action, especially as he filed

the action one day prior to the expiration of

Florida’s statute of limitations and 364 days

after the expiration of California’s.

Plaintiff appears to be engaged in the very

thing that Florida’s borrowing statute was

designed to prevent: forum shopping.

California has the most significant

relationship to this case and California’s one

year statute of limitations will bar this case

from proceeding. Accordingly, it is hereby

ORDERED AND ADJUDGED that:

: Capital Cities Defendants’ Motion

for Summary Judgment filed November 28, 1995

is GRANTED.

a Prodigy Services’ Motion for Summary

Judgment filed November 28, 1995 is GRANTED.

(+ All other motions not previously

ruled upon are DENIED AS MOOT.

DONE AND ORDERED in Chambers, Miami,

Florida, this 27th day of March, 1997.

LENORE C. NESBITT

UNITED STATES DISTRICT JUDGE

cc:

David T. Azrin, Esq.

Thomas Constantine, Esq.

Thomas R. Julin, Esq.

APPENDIX B

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 94-1927-CIV-NESBITT

GUL JAISINGHANI,

Plaintiff,

vs. FINAL JUDGMENT

CAPITAL CITIES/ABC, INC., et al.,

Defendants.

For the reasons stated in the Order Granting Summary

Judgment entered on March 21, 1997, it is thereupon

ORDERED AND ADJUDGED that the judgment be

entered in favor of Defendant Capital Cities/ABC, Inc., et al.

and against Plaintiff Gul Jaisinghani. Plaintiff shall take

nothing from this action and Defendant shall go hence without

day.

DONE AND ORDERED in Chambers at Miami,

Florida, this 24th day of March, 1997.

LENORE C. NESBITT

UNITED STATES DISTRICT JUDGE

Counsel of Record

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 97-4683

D.C. Docket No. 94-1927-CV-LCN

GUL JAISINGHANI.

Plaintiff-Appellant,

versus

CAPITAL CITIES/ABC, INC., a

Delaware corporation, THE KANSAS

CITY STAR COMPANY, a

Missouri corporation, BILL DALTON,

individually, DATATIMES CORPORATION,

an Oklahoma corporation, PRODIGY

SERVICES CORPORATION, a Delaware

corporation, et al.,

Defendants-Appellees.

Appeal from the United States District Court

For the Southern District of Florida

(June 24, 1998)

Before TJOFLAT and DUBINA, Circuit Judges, and SMITH*,

Senior Court Judge

*Honorable Edward S. Smith, Senior U.S. Circuit Judge for the

Federal Circuit, sitting by designation

PER CURIAM:

AFFIRMED. See 11th Cir. R. 36-1.'

' 41th Cir. R. 36-1 provides:

When the court determines that any of the

following circumstances exist:

(a) judgment of the district court is based

on findings of fact that are not clearly erogenous;

(b) the evidence in support of a jury verdict

is sufficient;

\ (c) the order of an administrative agency is

i supported by substantial evidence on the record as a

whole;

i (da) summary judgment, directed verdict, or

; judgment on the pleadings is supported by the record;

| (e) judgment has been entered without a

reversible error of law;

| and an option would havé no precedential value, the

judgment or order may be affirmed or enforced without

opinion.

APPENDIX D

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 97-4683

D.C. Docket No. 94-1927-CV-LCN

GUL JAISINGHANI.

Plaintiff-Appellant,

versus

CAPITAL CITIES/ABC, INC., a

Delaware corporation, THE KANSAS

CITY STAR COMPANY, Etc., Et Al.,

Defendants-Appellees.

On Appeal from the United States District Court for the

Southern District of Florida

ON PETTTION(S) FOR REHEARING AND SUGGESTION(S)

OF REHEARING EN BANC (Opinion :

lithCir., 19, F.2d ).

Before: TJOFLAT and DUBINA, Circuit Judges, and SMITH*,

Senior Circuit Judge.

PER CURIAM:

The Petition(s) for Rehearing are DENIED and no member of

ner Be

this panel nor other Judge in regular active service on the Court

having requested that the Court be polled on rehearing en banc

(Rule 35, Federal Rules of Appellate Procedure; Eleventh

Circuit Rule 35-5), the Suggestion(s) of Rehearing En Bank are

DENIED.

ENTERED FOR THE COURT:

UNITED STATES CIRCUIT JUDGE

*Honorable Edward S. Smith, Senior U.S. Circuit Judge for the

Federal Circuit, sitting by designation.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.