author: ROBERT L. CARTER, District Judge.

text:
    ABORTION RIGHTS MOBILIZATION, INC., et al., Plaintiffs, v. . Donald T. REGAN, Secretary of The Treasury, and Roscoe L. Egger, Jr., Commissioner of Internal Revenue.
    No. 80 Civ. 5590 (RLC).
    United States District Court, S.D. New York.
    Feb. 27, 1985.

      Marshall Beil, Carol A. Schrager, Karpatkin, Pollet, Perlmutter & Beil, New York City, for plaintiffs; Stephen B. Latham, Joyce Roop, Sybil Shainwald, New York City, of counsel.
    Wilfred R. Caron, Gen. Counsel, Mark E. Chopko, Asst. Gen. Counsel, U.S. Catholic Conference, Williams & Connolly, Washington, D.C., Hughes, Hubbard & Reed, New York City, for United States Catholic Conference and National Conference of Catholic Bishops; Charles H. Wilson, Richard S. Hoffman, Washington, D.C., of counsel.
    Rudolph W. Giuliani, U.S. Atty. for the Southern District of New York, New York City, for defendants; William J. Brennan, Carolyn L. Simpson, Asst. U.S. Attys., New York City, of counsel.
   OPINION

ROBERT L. CARTER, District Judge.

This renewed motion to dismiss the amended complaint for lack of subject matter jurisdiction is based upon the recent Supreme Court decision in Allen v. Wright, — U.S. —, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984). The question presented is whether and to what extent the Allen opinion affects the outcome reached by this court in Abortion Rights Mobilization, Inc. v. Regan, 544 F.Supp. 471 (S.D.N.Y. 1982) (Carter, J.) (“ARM”), with which familiarity is assumed. ARM held that the clergy plaintiffs and the Women’s Center for Reproductive Health had standing under the establishment clause, and that 20 individuals and three tax-exempt organizations had standing as voters in this litigation.

The Supreme Court held in Allen that a nationwide class of parents of black children attending public schools in districts undergoing desegregation, but who had not actually been denied entry to allegedly discriminatory private schools, did not have standing to challenge the tax exempt status of those schools.

In applying Allen to the present case it must first be noted that the Court did not close the door on private suits challenging government grants of tax exemption, see Allen, 104 S.Ct. at 3332 (noting possible propriety of standing in Coit v. Green, 404 U.S. 997, 92 S.Ct. 564, 30 L.Ed.2d 550 (1971), summarily affg. sub nom., Green v. Connally, 330 F.Supp. 1150 (D.D.C.), which made allegations comparable to those in Allen but with different facts), but used traditional analysis in concluding that the Allen plaintiffs lacked standing.

The Court held that “the law of Art. III standing is built on a single basic idea — the idea of separation of powers.” Allen, 104 S.Ct. at 3325. This is an integral part of the precedent upon which both Allen and ARM were decided. See, e.g., Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 471-476,102 S.Ct. 752, 757-761, 70 L.Ed.2d 700 (1982); Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 2204, 45 L.Ed.2d 343 (1975). Separation of powers, as Allen, 104 S.Ct. at 3330 n. 26, clearly demonstrates, is not a distinct line of analysis but serves as the basis of the “traceability” part of the traditional three part standing test of personal injury fairly traceable to the defendant’s allegedly illegal conduct which is likely to be remedied by the requested relief. Id. at 3325.

More specifically, plaintiffs in Allen asserted two types of damage: the first was characterized as either a generalized injury based upon the government’s behavior in granting tax exemptions to the schools or as denigration suffered by all blacks as a result of government discrimination. In either case, the Court found the harm to be insufficiently personal to constitute a justiciable cognizable injury. Id. at 3326. The second alleged injury was the children’s diminished ability to receive an education in a racially integrated school. Id. at 3328. This was found wanting because desegregated schooling was not fairly traceable to the allegedly illegal conduct of the IRS. Id. at 3326.

