Dowd v. Calabrese

• Decision Date: 30 May 1984
• Docket Number: 80-3325 and 81-1266.,80-0912,80-3324,Civ. A. No. 80-0911
• Citation: 589 F. Supp. 1206
• Parties: John M. DOWD, Plaintiff, v. Samuel Ray CALABRESE, Defendant. William M. KRAMER, Plaintiff, v. Samuel Ray CALABRESE, Defendant. William M. KRAMER, Plaintiff, v. James A. DRINKHALL, et al., Defendants. John M. DOWD, Plaintiff, v. James A. DRINKHALL, et al., Defendants. James A. DRINKHALL, Plaintiff, v. William M. KRAMER, Defendant.
• Court: U.S. District Court — District of Columbia

589 F. Supp. 1206

John M. DOWD, Plaintiff, v. Samuel Ray CALABRESE, Defendant.

William M. KRAMER, Plaintiff, v. Samuel Ray CALABRESE, Defendant.

William M. KRAMER, Plaintiff, v. James A. DRINKHALL, et al., Defendants.

John M. DOWD, Plaintiff, v. James A. DRINKHALL, et al., Defendants.

James A. DRINKHALL, Plaintiff, v. William M. KRAMER, Defendant.

Civ. A. Nos. 80-0911, 80-0912, 80-3324, 80-3325 and 81-1266.

United States District Court, District of Columbia.

May 30, 1984.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Thomas C. Green, Washington, D.C., for plaintiffs.

Michael T. Kenney, Santa Ana, Cal., Michael M. McCarty, Washington, D.C., Sara E. Lister, Togo D. West, Patterson, Belknap, Webb & Tyler, Washington, D.C., Floyd Abrams, Charles A. Gilman, Cahill, Gordon & Reindel, New York City, Gregory L. Diskant, Patterson, Belknap, Webb & Tyler, New York City, Richard L. Levie, U.S. Department of Justice, Civil Division, Washington, D.C., for defendants.

OPINION

HAROLD H. GREENE, District Judge.

These are consolidated actions revolving around several articles published in 1979 by the Wall Street Journal. The principal lawsuits¹ charge that the Dow Jones Company, publisher of the Wall Street Journal; Lawrence O'Donnell, managing editor of that newspaper; and Jim Drinkhall, one of its reporters, libelled William M. Kramer and John M. Dowd, who at the time the articles were published were members of the Justice Department's San Francisco Strike Force. In a second lawsuit,² Drinkhall charges Kramer with invasion of privacy and deprivation of constitutional rights under color of law.³ Presently pending before the Court, and decided herein, are defendants' motions for summary judgment with respect to each of the five claims in the Kramer-Dowd suit, and motions for summary judgment or partial summary judgment filed by the two sides in the Drinkhall action.

I

The second cause of action in one sense constitutes the heart of the lawsuit brought by Kramer and Dowd, and it will for that reason be considered first. That cause of action charges that the defendants libelled the plaintiffs in an article — "Ordeal at McNeil" — written by Drinkhall and published by the Wall Street Journal on April 11, 1979. Briefly summarized, the article reported that Kramer and Dowd had developed and implemented an unethical plan to force Samuel Ray Calabrese, a convicted felon with reputed organized crime connections, to cooperate with the government against other alleged organized crime figures, in particular one Morris Shenker, a Las Vegas casino owner.

According to the article, among the tactics used by Kramer and Dowd to accomplish their objective were the following: the levying of additional charges against and prosecutions of Calabrese; his special detention and solitary confinement during his incarceration at the McNeil Island federal penitentiary; the spreading of rumors about Calabrese and attacks on him by other inmates; the grant of immunity to Calabrese with respect to testimony before grand juries and the threat of contempt if he failed to testify; the undermining of financial support for Calabrese's family through action by the Internal Revenue Service; the planting of false rumors that Calabrese was cooperating with the government; and threats of a denial of parole.

Defendants acknowledge that they are unable to move for summary judgment on the issues of truth and malice with respect to this cause of action, and they do not do so. Rather, their motion proceeds on the theory that the second cause of action should be dismissed because under California law⁴ the publisher of allegedly libelous material must be afforded an opportunity for a retraction as a prerequisite to a defamation action — an opportunity which allegedly was not afforded here.⁵

First. Neither the District of Columbia nor any other jurisdiction the laws of which might conceivably govern has a retraction statute. There is therefore a threshold issue whether California law, with its retraction statute, is applicable to this controversy, for if California law does not apply, the request for dismissal must fail.

