author: GOETTEL, District Judge.

text:
    Diane NELSON, Plaintiff, v. GLOBE INTERNATIONAL, INC., Globe Communications, Inc., and “Globe”, Defendants.
    No. 84 Civ. 4726 (GLG).
    United States District Court, S.D. New York.
    Jan. 14, 1986.

      Goetz and Fitzpatrick, P.C., New York City, for plaintiff; Harvey A. Wechsler, of counsel.
    Milgrim Thomajan Jacobs & Lee, P.C., New York City, for defendants; Andrew L. Deutsch, Paul M. Levy, Deutsch, Levy & Engel Chartered, Chicago, Ill., of counsel.
   GOETTEL, District Judge.

This diversity action for defamation and violation of Sections 50 and 51 of the New York Civil Rights Law, N.Y. Civ. Rights Law §§50 and 51 (McKinney 1976), arises out of an article in the April 24, 1984, GLOBE magazine (“GLOBE”) entitled “The Marshmallow Diet” (“the article”). The article outlined a weight-loss program incorporating marshmallows, discussed some of its ancillary benefits, quoted several nutritionists, and included the diet itself. The subject of this lawsuit is a one-sen-fence paragraph in the article concerning Diane Nelson (“Nelson”), the plaintiff in this lawsuit. That sentence reads, “Diane Nelson, of the Bureau of Nutrition, in New York, was instrumental in preparing this marshmallow-based diet to help GLOBE readers lose up to a pound a day.” Nelson Affidavit, Exhibit B. Nelson claims that she was both shocked and horrified to learn that she had been named in the article as being instrumental in preparing the Marshmallow Diet. She commenced this action in the Supreme Court of the State of New York on June 5, 1984. GLOBE removed the action to this Court on July 3, 1984, where it was assigned to Judge Sofaer. It has since been reassigned to me.

Defendants Globe Communications Corp. and Globe International, Inc. now move for summary judgment on the plaintiffs claims for defamation and invasion of privacy. For the reasons stated below, their motion is granted.

1. Background •

Defendant Globe International, Inc. publishes GLOBE, a weekly periodical sold at newstands and supermarkets. In January 1984, various senior editors of GLOBE met for a story conference, where they discussed possible topics for articles. At the conference, Robert Taylor, an associate editor, suggested basing an article on a weight-loss program incorporating marshmallows. GLOBE’s assignment editor contacted Carlson Wade (“Wade”) about writing the article and suggested several ideas for it.

Wade, an experienced writer in the field of diet and health, had previously written numerous magazine articles on topics relating to health, diet, and nutrition. He had been an editor of Popular Medicine, a diet-related magazine, and a medical editor and columnist for Pageant magazine. In addition, Wade had authored books on nutrition and diet-related topics. Wade had previously written 15 articles for GLOBE, the veracity or accuracy of which had never been challenged. (Wade has since written ten more articles for GLOBE.) GLOBE’s editors suggested topics for many of Wade’s articles. Wade conceived others himself. Wade is not named as a defendant in this action.

After receiving a topic suggestion from GLOBE’s editors, Wade researches the topic to determine its viability. Thus, after receiving the call from GLOBE’s assignment editor, Wade researched his suggestion. Wade decided that marshmallows could be substituted for other carbohydrates in a diet, and that such a diet could still permit significant weight loss. Wade decided to work with a diet in his files entitled “Eat to Lose Weight!”' The New York City Department of Health, Bureau of Nutrition (“Bureau of Nutrition”) had originally prepared this diet. However, since 1981, the Bureau of Nutrition has neither distributed nor endorsed this diet. Another diet of the same name has been substituted for it. Wade modified the “Eat to Lose Weight!” diet by deleting certain carbohydrates and substituting marshmallow snacks.

He states that he then began to contact nutritionists to see whether they would confirm his findings that the modified “Eat to Lose Weight!” diet could bring about a loss of weight while suppressing the urge to overeat. He says he spoke to Dr. Elizabeth Whelan, a public health professional; Professor Evangelos Gizis, an adjunct professor in the Department of Home Economics and Nutrition at New York University; and Mildred Levine and Diane Nelson, staff nutritionists at the Bureau of Nutrition. Wade says that he incorporated the comments of Whelan and Gizis into his article. He also maintains that Nelson gave him permission to use her name in connection with the article. Whelan, Gizis, Levine, and Nelson uniformly deny ever having spoken to Wade or to anyone else from GLOBE about the diet. The first three named have not sued.

Following the alleged conversations, Wade typed his article. His sole reference to Nelson was a statement that “[t]ogether with Diane Nelson, a nutritionist with the Bureau of Nutrition, the following diet was prepared.” Nelson Affidavit, Exhibit C. Wade submitted his typed draft to GLOBE’s assignment editor. Shortly thereafter, Wade was contacted by a GLOBE editor who requested and received the names, titles, and telephone numbers of the individuals Wade had spoken to and the dates of the various conversations. After receiving Wade’s piece, the assignment editor forwarded it to Robert Taylor, the associate editor in charge of rewriting. The copy was first edited by Derek Clontz, a rewrite editor, who edited it for style and clarity. Clontz substantially shortened the article and many of the quotations therein. Taylor reviewed the original copy and Clontz’s rewrite, made further changes, and submitted the edited copy to Cliff Barr, GLOBE’s editor. Barr looked at it and approved it for publication. GLOBE did not verify the contents of the article or the nutritional validity of the diet.

In its final form, the article contained the following sentence: “Diane Nelson, of the Bureau of Nutrition in New York, was instrumental in preparing this marshmallow-based diet to help GLOBE readers lose up to a pound a day.” Prior to publication, the entire April 24 issue, including the article in question, was submitted to GLOBE’s outside counsel for libel review. Since the Marshmallow Diet article did not appear defamatory, counsel did not discuss it with GLOBE’s editors.

Nelson learned of the article and its reference to her shortly after its publication. At that time, she was one of eight staff nutritionists employed by the Bureau of Nutrition. (She is now on maternity leave.) She had several responsibilities. From time to time, she reviewed nutrition books in order to determine their reliability and credibility. She also answered inquiries from the press and public on matters relating to nutrition. Finally, Nelson was responsible for nutrition education in two areas of Brooklyn. In that capacity, she gave talks concerning general nutrition to various community groups. Nelson based those talks on materials supplied by the Bureau of Nutrition!

II. Discussion

A. The Defamation Claim

In the landmark case of New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), the Supreme Court held for the first time that “the Constitution delimits a State’s power to award damages for libel in actions brought by public officials against critics of their official conduct.” Id. at 283, 84 S.Ct. at 727. A public official may not recover “damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice’ — that is, with knowledge that it was false or with reckless disregard of whether it was false or not.” Id. at 279-80, 84 S.Ct. at 726. In Curtis Publishing Co. v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967), the Court extended the protections of .New York Times v. Sullivan to “public figures.” There are two types of public figures.

In some instances an individual may achieve such pervasive fame or notoriety that he becomes a'public figure for all purposes and in all contexts. More commonly, an individual voluntarily injects himself or is drawn into a particular public controversy and thereby becomes a public figure for a limited range of issues.

Gertz v. Robert Welch, Inc., 418 U.S. 323, 351, 94 S.Ct. 2997, 3013, 41 L.Ed.2d 789 (1974). “[T]he states ... retain substantial latitude in their efforts to enforce a legal remedy for defamatory falsehood injurious to the reputation of an individual who is neither a public official nor a public figure.” Id. at 345-46, 94 S.Ct. at 3010. “So long as they do not impose liability without fault, the States may define for themselves the appropriate standard of liability for a publisher or broadcaster of defamatory falsehood injurious to a private individual.” Id. at 347, 94 S.Ct. at 3010.

