Dyer v. MacDougall, C. 11011.

CourtUnited States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
Citation109 F. Supp. 444
Docket NumberC. 11011.
PartiesDYER v. MacDOUGALL et al.
Decision Date04 March 1952

109 F. Supp. 444

MacDOUGALL et al.

C. 11011.

United States District Court E. D. New York.

March 4, 1952.

109 F. Supp. 445

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

109 F. Supp. 446
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...

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2 cases
  • Dyer v. MacDougall, 17
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • 31 Diciembre 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 express di......
  • United States v. Haas, Crim. A. No. 13571.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • 29 Diciembre 1952
    ...counsel premises his renewed argument on the limitations imposed upon searches by virtue of 39 U.S.C.A. § 700, providing as follows: 109 F. Supp. 444 "Searches authorized. The Postmaster General may, by a letter of authorization under his hand, to be filed among the records of his departmen......

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