Garfield v. Palmieri

• Citation: 193 F. Supp. 137
• Parties: Gustave B. GARFIELD, Plaintiff, v. Edmund PALMIERI, Defendant.
• Decision Date: 18 April 1961
• Court: U.S. District Court — Southern District of New York

193 F. Supp. 137

Gustave B. GARFIELD, Plaintiff, v. Edmund PALMIERI, Defendant.

United States District Court S. D. New York.

April 18, 1961.

COPYRIGHT MATERIAL OMITTED

Gustave B. Garfield, New York City, plaintiff, pro se.

S. Hazard Gillespie, Jr., U. S. Atty., for Southern Dist. of New York, New York City, for defendant, Stephen Kurzman, Asst. U. S. Atty., New York City, of counsel.

FREDERICK van PELT BRYAN, District Judge.

This is an action for libel brought by Gustave B. Garfield, an attorney at law, against Judge Edmund Palmieri, a United States District Judge for the Southern District of New York. The alleged defamatory matter is contained in an opinion rendered by Judge Palmieri in the case of Fleischer, etc. v. A. A. P., Inc. et al., in which Garfield appeared as attorney for the plaintiff. The opinion was published in D.C., 180 F.Supp. 717.

The action at bar was commenced in the Supreme Court of the State of New York. It was removed to this court pursuant to 28 U.S.C. § 1442,¹ upon the ground that the acts of Judge Palmieri claimed to be defamatory were performed by him under color of his office as United States District Judge and in performance of the duties of that office.

A motion has now been made in this court, pursuant to Rule 12(b), F.R. Civ.P., 28 U.S.C., to dismiss the complaint for failure to state a claim on which relief can be granted. In support of that motion counsel for Judge Palmieri has submitted an affidavit which presents matters outside the complaint. Garfield, who appears pro se, has submitted an affidavit in opposition which also goes into matters outside the pleading at some length. Pursuant to Rule 12(b) (6), F.R.Civ.P., the motion will therefore be treated as one for summary judgment and disposed of as provided in Rule 56, as plaintiff requests.

The complaint alleges in substance that Garfield has been for many years a member in good standing of the bar of the State of New York, of this court and of other courts; that the matter alleged to be defamatory was published by the West Publishing Company in Volume 180 of the Federal Supplement which is widely circulated; that the alleged defamatory matter consisted of a statement by Judge Palmieri of "his belief that this plaintiff had been rebuked by the United States Court of Appeals for the Second Circuit in an opinion filed by it in the case of Fleischer v. Phillips, 264 F.2d 515, certiorari denied Fleischer v. Benjamin 359 U.S. 1002, 79 S.Ct. 1139, 3 L.Ed.2d 1030, for unworthy conduct as an attorney"; that such matter was false and published maliciously by Judge Palmieri with intent to degrade and injure Garfield in the practice of his profession and did so degrade and injure him; that Judge Palmieri caused such matter to be published while acting unofficially and privately in his individual capacity and when no matter was sub judice before him; and that as a result the false impression has been created in the profession that Garfield had been censured by the Court of Appeals when, in fact, he had not. Garfield seeks damages in the sum of $250,000.

The opinion which contained the allegedly defamatory matter was rendered by Judge Palmieri in an action for damages arising from an alleged conspiracy to violate the anti-trust laws and for other relief, which was then pending before him. Garfield was attorney for the plaintiff in that action. The defendants had moved before Judge Palmieri to dismiss the second and third claims stated in the amended complaint and to strike portions of it. In the course of the argument of that motion Garfield made an application to disqualify Judge Palmieri on the ground of "personal bias or prejudice * * * against him" under 28 U.S.C. § 144. This application was made as a result of an exchange between counsel during argument which required Judge Palmieri to refer to language of the Court of Appeals of the Second Circuit in dismissing a prior appeal in the same action (Fleischer v. Phillips, supra) which he stated was, in his view, a rebuke to Garfield.²

Thereafter Judge Palmieri rendered a written opinion in which he denied Garfield's application for disqualification and also disposed of the defendant's motion on the merits.

In denying the application to disqualify Judge Palmieri again stated his view that Garfield had been rebuked by the Court of Appeals.

The opinion was duly filed with the clerk of the court on July 15, 1959, and then became part of the official record in the Fleischer case.