The defendants contend that the plaintiff is both a public official and a limited purpose public figure. As discussed at length below, we find no merit in either contention. Consequently, New York’s law with respect to defamation applies. That law, in turn, also shields the defendant from liability in this case.

1. Diane Nelson: A Public Official?

The Supreme Court has consistently sidestepped opportunities to precisely define the term public official. See Hutchinson v. Proxmire, 443 U.S. Ill, 119 n. 8, 99 S.Ct. 2675, 2680 n. 8, 61 L.Ed.2d 411 (1979) (“The Court has not provided precise boundaries for the category of ‘public official____’ ”); Rosenblatt v. Baer, 383 U.S. 75, 85, 86 S.Ct. 669, 675, 15 L.Ed.2d 597 (1966) (“No precise lines need be drawn for the purposes of this case.”); New York Times v. Sullivan, supra, 376 U.S. at 283 n. 23, 84 S.Ct. at 727 n. 23 (“We have no occasion here to determine how far down into the lower ranks of government employees the ‘public official’ designation would extend ..., or otherwise to specify categories of persons who would or would not be included.”). On the other hand, despite expanding the category of “public officials” to include, among others, a recreation supervisor, Rosenblatt v. Baer, supra, a county clerk, Beckley Newspapers Corp. v. Hanks, 389 U.S. 81, 88 S.Ct. 197, 19 L.Ed.2d 248 (1967), and a deputy sheriff, St. Amant v. Thompson, 390 U.S. 727, 88 S.Ct. 1323, 20 L.Ed.2d 262 (1968), the Court has consistently stated that “the category of ‘public official’ ... cannot be thought to include all public employees____” Hutchinson v. Proxmire, supra, 443 U.S. at 119 n. 8, 99 S.Ct. at 2680 n. 8; see also Rosenblatt v. Baer, 383 U.S. 75, 86-87 n. 13, 86 S.Ct. 669, 676 n. 13 (statement would not warrant New York Times v. Sullivan protection “merely because a statement defamatory of some person in government employ catches the public interest.”). A large number of courts have disregarded' the latter admonition and deemed countless individuals at the lowest echelons of government service to be “public officials.” See D. Elder, Defamation, Public Officialdom and the Rosenblatt v. Baer Criteria — A Proposal for Revivification: Two Decades After New York Times Co. v. Sullivan, 33 Buff.L.Rev. 579, 634-40 (1984) (listing over 40 examples). The defendants rely on a number of these cases to support their argument that the plaintiff is a public official. The Court, however, lacks confidence in this authority, which plainly ignores the admonitions of the Supreme Court. Instead, we take our cue from the language and policies that the Court-has relied upon in justifying the protections it provides to those who criticize public officials.

Two policies underly the protections afforded such criticism. First, protecting speech about “public officials” should encourage debate about an issue of the highest importance in any democratic society, the operation of the government and the formulation of government policy.

Criticism of government is at the very center of the constitutionally protected area of free discussion. Criticism of those responsible for government operations must be free, lest criticism of government itself be penalized. It is clear, therefore, that the “public official” designation applies at the very least to those among the hierarchy of government employees who have, or appear to the public to have, substantial responsibility for or control over the conduct of governmental affairs. ¡je >)C $

Where a position in government has such apparent importance that the public has an independent interest in the qualifications and performance of the person who holds it, beyond the general public interest in the qualifications and performance of all government employees, ... the New York Times malice standards apply. Rosenblatt v. Baer, supra, 383 U.S. at 85-86, 86 S.Ct. at 675-76. “The employee’s position must be one which would invite public scrutiny and discussion of the person holding it entirely apart from the scrutiny and discussion occasioned by the particular charges in controversy.” Id. at 87 n. 13, 86 S.Ct. at 676 n. 13. Otherwise, criticism of the official is not of the kind entitled to special constitutional protection.

A second policy underlying the special treatment accorded criticism of public officials focuses on the status of those individuals. Public officials are less in need of monetary recovery because they both assume the risk that they may be defamed and are more capable of negating the effects of defamatory statements. As the Supreme Court explained,

[pjublic officials and public figures usually enjoy significantly greater access to the channels of effective communication and hence have a more realistic opportunity to counteract false statements than private individuals normally enjoy. Private individuals are therefore more vulnerable to injury, and the state interest in protecting them is correspondingly greater.
More important than the likelihood that private individuals will lack effective opportunities for rebuttal, there is a compelling normative consideration underlying the distinction between public and private defamation plaintiffs. An individual who decides to seek governmental office must accept certain necessary consequences of that involvement in public affairs. He runs the risk of closer public scrutiny than might otherwise be the case. And society’s interest in the officers of government is not strictly limited to the formal discharge of official duties.

Gertz v. Robert Welch, Inc., supra, 418 U.S. at 344, 94 S.Ct. at 3009.

The two underlying policies, one based on the status of the defamed individual, the other on the content of the defamatory statement, tend to converge. A government official with significant policymaking authority who assumes a role independent of any particular controversy will more likely have access to the media and have assumed the risk of unfavorable public comment.

Neither policy would be served by deeming the plaintiff a public official. The plaintiff is one of eight public information officers at the Department of Nutrition. She answers public and media inquiries, speaks to public groups, and reviews written materials. She neither formulates nor supervises the implementation of policy. Her duties do not invite scrutiny or discussion independent of any particular controversy in which she may be involved. Moreover, by accepting her current position, she could not have reasonably anticipated public comment on her performance and behavior in her personal and public life. Nor did she gain access to the media to rebut the charges against her. Her position as a public information officer is not a pulpit for the rebuttal of attacks on her person. In fact, her contact with the media is severly circumscribed. In short, the plaintiff is not a “public official” within the meaning of New York Times v. Sullivan and its progeny.

2. Limited Purpose Public Figure

We can dispose of the contention that the defendant is a limited purpose public figure without protracted analysis. In order to establish that the plaintiff is a limited purpose public figure, a defendant must show that the plaintiff has:

(1) successfully invited public attention to his views in an effort to influence others prior to the incident that is the subject of litigation; (2) voluntarily injected himself into a public controversy related to the subject of the litigation;
(3) assumed a position of prominence in the public controversy; and (4) maintained regular and continuing access to the media.

Lerman v. Flynt Distributing Co., 745 F.2d 123, 136-37 (2d Cir.1984), cert. denied, — U.S. -, 105 S.Ct. 2114, 85 L.Ed.2d 479 (1985). Although the plaintiff has shared information with the public, she has never invited any attention to her own views. Nor can it be said that by answering an inquiry from Carlson Wade (if, in fact, she did), she injected herself into this controversy.

3. New York Law

GLOBE is left to the protection that New York affords defendants in defamation actions brought by private individuals. In Chapadeau v. Utica Observer Dispatch, Inc., 38 N.Y.2d 196, 379 N.Y. S.2d 61, 341 N.E.2d 569 (1975), the New York Court of Appeals supplied the controlling standard. The court stated,

[wjhere the content of the article is arguably within the sphere of legitimate public concern, which is reasonably related to matters warranting public exposition, the party defamed may recover; however, to warrant such recovery he must establish, by a preponderance of the evidence, that the publisher acted in a grossly irresponsible manner without due consideration for the standards of information gathering and dissemination ordinarily followed by responsible parties.

Id. 379 N.Y.S.2d at 64, 341 N.E.2d at 571.