A

While it is clear that stigmatizing injuries are the sort of noneconomic wrongs caused by government conduct that sometimes can be sufficient to support standing, Heckler v. Mathews, 465 U.S. —, —, 104 S.Ct. 1387, 1395, 79 L.Ed.2d 646 (1984), such status is accorded only to those who can allege a resultant harm to a concrete, personal interest. Allen, 104 S.Ct. at 3327-328. The ARM decision used this analysis to find that the lay and organizational plaintiffs did not have standing while the clergy plaintiffs and the Women’s Center for Reproductive Health, a church affiliated guidance service, asserted a “compelling and personalized” injury, ARM, 544 F.Supp. at 479, that “diminishes their position in the community, encumbers their calling in life, and obstructs their ability to communicate effectively their religious message.” Id. at 480. Such allegations meet the test enunciated in School District of Abington Township, Pa. v. Schempp, 374 U.S. 203, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963), that would-be plaintiffs must show that they are “directly affected by the laws and practices against which their complaints are directed.” Id. at 224 n. 9, 83 S.Ct. at 1572 n. 9.

Personal injury, however, is not enough. Plaintiffs must also clear the two additional hurdles of the standing test. This court, in ARM, found plaintiffs’ establishment clause injury to be traceable to defendants’ conduct because “[tjacit government endorsement of the Roman Catholic Church view of abortion hampers and frustrates these plaintiffs’ ministries.” Id. at 480. The court therefore found plaintiffs’ asserted injuries to be traceable to “official approval of an orthodoxy antithetical to [plaintiffs’] spiritual mission.” Id.

Their injury flows directly from the federal defendants allowing the church defendants the privilege of retaining § 501(c)(3) status while electioneering and denying this privilege to other religious organizations. The granting of a uniquely favored tax status to one religious entity is an unequivocal statement of preference that gilds the image of that religion and tarnishes all others. A decree ordering the termination of this illegal practice and restoring all sects to equal footing will redress this injury.

Id.

This finding is consistent with Allen. Allen holds that tax exemption granted to an organization that allegedly practices an illegal activity does not in itself constitute the necessary connection between government action and injuries that flow from the activity. The lack of desegregated schooling, defined in Allen as a cognizable injury, was not found directly traceable to government action. “From the perspective of the IRS, the injury to respondents is highly indirect and ‘results from the independent action of some third party [i.e., the discriminatory private school] not before the court.’ ” Allen, 104 S.Ct. at 3328, quoting, in part, Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 42, 96 S.Ct. 1917, 1926, 48 L.Ed.2d 450 (1976). The Court stated that if a direct link between tax exemption and desegregation could be established, i.e., if there were enough racially discriminatory private schools receiving tax exemptions in respondents’ communities for withdrawal of those exemptions to make an appreciable difference in public school integration, then the alleged injury would be fairly traceable to unlawful IRS grants of tax exemptions. Allen, 104 S.Ct. at 3328.

Similarly, redress of the establishment clause injury sustained in ARM does not depend upon any action by a third party. Redress will come directly from the government’s consistent enforcement of the tax laws, not from any change in the political activities of the Church. Plaintiffs’ establishment clause injury centers on the quasi-official imprimatur accorded the anti-abortion activities of the Church through tax exemptions and the restrictions placed on the establishment clause plaintiffs’ political activities by § 501(c)(3). Whether the allegations can be proved is not a question for this court now to decide since it must accept as true all material allegations of the complaint and construe the complaint in favor of the complaining party. Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 109, 99 S.Ct. 1601, 1612, 60 L.Ed.2d 66 (1979).

It is thus apparent that Allen supports the court’s earlier decision which denied standing under the establishment clause to those plaintiffs who, similar to those in Allen, asserted only general claims of denigration, but which granted standing to those plaintiffs who could pass the three part test of distinct personal injury, direct traceability, and possible redress by defendants.

B

As pointed out in the earlier opinion, it has consistently been held that voters have standing to contest the alleged infringement of their right to participate in the political process on equal terms with all others free from arbitrary government interference. ARM, 544 F.Supp. at 480-481 citing Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962) (plaintiffs’ unjustifiable inequality vis-a-vis voters in other counties justified standing); Shakman v. Democratic Organization of Cook County, 481 F.Supp. 1315 (N.D.Ill.1979) (standing granted to challenge patronage system because of the alleged injury to plaintiffs’ interest in an equal chance and an equal voice in the election process); Tax Analysts and Advocates v. Shultz, 376 F. Supp. 889 (D.D.C.1974) (non-profit corporation and one of its members granted standing to challenge revenue ruling concerning campaign gifts because alleged diminution of one’s vote and dilution of the ability to affect the electoral process are judicially recognized wrongs and are thus sufficient allegations of actual injury); Common Cause v. Democratic National Committee, 333 F.Supp. 803 (D.D.C.1971) (allegations that several national committees of political parties circumvented the statute placing limits on individual campaign contributions, thereby diluting plaintiffs’ participation in the voting process, were sufficient to find standing).

