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DOWD v. CALABRESE

May 30, 1984

JOHN M. DOWD, Plaintiff,
v.
SAMUEL RAY CALABRESE, Defendant; WILLIAM M. KRAMER, Plaintiff, v. SAMUEL RAY CALABRESE, Defendant; WILLIAM M. KRAMER, Plaintiff, v. JAMES A. DRINKHALL, et al., Defendants; JOHN M. DOWD, Plaintiff, v. JAMES A. DRINKHALL, et al., Defendants; JAMES A. DRINKHALL, Plaintiff, v. WILLIAM M. KRAMER, Defendant



The opinion of the court was delivered by: GREENE

These are consolidated actions revolving around several articles published in 1979 by the Wall Street Journal. The principal lawsuits *fn1" charge that the Dow Jones Company, publisher of the Wall Street Journal ; Lawrence O'Donnell, managing editor of that newspaper; and Jim Drinkhall, one of its reporters, libelled William M. Kramer and John M. Dowd, who at the time the articles were published were members of the Justice Department's San Francisco Strike Force. In a second lawsuit, *fn2" Drinkhall charges Kramer with invasion of privacy and deprivation of constitutional rights under color of law. *fn3" Presently pending before the Court, and decided herein, are defendants' motions for summary judgment with respect to each of the five claims in the Kramer-Dowd suit, and motions for summary judgment or partial summary judgment filed by the two sides in the Drinkhall action.

 I

 The second cause of action in one sense constitutes the heart of the lawsuit brought by Kramer and Dowd, and it will for that reason be considered first. That cause of action charges that the defendants libelled the plaintiffs in an article -- "Ordeal at McNeil" -- written by Drinkhall and published by the Wall Street Journal on April 11, 1979. Briefly summarized, the article reported that Kramer and Dowd had developed and implemented an unethical plan to force Samuel Ray Calabrese, a convicted felon with reputed organized crime connections, to cooperate with the government against other alleged organized crime figures, in particular one Morris Shenker, a Las Vegas casino owner.

 According to the article, among the tactics used by Kramer and Dowd to accomplish their objective were the following: the levying of additional charges against and prosecutions of Calabrese; his special detention and solitary confinement during his incarceration at the McNeil Island federal penitentiary; the spreading of rumors about Calabrese and attacks on him by other inmates; the grant of immunity to Calabrese with respect to testimony before grand juries and the threat of contempt if he failed to testify; the undermining of financial support for Calabrese's family through action by the Internal Revenue Service; the planting of false rumors that Calabrese was cooperating with the government; and threats of a denial of parole.

 Defendants acknowledge that they are unable to move for summary judgment on the issues of truth and malice with respect to this cause of action, and they do not do so. Rather, their motion proceeds on the theory that the second cause of action should be dismissed because under California law *fn4" the publisher of allegedly libelous material must be afforded an opportunity for a retraction as a prerequisite to a defamation action -- an opportunity which allegedly was not afforded here. *fn5"

 First. Neither the District of Columbia nor any other jurisdiction the laws of which might conceivably govern has a retraction statute. There is therefore a threshold issue whether California law, with its retraction statute, is applicable to this controversy, for if California law does not apply, the request for dismissal must fail.

 In a diversity action, this Court sitting in the District of Columbia is obligated under Erie R. Co. v. Tompkins, 304 U.S. 64, 82 L. Ed. 1188, 58 S. Ct. 817 (1938) to apply the choice of law rules prevailing in this jurisdiction. Klaxon v. Stentor Electrical Mfg. Co., 313 U.S. 487, 496, 85 L. Ed. 1477, 61 S. Ct. 1020 (1941). Like many states, the District of Columbia has adopted the so-called "governmental interest analysis" approach to resolving choice of law questions. *fn6" Under that approach, the Court applies the law of the jurisdiction with the most significant interest in the resolution of the particular controversy. Blair v. Prudential Ins. Co., 153 U.S. App. D.C. 281, 472 F.2d 1356, 1359 (D.C. Cir. 1972); Fowler v. A&A Company, 262 A.2d 344, 348 (D.C. App. 1970). *fn7" Thus, with respect to the allegedly fatal failure to demand a retraction, the issue is whether California has a more substantial interest in the resolution of these lawsuits and the underlying claims than any other jurisdiction.

 Defendants have advanced basically two reasons in support of their contention that California should be regarded as having the most compelling governmental interest with respect to "Ordeal at McNeil." In their original brief, they argued that this is so because the article was principally researched, investigated, and written in California; *fn8" in their reply brief, the emphasis was changed to the assertion that California law is paramount because Kramer lived and worked there prior to the publication of the articles which gave rise to this lawsuit. *fn9" Neither claim is persuasive.