Under Chapadeau, the initial inquiry is whether the article in question “is arguably within the sphere of legitimate public concern.” Matters of general interest such as entertainment and health, as well as so-called “hard news,” are within this sphere. See Ortiz v. Valdescastilla, 102 A.D.2d 513, 478 N.Y.S.2d 895, 899 (1st Dep’t 1984) (entertainment column describing incident involving well-known Venezuelan actress is within the sphere of legitimate public concern); National Nutritional Foods Association v. Whelan, 492 F.Supp. 374, 382 (S.D.N.Y.198Q) (article concerning “health food” industry concerns matters of great public importance); cf. Hoffman v. Washington Post Co., 433 F.Supp. 600, 604 (D.D. C.1977), affd w’out op., 578 F.2d 442 (D.C. Cir.1978) (field of protein supplements is a matter of public interest). Diets and dieting, subjects of great interest to many Americans, are also of interest to the public. Because a particular diet strikes some as strange, novel, or even humorous does not remove it from the realm of public concern. Nor does its inclusion in a publication that some would term a sensational tabloid entitle it to any less protection. Whether GLOBE invented the diet is irrelevant as well. The subject matter of the article, not its accuracy, controls the initial inquiry under Chapadeau.

Since the article concerned a matter of public concern, the plaintiff may only recover if GLOBE was grossly irresponsible in publishing the statement concerning her. Although the question of gross irresponsibility is not solely for the court, a court may award summary judgment on the issue of gross irresponsibility where a sufficient showing is made for or an insufficient showing is made against the motion. Karaduman v. Newsday, Inc., 51 N.Y.2d 531, 435 N.Y.S.2d 556, 562, 416 N.E.2d 557, 563 (1980).

There are several recognized indicia of reliability that negate any inference of gross irresponsibility. A publisher is not grossly irresponsible, if it “publishes information from a dependable source of news unless [it] had, or should have had, substantial reasons to question the accuracy of the information or the bona fides of [its] source.” Ortiz v. Valdescastilla, 102 A.D.2d 513, 478 N.Y.S.2d 895, 899 (1st Dep’t 1984). The publication of a great number of articles over a substantial period by the freelance journalist in question without the accuracy of those articles ever having been challenged provides sufficient reason to trust that source. Id. (Articles appeared in El Diaco for 10 years; none were criticized or disputed); Jenkins v. R.G.H. Publishing Co., No. 79-6227, slip op. at 2 (S.D.N.Y. June 15, 1981) (available on Lexis, Genfed Library) (work of freelance journalist had not previously been the target of defamation lawsuits). Other indicia of responsible publishing practices are careful checking by in-house editors and review by outside libel counsel. Chapadeau, supra, 379 N.Y.S.2d at 65, 341 N.E.2d at 571-72 (article checked by two persons other than author); Ortiz, supra, 478 N.Y.S.2d at 899 (same); Jenkins, supra, slip op. at 2 (The defendants circulated the article to various assistant editors who were instructed to check it carefully for accuracy.).

GLOBE manifested each of these indicia of responsible journalism. GLOBE trusted Wade as an experienced journalist and a frequent contributor, none of whose 15 articles, over the course of 3 years, had ever been the target of a defamation suit or had otherwise been questioned. GLOBE circulated the article to three editors for checking and editing. The article was then forwarded to libel counsel. Only after the article received a clean bill of health from libel counsel was it published. “This is hardly indicative of grossly irresponsible conduct. Rather it appears that the publisher exercised reasonable methods to insure accuracy.” Chapadeau, supra, 379 N.Y.S.2d at 65, 341 N.E.2d at 572.

Nelson contends that GLOBE had several reasons to question the accuracy of the article and the reliability of its author. Close examination reveals the fallacies in these contentions. Nelson first points out that GLOBE conceived the “Marshmallow Diet.” Whether a freelance journalist receives the idea for a story from the publisher or formulates it himself has no bearing on the publisher’s responsibility. Free lance reporters often receive story ideas from publishers. They develop those that seem feasible and reject others, see infra pp. 978-79. Nelson next notes that Wade did not have a college or graduate degree in nutrition. This has no bearing on the question of gross irresponsibility. Many journalists are generalists, who write articles by drawing information from the “experts.” If, as the plaintiff suggests, the media should be subjected to possible punishment for publishing an article on a medical or scientific subject because the author does not hold an advanced degree in the subject, reporting on such subjects will be far less frequent and vigorous.

Unable to fix liability on GLOBE by virtue of its supervision of Wade, Nelson next attempts to impute Wade’s conduct to GLOBE (1) through application of the doctrine of respondeat superior and (2) because GLOBE edited Wade’s copy before final publication. Both attempts to impute Wade’s conduct to GLOBE fail.

a) Respondeat Superior

If Wade had been a GLOBE employee when he wrote the article, Wade’s conduct would be attributable to GLOBE under the doctrine of respondeat superior, and GLOBE might be liable to Nelson. On the other hand, GLOBE is not responsible for Wade’s actions if he was an independent contractor. Cantrell v. Forest City Publishing Co., 419 U.S. 245, 253, 95 S.Ct. 465, 470, 42 L.Ed.2d 419 (1974); Ortiz v. Valdescastilla, supra, 478 N.Y.S.2d at 899. Not surprisingly, the plaintiff argues that Wade was a GLOBE employee when he wrote the article.

The Second Circuit discussed the methodology for determining whether someone is an employee or an independent contractor in Hilton International Co. v. NLRB, 690 F.2d 318, 320 (2d Cir.1982). The court stated,

an employer-employee relationship exists if the purported employer controls or has the right to control both the result to be accomplished and the “manner and means” by which the purported employee brings about that result____ [TJhis test is difficult to apply since the result is necessarily a function of the manner and means employed. Nevertheless, “the more detailed the supervision and the stricter the enforcement standards, the greater the likelihood of an employer-employee relationship____” Factors which may be considered in determining employee status include: whether the purported employee is engaged in a distinct occupation or business; whether the work involved is usually done under an employer’s direction or by an unsupervised specialist; the skill involved; who' supplied the instrumentalities and place of performance; the length of employment; the method of payment (by the time or by the job); whether the work is part of the employer’s regular business and/or necessary to it; and the intent of the parties creating the relationship. No single factor is determinative.

Id. (citations omitted). Other factors are whether the employer withholds taxes or social security, Ketcham v. Hall Syndicate, Inc., 37 Misc.2d 693, 236 N.Y.S.2d 206, 211 (Sup.Ct.N.Y.County 1962), affd, 19 A.D. 611, 242 N.Y.S.2d 182 (1st Dep’t 1963), whether the worker receives fringe benefits, and how the parties themselves view the relationship. Long Island Daily Press Publishing Co. v. Tomitz, 12 Misc.2d 480, 176 N.Y.S.2d 215, 220 (Sup.Ct. Queens Co.1958). If the employer has the right to control the details of work, the worker is an employee; if the employer can only control the result (even the details of the result), the worker is an independent contractor. In re Morton, 284 N.Y. 167, 172, 30 N.E.2d 369 (1940).

The facts provided the Court lead inexorably to one conclusion. Wade was an independent contractor. Wade alone controlled the manner in which the article was written; he selected and interviewed sources, including, purportedly, the plaintiff, without any guidance from GLOBE. He devised the diet and chose the words, style, and order of his finished copy. At no time from the time Wade agreed to write the article until the time he submitted his copy to GLOBE did any GLOBE editor ever attempt to interfere with Wade’s research or writing. Wade was paid a flat $175.00 fee for the article. He was not salaried by GLOBE, and did not receive fringe benefits. GLOBE paid no Social Security tax for Wade, and GLOBE withheld no income tax on its payments to Wade. Wade worked out of his own office, used his own research materials, contacted sources on his own telephone, and typed copy on his own typewriter using his own materials. Both GLOBE and Wade regarded their relationship as one of independent contracting.

