
    John A. “Jack” SORCIC v. INTERNATIONAL ASSOCIATION FOR FINANCIAL PLANNING, et al.
    Civ. A. No. H-91-2271.
    United States District Court, S.D. Texas, Houston Division.
    Sept. 16, 1992.
    Julius Glickman, Glickman & Barnett, Houston, TX, for John A. “Jack” Sorcic.
    Phillip T. Bruns, Gibbs & Ratliff, Richard A. Sheehy, McFall & Sartwelle, Houston, TX, Gregory R. Crochet, Kutak Rock Campbell, Atlanta, GA, for International Ass’n for Financial Planning Inc.
   MEMORANDUM

HARMON, District Judge,

Pending before the Court is the Motion To Dismiss, or Alternatively, Motion For More Definite Statement of Defendants, The Bureau of National Affairs, Inc. And Tax Management Inc. (Document # 9). Because the response goes outside the First Amended Complaint, the Court will treat the motion to dismiss as a motion for summary judgment. Having considered the motion for summary judgment, the response, the reply, and the applicable law, the motion will be granted.

I. THE RELEVANT FACTUAL BACKGROUND

This is a diversity libel case. On or about June 4, 1991, Plaintiff filed suit against the International Association for Financial Planning, Inc. (“IAFP”) for, inter alia, libel and defamation. Plaintiffs claims against the Defendant IAFP concern an article published in the July/August 1990 Financial Planning News, a publication for members of IAFP. Plaintiff asserted that on October 28,1991, in answers and discovery requests, Defendant IAFP identified the source of information or data that was used in preparing, writing, reviewing, and publishing an article appearing in the June 26, 1990 (Volume 6, No. 13) edition of Tax Management Financial Planning Journal which was published by Defendant Tax Management Inc. (“TMI”), a subsidiary of the Bureau of National Affairs, Inc. (“BNAI”). Plaintiff filed his First Amended Original Complaint asserting causes of action against BNA and TMI on December 4, 1991.

II. THE APPLICABLE LAW

The First Amended complaint alleged that Plaintiff was defamed by an article appearing in the June 26, 1990 (Volume 6, No. 13) edition of Tax Management Financial Planning Journal published by Defendant TMI, a subsidiary of Defendant BNAI.

Suits for libel in Texas are governed by a one year statute of limitations. Tex.Prac. & Remedies Code § 16.002 (1992). Defendants BNAI and TMI assert that Plaintiffs claims against them are time-barred because limitations ran on June 26, 1991, more than five months before the amended complaint was filed. Plaintiff responds that under the “discovery rule,” his libel action against BNAI and TMI was not time barred.

In an attempt to show that a copy of the June 26, 1990, edition of Tax Management Financial Planning Journal was not readily available to the public, Plaintiff filed an affidavit of Delta S. Curtis, an employee of his counsel’s law firm, attesting that she has contacted “[njumerous public institutions,” yet could not obtain a copy of the journal.

The discovery rule does not apply to defamation actions where the publication is accomplished through the mass media. In such cases there is no attempt to conceal or hide the publication from the plaintiff, and the defamatory material is discoverable because it is readily available to the public. Holloway v. Butler, 662 S.W.2d 688 (Tex. App. — Houston [14th Dist.] 1983, writ refd n.r.e.).

The discovery rule applies in situations in which the defamatory material is published in a manner in which it is likely to be concealed from the plaintiff, such as a confidential business memorandum or credit report. Id. It must be hidden from view. Id. at 693.

The unavailability of the report involved in the instant case was not of the type the Holloway court described. Rather, Sandra Degler, President of TMI, swore in her affidavit that as of June 1990 each edition of the Tax Management Financial Planning Journal was published and mailed to approximately 1,350 subscribers on a monthly basis. Each edition of the publication is printed and distributed in 47 states including Texas, the District of Columbia and five other countries. The June 26, 1990 edition of Tax Management Financial Planning Journal was accomplished through the mass media.

This alleged defamatory material was not a secret report hidden from view. It was readily available to the public and was therefore discoverable. The discovery rule does not apply in this case.  