Here again, mere personal injury is not enough. Defendants argue that Allen’s yardstick in regard to traceability and redressability require that voter standing be denied in this case. Defendants, however, misconstrue the basis for the ARM holding that voter standing requirements have been met. The injury to plaintiffs is not, as defendants state, “alleged politicking by the Catholic Church,” Defendants’ Memorandum of Law in Support of Their Renewed Motion to Dismiss at 15, but the alleged arbitrary inequality of the plaintiffs in the political process vis-a-vis the Catholic Church created by the IRS’s grant of tax exemption to the latter. The judicially cognizable injury in Allen was segregated schooling which was neither created nor remediable by IRS action alone. The injury alleged in ARM is unequal footing in the political arena, a condition completely traceable and within the control of the IRS. The Allen analysis and ARM's are, therefore, as one and the court’s earlier holding granting standing to the present plaintiffs remains unaffected by Allen.

C

Moreover, in ARM, the successful plaintiffs were found to have surmounted the three prudential limitations that can defeat standing even when the Article III case or controversy standards are met. ARM, 544 F.Supp. at 484. The three prudential limitations preclude standing when: (1) the harm asserted amounts to only a generalized grievance shared by a large number of citizens in a substantially equal measure, (2) plaintiffs assert the rights of third parties, or (3) abstract questions of wide public significance are presented when other governmental institutions may be more competent to decide them. Id. (citations omitted). Allen does not reach these issues, but its analysis is fully congruent with ARM’s treatment of these considerations.

Concerning the “generalized grievance” limitation, ARM fully analyzed the specificity of the remaining plaintiffs’ injuries, distinguishing the harm to clergy plaintiffs and the Women’s Center for Reproductive Health from that complained of by the excluded plaintiffs as well as plaintiffs in, e.g., Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982). ARM, 544 F.Supp. at 4477-480, 484. Voter standing is also particularized since plaintiffs, despite articulated desires to be politically active on behalf of their pro-choice views, can not do so without risking their valuable § 501(c)(3) status. This personal denial of equal treatment is precisely the type of standing required by Allen since parent plaintiffs in that case “were not personally denied equal treatment by the challenged discriminatory conduct.” Allen, 104 S.Ct. at 3327.

The question of whether plaintiffs are addressing other parties’ rights was answered squarely in the negative by ARM, 544 F.Supp. at 485. Since no assertion otherwise is made by defendants and Allen is silent on the issue, the previous ruling need not be disturbed.

Finally, there is the matter of whether other governmental institutions may be more competent to decide this issue. As stated in Allen and noted in defendants’ briefs, the separation of powers doctrine

counsels against recognizing standing in a case brought, not to enforce specific legal obligations whose violation works a direct harm, but to seek restructuring of the apparatus established by the Executive Branch to fulfill its legal duties. The Constitution, after all, assigns to the Executive Branch and not to the Judicial Branch the duty to ‘take care that the laws be faithfully executed.’ U.S. Const. Art. II, § 3. We could not recognize [plaintiffs’] standing in this case without running afoul of that structural principle.

Allen, 104 S.Ct. at 3330.

