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June 6, 1984

ERIC MULLENMEISTER, Plaintiff, against SNAP-ON TOOLS CORP., Defendant.

The opinion of the court was delivered by: SOFAER



 This is a libel action by an automotive tools salesman who claims that the defendant called him a Nazi by depicting him in a cartoon wearing a helmet bearing a swastika. The defendant Snap-On Tools Corp. has moved to dismiss the action for failure to state a claim upon which relief might be granted. Fed. R. Civ. P. 12(b)(6). Snap-On contends that the complaint does not allege libel per se and that therefore the failure to plead special damages precludes relief under New York law. See, e.g., Hinsdale v. Orange County Publications, Inc., 17 n.Y.2d 284, 270 N.Y.S.2d 592, 217 N.E.2d 650 (1966); Sharon v. Time, Inc., 575 F. Supp. 1162 (S.D.N.Y. 1983); see also Fed. R. Civ. P. 9(g). Of course, "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957); see Jenkins v. McKeithen, 395 U.S. 411, 421-22, 23 L. Ed. 2d 404, 89 S. Ct. 1843 (1969).

 The plaintiff Mullenmeister worked at Snap-On as a distributor and sales manager for eight years prior to June 1982, when he left Snap-On to become district manager of the Matco Tools Corporation on Long Island.Matco competes directly with Snap-On in the sale and distribution of automotive tools and equipment on Long Island. The Long Island branch of Snap-On publishes a weekly in-house newsletter called the "Long Islander," which includes sales information for the district and is distributed to personnel in the Long Island branch and to other Snap-On branches throughout the company's eastern division. The complaint alleges that, from January 29, 1983 until the time of filing, all issues of the Snap-On newsletter, copies of which are annexed to the complaint as Exhibit 1, included a caricature of Mullenmeister which characterized him as a Nazi.The drawing, duplicated below, consists of four figures across the top of a page. The figure at the far left is loosely styled on the "Pac-Man" of video-game fame and bears the inscription "Snap-On Man." The next two resemble Pac-Man's video victims and bear the inscriptions "Mac" and "Cornwell" respectively, presumably two other Long Island competitors of Snap-On. The figure at the far right depicts a man wearing a martial helmet with a prominent spike protruding from the top -- the complaint calls it a "German military style helmet" -- and the helmet bears a swastika and the word "Matco."

 Snap-On points out that the drawing does not explicitly refer to Mullenmeister, and contends that the defamatory meaning suggested by Mullenmeister depends upon reference to extrinsic fact -- the identification of Mullenmeister as the helmeted figure. According to Snap-On, this reliance on extrinsic fact requires plaintiff to plead special damages, the absence of which requires dismissal.

 In New York a plaintiff must plead special damages unless the offending publication comprises libel per se. E.g., Rinaldi v. Holt, Rinehart & Winston, Inc., 42 N.Y.2d 369, 366 N.E.2d 1299, 397 N.Y.S.2d 943, 949 (1977); Sharon, 575 F. Supp. at 1172. Considerable confusion persists as to what constitutes libel per se. Despite much criticism, see e.g., L. Eldredge, The Law of Defamation §§ 23-28 (1978), the courts of some jurisdictions have held that if a statement is libelous on its face it is libel per se, but if reference to extrinsic fact is necessary to show the defamatory meaning special damages must be pleaded. See R. Sack, Libel, Slander, and Related Problems 94-109 (1980); 1 F. Harper & F. James, The Law of Torts § 5.9, at 373 & n. 9 (1st ed. 1956); W. Prosser, Handbook of the Law of Torts § 111, at 748 (4th ed. 1971). New York law on this point "is in disarray." R. Sack at 104; see id. at 104-09; L. Edredge § 24, at 167 n. 60. Compare Hinsdale, 270 N.Y.S. at 594-98 (libel per se despite reliance on extrinsic fact, at least where the fact "not expressed in the newspaper [is] presumably known to its readers"); with O'Connell v. Press Publishing Co., 214 N.Y. 352, 108 N.E. 556 (1915), and Blumenstein v. Chase, 100 A.D. 2d 243, 246, 437 N.YS. 2d 996, (App. Div. 2d Dep't 1984) ("libel per se [is] "a libel in which the fact of defamation is clear from the publication itself") (quoting Hogan v. Herald Co., 84 A.D.2d 470, 480, 446 N.Y.S.2d 836, 843 (4th Dep't), aff'd on opinion below, 58 N.Y.2d 630, 458 N.Y.S.2s 582 (1982)), and Ladany v. William Morrow & Co., 465 F. Supp. 870, 875 & n. 9 (S.D.N.Y. 1978).

