21 F.3d 1309 (3rd Cir. 1994), 93-7553, St. Surin v. Virgin Islands Daily News, Inc.

Docket Nº:93-7553.
Citation:21 F.3d 1309
Party Name:Gabriel ST. SURIN, Appellant, v. VIRGIN ISLANDS DAILY NEWS, INC.; Brodhurst Printery, Inc., d/b/a St. Croix Avis.
Case Date:April 15, 1994
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

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21 F.3d 1309 (3rd Cir. 1994)

Gabriel ST. SURIN, Appellant,


VIRGIN ISLANDS DAILY NEWS, INC.; Brodhurst Printery, Inc.,

d/b/a St. Croix Avis.

No. 93-7553.

United States Court of Appeals, Third Circuit

April 15, 1994

Argued Dec. 3, 1993.

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[Copyrighted Material Omitted]

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Rhys S. Hodge (Argued), Charlotte Amalie, St. Thomas, U.S.V.I., for appellant.

Adriane J. Dudley (Argued), Dudley, Clark & Chan, Charlotte Amalie, St. Thomas, U.S.V.I., for appellee Virgin Islands Daily News, Inc.

Present: MANSMANN, HUTCHINSON and LEWIS, Circuit Judges.


HUTCHINSON, Circuit Judge.

Appellant, Gabriel St. Surin ("St. Surin"), appeals an order of the District Court of the Virgin Islands granting summary judgment for defendants, the Virgin Islands Daily News, Inc. ("Daily News") and Brodhurst Printery, Inc., d/b/a St. Croix Avis ("Avis"), in a defamation action involving articles the defendants published about St. Surin's activities at the Department of Public Works ("DPW"). The Daily News story inaccurately quoted a federal prosecutor as saying charges would be filed shortly against St. Surin. In fact, no federal criminal charges were ever filed against St. Surin. The Avis article similarly implied charges were imminent.

The district court, without resolving St. Surin's Federal Rule of Civil Procedure 56(f) applications for delay pending discovery, granted summary judgment for the Daily News and Avis. It held the material published was substantially true. We hold the district court abused its discretion when it decided the newspapers' summary judgment motions in their favor while St. Surin's Rule 56(f) applications were still pending before the district court and key discovery was outstanding. Alternatively, we hold the evidence presently before the court on the summary judgment issue left unresolved genuine issues of material fact on falsity and actual malice. Accordingly, we will reverse the district court's order granting summary judgment and remand the case for further proceedings consistent with this opinion.

The district court had subject matter jurisdiction under 48 U.S.C.A. Sec. 1612 (West 1987). We have appellate jurisdiction over the district court's final order dismissing St. Surin's action against the Daily News and Avis with prejudice pursuant to 28 U.S.C.A. Sec. 1291 (West 1993).


St. Surin filed this defamation action on October 24, 1989, alleging two Virgin Islands newspapers published defamatory statements about him. In his claim against the Daily News, he contends that an article which appeared in that paper's Thursday, July 27, 1989, edition was false and defamed him. That edition carried a front-page story, headlined "Charges near against DPW official--prosecutor," under the byline of reporter Abu Bakr. The body of the article

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stated "[a] federal prosecutor says charges are expected to be filed next week against a Public Works Department official" and named Assistant U.S. Attorney James Hurd as its source. According to the story, Hurd had confirmed a suspicion that St. Surin was the target of a federal investigation. The article states Hurd and current and former DPW officials would not discuss the investigation's focus but refers to another law enforcement source as saying it centers on allegations St. Surin had granted government contracts in exchange for favors when St. Surin was head of the DPW's engineering division.

On the day the article was published, Hurd contacted the Daily News and told it his conversation with Bakr had been inaccurately reported. He told the Daily News that he never said charges would be filed in the next week. The next day the Daily News published a front-page "correction." It reported Hurd "did not say charges will be filed next week against" St. Surin and that the government would issue a statement shortly. 1 Appellant's Appendix ("App.") at 10.