The plaintiff has provided no evidence to refute this overwhelming proof that Wade was an independent contractor. Indeed, most of the factors that the plaintiff emphasizes have no bearing on Wade’s status as an independent contractor. Certainly the fact that an independent contractor has worked on previous assignments for an employer does not make him any less independent. And the fact that GLOBE suggested the idea for the article is irrelevant to Wade’s status. By definition, in an employer-independent contractor relationship, the employer hires the contractor to do a specific, defined job. Although mindful of the proscriptions in this Circuit against the award of summary judgment, we must conclude that Wade, in writing the article, acted as an independent contractor. He, alone, is responsible for any torts he may have committed.

b) Editing

The plaintiff also argues either that GLOBE became a co-author by editing the article, or, that GLOBE’s editing is, at a minimum, evidence of gross irresponsibility-

GLOBE’s editing did not alter the content of Wade’s submission. GLOBE restated, in more readable form, the factual assertions contained in Wade’s copy. In particular, the statements concerning Nelson are a cautious restatement of Wade’s copy. The single reference to the plaintiff in Wade’s copy read, “Diane Nelson, of the Bureau of Nutrition, in New York, was instrumental in preparing this marshmallow-based diet to help GLOBE readers lose up to a pound a day.” Barr Affidavit, Exhibit 3. GLOBE rewrote this sentence to read, “Together with Diane Nelson, a nutritionist with the Bureau of Nutrition, the following marshmallow diet was prepared.” Wade Affidavit, Exhibit 1. Neither this passage nor the remainder of the article contains substantive changes from Wade’s copy. Indeed, the article expresses nothing that is not expressed in Wade’s draft. Editorial rewriting, which is intended to attract and retain the reader’s eye and to summarize the contents of an article, does not amount to an endorsement of the article or an adoption of it as one’s own. Herbert v. Lando, 596 F.Supp. 1178, 1230 (S.D.N.Y.1984) (discussing addition of introductory streamer, inclusion of graphics, and editing of concluding paragraph). Cf Martin Marietta Corp. v. Evening Star Newspaper Co., 417 F.Supp. 947, 960 (D.D.C.1976) (Plaintiff argued that rewriting made the article its own. The court stated, “Plaintiff cannot seriously contend that the Star rewrote the entire article, since, aside from the addition of several paragraphs, editing was limited to improving style and did not result in substantive changes.”).

Nor do GLOBE’s editorial changes demonstrate gross irresponsibility. GLOBE’s editing is no evidence of irresponsibility, much less gross irresponsibility. Because no genuine issue of fact exists as to whether the defendant was grossly irresponsible in publishing the statements concerning the plaintiff, the defendant’s motion for summary judgment on the plaintiff’s first cause of action is granted.

B. The Privacy Claim

The plaintiff’s second cause of action arises under sections 50 and 51 of the New York Civil Rights Law. N.Y. Civ. Rights Law §§ 50, 51 (McKinney 1976). Section 51 provides a cause of action for injunctive relief and damages where a person’s name, portrait, or picture is used, without that person’s consent, for advertising purposes, or for purposes of trade.

This provision, which, if read literally, would provide an extremely broad cause of action applicable to virtually all uses of a person’s name or picture, including use by the news media, has been narrowly construed by the courts, especially in the context of persons denominated “public figures,” so as “to avoid any conflict with the free dissemination of thoughts, ideas, newsworthy events, and matters of public interest” guaranteed by the First Amendment.

Ann-Margret v. High Society Magazine, Inc., 498 F.Supp. 401, 404 (S.D.N.Y.1980) (quoting Time, Inc. v. Hill, 385 U.S. 374, 382, 87 S.Ct. 534, 539,17 L.Ed.2d 456 (quoting Spahn v. Julian Messner, Inc., 18 N.Y.2d 324, 274 N.Y.S.2d 877, 879, 221 N.E.2d 543, 545 (1966)). This narrow construction extends to the trade purposes prong of the statute, which the plaintiff contends applies herein. With two exceptions, that .prong may not be used to prevent or penalize comment on “matters in which the public has a right to be informed.” Lerman v. Flynt Distributing Co., supra, 745 F.2d at 131. Such matters are to be “freely defined.” Arrington v. New York Times Co., 55 N.Y.2d 433, 449 N.Y.S.2d 941, 944, 434 N.E.2d 1319, 1322 (1982). They include news of “entertainment and amusement, concerning interesting phases of human activity in general.” Ann-Margret v. High Society Magazine, Inc., supra, 498 F.Supp. at 405. Matters of health, nutrition, and, in this case, dieting, fit within this broad formulation. See supra p. 976.

[A] plaintiff may still be entitled to obtain the sanctions of § 51 under the trade purposes prong even where the use is in conjunction with a report on a matter of public interest, but in order to do so must meet one of two tests. First, a plaintiff may attempt to demonstrate that the use of plaintiffs name or likeness has no real relationship to the discussion, and thus is an advertisement in disguise.

Lerman v. Flynt Distributing Co., supra, 745 F.2d at 131. Any contention that the use of plaintiffs name had “no real relationship” to the content of the article would be frivolous. According to the article, the plaintiff assisted in the preparation of the diet that is its subject.

Alternatively, a plaintiff may claim that defendant forfeited the privilege for reporting matters on which the public has the right to be informed by proving that the defendant’s use was infected with material and substantial fiction or falsity....
Even when so infected, for defendant to lose the newsworthy privilege plaintiff must prove that defendant acted with some degree of fault regarding the fictionalization or falsification.

Id. at 132. The plaintiff’s attack on the article rests on this second exception. An issue of fact remains as to substantial falsification. But the plaintiff must also establish that an issue of fact remains as to fault in order to survive the defendant’s motion on the second count.

“[Wjhether ‘actual malice’ ... need be proven in Civil Rights Law cases where the plaintiff is neither a public official nor a public figure,” is an open question. Davis v. High Society Magazine, Inc., 90 A.D.2d 374, 457 N.Y.S.2d 308, 316 (2d Dep’t 1982). We do not, however, believe it a difficult one.

A private plaintiff, like Nelson, who is neither a public official nor a public figure, see supra pp. 974-976, need not prove actual malice in order to recover in a substantial falsification case under the privacy act. Were courts to require a private plaintiff to prove actual malice in those circumstances, the substantial falsification exception would be rendered close to nugatory. Such an interpretation would sap helpless private plaintiffs of the protections of the statute in an area where constitutional values are often barely implicated. Not surprisingly, no court, state or federal, has applied the actual malice standard in this context to a plaintiff who was neither a public official nor a public figure.

It remains to set down the degree of fault that a private individual must prove when the nonconsentual use of his name is infected with substantial falsification. Decisions of the New York Court of Appeals in the analogous defamation context provide an accurate guide. Where the article in question is newsworthy, both privacy and defamation actions implicate the public’s strong interest in the discussion of public issues. Likewise, private plaintiffs in both types of actions neither assume the risk of defamation or invasion of his privacy nor are able to take effective counter measures. Given the similarity between these defamation and privacy act claims, and the absence of any additional guidance, we feel constrained to conclude that “[t]he same standards of constitutional protection apply to an invasion of privacy as to libel actions,” Meeropol v. Nizer, supra, 560 F.2d at 1066, cited in Lerman v. Flynt Distributing Co., supra, 745 F.2d at 135, at least with respect to private plaintiffs. We therefore hold that in order to state a claim under section 51 of the Civil Rights Law, a private individual who is the subject of a newsworthy article must establish that errors in the article regarding him were the result of grossly irresponsible publishing practices. Cf Chapadeau v. Observer Dispatch, supra. Since the plaintiff herein is unable to make that showing, see supra pp. 976-977, her claim under the Civil Rights law must be dismissed.

III. Conclusion

The defendant’s motion for summary judgment is granted. The Clerk will enter judgment accordingly.

SO ORDERED.

