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Kelly v. Schmidberger

decided: November 20, 1986.

REV. CLARENCE KELLY, REV. ANTHONY CEKADA, REV. DANIEL DONAN, REV. DONALD SANBORN, PLAINTIFFS-APPELLANTS
v.
REV. FRANZ SCHMIDBERGER, REV. RICHARD WILLIAMSON, REV. HECTOR BOLDUC, WALTER L. MATT, THE ANGELUS PRESS, THE REMNANT PRESS, THE SOCIETY OF SAINT PIUS X, SOUTH-WEST DISTRICT, INC., SAINT ALOYSIUS GONZAGA FUND, AND ISSAC JOGUES FUND, DEFENDANTS, REV. FRANZ SCHMIDBERGER, REV. RICHARD WILLIAMSON, REV. HECTOR BOLDUC, THE ANGELUS PRESS, THE SOCIETY OF SAINT PIUS X, SOUTH-WEST DISTRICT, INC., SAINT ALOYSIUS GONZAGA FUND, AND ISSAC JOGUES FUND, DEFENDANTS-APPELLEES



Appeal from a judgment of the United States District Court for the Southern District of New York (Pierre N. Leval, Judge), dismissing a complaint alleging libel. Affirmed in part, reversed in part, and remanded for further proceedings.

Author: Lasker

Before: WINTER, Circuit Judge, MAHONEY, Circuit Judge, and LASKER, District Judge.*fn*

LASKER, D.J.

Plaintiffs-appellants Clarence Kelly, Anthony Cekada, Daniel Dolan and Donald Sanborn appeal from a final judgment of the United States District Court for the Southern District of New York (Pierre N. Leval, Judge) granting summary judgment to defendants and dismissing the complaint for failure to state a claim for actionable libel. Appellants allege that the district court erred, as a matter of law, in dismissing their complaint after concluding that the statements which form the basis for this action were "assertions of opinion and as such protected by the First Amendment from challenge by a libel action." Kelly v. Schmidberger, 12 Media L. Rep. 1297, 1299 (S.D.N.Y. 1985).

BACKGROUND

Kelly, Cekada, Dolan and Sanborn are ordained Roman Catholic priests who are members of a priestly society known as the Fraternity of the Apostles of Jesus and Mary, also known as the Sacerdotal Society of Saint Pius X (the "priestly society"). In addition they are directors and officers of the not-for-profit corporation, the Society of Saint Pius X, North-East District, Inc.

Defendants-appellees Franz Schmidberger, Richard Williamson and Hector Bolduc are also Roman Catholic priests and member of the priestly society. Schmidberger was the Vicar General of the priestly society and in 1983 became its Superior General. Williamson formed defendants Saint Aloysius Gonzaga Fund and St. Issac Jogues Fund, unincorporated entities which raise funds for the priestly society's seminary program. Bolduc is president of defendant Society of St. Pius X, South-West District, Inc.*fn1

In May, June and July 1983, defendants published a series of statements about plaintiffs which are the subject matter of this libel action. The publications in suit are four: letters dated May 12 and 14, 1983 written by Bolduc, and the June and July 1983 issues of the magazine The Angelus, published by defendant The Angelus Press and of which Bolduc is editor. These publications memorialize, for the most part, defendants' side in what appears to be a blistering theological debate with plaintiff priests about the role of the priestly society and the principles and beliefs its membership should embrace. Apparently because of the divergence of opinions on fundamental theological issues, this debate has taken a very personal focus.

On appeal, plaintiffs ask this court, in considering whether they have stated a claim for actionable libel, to focus particularly on language contained in Bolduc's May 14, 1983 letter. They make two arguments in support of the claim that their complaint adequately states a cause of action for libel. first, they contend that statements contained in the letter, charging that plaintiffs fraudulently placed church property "in their own names" and thus "sacked" the church, are libelous per se in that they impugn plaintiffs' integrity and fitness as priests. Second, plaintiffs contend that these statements were assertions of fact and accordingly are not protected as expressions of opinion, as the District Court held.

After reviewing Bolduc's May 14 letter, we conclude that the following statement (set in italics and quoted in context) is distinguishable from others sued upon in that it is both susceptible of a defamatory meaning and understandable as an assertion of fact rather than opinion, and therefore constitutes actionable libel:

We have to ask ourselves why these two priests involved in this particular resolution would want to have full power of attorney over every U.S. corporation of the Fraternity? It is reported an even admitted by the priests themselves that they have conveniently placed the property belonging to Archbishop Lefebvre and the Society in their own names. It would appear at this time that all properties in the North-East District are in jeopardy. One must conclude that not having been satisfied with having sacked the North-East, they wished to extend their greedy possessiveness to the South-West District as well.

As to the remaining statements alleged in the complaint to be libelous, we agree with Judge Leval that they are not actionable because they are statements of opinion.

Appellees note in their brief, but do not argue the point, that appellants failed to aver the specific aforementioned statement in their complaint. Nevertheless, this does not preclude consideration on appeal of whether the statement is actionable. Because in federal diversity cases such as this, procedural matters are governed by the Federal Rules of Civil Procedure, "the mode of pleading defamation is governed by Rule 8, Fed. R. Civ. P." Geisler v. Petrocelli, 616 F.2d 636, 640 (2d Cir. 1980). Under Rule 8(e)(1), the standards for sufficiency of the pleadings are liberal. "Each averment of a pleading shall be simple, concise, and direct. No technical forms of pleading or motions are required." Id. The test of a complaint's sufficiency is whether it is detailed and informative enough "to enable defendant to respond and to raise the defense of res judicata if appropriate." Geisler, 616 f.2d at 640. Complaints which do not plead the allegedly defamatory statements in haec verba have in the past been held sufficient. See Pirre v. Printing Developments, Inc., 432 F. Supp. 840, 843 (S.D.N.Y. 1977). The central concern is that the complaint "afford defendant sufficient notice of the communications complained of to enable him to ...


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