Ratner v. Young

• Decision Date: 12 January 1979
• Docket Number: Civ. No. 437/1973.
• Citation: 465 F. Supp. 386
• Parties: Margaret L. RATNER, William M. Kunstler, and Leroy A. Mercer, Plaintiffs, v. Warren H. YOUNG, Individually and as Judge of the United States District Court for the Virgin Islands, and Jerome Dreyer, Individually and as Managing Editor of the St. Croix Avis published by Brodhurst Printery, Inc., and Brodhurst Printery, Inc., d/b/a the St. Croix Avis, Defendants.
• Court: U.S. District Court — Virgin Islands

465 F. Supp. 386

Margaret L. RATNER, William M. Kunstler, and Leroy A. Mercer, Plaintiffs, v. Warren H. YOUNG, Individually and as Judge of the United States District Court for the Virgin Islands, and Jerome Dreyer, Individually and as Managing Editor of the St. Croix Avis published by Brodhurst Printery, Inc., and Brodhurst Printery, Inc., d/b/a the St. Croix Avis, Defendants.

Civ. No. 437/1973.

District Court, Virgin Islands, D. St. Croix.

January 12, 1979.

COPYRIGHT MATERIAL OMITTED

Frank Padilla, Frederiksted, St. Croix, V. I., for plaintiffs.

James & Resnick, Christiansted, St. Croix, V. I., for defendants.

OPINION

BREWSTER, District Judge, Sitting by Designation.

This action for damages for libel is an aftermath of the famous Fountain Valley murder trial in the United States District Court of the Virgin Islands, Division of St. Croix.¹ Shortly after the return of the verdicts of guilty and the sentencing of all five defendants, THE ST. CROIX AVIS published an article containing a letter which had been received during the trial by the presiding judge, Warren H. Young, from a state court judge in Baltimore, Maryland, complimenting him on the manner in which he had conducted the proceedings in the murder case. William M. Kunstler, Mrs. Margaret Ratner, Leroy A. Mercer and Mario De Chabert,² four defense counsel in the murder case, then brought this suit against Jerome Dwyer, Managing Editor of THE ST. CROIX AVIS, and Brodhurst Printery, Inc., the publisher of the paper, and Judge Young, alleging that the letter was libelous and that they were entitled to $4,000,000.00 damages from such defendants by reason of the publication of it.³ The author of the letter has not been sued.

The matter is now before the Court on two motions for summary judgment, one filed by Judge Young, and the other, by the rest of the defendants.⁴ The motions are substantially the same. A full hearing has been held on them after due notice, with the respective attorneys for each of the parties present and participating. After considering all matters legally relevant to such motions, the Court has concluded that there is no genuine issue as to any material fact concerning a dispositive issue in the case, and that each of the defendants is entitled to judgment as a matter of law.

The nature of this case makes it necessary to outline the sources from which the facts set out herein are taken, before any narrative or summary of the facts is given. Rules 56(c) and 56(e), F.R.Civ.P., provide that the facts supporting or opposing a motion for summary judgment may be taken from the pleadings,⁵ depositions, answers to interrogatories, admissions on file, affidavits and properly authenticated exhibits referred to therein. Wright and Miller, Federal Practice and Procedure, Vol. 10, Sec. 2721, at p. 472, citing Yong Hong Keung v. Dulles, D.C.Mass., 127 F.Supp. 252 (1954), opinion by Aldrich, J., later Circuit Judge, First Circuit, says that the provisions of Rules 56(c) and 56(e) are enlarging rather than restricting as to the sources of facts on a summary judgment hearing, and that the courts have recognized "great flexibility with regard to the evidence that may be used on a Rule 56 proceeding." The text goes on to say: "The particular forms of evidence mentioned in the rule are not the exclusive means of presenting evidence on a Rule 56 motion. The Court may consider any material that would be admissible or usable at trial." Sec. 2721 at p. 473. Many of the approved sources not listed in Rules 56(c) and 56(e), including some of those used in this opinion, appear in Sec. 2724, at p. 496, et seq.

The facts set out in this opinion are taken from the following sources: the pleadings, the answers to interrogatories, the filed affidavits and exhibits referred to therein,⁶ the admissions of the plaintiffs,⁷ and the matters of which the Court may take judicial knowledge.⁸

There are two rules that relate to the nature of consideration to be given the facts supporting the motions that are applicable here, either because the non-movants failed to file anything in opposition to the motions, or because they failed to file a motion to strike, or to object to, any of the factual matters offered in support of the motions.

