Catalfo v. Jensen

• Decision Date: 08 April 1987
• Docket Number: Civ. No. 85-588-D.
• Citation: 657 F. Supp. 463
• Parties: Gina Marie CATALFO; Alfred T. Catalfo; Carole Joanne Catalfo; Alfred Catalfo, Jr. v. Jack JENSEN; Brad Edmondson; Ithaca Times.
• Court: U.S. District Court — District of New Hampshire

657 F. Supp. 463

Gina Marie CATALFO; Alfred T. Catalfo; Carole Joanne Catalfo; Alfred Catalfo, Jr. v. Jack JENSEN; Brad Edmondson; Ithaca Times.

Civ. No. 85-588-D.

United States District Court, D. New Hampshire.

April 8, 1987.

Thomas E. Flynn, Jr., Gerald Taube, Portsmouth, N.H., for plaintiffs.

Dirk Galbraith, Ithaca, N.Y., for Jensen.

William L. Chapman, Concord, N.H., for all defendants.

Steven Eric Feld, Portsmouth, N.H., for Jensen and Edmondson.

Peter J. Walsh, Richard B. Thaler, Ithaca, N.Y., for Ithaca Times.

ORDER

DEVINE, Chief Judge.

In these consolidated actions, plaintiffs Alfred Catalfo, Jr. ("Attorney Catalfo"), and his three children, Gina Marie Catalfo, Alfred T. Catalfo, and Carole Joanne Catalfo, bring suit against defendants Jack Jensen, Brad Edmondson, and Ithaca Times¹ seeking damages for an allegedly defamatory article that appeared in Ithaca Times and Portsmouth Magazine in March 1984. These actions were originally brought in Strafford County Superior Court and were properly removed to this court pursuant to 28 U.S.C. § 1441.² This matter is presently before the Court on defendants' motions for summary judgment and plaintiffs' objection thereto.³

Under Rule 56(c), Fed.R.Civ.P., summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." The moving party must affirmatively demonstrate that there is no genuine, material factual issue, and the Court is required to view the record in the light most favorable to the party opposing the motion and indulge all inferences favorable to that opposing party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970); General Office Products Corp. v. M.R. Berlin Co., Inc., 750 F.2d 1, 2 (1st Cir.1984). The record before the Court reveals the following undisputed facts.

An article was published in both Ithaca Times and Portsmouth Magazine at about the time of New Hampshire's 1984 first-in-the-nation presidential primary. The article, entitled "Cookies and Candipods" and subtitled "3 brash young journalists cover the press covering the candidates covering New Hampshire", is written in the first person and presents a satirical and often cynical view of the entire campaign process in the Granite State at that time. The article, which took up four pages in Portsmouth Magazine, details a full day of campaigning seventy-two hours before the primary. It is comprised of vignettes from the press bus and various campaign stops of several different candidates. Midway through the article, a visit by the Mondale entourage to the home of plaintiffs herein is described. Plaintiffs allege that three statements about them contained in this portion of the article are defamatory.⁴ The first is a reference to Attorney Catalfo: "Mondale introduces Catalfo (a fat version of Dustin Hoffman's `Ratso' in Midnight Cowboy) ..." ("`Ratso' statement"). The second is the author's comment that "maybe there is a mickie⁵ in the Canadian Club ..." ("`mickie' statement"). Finally, plaintiffs allege that the phrase "Mondale had his arm around the sleazy little Catalfos ..." ("`sleazy' statement") is defamatory.⁶

Defendants have moved for summary judgment in this matter, asserting several grounds therefor. Defendants argue that none of the statements about which plaintiffs complain are reasonably capable of being understood in a defamatory sense. Furthermore, they contend that even if one or more of these statements could be construed as defamatory, they are not actionable, as they are protected expressions of opinion. Finally, defendants assert that plaintiffs Carole Joanne Catalfo and Gina Marie Catalfo, who are nowhere mentioned or referred to in the article, cannot maintain this action as the statement about which they complain is not "of and concerning" them. For the following reasons, the Court agrees with defendants that they are entitled to judgment as a matter of law. Only those arguments necessary to the resolution of the motions will be addressed.

