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March 25, 1966

Randolph PHILLIPS, Plaintiff,
John D. MURCHISON and Clint W. Murchison, Jr., individually and as persons doing business under the firm name and style of Murchison Brothers, Defendants

The opinion of the court was delivered by: RYAN

RYAN, Chief Judge.

 Defendant John Murchison has moved under Rule 56(b) F.R.Civ.P. for summary judgment dismissing the amended and supplemental complaint with prejudice upon the ground that the matter complained of in the pending counts of the said complaint are absolutely privileged as a matter of law under Section 337 of C.P.A. (now Sec. 74 of the Civil Rights Law). This privilege has been pleaded as an affirmative defense to all counts. *fn1"

 Plaintiff has moved for an order "vacating that part of this Court's memorandum and order of May 8, 1964 [by Judge Dawson] dismissing Counts 1, 2, 3, 8, 13 and 14 of the amended and supplemental complaint".

 Although the suit is filed against Murchison brothers, individually and as a partnership, the only defendant who has been served and has appeared is John D. Murchison. The complaint rests on allegedly libelous newspaper reports but the alleged offending newspapers have not been sued. This is the fourth complaint since 1961 which plaintiff has filed in support of the charge that he was defamed - the three prior complaints were dismissed by Judge Dawson as were six counts of the fourth leaving for our disposition the 6th, 7th, 9th, 10th, 11th and 12th counts.

 At the outset, we deny plaintiff's motion because this Court has no authority or power to review Judge Dawson's dismissal of these counts on May 8, 1964. That after his decision the Judge signed an order to show cause to reconsider Counts 8 and 13, which was never heard because of his death prior to its return date is no authority for reconsideration of his decision by me. I cannot say that Judge Dawson would have vacated his decision and reinstated these counts; the signing of the order to show cause was an indifferent judicial act of no determinative significance. It decided nothing - not even whether the Court would reconsider. In fact, examination of the reasons urged by plaintiff for reconsideration discloses nothing which in our opinion might have caused Judge Dawson to change his decision. J. I. Case Co. v. Borak, 377 U.S. 426, 84 S. Ct. 1555, 12 L. Ed. 2d 423 the authority relied on by plaintiff in support of his order to show cause does not validate these counts. Besides since Judge Dawson's death plaintiff has done nothing to bring the order to show cause on for hearing until defendant made the instant motion to dismiss the remaining counts. Now eighteen months later, plaintiff seeks reconsideration not only of Counts 8 and 13 but of the remaining ones, as to which he had never sought reconsideration. Obviously, plaintiff thought as little of his chances of succeeding as we do. This motion is denied, - both procedurally and on the merits.

 We turn now to defendant's motion and to the two questions which are determinative of its outcome, - whether the matter complained of was published in connection with a judicial proceeding and if so whether it fairly and accurately reported the proceeding. The first question can be resolved on the documents filed in connection with this motion; the second requires a comparison of the content of the judicial proceeding with the matter reported.

 It is urged by defendant that the determination of both questions may be made by the Court as a matter of law because the question of whether the privilege attached is a question of law. Plaintiff urges that neither may be determined by the Court since underlying both are disputed issues of fact which require a trial.

 The defamatory statements charged in this suit arise out of the reporting of commencement of two derivative stockholders suits on behalf of Alleghany Corporation against Phillips and others: one, the Freeman suit in the New York State Court and the other, the Murchison suit in this Court.

 Specifically, the complaint alleges in the remaining counts before us, as follows:

 Count 6 charges that plaintiff was slandered on September 7, 1960, when defendant's "agent" Holland (his attorney) telephoned the Wall Street Journal to report to it the institution of the Freeman suit, and that plaintiff was libeled by that paper's republication of the report on September 8, 1960. In this count plaintiff sets forth that part of the report which he charges was defamatory.

 Count 7 charges that plaintiff was similarly slandered when Holland telephoned this information to the Herald Tribune on the same day, and that plaintiff was libeled when that paper republished this report on September 8, 1960. Again, plaintiff sets out that part of the report which he claims defamed him.

