Galella v. Onassis

• Decision Date: 05 July 1972
• Docket Number: No. 70 Civ. 4348.,70 Civ. 4348.
• Citation: 353 F. Supp. 196
• Parties: Ronald E. GALELLA, Plaintiff, v. Jacqueline ONASSIS et al., Defendants, United States of America, Intervenor.
• Court: U.S. District Court — Southern District of New York

353 F. Supp. 196

Ronald E. GALELLA, Plaintiff, v. Jacqueline ONASSIS et al., Defendants, United States of America, Intervenor.

No. 70 Civ. 4348.

United States District Court, S. D. New York.

July 5, 1972.

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COPYRIGHT MATERIAL OMITTED

Bennett D. Brown, New York City, for plaintiff; Julien, Glaser, Blitz & Schlesinger, New York City, Alfred S. Julien, Stuart A. Schlesinger, New York City, of counsel.

Paul, Weiss, Rifkind, Wharton & Garrison, New York City, for defendant Onassis; Simon H. Rifkind, Martin London, Lewis A. Kaplan, New York City, of counsel.

Whitney North Seymour, Jr., U. S. Atty. for Southern District of New York, for intervenor; Michael D. Hess, A. W. Fargo, III, New York City, of counsel.

COOPER, District Judge.

OPINION

I PROCEEDINGS OTHER THAN TRIAL

A. Pleadings and restraining orders

In the fall of 1970, plaintiff a professional free-lance photographer, instituted an action¹ against defendant Onassis and three agents of the United States Secret Service (Agents)—Walsh, Kalafatis and Connelly. The verified complaint² seeks damages for alleged false arrest and malicious prosecution and damages for, and an injunction against, the interference with his business by the alleged acts³ of defendant Onassis in resisting his efforts to photograph her, and by the alleged acts of defendant Agents in obstructing these efforts at the contended behest and inducement of defendant Onassis. The damage claims aggregated $1.3 million.⁴

The answer of defendant Onassis was filed March 8, 1971 with a counterclaim seeking compensatory and punitive damages⁵ of $1.5 million and injunctive relief, based on claimed violations of her common law, statutory and constitutional rights of privacy and intentional infliction of emotional distress, assault, harassment and malicious prosecution. Reply papers were filed March 25, 1971.

On July 6, 1971 Judge McLean of this Court granted a motion by the United States Government (Government) to intervene. The complaint in intervention, filed October 20, 1971 sought injunctive relief (pursuant to 18 U.S.C. § 3056) against the plaintiff for alleged interference with the protective duties of the United States Secret Service (Secret Service) toward the minor children of defendant Onassis and her late husband, John F. Kennedy, a former President of the United States; on the same day, summary judgment was granted dismissing the case against the Agents on the ground that no triable issue of fact existed as to whether the Agents were acting within the scope of their employment as Government agents and so were immune from suit as a matter of law. The dismissal is presently on appeal with extended time afforded at plaintiff's request. On July 7, 1971 the motions of defendant Onassis for summary judgment on both the complaint and her counterclaim were denied.

Assigned to the motion part, we were presented on October 8, 1971 with an application for an order to show cause coupled with a request for a temporary restraining order prepared by McHugh, Heckman, Smith and Leonard, the attorneys for defendant Onassis. The application was based largely upon the tennis incident of October 4, 1971 and the residence episode of October 5, 1971, described infra, alleging continued harassment, surveillance and fear. On that day we signed an order providing protection for defendant Onassis and her children.⁶ Following a hearing the order was extended upon good cause shown⁷ and by consent in an order filed October 28, 1971.

On November 3, 1971 we signed an order to show cause why the plaintiff should not be held in contempt of our October 8, 1971 order. This contempt motion (but not the underlying October 8, 1971 order) was ultimately withdrawn at trial. (766)

On December 2, 1971 the firm of Paul, Weiss, Rifkind, Wharton & Garrison, substituted as counsel for defendant, brought on an order to show cause, coupled with a temporary retraining order, to punish the plaintiff for contempt of the October 8, 1971 order. This order⁸ based upon the alleged surveillance of defendant and her children, was signed on December 2, 1971 and provided in essence that plaintiff and his agents cease surveillance and following, remain at least 100 yards from the home and 50 yards from the person of Mrs. Onassis and her children⁹ (200 yards and 100 yards respectively were requested), and that plaintiff be enjoined from communicating or attempting to communicate with them.

On December 10, 1971 the firm of Julien, Glazer, Blitz & Schlesinger entered the action as plaintiff's trial counsel in addition to Bennett Brown, Esq., attorney of record.