The relevant aspects of the law of defamation in New Hampshire⁷ and the standards by which the Court must judge the issues raised are well established. Language is defamatory when it tends "to lower the plaintiff `in the esteem of any substantial and respectable group, even though it may be quite a small minority.'" Morrissette v. Cowette, 122 N.H. 731, 733, 449 A.2d 1221 (1982) (quoting Thomson v. Cash, 119 N.H. 371, 373, 402 A.2d 651 (1979)). Moreover, "it is axiomatic that `words alleged to be defamatory must be read in the context of the publication taken as a whole.'" Duchesnaye v. Munro Enterprises, Inc., 125 N.H. 244, 249, 480 A.2d 123 (1984) (quoting Morrissette v. Cowette, supra, 122 N.H. at 733, 449 A.2d 1221). The Court must consider "all the circumstances under which the words were written, their context, and the meaning which could reasonably be given to them by the readers." Chagnon v. Union Leader Co., 103 N.H. 426, 435, 174 A.2d 825 (1961), cert. denied, 369 U.S. 830, 82 S.Ct. 846, 7 L.Ed.2d 795 (1962). As the New Hampshire Supreme Court has expounded,

the defamatory meaning must be one that could be ascribed to the words by `hearers of common and reasonable understanding.' Jones v. Walsh, 107 N.H. 379, 381, 222 A.2d 830, 832 (1966). An action in libel cannot be maintained on an artificial, unreasonable, or tortured construction imposed upon innocent words, nor when only `supersensitive persons, with morbid imaginations' would consider the words defamatory. Lambert v. Providence Journal Co., 508 F.2d 656, 659 1st Cir.1975, cert. denied, 423 U.S. 828 96 S.Ct. 45, 46 L.Ed.2d 45 (1975) (citations omitted). `No mere claim of the plaintiff can add a defamatory meaning where none is apparent from the publication itself.' W. Prosser, Law of Torts § 111 at 749 (4th ed. 1971). See also 53 C.J.S. Libel and Slander § 162(b), at 250-51 (1948).

Thomson v. Cash, supra, 119 N.H. at 373, 402 A.2d 651.

Whether a communication is capable of bearing a defamatory meaning is an issue of law to be determined by the Court. Blanchard v. Claremont Eagle, Inc., 95 N.H. 375, 378, 63 A.2d 791 (1949); Restatement (Second) of Torts § 614 (1977). Only if the Court determines that language is defamatory is there then the question for the jury whether the communication was in fact understood by its recipient in the defamatory sense. Restatement (Second) of Torts § 614 comment b.

Plaintiffs ascribe the following defamatory meanings to the three challenged statements. The "Ratso" statement suggests that Attorney Catalfo, like the Ratso character, "lies, cheats and steals as a way of life." The "mickie" statement suggests that he was "serving illegal drugs to unwary guests". And the "sleazy" statement, which refers to all of the Catalfos, "suggests the worst qualities of character, bereft of trustworthiness and a disgrave sic in the community". Plaintiffs' Objection to Defendant Ithaca Times' Motion for Summary Judgment at 2.

The Court finds that the "mickie" statement is not capable of bearing the defamatory meaning plaintiffs ascribe to it. When viewed in the context of the entire article and the paragraph in which it appears, no reasonable reader could infer that it suggests that Attorney Catalfo was serving illegal drugs to his guests. The paragraph in question reads as follows.

We pencils get to listen to the introduction and speeches in the other room through a pair of speakers set on the piano. Maybe it is the bizarre acoustics of the setup, or maybe there was a mickie in the Canadian Club. I don't know. But sometime during the weird Catalfo debacle I snap my binder, blow my bung, lose my handle.

The format itself precludes the factual interpretation plaintiffs assert. The mickie statement is presented as an alternative, followed by "I don't know". Furthermore, given the tongue-in-cheek style of the entire article, only "supersensitive persons, with morbid imaginations", Thomson v. Cash, supra, 119 N.H. at 373, 402 A.2d 651, could understand the mickie statement to suggest that Attorney Catalfo was illegally drugging his guests' drinks. It is unreasonable to view the "mickie" statement as anything more than rhetorical hyperbole. See Greenbelt Coop. Publishing Ass'n v. Bresler, 398 U.S. 6, 14, 90 S.Ct. 1537, 1541, 26 L.Ed.2d 6 (1970) (description of plaintiff's negotiating position as blackmail cannot be reasonably viewed as charging commission of crime). Accordingly, the Court finds that defendants are entitled to summary judgment as to the "mickie" statement.

The "Ratso" and "sleazy" statements present closer questions as to whether they are capable of the defamatory meanings alleged by plaintiffs. While the Court doubts that a reasonable reader would understand these statements to have the extremely offensive meanings plaintiffs ascribe to them, the Court is satisfied that they could be viewed as defamatory. Without the necessity of an in-depth analysis of "Midnight Cowboy", the Court finds that likening Attorney Catalfo to Ratso Rizzo could reasonably lower him in the esteem of a substantial number of people who had seen the film. Furthermore, while the term "sleazy" is primarily used as an adjective to describe flimsy or shoddy material,⁸ a subsidiary definition of "marked by low ethical standards" does appear in an unabridged dictionary, see Webster's Third New International Dictionary 2140 (1969). Thus, the Court finds that it must address defendants' next argument: defendants contend that even if these two statements are capable of defamatory meaning, they are protected expressions of opinion.

The New Hampshire Supreme Court recently summarized the analysis that must be conducted to determine whether defamatory material alleges actionable fact or...