      . The text of the article follows:
      You can lose a pound a day, and boost your energy at the same time, with an amazing new diet based on marshmallows.
      That’s the message from nutritionists who say you don’t need to go hungry either, because marshmallows are jam-packed with appetite-slashing carbohydrates and proteins.
      "Marshmallows are the best all-natural appetite suppressant we have — and they taste
      good, too,” declares Dr. Elizabeth Whelan, director of the American Council on Science and Health, in New York City.
      Dr. Evangelos Giziz, an adjunct professor of nutrition at New York University, adds: "Read the label on a package of marshmallows. You’ll see they contain egg white — a source of complete protein — and gelatin, another high protein source.
      "This concentration of protein is involved in the release of phenylalanine, an amino acid, or building block, that signals your brain that you no longer require food, and substances that make you feel full."
      GLOBE’s experts stress that marshmallows are only one part of the balanced diet you need to stay healthy — and still lose a pound a day.
      "Be sure to keep within your daily caloric range,” says Whelan, "and you’ll soon see the effects.”
      Diane Nelson, of the Bureau of Nutrition, in New York, was instrumental in preparing this marshmallow-based diet to help GLOBE readers lose up to a pound a day.
      The diet provides all the vitamins, minerals and nutrients a healthy adult needs on about 1,200 calories a day. Include unsweetened coffee or tea — and a full ounce of marshmallows with every meal.
      BREAKFAST
      (Choose one from each group):

        'A medium cantaloupe; 1 cup strawberries; medium orange; 4 oz. orange or grapefruit juice; large tangerine; 'A medium grapefruit; 8 oz. tomato juice.
      ' 2 oz. cottage or pot cheese; 1 oz. hard cheese; 2 oz. cooked or canned fish; 1 egg, 8 oz. skim milk.
      1 slice bread;
        A cup ready-to-eat cereal; 'A cup cooked cereal.
      LUNCH
      (Choose one from each group):
      2 oz. fish, poultry or lean meat; 4 oz. cottage or pot cheese; 2 oz. hard cheese; 1 egg; 2 level tbsp. peanut butter.
      1 slice bread, wholegrain or enriched; vegetable, raw or cooked (except potato); 1 serving fruit.
      DINNER
      (Choose one from each group):
      4 oz. baked or broiled fish, whitemeat chicken or lean beef.
      Broccoli, carrots, winter squash, mustard greens, chicory, pumpkin, watercress, escarole, collards (or other leafy greens), spinach. 1 serving fruit.
      OTHER DAILY FOODS
      (Choose three):
      tsp. vegetable oil, tsp. mayonnaise, 2 tsp. French Dressing; tsp. margarine with liquid vegetable oil. (Choose two): cup buttermilk; cup evaporated skim milk;
        A cup nonfat dry milk solids.
      Nelson Affidavit, Exhibit B.

      . The amended complaint originally contained three causes of action. The plaintiff subsequently dismissed the third claim, for intentional infliction of emotional distress, with prejudice. In an order dated September 25, 1984, Judge Sofaer denied the defendants’ motion to dismiss the plaintiff’s libel claim for failure to allege a defamatory statement. That determination is the law of the case.

      . The complaint names Globe International, Inc., Globe Communications, Inc., and "GLOBE" as defendants. The former publishes GLOBE. The Court presumes that Globe Communications Corp., identified in the complaint as Globe Communications, Inc., is the parent of Globe International, Inc. "GLOBE” is neither a corporate entity nor a proper party to this suit. Hereinafter, the defendants are collectively referred to as "GLOBE.”

      . A small but growing number of courts have heeded the Supreme Court's language and narrowly construed the scope of the public official designation. See D. Elder, Defamation, Public Officialdom and the Rosenblatt v. Baer Criteria — A Proposal for Revivification: Two Decades After New York Times Co. v. Sullivan, 33 Buff.L. Rev. 579, 640-43 (1984) (Listing governmental agents or employees deemed not to have relinquished their private status).

      . It is for the Court to determine whether the plaintiff in a defamation action is a public official and/or a public figure. Rosenblatt v. Baer, 383 U.S. 75, 88, 86 S.Ct. 669, 677, 15 L.Ed.2d 597 (1966).

      . Although Hilton International Co. v. NLRB discusses the employee/independent contractor distinction in the context of the National Labor Relations Act and issues arising thereunder, the New York Courts apply the test applied in this and other NLRB cases. Id. at 318.

      . Section 50 provides criminal penalties for the use of a person’s name, picture or likeness for advertising or trade purposes. It states,
      A person, firm or corporation that uses for advertising purposes, or for the purposes of trade, the name, portrait or picture of any living person without having first obtained the written consent of such person, or if a minor of his or her parent or guardian, is guilty of a misdemeanor.
      N.Y.Civ. Rights Law § 50 (McKinney 1976). Because the provisions of section 50 are incorporated in section 51, . reference will be made only to section 51.

      . Section 51 states,
      Any person whose name, portrait or picture is used within this state for advertising purposes or for the purposes of trade without [his] written consent ... may maintain an equitable action in the supreme court of this state against the person, firm or corporation so using his name, portrait or picture, to prevent and restrain the use thereof; and may also sue and recover damages for any injuries sustained by reason of such use and if the defendant shall have knowingly used such person’s name, portrait or picture in such manner ... the jury in its discretion may award exemplary damages.
      New York Civ. Rights Law § 51 (McKinney Supp.1983).

      . When substantial falsification is alleged, a public figure or public official must show that the material was published with “actual malice” in order to recover. Meeropol v. Mizer, 560 F.2d 1061, 1066 (2d Cir.1977), cert. denied, 434 U.S. 1013, 98 S.Ct. 727, 54 L.Ed.2d 756 (1978); Spahn v. Julian Messner, Inc., 21 N.Y.2d 124, 286 N.Y. S.2d 832, 834, 233 N.E.2d 840, 842 (1967), appeal dismissed, 393 U.S. 1046, 89 S.Ct. 676, 21 L.Ed.2d 600 (1969).

      . Arguably, Time, Inc. v. Hill, 385 U.S. 374, 87 S.Ct. 534, 17 L.Ed.2d 456 (1967), a privacy act case in which the Supreme Court required a showing of actual malice, concerned an article written about non-public figures. In that case, the Court never explicitly stated that the plaintiffs, a family thrust into the headlines after their four-day, 19-hour ordeal as hostages of three escaped convicts, were public figures. Today, those plaintiffs, who shunned the limelight, would not be considered public figures. See supra pp. 975-76.


source: Caselaw Access Project

author: HARPER, District Judge.

license: Public Domain

text:
    McCARTHY BROTHERS CONSTRUCTION COMPANY, a Missouri corporation, Plaintiff, v. Samuel R. PIERCE, Jr., in his official capacity as Secretary of the United States Department of Housing & Urban Development, and National Church Residences of St. Charles, Missouri, an Ohio non-profit corporation, Defendants.
    No. 84-1830C (A).
    United States District Court, E.D. Missouri.
    Jan. 14, 1986.
    James L. Hawkins, Jeffrey L. Demerath, St. Louis, Mo., for plaintiff.
    Joseph B. Moore, Asst. U.S. Atty., St. Louis, Mo., Keith W. Hazelwood, St. Charles, Mo., for defendants.
   MEMORANDUM OPINION

HARPER, District Judge.

This matter is before the Court on plaintiff’s declaratory judgment action. Plaintiff seeks a declaration that it is entitled to $131,850.00 incentive fee under a construction contract between it and defendant, National Church Residences of St. Charles, Missouri (hereinafter referred to as National Church). Plaintiff bases federal jurisdiction over this matter upon diversity of citizenship pursuant to 28 U.S.C. § 1332.

This case was submitted to the Court upon joint stipulations of fact which the Court adopts as its statement of facts. The parties have also submitted a list of exhibits and a stipulation relating to them. From these facts and exhibits, the Court has reached the following conclusions.