The plaintiffs' attorney made an oral argument on the hearing of the motions for summary judgment; but plaintiffs filed no brief or other written opposition. The only instrument on file which could possibly be construed as a contradiction of the motions for summary judgment is the plaintiffs' unverified complaint. A party's unsworn pleadings will not suffice to contest the factual matters offered in support of the motion. Rule 56(e), F.R.Civ.P.; Tripoli Company v. Wella Corporation, 3 Cir., 425 F.2d 932, 935 (1970); Piper v. United States, 5 Cir., 392 F.2d 462, 464 (1968); Dressler v. Sandpiper, 2 Cir., 331 F.2d 130 (1964). The effect of the failure of the non-moving parties to controvert the facts supporting the motion is that such facts are deemed to be admitted. Morrison v. Walker, 9 Cir., 404 F.2d 1046 (1968); Preveden v. Croatian Fraternal Union of America, W.D.P., 120 F.Supp. 33 (1954); Apollo Distributing Co. v. Apollo Imports, Inc., S.D. N.Y., 341 F.Supp. 455 (1972). An oral argument does not meet the requirements of the rule. Rule 56(e) provides that the non-movant's response, "by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial." The rule further says: ". . . If he does not so respond, summary judgment, if appropriate, shall be entered against him."

The plaintiffs also failed to file a motion to strike any of the affidavits or the exhibits offered in support of the motions, or to make any objection to the use of such affidavits and exhibits. As a result, the case falls within what the concurring opinion in United States v. Dibble, 9 Cir., 429 F.2d 598, 603 (1970), calls "the well-settled rule that affidavits not in compliance with Rule 56(e) may be considered by the trial court in the absence of an objection by counsel." That concurring opinion further says: "Inadmissible affidavits are no different from inadmissible evidence. They may be stricken in the discretion of the trial judge, but will support a judgment if he elects to consider them and no objection is made." 429 F.2d, at 603. See also: Mitchell v. Dooley Bros., Inc., 1 Cir., 286 F.2d 40, 41-42 (1960); Klingman v. National Ind. Co., 7 Cir., 317 F.2d 850, 854 (1962)⁹; United States v. Western Electric Co., 9 Cir., 337 F.2d 568, 575 (1964); Noblett v. General Electric Credit Corp., 10 Cir., 400 F.2d 442, 445 (1968); Auto Drive-Away Company of Hialeah, Inc., v. I.C.C., 5 Cir., 360 F.2d 446, 448 (1966); Munoz v. International Alliance, etc., supra.

Sixteen persons, including guests and staff, were in the clubhouse area of the fashionable Fountain Valley Golf Course in St. Croix on the afternoon of September 6, 1972, when a group of masked male intruders, armed with a variety of firearms, swarmed the area and shot at all persons rightfully there. Eight of those people were killed; four others were wounded as they tried to get away; and the remaining four escaped without injury. The coffers of the clubhouse were looted, and some of the victims of the shooting were robbed. The identities of the killers were not known, and there was an intensive manhunt for days. During the course of such manhunt, arrests were made of the five men later charged and tried. All five defendants were blacks. All of the sixteen victims at the club were white, with the exception of the black maid who was working there.

The Court appointed local counsel to defend each of the defendants. Kunstler and Ratner promptly moved in, uninvited, and each one of them took over the defense of one of the defendants, without pay. They began with a press conference called by them when they filed an action for damages against local police and F.B.I. Agents who had been involved in the arrests and investigation on the ground that they had engaged in brutality that violated the civil rights of the defendants. They thereafter attempted to try the issues in the news media as well as the courtroom.¹⁰ Motions to suppress evidence obtained in searches and confessions made by the defendants followed. The hearings on the motions were bitter and long-drawn-out.

Four efforts were made by Kunstler to disqualify Judge Young, who presided at the trial. The tactics of Kunstler and Ratner were scorched earth all the way, with an apparent attempt not to leave out any of the part of the judiciary involved, if it could be avoided. The record shows numerous, serious outbursts by the defendants wherein they shouted obscenities at the Judge. They were aided and encouraged in many of those outbursts by the shouting of Kunstler and Ratner. The conduct was highly publicized.¹¹

The letter of which the plaintiffs now complain was received by Judge Young during the progress of the trial on the merits of the murder case. Mr. Dreyer said he saw it on the occasion of a visit he and another newspaper man had with Judge Young in his chambers. The newspaper men thought it had some news value, but did nothing about it until the trial was concluded. When the verdicts of guilty were returned and the sentences were imposed,¹² Mr. Dreyer called the Judge's office and asked for a Xerox copy of the letter. Judge Young was not in, and Dreyer's message was left with a legal secretary. When it got to Judge Young, he was in the hurried process of getting ready to take an airplane to the States. He made provision for the Xerox copy to be delivered by his bailiff to a reporter Dreyer had designated to get it. There was no conversation with Judge Young about what would be done with the copy of the letter. Mr. Dreyer assumed that Judge Young would not object to the publication of it.

On the following day, when Judge Young was not in the Virgin Islands, the following arti...