The opinion of the court was delivered by: Sweet, District Judge.
Plaintiffs Sean and Janet McNally (the "McNallys" or "McNally")
have moved pursuant to Rule 15(a) Fed.R.Civ.P. for leave to amend
their complaint in their defamation action against James Yarnall
("Yarnall") to include as a defendant Yarnall's lawyer Peter R.
Stern ("Stern"), and the law firm of Berger & Steingut, based on
certain allegedly libelous statements made by Stern. For the
reasons set forth below, the motion is denied.
The McNallys are residents of the State of New Jersey, and, for
the past fourteen years, have been engaged in the purchase and
sale of the works of the artist John La Farge ("La Farge").
McNally is also currently writing a book on La Farge and the
history of his works. The McNallys have offered certain of their
art works for sale through the Graham Gallery in New York City
and at an exhibition of La Farge works sponsored by the William
Vareika Fine Arts Gallery ("Vareika") in Newport, Rhode Island.
In the past several years, articles in The New York Times and
in The Los Angeles Times, as well as Associated Press wire
service stories have mentioned or quoted McNally on the subject
of stained glass and notified the public of upcoming lectures by
McNally on La Farge.
Yarnall is a resident of the District of Columbia. An art
historian specializing in the works of La Farge, he holds Ph.D.
and M.A. degrees in art history from the University of Chicago.
Yarnall also has a B.S. Equivalent certificate of Accomplishment
in computer programming from the Graduate School of the U.S.
Department of Agriculture in Washington, D.C. Yarnall operates a
company called Museum Systems Enterprises ("MuSE"), which
provides computer database services to various museums.
Stern, a New York resident, is Yarnall's lawyer and a partner
in the firm of Berger & Steingut, a partnership with offices in
New York City.*fn1
The Museum is a not-for-profit corporation organized under the
laws of the State of New York and located in Manhattan.
The McNallys commenced this defamation and tortious
interference with business relations action in the United States
District Court for the District of New Jersey on November 27,
1989. By order of April 23, 1990, the New Jersey District Court
transferred the action to the Southern District of New York
pursuant to 28 U.S.C. § 1406(a). The New Jersey District Court
issued the order of April 23 in lieu of granting a motion by
Yarnall, a resident of the District of Columbia, to dismiss as to
him for lack of jurisdiction.
On August 2, 1990, the Museum filed its motion for summary
judgment. The parties agreed to an adjournment of the motion
until December 7, 1990 to accommodate the scheduling of
discovery. A subsequent agreement adjourned the return date of
the motion to February 11, 1991, when oral argument was heard. In
an opinion of May 9, 1991, this court granted the Museum's
summary judgment motion. 764 F. Supp. 838.
On December 31, 1990, the McNallys filed this motion to amend.
On that same date, the McNallys filed a libel action against
Stern in New York State Court. The state court libel action is
based on the same alleged statements that are put forth here as
grounds for amending the complaint.
Oral argument on the motion to amend was heard on February 15.
The facts in the underlying action are set forth in this
court's opinion of May 9 granting the Museum's summary judgment
motion (the "Opinion"), familiarity with which is ...