Plaintiff, McCarthy Brothers Construction Company, and defendant, National Church, on September 29, 1981, contracted to build the Jaycee Fairgrounds Village (hereinafter referred to as the project). The project was to provide low-cost housing for the elderly. Financing for the project was supplied by the Department of Housing & Urban Development (hereinafter referred to as HUD) through a direct loan.

In addition to an original fee of $247,-272.00, the contract provided for the payment of an incentive fee to plaintiff if certain conditions were met. These conditions consisted of, (1) a cost savings, and (2) an early completion. Plaintiff built the project at a cost of nearly $480,000.00 below that which was estimated. To satisfy the second requirement, plaintiff needed to have substantially completed the project before March 14, 1983 — the contract’s completion date.

The parties to this lawsuit disagree as to whether plaintiff fulfilled the second condition required to qualify for the incentive fee. Their disagreement arises from a dispute over the definition of the term “substantial completion.”

Under the definition desired by plaintiff, substantial completion would have occurred nearly two weeks (March 1, 1983) prior to the contract’s completion date. On the other hand, HUD’s definition of the term would have resulted in substantial completion occurring approximately eleven days late, on March 25, 1983.

Plaintiff claims that Article 8.1.3 of the AIA Document A201 properly defines the term “substantial completion.” This provision reads as follows:

“8.1.3 The Date of Substantial Completion of the Work or Designated portion thereof is the Date certified by the Architect when construction is sufficiently complete, in accordance with the Contract Documents, so the Owner can occupy or utilize the Work or designated portion thereof for the use for which it is intended.”

The parties do not disagree that under this definition substantial completion occurred prior to March 14, 1983.

HUD advocates that Article 2D of the construction contract properly defines the disputed term. This provision reads as follows:

“D. The date of substantial completion shall be the date the HUD representative signs the HUD Representative Trip Report (Form HUD 5379) which indicates construction is complete and which report is substantially endorsed by the Chief Architect as being the Final Inspection Report.”

Once again, the parties do not disagree that under this definition substantial completion occurred after March 14, 1983.

This matter simply requires the Court to decide which definition of “substantial completion” applies to the issue of incentive fees. Clearly, Article 2D denotes a meaning of “substantial completion.” Furthermore, Article 1A of the construction contract expressly states, inter alia, that “[t]he provisions of this instrument and the said FHA Supplementary Conditions take precedence over all inconsistent provisions in the said AIA General Conditions.” (Emphasis added.)

Article 8.1.3 of the AIA General Conditions and Article 2D of the construction contract are inconsistent. The inconsistency arises over the person designated to determine “substantial completion.” Article 8.1.3 requires the administering architect to make the determination while Article 2D delegates that responsibility to HUD.

Section 1749a(c)(10) U.S.C. of Title 12 authorizes HUD to include in this construction contract a delegation such as expressed in Article 2D. A thorough and careful reading of the contract clearly indicates that HUD’s determination of “substantial completion” controls the award of incentive fees. The administering architect’s power to make such a determination is inconsistent, and thus, subordinate to that of HUD’s.

In Missouri and generally, it appears to be well-established that parties to a building contract may agree that a designate person, such as a named architect or engineer, shall determine questions relating to the performance of the contract and the amount due, and that such determination shall be final and conclusive, absent fraud or gross mistake. Phoenix Assurance Co. of N. Y. v. Appleton City, 296 F.2d 787, 790 (8th Cir.1961).

This agreement between the plaintiff and National Church, embodied in the construction contract, calls for HUD’s Chief Architect to determine the date of substantial completion. Plaintiff has not produced any facts showing fraud or gross mistake by HUD. On the contrary, HUD has shown good cause for its issuance of the Final Inspection Report eleven days after the contract’s completion date.

Plaintiff relies very heavily on Modern Am. Mortg. Corp. v. Skyline Park, 614 F.2d 1009 (5th Cir.1980) (hereinafter Skyline Park) to support its contention that Article 2D applies to National Church and HUD. This Court, however, believes that plaintiff’s reliance is misplaced. Factually, Skyline Park is distinguishable because, unlike the case at bar, the contractor had fully completed its project. Skyline Park presents no factual issue of substantial completion.

Plaintiff also requests a court order requiring HUD to extend the contract’s completion date to April 20, 1983. Its request stems from a change order it had submitted to HUD after the project’s final completion. Considering the project was completely finished, the Court cannot say that HUD’s refusal to extend the contract was arbitrary or capricious.

Accordingly, the Court orders judgment for the defendants. The Court declares that substantial completion occurred too late for plaintiff to qualify for the incentive fee. Moreover, HUD need not extend the contract’s completion date to April 20, 1983.

The clerk of the Court is directed to prepare and enter the proper judgment in accordance with this opinion.

      . AIA Document A201 contains the general conditions of a construction contract and is produced by the American Institute of Architects. Artiele 1A of the construction contract expressly incorporates this document and its provisions.

      . When the contract was executed, HUD's authority was under Section 1749a(c)(9).

      . Gross mistake necessarily includes bad faith or a failure to exercise an honest judgment. Stiers Bros. Const. Co. v. Moore, 158 S.W.2d 253, 257 (Mo.App.1942).


author: TOM S. LEE, District Judge.

text:
    Robert A. WILLIAMS, Plaintiff, v. Marvin FARRIOR, Defendant.
    Civ. A. No. E85-0131(L).
    United States District Court, S.D. Mississippi, E.D.
    Jan. 14, 1986.

      Robert A. Williams, Parchman, Miss., for plaintiff.
    William A. Patterson, McCoy, Wilkins, Noblin, Anderson & Stephens, Jackson, Miss., for defendant.
   MEMORANDUM OPINION AND ORDER

TOM S. LEE, District Judge.

This cause is before the court on motion of defendant Marvin Farrior to dismiss or for summary judgment pursuant to Rules 12(b)(1) and 56 of the Federal Rules of Civil Procedure. Pro se plaintiff Robert Williams has filed no response to defendant’s motion, but the court has closely examined plaintiff’s complaint together with defendant’s memorandum brief in considering the motion.

In his pro se complaint, plaintiff asserts a cause of action under 42 U.S.C. § 1983 claiming that certain actions of the defendant deprived him of rights secured by the United States Constitution. Plaintiff is presently incarcerated at the Mississippi State Penitentiary serving a sentence on a burglary conviction returned in the Circuit Court of Wayne County, Mississippi. Defendant Marvin Farrior is the Sheriff of Wayne County, and he is sued in both his individual and official capacities. Plaintiff requests both compensatory and punitive damages against Farrior, plus declaratory and injunctive relief.

On February 6, 1984, plaintiff was arrested by members of the Waynesboro, Mississippi Police Department and charged with burglary. On February 13, 1984, he was brought before the Municipal Court Judge in Waynesboro, whereupon he waived his right to a preliminary hearing. Bond was set in the amount of $5,000.00. On February 15, 1984, an agent for Delta Bonding Company of Quitman, Mississippi appeared at the Wayne County Jail, to which Williams had been transferred, and signed Williams’ bond. Williams was released and remained under bond pending his arraignment on the burglary charge.

Plaintiff was arraigned before Wayne County Circuit Court Judge Lester Williamson on July 11, 1984. At the arraignment, the Assistant District Attorney informed Judge Williamson that Delta Bonding Company, which appeared as surety on Williams’ bond, had taken bankruptcy and that the bond was therefore void. Judge Williamson then instructed plaintiff that he could be released pending trial on the same $5,000.00 bond provided that he could locate another bonding company to sign his bond. Plaintiff’s bond was reset at $5,000.00 by order of the court dated July 12, 1984.

