Catalfo v. Jensen

• Decision Date: 21 February 1986
• Docket Number: Civ. No. 85-588-D to 85-591-D.
• Citation: 628 F. Supp. 1453
• Parties: Gina Marie CATALFO; Alfred T. Catalfo; Carole Joanne Catalfo; Alfred Catalfo, Jr. v. Jack JENSEN; Jon Crispin; Brad Edmondson; Ithaca Times.
• Court: U.S. District Court — District of New Hampshire

628 F. Supp. 1453

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

Civ. Nos. 85-588-D to 85-591-D.

United States District Court, D. New Hampshire.

February 21, 1986.

Thomas E. Flynn, Jr., Gerald Tauge, Portsmouth, N.H., for plaintiff.

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

James A. Salk, Trumansburg, N.Y., Byron J. Siegal, Portsmouth, N.H., for Crispin.

Peter J. Walsh, Ithaca, N.Y., for Edmondson.

William L. Chapman, Concord, N.H., Richard B. Thaler, Ithaca, N.Y., for Ithaca Times.

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

ORDER

DEVINE, Chief Judge.

In this action, plaintiff Alfred Catalfo, Jr., and his three children, plaintiffs Gina Marie, Alfred T., and Carole Joanne, have individually brought suit against defendants Jack Jensen, Jon Crispin, Brad Edmondson, and Ithaca Times seeking damages for an allegedly defamatory article printed in the Ithaca Times and Portsmouth Magazine in March 1984. Plaintiffs originally brought these individual suits in Strafford County Superior Court. Pursuant to 28 U.S.C. § 1441, however, these actions were properly removed to this court, with jurisdiction being based upon 28 U.S.C. § 1332, the citizenship of the parties being diverse¹ and the amount in controversy exceeding $10,000 exclusive of interest and costs. Presently before the Court is defendant Crispin's motion for summary judgment, Rule 56, Fed.R.Civ.P., in each of the individual defamation cases and plaintiffs' objections thereto.

Rule 56(c), Fed.R.Civ.P., provides that summary judgment is appropriate when "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 party moving for summary judgment bears the burden of demonstrating that there is no disputed issue of fact which is both "genuine" and "material". Finn v. Consolidated Rail Corp., 782 F.2d 13, 15 (1st Cir.1986) (citations omitted). A dispute of fact is material if it "affects the outcome of the litigation" and is genuine if manifested by "substantial" evidence "going beyond the allegations of the complaint". Taylor v. Hercules, Inc., 780 F.2d 171, 174 (1st Cir.1986). Pignons S.A. de Mecanique v. Polaroid, 657 F.2d 482, 486 (1st Cir. 1981). In addition, the record must be viewed in the light most favorable to the party opposing the motion, and all inferences favorable to such party must be indulged. General Office Products Corp. v. A.M. Capen's Sons, Inc., 780 F.2d 1077, 1078 (1st Cir.1986); Stepanischen v. Merchants Despatch Transportation Co., 722 F.2d 922, 928 (1st Cir.1983). For the following reasons, the Court finds and rules that defendant Crispin's motion for summary judgment must be granted.

The record before the Court reveals the following facts. An article was published in both the Ithaca Times and the Portsmouth Magazine at about the time of New Hampshire's 1984 first-in-the-nation presidential primary. The article, entitled "Cookies and Candipods", satirically and often cynically reviewed the press coverage of the myriad presidential candidates campaigning in the Granite State at that time. The paragraphs of the article of concern to the Court describe a campaign visit by the Walter Mondale entourage to the home of plaintiffs herein. In the article, plaintiff Alfred Catalfo, Jr., is described as "a fat version of Dustin Hoffman's `Ratso' in Midnight Cowboy", and the plaintiff Catalfo children are described as "the sleazy little Catalfos". The article was written by "Jack Jensen, with Brad Edmondson and Jon Crispin", and subtitled "3 brash young journalists cover the press covering the candidates covering New Hampshire". A biographical box on the first page of the article notes that:

JACK JENSEN is a staff writer for the Ithaca Times, a free circulation newsweekly in New York and JON CRISPIN is a free lance photographer whose work often appears in the Times. BRAD EDMONDSON, Times editor, assisted with the production of the article and photographs. The trio, all under 30, are all Cornell University graduates and admit that they subscribe to the `Hunter S. Thompson School of Journalism.'

