author: LEISURE, District Judge:

text:
    Irving MACHLEDER and Flexcraft Industries, Inc., Plaintiffs, v. Arnold DIAZ, CBS Inc., WCBS-TV, Ann Sorkowitz, Frank Pivalo, Thomas Gallagher, and Dennis P. Coyne, Defendants.
    No. 79 Civ. 4373 (PKL).
    United States District Court, S.D. New York.
    Oct. 4, 1985.

      Wien, Malkin & Bettex, New York City, Robert A. Maehleder, of counsel, for plaintiffs.
    Patterson, Belknap, Webb & Tyler, New York City, Harold R. Tyler, Jr., of counsel, Coudert Brothers, New York City, Pamela Ostrager, of counsel, Ronald E. Guttman, Associate Gen. Counsel, New York City, for defendants.
   DECISION

LEISURE, District Judge:

The complaint in this diversity action asserted claims for compensatory and punitive damages for libel, slander, invasion of privacy, trespass and assault and battery. The claims arose out of the May 22, 1979 broadcast by WCBS-TV of a report about the dumping of chemical wastes on a certain lot adjacent to Avenue P in Newark, New Jersey. The report was prepared by Arnold Diaz, the station’s New Jersey reporter.

Applying New Jersey law, Judge Duffy dismissed two of the three invasion of privacy claims and the trespass claim upon defendants’ summary judgment motion. Maehleder v. Diaz, 538 F.Supp. 1364 (S.D. N.Y.1982). Pursuant to defendants’ application, the trial of this case was bifurcated between the issues of liability and damages. After the close of evidence on the liability issues, the Court granted defendants’ motion to dismiss the assault and battery claims pursuant to Fed.R.Civ.P. 50(a). Following the completion of the trial on both the liability and damages issues, the jury returned a verdict in favor of all defendants on the libel and slander claims but with respect to plaintiff Irving Machleder’s false light invasion of privacy claim, it awarded him $250,000 in compensatory damages and $1,000,000 in punitive damages against defendant CBS, Inc. (“CBS”) only.

CBS has now moved for an order granting judgment notwithstanding the verdict under Fed.R.Civ.P. 50(b), or in the alternative, an order granting a new trial under Rule 59(b). Plaintiffs have cross-moved under Fed.R.Civ.P. 11, 16(f), 26(g), 37(b)(2)(D) and 56(g) for an order imposing sanctions and reasonable costs and attorney’s fees against CBS and its counsel in connection with the discovery of the videotape of the on-air broadcast of the May 22, 1979 report, and the affidavit signed by Mr. Diaz and submitted to the Court in connection with defendants’ summary judgment motion.

Defendant’s Post-Trial Motions

Six of the arguments raised by CBS in support of its post-trial motions were the basis for objections raised unsuccessfully at trial. The six arguments, summarized in the margin, are hereby denied for the reasons previously stated by the Court on the record during the trial, with the exception of the argument that plaintiff can recover punitive damages only if he proves common law malice. That subject is treated more fully below.

The thrust of CBS’s post-trial motions is directed to the jury’s damage awards. CBS alleges that these awards have no foundation in the law or under the facts of this case. More specifically, CBS argues that there was insufficient evidence from which the jury could determine that Mr. Machleder suffered actual injury as a result of the May 22, 1979 broadcast. Next, assuming that plaintiff Machleder proved actual injury, CBS contends that the amount of the award is excessive. Finally, CBS argues that the punitive damages award is unsupported by the record and is grossly excessive.

Compensatory Damages

The standard for determining whether to grant a motion for judgment notwithstanding the verdict was set forth by the Second Circuit in Mattivi v. South African Marine Corp., “Huguenot”, 618 F.2d 163 (2d Cir.1980).

[T]he trial court should grant a judgment n.o.v. only when (1) there is such a complete absence of evidence supporting the verdict that the jury’s findings could only have been the result of sheer surmise and conjecture, or
(2) there is such an overwhelming amount of evidence in favor of the movant that reasonable and fair minded men could not arrive at á verdict against him.

Id. at 168. See also Ebker v. Tan Jay International, Ltd., 739 F.2d 812, 825 (2d Cir.1984).

In cases such as this where First Amendment considerations apply, the Supreme Court requires that “compensatory awards ‘be supported by competent evidence concerning the injury.’ ” Time, Inc. v. Firestone, 424 U.S. 448, 459, 96 S.Ct. 958, 968, 47 L.Ed.2d 154 (1976) quoting Gertz v. Robert Welch, Inc., 418 U.S. 323, 350, 94 S.Ct. 2997, 3012, 41 L.Ed.2d 789 (1974). Under New Jersey law, a plaintiff may recover compensatory damages “if he has met his burden of proving that he has suffered some loss or injury and if he has given the jury some information from which to estimate the amount of damages____” Nappe v. Anschelewitz, Barr, Ansell & Bonello, 97 N.J. 37, 477 A.2d 1224, 1226 n. 1 (1984).

The false light invasion of privacy tort “is designed to compensate for falsehoods that injure feelings rather than reputation.” Sack, Libel, Slander and Related Problems, 393 (1980). “The injury is mental and subjective. It impairs the mental peace and comfort of the person and may cause suffering much more acute that that caused by bodily injury.” Clark v. Celeb Publishing, Inc., 530 F.Supp. 979, 983 (S.D.N.Y.1981) (California law) (quotation omitted).

CBS argues that the trial transcript is devoid of evidence supporting the jury’s compensatory damage award. After describing encounters with five people who told him that they had seen the broadcast, the following question was asked of Mr. Machleder and he gave the following answer:

Q: How did you feel when these people mentioned the broadcast to you?

A: Terribly embarrassed, terribly hurt. Trial Transcript at 1131-32. CBS contends that this testimony constitutes the only evidence presented by plaintiff which describes the mental anguish he suffered as a result of the broadcast and does not amount to adequate proof of injury to feelings. See, e.g., Lerman v. Flynt Distributing Co., 745 F.2d 123, 141 (2d Cir.1984), cert. denied, — U.S. -, 105 S.Ct. 2114, 85 L.Ed.2d 479 (1985); Reveley v. Berg Publications, Inc., 601 F.Supp. 44, 46 (W.D.Tex.1984); Nekolny v. Painter, 653 F.2d 1164, 1172-73 (7th Cir.1981), cert. denied, 455 U.S. 1021, 102 S.Ct. 1719, 72 L.Ed.2d 139 (1982); Nellis v. Miller, 101 A.D.2d 1002, 477 N.Y.S.2d 72, 73 (4th Dep’t), appeal dismissed, 63 N.Y.2d 952 (1984). In other words, CBS contends that plaintiff has offered no evidence of the nature, duration or seriousness of his mental anguish nor what effect, if any, the broadcast had on the quality of his life. See, Bullard v. Central Vermont Ry., 565 F.2d 193, 197 (1st Cir.1977). Consequently, the compensatory award must have been based on “conjecture, speculation, surmise or guess.” Knapp v. Phillips Petroleum Co., 123 N.J.Super. 26, 31, 301 A.2d 451, 453 (App.Div.), certif. denied, 63 N.J. 503, 308 A.2d 668 (1973).

The argument that the exchange quoted above is the only evidence of plaintiff’s hurt feelings is misleading. CBS ignores plaintiff’s testimony about his apprehension that the broadcast would portray him as an illegal dumper, his frantic efforts to prevent the New Jersey footage from being broadcast and his concern that the story would damage the careers of his sons who worked in the chemical industry. In addition, it is self-evident from a viewing of the broadcast tape itself that Mr. Machleder was very upset at even the suggestion that he was somehow responsible for the barrels strewn about the lot next to the Flexcraft Industries, Inc. factory. Further, the CBS legal counsel who spoke to Mr. Machleder when plaintiff asked that the report not be broadcast testified that plaintiff was “rather agitated” at that time. While it is true that some of this testimony related to events which occurred before the report was broadcast, there is no evidence in the record to indicate that Mr. Machleder’s mental state improved after the broadcast. Indeed, it is a fair inference that his fears, apprehension and anguish intensified once people started telling him that they had seen the report, as reflected in his testimony at trial.

More important, however, CBS has ignored the demeanor aspect of Mr. Machleder’s testimony. The testimony that is coldly recorded in the trial transcript is stripped of the dramatic emotional manner in which it was delivered. Plaintiff’s testimony was emotion-filled and more than once his voice wavered and he broke into tears. This aspect of his testimony undoubtedly impressed the jury and certainly impressed the Court that defendant’s broadcast had had a genuine and profound impact on Mr. Machleder’s mental condition. The fact that his torment has persisted over the intervening six years is evidence of the depth and scope of his hurt feelings.

CBS has cited several cases for the proposition that substantial compensatory awards for mental distress are improper where the only evidence is subjective. This argument is unavailing, not only because there was objective evidence to prove plaintiff’s injuries, but plaintiff’s conduct was competent evidence to prove such damage. “Although essentially subjective, genuine injury in this respect may be evidenced by one’s conduct and observed by others.” Carey v. Piphus, 435 U.S. 247, 264 n. 20, 98 S.Ct. 1042, 1052 n. 20, 55 L.Ed.2d 252 (1978). The jury’s ability “to hear and see the witnesses and to have the ‘feel’ of the case” is a significant factor for the Court to consider on this motion. Cf. State v. Johnson, 42 N.J. 146, 199 A.2d 809, 817 (1964). In addition, evidence that plaintiff had anxiety over the effect the broadcast might have on his sons is “competent evidence ... to permit the jury to assess the amount of injury.” Time, Inc. v. Firestone, 424 U.S. 448, 460-61, 96 S.Ct. 958, 968-69, 47 L.Ed.2d 154 (1976) (plaintiff testified that she feared her son would be adversely affected by the story). Moreover, medical evidence is not required to demonstrate mental anguish sufficient to permit the recovery of damages. Cf. Wiskotoni v. Michigan National Bank-West, 716 F.2d 378, 389 (6th Cir.1983); Burnett v. National Enquirer, Inc., 7 Media L.Rep. (BNA) 1321, 1323 (Cal.Super.1981), aff'd in relevant part, 144 Cal.App.3d 991, 193 Cal.Rptr. 206 (1983), appeal dismissed, 465 U.S. 1014, 104 S.Ct. 1260, 79 L.Ed.2d 668 (1984).

CBS has failed to demonstrate that the jury's verdict could only have been the result of “sheer surmise and conjecture” or that there was such overwhelming evidence in favor of CBS that reasonable men could not arrive at a verdict against CBS. Mattivi, 618 F.2d at 168. Defendant’s motion to set aside the verdict or for a new trial on the basis that plaintiff failed to prove that he suffered actual injury is denied.

