Law of plaintiff's domicile applies to defamation, rules 7th Circuit.

Byline: David Ziemer

An Oct. 23 opinion (PDF) from the Seventh Circuit is a must-read before filing a defamation action in federal court.

The opinion by Judge Richard A. Posner contains an encyclopedic discussion of what state's law should apply in a defamation action that crosses state borders.

The case was filed in Illinois federal court by Joseph Kamelgard, a surgeon who lives and practices in New Jersey, against Jerzy Macura, a surgeon who practices in New York.

The crux of the complaint was that Macura defamed Kamelgard by writing a letter to the American College of Surgeons (located in Chicago). Apparently, the defendant also wrote a similar letter to the American Society of Bariatric Surgeons in Florida.

Choice of law is relevant to the case, because if the New Jersey statute of limitations applies, the suit was untimely filed, but the suit was timely if Illinois law applies (Illinois has a discovery rule for defamation; New Jersey does not).

The court began with a lengthy discussion about discovery. The plaintiff has not yet obtained a copy of the letter purportedly sent by Macura to the American College of Surgeons, something the Seventh Circuit opinion attributed to his counsel's unfamiliarity with the subpoena procedures available under Fed. R. Civ. P. 45.

For purposes of the appeal, however, the court assumed that the letter existed, the letter was defamatory and that Kamelgard did not find out about the letter until less than one year prior to filing suit.

Assuming the letter was mailed by the defendant to the College in Illinois, the court held that the Illinois federal court would be as good a venue for litigating it as anywhere, since the parties are residents of two different states and one of the alleged defamatory statements was made in Illinois.

Turning to the choice of law issue, however, the court concluded that New Jersey law should apply.

Both New Jersey and Illinois apply the law of the state that has the most significant relationship to the claim - usually, the state in which the injury occurred.

However, the court noted that, in the defamation context, it is not always clear where that is.

The court asked, does it occur just where the plaintiff incurs some tangible harm such as a loss of income, or where his reputation is impaired, and if the latter does he have a reputation in a state in which the statement is...