Bartimo v. HORSEMEN'S BENEV. AND PROTECTIVE ASS'N
| Decision Date | 28 August 1984 |
| Docket Number | Civ. A. No. 81-2258. |
| Citation | 592 F. Supp. 1526 |
| Parties | Vincent J. BARTIMO v. HORSEMEN'S BENEVOLENT AND PROTECTIVE ASSOCIATION and Horsemen's Credit Union. |
| Court | U.S. District Court — Western District of Louisiana |
Robert G. Pugh and Robert G. Pugh Jr., Pugh & Pugh, Shreveport, La., for plaintiff.
John D. Collinsworth, Cook, Yancey, King & Galloway, Shreveport, La., for Horsemen's Benev. Protective Assn. and Home Ins. Co.
Charles R. (Chuck) Minyard, Broadhurst, Brook, Mangham, Hardy & Reed, Lafayette, La., for Racing Journal, Thomas Russell and Horsemen's Credit Union.
RULING FROM THE BENCH*
Rule 41(b) of the Federal Rules of Civil Procedure provides that a plaintiff's complaint may be dismissed involuntarily at the close of his case-in-chief on the ground that, upon the facts and the law, the plaintiff has shown no right to relief. The Horsemen's Benevolent and Protective Association ("H.B.P.A."), Home Insurance Company, Thomas Russell and Racing Journal, all defendants herein, have made a motion for involuntary dismissal of Vincent J. Bartimo's claims pursuant to Rule 41(b).
Although it may take me a good part of the afternoon properly to explain why I find that I must grant the motion under 41(b), I say it in the beginning to remove the suspense and theatrics that attend when the parties wonder what the judge is going to say. I believe you should know that while I might find the law to be disagreeable, I am not in a position to deviate from it. I found, in fact, something that gave me some hope for the future when I was reading in the Herbert v. Lando, 441 U.S. 153, 99 S.Ct. 1635, 60 L.Ed.2d 115 (1979). In Section III, the court noted:
It is nevertheless urged by respondent that the balance struck in New York Times should now be modified to provide further protection for the press when sued for circulating erroneous information damaging to individual reputation. It is not uncommon or improper, of course, to suggest the abandonment, modification, or refinement of existing constitutional interpretation, and notable developments in First Amendment jurisprudence have evolved from just such submissions. But in the 15 years since New York Times, the doctrine announced for that case, which represented a major development and which was widely perceived as essentially protective of press freedoms, has been repeatedly affirmed as the appropriate First Amendment standard applicable in libel actions brought by public officials and public figures.
99 S.Ct. at 1645 (emphasis added).
The grounds for the granting of the Rule 41(b) motion are that, by Mr. Bartimo's evidence, he has failed to establish that Russell and the other defendants published the offending article with "actual malice" as that term is now defined in the federal jurisprudence. This district court, like any other, is required now to make findings of fact and to reach conclusions of law under Rule 41(b).
FINDINGS OF FACT:
There is no question, as a preliminary matter, that the case is properly within the jurisdiction of this court, and there is no issue as to the propriety of the parties, or the joinder of issues. There is no need at this time to repeat the stipulated facts that were contained in the Pretrial Order and read into the record at the beginning of trial. See, Appendix I.
It suffices to say that Mr. Bartimo alleges that he was defamed under Louisiana law by the article entitled "Outrage!," which was written by Mr. Russell, and published in the first issue of Racing Journal in October 1981. See Appendix II. It has been established positively that Mr. Russell was the author of the article, and that he was responsible for the publication, editing, printing and distribution of the magazine. I find as a fact that the initial issue of Racing Journal, and all subsequent issues of the magazine were sponsored and funded by the Louisiana Division of the H.B. P.A. This fact is well established, not only by the testimony of the members of the Board of Directors of the Louisiana Division of the H.B.P.A. and the Minutes of Board meetings of the organization, but also the testimony of Mr. and Mrs. Russell.
According to Mr. Bartimo's complaint, his reputation was seriously impuned by the allegations in the article linking him to elements of the Mafia, and referring to him by the pejorative nickname of "Snake." Additionally, Mr. Bartimo complains of the reference to him in the article as "hit man," along with the implication that such "hit men" are known to dispose of their opponents by deadly and violent means. Mr. Bartimo testified on direct examination that he was not, nor had he ever been, a member of the Mafia or any known affiliate of the Mafia. He testified that he had never been referred to by the pejorative nickname of "Snake." He also testified that he had never made the assertion that he owned or controlled members of the Louisiana Racing Commission; he asserted that he has suffered personal harm, personal damage to his reputation, his ability to earn a living, and his peace of mind, all as a result of the article's appearance in the Racing Journal.
