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LERMAN v. CHUCKLEBERRY PUBL.

June 3, 1982

JACKIE COLLINS LERMAN, Plaintiff,
v.
CHUCKLEBERRY PUBLISHING, INC., and PUBLISHERS DISTRIBUTING CORP., Defendants; JACKIE COLLINS LERMAN, Plaintiff, v. FLYNT DISTRIBUTING CO., INC. Defendant


Henry F. Werker, D.J.


The opinion of the court was delivered by: WERKER

MEMORANDUM DECISION

HENRY F. WERKER, D.J.

 These two actions are before the court on (1) plaintiff's motions to amend the complaint in Lerman v. Chuckleberry, No. 80 Civ. 1658 to add Flynt Distributing Company ("Flynt") as a party defendant; (2) plaintiff's motion to consolidate the two actions; and (3) plaintiff's and Flynt's cross-motions for partial summary judgment in Lerman v. Flynt Distributing Co., No. 81 Civ. 2281.

 BACKGROUND

 The first of these two actions, Lerman v. Chuckleberry Publishing Inc., No. 80 Civ. 1658 (the "Chuckleberry action") was commenced by plaintiff in March, 1980, against Chuckleberry Publishing Inc. ("Chuckleberry") and Publishers Distributing Co. ("PDC"), for libel, violation of the right of publicity and invasion of privacy arising from the publication of the May 1980 issue of "Adelina" magazine. That action has been the subject of two prior opinions and reader familiarity with them is assumed. *fn1"

 The second action was commenced by plaintiff in April, 1981, against Flynt to recover damages for libel, violation of the right of publicity and invasion of privacy. The action arises from Flynt's alleged role in distributing the June 1980 and January 1981 issues of "Adelina" which, as part of an advertisement for the sale of "Adelina", contained reprints of the allegedly libelous cover of the May, 1980, issue of "Adelina".

 PLAINTIFF'S MOTION TO AMEND THE COMPLAINT

 Plaintiff has moved in the Chuckleberry action to amend the complaint to assert causes of action against Flynt for libel, invasion of privacy under sections 50 and 51 of the N.Y. Civil Rights Law, and violation of the right of publicity based upon Flynt's alleged participation in the distribution of the May 1980 issue of "Adelina". For the reasons that follow, this motion is granted.

 Plaintiff asserts that she commenced this action against Chuckleberry and PDC on the basis of the Table of Contents of "Adelina" which states that "Adelina" was published by Chuckleberry and distributed by PDC. She further asserts that it was not until she received Flynt's response to interrogatories in September 1981, in the Flynt action that she became aware of Flynt's role in the distribution of the May 1980 issue of "Adelina". See Exhibit D to affid. of Jeffrey Daichman, sworn to December 24, 1981.

 Flynt has opposed the motion to amend on the ground that plaintiff should not be permitted to avoid the one year statute of limitations on her claims arising from publication of the May 1980 issue of "Adelina" by amending the complaint in the Chuckleberry action and relying on the relation-back provision of Rule 15(c).

 Flynt further argues that the motion to amend should be denied because (1) the amendment is unsupported factually; (2) it is a tactical effort to circumvent the possible denial of plaintiff's motion to consolidate; and (3) amendment at this juncture would be prejudicial to Flynt.

 Flynt's argument that the proposed amendment is unsupported factually is unpersuasive. Unless a proposed amendment is clearly frivolous or legally insufficient on its face, the substantive merits of a claim or defense should not be considered on a motion to amend. Nyscoseal, Inc. v. Parke, Davis & Co., 28 F.R.D. 24, 25 (S.D.N.Y. 1961). Plaintiff's claims here are not frivolous. They are based on an admission contained in Flynt's answers to interrogatories. In light of that admission, the affidavit of Gerald Awang, sworn to January 28, 1981, merely raises questions of fact and credibility to be determined on the merits and not at this stage of the litigation.

 Flynt's contentions with respect to consolidation also are without merit. The court's analysis must rest on the relative merits of the parties' contentions with an eye to judicious resolution of their claims rather than on an evaluation of the tactical maneuverings of their attorneys.

 Similarly, Flynt's allegation of prejudice from amendment at this point in the proceedings is unavailing. The fact that the amendment may add another issue to the case and require further pre-trial proceedings is an insufficient basis to deny amendment under the circumstances presented by this case. In the absence of specific and compelling allegations of prejudice, such as some undue disadvantage in the presentation of a defense to the claims sought to be asserted, leave to amend should be granted. See Iodice v. Calabrese, 345 F. Supp. 248, 259 (S.D.N.Y. 1972), aff'd in part, rev'd in part on other grounds, 512 F.2d 383 (2d Cir. 1975).

 Flynt's contention with respect to the statute of limitations also is unavailing. If plaintiff had never commenced the subsequent action against Flynt for the June, 1980, and January, 1981, issues of "Adelina" there would be little doubt that plaintiff could now move to amend her original complaint to add Flynt as a party defendant in the Chuckleberry action and rely on the relation-back doctrine. Simply because she has commenced a separate ...


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