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March 19, 1993

JUANITA ABERNATHY, as Executrix of the Estate of Rev. Ralph David Abernathy, HARPER & ROW PUBLISHERS, INC., and DANIEL BIAL, Defendants.


The opinion of the court was delivered by: CHARLES H. TENNEY

TENNEY, District Judge:

 This libel case arises from statements made about the plaintiff, Adjua Abi Naantaanbuu ("Naantaanbuu"), in a book written by the Rev. Ralph David Abernathy ("Abernathy"). The plaintiff has brought suit against Abernathy, HarperCollins Publishers, Inc., ("HarperCollins") (known at the time of publication and sued as Harper & Row, Inc.), and the editor of the book at HarperCollins, Daniel Bial ("Bial"). This court has diversity jurisdiction pursuant to 28 U.S.C. ยง 1332 (Supp. 1992).


 In 1989, HarperCollins published Abernathy's autobiography, entitled And The Walls Came Tumbling Down ("the Book"). Among other topics, the Book discussed Abernathy's close relationship with Dr. Martin Luther King, Jr. ("King"). Abernathy had been with King on the night of April 3, 1968--the night before King was assassinated. The alleged defamation of Naantaanbuu appeared in the framework of Abernathy's discussion about that evening. Abernathy wrote:

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 into 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. . . .

 Id. at 434 (quoted in Plaintiff's Memorandum of Law in Opposition to Defendants' Motion for Summary Judgment ("Pl.'s Mem. in Opp."), at 10-11).

 Naantaanbuu's name is never mentioned in the Book. However, she claims to be the "friend" discussed in the passage, and she alleges that a number of people who believed her to be the "friend" contacted her after reading the Book. Affidavit of Adjua Abi Naantaanbuu, sworn to April 30, 1990, attached to Pl.'s Mem. in Opp. at 2, P 9 ("Naantaanbuu Aff."). *fn1" Naantaanbuu's version of what happened that night differs significantly from Abernathy's account.

 King and a number of others came to Memphis, Tennessee in early April in order to participate in a march on behalf of the Memphis sanitation workers union. Naantaanbuu states that she picked up King and other members of the Southern Christian Leadership Conference ("SCLC") at the Memphis airport on April 3. She claims that Abernathy had asked her to provide dinner at her home for the group after a meeting that evening. Id. at 2, P 5. Because of poor weather, only a handful of guests attended the dinner party. Deposition of Adjua Abi Naantaanbuu, undated, attached to Pl.'s Mem. in Opp., at 35 ("Naantaanbuu Dep."). Naantaanbuu claims that although Abernathy did lie down and fall asleep in her bedroom after having dinner and at least two drinks, there was no time during the evening at which she and King were alone in the bedroom. Id. at 84. It was nearly 3:00 a.m. by the time everyone left her house.

 Bial broadly edited the manuscript, and although he was not responsible for a detailed checking of facts in the Book, he did check against other published works for general factual consistency. Id. at 61-62. Bial's duties also entailed working with other departments at HarperCollins (including its legal department) and supervising the production process. Id. at 6. He asked Abernathy about facts in specific portions of the Book for verification; however, the excerpt at issue here was not among them. Bial also sent advance copies of the Book to HarperCollins's legal department for a "libel reading." Id. at 4l. No one at HarperCollins pointed to the excerpt as potentially controversial.

 I. Standard for Summary Judgment

 Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c).

 Summary judgment may be granted if, "after drawing all reasonable inferences in favor of the party against whom summary judgment is sought, no reasonable trier of fact could find in favor of the non-moving party." Murray v. National Broadcasting Co., 844 F.2d 988, 992 (2d Cir.), cert. denied, 488 U.S. 955, 102 L. Ed. 2d 380, 109 S. Ct. 391 (1988). Of course, the existence of some factual dispute does not automatically mean that summary judgment will be denied; for the facts in dispute must be material and present a triable issue. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). Moreover, the Supreme Court has said that Rule 56(c) "mandates the entry of summary judgment . . . against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex v. Catrett, 477 U.S. 317, 322, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986).

 Naantaanbuu has failed to submit a statement of material facts in accordance with Local Rule 3(g), which requires such a statement in opposition to a summary judgment motion. Consequently, all facts in the defendants' Rule 3(g) Statement are deemed admitted. Dusanenko v. Maloney, 726 F.2d 82, 84 (2d Cir. 1984); CL-Alexanders Laing & Cruickshank v. Goldfeld, 739 F. Supp. 158, 163 (S.D.N.Y. 1990).

 II. Plaintiff's Status

 Depending upon whether a libel plaintiff is a "public figure" or a "private figure," he or she may be required to prove that a defendant acted with "actual malice" in order to recover. The Supreme Court held in New York Times Co. v. Sullivan, 376 U.S. 254, 11 L. Ed. 2d 686, 84 S. Ct. 710 (1964), that the First Amendment required a libel plaintiff who was a public official to show that the defendant acted with actual malice in publishing defamatory statements.

 The Court expanded the New York Times standard to reach all plaintiffs who are "public figures" in Curtis Publishing Co. v. Butts, 388 U.S. 130, 18 L. Ed. 2d 1094, 87 S. Ct. 1975, reh'g denied, 389 U.S. 889, 19 L. Ed. 2d 197, 88 S. Ct. 11 (1967). In Butts, the plaintiff--a college football coach--was deemed a public figure because of his prominence in his profession. In a companion case to Butts, Associated Press v. Walker, the plaintiff became a public figure by virtue of "his purposeful activity amounting to a thrusting of his personality into the 'vortex' of an important public controversy." Id. at 155.

 Under the test laid out by this circuit in Lerman v. Flynt Distributing Co., Inc., 745 F.2d 123 (2d Cir. 1984), Naantaanbuu cannot be deemed a public figure. In Lerman, the Court of Appeals for the Second Circuit specifically defined what constitutes a limited purpose public figure. The court stated:

A defendant must show the plaintiff has: (1) successfully invited public attention to his views in an effort to influence others prior to the incident that is the subject of litigation; (2) voluntarily injected himself into a public controversy related to the subject of the litigation; (3) assumed a position of prominence in the public controversy; and (4) maintained regular and continuing access to the media.

 Id. at 136-37. The court applied these factors to the plaintiff, Jackie Collins Lerman, who was a prominent author on topics dealing largely with evolving sexual mores in society. The court found that Lerman was in fact a public figure with respect to a lawsuit in which the defendant publication had printed her name next to a picture of a nude woman.

 Because Lerman had voluntarily written works catering to the "public's interest in sexual mores," she was "deemed to have purposefully surrendered part of what would otherwise have been her protectable privacy rights, at least those related in some way to her involvement in writing her books and screenplays." Id. at 137. In considering whether Lerman had injected herself into a "public controversy" related to the defendant's publication, the court noted that "[a] public 'controversy' is any topic upon which sizeable segments of society have different, strongly held views." Id. at 138.

 The court applied the Lerman test, again ruling that the plaintiffs were public figures, in Contemporary Mission, Inc. v. New York Times Co., 842 F.2d 612 (2d Cir.), cert. denied sub nom. O'Reilly v. New York Times Co., 488 U.S. 856, 102 L. Ed. 2d 117, 109 S. Ct. 145 (1988). The plaintiffs were a group of priests about whom the defendant had published an article; the article reviewed a number of controversies from the priests' pasts. The statements at issue in the lawsuit concerned controversy over their 1971 ordination and their business activities in the mid-1980s. The plaintiffs were deemed limited purpose public figures because they "openly invited media attention" during the early 1970s and prior to that time; they published a syndicated column, produced ...

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