CBS argues next that, even assuming plaintiff has proved an actual injury, the jury’s compensatory award was grossly excessive. On such a motion, the Court should not disturb the jury’s damages verdict unless there is reason to believe the verdict was the result of passion, bias or prejudice or that it is so excessive or shocking to the court’s conscience “that it would be a denial of justice to permit it to stand.” Mileski v. Long Island Railroad Co., 499 F.2d 1169, 1173 (2d Cir.1974); Morgan v. Consolidated Rail Corp., 509 F.Supp. 281, 286 (S.D.N.Y.1980); Bevevino v. Saydjari, 76 F.R.D. 88, 94-95 (S.D.N.Y.1977), aff'd, 574 F.2d 676 (2d Cir.1978).

The first criterion is not met here. There is no indication the jury acted out of prejudice or passion. First, the trial was bifurcated so the jury would deliberate on the issues of liability and damages separately. The jury deliberated three days on the liability issues and devoted an additional half-day to the damages deliberations. It requested and received copies of selected portions of the trial transcript and received a copy of the Court’s instructions on liability and damages. The jury rejected two of the theories of liability alleged by plaintiffs. The jury’s conduct in this regard demonstrates that it carefully and deliberately followed the Court’s instructions and was not influenced by passion or prejudice. Porss v. Maritime Overseas Corp., 531 F.2d 667, 669 (2d Cir.1976) (testimony read and two of plaintiff’s claims rejected); La France v. New York, New Haven & Hartford Railroad Co., 191 F.Supp. 164 (D.Conn.), aff'd, 292 F.2d 649 (2d Cir.1961).

When considering a claim of excessive damages the Court must accord the jury’s verdict “substantial deference.” Martell v. Boardwalk Enterprises, Inc., 748 F.2d 740, 750 (2d Cir.1984). In order to determine whether an award is so excessive as to shock the judicial conscience, the Court should look to other cases involving awards for mental anguish which were reviewed by higher courts. Id. CBS has referred the Court to several decisions where compensatory damage awards in excess of $50,000 were reduced by means of remittitur or reversed altogether.

A review of these cases, while they do make the Court aware of judicial attitudes in general, “is not particularly helpful since the facts of each case vary significantly.” Burnett v. National Enquirer, 7 Med.L.Rep. (BNA) at 1323. See also Dagnello v. Long Island Railroad, 193 F.Supp. 552, 554 (S.D.N.Y.1960) (Weinfeld, J.) (review of cases “emphasize[s] contrariety of individual views”), aff'd, 289 F.2d 797 (2d Cir.1961). In addition, there are cases where jury verdicts in excess of $50,000 have been left undisturbed. Time, Inc. v. Firestone, 424 U.S. at 460-61, 96 S.Ct. at 968-69 ($100,000 jury award); Wood v. Hustler Magazine, Inc., 736 F.2d 1084, 1093-94 (5th Cir.1984) ($150,000 jury award for false light invasion of privacy), cert. denied, — U.S. -, 105 S.Ct. 783, 83 L.Ed.2d 777 (1985); cf. Alioto v. Cowles Communications, Inc., 430 F.Supp. 1363, 1372 (N.D.Cal.1977) ($350,000 jury award based in part upon plaintiffs uncontradicted testimony “to the apprehension and severe mental and emotional distress ... caused”), aff'd, 623 F.2d 616 (9th Cir.1980), cert. denied, 449 U.S. 1102, 101 S.Ct. 897, 66 L.Ed.2d 827 (1981). Based upon a careful review of these cases and those cited by CBS, as well as the facts and circumstances of this case, the jury’s compensatory damages award of $250,000 is neither excessive nor outrageous. CBS’ motion to reduce the jury’s compensatory damage verdict is denied.

Punitive Damages

CBS asks the Court to set aside the punitive damage verdict because the amount of the award is so excessive that it shocks the judicial conscience. In addition, CBS has renewed its motion that plaintiff is not entitled to a punitive damage award because he failed to prove that CBS acted with spite or ill will.

Common Law or Actual Malice?

In Gertz v. Robert Welch, Inc., 418 U.S. 323, 348-50, 94 S.Ct. 2997, 3011-12, 41 L.Ed.2d 789 (1974), the Supreme Court held that that the First Amendment prohibited punitive damage awards against the publisher of a libel that involved a matter of public concern unless plaintiff proved “actual malice,” that is knowledge of falsity or reckless disregard for the truth. Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., — U.S. -, 105 S.Ct. 2939, 2941, 86 L.Ed.2d 593 (1985). Although the Gertz decision did not bar states from imposing further restrictions on the imposition of punitive damages, most state and federal courts have adopted the actual malice standard as the only requirement in this regard for a punitive damage award. Note, Punitive Damages and Libel Law, 98 Harv.L.Rev. 847, 847, 854 & n. 42 (1985). See, e.g., Goldwater v. Ginzburg, 414 F.2d 324, 343 (2d Cir.1969), cert. denied, 396 U.S. 1049, 90 S.Ct. 701, 24 L.Ed.2d 695 (1970). Defendant’s argument in this regard raises the question whether under New Jersey law proof of New York Times actual malice will support an award of punitive damages or whether plaintiff also must separately prove common law malice.

Constitutional “actual malice” and common law malice address different concerns. In Maressa v. New Jersey Monthly, 89 N.J. 176, 445 A.2d 376, cert. denied, 459 U.S. 907, 103 S.Ct. 211, 74 L.Ed.2d 169 (1982), the New Jersey Supreme Court stated that “ ‘actual malice’ does not mean that “the defamatory falsehood was published with ill will, but rather that the statement was made ‘with knowledge that it was false or with reckless disregard of whether it was false or not.’ ” 445 A.2d at 388 quoting New York Times Co. v. Sullivan, 376 U.S. 254 at 279-80, 84 S.Ct. 710, 725-26, 11 L.Ed.2d 686.

New Jersey statutory law provides that in a libel action against a New Jersey media defendant, a plaintiff may recover punitive damages only if he proves either malice in fact or that, in the face of a written demand, the defendant refused to publish a retraction within a reasonable time. N.J.Stat.Ann. § 2A-43-2 (West 1952 & Supp. 1985). In this regard, the parties stipulated that plaintiffs demanded a retraction in writing and that defendants did not retract as requested in the letter. On this basis alone, the evidence established one of the elements under New Jersey law entitling a libel plaintiff suing a media defendant to recover punitive damages. It is not clear to the Court, however, whether this statute applies in this case. Neither party has referred to it and application of the statute by its terms is limited to libel actions against New Jersey defendants. It does not on its face appear to apply to false light invasion of privacy claims. But, there are other reasons to hold that plaintiff was entitled to have the jury consider the punitive damages issue.

It is true, as CBS argues, that under some circumstances New Jersey courts have required a plaintiff seeking punitive damages in a libel case to prove some type of spite or ill will. See, e.g., Marchiano v. Sandman, 178 N.J.Super. 171, 428 A.2d 541, 543 (App.Div.), certif. denied, 87 N.J. 392, 434 A.2d 1073 (1981); Sisler v. Courier-News Co., 199 N.J.Super. 307, 489 A.2d 704, 715 (App.Div.1985) (negligence standard applied in private figure libel suit). But other decisions indicate that in libel cases an evil motive is not an absolute requirement. For example, in Bock v. Plainfield Courier-News, 45 N.J.Super. 302, 132 A.2d 523 (App.Div.1957) the court held that a plaintiff may be entitled to punitive damages “though the proof fails to disclose a designedly evil intent, it suggests a calculated disregard of the consequences.” 132 A.2d at 529.

The language used by New Jersey courts to define the type of conduct that would justify an award of punitive damages lends credence to the argument that knowing or reckless falsity may encompass elements of ill will. See e.g., Eaton, The American Law of Defamation Through Gertz v. Robert Welch, Inc. and Beyond: An Analytical Primer, 61 Va.L.Rev. 1349, 1441 (1975) (hereinafter “Eaton”) (“Publication of a known lie or publication with a high degree of awareness of probable falsity does seem to carry all the indicia of a bad attitude toward the plaintiff’s reputational interest.”). In Nappe v. Anschelewitz, Barr, Ansell & Bonello, 97 N.J. 37, 477 A.2d 1224 (1984), the New Jersey Supreme Court decided whether punitive damages may be awarded in the absence of a compensatory damage award in an action for legal fraud. Id., 477 A.2d at 1226. The court reviewed the New Jersey law concerning punitive damages and concluded that “punitive damages could be awarded for egregious conduct in the absence of compensatory damages.” Id. at 1231. The court began its analysis by stating that punitive damages may be awarded if the defendant’s conduct was “wantonly reckless or malicious.” The court defined those terms in several different ways. It stated that plaintiff must show there was “a wanton and wilful disregard of the rights of another,” id. at 1230, that “there has been a deliberate act or omission with knowledge of a high degree of probability of harm and reckless indifference to consequences,” id., or “such a conscious and deliberate disregard of the interests of others that his conduct may be called wilful or wanton.” Id. at 1231 (quotation omitted).

The United States Supreme Court’s use of the term “actual malice” has spawned confusion among state courts attempting to reconcile common law definitions of malice with federal constitutional requirements. See Eaton, 61 Va.L.Rev. at 1371. This situation has led the New Jersey Supreme Court to observe “that superimposing the federal standard on existing state standards would add one more complexity to the ‘confusion of libel and slander law.’ ” Burke v. Deiner, 97 N.J. 465, 479 A.2d 393, 399 (1984) (citation omitted). As a consequence, the court adopted the New York Times actual malice standard to determine whether the qualified immunity that attaches to official speech applied. 479 A.2d at 399.

In addition, because the jury had awarded plaintiff punitive damages, the Court was constrained to hold further that “[t]he jury should be instructed to use this [knowledge of falsity or reckless disregard for the truth] standard as well to assess punitive damages.” Id. at 400. n. 2. This determination was based on United States Supreme Court cases that had “uniformly emphasized that the jury is not to look for evidence of spite or ill will to judge the actor’s speech.” Id. at 399.

The central issue in Burke v. Deiner was whether government officials had a privilege with respect to an allegedly defamatory official statement. . The case did not involve a false light invasion of privacy claim by a private party against a media defendant. Nevertheless, when the Court stated that the jury should be instructed to use the actual malice standard to assess punitive damages, it cited as authority Embrey v. Holly, 293 Md. 128, 442 A.2d 966, 972 n. 14 (1982) and Davis v. Schuchat, 510 F.2d 731, 737 (D.C.Cir.1975), two actions brought by private persons against media defendants. The Court’s reference to these cases, coupled with its discussion of the confusion attendant to superimposing federal standards on state standards, leads me to conclude that the New Jersey Supreme Court would require the jury to apply the actual malice standard when assessing punitive damages in a case such as this. I therefore hold that in this case, having found that CBS acted with actual malice, the jury properly considered the issue of punitive damages.