 The weight of authority considers that the law to be applied is not that of the place where the offending article was written, researched, or published, but that the place where the plaintiff suffered injury by reason of his loss of reputation is the more significant. See, e.g., Restatement (Second) of Conflict of Laws ยง 150 (comment e); Hanley v. The Tribune Publishing Company, 527 F.2d 68, 70 (9th Cir. 1975). The Court will follow that rule. The law of libel is designed to protect individuals from defamation. Although, to be sure, there is some public and governmental interest elsewhere, *fn10" by far the greatest interest lies in the place where the victim's reputation suffered injury. Upon the facts of these cases, it is clear that the damage to the reputation of Kramer and Dowd as a consequence of "Ordeal at McNeil" occurred primarily in the District of Columbia.

 Kramer spent twelve of the last fourteen years in Washington, D.C., and almost all of his professional ties and contacts were and are here. He received his legal education at George Washington University, and he is a member of the District of Columbia Bar. *fn11" Prior to his transfer to San Francisco, he had been working for many years for the U.S. Department of Justice in its Washington headquarters. The article concerned his activities while he held a position with that Department, and it was essentially his professional reputation with the Department at the seat of government that was damaged by the article. Kramer's superiors were located in the District of Columbia, and they were the persons who raised questions concerning his conduct as a consequence of the article, investigated him, and called him to account for his alleged behavior. *fn12" After the articles were published, Kramer was not able to remain with the Department of Justice, and he resigned. Because of his professional ties to the District of Columbia, his job opportunities were here, and he returned to and is now practicing law in Washington.

 As indicated, defendants argue in their reply brief that Kramer's reputation was injured primarily in California. That contention is not persuasive. To be sure, Kramer was residing in that state at the time the articles appeared, *fn13" and he intended to continue working there as a member of the San Francisco Strike Force. But these minimal contacts cannot be said by any measure to outweigh the far more weighty, solid, and lasting contacts Kramer had in the District of Columbia discussed above and the damage to his reputation that occurred in the District. *fn14"

 The issue is equally clear with respect to Dowd. Indeed, defendants make only a perfunctory effort to demonstrate that California law should apply to his claim. Dowd lives in the Virginia suburbs of the national capital; his professional career and his personal and professional ties are all in the District of Columbia; the article concerned his activities while he was the head of the Washington, D.C. Strike Force Team; and when the article was published, he was in private practice in Washington where he still practices. To state, as do the defendants in their principal brief, that, "as to Dowd, the question is necessarily closer," *fn15" is modest understatement indeed. *fn16"

 Second. If the California retraction statute applied, it would not help defendants. Kramer did, in fact, demand a retraction, and he thus complied with that law.

 Nineteen days after the article appeared, Kramer sent a letter to Laurence O'Donnell, managing editor of the Wall Street Journal, detailing with considerable specificity the various claimed inaccuracies and distortions. The letter implicitly demanded a retraction even if that precise term was not used. That, moreover, is just how O'Donnell construed it, for he responded that, although it was "the policy and routine practice of the Wall Street Journal to publish corrections of material errors . . . since we have seen no factual support for any allegation of material inaccuracy with respect to the Calabrese article, no such correction would be appropriate." Indeed, the second Drinkhall article, published on December 12, 1979 (see Part V infra), conceded that "Mr. Kramer demanded a retraction of the portions of the article attributed to him." *fn17"

 Defendants also argue that the retraction demand was addressed not to the publisher -- as they claim it should have been under the California statute -- and that it was defective also for that reason. The Kramer letter, as noted, was addressed to O'Donnell, the Wall Street Journal's managing editor. That, according to defendants, was the wrong addressee, the right one being "Dow Jones Company, Incorporated." At the same time, defendants concede that, had Kramer addressed the letter to the corporation, it would have been promptly forwarded to O'Donnell for action. Transcript of Proceedings May 7, 1984 at 23. In view of that concession, it is difficult to visualize a more technical argument than defendants' insistence that the retraction demand was mailed to the wrong addressee. The fact is that it was O'Donnell, rather than someone in the corporate hierarchy of the Dow Jones Company, who had the power to decide whether the Wall Street Journal should or would publish a retraction; it was O'Donnell who received Kramer's letter; and it was O'Donnell who decided that there would be no retraction.

 In Gomes v. Fried, 136 Cal. App. 3d 924, 937, 186 Cal. Rptr. 605, 613 (1st Dist. 1982), the California court stated with respect to that State's statute that

 
letters written to request retraction of a statement do not comprise formal legal complaints; we cannot expect that they will conform to the niceties of common law pleading. In enacting section 48a the Legislature intended to afford publishers an opportunity to correct committed errors before subjecting them to liability; it did not intend to build technical barricades to recovery by the individual who had given notice sufficient to a reasonable publisher acting in good faith of the claimed error. *fn18"

 Clearly, the Wall Street Journal had such notice here, and there was thus compliance with the California law.

