Nelson v. Associated Press, Inc., 83-8219-CIV.

• Decision Date: 21 August 1987
• Docket Number: No. 83-8219-CIV.,83-8219-CIV.
• Citation: 667 F. Supp. 1468
• Parties: Janis NELSON, Plaintiff, v. ASSOCIATED PRESS, INC.; Newsweek, Inc.; Pete Axthelm; News America, Inc.; Knight-Ridder, Inc.; and Tim Pallesen, Defendants.
• Court: U.S. District Court — Southern District of Florida

667 F. Supp. 1468

Janis NELSON, Plaintiff, v. ASSOCIATED PRESS, INC.; Newsweek, Inc.; Pete Axthelm; News America, Inc.; Knight-Ridder, Inc.; and Tim Pallesen, Defendants.

No. 83-8219-CIV.

United States District Court, S.D. Florida, Miami Division.

August 21, 1987.

COPYRIGHT MATERIAL OMITTED

Louis D. Bruno, Bruno & Sommers, Albany, N.Y. and Edna L. Caruso, P.A., West Palm Beach, Fla., for plaintiff.

Margaret Blair Soyster, Diane Boenig Cavanaugh, Rogers & Wells, New York City and Joseph P. Averill, Miami, Fla., for The Associated Press.

F. Kendall Slinkman, West Palm Beach, Fla., for plaintiff Janis Nelson.

Sanford L. Bohrer, Laura G. Pula, R. Marcus Cobourn, Thomson Zeder Bohrer Werth & Razook, Miami, Fla., for Knight-Ridder, Inc., Tim Pallesen, and News America Publishing, Inc. Slade R. Metcalf, Squadron, Ellenoff, Plesent & Lehrer, New York City, for News America Publishing, Inc.

Donald M. Middlebrooks, Thomas R. Julin, Steel Hector & Davis, Miami, Fla., Stephen Froling, The Old Vicarage Helpston, Cambs. England, PE6 7ED, for defendants Newsweek, Inc. and Pete Axthelm.

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT

SPELLMAN, District Judge.

THIS CAUSE comes before the Court after a pre-trial conference in the above-named case. The case was transferred to this division after a pre-trial conference was held before Judge Kenneth L. Ryskamp. At that pre-trial conference, Judge Ryskamp announced limited rulings and entered the same without prejudice to this Court's reconsideration of them during the pre-trial conference it held. All the Defendants have filed motions for Summary Judgment on the defamation claims asserted against them by Plaintiff Janis Nelson.

I. Background

In 1982, Palm Beach, Florida resident Herbert ("Peter") Pulitzer instituted divorce proceedings against his then wife, Roxanne Pulitzer. The trial lasted approximately 18 days, and produced without question some of the most bizarre testimony, including testimony by Mr. Pulitzer of seances engaged in by his wife involving a number of people and a black draped trumpet. Plaintiff, Janis Nelson, is a professional psychic who at one point was Mrs. Pulitzer's confidante, and who later returned to West Palm Beach to testify on behalf of Mr. Pulitzer because of her overwhelming concern for the children of that marriage. The Defendants, Newsweek, Inc. ("Newsweek"), Pete Axthelm ("Axthelm"), The Associated Press ("AP"), Knight-Ridder, Inc. and Tim Pallesen ("The Miami Herald Defendants") and News America Publishing, Inc., publisher of the New York Post ("News America") covered and reported on the divorce trial. Axthelm wrote an article published in Newsweek; Tim Pallesen wrote an article distributed over Knight-Ridder's wire service. Plaintiff has sued these Defendants for defamation arising out of their publications covering the trial.

Plaintiff operated a business, Palm Beach Readings, in Palm Beach, Florida, from January 1981 until September 1982. She was licensed to practice various activities including astrology, crystal reading, palm reading, soothsaying and fortune telling. Plaintiff offered services in trance readings, karmic readings, tarot readings and astrological readings. It was through this business that Plaintiff became acquainted with Roxanne Pulitzer, eventually becoming her personal confidante, frequently counseling her regarding problems in her marriage.

The dissolution of marriage proceedings received much notoriety, raising serious issues regarding child custody and various other financial matters. The record reflects that Janis Nelson left Palm Beach voluntarily to avoid any attention directed towards her arising from her association with Mrs. Pulitzer. By September 30, 1982, Plaintiff was incommunicado. Yet, before the trial actually began, Ms. Nelson, a layperson in the law, was convinced to return to Palm Beach to make a statement on behalf of Mr. Pulitzer. The return was motivated in part for her concern for the twin sons and that primary custody of them should not be with Roxanne Pulitzer. At the end of making this sworn statement, she was subpoenoed to appear at the trial. Ms. Nelson gave testimony in open court on three dates. It is undisputed that at no point did anyone before or during the trial testify that Janis Nelson conducted seances involving Roxanne Pulitzer in bed or surrounded by 10 to 15 other people in a bedroom with either a trumpet or a black cape.

