Dyer v. MacDougall, C. 11011.

Decision Date04 March 1952
Docket NumberC. 11011.
Citation109 F. Supp. 444
PartiesDYER v. MacDOUGALL et al.
CourtU.S. District Court — Eastern District of New York

Breed, Abbott & Morgan, New York City (Charles H. Tuttle, New York City, of counsel), for defendants.

Moss & Wels, New York City (Richard H. Wels, New York City, of counsel), for plaintiff.

KENNEDY, District Judge.

This is an application for reargument of a motion for summary judgment made by the defendants and also for the allowance of additional time to appeal. Fed. Rules Civ.Proc. rule 73, 28 U.S.C.A.

The action is for damages for defamation; jurisdiction is grounded on diversity of citizenship. By an order dated January 7, 1952, I granted summary judgment in favor of defendants on the third and fourth causes of action. Briefly restated, my disposition of the matter was based upon the fact that plaintiff, under the counts in question, claimed that the defamatory material had been published to named individuals by the defendants, and those individuals denied under oath that anything of the kind had ever occurred. When the motion for summary judgment was argued (and ably argued) in behalf of the plaintiff by his attorney, it was never suggested that there was at that time any other proof available of the publication of the defamatory material. Under familiar principles relating to summary judgment, Bozant v. Bank of New York, 2 Cir., 1946, 156 F.2d 787, I withheld decision until plaintiff had had the opportunity to elicit by discovery proof of publication to the individuals named in the papers. Plaintiff, through his attorney, distinctly stated after many months had elapsed that he did not intend to avail himself of the discovery procedure. The position then was that if plaintiff called the named individuals to prove publication they would either (a) deny it in accordance with their affidavits, or (b) testify to the publication in the teeth of prior sworn contradictory statements. As I have said, I gave plaintiff the opportunity (which he did not use) to discover whether the second alternative was even remotely possible.

Plaintiff (in person) under that branch of his action seeking reargument1 now suggests, among other things, that there may be other persons to whom the defamatory material was published, and the intimation is that he is under no burden to disclose the facts in that connection. Plaintiff also seems to suggest that some vague doctrine of "spontaneous utterances" will enable him to make out a prima facie case.

These arguments would not have changed my original determination if they had been originally brought forward. The pleadings frame very definite issues, and when called upon under the summary judgment rule to demonstrate that these issues exist plaintiff could not meet the burden: unanswerable and unanswered affidavits showed no publication such as he has alleged in the counts of the complaint under attack.

Accordingly I grant reargument, and on reargument I adhere to my original decision.

The second branch of the application presents considerable difficulty. The plaintiff is a lawyer, but has had no active practice or connection with federal courts (although he is a member of the federal bar). He lives in St. Louis. He swears that well before the expiration of 30 days from the entry of the order he was told by his attorney that he had 60 days within which to appeal. He swears further that he was never told of the entry of the order itself although he was told about the opinion and decision. No appeal was taken, apparently, because there was (understandably) some discussion about reargument between plaintiff and his attorney. None of these sworn statements is controverted in the answering papers. If plaintiff were a layman I would entertain no doubt that the proper thing to do would be to extend the time to appeal under these circumstances because he did not learn of the entry of the judgment. And in this particular case, even though plaintiff is admitted to the bar, I feel that his neglect to take an appeal within 30 days of the entry of the original order is excusable, and that I should extend his time under rule 73(a) also 28 U.S. C.A. § 2107, to a date 30 days from the time the original appeal time expired, assuming that the order is appealable.2

In fairness, I think I should say that this decision is not intended to reflect in the slightest way on the plaintiff's attorney. I believe that there was inadvertence and confusion concerning the desirability of appeal, and that plaintiff really thought he had 60 days in which to make the decision.

I have not paid the slightest attention to plaintiff's argument that he was "co-counsel" and therefore entitled to be served with the papers by the defendants. This argument is based upon the fact that plaintiff's name followed by the words "pro per" (sic) was on the brief. It is absurd to suppose that by adding names of counsel to a brief the obligation of the adverse party to serve papers can be multiplied. I also am not impressed in any way by plaintiff's intimation that his attorney was friendly with counsel for the defendants, or that my decision was motivated by any desire to "avoid the raising of a scandal in high places", as plaintiff says at the end of his brief.

The time of the plaintiff to take an appeal, if so advised, is extended to a date 30 days from the date of the expiration of the original appeal time of the order of January 7, 1952. This may be a hardship to the defendants, but I feel...

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2 cases
  • Dyer v. MacDougall
    • United States
    • U.S. Court of Appeals — Second Circuit
    • December 31, 1952
    ...1952, the judge filed a second opinion, granting the reargument, but again deciding that counts three and four should be dismissed. D.C., 109 F.Supp. 444. However, he granted an extension of thirty days for the time to appeal, and, apparently sua sponte, "certified" "that I did give an expr......
  • United States v. Haas, Crim. A. No. 13571.
    • United States
    • U.S. District Court — Eastern District of Pennsylvania
    • December 29, 1952

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