United States District Court, Southern District of New York
October 1, 1990
ADJUA ABI NAANTAANBUU, PLAINTIFF
REVEREND RALPH DAVID ABERNATHY, HARPER & ROW PUBLISHERS, INC., AND DANIE BIAL, DEFENDANTS.
The opinion of the court was delivered by: Haight, District Judge:
MEMORANDUM OPINION AND ORDER
This is an action for libel. It arises out of the autobiography of
defendant Ralph Abernathy, published by defendant Harper & Row
Publishers, Inc. and edited by defendant Daniel Bial. Plaintiff is a
resident of Memphis, Tennessee, who claims to have been defamed by a
passage in the book. Defendants move to dismiss her complaint under Rule
12(b)(6), F.R.Civ.P., on the ground that as a matter of law, the alleged
defamatory words are not "of and concerning" plaintiff.
The late Rev. Ralph Abernathy was for many years a close associate of
Dr. Martin Luther King, Jr. Abernathy wrote an autobiography entitled
"And the Walls Came Tumbling Down." The book was edited by defendant Bial
and published by defendant Harper and Row in 1989. After plaintiff
instituted this action, Abernathy died. The other defendants filed a
suggestion of death on the record pursuant to Rule 25(a), and plaintiff
has moved to substitute Abernathy's estate as party defendant under Rule
25(a)(1). I grant that motion herewith.
Dr. King was assassinated in Memphis in April, 1968. Plaintiff claims
she was defamed by the following passage from Abernathy's book, which
describes events occurring on the night before Dr. King's assassination:
A "friend" of Martin's invited us to have steaks at
her house, three of us — Martin Bernard Lee, and
me. When we got there, we found three ladies waiting.
Martin's friend had provided dinner partners for
Bernard and me, and we had a very heavy meal along
with some light conversation.
I was exhausted at that stage of the evening, and
since I was a happily married man, I was not
particularly interested in developing a closer
relationship with my companion. Nor was Bernard Lee,
as best I recall. I remember trying to keep up my part
of the conversation during the meal and then, when the
women went back into the kitchen, beating Bernard to
an easy chair with an ottoman and falling fast
asleep. When I awoke, I saw an empty living room,
except for Bernard stretched out on the sofa.
Shortly, thereafter, Martin and his friend came out of
the bedroom. The other women had long since left. It
was after 1:00 a.m.
We drove back through the rain, which hadn't slackened
all evening, Solomon Jones leaning forward,
occasionally wiping off the windshield, which was
clouding up on the inside. We didn't talk and by the
time we drove back to the motel parking lot, I had
long since fallen asleep again, a gift I have always
had that has enabled me to keep going for days at a
time, without losing much needed energy. Martin on the
other hand, never took catnaps and never ran out of
gas. When we arrived at the motel, the level of his
energy would again be tested . . .
Plaintiff alleges that she is the person referred to in this passage as
a "`friend' of Martin's" and the hostess of the gathering described in
the passage. She claims that she has been defamed by the false impression
conveyed by the passage that she "had engaged in adulterous behavior and
sexual relations with Dr. Martin Luther King on the last night of his
life." Complaint, ¶ 8.
Plaintiff alleges that she has been a human rights activist for many
years, including civil rights activities in Memphis in 1968. She
currently teaches and lectures
in Memphis to Afro-American children about their heritage. She works as a
beautician and barber. Id., ¶ 3.
Abernathy's book nowhere refers to plaintiff by name. Nor is Dr. King's
"friend and hostess" identified in the book by name, physical
description, residence, or occupation.
In these circumstances, defendants contend: "There is no way a
reasonable reader of the Book could believe that Ms. Naantaanbuu (or any
other specific individual) was the person described as hosting the dinner
party for Dr. King some 22 years ago." Affidavit of counsel in support of
motion at ¶ 5.
Plaintiff has submitted an affidavit in opposition to defendants'
motion. She avers that she has been active in the civil rights movement,
with the Southern Christian Leadership Conference and other grassroots
movements, for more than 30 years. On April 3, 1968 she was selected,
among other volunteers, to pick up Dr. King and his entourage, who were
coming to Memphis for a rally planned for that evening and the next day.
On the evening of April 3, 1968, plaintiff prepared at her home an
evening meal for Dr. King and several members of his staff. That dinner,
plaintiff avers, is the one referred to in the Abernathy book, Plaintiff's
affidavit at ¶ 5.
