Rattner v. Netburn
| Decision Date | 09 April 1991 |
| Docket Number | No. 178,D,178 |
| Citation | 930 F.2d 204 |
| Parties | Marshall RATTNER, Marshall Rattner Inc., National Limousine Service, Inc., and Professional Indemnity Agency, Plaintiffs-Appellants, v. Malcolm NETBURN, John B. Farrington, and The Incorporated Village of Pleasantville, Defendants-Appellees. ocket 90-7317. |
| Court | U.S. Court of Appeals — Second Circuit |
John J. Walsh, New York City (Cadwalader, Wickersham & Taft, David R. Kittay, David L. Noonan, Michelle G. Glassberg, Liddell, Sapp, Zivley, Hill & LaBoon, New York City, on the brief), for plaintiffs-appellants.
Herbert Teitelbaum, New York City (Richard J. Hiller, Roger Juan Maldonado, Teitelbaum, Hiller, Rodman, Paden & Hibsher, New York City, on the brief), for defendant-appellee Netburn.
Arthur M. Handler, New York City (Robert S. Goodman, Cheryl Spinner, Whitman & Ransom, New York City, on the brief), for defendants-appellees Farrington and the Incorporated Village of Pleasantville.
Before FEINBERG, VAN GRAAFEILAND, and KEARSE, Circuit Judges.
Plaintiffs Marshall Rattner et al. appeal from a final judgment of the United States District Court for the Southern District of New York, Gerard L. Goettel, Judge, dismissing their complaint against defendants The Incorporated Village of Pleasantville ("Village"), John B. Farrington, its Mayor ("Mayor"), and Malcolm Netburn, a Village Trustee, seeking damages principally under 42 U.S.C. Sec. 1983 (1988) for violation of plaintiffs' rights of freedom of speech and freedom of association as guaranteed by the First and Fourteenth Amendments to the Constitution, and seeking damages under state tort law. The district court granted summary judgment dismissing the complaint, ruling principally that Rattner had failed to make an adequate showing that his constitutional rights had been infringed. See 733 F.Supp. 162 (1990). The court also dismissed plaintiffs' state-law claims against the Village and the Mayor for failure to file timely notice of claims against those defendants as required by state law, and it declined to exercise pendent jurisdiction over the state-law claims asserted against Netburn. On appeal, plaintiffs contend principally that the district court improperly granted summary judgment against them because it failed to draw all reasonable inferences in their favor as the nonmoving parties. For the reasons below, we affirm in part; but we vacate the dismissal of plaintiffs' freedom-of-speech claim and certain other claims dismissed as a result of that dismissal, and we remand for further proceedings with respect to those claims.
Rattner is a businessman operating in Pleasantville, New York. The other plaintiffs are Rattner's businesses. Since the interests of Rattner and his businesses are pantographic, we refer hereafter only to Rattner.
As indicated in the opinion of the district court, see 733 F.Supp. at 163 & n. 1, Rattner has engaged in lengthy and repeated litigation with the Village concerning, inter alia, zoning disputes with respect to the use of his property in Pleasantville and his claims of official harassment and selective enforcement of local laws against him, his businesses, and his employees. See also Rattner v. Board of Trustees of the Village of Pleasantville, 611 F.Supp. 648 (S.D.N.Y.1985). Viewed in the light most favorable to Rattner, the events leading to the present lawsuit were as follows.
At all pertinent times Rattner has been a member of the Pleasantville Chamber of Commerce ("Chamber"). Until May 1988, the Chamber published a periodic newspaper, the Pleasantville Gazette ("Gazette"). In early 1988, Rattner placed an advertisement in the February 11, 1988 edition of the Gazette, formatted as an interview with Rattner. The ad, entitled gave a description of the history and expense of the ongoing Rattner-Village legal disputes and charged the Village with hiding the cost of the Rattner litigation from the taxpayers through manipulation of budget entries. In addition, on the front page of that issue, the Chamber published the results of a questionnaire it had circulated, which included a question as to the amount of money the Village was spending on litigation, and the response to which revealed local dissatisfaction with that expense.
