Gintert v. Howard Publications, Inc.

• Decision Date: 09 June 1983
• Docket Number: No. H 82-579.,H 82-579.
• Citation: 565 F. Supp. 829
• Parties: Glenn R. GINTERT, Robin Gintert, Lee Goodman, Marlene Goodman, Granville Quillen, Mary Quillen, William Sampson and Rita Sampson, on behalf of themselves and all other property owners in the Dalecarlia Fairways Subdivision in Lake Dalecarlia Community, Plaintiffs, v. HOWARD PUBLICATIONS, INC., Defendant.
• Court: U.S. District Court — Northern District of Indiana

565 F. Supp. 829

Glenn R. GINTERT, Robin Gintert, Lee Goodman, Marlene Goodman, Granville Quillen, Mary Quillen, William Sampson and Rita Sampson, on behalf of themselves and all other property owners in the Dalecarlia Fairways Subdivision in Lake Dalecarlia Community, Plaintiffs, v. HOWARD PUBLICATIONS, INC., Defendant.

No. H 82-579.

United States District Court, N.D. Indiana, Hammond Division at Lafayette.

June 9, 1983.

Edward R. Hannon, Indianapolis, Ind., Robert L. Bauman, Lafayette, Ind., for plaintiffs.

Fred M. Cuppy, Merrillville, Ind., for defendant.

MEMORANDUM AND ORDER

SHARP, Chief Judge.

This case was originally filed in Hammond, Indiana, on July 28, 1982, and was subsequently transferred by agreement of the parties to the Lafayette Division of this Court. This action is presently before the court on defendant's motion for summary judgment.

The plaintiffs are all citizens and residents of the State of Indiana who own real estate located in the vicinity of the Lake Dalecarlia Community in Lake County, Indiana. The defendant is a corporation organized under the laws of the State of California with its principal place of business in Oceanside, California; it is therefore a citizen and resident of the State of California. Accordingly, the jurisdiction of this court is grounded in diversity of citizenship under 28 U.S.C. § 1332.

The defendant, Howard Publications, Inc., owns and publishes The Times, a daily newspaper of general circulation printed, published and distributed in Hammond, Indiana. During the period of May 23, 1982, through June 5, 1982, The Times published a series of short articles regarding environmental conditions around Lake Dalecarlia. These articles are attached hereto as appendices to this Memorandum and Order. None of the plaintiffs are designated by name in any of the aforesaid articles.

This court has held two formal proceedings in this matter. The first was in Lafayette, Indiana, on December 20, 1982, in which a schedule was established for the filing and responding to motions for summary judgment. The second was on May 5, 1983, where the court heard extensive oral arguments on the pending motion for summary judgment filed by the defendant. Said pending motion for summary judgment has also been fully and extensively briefed and supplemental material has been filed and exchanged in accordance with the proceedings in this case of May 5, 1983.

The requisites for granting summary judgment are found at Rule 56(c) of the Federal Rules of Civil Procedure, which states in relevant part:

The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

A careful examination of the pleadings, interrogatories, and the affidavit of Walter J. McCarthy, as well as the articles in question, reveals that there are no issues of fact to be resolved and that this court may render a decision by applying the law to the facts.

I.

The initial question confronting this court is whether the plaintiffs have stated a cognizable claim under the tort law of group libel. Because this court is sitting in diversity, it is axiomatic that the substantive law of the forum, viz., Indiana, must govern. Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). It should also be noted that summary judgment may be peculiarly appropriate in libel cases. Thus, as the court held in Schuster v. U.S. News & World Report, Inc., 459 F.Supp. 973 (D.Minn.1978):

Summary judgment is proper only if no genuine issue of material fact exists. While always an extreme procedure, summary judgment is more apt to be appropriate in a libel case where considerations of constitutional freedoms arise. To permit a meritless action to proceed beyond the pleading stage to trial would further chill publishers and speakers in the exercise of their first-amendment rights. (citations omitted).

Id. at 975. (The Court in Schuster went on to grant defendant's Motion for Summary Judgment based on the principles of group libel). In that same vein, see Fadell v. Minneapolis Star & Tribune Co., 425 F.Supp. 1075 (N.D.Ind.1975), aff'd, 557 F.2d 107 (7th Cir.), cert. denied, 434 U.S. 966, 98 S.Ct. 508, 54 L.Ed.2d 452 (1977), and the cases collected therein.

