Scheetz v. Morning Call, Inc.

• Citation: 747 F. Supp. 1515
• Decision Date: 01 October 1990
• Docket Number: Civ. A. No. 89-6755.
• Parties: Rosann C. SCHEETZ and Kenneth L. Scheetz, Jr. v. The MORNING CALL, INC., Terry L. Mutchler, and John Doe and/or Jane Doe.
• Court: U.S. District Court — Eastern District of Pennsylvania

747 F. Supp. 1515

Rosann C. SCHEETZ and Kenneth L. Scheetz, Jr. v. The MORNING CALL, INC., Terry L. Mutchler, and John Doe and/or Jane Doe.

Civ. A. No. 89-6755.

United States District Court, E.D. Pennsylvania.

October 1, 1990.

COPYRIGHT MATERIAL OMITTED

James T. Huber, Huber & Waldron, Allentown, Pa., for plaintiffs.

Malcolm J. Gross, Gross, McGinley, LaBarre & Eaton, Allentown, Pa., for defendants.

MEMORANDUM

CAHN, District Judge.

The plaintiffs, an Allentown police officer and his wife, have sued the defendants, an Allentown newspaper, one of its reporters, and an unidentified Allentown police officer, under 42 U.S.C. § 1983 for violating their constitutional right to privacy by publishing the contents of a confidential police report, and under various state laws and constitutional provisions. The plaintiffs seek an order compelling the reporter and an editor of the defendant newspaper to divulge the identity of the informant who supplied the reporter with the confidential report. The newspaper and reporter oppose this motion, claiming that the informant's identity is privileged. They have also moved for summary judgment on the counts of the complaint that pertain to them and to dismiss the counts that pertain to Officer Doe. This court shall grant the motion for summary judgment, deny the motion to compel, and grant the motion to dismiss.

The background has been laid out in an earlier opinion. Scheetz v. Morning Call, Inc., 130 F.R.D. 34, 35 (E.D.Pa.1990). Kenneth Scheetz, an Allentown police officer, was named officer of the year. Shortly after, Terry Mutchler, a reporter for The Morning Call, requested the offense report and investigative reports for a rumored assault by Officer Scheetz upon Mrs. Scheetz over a year before. Chief Stephens denied this request. The Morning Call soon after published two stories which disseminated the contents of confidential police investigative reports regarding Mrs. Scheetz's complaint that her husband had assaulted her.¹ The first story (Appendix A to this opinion) contained most of the information found in the investigative reports, including a description of Mrs. Scheetz's injuries, Mrs. Scheetz's statement that she had been assaulted before, and her statement that her husband had refused to seek counseling. The story noted, using information drawn from a second investigative report, that the Scheetzes had since sought counseling. The second story (Appendix B) provided no new material from the reports. Instead, it repeated a description of the effects of the beating.

Officer and Mrs. Scheetz then filed this action under 42 U.S.C. § 1983. Counts I, V, and IX claim that the defendants (Morning Call, Inc., the publisher of The Morning Call, Terry Mutchler, the reporter who wrote the stories in question, and John and/or Jane Doe, unknown police officials who conspired with Mutchler to release the confidential report, respectively), violated their constitutional right to privacy.² Mutchler is alleged to have conspired with Doe to obtain police investigative reports denied her by the Chief of Police, with the object of publishing them in The Morning Call, also part of this conspiracy. The plaintiffs also assert pendent state claims for violations of the Pennsylvania Constitution and for the torts of invasion of privacy through publication of private facts and false-light invasion of privacy.

Through interrogatories and depositions, the plaintiffs sought to discover the identity of the informant (defendant Doe) who supplied the named defendants with the police report and facts regarding the reportorial and editorial processes that underlay the publication of the stories that divulged the confidential information. The deponents, Terry Mutchler, a reporter, and David Migliore-Erdman, an editor, declined to answer these questions, claiming that the questions fell within the area covered by their reportorial and editorial privileges. The plaintiffs then filed a motion to compel. Besides a response, Mutchler and Morning Call filed motions for a protective order, for summary judgment, for judgment on the pleadings, and to dismiss.³ This court heard extensive argument on June 25, 1990. Its jurisdiction rests upon 28 U.S.C. § 1343, with pendent jurisdiction over the state claims.