On July 20, 1984, Whitney J. Carvin, a representative of Thornton Bonding Company of Gulfport, Mississippi, appeared at the Wayne County Jail for the purpose of signing Williams’ bond. Carvin’s services were solicited by Williams’ wife while he remained incarcerated. At the jail, Carvin was confronted by Sheriff Farrior, who allegedly informed Carvin that he would not approve that bond or any other on that day. Farrior contends that he was exercising his discretion and, indeed, his obligation to review the sufficiency of a bail-bond pursuant to Miss.Code Ann. § 99-5-19 (1972). As Carvin and the bonding company he purported to represent were unknown to Sheriff Farrior, and under § 99-5-19 a sheriff approving an insufficient bond is personally liable thereon, Farrior takes the position that his actions in denying Williams’ bond were fully in compliance with the requirements of the Mississippi bail statutes and the Mississippi Constitution. It is undisputed that Williams remained incarcerated until his trial and conviction on the burglary charge on July 26, 1985.

Williams’ complaint in this cause alleges inter alia that Farrior’s action violated his constitutional right to bail assertedly provided under the Fifth, Eighth and Fourteenth Amendments to the United States Constitution. It is now well settled that a plaintiff must show two essential elements to establish a cause of action under 42 U.S.C. § 1983: that the conduct complained of must have been committed by a person acting under color of state law; and that the conduct must have deprived the plaintiff of rights, privileges or immunities secured by the Constitution or laws of the United States. Augustine v. Doe, 740 F.2d 322, 324-25 (5th Cir.1984). In addition, a § 1983 plaintiff who, as here, seeks civil damages from an individual defendant must show that the actions of such defendant violated clearly established law of which a reasonable person in the defendant’s position would have known. Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). There is no dispute between the parties that Farrior was at all relevant times acting under color of state law for § 1983 purposes. Thus, the critical issue presented by defendant’s motion is whether a criminal defendant not charged with a capital offense has an absolute right to release on bail under the United States Constitution which may not be impinged upon by state regulation of bail procedures.

The difficulty in addressing this issue from a § 1983 perspective is defining the limits of the constitutional right to reasonable bail. For purposes of the Fourteenth Amendment’s Equal Protection Clause, it is clear that a bail system which allows only monetary bail and does not provide for any meaningful consideration of other possible alternatives for indigent pretrial detainees infringes on both equal, protection and due process requirements. See Pugh v. Rainwater, 572 F.2d 1053 (5th Cir.1978); Lee v. Lawson, 375 So.2d 1019 (Miss.1979). In Lee, the Mississippi Supreme Court stated that defendants not charged with committing heinous or violent crimes are presumed to be entitled to be released on their own recognizance. 375 So.2d at 1024. Such presumption, however, does not mean that every person accused of a crime should be released on his own recognizance; that decision rests in the sound discretion of the judicial officer. Id. Thus, even under the strict judicial scrutiny directed at state bail procedures for Fourteenth Amendment purposes, there is no absolute right to release on bail. The Fourteenth Amendment simply does not provide the absolute entitlement to pretrial release asserted by Williams.

Williams’ claim of absolute entitlement under the Eighth Amendment must also fail. The parameters of the Eighth Amendment’s prohibition of excessive bail, and indeed the constitutional limitations on the availability of bail in general, were delineated by the United States Supreme Court in Stack v. Boyle, 342 U.S. 1, 72 S.Ct. 1, 96 L.Ed. 1 (1951). In Stack, the court stated that,

... federal law has unequivocally provided that a person arrested for a non-capital offense shall be admitted to bail. This traditional right to freedom before conviction permits the unhampered preparation of a defense, and serves to prevent the infliction of punishment prior to conviction, (citations omitted). Unless the right to bail before trial is preserved, the presumption of innocence, secured only after centuries of struggle, would lose its meaning.

342 U.S. at 4, 72 S.Ct. at 3. (emphasis original).

The Court further noted, however, that an absolute requirement of release on bail is not necessary to preserve the presumption of innocence, stating,

The right to release before trial is conditioned upon the accused’s giving adequate assurance that he will stand trial and submit to sentence if found guilty, (citations omitted). Like the ancient practice of securing the oaths of responsible persons to stand as sureties for the accused, the modern practice of requiring a bail bond or the deposit of a sum of money subject to forfeiture serves as additional assurance of the presence of an accused. Bail set at a figure higher than an amount reasonably calculated to fulfill this purpose is “excessive” under the Eighth Amendment, (citations omitted).
Since the function of bail is limited, the fixing of bail for any individual defendant must be based upon standards relevant to the purpose of assuring the presence of that defendant.

342 U.S. at 4-5, 72 S.Ct. at 3.

The analysis under the Eighth Amendment’s prohibition of excessive bail involves a balancing of the pretrial detainee’s right to participate fully in the preparation of his case and, more broadly, to be free from punishment prior to conviction, against the state’s interest in ensuring his presence at a later trial. The “ultimate inquiry” in such cases is whether the bond amount is “necessary to reasonably assure defendant’s presence at trial.” Pugh v. Rainwater, 572 F.2d at 1057.

As stated previously, plaintiff does not allege in his complaint that the amount of his bond was unreasonably excessive, or that it bore no relationship to what was necessary to assure his presence at trial. Nor does plaintiff allege that, as an indigent, he was entitled to be released on his own recognizance, a finding this court cannot make upon the bare record before it. Rather, plaintiff’s complaint centers on the allegation that a state official cannot constitutionally deny release to a pretrial detainee based upon a finding that the detainee’s proffered surety is insufficient. In essence, plaintiff’s contention is that denial of release on bail is denial of bail, and therefore such denial is per se excessive bail under the Eighth Amendment.

The court cannot agree. Since Stack v. Boyle, the constitutional right to bail has been conditioned upon the detainee's giving adequate assurance that he will appear at trial. Under Mississippi law, the determination as to the need for a bail bond or the propriety of a personal recognizance release has been vested in the discretion of a judicial officer. Lee, 375 So.2d at 1024. Once bail has been set in a sum certain, the duty to review the adequacy of a proffered bondsman has been left to the-sheriff, who must satisfy himself as to the reliability of the surety or stand personally liable for the amount of the bond should the surety prove insufficient. See Miss. Code Ann. § 99-5-19. To find a constitutional violation in a sheriff’s denial of a proffered bondsman would place the sheriff in the untenable position of either approving a surety for whose insufficiency or insolvency he is personally liable or facing personal liability under § 1983. The plaintiff’s underlying claim is, therefore, that the statutory bail procedure under Mississippi law violates the United States Constitution, a claim which this court rejects under Lee v. Lawson, supra.

Under the factual circumstances presented in this case and the applicable constitutional analysis, this court is of the opinion that the United States Constitution does not grant an unconditional right to release on bail, and that the actions of Sheriff Farrior did not violate plaintiff’s constitutional right to have reasonable bail set in his case. Therefore, because plaintiff has failed to allege a constitutional deprivation in Sheriff Farrior’s rejection of his proffered surety, this court is without jurisdiction and defendant’s motion to dismiss should be granted. See Lambert v. McFarland, 612 F.Supp. 1252, 1266-67 (N.D.Ga.1984).

Accordingly, the court concludes that defendant’s motion to dismiss pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure should be granted. A separate judgment shall be entered according to the local rules.

      . Miss.Code Ann. § 99-5-19 provides:
      If any sheriff neglect to take a bail-bond, or if the same, from any cause, be insufficient at the time he took and approved the same, on exceptions taken and filed before the close of the next term, after the same should have been returned, and upon reasonable notice thereof to said sheriff he shall be deemed and stand as special bail, and judgment shall be rendered against him as such.

      . Plaintiff also alleges that Farrior’s action deprived him of certain rights secured by the First Amendment, a claim which this court cannot even liberally construe as having any foundation in law or fact.