 Count 9 charges that plaintiff was libeled by defendant when Hill & Knowlton, a firm of press agents acting on defendant's behalf, issued from their New York office a press release to newspapers and wire services in the State of New York and elsewhere in the United States, and to individuals in the State of New York and elsewhere in the United States, through the use of the mails and otherwise, which was headed "For: Murchison Brothers For IMMEDIATE RELEASE: THURSDAY, SEPTEMBER 8, 1960 "; that by issuing said press release through Hill & Knowlton, Inc., defendant Murchison caused the substance of it to be published by newspapers, magazines, and wire services throughout the United States, thereby causing widespread and extensive circulation of the aforesaid false, malicious, and defamatory statements. This count goes on to recite the dismissal on the merits of the charges against plaintiff which had been so publicized in the press release, and the failure of defendants to cause a press release to be issued publicizing this decision of this Court, or communicating the decision of this Court to those newspapers which had reprinted defendants' press release.

 The Tenth Count charges that plaintiff was defamed as a result of the republication of the press release of September 8, 1960 in the New York Times and in the New York World Telegram and Sun on September 9, 1960.

 The Eleventh Count charges a similar defamation as a result of the republication of the press release in the Minneapolis Morning Tribune of September 9, 1960, which statements are alleged to have been telephoned to the newspaper by defendant or his agents in New York City to that paper's Business Editor in Minneapolis.

 The Twelfth Count charges that the mailing on September 13, 1960, by defendant of copies of the Murchison complaint to his fellow directors throughout the United States and Canada constituted a libel and alleges as well that some of the allegations of the complaint itself were libelous.

 No question is presented as to the defamatory nature of the statements pleaded in the complaint. *fn2"

 In support of his position that there were judicial proceedings pending at the time of all publications complained of and that there is no question as to when these judicial proceedings began, defendant has submitted various affidavits based on personal knowledge. With respect to the Freeman suit against Phillips, Kirby and Ireland in the State Court there is an affidavit of Holland, attorney for the stockholder Freeman, which unequivocally states that he, Holland, personally served the Freeman summons and complaint upon Ireland and Alleghany on September 7, 1960, and that subsequent to this service he, Holland, telephoned the Wall Street Journal and New York Herald Tribune to inform them of the institution of this suit. The summons and complaint are attached as an exhibit and are dated and verified respectively September 7, 1960. There is no question that the date of the newspaper publications was September 8, 1960. Although no affidavit of service of the summons and complaint on Ireland and Alleghany has been submitted on this motion, the sworn statement of Holland, a member of the bar of this Court, and counsel for Freeman at the time, is supported by the report in the Wall Street Journal on September 8, 1960, that "Mr. Ireland confirmed he had been served with the suit, which is being brought in New York State Supreme Court." For this statement to have appeared in the paper, which was on public sale on the morning of September 8, 1960, it would have had to be printed at the latest the night of September 7, 1960, the day on which Holland says he served Ireland. The affidavit of Mr. Carter, attorney for defendant on this motion, adopts and reaffirms the statements in Holland's affidavit.

 With respect to the Murchison suit filed in this Court against Kirby, Phillips and others, there is the affidavit of Huschle, an attorney in the office of the attorneys for Murchison in that suit (and present counsel) to the effect that he filed the complaint in this Court on September 8, 1960 sometime before 4:30 P.M. and that he reported the completion of such filing to a member of the firm. The records of this Court established that this complaint was filed on that day. There is a further affidavit of Cheney, Vice-President of Hill & Knowlton, press agents for Murchison, stating that on September 8, 1960 he read the Murchison complaint and discussed its allegations with counsel for Murchison and prepared a press release to announce the commencement of the action, but that he was instructed not to and did not distribute the release until he had received word from counsel of the filing of the complaint. Mr. Carter's affidavit adopts and reaffirms these statements.

 Opposed to these we have two affidavits of plaintiff and a Rule 9(g) statement reciting numerous facts as to which he says there is a genuine issue. We will consider only those that are relevant to this motion:

 1. Whether or not the publications complained of in the 6th, 7th, 9th, 10th and 11th Counts were a "fair and true report of the judicial ...

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