Was the Award Excessive?

In reviewing the award of $1,000,-000 for punitive damages, the Court must consider the circumstances surrounding the broadcast, the nature of the wrongdoing, the extent of the harm inflicted, the intent behind defendant’s acts, defendant’s wealth, “as well as any mitigating circumstances which may operate to reduce the amount of the damages.” Nappe, 477 A.2d at 1231. New Jersey law does not require that the amount of punitive damages bear a fixed proportional relationship to the amount of actual damages. Id.

The evidence before the Court supports a substantial award of punitive damages. Defendant’s conduct was shown to be callous and indifferent to the rights of plaintiff. CBS employees deliberately decided to broadcast the film of Mr. Machleder, despite a lack of evidence that he was responsible for the abandoned drums and despite knowledge that he had in fact reported their presence to local government agencies two years earlier. The evidence suggested the film was used in order to lend some excitement to an otherwise uneventful story. Serious questions existed whether plaintiff’s reaction to the reporter and film crew was newsworthy.

One purpose of a punitive damages award is to deter future conduct of a similar nature. See, Brink’s Inc. v. City of New York, 546 F.Supp. 403, 413 (S.D.N.Y.1982) (Weinfeld, J.), aff'd, 717 F.2d 700 (2d Cir.1983). The evidence presented about the attitude of CBS employees toward the handling of the broadcast indicates there is a likelihood that such activity will be repeated as part of a business policy. See, e.g., Curtis Publishing Co. v. Butts, 388 U.S. 130, 159-61, 87 S.Ct. 1975, 1993-95, 18 L.Ed.2d 1094 (1967); Le Mistral, Inc. v. Columbia Broadcasting System, 61 A.D.2d 491, 402 N.Y.S.2d 815 (1st Dep’t 1978).

Although there was no evidence presented to the jury proving the wealth possessed by CBS, paragraph three of the complaint alleged that in 1978 CBS had gross revenue in excess of $3 billion and net income in excess of $198 million. An award of $1,000,000 is an amount sufficient to “smart” and serve as notice to others that the type of practices at issue in this matter are not condoned by the community. CBS has argued in support of mitigation that it provided a public service by publicizing the hazard which existed and caused the drums to be disposed of properly. While these are certainly important factors in support of mitigation which could operate to reduce the amount of damages, these arguments were presented to the jury and necessarily considered by it in fixing the amount of the punitive damages award. I will not disturb the jury’s verdict in this regard. The motion for judgment notwithstanding the verdict and for a new trial is denied.

Plaintiffs’ Motion for Sanctions

Plaintiffs base their motion for sanctions on two incidents. The first involved their attempts to obtain a copy of the videotape of the May 22, 1979 broadcast with studio comments. The second involves the affidavit signed by Mr. Diaz and submitted to the Court in connection with defendants’ summary judgment motion.

The Videotape With Studio Comments

Plaintiffs’ First Request for Production of Documents, dated October 16, 1979, requested all documents relating to the Diaz report as actually broadcast on May 22,1979. Defendants did not object to the terms of plaintiffs’ document request and they agreed to produce for plaintiffs’ inspection all documents that related to the Diaz report. However, the videotape of the complete on-air Diaz report with studio comments was not produced to plaintiffs’ counsel for inspection.

By letter dated November 28,1979, plaintiffs’ counsel informed defendants’ counsel that the recitation of the broadcast dialogue in paragraph 34 of the complaint was reproduced from a transcript that CBS had supplied to him. That transcript apparently had been prepared by an outside contractor hired by CBS. In response, Coudert Brothers advised plaintiffs’ counsel that the videotape of the complete on-air broadcast with studio remarks did not exist.

Plaintiffs’ Supplemental Request for Production, dated December 19, 1980, repeated verbatim the document request which encompassed the complete on-air broadcast. The videotape in question was not produced pursuant to the supplemental request. At the deposition of Irving Machleder, defendants’ counsel represented to plaintiff’s counsel that “all of the film that CBS had available of that incident, whether used or not used ... were supplied to you.”

The Joint Pretrial Order, so ordered by Judge Duffy on July 30, 1982, provided with regard to trial exhibits that the parties shall exchange documents which they reasonably anticipate to offer into evidence no later than 20 days prior to trial. On the morning of trial on May 9, 1985, after the jury had been selected and before opening statements were to begin, defendants’ counsel notified plaintiffs’ counsel that they intended to offer into evidence a videotape of the on-air report, complete with studio comments by Jim Jensen and Mr. Diaz. When ■ plaintiffs’ counsel objected and reserved the right to apply to the Court for sanctions at the end of trial, defendants’ counsel explained in response that there was an “innocent explanation” for why the videotape had not been delivered earlier.

In opposition to plaintiffs’ motion for sanctions, defendants argue that the delay in production of the complete studio videotape did not prejudice plaintiffs because defendants produced an accurate transcript of the entire broadcast, including studio remarks, in response to plaintiff’s initial discovery request. In addition, it is argued that defendants and their counsel acted in good faith at all times. The broadcast tape was not produced because it had been removed from the CBS Broadcast Center in late October, 1979 by someone in the employ of Coudert Brothers and inadvertantly misplaced. Once the tape was recovered by Coudert Brothers on May 3,1985, it was immediately delivered to plaintiffs’ counsel. This good faith, coupled with plaintiffs’ failure to demonstrate any prejudice is, they argue, fatal to plaintiffs’ motion for sanctions. In addition, defendants did not violate the terms of the Pretrial Order since they could not have anticipated use of the tape if they did not realize the tape existed.

Defendants’ explanation is unsatisfactory for two reasons. First, it is not at all clear to the Court that plaintiffs did not suffer prejudice as a result of defendants’ belated delivery of the tape. The claims in this case arose out of a television broadcast. Essential to plaintiffs’ claims was the reaction the broadcast of the report would provoke in a viewer. Without a videotape of the complete broadcast, it would have been difficult for plaintiffs to gauge the impact the broadcast would have on an audience of disinterested parties. This handicap must have affected plaintiffs’ efforts in preparing for the trial of this case.

Second, on March 6, 1985, the videotape in question was submitted to the Court as an exhibit to defendants’ in limine motion to be relieved from certain of Judge Duffy’s prior rulings in the case. Exhibit B to that motion, described as “Outtakes and 5/22/79 Broadcast”, is a videotape of the entire broadcast including studio comments and is identical to the videotape delivered to plaintiffs’ counsel on or before May 9, 1985 and shown to the jury during opening statements by counsel. Defendants’ claim that the videotape was first recovered on May 3, 1985 is refuted by their very own submission dated March 6, 1985. Defendants may claim that there is indeed a further “innocent explanation” for the evident confusion on their part, but whatever it may be leaves the Court with little choice in this instance.

As Magistrate Tyler observed in the context of a previous motion by plaintiffs’ in connection with defendants’ failure to deliver copies of film footage, defendants’ conduct in this regard “demonstrate[s] to this court a marked lack of care ... and a cause of unnecessary effort and expenditure of time.” Accordingly, plaintiffs’ motion for sanctions pursuant to Fed.R.Civ.P. 16(f) and 37(b)(2)(D) is granted. Defendant CBS shall compensate plaintiffs for the reasonable costs and attorney’s fees incurred in attempting to obtain a copy of the videotape after defendants’ counsel first represented that it did not exist, including the costs of bringing this portion of the motion. Plaintiffs are directed to submit to the Court, within fifteen days of receipt of a copy of this decision, an accounting in sworn form, itemizing costs, hours worked by each attorney and the regular hourly fee charged for such work. Any objection as to the propriety of the amount of such expenses shall be made in writing to the Court within five days after receipt of such accounting, with answering papers to be served within two days after receipt of such objection.

The Diaz Affidavit

Plaintiffs’ motion for sanctions under Fed.R.Civ.P. 11 and 56(g) is based upon the testimony of Mr. Diaz during trial with regard to an affidavit he signed and that defendants submitted in support of their summary judgment motion. On May 10, 1985, when the affidavit was first shown to Mr. Diaz on direct examination he did not recall having read it before. Mr. Diaz testified that he remembered signing it but stated it was not prepared by him. The basis for this testimony was that certain of the statements in the affidavit were incorrect. Mr. Diaz did not recall having had a conversation with his attorney before the affidavit was prepared. He claimed to have never received a copy of the affidavit before he signed it and did not know the purpose for which it would be used. Mr. Diaz admitted that he signed the affidavit although he disagreed with some of the facts it disclosed. In addition, he had never seen the diagram attached as Exhibit A to the affidavit nor the affidavit of Stephen Cohen, to which the Diaz Affidavit specifically referred. Based upon this testimony, plaintiffs contend that the Diaz Affidavit was that of his attorney, not his own.

On May 13, 1985, defendants’ counsel produced to plaintiffs’ counsel a draft affidavit signed by Mr. Diaz. Attached was a note purportedly from Mr. Diaz addressed to Ronald Guttman, Esq., CBS in-house counsel, stating “Ron, it looks good to me.” Mr. Diaz testified that the draft affidavit refreshed his recollection that he had read the Diaz Affidavit. Mr. Diaz maintained that he had had problems with portions of the Diaz Affidavit and had told his attorneys of that fact. He testified, however, that he still disagreed with certain statements contained in the document.

Defendants’ counsel opposed the sanctions motion on the grounds that they had prepared a final version of all the summary judgment affidavits in consultation with their clients. Meetings were held with Mr. Diaz and several revised drafts were prepared in order to include the suggestions for changes made by Mr. Diaz. Exhibit A was based upon Mr. Diaz’s descriptions of his movements in and around the Flexcraft plant.

I have closely read the portions of Mr. Diaz’s testimony cited by plaintiff. Although the incident appeared unusual to me, the record indicates nothing more than that Mr. Diaz’s memory of the affidavit and the process of its preparation had become vague with the passage of time. In addition, it appears to me that Mr. Diaz may have been unprepared for his testimony by not having his memory refreshed from the files and he was surprised when confronted by his affidavit. Plaintiffs’ attempt to paint this situation as indicative of a deliberate attempt by defendants to mislead the Court and the jury is untenable. Accordingly, plaintiffs’ motion for sanctions in connection with the Diaz Affidavit is denied.

CONCLUSION

CBS’s motions for judgment notwithstanding the verdict and for a new trial are denied. Plaintiffs’ motion for sanctions is granted in part and denied in part.

SO ORDERED.