The Rattner advertisement caused a certain amount of discussion among the Village's Trustees and resulted in, inter alia, complaints by Village Administrator John St. Leger, Netburn, and others to Chamber members about the decision to publish the advertisement; and, most importantly, a letter from Netburn to each of the directors of the Chamber other than Rattner. The Netburn letter, dated February 16, 1988, and written on Netburn's personal stationery, is the principal focus of this litigation. It read as follows:
Dear [Chamber Director]:
Myself and my neighbors wish to express our concern about the negative and political nature of the Pleasantville Gazette.
First, we were surprised by the anonymous back-page paid article, which appeared to be a Gazette reporter's interview with Mr. Rattner. This "article" directly attacks the intentions and purposes of the Village as a whole, and its volunteer citizens who have tried to do what is right for our community. It involves The Chamber of Commerce in a difficult, ongoing legal situation.
We believe that its inclusion in a Chamber paper was and is inappropriate and a disservice to those of us who live here and have been strong supporters of our local businesses.
Secondly, several of the questions on your Page 1 questionnaire results are highly political and misleading in nature. On-site parking did not result in the construction of the building on Tompkins and Bedford Roads.
The question on legal fees is also biased and misleading. It is a leading question clearly asked to achieve a certain answer, not to establish objective facts.
It appears that The Chamber of Commerce has crossed the line between being a supportive, nonpartisan, and nonpolitical local organization to one that has a political agenda and purpose. In that regard, I would appreciate hearing from you on the following questions:
1. Was the decision to run the paid, anonymous "article"--one that attacks our village--made by the entire membership of the organization?
2. Can we have a list of those members who supported the inclusion of this "article"?
3. Does The Chamber of Commerce have a political purpose? If so, what is that purpose?
4. Was the questionnaire reviewed and approved by the entire membership?
5. Who wrote the actual questions?
6. Are officially constituted members of The Chamber using their office to influence and/or support local political activities?
I believe that each citizen of Pleasantville deserves and expects answers to these questions. The healthy growth of many local businesses depends on the trust and honesty displayed by our local businesses and merchants to the Village as a whole. I believe--and many of my neighbors believe--that the recent Gazette raises significant questions and concerns about the objectivity and trust which we are looking for from our business friends.
I would appreciate a reply at your earliest convenience.
Netburn dictated the letter to his secretary by telephone on February 16 and then immediately called the Village Hall. Shortly thereafter, St. Leger made brief calls from Village Hall to the Village's outside counsel and to the Mayor. The Netburn letters were mailed to the Chamber directors that day.
Some three weeks later, at a debate among candidates for Village Trustee, Netburn was questioned about the letter. In response he acknowledged writing the letter, read it aloud, and stated that he had made a list of approximately 40 local businesses at which he regularly shopped.
The Netburn statements caused considerable consternation among Chamber members, who knew that Netburn was the Mayor's "right-hand man." In depositions taken in the present action, a number of Chamber directors testified that they regarded the letter, and Netburn's statement that he had made a list, as clearly threatening boycott or other retaliatory action by the Village, including discriminatorily strict enforcement of parking and zoning regulations.
As a result, the Chamber took two steps. First, it decided to discontinue publishing the Gazette. It eventually created a new paper that would operate independently of the Chamber in order to insulate each entity from liability for the actions of the other. Second, though one last issue of the Gazette would be published in May 1988 and Rattner had already paid for advertising space in the next two Gazette issues, the Chamber told Rattner it had ceased to publish the Gazette and concealed from The new newspaper created by the Chamber, the Pleasantville Chronicle ("Chronicle "), began publication in November 1988. The Chronicle has run both commercial advertisements by Rattner's businesses and news stories about the Village-Rattner litigation.
him the fact that there would be a May issue, thereby preventing him from including material in that issue.
In March 1988, shortly after the Chamber had decided to close the Gazette and create an independent paper, Rattner commenced the present action against Netburn in state court, from whence it was removed to the district court. As eventually amended, the complaint named the Village and the Mayor as well. Attributing the Netburn letter to all of the defendants, the complaint alleged that defendants' actions (1) violated Rattner's right to freedom of speech by (a) causing the Gazette to refuse publication of his views on public issues, and (b) causing the closing of the Gazette as an outlet for the expression of his views; (2) violated his right to freedom of association by causing the Chamber to cease holding its meetings in his office and causing Chamber...
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