The opinion of the court was delivered by: FOX
TO: THE HONORABLE JED S. RAKOFF, U.S.D.J.
Plaintiff discovered the allegedly foul deed in this matter through an endorsement on her TCI Cable of Westchester ("TCI") cable television bill for 12/95-1/96:
In accordance with FCC "must carry" regulations, on February 1, 1996, WRNN [Kingston, New York] will be added to our lineup on channel 19. The electronic program guide presently on this channel will move to channel 8, replacing the system wide public access channel. Public access (as well as education and government access) programming will still be available on your local municipal access channels.
Complaint P26 at 9. A letter from TCI to Plaintiff, dated December 15, 1995, which Plaintiff claims she did not receive until December 28, 1995, reiterated the "must carry" status of WRNN and advised that programming on channel 19 would be moved to channel 8 and that,
A channel will be kept available at all times for the distribution of public access program materials in every community [TCI] serves in Westchester. Enclosed is a list of all the local municipality public access contacts.
The letter and list have been included as exhibits within the body of the complaint.
According to Plaintiff, who is the producer and host of the program, "A Chat With Glendora", this development alters the method for the distribution and broadcast of her show. Essentially she charges that TCI, a cable provider in communities in Westchester County has deprived all public access producers of the only system wide public access channel. The net result is the onerous burden of having to make seventeen (17) "dubs" of each program, which must then be distributed to seventeen (17) individual local access channels, which she surmises may not wish to carry this load because they cannot "afford the payroll to cablecast these programs dumped on them." Complaint P40. The time necessary to accomplish this endeavor is alleged to be thirty-four (34) hours plus gasoline, wear and tear on Plaintiff's automobile and parking fees. She further alleges that the motive behind the change is to persuade the public to hate the Federal "must carry" rules and asserts that TCI could put WRNN on one of its revenue producing channels. From this event Plaintiff derives six (6) claims for relief: (1) Because the operation and administration of the public access channel in Westchester communities is an exclusive governmental function, TCI's usurpation of channel 8 constitutes state action which violates Plaintiff's First and Fourteenth Amendment rights to free speech; (2) TCI's usurpation of channel 8 violates Plaintiff's right to be free from editorial control pursuant to 47 U.S.C. § 531(e) and as accomplished under color of state law violates 42 U.S.C. §§ 1981 and 1983; (3) Regardless of whether TCI's action is taken under color of state law, it violates the prohibition against cable operator control set forth in 47 U.S.C. § 531(e); (4) a pendent claim for infliction of emotional distress; (5) a pendent claim for negligence; and (6) a pendent claim for defamation. These six (6) claims have separate headings. There may also be a pendent claim(s) that the change violates N.Y. Pub. Serv. Law §§ 226 and 229 (formerly N.Y. Exec. Law §§ 826 and 829) and regulations concerning standards for cable television franchises, 9 N.Y.C.R.R. § 595.4.
The instant litigation has not come to your Honor in a virgin state. The caption herein has been amended to reflect the dismissal of various defendants by Judge Conner, who subsequently declined to certify those dismissals for interlocutory appeals pursuant to Fed.R.Civ.P. 54(b). Glendora v. Malone, 166 F.R.D. 6 (S.D.N.Y. 1996). Judge Conner has also denied Plaintiff's application for preliminary relief. Glendora v. Malone, 911 F. Supp. 142 (S.D.N.Y. 1996); Glendora v. Malone, 165 F.R.D. 42 (S.D.N.Y. 1996). The allegations underlying Plaintiff's claims are set forth in Judge Conner's comprehensive opinion on prior motions, familiarity with which is assumed. Glendora v. Malone, 917 F. Supp. 224, 226 (S.D.N.Y. 1996). The matter is before the Court on: (1) Plaintiff's May 14, 1996 submission (doc. # 57), which raises six (6) different motions; (2) the notice of motion of UA-Columbia Cablevision of Westchester ("UA-Columbia") dated February 22, 1996, which seeks dismissal of the amended complaint (doc. # 10) for failure to state a claim or in the alternative summary judgment; and (3) the joinder in motion and notice of cross-motion and cross-motion (doc. # 27) by Marshall, Brown, Sullivan, Wicker and Rich, which also seeks dismissal of the amended complaint for failure to state a claim or in the alternative summary judgment. The Court turns first to Plaintiff's motions.