      . In addition to preserving objections previously made as to evidence which it contends was admitted incorrectly and the sufficiency of proof offered at trial, as well as objections to portions of the Court’s jury instructions, CBS reiterated the following specific arguments:
      1. The admission into evidence of a redacted transcript of "Watching the Watchdog” was erroneous and rendered the trial fundamentally unfair.
      2. The jury’s finding of no falsity with respect to plaintiffs’ libel claim renders the proof of Mr. Machleder’s false light invasion of privacy claim insufficient as a matter of law.
      3. The lack of falsity in the broadcast renders Mr. Machleder’s false light invasion of privacy claim insufficient as a matter of law.
      4. Mr. Machleder’s proof under his false light invasion of privacy claim falls below that required to establish New York Times actual malice.
      5. Mr. Machleder’s punitive damages claim should not have been submitted to the jury because there was no proof supporting a finding of common law malice.
      6. The Court’s failure to instruct the jury that there is no right to avoid being filmed or appearing on television was prejudicial to CBS in light of the manner in which plaintiffs’ presented their case at trial.
      Memorandum of Law in Support of Post-Verdict Motions by Defendant CBS Inc., at 1-3.

      . For the sake of convenience, Mr. Machleder is hereinafter referred to as “plaintiff," in the singuiar.

      . Pirre v. Printing Develop., Inc., 468 F.Supp. 1028, 1038 (S.D.N.Y.), aff'd, 614 F.2d 1290 (2d Cir.1979) ($325,000 jury award reduced to $45,-000); Nellis v. Miller, 101 A.D.2d 1002, 477 N.Y.S.2d 72, 73 (4th Dep’t), appeal dismissed, 63 N.Y.2d 952 (1984) ($150,000 jury award reduced to $5,000); Lerman v. Flynt Distrib. Co., 745 F.2d 123, 141 (2d Cir.1984), cert. denied, — U.S. -, 105 S.Ct. 2114, 85 L.Ed.2d 479 (1985) ($7,000,000 jury award reversed); Nev. Indep. Broad. Corp. v. Allen, 99 Nev. 404, 664 P.2d 337, 347 (1983) ($675,000 jury award reduced to $50,000); Burnett v. Nat'l Enquirer, Inc., 7 Media L.Rep. (BNA) 1321, 1323-24 (Cal.Super.1981) ($300,000 jury award reduced to $50,000), aff'd in relevant part, 144 Cal.App.3d 991, 1016, 193 Cal.Rptr. 206, 222 (1983), appeal dismissed, 465 U.S. 1014, 104 S.Ct. 1260, 79 L.Ed.2d 668 (1984); Douglass v. Hustler Mag., Inc., 769 F.2d 1128, 1144-45 (7th Cir.1985) ($300,000 jury award reversed).

      . Over plaintiffs’ objection, the jury in this case was instructed to apply the New York Times actual malice standard to the issue of liability for false light invasion of privacy. This instruction was based on the authority of two opinions of the Supreme Court in Time, Inc. v. Hill, 385 U.S. 374, 87 S.Ct. 534, 17 L.Ed.2d 456 (1967) and Cantrell v. Forest City Pub. Co., 419 U.S. 245, 95 S.Ct. 465, 42 L.Ed.2d 419 (1974). In Time, Inc. v. Hill, a false light invasion of privacy action, the Court held that in order to establish liability plaintiff had to prove publication with knowledge of falsity or with reckless disregard of the truth. 385 U.S. at 388, 87 S.Ct. at 542. In Cantrell, also a false light invasion of privacy action, the Court declined “to consider whether a State may constitutionally apply a more relaxed standard of liability" in a false light invasion of privacy action brought by a private figure or “whether the constitutional standard announced in Time, Inc. v. Hill, applies to all false-light cases.” 419 U.S. at 250-51, 95 S.Ct. at 469-70 citing Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974). See Restatement (Second) of Torts § 652E comment d, at 398-99 (1977). Several courts have applied a negligence standard in actions involving a private figure plaintiff. Wood v. Hustler Mag., Inc., 736 F.2d 1084 (5th Cir.1984), cert. denied, — U.S. -. 105 S.Ct. 783, 83 L.Ed.2d 777 (1985); Dresbach v. Doubleday & Co., 518 F.Supp. 1285, 1288 (D.D.C.1981); Fitzgerald v. Penthouse Int'l, Ltd., 639 F.2d 1076, 1080 (4th Cir.), on remand, 525 F.Supp. 585, 602-03 (D.Md.1981), aff'd in relevant part, 691 F.2d 666 (1982), cert. denied, 460 U.S. 1024, 103 S.Ct. 1277, 75 L.Ed.2d 497 (1983); Uhl v. Columbia Broadcasting Systems, Inc., 476 F.Supp. 1134, 1139-41 (W.D.Pa.1979); Rinsley v. Brandt, 446 F.Supp. 850, 856 (D.Kan.1977). One New Jersey intermediate appellate court has hinted that in a non-media case with a private figure plaintiff it may be appropriate to prove liability on a negligence standard. Devlin v. Greiner, 147 N.J.Super. 446, 371 A.2d 380 389 n. 4 (Law Div.1977). Also, one court has suggested that because the same considerations apply to claims for defamation and false light invasion of privacy, when both torts are alleged in one case, the same standard of fault should apply to both torts. Cibenko v. Worth Pub. Inc., 510 F.Supp. 761, 766 (D.N.J.1981). See also Hill, Defamation and Privacy Under The First Amendment, 76 Col.L.Rev. 1205, 1274 & n. 321 (1976). Notwithstanding these considerations, in the absence of an explicit ruling on this issue by either the United States Supreme Court or the New Jersey Supreme Court, it is this Court’s determination that the actual malice standard of liability applies to the false light invasion of privacy claim in this action. Accord McCall v. Courier-Journal & Louisville Times Co., 623 S.W.2d 882, 888 (Ky.1981), cert. denied, 456 U.S. 975, 102 S.Ct. 2239, 72 L.Ed.2d 849 (1982); Dodrill v. Arkansas Democrat Co., 265 Ark. 628, 590 S.W.2d 840, & n. 9 (1979), cert. denied, 444 U.S. 1076, 100 S.Ct. 1024, 62 L.Ed.2d 759 (1980).

      . On February 19, 1981, plaintiffs moved before Magistrate Joel J. Tyler for an order compelling discovery in connection with defendants' failure to produce the original film footage and soundtrack made on May 22, 1979. Plaintiffs’ counsel had discovered that portions of the filmed outtakes had not been delivered by defendants. By Order dated April 22, 1981, Magistrate Tyler directed that defendants produce an exact and complete copy of the footage taken on May 22, 1979 to plaintiffs. Apparently, defendants had attributed their “continued failure" to adhere to Magistrate Tyler’s prior orders to an "unfortunate series of mishaps” or a "circus of innocent errors". Magistrate Tyler stated “[w]hat [defendants’ conduct] does demonstrate to this court is a marked lack of care, a violation of prior commitments and a cause of unnecessary effort and expenditure of time by Machleder and this busy court.” Magistrate Tyler advised defendants’ counsel that unless the documents were delivered as directed, sanctions, including costs and attorney's fees would be imposed upon defendants or their attorneys.


source: Caselaw Access Project

author: WHITMAN KNAPP, District Judge.

license: Public Domain

text:
    In the Matter of Guido COCILOVO.
    No. 85 Civ. 5584 (WK).
    United States District Court, S.D. New York.
    Oct. 4, 1985.
    As Amended Oct. 18, 1985.

      Barry Turner, New York City, for contemnor.
    Rudolph W. Giuliani, U.S. Atty., S.D. of N.Y. by Robert B. Bucknam, Asst. U.S. Atty., New York City, for the Government.
   MEMORANDUM & ORDER

WHITMAN KNAPP, District Judge.

Guido Coeilovo seeks release from an order of civil contempt entered by me on December 20, 1984. He claims that because he has been confined for almost ten months on that order with no indication that he might yield to its coercive effect, I must conclude that the order has lost such effect and release him. He relies on two Court of Appeals’ opinions: Simkin v. United States (2d Cir.1983) 715 F.2d 34, and Sanchez v. United States (2d Cir.1984) 725 F.2d 29.

Without going into detail as to my reasons, I am satisfied that the authorities cited compel me to release him. However, like Judge Brieant (In the Matter of Dorie Clay (S.D.N.Y. June 27, 1985) M-11-188), I firmly believe those cases to have been wrongly decided and shall try to set forth my reasons for so believing, supplementing the views I rather hastily expressed in Matter of Parish (S.D.N.Y.1985) 613 F.Supp. 356.

DISCUSSION

Prior to Simkin, it was generally assumed that contemnors who had no emotional or other disability which prevented them from testifying had “the keys of their prison in their own pockets,” Shillitani v. United States (1966) 384 U.S. 364, 368, 86 S.Ct. 1531, 1534, 16 L.Ed.2d 622; In Re Weiss (2d Cir.1983) 703 F.2d 653, 661; United States v. Handler (2d Cir.1973) 476 F.2d 709, 714; In Re Grand Jury Investigation (3d Cir.1979) 600 F.2d 420, 423 & n. 8, all citing In Re Nevitt (8th Cir.1902) 117 Fed. 448, 461, and that it was accordingly permissible to hold them in jail for the full eighteen months (or for the life of the grand jury should that be shorter) provided by 28 U.S.C. § 1826(a). Judge Brieant’s opinion in Matter of Thornton (S.D.N.Y.1983) 560 F.Supp. 183, sets forth the then existing rule, which was based on the assumption that § 1826 itself establishes that a civil contempt sentence of eighteen months or less is “coercive, not punitive.” Thus, he observed (560 F.Supp. at 184):

The purpose of civil contempt is to coerce, not punish. Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 441-42, 31 S.Ct. 492, 498, 55 L.Ed. 797 (1911). In cases of indefinite civil confinement the court is called upon periodically to review the contemnor’s status, to prevent a de facto sentence of life imprisonment. Catena v. Seidl, 65 N.J. 257, 262, 321 A.2d 225, 228 (1974). Cf. Jackson v. Indiana, 406 U.S. 715, 738, 92 S.Ct. 1845, 1858, 32 L.Ed.2d 435 (1972), holding that ‘[D]ue process requires that the nature and duration of commitment bear some reasonable relation to the purpose for which the individual is committed.’
A contemnor held pursuant to 28 U.S.C. § 1826, however, faces no similar risk, because Congress in enacting the statute set an eighteen month maximum limitation on the incarceration of those who refuse to comply with grand jury requests. By Congressional definition, then, the eighteen month period is regarded as coercive, not punitive. United States v. Dien, 598 F.2d 743, 745 (2d Cir.1979).

In Dien, the case cited by Judge Brieant, the contemnor had sought to make the point that the facts in his peculiar situation —specifically, his “fear of reprisal against himself and his family” — indicated that he would never testify and that “his incarceration for contempt” was therefore “punitive rather than coercive.” The Court of Appeals refused to consider this contention, observing (598 F.2d at 745):

Such an argument if sustained would only benefit those who persistently refuse to cooperate despite immunity orders and in effect would emasculate section 1826. (Emphasis supplied.)