I. MOTION FOR SUMMARY JUDGMENT

Before this court can address the substance of this motion, it must face the motion for a protective order filed by the defendants. The defendants argue that the summary judgment motion should be decided before the motion to compel is resolved, because a grant of summary judgment would eliminate what need there might be to breach the privilege they assert. In contrast, the plaintiffs argue that the motion to compel must be decided first, because this court's decision on that motion could affect materially the facts relevant to the motion for summary judgment.

Both positions have merit. The defendants are not entirely correct when they argue that a grant of summary judgment completely decides this case; after all, defendant Doe, not a party to the summary judgment motion, would remain a defendant. Still, the motion to compel would of necessity be treated differently if the reporter were not a party to the suit. In addition, removing the named defendants from this action, as will be discussed below, reopens questions about whether it is appropriate for unknown individuals to be parties to an action.

The plaintiffs' point is also well taken. Officer Doe's deposition would contain information directly relevant to this motion. Doe could testify about the events surrounding his or her transmission of the police investigative report to Mutchler, and about police department policy on the availability of confidential police investigative reports. If this court were to grant the motion to compel, the record on summary judgment would be altered greatly (assuming that Mutchler ultimately complied with this court's order and that Doe proved helpful).

I am guided by Court of Appeals precedents on Federal Rule of Civil Procedure 56(f), and by the general principles concerning summary judgment. Rule 56(f) is properly invoked in response to a summary judgment motion when the non-movant requires more discovery before it can answer the motion. See Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986); Dowling v. City of Philadelphia, 855 F.2d 136, 139 (3d Cir.1988). Rule 56(f) motions must be accompanied by an affidavit outlining the discovery to be conducted and the information to be sought. Radich v. Goode, 886 F.2d 1391, 1393 (3d Cir.1989); Costlow v. United States, 552 F.2d 560, 562 (3d Cir.1977). When they are properly made, these motions are granted almost as a matter of course. See, e.g., International Raw Materials, Ltd. v. Stauffer Chem. Co., 898 F.2d 946, 949 (3d Cir.1990); Costlow, 552 F.2d at 564.

The plaintiffs did not file a Rule 56(f) motion, and no affidavit of record summarizes the discovery to be undertaken. However, the Court of Appeals has observed that, at times, a motion to compel is enough to alert the court to the need to stay its hand until the discovery is complete. Radich, 886 F.2d at 1394; Dowling, 855 F.2d at 140; Sames v. Gable, 732 F.2d 49, 52 (3d Cir.1984). Although a motion to compel has been filed, this does not end the discussion. This court agrees that it cannot resolve a summary judgment motion insofar as it rests upon facts that the discovery that the plaintiffs seek might call into question. After all, Rule 56(c) allows a court to grant summary judgment only if "there is no genuine issue as to any material fact." However, what if the summary judgment motion is, in truth, partly a motion to dismiss, in that it rests in part upon wholly legal arguments? In such a case, provided that the issues are fully briefed, as they have been here, the court would be fully justified in deciding them even in the face of a motion to compel. Furthermore, there may be mixed issues of fact and law in which the facts are not in dispute, and for which the requested discovery would shed no light. Here, too, a court would be justified in forging ahead.⁴

Therefore, this court shall tread an intermediate path. I shall consider the summary judgment motion, but I shall assume that all facts that the sought-after discovery might reasonably produce would be entirely favorable for the plaintiff. In doing this, then, this court converts the summary judgment motion into a motion to dismiss for all matters over which discovery might be expected to prove fruitful.⁵ As a practical matter, this approach will not allow examination of the circumstances leading to Mutchler's receipt of the information, save as a purely legal issue. This approach also saves this court a potentially troublesome foray into the thicket of reportorial privilege, because the motion to compel would have this court order a reporter to divulge the identity of her confidential source.

As the plaintiffs have brought the federal counts of this action under 42 U.S.C. § 1983, they must establish "(1) that the conduct complained of was committed by a person acting under color of state law; and (2) that the conduct deprived a person of rights, privileges, or immunities secured by the Constitution or laws of the United States." Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 1913, 68 L.Ed.2d 420 (1981); Robb v. City of Philadelphia, 733 F.2d 286, 290-91 (3d Cir.1984). The defendants challenge both prongs. In addition, they argue that the Press Clause of the First Amendment immunizes them from suit. Should the defendants be correct on any of these points, this court would be obliged to enter summary judgment in their favor on the federal counts. Moreover, because the state counts are before this court on pendent jurisdiction, they would be dismissed without prejudice were the federal count to drop out. United Mine Workers v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130,...