In a diversity action, this Court sitting in the District of Columbia is obligated under Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938) to apply the choice of law rules prevailing in this jurisdiction. Klaxon v. Stentor Electrical Mfg. Co., 313 U.S. 487, 496, 61 S.Ct. 1020, 1021, 85 L.Ed. 1477 (1941). Like many states, the District of Columbia has adopted the so-called "governmental interest analysis" approach to resolving choice of law questions.⁶ Under that approach, the Court applies the law of the jurisdiction with the most significant interest in the resolution of the particular controversy. Blair v. Prudential Ins. Co., 472 F.2d 1356, 1359 (D.C.Cir.1972); Fowler v. A & A Company, 262 A.2d 344, 348 (D.C.App. 1970).⁷ Thus, with respect to the allegedly fatal failure to demand a retraction, the issue is whether California has a more substantial interest in the resolution of these lawsuits and the underlying claims than any other jurisdiction.

Defendants have advanced basically two reasons in support of their contention that California should be regarded as having the most compelling governmental interest with respect to "Ordeal at McNeil." In their original brief, they argued that this is so because the article was principally researched, investigated, and written in California;⁸ in their reply brief, the emphasis was changed to the assertion that California law is paramount because Kramer lived and worked there prior to the publication of the articles which gave rise to this lawsuit.⁹ Neither claim is persuasive.

The weight of authority considers that the law to be applied is not that of the place where the offending article was written, researched, or published, but that the place where the plaintiff suffered injury by reason of his loss of reputation is the more significant. See, e.g., Restatement (Second) of Conflict of Laws § 150 (comment e); Hanley v. The Tribune Publishing Company, 527 F.2d 68, 70 (9th Cir.1975). The Court will follow that rule. The law of libel is designed to protect individuals from defamation. Although, to be sure, there is some public and governmental interest elsewhere,¹⁰ by far the greatest interest lies in the place where the victim's reputation suffered injury. Upon the facts of these cases, it is clear that the damage to the reputation of Kramer and Dowd as a consequence of "Ordeal at McNeil" occurred primarily in the District of Columbia.

Kramer spent twelve of the last fourteen years in Washington, D.C., and almost all of his professional ties and contacts were and are here. He received his legal education at George Washington University, and he is a member of the District of Columbia Bar.¹¹ Prior to his transfer to San Francisco, he had been working for many years for the U.S. Department of Justice in its Washington headquarters. The article concerned his activities while he held a position with that Department, and it was essentially his professional reputation with the Department at the seat of government that was damaged by the article. Kramer's superiors were located in the District of Columbia, and they were the persons who raised questions concerning his conduct as a consequence of the article, investigated him, and called him to account for his alleged behavior.¹² After the articles were published, Kramer was not able to remain with the Department of Justice, and he resigned. Because of his professional ties to the District of Columbia, his job opportunities were here, and he returned to and is now practicing law in Washington.

As indicated, defendants argue in their reply brief that Kramer's reputation was injured primarily in California. That contention is not persuasive. To be sure, Kramer was residing in that state at the time the articles appeared,¹³ and he intended to continue working there as a member of the San Francisco Strike Force. But these minimal contacts cannot be said by any measure to outweigh the far more weighty, solid, and lasting contacts Kramer had in the District of Columbia discussed above and the damage to his reputation that occurred in the District.¹⁴

The issue is equally clear with respect to Dowd. Indeed, defendants make only a perfunctory effort to demonstrate that California law should apply to his claim. Dowd lives in the Virginia suburbs of the national capital; his professional career and his personal and professional ties are all in the District of Columbia; the article concerned his activities while he was the head of the Washington, D.C. Strike Force Team; and when the article was published, he was in private practice in Washington where he still practices. To state, as do the defendants in their principal brief, that, "as to Dowd, the question is necessarily closer,"¹⁵ is modest understatement indeed.¹⁶

The Court concludes that a governmental interest analysis unerringly leads to District of Columbia law as the law to be applied. The District of Columbia has no retraction statute to stand in the way of this libel action, and defendants' motion must therefore fail on this basis alone.

Second. If the California retraction statute applied, it would not help defendants. Kramer did, in fact, demand a retraction, and he thus complied with that law.

Nineteen days after the article appeared, Kramer sent a letter to Laurence O'Donnell, managing editor of the Wall Street Journal, detailing with considerable specificity the various claimed inaccuracies and distortions. The letter implicitly demanded a retraction even if that precise term was not used. That, moreover, is just how O'Donnell construed it, for he responded that, although it was "the policy and routine practice of the Wall Street Journal to publish corrections of material errors ... since we have seen no factual support for any allegation of material inaccuracy with...