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BOGGS v. DIE FLIEDERMAUS

April 3, 2003

ANGELA BOGGS, KIMBERLY HAWKES, SHEREECE HOLMAN, STACI POLLARD, RHONDA ROENFELDT, MADILYN WADE, PLAINTIFFS,
v.
DIE FLIEDERMAUS, LLP., D/B/A LE BAR BAT, JERRY SHALLO, PATRICK KELLY, LARRY CERRONE, SIMON AZOULEY, COLIN WALSH, MATT TORTOSO, JOHN DOES 1-5, DEFENDANTS.



The opinion of the court was delivered by: Robert W. Sweet, United States District Judge

OPINION

Plaintiffs Angela Boggs, Kimberly Hawkes, Staci Pollard, and Rhonda Roenfeldt (collectively, the "Plaintiffs") have moved for partial summary judgment pursuant to Rule 56, Fed.R.Civ.P., against defendants pro se Patrick Kelly ("Kelly"), Colin Walsh ("Walsh"), and Matt Tortoso ("Tortoso") on Count Ten of the complaint alleging defamation and libel per se. The motion is denied as to Kelly and Walsh for the reasons set forth below.

Prior Proceedings

This action was commenced on April 2, 1999 against Die Fliedermaus, LLP, d/b/a Le Bar Bat ("Le Bar Bat"), and followed the filing of a companion case by the Equal Employment Opportunity Commission ("EEOC") against Le Bar Bat and Lerry Cerrone ("Cerrone") on March 9, 1999 (the "EEOC action") (99 Civ. 1732). In addition, a criminal action was brought against Kelly alleging obstruction of justice and witness tampering. United States v. Kelly, 169 F. Supp.2d 171 (S.D.N.Y. 2001) (the "criminal action").

The EEOC action is closed, a conviction was obtained in the criminal action, and discovery has proceeded in this action.

The instant motion was marked fully submitted on January 15, 2003.

The Facts

The facts are set forth based upon the Local Rule 56.1 statements of the Plaintiffs and Walsh and the affidavit of Kelly.

Kelly has alleged in effect that he testified in this action by deposition, rather than invoking any Fifth Amendment privilege, in reliance on an oral promise by counsel to the Plaintiffs that he would not be prosecuted further civilly. Kelly has served his prison term arising out of the criminal action as well as a term of imprisonment for probation violation, arising out of the abuse of his wife.

Walsh has submitted an affidavit denying his knowledge of the episode of April 4, 1998 and of the content of the fliers.

The Standard for Summary Judgment

Summary judgment is granted only if there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); see generally 6 James Wm. Moore, et al., Moore's Federal Practice ¶ 56.15 (2d ed. 1983). The court will not try issues of fact on a motion for summary judgment, but, rather, will determine "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986).

The moving party has the burden of showing that there are no material facts in dispute, and the court must resolve all ambiguities and draw all reasonable inferences in favor of the party opposing the motion — in this instance, the Defendants. Bickhardt v. Ratner, 871 F. Supp. 613 (S.D.N.Y. 1994) (citing Celotex Corp. v. Catrett, 477 U.S. 317 (1986). Thus, "[s]ummary judgment may be granted if, upon reviewing the evidence in the light most favorable to the non-movant, the court determines that there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law." Richardson v. Selsky, 5 F.3d 616, 621 (2d Cir. 1993).

A material fact is one that would "affect the outcome of the suit under the governing law," and a dispute about a genuine issue of material fact occurs if the evidence is such that "a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. ...


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