 This disarray has no bearing, however, on defendant's claim that a reader of the newsletter would not understand the drawing to refer to Mullenmeister. Although the language of some cases might suggest otherwise, see, e.g., Cole Fischer Rogow, Inc. v. Carl Ally, Inc., 29 A.D.2d 423, 288 N.Y.S.2d 556, 561-62 (1st Dep't 1968) aff'd, 25 N.Y.2d 943, 305 N.Y.S.2d 154, 252 N.E.2d 633 (1969), the need to make a showing that the libel was "of and concerning" the plaintiff does not convert the libel into one that requires the pleading of special damages. See Le Dans, Ltd. v. Daley, 10 A.D.2d 502, 200 N.Y.S.2d 618, 620 (1st Dep't 1960); Brayton v. Crowell-Collier Publishing Co., 205 F.2d 644, 645 (2d Cir. 1953); Handelman v. Hustler Magazine, Inc., 469 F. Supp. 1048, 1050 n. 4 (S.D.N.Y. 1978); R. Sack at 101, 114; see also W. Prosser § 111, at 749; 1 E. Seelman, The Law of Libel and Slander in the State of New York 576-78 (rev. ed. 1964). Whether the complaint alleges facts sufficient to make reasonable the connection between the libel and the plaintiff is a question for the court, Springer v. Viking Press, 60 N.Y.2d 916, 470 N.Y.S.2d 579, 580, 458 N.E.2d 1256 (1983), though of course the ultimate determination whether the libel actually applies to the plaintiff is for the jury, Brayton, 205 F.2d at 645; Handelman, 469 F. Supp. at 1049. The form of the communication matters not; a drawing or photograph may libel as easily as a writing. Burton v. Crowell Publishing Co., 82 F.2d 154, 155 (2d Cir. 1936) (L. Hand, J.); see Loeb v. Globe Newspaper Co., 489 F. Supp. 481, 483, 486 n. 6 (D. Mass. 1980):

 [T]he question is whether "the libel designates the plaintiff in such a way as to let those who knew him understand that he was the person meant. It is not necessary that all the world should understand the libel; it is sufficient if those who knew the plaintiff can make out that he is the person meant."

 Fetler v. Houghton Mifflin Co., 364 F.2d 650, 651 (2d Cir. 1966) (quoting Miller v. Maxwell, 16 Wend. 9, 18 (N.Y. Sup. Ct. 1836); see Geisler v. Petrocelli, 616 F.2d 636, 639 (2d Cir. 1980). The publication need not have named Mullenmeister, so long as "'the allusion is apparent." Giaimo v. Literary Guild, 79 A.D.2d 917, 434 N.Y.S.2d 419, 419 (1st Dep't 1981).

 The allegations of the complaint, taken as true, would suffice to allow a reasonable jury to conclude that the drawing is "of and concerning" Mullenmeister. The complaint alleges that, after eight years of employment with Snap-On, Mullenmeister became Matco's district manager and thus its most prominent representative in the territory in which the newsletter is published. The complaint also alleges that Matco and Snap-On are direct competitors and that under Mullenmeister's leadership Matco has been making significant inroads into Snap-On's business. Plaintiff's name suggests that he is of German ancestry. The drawing of which he complains appeared in a publication distributed to Snap-On personnel on Long Island. A large number of these people might be expected to know of Mullenmeister as a former colleague, present competitor, or both. Though "all the world" might not understand the libel, a reasonable jury could conclude that the drawing "designates the plaintiff in such a way as to let those who knew him understand that he was the person meant." Fetler, 364 F.2d at 651 (quoting Miller, 16 Wend. at 18). The allusion to Mullenmeister is readily apparent.

 The complaint nevertheless fails, because it alleges no facts from which a reasonable jury could conclude that the drawing constituted libel per se. New York's courts have developed a consistent definition of the substantive content of such libel:

 As a general rule, a writing or printed article is libelous per se -- that is, actionable without allegation or proof of special damages -- "if it tends to expose a person to hatred, contempt or aversion, or to induce an evil or unsavory opinion of him in the minds of a substantial number of the community, even though it may impute no moral turputude to him" . . . [or] tends to disparage a person in the way of his office, profession or trade."

 Bordoni v. New York Times Co., 400 F. Supp. 1223, 1225 (S.D.N.Y. 1975) (Weinfeld, J.) (quoting Nichols v. Item Publishers, Inc., 309 N.Y. 596, 600-01, 132 N.E.2d 860 (1956) (quoting Mencher v. Chesley, 297 N.Y. 94, 100, 75 N.E.2d 257 (1947))). Before allowing an action to proceed absent sufficient pleading of special damages, a court must determine whether the libel alleged is "within the group of serious and hence presumptively damaging statements upon which the courts have traditionally allowed suit without allegations designed to establish that the claim is worth litigating." Sharon, 575 F. Supp. at 1172.

 The complaint implicates both prongs of the definition of libel per se. Mullenmeister alleges that the drawing "convey[ed] the meaning, that plaintiff was worthy of ridicule and contempt in that he was affiliated with or a member of, or belonged to the Nazi Party or that he was a Nazi." Complaint P19. Mullenmeister alleges also that the drawing has "greatly damaged and injured" him "in his reputation and standing in his profession." Id. P21. Snap-On counters that readers of this in-house, specialized publication ...

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