St. Surin says the Daily News was always aware Hurd never stated charges were imminent. He also says the notes Bakr took during his interview with Hurd accurately reflected Hurd's statement about St. Surin, "there will [be] some kind of action taken on that shortly." App. at 568. Additionally, Bakr's first draft of the story, which no longer exists, also quoted Hurd accurately. St. Surin claims the article was changed by Penny Feuerzeig and David Pike, two senior editors of the Daily News, to report falsely that Hurd said charges would be filed within one week.

Almost two weeks before the Daily News story was published, the St. Croix Avis, in a political gossip column entitled "Spy," under the byline "Mongoose," published this report:

The cabinet meetin' was over so ah climb up on de roof, right on top of de 'oval office' by de sun roof over de Governor desk. Man, within minutes mey ears tune in ... ah dunno whether he was talking to someone in de office or only on de phone cause ah could only hear his voice. It went something like dis ... "... Yes Doc, I know he's your boyfriend but ..."

"... Yeah but the Inspector General is recommending to the U.S. Attorney that criminal charges be filed against him...." "... O.K., I'll procrastinate as long as I can because the report isn't public yet but it look like his voodoo accounting practices at Public Works finally catch up with him...." "... Yeah, O.K. Doc, I'll contact you before I do anything ... if I do anything...."

App. at 9 (emphasis in original). Though he was not named in the article, St. Surin asserts the link between the reference to the DPW and his well known relationship with an island doctor identified him, unfairly criticized his work at DPW and falsely stated charges were about to be filed against him.

The Daily News answered St. Surin's complaint on January 3, 1990. Avis never answered and the district court entered a default against it on April 18, 1990, but St. Surin and Avis later filed a stipulation setting aside the entry of default and all the parties began discovery on written interrogatories.

In early 1991, St. Surin filed notice of his intent to take Bakr's deposition. After several delays, Bakr was deposed on April 10, 1991. One day earlier, the Daily News had deposed St. Surin. On October 9, 1991, the Daily News filed a Federal Rule of Civil Procedure 56(c) motion for summary judgment supported by affidavits and accompanied by a fifty-six page brief. St. Surin responded with a Rule 56(f) motion requesting more time for discovery before responding to the Daily News' motion. In his Rule 56(f) motion St. Surin said: "Discovery has not been completed and that depositions especially

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those of James Hurd, Esq., and Penny Feuerzeig are vital to the issues that could be dispositive of defendants [sic] motion for summary judgment." App. at 34. No affidavits accompanied St. Surin's Rule 56(f) motion and the district court never ruled on it.

On October 16, 1991, St. Surin served additional interrogatories on the Daily News. On October 31, 1991, he deposed Penny Feuerzeig, the Daily News editor who allegedly altered the story. He now says during that deposition he first became aware of the substantial role David Pike, former managing editor of the Daily News, had played in his case. Pike has since moved to California. About the same time, St. Surin says the Daily News' attorney contacted him and told him she would be absent from the island for an extended period to receive medical attention. St. Surin says the parties all agreed to suspend discovery until she returned.

On February 4, 1992, Avis moved for summary judgment. St. Surin responded with another Rule 56(f) motion. Eventually, the Pike and Hurd depositions were noticed for July 2, 1992. In the meantime, Magistrate Judge Barnard scheduled a status conference for June 24, 1992. It was postponed until Hurd's and Pike's depositions could be taken. Unfortunately, they were not taken on July 2 and have not been rescheduled. Counsel for the Daily News informed Magistrate Judge Barnard of this postponement. St. Surin contends the failure to reschedule Pike and Hurd is attributable, at least in part, to a trip to Europe by the Daily News' counsel.

On September 13, 1992, without notice to St. Surin, a visiting United States District Judge, sitting by designation, granted both the Daily News' and Avis' motions for summary judgment. At that time, St. Surin's two Rule 56(f) motions were still pending. St. Surin moved for reconsideration, outlining all the problems that had taken place in the three years of discovery. The district court denied reconsideration and St. Surin filed this timely notice of...

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