The Court is cognizant of the fact that society has a persuasive and strong interest in preventing and redressing defamation or attacks upon people's reputations. Rosenblatt v. Baer, 383 U.S. 75, 86 S.Ct. 669, 15 L.Ed.2d 597 (1966). And 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 established that a defamation claim requires a plaintiff to plead and prove that the matter complained of is false and defamatory and published or communicated to a third person with malice or bad intent. W. Prosser, Law of Torts § 111-113 (4th ed. 1971); see, e.g., Duchesnaye v. Munro Enterprises, Inc., 125 N.H. 244, 253, 480 A.2d 123 (to be actionable, defamation need be published to only one person other than plaintiff). In addition, it is also established that every person who directly or indirectly publishes or assists in the publication of an actionable defamatory statement is liable for the resultant injury. German v. Killeen, 495 F.Supp. 822, 832 (E.D.Mich.1980); Noyes v. Thorpe, 73 N.H. 481, 482-83, 62 A. 787 (1901).

The basic issue before the Court as framed by the parties is whether defendant Crispin published either directly or indirectly the alleged defamatory statements contained in the subject article. Some insight into the issue is provided by several decisions involving a defamation suit brought against the Washington Post, its reporters, and its Chief Executive Officer. In Tavoulareas v. Piro, 93 F.R.D. 11 (D.D.C.1981), plaintiffs sued, among others, Katherine Graham, Chairman of the Board and Chief Executive Officer of the Washington Post Company, for an allegedly libelous article which had appeared in the Washington Post. Noting that "some responsible participation is clearly a prerequisite to any potential liability of Mrs. Graham", id. at 15 (citations omitted), the court ruled that Mrs. Graham was entitled to summary judgment since the undisputed facts revealed that she was removed from the day-to-day operation of the newspaper; she did not have general responsibility for the operation of the paper; her personal views were not reflected in the challenged article; and she had not participated in any form in preparing or publishing the article. Id. Similarly, in Tavoulareas v. Piro, 759 F.2d 90 (D.C.Cir.1985), a judgment n.o.v. entered in favor of a reporter sued for his participation in the allegedly libelous Washington Post article was affirmed by the circuit court. The court noted that "to be liable for defamation, defendant ... must have published or knowingly participated in publishing the defamation." Id. at 136. The defendant reporter had not actually written or edited the article, nor had he exercised any control or influence over its publication. Moreover, the reporter did not know what the final article would contain. The reporter's involvement with the article was limited to sparking the initial investigation of the story, supplying a source for the article, and furnishing some initial information for the article. Id.

In the instant case, defendant Crispin argues that he is entitled to judgment as a matter of law since the undisputed facts indicate that he was not a responsible participant in the publication of the article, and without such publication, there can be no liability. The Court agrees. Defendant Crispin has proffered, in addition to the article itself, three affidavits — one from each of three individual defendants. In these affidavits, it is sworn that defendant Crispin was a free-lance photographer at the time of the publication, not a staff photographer for the Ithaca Times; he did not assist or supervise in the writing of the article; he did not write or edit the article; and he was only responsible for the photographs accompanying the article. Plaintiffs have produced no evidence to rebut these affidavits.

Given defendant Crispin's unrebutted documentation concerning his role, or lack of it, in preparing the allegedly libelous article, the Court is satisfied that he, as a free-lance photographer, did not publish, directly or indirectly, the challenged article.² Contrary to plaintiff's assertion, there does not remain a genuine issue of fact pertaining to the extent of defendant Crispin's involvement in the publication. The purpose of...