Whether courts provide an appropriate forum for deciding the matter presented thus implicates questions considered in the Article III analysis. This dovetailing of constitutional and prudential concerns was explicitly recognized by Allen:

Case or controversy considerations, the Court observed in O’Shea v. Littleton, ... 414 U.S. [488,] 499, 94 S.Ct. [669,] 677 [, 38 L.Ed.2d 674 (1974),] ‘obviously shade into those determining whether the complaint states a sound basis for equitable relief.’ ... Most relevant to this case is the principle articulated in Rizzio v. Goode ... 423 U.S. [362,] 378-379, 96 S.Ct. [598,] 607-608 [, 46 L.Ed.2d 561 (1976)]:
‘When a plaintiff seeks to enjoin the activity of a government agency, even within a unitary court system, his case must contend with the well-established rule that the Government has traditionally been granted the widest latitude in the dispatch of its own internal affairs,’ Cafeteria Workers v. McElroy, 367 U.S. 886, 896 [, 81 S.Ct. 1743, 1749, 6 L.Ed.2d 1230] (1961), quoted in Sampson v. Murray, 415 U.S. 61, 83 [, 94 S.Ct. 937, 949, 39 L.Ed.2d 166] (1974). Id.

In addition to the previously discussed finding of direct harm to plaintiffs and its traceability to defendants’ actions, ARM further addressed this final prudential concern of limiting judicial activity to the enforcement of “specific legal obligations whose violation works a direct harm,” Allen, 104 S.Ct. at 3330, by holding that:

Although the complaint implicates social policy issues, it does not call for judicial selection of an appropriate policy. Congress has already made that choice and set out the correct policy in § 501(c)(3); plaintiffs ask only for a judicial determination of whether defendants have observed Congress’ commands concerning taxes and engaging in political activity. The prudential barriers do not restrict a court from adjudicating a claim merely because of the interplay between the litigation and social controversy.

ARM, 544 F.Supp. at 485.

For the above stated reasons, defendants’ renewed motion to dismiss the amended complaint for lack of subject matter jurisdiction is denied.

IT IS SO ORDERED.

      . As a further result of ARM, five of the original plaintiffs, all abortion clinics, were denied standing for failure to show injury in fact and two of the original defendants, the United States Catholic Conference and the National Conference of Catholic Bishops, had the complaint against them dismissed since they were incapable of violating the First Amendment and had not violated the Internal Revenue Code in light of an explicit tax exemption from the IRS.

      . While the "fairly traceable” and "redressability” components of the constitutional standing inquiry were initially articulated as two facets of a single causation requirement, both Allen and ARM treat them as distinct inquiries for analytical purposes. Allen, 104 S.Ct. at 3326 n. 19; ARM, 544 F.Supp. at 478. The same practice will be followed here.

      . The "zone of interests” test was held to be inapplicable to the ARM context since that test applies only to taxpayer suits and plaintiffs concede that they do not have taxpayer standing. ARM, 544 F.Supp. at 484 n. 11; see Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59, 78-79, 98 S.Ct. 2620, 2633-2634, 57 L.Ed.2d 595 (1978).

       ... [0]ur analysis of this case does not rest on the more general proposition that no consequence of the allocation of administrative enforcement resources is judicially cognizable.... Rather we rely on separation of powers principles to interpret the 'fairly traceable’ component of the standing requirement.


source: Caselaw Access Project

author: MIHM, District Judge.

license: Public Domain

text:
    Josephine DAUGHTERY, Plaintiff, v. LUCKY STORES, INC., and Eagles Food Store, Defendant.
    No. 84-1382.
    United States District Court, C.D. Illinois, Peoria Division.
    Feb. 27, 1985.

      Richard Price, Jr., Peoria, 111., for plaintiff.
    Gerald D. Skoning, Chicago, 111., William J. Snyder, Rock Island, 111., for defendant.
   ORDER

MIHM, District Judge.

In this action, which was removed to federal court by the Defendant on the basis of diversity jurisdiction, 28 U.S.C. § 1332, the Plaintiff brings a state law claim for wrongful discharge based on her alleged discharge from employment by the Defendant for filing a workers’ compensation claim. The Defendant moves to dismiss the Plaintiff’s complaint on the basis that this Court lacks subject matter jurisdiction over the state law action because it is preempted by applicable federal labor law.

The State of Illinois has recognized the existence of a cause of action in tort enabling an employee to state a claim for discharge which was in retaliation for pursuing a workers’ compensation claim. Kelsay v. Motorola, Inc., 74 Ill.2d 172, 384 N.E.2d 353, 23 Ill.Dec. 559 (1978). The Defendant asserts, however, that the workers’ compensation claim is a federally protected right under the Labor Management Relations Act, 29 U.S.C. § 185(a) (“LMRA”), and that the LMRA provides for an administrative mechanism to safeguard statutory employee rights. 29 U.S.C. §§ 151-168.