A second motion to punish plaintiff for civil contempt was brought on by order to show cause signed March 23, 1972.¹⁰ Plaintiff's sworn answer of March 31, 1972 consists merely of a general denial stating no facts whatever.

During the trial, defendant sought additional injunctive relief for alleged violation of New York Civil Rights Law §§ 50-51, McKinney's Consol.Laws, c. 6, dealing with use of defendant's photograph for advertising purposes.

B. Jury demand, consolidation and removal

Despite the very simple legal procedure therefor, no demand for a jury trial was made before the mandatory date, approximately April 4, 1971. On January 25, 1972, over nine (9) months late, plaintiff filed a jury demand. By law we had no alternative but to strike it as worthless. Noonan v. Cunard Steamship Co., 375 F.2d 69 (2d Cir.1967).

By letter of January 25, 1972 we notified the parties that the trial would begin February 14, 1972 (later extended to February 16, 1972 following a request by plaintiff) and suggested consolidation of the proceedings including the preliminary injunction and trial of the main action (which was implemented by order February 3, 1972) consistent with the requests of each party in pretrial memoranda and in the affidavit of plaintiff in support thereof. See Galella affidavit, October 20, 1971, p. 6.

On February 2, 1972 we denied a motion to remand for want of jurisdiction in view of the already considerable expenditure of federal judicial time in an action which was properly removed at the time of removal.¹¹

C. The failure to file an affidavit or certificate to disqualify the trial judge

On January 19, 1972 almost a full month before the trial date, Mr. Julien, plaintiff's trial attorney, requested an off-the-record discussion in the robing room. All counsel for the litigants were present (our law clerks as well). Mr. Julien then and there made it perfectly plain that he was contemplating an application to have another judge preside at trial on the ground that having been nominated by President Kennedy, we could not render an unbiased judgment. At the close of that meeting (no other matter was mentioned), we suggested that if such an application were sought, it would be well to bring it on promptly in light of the trial date. Mr. Julien thereupon stated he would confer with his client and if plaintiff decided to move for such relief, an appropriate written application pursuant to law would be made therefor. No such application was ever made.

The statute (28 U.S.C. § 144) provides that such an application can be made only by the filing of "a timely and sufficient affidavit" by the party litigant who seeks to replace the judge. "The affidavit shall state the facts and the reasons for the belief that bias or prejudice exists, and shall be filed not less than ten days before the beginning of the term at which the proceeding is to be heard, or good cause shall be shown for failure to file it within such time. A party may file only one such affidavit in any case. It shall be accompanied by a certificate of counsel of record stating that it is made in good faith." Not only did plaintiff fail to meet the deadline for filing, but neither he nor his counsel have ever filed the affidavits which the law makes imperative. Plaintiff deliberately waived any claim of bias.

It ill-behooved Mr. Julien to go around the back way to accomplish what he failed to attempt directly. Nevertheless, several times throughout the trial, he screamed "mistrial, you are biased" at the judge presiding.

II TRIAL

Trial was conducted from February 16 to March 23, 1972. The trial record consists of 4,714 pages, the testimony of 25 witnesses and hundreds of exhibits.^11a

A. The credibility of the witnesses

Plaintiff's perjury. Certain testimony was so utterly corrupt that its particular value is to demonstrate plaintiff's willingness to lie. The record is studded with instance after instance where plaintiff's testimony was clearly perjurious. Often his own testimony exposed the perjury and at other times his very testimony compelled its rejection; on occasion he was forced to acknowledge the falsity of his testimony. He sought to subborn perjury by witnesses who had been subpoenaed or have them conceal material matters called for by subpoena.

Exhibit G. The importance of the total testimony relating to this exhibit cannot be overrated. It served to demonstrate the quality of plaintiff's trial testimony as well as establish with finality whether he violated the terms of a subpoena which called for the production, inter alia, of the following at deposition:

1. All films, photographs, negatives, prints, slides, enlargements and all other photographic products in the possession, custody or control of plaintiff which depict defendant Jacqueline Onassis, Aristotle Onassis, Caroline B. Kennedy, John F. Kennedy, Jr., John Walsh, James Kalafatis, John Connelly and Brian Keller, or any of them, which were taken or made by plaintiff;

2. All films, photographs, negatives, prints, slides, enlargements and all other photographic products in the possession, custody or control of plaintiff which depict plaintiff and any of the persons listed in paragraph 1 hereof, irrespective of by whom they were taken or made.

The exhibit consists of two identical contact sheets which include...