Simkin — apparently sub silentio overruling Dien — specifically required consideration of the contention rejected by Dien. Under Simkin a district court in each and every case must, despite the congressional determination that eighteen months is by definition coercive, make an individual decision whether the particular contemnor before it is likely to yield to further incarceration. This ruling, quite naturally, has generated a host of motions and has resulted in the release in this District alone of a total of at least nine contemnors, including two by myself. Demetrios Papadakis (June 11, 1985) 613 F.Supp. 109 (WK); Dorie Clay (June 27,1985) Docket # M-11-188 (CLB); Lionel Jean-Baptiste (July 3, 1985) Docket # M-11-188 (PKL); Milton Parish (July 24, 1985) 613 F.Supp. 356 (WK); Dr. Jean Ford and Michelle Thomas (July 26, 1985) Docket # M-11-188 (RWS); Jacqueline Bernard and Olive Armstrong (July 31, 1985) Docket # M-11-188 (GLG); and Jesse Lopez (October 22, 1984) Docket # M-11-188 (CBM). In consequence, there seems to. be developing a rule of thumb that, absent some extraordinary showing by the government, a contemnor who has shown sufficient fortitude to withstand about six months in jail is entitled to release. It has thus come to pass — exactly as predicted by the Court of Appeals in Dien — that the proposition there rejected but adopted in Simkin has only benefitted those who persistently refuse to cooperate despite immunity orders and has in effect emasculated section 1826(a). This, I feel, is an unfortunate turn of events.

Properly to evaluate Simkin’s departure from the Dien doctrine, one must start with the origins of § 1826(a). The enactment of that section was part of a congressional response to a critical problem faced by the criminal justice system. It is a recognized fact that there are certain types of criminal conduct (including terrorism and the furtherance of organized crime) which threaten the very fabric of our society and which, as a practical matter, cannot be prosecuted unless “insiders” are persuaded or compelled to testify against their accomplices. As part of its effort to deal with this problem Congress (having in 18 U.S.C. §§ 6002 and 6003 authorized the grant of use immunity), in § 1826(a) authorized prosecutors to confront a potential witness with the choice of testifying or facing up to eighteen months in jail. It was hoped that the coercive effect of such a threat would produce a significant amount of relevant testimony. (See 1970 U.S.Code Cong, and Admin.News, p. 4022.)

The constitutional authority for the enactment of such legislation was established by the Supreme Court in Shillitani v. United States, supra. There (in circumstances where the involved contemnors had — like Simkin — spent considerable time in jail with no sign of weakening) the Court was confronted with the question whether one could lawfully be given a two-year sentence for contempt without the protections afforded by criminal procedures. Recognizing that any confinement in jail had punitive aspects, the Court fashioned a very simple test to determine whether such a sentence was constitutionally permissible: (1) was it the purpose of the confinement to compel testimony? and (2) was it within the power of the contemnor to supply such testimony (i.e., did he have the keys to the jail house in his pocket)? The Court thus expressed its holding (384 U.S. at 370, 86 S.Ct. at 1535):

While any imprisonment, of course, has punitive and deterrent effects, it must be viewed as remedial [i.e., coercive] if the court conditions release upon the contemnor’s willingness to testify. (Emphasis supplied.)

In conformity with that principle, the Court ruled that a contemnor must be discharged at the conclusion of the term of the grand jury before whom he had been subpoenaed, because he would then have lost his ability to comply with the subpoena. There is, however, no suggestion in the opinion that, in addition to using the above-quoted litmus for determining the purpose of the confinement, a court should also be concerned with its effect (i.e., the extent of the eontemnor’s desire to use the key in his pocket). Indeed — as above indicated — it was quite apparent that the particular sentences there involved had had no coercive effect whatever. It is therefore clear that, as the Simkin court itself recognized, there is no constitutional requirement for the Simkin rule. As to its wisdom, the pertinent questions would appear to be: (1) is the rule likely to result in a situation where contemnors will almost routinely be released after six months? and (2) will such result emasculate § 1826(a), as the Dien court predicted?

As to the first question, the Simkin court, by emphasizing a district judge’s “virtually unreviewable discretion” in these matters, sought to forestall an affirmative answer (715 F.2d at 38). However, such unreviewable discretion will, I predict, have little effect on the number of contemnors released. District judges are not governed wholly by fear of reversal, but must consider the implication of their oaths of office. Once the Shillitani holding — focussing on the purpose of the sentence and the contemnor’s continuing ability to respond to the subpoena — is rejected in favor of an obligation to make a case by ease determination of the strength of the contemnor’s intransigence, we are off on an uncharted sea. I predict that the outcome will be an almost routine release of contemnors after about six months. The plain fact of the matter is that once a person has served six months in jail with no sign of weakening, there will rarely be any valid reason for assuming that the next twelve months (or any fractions thereof) are going to be any more effective.

It is no answer — as the Simkin opinion suggests — that emasculation of the remedy of civil contempt leaves available the sanction of criminal contempt, which “can fully vindicate the court’s authority” (715 F.2d at 37). In the first place, where the Congress has seen fit to establish two coercive mechanisms, the judiciary — absent constitutional necessity (which Simkin does not assert and which Shillitani in any event precludes) — is without warrant to emasculate one of them. Moreover, it hardly needs demonstration that the “threat” that there might some day be found a prosecutor, grand jury, petit jury and judge who would all agree that a particular recalcitrant be sent to jail for more than six months is far less persuasive than having a single judge look him or her in the eye and say “you testify today or you don’t go home either tonight or for the next eighteen months (unless you use the key I am putting in your pocket).”

Perhaps the Simkin court’s above-noted concern with vindicating “the court’s authority” provides an insight into a misunderstanding of the judiciary’s proper role in implementing § 1826(a). When Congress, in connection with the enactment of the Organized Crime Control Act of 1970, P.L. 91-452, 84 Stat. 922 (1970), codified the judicial practice previously sanctioned by Shillitani, it was not concerned with protecting judicial dignity but with advancing its own ward against crime. Indeed, in its Statement of Findings and Purpose, Congress specifically stated the Act’s goal to be the “eradication of organized crime in the United States by strengthening the legal tools in the evidence-gathering process ...” (emphasis added). (1970 U.S. Code Cong. & Admin.News, p. 1073.) Moreover, Congress certainly could not have assumed that many terrorists, drug dealers and organized crime figures (who routinely risk their lives for “the cause” or wealth or power) would be worn down by eighteen months in jail. What it was attempting to do was to create a credible threat which would induce at least some recalcitrants to avoid imprisonment altogether by joining forces with the righteous. I respectfully suggest that it is not within the province of the judiciary to drain this threat of all credibility and thus — adapting the language of Dien — emasculate an act of Congress.

So far, I have discussed only the coercive effect of § 1826. That section also plays a significant part in enabling prosecutors to obtain testimony through persuasion, and its usefulness in that area has also been eroded. During my years as a prosecutor I came to the firm belief — which has been strengthened by subsequent experience at the Bar and on the Bench — that most criminals and their associates have a strong impulse to come to terms with established society, which impulse it is the prosecutor’s duty to exploit. There are, of course, many strong counterforces, among the strongest of which is the almost universal repugnance to being a “rat” or traitor to one’s associates. It is the prosecutor’s task to overcome such countervailing forces. Section 1826(a), in its pristine state, gave the prosecutor a valuable weapon in that struggle. If a recalcitrant can be certain that the price of silence is eighteen months in jail, he may be able to persuade himself — and even some of his associates — that the price to himself and to those dependent on him is too high, and that in testifying he is not being a “rat,” but yielding to the inevitable. Obviously a six-month threat (or a lesser one as the process of emasculation continues) is far less effective in this regard.

Despite my foregoing views, I am constrained by Simkin and Sanchez to order the contemnor’s release. However, in view of the importance of the question and the clear conflict of those cases with the Court of Appeals’ former decision in Dien, I most respectfully but strongly urge that — in this or some other case — the matter be again reviewed at the appellate level.

SO ORDERED.

      . Of these civil contemnors, Demetrios Papadakis was released after he had served about six months, as were Dr. Jean Ford (RWS), Michelle Thomas (RWS), Jacqueline Bernard (GLG), Olive Armstrong (GLG), Milton Parish (WK), and Lionel Jean-Baptiste (PKL). Dorie Clay (CB) was confined for about three and one-half months prior to her release. The transcript of the hearing which resulted in the release of Jose Lopez (CBM) does not disclose the length of the contemnor’s confinement.
      So far as I can determine, only two Judges in this District have denied a contemnor’s Simkin motion: Judge Keenan in Matter of Esposito (August 20, 1985), and Judge Carter in Matter of Remon, et al. (October 27, 1983). (See exchange of correspondence between the Court and the United States Attorney’s Office annexed to the Court’s Memorandum of October 3, 1985). In Judge Keenan’s case the contemnor had been confined for less than three weeks and had indicated to the committing judge that "he needed more time to decide whether he would testify.” In Judge Carter's case, the contemnors had acted in a devious fashion and had failed, after obtaining several adjournments for the purpose, to produce supposedly favorable testimony in their behalf.

      . Although perhaps not determinative, it is worth noting that any rule requiring an individualized determination of the effect — as opposed to the purpose — of an order of contempt will create an administrative nightmare. The Simkin court, anticipating this result (see 715 F.2d at 38, fn. 3), sought to minimize it by ruling that a contemnor had no right to testify upon his application for release. (715 F.2d at 38, n. 2; Sanchez, supra, 725 F.2d at 32.) I believe that this ruling will have little effect. District judges who have been commanded to make a conscientious effort to determine whether or not further confinement is reasonably likely to induce testimony (715 F.2d at 37) will have to decide for themselves what evidence is necessary to enable them to make the required determination. Being unable to see how any judge can rationally determine what coercive effect a sentence is having without hearing and observing the person whose fortitude is being evaluated, I predict that they will almost routinely permit such persons to testify. Moreover, as I noted in my opinion in Matter of Parish, supra, 613 F.Supp. at 357, I do not see how — granting the Simkin rule — the frequency or timing of applications for release can rationally be restricted.