In San Diego Building Trades Council v. Garmon, 359 U.S. 236, 244, 79 S.Ct. 773, 779, 3 L.Ed.2d 775 (1959), the Supreme Court stated that:

“When it is clear or may fairly be assumed that the activities which a state purports to regulate are protected by section 7 of the Taft-Hartley Act, or constitute an unfair labor practice under section 8, due regard for the federal enactment requires that state jurisdiction must yield.”

Accord, Motor Coach Employees v. Lockridge, 403 U.S. 274, 91 S.Ct. 1909, 29 L.Ed.2d 473 (1971), Local 926, International Union of Operating Engineers v. Jones, 460 U.S. 669, 103 S.Ct. 1453, 75 L.Ed.2d 368 (1983). The fact that the ultimate goal of the state is in accord with that of the National Labor Relations Board (NLRB) is irrelevant in considering the issue of preemption. California State Counsel of Carpenters v. Associates General Contractors, Inc., 648 F.2d 527, 540 (9th Cir.1980), rev’d. on other grounds, 459 U.S. 519, 103 S.Ct. 897, 74 L.Ed.2d 723 (1983).

It has been stated that:

“Labor preemption is a complex and confused area of the law. Preemption is a matter of congressional intent, but the labor statutes provide little or no guidance as to what aspects of state law Congress intended to preempt. (Citations omitted).
* * # * 3|C $
Essentially, in any preemption case the court must attempt to weigh the state’s interests against those of federal labor policy. See Garibaldi v. Lucky Food Stores, Inc., 726 F.2d 1367, 1372-73 (9th Cir.1984).”

Olguin v. Inspiration Copper Co., 740 F.2d 1468, 1473 (9th Cir.1984).

In Jackson v. Consolidated Rail Corp., 717 F.2d 1045 (7th Cir.1983), cert. denied — U.S. —, 104 S.Ct. 1000, 79 L.Ed.2d 233 (1984), the Seventh Circuit held that a state claim for retaliatory discharge was preempted by the Railway Labor Act, 45 U.S.C. § 153 (1976). In addressing the question of preemption, the court considered the state interest in regulating the conduct in question and the potential for interference with the federal regulatory scheme. 717 F.2d at 1053. The Jackson court relied heavily on the approach taken by the Supreme Court in Farmer v. Brotherhood of Carpenters, Local 25, 430 U.S. 290, 297, 97 S.Ct. 1056, 1061, 51 L.Ed.2d 338 (1977), in which it was held that the National Labor Relations Act did not preempt a tort action for intentional infliction of emotional distress under California law.

The Farmer analysis was also used in Garibaldi v. Lucky Food Stores, 726 F.2d 1367 (9th Cir.1984). In that case the Ninth Circuit allowed an employee to bring suit in state court alleging that he was discharged for reporting to local health authorities that his employer had ordered him to deliver a load of spoiled milk. The court held that the state’s interest in enforcing its local health regulations was strong, and that California could use private tort actions to enforce these regulations without interfering with federal labor policy. The court stated that:

“It is clear that California’s interest in providing a cause of action for a violation of public policy or a statute is the enforcement of the underlying statute or policy, not the regulation of the employment relationship.
* * * * * *
A claim grounded in state law for wrongful termination for public policy reasons poses no significant threat to the collective bargaining process; it does not alter the economic relationship between the employer and employee. The remedy is in tort distinct from any contractual remedy an employee might have under the collective bargaining contract. It furthers the state’s interest in protecting the general public — an interest which transcends the employment relationship (citation omitted).”

726 F.2d at 1374,1375. (Emphasis in original).

In Kelsay v. Motorola, Inc., supra, the Illinois Supreme Court, in establishing the tort of wrongful discharge for filing of a workers’ compensation claim, repeatedly highlighted the purpose of the Workers’ Compensation Act, Ill.Rev.Stat. Ch. 48, § 138.1 et seq. (1983). The court stated that the Workers’ Compensation Act is a humane law of a remedial nature providing for efficient remedies for and protection of employees by providing them with prompt and equitable compensation for work related injuries. As such, the Act promotes the general welfare of the state. 384 N.E.2d at 356-57, 23 Ill.Dec. at 562-63. The court stated that:

“(T)he legislature enacted the workmen’s compensation law as a comprehensive scheme to provide for efficient and expeditious remedies for injured employees. This scheme would be seriously undermined if employers were permitted to abuse their power to terminate by threatening to discharge employees for seeking compensation under the Act. We cannot ignore the fact that when faced with such a dilemma many employees, whose common law rights have been supplanted by the Act, would choose to retain their jobs, and thus, in effect, would be left without a remedy either common law or statutory.”