 Defendants' motion to dismiss the second cause of action will be denied.

 II

 Plaintiffs do not deny that their evidence in support of this cause of action does not differ materially from that which they would cite to sustain the second claim discussed in Part I supra, but they suggest that this evidence supports both their individual claims of libel against Drinkhall and Calabrese and their conspiracy claim against both of these individuals. In this regard, it is their basic contention that the origin of the libelous material was Calabrese and, in fact, they attempt to demonstrate in rather elaborate fashion that Calabrese must have been the source *fn19" because the information could not have come from anyone else. Not only is that factual premise to the conspiracy claim far-fetched and not established even for summary judgment purposes, *fn20" but there are also more fundamental obstacles to a survival of the conspiracy claim.

 The most that could be deduced from the Drinkhall-Calabrese relationship, assuming plaintiffs' inferences in that regard to be well-founded, is that the two individuals collaborated in the sense that Calabrese provided information to Drinkhall and Drinkhall used that information as material for his article. *fn21" There seem to have been two purposes to that collaboration: Drinkhall was using Calabrese as a source for what to him was an important story and Calabrese was using Drinkhall to secure a sympathetic account of his criminal past and his present confinement.

 Collaboration between individuals with an axe to grind and reporters eager for a story is not uncommon; rather, it is the way the news media frequently operate. *fn22" Where this kind of collaboration occurs, the two parties could be said in one sense to be working together for the same end: publication of a story in a newspaper, or a magazine, or on radio or television. But such collaboration does not, without more, a conspiracy make, that is, an unlawful agreement which, if proved, gives rise to civil damages. An actionable agreement requires more than evidence of collaboration between two parties: there must also be an improper object or purpose. See, e.g., International Union v. Cardwell Mfg. Co., Inc., 416 F. Supp. 1267, 1290 (D. Kan. 1976). In the view of the Court, plaintiffs have not supplied proof of such a purpose. *fn23"

 Although there is little, if any, law on this issue, the Court has concluded that proof of cooperation between two individuals who have a common purpose to produce a news story does not represent a sufficient basis for an actionable conspiracy. Their activities do not become actionable as a conspiracy merely because of one of the collaborators has a purpose to improve his image by spreading false information and the other a purpose to improve his opportunities for advancement by unethical practices including a reckless disregard of the truth. These purposes and the implementing actions may, to be sure, entitle the offended party to a judgment and damages for libel against each of the individuals. But with respect to a separate action for conspiracy against both, what is required in this sensitive First Amendment area *fn24" is proof not merely of separate and distinct improper purposes by each, proof not merely of a joint purpose to publish, but specific evidence of a joint purpose to defame.

 Absent a requirement of such a purpose, the traditionally-recognized relationships between sources and reporters could become actionable as conspiracies on a substantial scale, and the inevitable result would be the "chilling" of such relationships and collaborations, to the detriment of the values inherent in the First Amendment. In the absence of law requiring such a result, the Court will not impose it here.

 As stated, beyond speculation, there is here no specific evidence of such a joint Drinkhall-Calabrese purpose to defame plaintiffs, *fn25" and thus no evidentiary basis for a conspiracy claim.

 It must also be noted that the conspiracy claim has no legitimate practical meaning in this lawsuit. Dow Jones Company, the only defendant with funds to pay a substantial judgment, is not named in that claim. Calabrese, who is named, is not likely to have the means to pay such a judgment. As for Drinkhall, it is conceded by plaintiffs that they would not be entitled to double recovery against him, that is, a recovery both on the second cause of action and on the first. *fn26" And proof of a conspiracy may be admitted into evidence, if otherwise relevant, whether or not it is separately charged, *fn27" so that plaintiffs will not be prejudiced in an evidentiary sense by a dismissal of the first cause of action. It is difficult to escape the suspicion in light of these facts that the conspiracy claim is being pressed, not for any proper litigation purpose, but in order to imply to the jury that there is a tie-in between the Wall Street Journal and Calabrese, a convicted mobster, and thus to prejudice the jury against the newspaper and its personnel.

 The first cause of action will be dismissed. *fn28"

 III

 The third cause of action is based on a letter written by Lawrence O'Donnell, managing editor of the Wall Street Journal. On April 30, 1979, Kramer wrote to O'Donnell, complaining of inaccuracies and distortions in "Ordeal at McNeil." O'Donnell responded with a point-by-point refutation of Kramer's complaints and, in the course of that refutation, he repeated several of the allegedly libelous materials that had appeared in the article. O'Donnell furnished copy of his letter to Deputy Assistant Attorney General Irwin Nathan, Kramer's superior in the Justice Department, and plaintiffs claim on that basis a republication of the libel. Defendants' summary judgment ...


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