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GORDON v. NBC

August 2, 1968

Jacob J. GORDON, Plaintiff,
v.
NATIONAL BROADCASTING COMPANY, Inc., Defendant



The opinion of the court was delivered by: POLLACK

POLLACK, District Judge.

 The defendant, National Broadcasting Company, Inc., moves for dismissal of the complaint for failure to set forth the basis of this Court's jurisdiction (F.R.Civ.P. 8[a]); lack of subject matter jurisdiction (F.R.Civ.P. 12[b][1]); and failure to state a claim upon which relief can be granted (F.R.Civ.P. 12[b][6]). Alternatively, defendant seeks an order pursuant to F.R.Civ.P. 12(f) striking certain allegations in the complaint.

 The complaint alleges that the plaintiff is a "certified candidate" for the Presidency of the United States, that the defendant, "in violation of its privilege [to utilize the airwaves of these United States] is engaged in a * * * plot to control * * * elections * * * [and] has imposed a * * * news blackout on * * * Plaintiff's activities as a * * * candidate * * *" in violation of the law.

 The plaintiff further alleges that the defendant controls the Federal Communications Commission; that the defendant's imposition of the news blackout has adversely affected the election for the office of the Presidency, denying to the people of the United States knowledge of the plaintiff's platform, causing damage to the nation, the death of thousands of soldiers in Vietnam, and billions of dollars in worthless defense expenditures, as well as irreparable loss of national prestige. The plaintiff seeks an immediate hearing, injunctive relief against defendant's alleged news blackout of his candidacy, "all time due him and illegally withheld", "nominal" damages of $1,000,000, and punitive damages in the amount of $1,000,000,000.

 1. Failure to allege grounds for subject matter jurisdiction:

 Rule 8(a) of the Federal Rules of Civil Procedure requires that:

 
"A pleading which sets forth a claim for relief * * * shall contain (1) a short and plain statement of the grounds upon which the court's jurisdiction depends * * *."

 Failure to comply with this requirement results in dismissal of the complaint, unless the defect is corrected by amendment. 1A Barron & Holtzhoff, Federal Practice & Procedure § 254 (1960); Battaglia v. General Motors Corp., 169 F.2d 254 (2d Cir. 1948).

 Whether or not this Court has subject matter jurisdiction of this action, the complaint contains no "short and plain statement" of the grounds thereof as is contemplated by Rule 8(a).

 2. Subject matter jurisdiction:

 The defendant asserts that the allegations of the complaint contain no claim as to which subject matter jurisdiction has been conferred on the United States District Courts, 28 U.S.C. §§ 1331-1361, and that the complaint must therefore be dismissed pursuant to F.R.Civ.P. 12(b)(1).

 The plaintiff seeks to lift a blackout allegedly imposed upon him by the defendant; he also seeks nominal and punitive damages and the payment of "equal time". He asserts that he is entitled to that relief because the defendant has abused its privilege to use the public airways, and has acted in violation of the law.

 Since the control of the national airwaves is a matter of federal statutory and administrative law, it cannot be said that federal subject matter jurisdiction is lacking in the allegations of the complaint. It remains to be determined, however, whether in the exercise of its jurisdiction this Court should find ...


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