The complaint was filed by eight named plaintiffs on behalf of themselves and all other property owners in the Dalecarlia Fairways Subdivision in the Lake Dalecarlia Community. Plaintiffs' answers to defendant's interrogatories show that this proposed class is made up of approximately 165 property owners in Dalecarlia Fairways Subdivision. The import of Counts I, III and IV of plaintiffs' complaint is that a series of articles written and published by the defendant concerning Lake Dalecarlia, its residents, its septic and sewer problems, its overall environmental condition, and a high incidence of cancer in the area are defamatory and libelous per se and that the plaintiffs are entitled to both compensatory and punitive damages. Count II of plaintiffs' complaint sounds in negligence, i.e., the defendant allegedly failed in its duty to investigate and make a responsible inquiry prior to publication of the articles.

In its answer, the defendant admitted that on various dates it published certain articles concerning Lake Dalecarlia, and admitted that said publications indicated that the residents of that community have been and continue to be subject to a substantially higher risk of contracting cancer and dying of cancer than persons residing elsewhere.

The plaintiffs' complaint establishes the fact that the articles and any statements therein concern a group, i.e., the community of Lake Dalecarlia. The pertinent portions of plaintiffs' complaint are as follows:

COUNT I

2. ... which community was subject to a series of defamatory and negligently published articles by said defendant.

3. ... published articles, ... which stated that the Lake Dalecarlia community was and is a cancer cluster, in that the residents of said community have been and continue to be subjected to substantially higher risks of contracting cancer and of dying of cancer than persons living elsewhere.

4. ... articles which stated that the lake and drinking water of the Lake Dalecarlia community was contaminated and linked casually to said "cancer cluster."

COUNT IV

2. ... contains accusations that the Lake Dalecarlia residents, a group to which the plaintiffs and potential plaintiffs herein belong, brought the falsely stated "cancer cluster" on themselves ...

The group nature of the libel is clearly indicated in the plaintiffs' answer to interrogatory 15: "each representative plaintiff is now forced to live with the stigma associated with living in the Lake Dalecarlia area, a community accused falsely of being unclean by the defendant." As noted above, the plaintiffs' complaint and answers to interrogatories reveal that their claim is that of "group" libel.

The law is well settled that defamation of a large group gives rise to no cause of action on the part of an individual member of that group unless he can show special application of the defamatory matter to himself. Arcand v. The Evening Call Publishing Company, 567 F.2d 1163 (1st Cir. 1978), citing Tanenhaus, Group Libel 35 Cornell L.Q. 261, 263 (1950); Restatement, Torts, Section 564A, Comment A; Neiman-Marcus v. Lait, 13 F.R.D. 311 (S.D.N.Y. 1952). This proposition stems from the requirement in a libel action that the plaintiff show that the alleged libelous words were spoken of him. The application of this requirement to statements allegedly libeling a group was early applied in Indiana in the case of Harvey v. Coffin, 5 Blackford 566 (1841). In that case the Supreme Court of Indiana reversed a verdict for the plaintiff based on the refusal of the trial court to give the following instruction:

It is not actionable to charge one of three persons with committing a larceny, unless the one of whom the defendant spoke can be identified.

Id. at 568. In that case, plaintiff was one of Mr. Coffin's three sons and the defendant was an individual who stated either that "one of Coffin's boys stole my corn," or "I caught one of Coffin's boys stealing corn." The Supreme Court held the statements not to be actionable language. In so doing the Court reviewed the Indiana law on slanderous words:

In an action for slanderous words charging a crime, the criminal act must be imputed to the plaintiff. If it be uncertain of whom the words were spoken, the action is not maintainable. In the case of Wiseman v. Wiseman, Cro.Jac., 107, the words were, "my brother is perjured." After verdict, it was resolved that the plaintiff should have judgment, but it was conceded that if the words had been "one of my brothers is perjured," the action would not have lain, because it would then have appeared to the Court, that the defendant had more than one brother, and the want of certainty to which brother the words related, would not have been cured by the averment and the verdict. So, in Brown's case, 1 Roll, Abr., 81, where three men had given evidence, and the defendant said to them, "one of you three is perjured," it was held that neither of them could maintain an action for the words spoken, because it was uncertain to which the three the speaker alluded. The law is settled to conformity with the foregoing decisions.

Id. at 568-69. In reviewing the articles in the present case, none of the eight enumerated plaintiffs was mentioned. In fact, no names were mentioned in any of the articles. The articles are referring to residents of Lake Dalecarlia in general and as such there is no way to be certain against which, if any, individual any of the language is directed.

Although research by this court has failed to disclose any recent...