I listened carefully to the evidence about Mr. Bartimo's reputation. If I were in the box, I would want to hear reputation testimony from such persons as those called by Mr. Bartimo. Their testimony tended to prove that Mr. Bartimo's reputation has not been damaged by the allegations written by Mr. Russell. To the contrary, all of the character witnesses called to the stand to testify stated that Mr. Bartimo enjoyed an excellent reputation in this community both before and after October of 1981.
Insofar as the allegations about job opportunities referred to in Mr. Bartimo's deposition and direct testimony. I find that he has, in fact, interviewed persons involved in the horse racing business who were seeking to obtain his advice and services, or both. These interviews were not at all affected by anything that Tom Russell or others might have said or written about Mr. Bartimo.
Because of my factual findings and the state of current libel law jurisprudence, I find that Mr. Bartimo failed to establish liability on the part of any defendant, and it is, therefore, not necessary to determine the extent of damages suffered by way of embarrassment, humiliation or emotional distress. Should on some future day I am found to have decided this case wrongfully, there will be sufficient time to take up the matter of damages.
LEGAL STANDARDS:
The legal standards which I must apply were well briefed by the lawyers. I say this because counsel for Mr. Bartimo is going to find that I put the emphasis on a particular case that I read differently than he does.
Defamation by way of libel traditionally established a cause of action in tort in both common law and under Louisiana Civil Code art. 2315. In New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), the United States Supreme Court determined that libelous utterances fall within the area of constitutionally protected speech. See, Herbert v. Lando, 441 U.S. 153, 99 S.Ct. 1635, 60 L.Ed.2d 115 (1979). Thus, I am required to evaluate Mr. Bartimo's defamation claims according to the provisions of Louisiana law as circumscribed by constitutional protections heavily written in the federal jurisprudence. The legal milieu is complex and, at times, frustrating. However, I am required to evaluate Mr. Bartimo's claims in this context.
The case of Manale v. City of New Orleans, Department of Police, 673 F.2d 122, 125 (5th Cir.1982), says these are four elements to be considered under Louisiana libel law:
The New York Times case, supra, and its progeny placed a constitutional restraint on state law by requiring proof by clear and convincing evidence that the alleged defamatory remarks leveled at a "public official" or, now, "public figure," were made with "actual malice," not implied malice. In another landmark decision, the United States Supreme Court, expanding on Curtis Publishing Co. v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967), held in Gertz v. Welch, 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974), that the "actual malice" standard also applied to "public figures." In Gertz, the court defined a "public figure" in the following terms:
Respondent's characterization of petitioner as a public figure raises a different question. That designation public figure may rest on either of two alternative bases. In some instances, an individual may achieve such pervasive fame or notoriety that he becomes a public figure for all purposes and in all contexts. More commonly, an individual voluntarily injects himself or is drawn into a particular public controversy and thereby becomes a public figure for a limited range of issues. In either case such persons assume special prominence in the resolution of public questions.
The Supreme Court justified its distinction between public officials and private citizens who became public figures and regular private citizens in Gertz in the following manner:
We have no difficulty in distinguishing among defamation plaintiffs. The first remedy of any victim of defamation is self-help — using available opportunities to contradict the lie or correct the error and thereby to minimize its adverse impact on reputation. Public officials and public figures usually enjoy significantly greater access to the channels of effective communication and hence have a more realistic opportunity to counteract false statements than private individuals normally enjoy.
Id. at 3009. Applying the standards of Gertz, I began late yesterday afternoon with the assertion that I found Mr. Bartimo to be a "public figure."
Now, if the concept of actual malice is to be understood at all, it can only be understood in this case by reading what the Court says the...
To continue reading
Request your trial
-
Bartimo v. Horsemen's Benev. and Protective Ass'n
...as required by New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). Bartimo v. Horsemen's Benevolent and Protective Association, 592 F.Supp. 1526 (W.D.La.1984). Because we agree that plaintiff failed to carry the heavy burden imposed upon him by Sullivan, we In......