      . The Shillitani rule does not, of course, in any way deprive district judges of their equitable power to release any particular contemnor should it be determined that he “realistically" is "incapable of compliance" with the order to testify (see United States v. Wendy [2d Cir.1978] 575 F.2d 1025, 1030). See also United States v. Handler (2d Cir.1973) 476 F.2d 709, 715, fn. 7, where the Court stated:
      In ruling as we do, we emphasize.. .the remedial nature of [contemnor’s] confinement. The importance of that fact is the recognition of [contemnor's] continuing right to petition to district court for release if it appears that he is no longer able to comply with the order to testify, or if the public necessity that led to the grant of immunity and the order to testify should cease to exist. (Citation omitted.) That is a matter within the province of the district court, not ours.
      Nor does it deprive district judges of the discretion to release a contemnor when it is determined that it would be inequitable to confine him further. An interesting example is provided by Judge Carter’s opinion in In re Cueto (S.D.N.Y.1978) 443 F.Supp. 857. There, after a scholarly discussion, Judge Carter flatly rejected the argument subsequently accepted by Simkin. He then went on to balance the Government’s need for the subpoenaed evidence against the contemnors' good faith (religious) reason for refusing to give it and their importance to their religious community, and concluded that he should, in the exercise of discretion, release them. In the instant case, if I did not feel that Simkin mandated' contemnor’s immediate discharge, I would probably designate a magistrate to investigate and report on his complaint that he was not receiving proper medical attention.

      . Some might not deem this case appropriate for appellate review, in that the whole effort to coerce this particular contemnor has from the beginning been an exercise in futility. When I entered my original order holding him in contempt, he had just begun serving a fifteen year Florida state sentence. The Assistant United States Attorney has now advised me that under Florida law my civil commitment did not interrupt his criminal sentence, and thus will not for one hour postpone his ultimate return to his family (however that term may be defined). The sole effect of this order "releasing” him will be to lessen crowding in the MCC and transfer from federal to state taxpayers the intervening cost of his care and nurture. On the other hand, some might deem this case to present an ideal situation for appellate review, in that — as was ultimately the situation in Shillitani — there will be no tendency to allow emotional overtones to interfere with detached consideration of the vital legal questions involved.


author: WEXLER, District Judge.

text:
    Edwin MUNSELL and Elsie Munsell, Plaintiffs, v. LA BRASSERIE MOLSON DU QUEBEC LIMITÉE, d/b/a Molson Breweries and Jean Rouleau, Defendants.
    No. CV 84-4674.
    United States District Court, E.D. New York.
    Oct. 4, 1985.

      DiLorenzo & Weber, Hauppauge, N.Y., for plaintiffs.
    D’Amato & Lynch, New York City, for defendants.
   MEMORANDUM AND ORDER

WEXLER, District Judge.

Plaintiffs Edwin Munsell and his wife Elsie commence this action for personal injuries against Jean Rouleau and La Brasserie Molson Du Quebec, Limitée (La Brasserie), which plaintiffs denominate as “doing business as Molson Breweries.” Plaintiffs are citizens of New York, and presumably the United States. La Brasserie and Mr. Rouleau are alleged to be citizens of Canada.

In November 1983 Mr. Rouleau, an employee of La Brasserie, was operating a towmotor hilo lift vehicle on the premises of La Brasserie in Montreal, Quebec, Canada. At that time Mr. Munsell was employed as a truckdriver for Clare Rose, Inc., and was at La Brasserie picking up a truckload of beer. During Mr. Munsell’s visit to La Brasserie on November 14, 1983 Mr. Rouleau allegedly ran over Mr. Mun-sell’s right ankle and foot with the hilo lift vehicle.

In December 1984 plaintiffs commenced this lawsuit, serving both defendants in Montreal, Canada. Defendants now move this Court for dismissal of the action for lack of personal jurisdiction over the defendants, Rule 12(b)(2), Fed.R.Civ.P., and forum non conveniens.

I.

This is a tort claim not arising under federal law and before this Court because of diversity of citizenship between the parties. 28 U.S.C. § 1332(a)(2). Therefore, this Court must look to the New York long-arm statutes to sustain personal jurisdiction over the defendants. Arrowsmith v. United Press International, 320 F.2d 219 (2d Cir.1953).

The Court first addresses personal jurisdiction over Mr. Rouleau. Defendant Rouleau is undisputedly a citizen of Canada and not found within the state of New York. The parties also agree that the events that caused Mr. Munsell’s injuries occurred exclusively in Canada. Clearly, there is no basis for in personam jurisdiction over Mr. Rouleau based on the “doing business” provision of the long-arm statute. N.Y.CPLR § 301 (McKinney 1972). Nor is there any showing that Mr. Rouleau transacts any business, owns property, or committed a tort within New York. N.Y.CPLR § 302(a)(1-2, 4). While it is alleged that Mr. Rouleau committed a tortious act outside the state causing injury to a New York citizen, that is not enough for long-arm jurisdiction under § 302(a)(3). For in addition to the fact that defendant has not been shown to derive revenue from New York state, interstate, or international commerce, strictly speaking the injury to plaintiff was not suffered in New York, but in Canada. And Mr. Munsell’s New York citizenship alone does not suffice to establish in personam jurisdiction under § 302(a)(3). Black v. Oberle Rentals, Inc., 55 Misc.2d 398, 285 N.Y.S.2d 226 (Sup.Ct. Onondaga County 1967).

Accordingly, the Court concludes that it lacks personal jurisdiction over defendant Rouleau and dismisses the action as to him.

II.

Personal jurisdiction over defendant La Brasserie is a more difficult question. According to defendant’s counsel, La Brasserie is a brewery incorporated in Quebec, Canada with its only place of business in Montreal. It is also a wholly-owned subsidiary of the Molson Companies, Limited (Molson Companies). Molson Companies has ten breweries in Canada, including La Brasserie. Another Canadian corporation, Molson Breweries of Canada, Limited (Molson Breweries) is also a wholly-owned subsidiary of Molson Companies. Finally, Oron, Inc. is an indirectly wholly-owned subsidiary of Molson Companies incorporated in Delaware. In turn, Martlet Importing Company (Martlet) is a New York corporation and wholly owned by Oron.

Martlet imports Molson-brand ale and beer to New York and the New England states. It does this by placing orders with Molson Breweries. Molson Breweries fills the orders for imports to New York from La Brasserie. As noted earlier, plaintiffs served the summons and complaint on La Brasserie in Montreal. They now seek to base personal jurisdiction on Martlet’s New York presence and incorporation.

Under N.Y.CPLR § 301 (McKinney 1972) a New York court may sustain personal jurisdiction over a foreign corporation if that corporation is doing business within the state, as interpreted by a large body of case law. This is in contrast to the principle of acquiring in personam jurisdiction over non-domiciliaries based on their acts as provided in § 302. Fundamentally, § 301 is a presence test requiring business activity with a fair measure of permanence and continuity. CPLR § 301 Practice Commentaries C301:2 (McKinney 1972). For purposes of § 301, an out-of-state corporation may be deemed to be doing business within New York through an affiliate. This is the theory proffered by the plaintiffs to support in personam jurisdiction over La Brasserie.

There are two recognized bases for establishing personal jurisdiction over a foreign corporation through the presence of an affiliate within New York. In essence these are analytical frameworks for attributing or imputing the business activities of the in-state affiliate to the out-of-state corporation. The first basis is termed piercing the corporate veil. Under this analysis personal jurisdiction is established by showing that the subsidiary is merely an instrumentality of the parent corporation, which controls its day-to-day operations, management, and finances. In short, when the subsidiary does not have a genuinely separate corporate identity, but more accurately functions as a division of the parent corporation, the parent corporation can be reached through the subsidiary, or vice ver sa, to sustain personal jurisdiction. Id. Practice Commentaries C301:3(l).

The second basis for in personam jurisdiction through an affiliate is to establish the existence of an agency relationship. The standard for inferring an agency relationship is whether the affiliate present in New York is operating solely for the benefit of the out-of-state affiliate, Frummer v. Hilton Hotels International, Inc., 19 N.Y.2d 533, 281 N.Y.S.2d 41, 227 N.E.2d 851, cert. denied, 389 U.S. 923, 88 S.Ct. 241, 19 L.Ed.2d 266 (1967). Factors of separate corporate identity and independent profits are important considerations in determining agency.

It is the second ground of agency on which plaintiffs seek to base in personam jurisdiction over La Brasserie. Specifically, they assert that Martlet is the regional agent for La Brasserie. In support of this contention plaintiffs’ counsel submits an affidavit attesting to information he elicited from an officer of Molson Breweries to the effect that Martlet and “the ‘Molson Brewery’ located in Quebec, Canada are the same company” (Affidavit of William E. Weber 114). The same officer is quoted as saying that Martlet only does business with the brewery (Aff. ¶ 4). Ostensibly reference to “the brewery” and “Molson Breweries” means La Brasserie.

The corporate configuration in this case presents an unusual factual issue. Molson Companies is the parent corporation and Molson Breweries, La Brasserie, and Oron are sibling subsidiaries. In addition, Oron is the parent corporation to Martlet. Domestic beer orders are placed with Martlet, which conveys them to Molson Breweries, which then places orders with La Brasserie, and perhaps other of the subsidiary breweries. This is not the conventional parent-subsidiary nor affiliate to affiliate relationship.

While defendant's counsel has made it clear that Molson Breweries, La Brasserie, and Martlet are not one and the same, they have not put forward facts that would convince the Court that there is no basis for attributing Martlet’s business activities to its sibling subsidiary La Brasserie. This is not to say that it is a defendant’s burden to make an affirmative showing that there is no basis for personal jurisdiction. But where all the facts of a web-work of corporations are uniquely within defendants’ knowledge, the Court is inclined to assume that failure to fully disclose the exact nature of the corporate relationships, including all the elements determinative in establishing agency or overlapping identities, indicates that the facts do not refute the assertion of in personam jurisdiction.

The Court concludes that it lacks the facts necessary to decide the issue of personal jurisdiction over La Brasserie. The plaintiffs are arguing from relative ignorance and defendant La Brasserie is not volunteering more than the skeleton of the corporate connections. The proper course would be to order discovery on the limited issue of the relationship among four or five corporations involved. As the Court disposes of the action on other grounds, however, such activity is unnecessary.

III.

Defendants also ask the Court to dismiss the action based on the doctrine of forum non conveniens. The doctrine of forum non conveniens, though the ancestor of the statute for transfer of venue based on inconvenience, 28 U.S.C. § 1404(a), is not identical to it and survives the 1948 enactment of that law. Norwood v. Kirkpatrick, 349 U.S. 29, 32, 75 S.Ct. 544, 546, 99 L.Ed. 789 (1955). Nevertheless, since the enactment of § 1404 and the advent of widely available rapid transportation and communication, the venue statute has generally replaced forum non conveniens as a basis for contesting forum selection in purely domestic actions. As a result, the use of the forum non conveniens argument is largely restricted to those suits that involve an extra-territorial element, be it parties, situs, law, or evidence. Unlike the venue statute, which contemplates transfer of the case, forum non conveniens allows less judicial discretion and results in the harsh remedy of dismissal. The doctrine calls for a determination of whether a court should decline to exercise jurisdiction where jurisdiction and venue are technically proper. Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 504-07, 67 S.Ct. 839, 841-42, 91 L.Ed. 1055 (1947).

