Bleecker v. Drury

• Decision Date: 28 May 1945
• Docket Number: No. 66.,66.
• Citation: 149 F.2d 770
• Parties: BLEECKER v. DRURY.
• Court: U.S. Court of Appeals — Second Circuit

149 F.2d 770 (1945)

BLEECKER v. DRURY.

No. 66.

Circuit Court of Appeals, Second Circuit.

May 28, 1945.

Russell V. Bleecker, of Cleveland, Ohio, pro se.

John F. Dwyer, of Buffalo, N. Y., for defendant-appellee.

Before L. HAND, AUGUSTUS N. HAND, and CLARK, Circuit Judges.

CLARK, Circuit Judge.

This is an action for libel and slander by plaintiff, an attorney and resident of Ohio, against defendant, an attorney and resident of New York, jurisdiction being based upon the diverse citizenship of the parties. Plaintiff appeals from the order of the District Court granting defendant's motion for summary judgment on the first of three causes of action set forth in the complaint. This cause was for an alleged libel contained in a memorandum submitted by defendant to the Industrial Board of the State of New York on behalf of the latter's client, a seaman seeking compensation for injuries sustained while ashore. Plaintiff was the employer's lawyer throughout the compensation proceeding, which began on November 8, 1940. After hearing before a referee, an award of compensation was made, which, upon the plaintiff's appeal, the Board reaffirmed. Thereupon plaintiff made numerous applications to the Board for reconsideration, primarily challenging the Board's jurisdiction. In consequence of the resulting delay, it was not until April 21, 1943, that the Board made its findings of fact and rulings of law, which were necessary to complete the appeal to the Appellate Division of the New York Supreme Court, of which plaintiff had served notice. A month later the Board again granted a reconsideration; and it is in connection therewith that defendant submitted the memorandum containing the allegedly libelous statements. Before the submission of the memorandum, plaintiff sought an injunction in the United States District Court for the employer and against the employee and the Industrial Board. And after having first offered the Attorney General of the State of New York, representing the Board, indefinite time within which to plead, plaintiff consented to a voluntary nonsuit as to it. Later the court denied the injunction.

One of the allegedly libelous statements of the memorandum makes reference to this last proceeding: "The appeal by the State Insurance Fund on all grounds, including coverage, supplies the missing piece to a puzzle which saw Bleecker, the employer's attorney, refusing the protection of the insurance so kindly offered him by the State Fund — Bleecker being hired by the attorney for the third party to take depositions in said action — and returning the favor by hiring him as counsel in the injunction action — parties who should be at odds, resting comfortably together in a cooperative but expensive pooling of resources." The other offending statements refer somewhat more clearly to plaintiff's alleged delaying tactics, the first stating: "The attitude of Bleecker sheds a clear light upon the entire matter. Although already having gone to the expense of printing the record on appeal to the Appellate Division, he continued to make requests for review. We can assume that he was paid well for each request. If so, the one based on the Aguilar case¹ was clearly the obtaining of money under false pretenses." And the second adding: "In addition it is a fraud on the court but the reprehensible conduct does not stop there. Perhaps relying on past experiences in his own state, he mistakenly offered a bribe to official laziness."

Plaintiff alleged that these statements charged him "with the crime of obtaining money under false pretenses, and unethical, illegal and reprehensible conduct in relation to his clients, which if true would subject the plaintiff to disbarment from the practice of his profession," and that they were knowingly and willfully intended to injure plaintiff in his profession. The District Court first denied defendant's motion to dismiss the complaint, D.C., 3 F.R.D. 325; but then on defendant's motion addressed to the cause which concerned this judicial proceeding, supported by an affidavit setting forth the plaintiff's tactics of delay, it granted summary judgment on the ground that the statements in question were privileged, as relevant material duly published in the course of a judicial proceeding.

Having regard for an attorney's excitement in the heat of litigation, as well as the professional proclivity for high-flown and often meaningless verbiage, we think it a strain upon credulity to view defendant's memorandum as a charge of crime or...