On February 8, 1960 West Publishing Company wrote to Judge Palmieri concerning the opinion as follows:

"In a recent opinion by Justice Spector which we are preparing for publication there is reference to your unreported opinion in the above case.

"We shall therefore appreciate it if you will send us copy sic of your opinion, together with the names and addresses of the attorneys for the respective parties and the filing date with a view to publication in the Federal Supplement so that a definite volume and page reference may be given in Judge Spector's opinion."

Judge Palmieri sent the opinion to West in compliance with this request and shortly thereafter it appeared under the title of the case, Fleischer v. A.A.P., Inc., in 180 F.Supp. 717.

In July 1960 Garfield, appearing pro se, brought an action against Judge Palmieri in the United States District Court for the Eastern District of New York, 193 F.Supp. 582. He sought a judgment (a) declaring that portion of Judge Palmieri's opinion referring to the denial of Garfield's application to disqualify to be "oppressive, false, malicious and libelous", rendered without jurisdiction and in deprivation of Garfield's constitutional rights; (b) directing the clerk of the United States District Court for the Southern District of New York to expunge such matter from the record of the court; and (c) for such other order as would be suitable to vindicate his rights. Counsel for Judge Palmieri moved to dismiss the complaint in that action for failure to state a claim on which relief could be granted. Judge Bartels of the Eastern District granted the motion. He held that Judge Palmieri had had jurisdiction over the subject matter on which his opinion was written and that he was entitled to full judicial immunity against civil suit which was a complete bar to the maintenance of the action. An appeal from the judgment of dismissal is presently sub judice in the Court of Appeals.

It may be noted that in his action in the Eastern District Garfield did not refer to the publication of the opinion in the Federal Supplement though that had occurred prior to the commencement of the action. Garfield states that he was not then aware that the opinion had appeared in the Federal Supplement but that when this came to his attention he commenced the present action in the New York Supreme Court.

While stoutly maintaining that nothing in the opinion is false or untrue or was written or published with any malice or intent to injure or degrade Garfield, Judge Palmieri takes the position on this motion that he is protected by an absolute privilege against civil liability for any statements in his opinion. He asserts that liability in this case is governed by federal law which gives immunity against civil suit to federal judges for all acts performed in the course of their duties and within the scope of their powers. See Bradley v. Fisher, 13 Wall. 335, 80 U.S. 335, 20 L.Ed. 646. He contends that the acts of which Garfield complains were performed in the course of his official duties as a United States District Judge and that therefore this action is barred even if the allegations as to falsity, malice or intent to injure and defame could be established.

Garfield, on the other hand, takes the position that New York and not federal law governs the privilege asserted and relies on Murray v. Brancato, 290 N.Y. 52, 48 N.E.2d 257, 146 A.L.R. 906, as expressing the New York view. He contends that under the Murray case, since Judge Palmieri sent the opinion to West Publishing Company some months after it had been filed, and at a time when the Fleischer case was no longer before him, he was not acting within the scope of his judicial duties or powers, and is not entitled to absolute immunity. Garfield asserts, therefore, that there are triable issues as to the truth or falsity of the alleged defamatory matter and whether or not it was published with malice and intent to injure and defame him, and that therefore the motion for summary judgment must be denied.

Thus, the first question presented is whether Judge Palmieri's claim of absolute privilege is governed by New York or federal law.

That question was conclusively answered by the Supreme Court in the recent case of Howard v. Lyons, 360 U.S. 593, 79 S.Ct. 1331, 3 L.Ed.2d 1454. There suit was brought in the Massachusetts District Court invoking diversity jurisdiction against a captain in the United States Navy, who was commander of the Boston Naval Shipyard. Plaintiffs, who were civilian employees of the Shipyard and an employees' representative group, alleged that he had circulated a defamatory statement concerning them. The statement purported to be an official memorandum to defendant's naval superiors which had been released by him to various newspapers and wire services and to the members of the Massachusetts Congressional Delegation. It was alleged that in circulating the statement defendant had acted maliciously, wickedly, recklessly and falsely and with intent to injure plaintiffs' reputations.

The Supreme Court held that the validity and extent of defendant's claim of absolute privilege as a federal officer in respect of civil liability for statements allegedly defamatory under state law was to be formulated by the federal courts, in the absence of legislative action by Congress, and was not governed by state law. The Court said:

"At the outset, we take note of a question which the Court of Appeals * * * did not find

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