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WINN v. AP

November 1, 1995

GALE WINN, President of Miss Black Virginia Pageant, Inc. and MISS BLACK VIRGINIA PAGEANT, INC., Plaintiffs, against ASSOCIATED PRESS, and LOUIS BOCCARDI, President of Associated Press, 50 Rockefeller Plaza, New York, New York, Defendants.


The opinion of the court was delivered by: SPRIZZO

 SPRIZZO, D.J.,

 The Miss Black Virginia Pageant, Inc. (the "MBVP") and its President, Gale Winn (collectively "plaintiffs"), bring the instant action against the Associated Press (the "AP") and its President, Louis Boccardi (collectively "defendants"), asserting claims of libel, material misrepresentation and tortious interference with contracts. Pursuant to Rules 37 and 56 of the Federal Rules of Civil Procedure, defendants move for summary judgment, as well as dismissal and the imposition of monetary sanctions based upon willful obstruction of discovery. Plaintiffs cross-move for summary judgment, as well as sanctions.

 BACKGROUND

 Founded by Gale Winn in 1985, the MBVP was established to provide artistic, cultural and educational opportunities to children and young women in Virginia. Complaint P 3; Affidavit of Gale Winn Sworn to June 25, 1993 ("Winn Aff.") P 1. To that end, the MBVP has sponsored the annual Miss Black Virginia and Future Miss Black Virginia pageants in Norfolk, Virginia. Defendants' Statement Pursuant to Local Rule 3(g) dated August 1, 1994 ("Deft. Rule 3(g) St.") P 1. Since 1988, the two pageants have been televised by major affiliate television stations in the State of Virginia. Complaint P 3. At all times pertinent to this action, Gale Winn was the president of the MBVP. Winn Aff. P 1.

 The AP, a not-for-profit news cooperative, is comprised of member newspapers, television stations and radio stations involved in the collection, distribution and overall exchange of news reports. Deft. Rule 3(g) St. PP 2, 5. In some instances, the AP may acquire news reports through original reporting by AP staff members. Id. P 3. However, the AP most commonly acquires published news reports from its members, rewrites and edits them to some degree and then distributes them to its members. Id. In Virginia, the AP acquires approximately 70 percent of its news reports from its members and then disseminates the information on its state wire. *fn1" Id. P 4.

 The Virginian-Pilot, a morning newspaper, has been a member of the AP for many years. Deft. Rule 3(g) St. P 10. In the past fifteen years, the AP's Richmond Bureau has transmitted approximately 16,000 news reports, an average of three per day, based upon articles published by the Virginian-Pilot Id. P 11. Prior to the instant action, the AP had never received a complaint regarding any story which had originated with the Virginian-Pilot. Id.

 On August 7, 1992, the Virginian-Pilot published an article entitled "Miss Black Virginia 1991 Calls Pageant 'A Fraud'" (the "Virginia-Pilot article"). Deft. Rule 3(g) St. P 6; Affidavit of Joseph A. Taylor Sworn to July 28, 1994 ("Taylor Aff.") P 8, Exh. A. The article, which contained many direct quotations by contestants and sponsors alike, addressed the problems and controversies surrounding the Miss Black Virginia and Future Miss Black Virginia pageants. Taylor Aff. P 8, Exh. A. More specifically, the article described a deteriorating organizational structure within the MBVP and detailed alleged failed promises concerning cash and prizes, as well as declining participation and sponsorship. Id. In the article, Gale Winn responded to the allegations by labeling the charges "a malicious and slanderous attempt to sabotage the Miss Black Virginia Pageant." Id.

 As the AP correspondent in Norfolk, Virginia, Joseph A. Taylor acquires local news reports, often rewrites them to some degree and transmits them to the AP's Richmond Bureau for state-wide dissemination. Taylor Aff. P 4. On the morning of August 7, 1992, Taylor read the Virginian-Pilot article and concluded that it was "thoroughly researched and fairly presented." Id. PP 8-9. Relying entirely on the Virginian-Pilot article, Taylor prepared a news report concerning the MBVP controversy. Id. P 10. In accordance with standard AP practice, the news report was electronically transmitted to the AP's Richmond Bureau for review and edit. Id.

 That same day, Jean McNair Petkofsky, an experienced editor in the Richmond Bureau, reviewed the revised Virginian-Pilot article and concluded that "the article appeared to be thoroughly researched and fairly presented." Affidavit of Jean McNair Petkofsky Sworn to July 28, 1994 ("Petkofsky Aff.") PP 2, 5. As a result, Petkofsky made no substantive revisions to the articles originally prepared by Taylor. Id. P 5. Petkofsky approved the articles for transmission over the state wire. Id.

 At approximately 2:56 p.m., on August 7, 1992, the AP disseminated the news report concerning the MBVP controversy on the state wire for morning newspaper members. Deft. Rule 3(g) St. P 16; Taylor Aff. P 11, Exh. B-1. At approximately 12:02 a.m., on August 8, 1992, the AP retransmitted the identical news report on the state wire for afternoon newspaper members. Deft. Rule 3(g) St. P 17; Taylor Aff. P 11, Exh. B-2. On August 7, 1992, the AP also disseminated two brief broadcast stories, based upon the revised news report, on the state broadcast wire to member radio and television stations. Deft. Rule 3(g) St. P 18; Taylor Aff. P 11, Exhs. B-3 & B-4. Aside from a few omitted statements, to be discussed below, the two news reports and two broadcast stories were in substance, identical to the Virginian-Pilot article. *fn2" Taylor Aff. P 11.

 On September 1, 1992, plaintiffs commenced the instant action against the AP and its President, Louis Boccardi. *fn3" In their first cause of action, plaintiffs claim that defendants maliciously published twelve false and defamatory statements concerning the MBVP and Gale Winn. Complaint PP 1-10. In their second cause of action, plaintiffs claim that defendants published two other false and defamatory statements concerning Gale Winn. Id. P 11. In their third cause of action, plaintiffs claim that defendants made material misrepresentations concerning plaintiffs, which the public has relied upon. Id. PP 12-16. In their fourth cause of action, plaintiffs allege that defendants tortiously interfered with plaintiffs' unspecified contracts with reigning winners, past winners and sponsors by publishing the allegedly defamatory statements. Id. PP 17-20.

 On May 27, 1993, defendants moved for partial summary judgment. By order dated October 14, 1993, the Court denied that motion for summary judgment. Defendants now move for summary judgment on all issues, as well as monetary sanctions based upon the willful obstruction of discovery. Plaintiffs cross-move for summary judgment, as well as sanctions. For the reasons that follow, defendants' motions for summary judgment and sanctions are granted.

 DISCUSSION

 On a motion for summary judgment, the moving party must demonstrate "that there is no genuine issue as to any material fact and that [they are] entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). On the other hand, a party opposing a motion for summary judgment must "do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986). In determining whether a genuine issue of fact exists, a district court must resolve all ambiguities and draw ...


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