Plaintiff further avers that after publication of the Abernathy book,
the following transpired:
I received more than thirty phone calls from various
friends and acquaintances advising me that Rev.
Abernathy had stated that I was Dr. King's "friend",
and that I had sex with him during a dinner held at my
home. Although my name was not mentioned, it was clear
to the persons who contacted me, that Rev. Abernathy
was referring to me in the book. It was also clear to
those persons that there was a clear implication that
being Dr. King's "friend" implied an ongoing sexual
relationship with him. Id. at ¶ 9.
Plaintiff includes in her affidavit a list of 64 individuals, 63 with
Memphis addresses (one present address is unknown) who plaintiff refers
to as "some, but not all of the persons who contacted me and advised me
that I was the person referred to in the book. . . . Each of those
persons is willing to testify that they knew that I was the person
referred to Rev. Abernathy's book without him having to name me." Id. at
The parties agree that the substantive law of New York controls in this
The Second Circuit, construing New York law, has held that allegedly
defamatory material must be "of and concerning" the plaintiff; this is an
essential element of an action for libel. Geisler v. Petrocelli,
616 F.2d 636, 637 (2d Cir. 1980); see also Fetler v. Houghton Mifflin
Company, 364 F.2d 650, 651 (2d Cir. 1966); Julian v. American Business
Consultants Inc., 2 N.Y.2d 1, 17, 155 N.Y.S.2d 1, 18, 137 N.E.2d 1,
In Fetler Judge Feinberg reached all the way back to Miller v.
Maxwell, 16 Wend. 1, 9, 18 (N.Y.Sup.Ct.1836) for an articulation of the
rule. "Stated more fully," Judge Feinberg wrote at 364 F.2d 651, the
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
In Geisler, plaintiff alleged that she played a recognizable and
defamatory role in a work of fiction "concerning the odyssey of a female
transsexual athlete through the allegedly corrupt and corrupting world of
the women's professional tennis circuit." 616 F.2d at 638. Like the
defendants at bar, the defendants in Geisler moved to dismiss the
complaint under Rule 12(b)(6). They contended that the complaint did not
sufficiently aver that the offending material was "of and concerning" the
The court of appeals applied federal pleading requirements under Rule 8
to the complaint, and also referred to the familiar formulation in Conley
v. Gibson, 355 U.S. 41, 45, 78 S.Ct. 99, 101, 2 L.Ed.2d 80(1957), that "a
complaint should not be dismissed for insufficiency unless it appears to
a certainty that plaintiff is entitled to no relief under any state of
facts which could be proved in support of the claim." Id. at 639, 640.
The Second Circuit regarded the complaint as sufficient under Rule 8,
"which requires only that plaintiff's charges be set forth in a short and
concise statement detailed only to the extent necessary to enable
defendant to respond and raise a defense of res judicata if appropriate."
Id. at 640.
The Second Circuit in Geisler, having referred to these general
principles, went on to observe that in cases such as the one at bar
. . . it has long been the rule that extrinsic evidence
is admissible to buttress the claim that the
defamation is "of and concerning" the plaintiff and
the fact that resort to such evidence may be necessary
does not defeat the claim. Ibid.
For that proposition the Second Circuit cited Brayton v. Crowell-Collier
Publishing Co., 205 F.2d 644
, 645 (2d Cir. 1953), where Judge Frank said
in affirming a judgment for plaintiff after trial:
Contrary to defendant's contention, under New York
decisions, (a) whether a written defamatory statement
applies to a plaintiff is a jury question; (b) this
fact may be proved by extrinsic evidence; and (c) the
need for the introduction of extrinsic evidence for
such a purpose — as distinguished from the use
of such evidence to show that injury resulted from
apparently innocuous language — does not convert
a defamatory statement which would otherwise be
actionable without proof of special damage into one
for which recovery can be had only upon proof of such
damage. (footnote omitted).
In Geisler the Second Circuit reversed the district court's dismissal
of the complaint under Rule 12(h)(6). In view of the admissibility of
extrinsic evidence on the issue of whether a defamatory statement applies
to the plaintiff, Judge Meskill concluded for the Geisler court that
plaintiff "is entitled to develop and present a full evidentiary record on
the issue." Relevant extrinsic evidence, Judge Meskill continued, would
include "affidavits from individuals stating that upon reading or hearing
of [the novel] they believed the protagonist to be derived from
appellant." Ibid (footnote omitted). The Second Circuit concluded Geisler
with this analysis:
Had such an additional submission been made by
appellant pursuant to the dismissal motions, the trial
judge could have construed the application as a motion
for summary judgment, Rule 12(b), Fed.R.Civ.P., and
evaluated the sufficiency of the evidence according to
procedures prescribed under Rule 56, Fed.R.Civ.P.,
cf. Hernandez v. Lattimore, 612 F.2d 61, 64 (2d Cir.