      . While Williams’ complaint does not attack the constitutionality of the bail procedures under Mississippi law, or the decision of Judge Williamson in resetting bail in the amount of $5,000.00, the court notes that in Lee the Mississippi Supreme Court set forth eight factors for the judicial officer to consider in setting bail. 375 So.2d at 1024. These factors establish a presumption that the detainee is entitled to pretrial release on his own recognizance, and the incorporation of these factors into the Mississippi bail procedures represents clear compliance with equal protection requirements. This court is further of the opinion that the $5,000.00 bail was reasonable under the circumstances and that Judge Williamson was within the proper scope of his discretion in setting such bail.

      . The court’s finding that there is no unconditional constitutional right to pretrial release on bail makes unnecessary any discussion of the defendant’s qualified immunity defense under Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982).


text:
    Dorothy CATCHINGS, et al., Plaintiffs, v. CITY OF CRYSTAL SPRINGS, MISSISSIPPI, et al., Defendants.
    Civ. A. No. J85-0167(L).
    United States District Court, S.D. Mississippi, Jackson Division.
    Jan. 14, 1986.

      Carroll Rhodes, Hazelhurst, Miss., for plaintiffs.
    Dennis Horn, Horn & Payne, Jackson, Miss., Bob Lawrence, Crystal Springs, Miss., for defendants.
   MEMORANDUM OPINION AND ORDER

TOM S. LEE, District Judge.

This cause is before the court on motion of plaintiffs for attorney fees in reference to their complaint alleging violations of section 2 of the Voting Rights Act and the fourteenth and fifteenth amendments to the Constitution. In their complaint, plaintiffs sought a revised plan for election of members of the Crystal Springs Board of Aldermen, certification of class and costs and attorney fees. Ten days after initiation of this suit, the Crystal Springs Board of Aldermen voted to take action to prepare a plan for a form of government which would comply with the Voting Rights Act. At public meetings held to consider the proposed plan, plaintiffs and their attorney made comments which resulted in changes to the original plan. The plan was precleared and submitted to the Department of Justice although plaintiffs registered complaints. Thereafter the parties entered an agreed judgment adopting the precleared plan and scheduling elections which had previously been stayed.

Plaintiffs’ attorney requests fees of $75.00 per hour for 104 hours, $37.50 per hour for 23 hours of travel, court costs of $245.00 and expenses of $188.77. '

Reasonable attorney fees may be awarded to “the prevailing party” “in any action or proceeding to enforce the voting guarantees of the fourteenth and fifteenth amendments,” 42 U.S.C. § 1973Z (e), and “[i]n any action or proceeding to enforce a provision of sections 1981, 1982, 1983, 1985 and 1986 ...” Defendants admit, and this court agrees, that plaintiffs are the “prevailing part[ies]” as to the change of government issues as contemplated by the statutes. Defendants also agree that $75.00 per hour is the appropriate rate to be used.

Plaintiffs’ attorney submitted a record of his costs and fees by affidavit. The court is of the opinion that fees are not available for time spent on ministerial duties such as photocopying and these hours are disallowed. The plaintiffs’ motion for class certification was not granted so fees incurred for work on that issue are not allowed. Plaintiffs also request fees for work relating to preclearance by the Department of Justice. In Posada v. Lamb County, 716 F.2d 1066 (1983), the Fifth Circuit found it “unnecessary to decide in this case whether attorney’s fees can ever be awarded for participation in a preclearance review.” Id. at 1074. The court held, however, that

if fees can be obtained at all for private opposition mounted in a preclearanee review, which review resulted in the Attorney General’s expression of dissatisfaction with the plan, the award must be justified by a showing that the private objectors’ participation ... changed the result that the Attorney General would otherwise have reached.

Id. at 1075. Such is clearly not the case here where, in spite of plaintiffs’ comments, the Attorney General precleared the submitted plan without modification. The court is of the opinion, however, that plaintiffs’ comments made when the defendants were developing the plan to submit, did have the requisite direct effect on defendants’ decision to modify the plan. Hence, fees are allowed for hours spent on the plan before submission but not after that time. Fees are also disallowed regarding time for which there is an insufficient description of work done.

After revising plaintiffs’ request in light of the above, 48.5 compensable hours remain. The “ ‘product of reasonable hours times a reasonable rate’ normally provides a ‘reasonable’ attorneys’ fee ... [but] ‘in some cases of exceptional success an enhanced award may be ' justified.’ ” Blum v. Stenson, 465 U.S. 886, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984) (quoting Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983)). To determine whether an enhancement is appropriate, the court considers the factors set out in Johnson v. Georgia Highway Express, 488 F.2d 714 (5th Cir.1974). The time and labor required is reflected in the number of hours. The case involved little novelty and difficulty as the legal issues contained in a form of government challenge under the Voting Rights Act are clearly established; additionally, the defendant quickly responded by initiating procedures to alter the form of government. Some, although not exceptional, skill was required to perform the legal services properly. The preclusion of employment by the attorney due to his acceptance of this case as well as time limitations imposed by the client or circumstances is reflected in the number of hours. The customary fee is $75.00 per hour. Plaintiffs did obtain the results sought in that Crystal Springs altered its form of government; little legal work, however, was involved in obtaining the results because the city immediately capitulated. Additionally, no class was ever certified as requested in the complaint. The plaintiffs’ attorney is experienced, having practiced for more than seven years, and is of good repute and ability. Voting Rights Act cases are generally undesirable, although not so much as in the past. The professional relationship between attorney and plaintiffs is not such that its longevity would lead to reduced fees. See Kirksey v. Danks, 608 F.Supp. 1448, 1458 (S.D.Miss. 1985). The fee arrangement is contingent. Accordingly, this court is of the opinion that the use of an enhancement factor is not appropriate.

The court further finds that the use of an hourly rate at one-half of the normal fee is proper for travel time. Plaintiffs are allowed travel, costs and expenses incurred in regard to work found to be compensable.

It is therefore, ordered that plaintiffs are awarded the following:

Attorney fees-$3,656.25

Travel- 525.00

Costs and expenses- 183.72

Total-$4,364.97


author: BARBOUR, District Judge.

text:
    CITICORP INDUSTRIAL CREDIT, INC. v. DRAKE TOWING COMPANY, et al.
    Civ. A. No. W85-0142(B).
    United .States District Court, S.D. Mississippi, W.D.
    Jan. 15, 1986.
    John G. Corlew, Jackson, Miss., for plaintiff.
    William G. Beanland, Vicksburg, Miss., for defendants.
   ORDER

BARBOUR, District Judge.

This matter is before the Court on Defendants’ Motion to Dismiss pursuant to Rule 12(b) for lack of jurisdiction. As grounds for the Motion, Defendants allege that there is not complete diversity of citizenship among the parties for the reason that Plaintiff, a Delaware corporation with its principal place of business in the State of New York, is qualified to do business in Mississippi and is, therefore, a Mississippi citizen for purposes of diversity jurisdiction. Since several of the Defendants are citizens of Mississippi, a finding that Plaintiff is a citizen of Mississippi would require this Court to dismiss action for lack of complete diversity.-

Defendants wrongfully assume, however, that qualification to do business in Mississippi is the equivalent of incorporation in the State. 28 U.S.C. § 1332 states that, for the purposes of diversity jurisdiction, “a corporation shall be deemed to be a citizen of any state by which it has been incorporated and of the state where it has its principal place of business.” Qualification to do business is not the equivalent of incorporation. Since Plaintiff has clearly established that it is not incorporated in the State of Mississippi and that it does not have its principal place of business in Mississippi, there is no basis whatsoever for finding that it is a citizen of the State of Mississippi. Defendants’ Motion is, therefore, denied.