As this suit is based on diversity of citizenship, there is a threshold issue of whether state or federal law governs the doctrine. In Gilbert, a diversity action in New York federal court, the United States Supreme Court avoided deciding which law controlled by declaring that New York and federal law did not differ. Id. at 509, 67 S.Ct. at 843. More recently, the Second Circuit Court of Appeals reiterated the substantial similarity of the two. Alcoa Steamship Co., Inc. v. M/V Nordic Regent, 654 F.2d 147 (2d Cir.), cert. denied, 449 U.S. 890, 101 S.Ct. 248, 66 L.Ed.2d 116 (1980). Accordingly, this Court need not decide between state and federal law, as they apparently do not conflict.

In Gulf Oil Corp. v. Gilbert, the Supreme Court outlined the considerations a court must address under forum non conveniens. The underlying principle is that the plaintiff’s chosen forum should not be disturbed unless the balance of factors strongly favors the defendant. 330 U.S. at 508, 67 S.Ct. at 843. The balancing of the factors tests the ease and efficiency of litigation with the concern that a particular court has been chosen to make trial a vexatious, harrassing, and expensive experience for the defendant. As the Second Circuit Court of Appeals has pointed out, however, improved technology, transportation, and communication since the Gilbert decision have altered the analysis of such factors as expense, accessibility, availability, and convenience. Manu International, S.A. v. Avon Products, Inc., 641 F.2d 62, 65 (2d Cir.1981) (quoting Calavo Growers of California v. Generali Belgium, 632 F.2d 963, 969 (2d Cir.1980) (Newman, J. concurring)).

In Gilbert the Supreme Court divided the factors to be considered into categories of private and public interest. Important private interests of the litigants are ease of access to sources of proof, availability of compulsory process, the cost of attendance for witnesses and parties, enforceability of judgment, and other factors bearing on the ease, expeditiousness, and expense of trial. 330 U.S. at 508, 67 S.Ct. at 843. Factors of public interest are perhaps less weighty and include congestion of the forum’s docket, but see Calavo Growers of California v. Generali Belgium, 632 F.2d at 969 (Newman, J. concurring), the inappropriateness of asking jurors to try a case with no connection to their community, the preference for having a home forum decide the law governing the ease, and the interest in having localized controversies decided where they arose. Gulf Oil Corp. v. Gilbert, 330 U.S. at 508-09, 67 S.Ct. at 843. This last consideration is likely the most important public interest factor. For when the locality of the court is not where the cause of action arose, has little direct involvement or interest in its outcome, and is connected to the litigation only by virtue of minimal contacts amounting to just enough to bestow jurisdiction and venue, dismissal on the ground of forum non conveniens is particularly appropriate.

The parties’ factual discussion of forum non conveniens considerations is by no means thorough. The Court, however, can glean enough from the facts presented to make a sound decision. The Court begins its analysis with the private interests of the litigants in this case. Plaintiffs argue that this Court is the proper forum as they, their expert witnesses, and treating physicians are found in this area. They argue that it would be inconvenient and costly for them to go to trial in Montreal. This is a good venue argument as far as it goes. It completely fails, however, to address issues of availability of compulsory process, enforceability of judgment, access to some sources of proof and the cost and inconvenience to other parties and witnesses.

To begin with the most important factor, this Court has earlier held that the proposed defendant Jean Rouleau is not subject to compulsory process. Not only is he not a party to the case or subject to the judgment of the Court, he cannot be compelled to appear as a witness. According to plaintiffs, the only witnesses to Mr. Munsell’s accident are Mr. Munsell and Mr. Rouleau. Without Mr. Rouleau’s testimony, the case of one or both sides may suffer at trial. It may be that as long as Mr. Rouleau is employed by La Brasserie, his employer could assure or even compel his attendance. Nonetheless, he might prefer unemployment to appearing in a distant court where he is a potential defendant. He may even now have ceased to be an employee.

Likewise, it is not clear that a money judgment from this Court is enforceable in Canada. While plaintiffs might argue that they can execute judgment against Martlet, it has yet to be established unequivocally that Martlet is an agent of or substantially identical entity with La Brasserie. Thus it is not clear that plaintiffs can execute judgment in this state or even this nation. Moreover, should it happen that plaintiffs can execute against Martlet, there is no indication that Martlet has assets sufficient to satisfy a judgment. Conversely, the Court is reasonably certain that the judgment of a Canadian court would be not only enforceable in Canada but enforceable directly against defendant La Brasserie.

As to the issues of access to sources of proof and cost of attendance for witnesses and parties, aside from the question of Mr. Rouleau, the interests of the two sides are nearly equally balanced. The Court naturally recognizes that plaintiffs as individuals with limited resources find trial in a local court less onerous and costly as to themselves. La Brasserie is a sizeable business and the cost of defending in New York as compared to Canada and retaining local counsel is not prohibitive, or so the Court would speculate. Plaintiffs further contend that trial in Canada would impose on them the cost of the attendance of treating physicians and expert medical witnesses. While this is true, plaintiffs overlook the fact that trial in New York entails attendance expenses for the physicians who first saw and treated Mr. Munsell’s injury. These are necessary witnesses. In fact all the possible witnesses on the issue of liability, save Mr. Munsell, are found in Canada, and only some of the possible witnesses on the issue of damages are found in New York. Nor is there any escape from the necessity of obtaining hospital records and business records from Canada. Finally, there is the expense of depositions. Either local counsel must travel to Canada or witnesses must travel to New York.

It appears to this Court that the expense to plaintiffs of trial in New York is not substantially less than that of trial in Canada. Witnesses necessary for plaintiffs’ case must travel in either event and plaintiffs are unrealistic if they suppose that defendant will both assure the attendance of all Canadian witnesses and bear the full cost of it. The Court concludes that the cost of a New York versus a Canadian trial is roughly equal and that the ease and expeditiousness of trial balances in favor of a Canadian trial.

As to the public interests articulated in Gilbert, the Court concludes they balance strongly in favor of a Canadian trial. The situs of the alleged injury is Montreal. The events have no connection with this state aside from Mr. Munsell’s domicile. Moreover, the Court can detect no basis for contending that any law other than Canadian law governs this case. E.g., Hotaling v. Smith, 63 A.D.2d 219, 406 N.Y.S.2d 627 (3d Dep’t 1978). As the action arose solely in Canada, concerns Canadian citizens, and is governed by Canadian law, resolution of this action holds little interest for our local community and is not an appropriate case for a New York jury.

The Court concludes that on balance the factors of public and private interest strongly favor trial in a Canadian court. The Court is not so persuaded because it finds defendant La Brasserie vexed, harrassed, or put through disproportionate expense. As already outlined, with parties and witnesses divided between the locales, heavy transportation costs are inevitable for either a Canadian or New York trial. In this instance costs are also roughly equal for both parties in either forum. Were this the only consideration, the Court would allow plaintiffs their choice of forum, both as plaintiffs and as individuals with limited resources. Nevertheless, the Court is convinced that trial in this forum not only fails to serve the interests of justice but in the end is substantially disadvantageous to plaintiffs.

To recapitulate the private interests, it would not appear that any of the Canadian witnesses, which category includes all the non-party witnesses as to liability and some as to damages, are amenable to compulsory process. More importantly, one sought-after defendant, who is also a liability witness is not subject to this Court’s in personam jurisdiction. Assuming that the Court has personal jurisdiction over the remaining defendant, La Brasserie, it is not clear that a judgment against it would be enforceable in Canada or that it might not entail additional proceedings and expenses. As documentary evidence does not appear to be a large part of the proof in this action, access to it is not of pivotal importance. Nevertheless, on the whole it is clear to this Court that while it is easier for plaintiffs to commence their suit in this forum, once past this initial step it is easier and more expeditious for them to pursue and try the case in Canada. This is not only because witnesses and sources of proof necessary to defendant’s case are to be found in Canada,- but because witnesses and a proposed defendant necessary to plaintiffs’ direct case can only be reached in Canada.

As to the public interests in choice of forum, none of them weighs in plaintiffs’ favor. The situs of the alleged tort is strictly local to Montreal. Moreover, the Court would be called on to apply the law of a foreign country at trial. This forum’s only connection to any of the events or issues is plaintiffs’ residence. As such, this is a classic instance of minimal grounds for venue and jurisdiction without substantive community interest in resolution of the case.

IV.

The Court concludes that the interests of the parties and the interests of justice will not be served by allowing this action to proceed to trial in this forum. Not only are plaintiffs’ unable to obtain personal jurisdiction over Jean Rouleau, precluding prosecution of their entire case in one proceeding, but both sides are hampered by the limits of this Court’s reach.

The Court is aware that it has deviated from the orthodox application of Gilbert. The Court has weighed not only the difficulties the defendant will encounter in defending this suit in a New York court, but the obvious impediments to plaintiffs obtaining full relief in this forum. The Court has also taken into account the obvious difficulties arising from its markedly limited ability to compel the attendance of persons and production of evidence. In light of the fact that trial in a Canadian court obviates these difficulties, this Court sees no reason to expend its resources trying to bring this suit to a full and satisfactory resolution.

Accordingly, the plaintiffs’ action is dismissed as to the defendant Jean Rouleau, as this Court lacks jurisdiction over his person. Rule 12(b)(2), Fed.R.Civ.P. The action is dismissed as to defendant La Brasserie on the ground of forum non conveniens.

The Clerk of the Court is hereby directed to enter judgment against plaintiffs, dismissing their action. Dismissal is without prejudice to re-commencement of the action in an appropriate forum, which this Court believes to be Quebec, Canada.

SO ORDERED.

      . § 301. Jurisdiction over persons, property or status.
      A court may exercise such jurisdiction over persons, property, or status as might have been exercised heretofore.
      § 302. Personal jurisdiction by acts of nondomiciliaries.
      (a) Acts which are the basis of jurisdiction. As to a cause of action arising from any of the acts enumerated in this section, a court may exercise personal jurisdiction over any non-domiciliary, or his executor or administrator, who in person or through an agent:
      1. transacts any busineses within the state; or
      2. commits a tortious act within the state, except as to a cause of action for defamation of character arising from the act; or
      3. commits a tortious act without the state causing injury to person or property within the state, except as to a cause of action for defamation of character arising from the act, if he
      (i) regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in the state, or
      (ii) expects or should reasonably expect the act to have consequences in the state and derives substantial revenue from interstate or international commerce; or
      4. owns, uses or possesses any real property situated within the state.
      (b) Effect of appearance. Where personal jurisdiction is based solely upon this section, an appearance does not confer such jurisdiction with respect to causes of action not arising from an act enumerated in this section.

