The opinion of the court was delivered by: HAIGHT
MEMORANDUM OPINION AND ORDER
In this action for defamation brought by a public figure plaintiff and arising out of a television program and subsequent magazine article, defendants Lando, Wallace, and Columbia Broadcasting System, Inc. ("CBS") moved for summary judgment dismissing the complaint. This Court granted the motion in part and denied it in part, thereby requiring trial on two particular statements ascribed to defendants. That decision is reported at 596 F. Supp. 1178 (S.D.N.Y. 1984), with which familiarity is assumed.
Plaintiff and defendants now cross move for reargument pursuant to Civil Rule 3(j) of this Court. Plaintiff asks that the complaint be entirely reinstated. Defendants ask that it be entirely dismissed. Both motions are denied.
Rule 3(j) provides that to succeed on a motion for reargument, the moving party bears the burden of "setting forth concisely the matters or controlling decisions which believes the court has overlooked." Implicit in that obligation is the conclusion that if such "matters or controlling decisions" are not demonstrated, the motion fails.
As for plaintiff, his further extensive briefs seek to reargue, without making the requisite showing, a considerable number of the adverse determinations contained in the Court's prior opinion. Only one argument warrants consideration here. That is the contention appearing in plaintiff's Main Brief on Reargument at 4:
"Plaintiff's position throughout this litigation, also advanced in his opposing papers, has been that he was defamed by the program and article as a whole and not simply by isolated statements removed from that overall defamatory context . . . . By failing to consider plaintiff's contentions regarding the defamations caused by the program and article as a whole, the court disregarded controlling precedent which holds that libel actions may be grounded upon the defamatory import of the publication as a whole."
Plaintiff supports this indictment by citing the string of cases set forth in the margin.
The fault in the Court's prior opinion, as perceived by plaintiff, is that the Court "erroneously treated plaintiff's position regarding the defamations at issue as restricted to eleven statements," id. at 2. That is a reference to eleven particular statements which, in his brief opposing summary judgment, plaintiff culled from the television program and the article and alleged were defamatory, false, and published with knowledge of falsity. The Court's prior opinion considered each of those eleven statements with respect to whether or not they were "actionable," that is, "susceptible of imposing liability at the hands of a reasonable jury properly instructed on the law." 596 F. Supp. at 1198.
No district judge particularly enjoys being told that he has "disregarded controlling precedent." To avoid that professional embarrassment, the judge relies (a) upon the briefs of counsel, and (b) his own knowledge of the law, as supplemented by independent research. The judge reasonably relies upon counsel to call to his attention "controlling precedent" bearing upon the issues at hand. These reflections are prompted by the fact that none of the nine cases plaintiff now identifies as controlling precedents which this Court disregarded was cited in plaintiff's 282-page brief in opposition to summary judgment, which cited 106 other cases. Nor was the argument presently put forward included in that brief, although the defendants, in their motion for summary judgment following extensive discovery, launched a broad scale attack upon the viability of plaintiff's claims.
If the plaintiff's new argument were sound, and the authorities now cited for the first time apposite, his motion for reargument would pose a question of substance, notwithstanding the Court's perhaps understandably puzzled state at not having been told about them before. In fact, however, the argument is not sound, and the cases do not focus upon the analysis pursued in the Court's prior opinion. In consequence, what emerges is not a puzzling case of advocate's amnesia, but an unsuccessful effort to recast claims which discovery has demonstrated are not actionable.
The cases now cited by plaintiff stand essentially for the proposition that whether or not statements are capable of a defamatory interpretation often turns upon the context in which they appear. It is quite true, as plaintiff argues on the present motion, that "libel actions may be grounded upon the defamatory import of the publication as a whole." The cases cited by plaintiff, fn. 1 supra, illustrate the working of that rule.
Golden Bear Distributing Systems of Texas v. Chase Revel, Inc. did not involve a public figure plaintiff. Hence the measure of liability was negligence, not malice, as in the case at bar. The holding upon which plaintiff relies related to the initial inquiry of whether the article in question contained an actionable defamatory meaning. The purported quotation from the case (plaintiff's Main Brief on Reargument at 5) does not in fact appear in the Fifth Circuit's opinion; what does appear is this:
"The evidence presented at trial suggests that all the individual statements in the magazine article concerning Golden Bear of California's fraudulent activities and Golden Bear of Texas' representations to potential investors were true. The basis of the libel lies in the juxtaposition of truthful statements about one company with truthful statements about the ...