NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

______________ No. 23

- 2698

______________ DERRICK EVANS ,

Appellant

v. THEHUFFINGTONPOST.COM , INC

.

______________ On Appeal from the United States District Court

for the District of Delaware (D.C. Civil No. 1

- 22

- cv
- 01180 ) District Judge: Honorable Gregory B. Williams

______________ Argued May 7, 2024
Before: MATEY , MONTGOMERY

- REEVES , and ROTH , Circuit Judges

.

( Opinion f

iled: August 27, 2024 )
Charles E. Cowan [ARGUED] John P. Sneed Wise Carter Child & Caraway 401 E Capitol Street Suite 600 Jackson, MS 39201 James D. Taylor, Jr. Michelle C. Streifthau

- Livizos Saul Ewing 1201 N Market Street Suite 23002

Wilmington, DE 19801 Attorneys for Appellant Joseph J. Saltarelli [ARGUED] Silvia N. Ostrower Hunton Andrews Kurth 200 Park Avenue New York, NY 10166
Carla M. Jones Potter Anderson & Corroon 1313 N Market Street Wilmington, DE 19801 Attorneys for Appellee

______________ OPINION 

______________
MONTGOMERY

- REEVES , Circuit Judge

. Derrick Evans appeals the District Court’s order dismissing his complaint. Because Evans’s claims against TheHuffingtonPost.com, Inc. (“HuffPost”) are time

barred under the relevant statutes of limitations, we will affirm the District Court’s order.

 This disposition is not an opinion of the full C ourt and pursuant to I .O.P. 5.7 does not constitute binding precedent.3

I. BACKGROUND On September 20, 2018, HuffPost published an article entitled “Former Student: Brett Kavanaugh’s Prep School Party Scene Was a ‘Free

- For

- All.’” App. 23 . The article
stated that Evans “helped score” illegal narcotics that killed David Kennedy. Id.
Evans filed a defamation suit in the United States District Court for the Southern District of Mississippi

. Evans was a Mississippi resident at the time

. The Court dismissed Evans’s lawsuit for lack of personal jurisdiction on April 27, 2022. A month later, Evans filed a defamation suit in the United States District Court for the Southern District of New York. Several weeks later, Evans dismiss ed that action without prejudice
and brought this action in the United States District Court for the District o f Delaware on September 8, 2022

. HuffPost sought dismiss al, arguing that the action was time

- barred , which the District Court granted. This appeal followed.
II. DISCUSSION 1 In this appeal, we must determine whether Evans ’s defamation claim against
HuffPost is time

- barred. Because Evans filed suit in the District of Delaware based on

1 The District Court had jurisdiction under 28 U.S.C. § 1332 . We have jurisdiction under 28 U.S.C. § 1291. We review de novo the District Court’s order granting HuffPost’s motion to dismiss. See City of Edinburgh Council v. Pfizer, Inc. , 754 F.3d 159, 166 (3d Cir. 2014) (“We review de novo the District Court’s decision to grant [a] Rule 12(b)(6) motion to dismiss

. ” ( citing In re Aetna, Inc. Sec. Litig

. , 617 F.3d 272, 277 (3d Cir. 2010) ) ); Robeson Indus. Corp. v. Hartford Accident & Indem. Co. , 178 F.3d 160, 164

- 65 (3d Cir. 1999) (“Choice

of

- law is a question of law which [we] review [] de novo
. ” (citing Gen. Ceramics, Inc. v. Firemen’s Fund Ins. Cos. , 66 F.3d 647, 651 (3d Cir. 1995)) ).4

diversity of citizenship, we apply the choice

- of

- law rules of the forum stat e, which is
Delaware

. Kaneff v. Del. Title Loans, Inc. , 587 F.3d 616, 621 (3d Cir. 2009) (“ It is now black letter law that in an action based on diversity of citizenship jurisdiction, we must apply the substantive law of the state in which the District Court sat, including its choice
of law rules. ” (citation and internal quotations omitted))

. Delaware law provides :

Where a cause of action arises outside of this State, an action cannot be brought in a court of this State to enforce such cause of action after the expiration of whichever is shorter, the time limited by the law of this State, or the time limited by the l aw of the state or country where the cause of action arose, for bringing an action upon such cause of action. Where the cause of action originally accrued in favor of a person who at the time of such accrual was a resident of this State, the time limited by the law of this State shall apply. 10 Del. C. § 8121. 2 So here, the C ourt must apply the shorter of Delaware’s statute of
limitations (which is two years 3 ) or the limitations period of the state where the cause of
action arose. The parties hotly dispute whether the action arose in New York or Mississippi.
Both New York and Mississippi have one

- year statute s of limitation s
. 4 B ut Evans argues that if Mississippi law applies, its savings statute saves claims dismissed for “ matter of form,” which purportedly includes claims dismiss ed for lack of personal jurisdiction.

