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CARTO v. BUCKLEY

November 25, 1986

WILLIS A. CARTO and LIBERTY LOBBY, INC., Plaintiffs,
v.
WILLIAM F. BUCKLEY, JR. and DOUBLEDAY & COMPANY, INC., Defendants



The opinion of the court was delivered by: WARD

WARD, District Judge.

Plaintiffs Willis A. Carto and Liberty Lobby, Inc. ("Liberty Lobby") commenced this diversity action against defendants William F. Buckley, Jr. and Doubleday & Company, Inc. ("Doubleday") to recover damages for the publication in 1983 of a book that contained allegedly libelous statements. The defendants now move to dismiss the complaint pursuant to Rule 12 (b)(6), Fed. R. Civ. P., or, alternatively, for summary judgment pursuant to Rule 56, Fed. R. Civ. P. For the reasons that follow, the court grants defendants' motion for summary judgment.

 BACKGROUND

 In 1983, Doubleday published a book written by Buckley entitled Overdrive: A Personal Documentary. The book contained the following paragraph:

 A note from Howard Hunt. He lodged a libel suit several years ago against The Spotlight, a publication of the Liberty Lobby, of which a principal figure is Willis Carto. The Spotlight's distinctive feature is racial and religious bigotry. Howard writes, "So far Carto has avoided deposition by staying on the West Coast, allegedly; this delays my libel suit's progress." He says he has heard from Carto's lawyer that "Willis Carto . .. is by coincidence a target of yours." More exactly, it is the other way around, Carto having attacked me and National Review for years, presumably upon learning that we thought the Protocols of the Learned Elders of Zion a forgery. We were finally ourselves forced to sue Carto (or, more exactly, countersue), and the stuff (depositions, motions) is in the hands of the judge the slowest judge in history. (A few weeks later, Howard called me in high exultation to say that the jury had awarded him a judgment of six hundred and fifty thousand dollars. The Spotlight had alleged about Hunt, among other jocularities, that he would probably be implicated in the assassination of John Kennedy.)

 W. F. Buckley, Jr., Overdrive: A Personal Documentary 57-58 (1983).

 Liberty Lobby, an incorporated not-for-profit lobbying organization that publishes the weekly paper Spotlight, contends that the sentence "The Spotlight's distinctive feature is racial and religious bigotry" defamed it. Carto, the founder of Liberty Lobby, similarly contends that the phrase ". .. Carto having attacked me [Buckley] and 'National Review' for years, presumably upon learning that we thought the Protocols of the Learned Elders of Zion a forgery" likewise defamed him. On October 6, 1983, the plaintiffs, through their counsel, demanded in writing that the defendants retract the allegedly defamatory statements. The defendants refused to do so.

 On March 14, 1984, the plaintiffs filed this libel action requesting both compensatory and punitive damages. The complaint charges that in making the statements referred to above

 the defendants intended to and did convey the claim and impression that the plaintiffs Willis A. Carto and Liberty Lobby, Inc. give credence to the so-called Protocols of the Learned Elders of Zion, which are in fact a monstrous anti-Semitic forgery, and therefore the defendants intended to and did convey the claim and impression that the plaintiffs Willis A. Carto and Liberty Lobby, Inc., support and advocate anti-Semitism of the most ugly sort.

 Complaint at P 11. Defendants now move to dismiss the complaint pursuant to Rule 12 (b)(6), Fed. R. Civ. P., or, alternatively, for summary judgment pursuant to Rule 56, Fed. R. Civ. P., contending first that the passages at issue qualify as constitutionally protected opinion, and second that the plaintiffs cannot establish by clear and convincing evidence that the defendants published the statements with knowledge of falsity or reckless disregard of the truth.

 DISCUSSION

 Because it has examined matters outside the pleadings, the Court will consider the present motion as one for summary judgment. A Court may grant the extraordinary remedy of summary judgment only when it is clear both that no genuine issue of material fact remains to be resolved at trial and that the movant is entitled to judgment as a matter of law. Rule 56, Fed. R. Civ. P. In deciding the motion, the Court is not to resolve disputed issues of fact, but rather, while resolving ambiguities and drawing reasonable inferences against the moving party, to assess whether material factual issues remain for the trier of fact. Knight v. U.S. Fire Insurance Co., 804 F.2d 9, slip. op. at 185 (2d Cir. 1986) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S. Ct. 2505, 2509-11, 91 L. Ed. 2d 202 (1986)). While the party seeking summary judgment bears the burden of demonstrating the lack of material factual issues in dispute, Schering Corp. v. Home Insurance Co., 712 F.2d 4, 9 (2d Cir. 1983), "[t]he mere existence of factual issues -- where those issues are not material to the claims before the court will not suffice to defeat a motion for summary judgment." Quarles v. General Motors Corp., 758 F.2d 839, 840 (2d Cir. 1985) (per curiam).

 While the movant faces a difficult burden to succeed, motions for summary judgment, properly employed, permit a Court to terminate frivolous claims and to concentrate its resources on meritorious litigation. Knight v. U.S. Fire Insurance, supra, slip op. at 186. The motion then

 is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed to secure the just, speedy and inexpensive determination of every action." Fed. Rule Civ. Proc. 1.... Rule 56 must be construed with due regard not only for the rights of persons asserting claims and defenses that are adequately based in fact to have those claims and defenses tried to a jury, but also for the rights of person opposing such claims and defenses to demonstrate in the manner provided by the Rule, prior to trial, that the claims and defenses have no factual basis.

 Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548, 2555, 91 L. ...


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