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November 2, 2000


The opinion of the court was delivered by: McMAHON, District Judge.



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 January 30, 1999, after reading the article, Idema faxed a letter to Wager. (Compl. 31) He demanded a retraction and written apology to the plaintiffs for use of word "militant" to describe them. (Compl. ¶ 31.; see also Compl.Ex. B (letter from Idema to Wager of January 30, 1999).) He claimed that the defendants wanted to associate them with members of the Communist party, or in the alternative, with individuals who advocate the overthrow of the United States government by force. (Compl. ¶ 25.)

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. ¶¶ 67-71.)

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.

For the reasons stated below, defendants' motion to dismiss is granted, and the motion to vacate the default by the corporate defendant is denied as moot.


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], ...

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