1979). The opinion below indicates however, that in
the absence of this additional material, the court
treated the motions in the manner in which they were
styled, and appropriately confined its gaze to the
averments of the complaint. Since the pleading upon
its face was sufficient, we believe appellant was
entitled to present additional material in support of
her claims, and their dismissal pursuant to Rule
12(b)(6) was in error. Consequently, the judgment is
vacated and the case remanded for further
proceedings. Id. at 640-41 (footnote omitted).
For the proposition that affidavits of individuals identifying
plaintiff with the writing were probative, the Geisler court referred at
640 n. 6 to Fetler, supra. Fetler arose upon a motion for summary
judgment. The district court dismissed an action for libel, based upon a
novel, on the ground that the character could not reasonably have been
considered a portrayal of the plaintiff. Plaintiff in Fetler submitted
four affidavits from readers who "recognized plaintiff in the novel."
Plaintiff also submitted an affidavit "stating that at least twelve of
his students brought him a
review of the book in a local newspaper and asked him if the book was
about his family." 364 F.2d at 653 and 653 n. 8. Those affidavits
contributed to the court of appeals' conclusion that summary judgment was
Procedurally the case at bar is closer to Geisler since it arises upon
a motion to dismiss under 12(b)(6) rather than a motion for summary
judgment under rule 56. However, under the 1946 amendment to Rule 12(b),
the court may consider matters outside the pleading and thereupon treat
the motion as one for summary judgment. See 2A Moore's Federal Practice
(2nd Ed. 1989) at 12-76. Geisler teaches that the additional submissions
need not be made by the defendant seeking dismissal under Rule 12(b)(6);
the case expressly sanctions submissions outside the pleading by a
plaintiff in an effort to defeat the motion to dismiss on the very ground
urged at bar.
Therefore I consider the present plaintiff's affidavit. Defendants
argue that the affidavit and the communications from others referred to
therein cannot cure deficiencies appearing on the face of the complaint.
I do not agree. It is the settled rule in the Second Circuit, construing
New York law, that a defamation plaintiff may avail herself of extrinsic
evidence to establish a claim that the material was "of and concerning"
her. Plaintiff's affidavit is accordingly relevant to a material issue.
Her affidavit is also admissible. She has personal knowledge of the
declarations made by the individuals who telephoned her following the
publication of the Abernathy book, and the declarations themselves are,
arguably at least, admissible under Rule 803(1), (2) or (3) of the
Federal Rules of Evidence.
Having considered plaintiff's affidavit, defendants' motion is
converted to one for summary judgment under Rule 56, and by this Opinion
I give defendants the requisite notice of that transformation. Defendants
may file any additional submissions within the Rule 56 context within
fourteen (14) days of the date of this Order.
I could take a different course and dismiss the compliant under Rule
12(b)(6) only if more recently decided New York cases compelled the
conclusion that the cited Second Circuit cases no longer conformed to New
York defamation law. Defendants cite a number of New York cases, but I do
not read any of them to permit, let alone compel that conclusion. As
Judge Feinberg observed in Fetler: "The nub of the matter is that in this
area the precise facts of the specific case must be carefully examined
. . ." 364 F.2d at 653. The case at bar arises out of a particular set of
facts. The passage in question is concerned with a finite and brief
period of time: the evening before Dr. King's assassination. It deals with
events at only one location: the place where Dr. King had dinner that
evening. The element of whether or not this material was "of and
concerning" plaintiff depends upon whether those who knew the plaintiff
and the attendant circumstances could make out that she was the person
referred to in the passage. It would be entirely inappropriate under
controlling Second Circuit authority to dismiss plaintiff's suit with
prejudice before giving her an opportunity to adduce evidence probative of
the very point upon which defendants founded their motion to dismiss.
Defendants' motion to dismiss the complaint under Rule 12(b)(6) is
accordingly denied. The Estate of the late Ralph David Abernathy is
substituted as a party defendant. The case will proceed under Rule 56,
consistent with this Opinion. Defendants may well conclude that the case
is not appropriate for a motion for summary judgment.
It is SO ORDERED.
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