The opinion of the court was delivered by: McMAHON, District Judge.
MEMORANDUM DECISION AND ORDER DISMISSING COMPLAINT
On January 29, 1999, an article with the headline, "Militant
Sues Red Hook" was published by defendant Richard K. Wager
("Wager"), publisher of defendant The Poughkeepsie Journal
("Journal"). (Compl. ¶¶ 5, 8, 16.) The Journal has a daily
circulation of 45,000 throughout the counties of Dutchess,
Ulster, Orange and Westchester. (Compl. ¶ 8.) It is managed by
defendant Stuart Shinske ("Shinske") and employs defendant and
author of the article, Gabriel J. Wasserman ("Wasserman").
(Compl. ¶¶ 6, 7.) Defendants Gannett Company, Inc. ("Company"),
Gannett National Newspaper Sales, Inc. ("Sales"), and Gannett
Satellite Information Network ("Network") are the owners of the
paper. (Compl. ¶¶ 8-11.)
At the time of publication, the plaintiffs, Jonathon Keith
Idema ("Idema") and Counterr Group, Inc. ("Counterr"), a police
and military training organization headed by Idema, had
commenced a civil suit against the Town of Red Hook in the
Supreme Court of Dutchess County in New York. (Compl. ¶ 15.)
Counterr was located in Red Hook until Idema moved to
Fayetteville, North Carolina. (Compl. ¶¶ 3, 4.)
On February 1, 1999, Wager's faxed response to Idema was:
"After careful review of the facts, we believe our reporting has
been fair." (Compl. ¶ 35; see also Compl.Ex. D (letter from
Wager to Idema of Feb. 1, 1999).)
On February 5, 1999, Idema forwarded a certified mail letter
to Wager. (Compl. ¶ 32; see also Compl.Ex. C (certified mail
receipt).) Again, he requested a retraction and an apology for
use of the word "militant" to describe him and his organization.
(Compl. ¶ 33.) He also threatened to commence action for libel
and defamation. (Id.) As the reader will surmise, whatever
response he received from defendants was unsatisfactory, and he
made good his threat.
The instant complaint purports to state claims under the
First, Fifth, and Ninth Amendments to the United States
Constitution and "the federal common law." (Compl. ¶ 13.) All of
these claims are fatally deficient — the constitutional claims
because the defendants are private entities, and the
Constitution protects citizens only against intrusion by the
Government; and the "federal common law" claim because, as
Justice Cardozo declared long ago in the immortal case of Erie
v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 82 L.Ed. 1188
(1938), "There is no federal common law." However, the complaint
must be liberally construed, as this action was commenced by
plaintiff pro se.*fn1 I therefore read the allegations of the
complaint without any constitutional or federal gloss, as they
would be understood under State law.
The first cause of action sounds in libel and defamation.
(Compl. ¶¶ 15-37.) Plaintiffs allege that the defendants' use of
word "militant" in its headline discredited plaintiffs'
profession and professionalism, and exposed them to "hate,
ridicule, and contempt." (Compl. ¶¶ 19, 20.)
In their second cause of action, plaintiffs allege civil
conspiracy. (Compl. ¶¶ 38-55.) They contend that, for almost two
decades, defendants have consistently and intentionally altered
facts and stories involving plaintiffs for the sole purpose of
discrediting, humiliating and defaming them. (Compl. ¶¶ 52-55.)
The third cause of action is based on a theory of intentional
infliction of emotional distress. (Compl. ¶¶ 56-59.) Plaintiffs
allege that they possess a "constitutionally protected right to
be free from emotional distress intentionally inflicted upon
them as a part of conspiracy to destroy their lives and
business." (Compl. ¶ 58.)
The fourth cause of action is based on a violation of the
plaintiffs' civil rights. (Compl. ¶¶ 60-64.) Plaintiffs allege
that they have a "constitutionally protected right to their good
name and reputation," and that defendants conspired to violate
their civil rights. (Compl. ¶¶ 62-63.)
The plaintiffs pray that the defendants be held jointly and
severally liable. (Compl. ¶¶ 1-9.) Plaintiffs demand $5,000,000
in damages plus $10,000,000 in punitive damages. (Compl. ¶¶
On October 29, 1999, the defendants filed a Rule 12(b)(6)
motion to dismiss. The motion was granted on default on December
14, 1999. That default was later vacated as to Idema, but
Counterr was forced to retain counsel to defend. It did so (at
least nominally), and filed a motion to vacate the default on
February 4, 2000.
Under the Federal Rule of Civil Procedure 12(b)(6), dismissal
of a complaint is appropriate only when "it appears beyond a
doubt that the plaintiff can prove no set of facts in support of
his claim which would entitle him to relief." Conley v.
Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957).
In reviewing the sufficiency of a complaint, all well-pleaded
allegations are treated as true and all inferences are drawn in
favor of the pleader. See Mills v. Polar Molecular Corp.,
12 F.3d 1170, 1174 (2d Cir. 1993). Nonetheless, a court will grant
a Rule 12(b)(6) motions to dismiss in a libel action where
plaintiffs cannot that the particular word or phrase in question
are libelous and defamatory. See Levin v. McPhee,
119 F.3d 189, 195 (2d Cir. 1997) [hereinafter Levin II]; Levin v.
McPhee, 917 F. Supp. 230, 243 (S.D.N.Y. 1996) [hereinafter
Levin I], ...