Plaintiff's first application demonstrates a remarkable opacity for what is apparent to any reasonable person who views the record. She contends that the defendant which Ben Wiles, Esq. claims to represent is not a party to the action and therefore the defendants are in default. The record discloses that the firm of Cohen, Dax, Koenig & Wiles, P.C. through Ben Wiles, Esq. has taken action in the case on behalf of all of the defendants; most notably, motion practice which the rules permit prior to the filing of an answer. Wiles Decl. PP2-7 (reciting relevant portions of the record). Contrary to Plaintiff's assertion the defendants have defended this case through counsel within the meaning of Fed.R.Civ.P. 55(a) and are not in default. The undersigned has recognized Mr. Wiles' capacity as the representative of the defendants, as did Judge Conner when the case was before him. I respectfully recommend that your Honor also recognize Mr. Wiles' appearance for the defendants and deny Plaintiff's motion for a default.
Plaintiff next revisits Judge Conner's decision to dismiss defendants from the case for improper joinder: "Glendora wants her defendants back, Rule 19, FRCP." Plaintiff's Notice of Mot. at 3. She contends that they should not have been dismissed prior to her taking discovery and observes, as if the point were truly relevant, that the dismissal of defendants for misjoinder has not occurred in her other lawsuits. Prior to granting the motion for improper joinder, Judge Conner specifically stated:
In evaluating defendants' arguments, we are mindful that plaintiff is proceeding pro se and has not yet had the opportunity for discovery. Therefore, we will not dismiss any defendant unless it is clear that discovery would not likely reveal facts demonstrating that the defendant participated in deciding to reallocate Channel 8.
917 F. Supp. at 227. Plaintiff's current submissions add nothing to the record and provide no basis for your Honor to reconsider Judge Conner's ruling concerning misjoinder of defendants.
Judge Conner's ruling should not have come as a complete surprise to Plaintiff. In earlier cable television litigation, which was duplicitous of a case assigned to Judge Brieant, Judge Broderick had advised as follows:
Although the complaint is dismissed in its entirety, a concern must be expressed concerning the practice evident in the present complaint of including large numbers of individual defendants whose presence appears to be unnecessary to afford whatever relief might be appropriate should plaintiff prevail. Such action does not promote the "just, speedy and inexpensive" determination of the case which the court is directed to seek under Fed.R.Civ.P. 1.
Glendora v. Dolan, 871 F. Supp. 174, 177 (S.D.N.Y. 1994), aff'd, 48 F.3d 1212 (2d Cir. 1994), cert. denied, 131 L. Ed. 2d 748, 115 S. Ct. 1827 (1995).
Plaintiff's rambling reply submission on this point is replete with irrelevant material and evidences ignorance of Federal practice. If she loses the case, she may be able to challenge Judge Conner's ruling on misjoinder in an appeal following the entry of a final and appealable judgment.
Plaintiff next moves to add defendants, each of whom is either a director or an officer of TCI or TCI Communications, Inc. In response to the argument that these individuals fall into the same category as the defendants Judge Conner ruled had been misjoined, Plaintiff offers a tirade of scandalous and wholly unsubstantiated accusations against defendants' attorney and Judge Conner. The record contains no evidence of collusion between the attorney and Judge Conner and no evidence that Judge Conner is a shareholder of the defendant corporation.
Plaintiff asserts that she became a shareholder and obtained the annual report which reveals that the individuals sought to be added as defendants, "....those are the people who make the decisions." Plaintiff's Reply Aff. at 14.
Plaintiff has not submitted the appropriate portion of the annual report to which she refers and has not submitted any evidence, as opposed to speculation, guesswork, and/or assertion, that the proposed defendants have any relevance to this lawsuit.
Plaintiff's next request is impractical at best. The undersigned has no authority to prevent your Honor or any of your Honor's staff from communicating by telephone with defendants' attorney without Glendora being present either in person or on a conference call. Her view of the history of communications with Judge Conner's chambers furnishes little basis for your Honor to exercise the discretion possessed of any United States District Judge to control/manage attorneys' and litigants' communications with chambers. Plaintiff apparently has forgotten that her ex parte telephone communications and visits and her husband's ex parte telephone communications and visits have been handled by my staff with the same professional courtesy afforded to all attorneys and pro se litigants ...