2 Evans is not a Delaware resident.

3 10 Del. C. § 8119

.
4 N.Y. C.P.L.R. § 215(3); Miss. Code Ann. § 15

- 1

- 35.5

Opening Br. 10, n.3 (citing Pulliam v. Gulf Lumber Co. , 312 F.2d 505, 510 (5th Cir. 1963) )

. 5 If Evans is correct , his action would not be time

- barred under Mississippi law. Unfortunately for Evans, Mississippi law does not support his position

. In 2005 , the Supreme Court of Mississippi discussed whether an action dismissed for lack of personal jurisdiction ha d been dismissed for a “matter of form” under Mississippi’s savings statute, Miss. Code Ann. § 15

– 1

– 69. Owens v. Mai , 891 So. 2d 220 , 222 (Miss. 2005) (en banc)

. The Supreme Court of Mississippi acknowledged its own precedent holding “ that dismissal for lack of jurisdiction is a dismissal for matter of form, within the purview of § 15

– 1

– 69 .” Id. (collecting cases). It clarified, however, that those cases

“ all addressed subject [

- ] matter jurisdiction rather than personal jurisdiction.” Id. Then, it
considered

— and rejected

— the lower court’s reasoning that dismissals for lack of personal jurisdiction

— like dismissals for lack of subject

- matter jurisdiction

— should be treated as a matter of form under § 15

– 1

– 69 because “ both subject [

- ] matter jurisdiction and personal jurisdiction are necessary before a court may validly try and adjudicate a

case
. ” Id. The lower court’s analysis relied on “dict a ” from the Supreme Court of Mississippi ’s 1915 decision in Hawkins v. Scottish Union and National Insurance
Co m pany , 69 So. 710, 712 (Miss. 1 915) , to conclude that personal jurisdiction is a matter
of form

. Owens , 891 So. 2d at 222. Owens expressly “de c line[d] to establish [that] dicta
from Hawkins as a principle of law.” Id. Thus , t he Supreme Court of Mississippi has

5 New York also has a savings statute, but the statute specifically excludes actions dismissed for lack of personal jurisdiction. See N.Y. C.P.L.R. § 205 (a) ; Wydallis v. U.S. Fid. & Guar. Co. , 472 N.E.2d 322, 323 (N.Y. 1984)

.6

explained that dismissals for a lack of personal jurisdiction are not treated as a matter of form under § 15

– 1

– 69. Despite the clear language in Owens , Evans asks us to interpret the holding of
Owens to apply only to dismissal for failure to effect process

— not dismissal for lack of personal jurisdiction

—

because service of process is a matter within a plaintiff’s control. Evans argues that Mississippi’s savings statute aims to protect parties who mistakenly file suit in the wrong forum. Evans contends that because the dismissal of his first complaint was “through no fault of his ow n , ” Suppl. Br. for Appellant 3, this a ction is among the
suits that Mississippi ’s savings statute was designed to preserve. But we cannot ignore the clear language in Owens

. And Evans has not identified
any Mississippi case that adopted his interpretation of Owens and brought personal jurisdiction under the matter

- of

- form umbrella, despite almost two decades of law since
Owens

. We therefore decline to interpret Owens in a manner inconsistent with its plain language

. Thus, the District Court did not err by granting HuffPost’s motion to dismiss because Evans’s claim s are time

- barred under Mississippi, New York, and Delaware law

. And we need not resolve where those claims arose. 6

6 Judge Roth further notes that the District Court may have misapplied Delaware law by giving disproportionate weight to New York’s anti

- strategic litigation against public participation (“ anti

- SLAPP ”) statute when determining where Evans’s cause of action arose
. The District Court based its conflicts analysis almost exclusively on the presence of New York’s anti

- SLAPP regime i n determining that the statute overcame the state domicile presumption (favoring Mississippi law) that applies in multistate defamation cases. This analysis, however, gave virtually no weight to competing concerns. The7

III. CONCLUSION For the reasons discussed above, we will affirm the District Court’s order

.

District Court did not consider, for example , evidence that Mississippi’s lack of an anti

SLAPP regime was intentional, as its legislature had rejected earlier attempts to pass such a law. See S.B. 2628, 2022 Leg., Reg. Sess. (Miss. 2022), https://trackbill.com/bill/mississippi

- senate

- bill

- 2628

- anti

- slapp

- law

- create

- the

- public

speech

- protection

- act/2196895/

.