As indicated, this Court has chosen to reconsider the merits of Defendants' Motions for Summary Judgment pursuant to Judge Ryskamp's invitation to do so, the Miami Herald Defendants' and News America's Motions for Reconsideration, AP's Motion in Limine concerning Fla.Stat. Ann. Section 770.01 (West 1986) and Rule 16 of the Federal Rules of Civil Procedure.

This Court is aware that on a Motion for Summary Judgment, the Movant must demonstrate that there exists no dispute as to any material fact in the case. Adickes v. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970); Fed.R. Civ.P. 56(c). This "burden on the moving party may be discharged by `showing' — that is, pointing out to the District Court — that there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 242, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265 (1986). Of course, the Court must view the evidence in the light most favorable to the nonmoving party. Adickes, 398 U.S. at 157, 90 S.Ct. at 1608. Finally, it is now certain that:

the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.... There is no express or implied requirement in Rule 56 that the moving party support its motion with affidavits or other similar materials negating the opponent's claim.... Rule 56(e) therefore requires the nonmoving party to go beyond the pleadings and by her own affidavits, or by the "depositions, answers to interrogatories, and admissions on file," designate "specific facts showing that there is a genuine issue for trial."

Celotex, 106 S.Ct. at 2552-53.

With these principles as guides, the Court turns to the issues raised by the pleadings.

II. Limited Public Figure

The Defendants argue that Janis Nelson is a limited public figure and accordingly may not recover anything against them in the absence of showing "constitutional malice" as that term is defined in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964); i.e., proof that the defamatory statements were published with knowledge of their falsity or in reckless disregard of the truth. The so-called "limited purpose public figure" or "vortex figure," was born from language in Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974), wherein the Court recognized the difference between public figures in the classic sense — those who have achieved such pervasive fame or notoriety that they become a public figure for all purposes and in all contexts — as opposed to those individuals voluntarily injected into or drawn into a particular public controversy and thereby become a public figure for a limited range of issues. Gertz, 418 U.S. at 351, 94 S.Ct. at 3012. Determining whether an individual, otherwise not a public figure, becomes one for a limited purpose requires the Court to first identify a public controversy and second, inquire into the nature and extent of the Plaintiff's participation in that controversy. Della-Donna v. Gore Newspapers Co., 489 So.2d 72, 76 (Fla.Dist. Ct.App.1986).

Defendants argue that there was a public controversy here and that Plaintiff voluntarily thrust herself into its vortex. First, they argue that the Pulitzer divorce received international coverage and, on the home front, received national attention because of the parties involved, the testimony elicited at trial and also because the proceedings raised novel issues in the area of family law and child custody. Plaintiffs counter this argument, relying on Time, Inc. v. Firestone, 424 U.S. 448, 96 S.Ct. 958, 47 L.Ed.2d 154 (1976), wherein the Court, broadly speaking, announced that divorce proceedings, even among the rich and famous, do not amount to public controversies.

Plaintiff is not a limited purpose public figure. Even assuming arguendo that the controversy is a public one, insofar as the Pulitzer divorce may have raised novel issues in areas of family law and child custody so as to remove it from the rule in Firestone, this Court is simply not satisfied that Plaintiff voluntarily injected herself into that controversy. Plaintiff left Palm Beach to avoid any further involvement in the controversy. Nelson Deposition at 963. Upon being convinced to return, she was forced to appear in the trial under subpoena. In the Court's opinion, this is not the type of voluntariness contemplated by Gertz or Della-Donna. Given that Plaintiff is not a limited public figure, she need not establish constitutional malice in order to recover against Defendants; negligence will suffice. Miami Herald Publishing Co. v. Ane, 458 So.2d 239, 242 (Fla.1984); Tribune Co. v. Levin, 458 So.2d 243, 244 (Fla.1984).¹

III. Associated Press

Plaintiff's claims against AP stem from various dispatches transmitted by them over their wire service between September 28 to 30, 1982. The dispatches all contained similar statements to the following effect:

In pretrial depositions, Pulitzer described seances conducted at his home by Ms. Nelson. Mrs. Pulitzer, surrounded by 10 to 15 friends, "would lay on the bed, and at the foot of the bed would be a trumpet with a black cape," Pulitzer said in the deposition.

The seances went on to involve group singing and a strange voice speaking from his wife's

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