      . Plaintiffs also asserted § 302(a)(1) as a basis for personal jurisdiction over La Brasserie. There is, however, not the slightest factual support for the contention that La Brasserie directly transacts any business in this state.


author: GLASSER, District Judge:

text:
    UNITED STATES of America, Plaintiff, v. Raymond Luc LEVASSEUR, Jaan Karl Laaman, Thomas William Manning, Richard Charles Williams, Carol Ann Manning, Patricia Gros and Barbara Curzi, Defendants.
    No. 85 Crim. 143.
    United States District Court, E.D. New York.
    Oct. 4, 1985.
    Asst. U.S. Atty. John Gallagher, E.D. N.Y., Brooklyn, N.Y., for plaintiff.
    William M. Kunstler, New York City, for Thomas William Manning.
    Susan Tipograph, Flood, Tipograph & Holmes, New York City, for Gros.
    Margaret Ratner, Center for Constitutional Rights, New York City, for Curzi.
    Elizabeth Fink, Brooklyn, N.Y., for Carol Ann Manning.
    Lynne Stewart, New York City, for Richard Charles Williams.
    Jesse Berman, New York City, for Jaan Karl Laaman.
    Robert Boyle, Brooklyn, N.Y., Legal Asst, to Levasseur.
    Raymond Luc Levasseur, New York City, pro se.
   FINDINGS OF FACT AND CONCLUSIONS OF LAW

GLASSER, District Judge:

The defendants Curzi and Laaman have moved, pursuant to Rule 12(b)(3) of the Fed.R.Crim.P. for an order suppressing physical evidence seized at their residence, 4248 West 22nd Street, Cleveland, Ohio, prior to the issuance of a warrant to search those premises. The physical evidence thus sought to be suppressed consists of 3 weapons found on a shelf on the first floor of that residence; a fourth weapon in a bag on the floor of a second floor bedroom, and a cannister in an open cabinet in the basement. The cannister was wrapped in plastic and a paper-bag, with approximately one-third of it showing, the top blackened.

By way of brief background, the defendants Curzi and Laaman, together with their co-defendants had been the subjects of what has been described in other preliminary proceedings thus far, as one of the largest, if not the largest, manhunt in the history of the country. They were wanted for a series of bombings which are charged in the underlying indictment. Some of the defendants (Thomas Manning and Richard Williams) were wanted for the murder of a New Jersey State Trooper, for the attempted murder of a Massachusetts State Trooper (Laaman) and for bank robbery (Levasseur).

Their presence in the Cleveland, Ohio area in the early days of November caused the convergence on that area of many agents of the F.B.I. from various parts of the country as well as other law enforcement personnel. The house on West 22nd Street was believed to be a place where some or all of the defendants were to be found. After the occupants were notified by loudspeakers of the police presence outside and asked to come out, the defendants Laaman, Curzi, Williams and several children emerged. Shortly after they were taken into custody, Special Agent Ralph J. Young, a SWAT team leader from the Pittsburgh Division of the F.B.I. who, together with members of his team were summoned to Cleveland and were present on the scene when the arrests were made on November 4, 1984, entered the house to ascertain whether there were other persons who were the targets of the manhunt inside.

Special Agent Young testified that he entered the house together with Special Agents Ostronic and Pino. Almost immediately upon entering, he testified, he noted three weapons on the top shelf of a room he described as a dining area. Received in evidence were photographs marked as Exhibits 10 and 11 which depict the condition of that area other than the lighting. Neither Agent Young nor Agents Ostronic or Pino touched those weapons, nor did they touch anything else. There were standing instructions to members of that SWAT team not to touch or move anything.

Those three agents were joined by Special Agent Freiwald and they went to the second floor to make certain that there were no other persons in that portion of the house. Shortly after entering upon the second floor, Agent Young testified that he was alerted by Agent Ostronic that in one of the bedrooms there was a weapon in a bag. Received in evidence was Exhibit 12, an accurate photograph of what Agent Ostronic and Agent Young saw. Pursuant to the standing instructions, nothing was touched or moved. The Agents cleared the attic, closets and other places where persons might be concealed (under beds) and then proceeded to the basement, where they encountered a Doberman Pinscher dog which required the assistance of a canine handler from the Cleveland police to remove. No persons were found in the basement.

Agent Young then testified that after the work of his team was completed, he turned the house over to Special Agents of the Cleveland Field Division of the F.B.I. Agent Young told them at that time that there were three weapons downstairs and one upstairs.

One of the Agents to whom Agent Young relinquished control of the house was Special Agent Richard Wrenn, who was next called as a witness.

Agent Wrenn testified that it was his responsibility to secure the premises until such time as a search warrant was obtained and also to effect a possible arrest of Thomas Manning should he return to the residence. He testified that he (Wrenn) arrived at the house just about the time the SWAT team was leaving and was aware that a protective sweep had been done by them. Agent Wrenn also knew that weapons were found in the home, having heard Agent Young notify another Agent, Agent Drab of that fact. Agent Drab accompanied Wrenn. Notwithstanding that awareness, Agent Young went through the premises immediately upon his entry as was his practice out of concern for his own safety. In the basement he saw a cannister on a shelf in an open metal cabinet. Approximately one third to one fourth of it was showing. It was wrapped in plastic and what appeared to be a paper sac was also wrapped around it. The top of the eannister appeared to be blackened. He also saw a bit of a label on the cannister and could read the words, “red dot.” Agent Wrenn then testified that he thought that what he saw should be examined by someone qualified to handle it and notified Detective Rocco Polutro of the Cleveland Bomb Squad. Agent Wrenn did not move the cannister prior to notifying Detective Polutro nor was he present when the cannister was moved thereafter. Agent Wrenn then left the basement area and never returned there. Agent Wrenn also testified that upon entering the house initially, the weapons in the dining room were plainly visible and he saw the weapon protruding from the bag in the bedroom upstairs. Agent Wrenn remained in that house from the time of his arrival at approximately 11:00 A.M. on November 4th until the evening of November 5th almost without interruption. No search was conducted until after the arrival of the search warrant, which was at approximately 3:00 P.M. on November 5, 1985.

Discussion

In a motion to suppress physical evidence the burden of proof is on the defendant who seeks the suppression. United States v. Feldman, 606 F.2d 673 (6th Cir.1979), cert. denied, 445 U.S. 961, 100 S.Ct. 1648, 64 L.Ed.2d 236 (1980). However, once the defendant has established some basis for the motion, as for example, by a preliminary showing that the search was conducted without a warrant, then the burden shifts to the government to show that the warrantless search was reasonable. United States v. Sacco, 563 F.2d 552 (2nd Cir), cert. denied, 434 U.S. 1039, 98 S.Ct. 779, 54 L.Ed.2d 789 (1977). The standard of proof in this regard is a preponderance of the evidence. United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974). It is also well settled that the Federal Rules of Evidence are generally not applicable and that hearsay is admissible. Fed.R.Ev. Rules 104(a), 1101(d)(1); United States v. Matlock, supra.

The defendants contend that the warrantless presence in their residence of the law enforcement authorities rendered the seizure of the weapons and the cannister an unlawful violation of the Fourth Amendment protection against unreasonable searches and seizures. It should be noted at the outset that the evidence does not establish in any way that the weapons were ever seized until after a search warrant was obtained. The evidence does clearly suggest that the cannister was seized by detectives of the Cleveland Bomb Squad prior to the issuance of the warrant. The Government contends that the law enforcement agents were lawfully on the premises and that the pre-warrant seizure was justified by the plain view doctrine.

A. Lawfulness of the Police Intrusion

It is constantly important to bear in mind that the Fourth Amendment does not prohibit all searches. That Amendment protects against unreasonable search and seizures. Warrantless entries after an arrest, even where that arrest was made outside the premises, has long been recognized as reasonable where the entry was dictated by a compelling urgency. The background leading up to the events on the morning of November 4, 1984 has already been briefly recounted. The defendants had been the subject of an extensive manhunt which extended over many years. Exiting from the premises in question were only three of those sought. Still at large were the Mannings and possibly others. The defendants were wanted for numerous bombings of government and other buildings extending over a period of seven years and as has been indicated, some of them were also wanted for serious crimes of violence. The police clearly had a reasonable belief that third persons may be inside the house and a reasonable belief that they might destroy evidence or jeopardize the safety of the officers or the public. The conclusion that entry into the house was necessary, indeed required, by a compelling urgency is inescapable. See United States v. Bowdach, 414 F.Supp. 1346, 1352 (S.D.Fla.1976), aff'd 561 F.2d 1160 (5th Cir.1977); United States v. Sellers, 520 F.2d 1281 (4th Cir.1975). See generally LaFave and Israel, 1 Criminal Procedure, 268-273 (1984).

The intrusion upon the premises being clearly lawful, the weapons which were in plain view could properly have been seized although, as has been indicated, they were not until after the search warrant was obtained. The seizure of the cannister in the basement prior to the issuance of the warrant was clearly justified under the plain view doctrine. Terry v. Brown, 460 U.S. 730, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983); Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971).

The defendants attempt to cast doubt upon the “plain view” theory of the government by pointing to an inventory of a search which describes the weapon seen in the second floor bedroom as having been located in a green bag. The testimony of Special Agents Young and Wrenn, when considered together with Exhibit # 12, satisfactorily explains the inventory notation and confirms its correctness, even semantically.

The defendants also point to Master Inventory item numbered 175, attached to the original moving papers as also casting doubt upon the “plain view” assertion. The testimony of Special Agent Wrenn was clear and unequivocal as to where he saw the cannister, its condition when he saw it, and that he did not move it. That testimony also established that the cannister was subsequently moved and examined by members of the Cleveland Police Bomb Squad. The inventory describes what was found after the search warrant was obtained and the inference that it was found where it was because the bomb squad placed it there is a fair and reasonable one.

The search and seizure did not violate the Fourth Amendment and the government has carried its burden in establishing the legality of the search and seizure by evidence which is clear and convincing.

This motion to suppress was incident to a Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978) attack upon the affidavit of Special Agent Leonard Cross dated November 5,1984 executed by him in support of the search warrant which was issued. Paragraph 53 of that affidavit describes the weapons and black powder (the cannister) as having been located in plain sight during the protective sweep. I find that that paragraph does not knowingly and intentionally misrepresent the facts in this regard. On the contrary, I find that the statement is correct. I should add that even if the statement were not accurate, for the reasons given in another Memorandum and Order on the Franks motion, there was more than enough lawfully obtained information in the Cross affidavit amounting to probable cause which would have justified the issuance of the warrant and made admissible the evidence seized pursuant to it. See United States v. Marehand, 564 F.2d 983, 993 (2d Cir.1977) and James v. United States, 418 F.2d 1150 (D.C.Cir.1969).

The foregoing constitutes the Court’s findings of fact and conclusions of law.

SO ORDERED.