The Kelsay decision evidences that in recognizing a cause of action for wrongful discharge for the filing of a workers’ compensation claim, the State of Illinois sought to ensure that employees will be provided with a remedy for work related injuries. The state interest is not in regulation of the employment relationship. A claim grounded in state law for wrongful termination for this public policy reason furthers the state interest in protecting the general public, an interest which, as in Garibaldi, transcends the employment relationship. See Garibaldi, 726 F.2d at 1375.

This conclusion is buttressed by the fact that pursuit of the state cause of action allows for little potential interference with the federal regulatory scheme. In Wabco Construction and Mining Equipment Group, 270 N.L.R.B. 126 (1984), the NLRB held that an employer’s refusal to rehire a former employee who filed a workers’ compensation claim more than one year after he voluntarily quit his position with the respondent did not constitute an unfair labor practice because the individual had not engaged in concerted activity protected under § 7 of the LMRA. The General Counsel in Wabco had relied upon the NLRB’s decision in Krispy Kreme Donut Corp., 245 N.L.R.B. 1053 (1979), enforcement denied 635 F.2d 304 (4th Cir.1980), which held that the filing of a workers’ compensation claim by an individual is protected concerted activity. In Wabco, however, the NLRB found that the employee’s conduct did not constitute concerted activity, stating that:

“In Meyers Industries, 268 NLRB No. 73, slip op. at 12 (Jan. 6, 1984), we held that ‘(i)n general, to find an employee’s activity to be “concerted”, we shall require that it be engaged in with or on the authority of other employees, and not solely by and on behalf of the employee himself.’ In so doing, we overrule the precedent on which the General Counsel relies in this case.
The record establishes that (the employee) acted alone and solely on his own behalf when he filed his worker’s compensation claim. Thus, the facts of the case do not support a finding that (the employee) engaged in concerted activity as defined in Meyers. Accordingly, we shall dismiss the complaint.”

Wabco, slip op. at 3. The Wabco decision was rendered subsequent to the decisions cited by the Defendant in support of the proposition that the filing of a workers’ compensation claim under state law is an activity protected by § 7 of the LMRA and that any retaliatory action based upon such activity is an unfair labor practice.

The instant case is distinguishable from Olguin v. Inspiration Consolidated Copper Co., supra, relied upon by the Defendants. In that case, the court upheld the dismissal of plaintiff’s state law tort action for wrongful discharge because it was preempted by federal labor law. The plaintiff had complained that he was discharged for complaining about mine safety conditions and engaging in concerted labor activity. Mine safety, the Ninth Circuit noted, is governed by the Federal Coal Mine Health and Safety Act, 30 U.S.C. §§ 801-962, and concerted activity is protected by the federal labor laws. 740 F.2d at 1475. In the case at bar, however, there is no federal statute governing the Plaintiff’s claim, and the NLRB has held that the action of a single employee filing a workers’ compensation claim on his or her own behalf is not concerted activity protected by federal labor laws.

Similarly, Jackson v. Consolidated Rail Corp., supra, is distinguishable from the case at bar. In holding that a state claim for retaliatory discharge was preempted by the Railway Labor Act, 45 U.S.C. § 153 (1976), the Seventh Circuit stated that the Railway Labor Act provides a stronger case for preemption than does the NLRA. The Railway Labor Act has made any grievance arising out of the collective bargaining agreement subject to the exclusive arbitral remedies contained in the Act, and thus a state claim is more likely to impinge on an area of exclusive administrative jurisdiction under that Act than under the NLRA. 717 F.2d at 1052.

Accordingly, the Court holds that Plaintiff’s claim of wrongful discharge for filing a workers’ compensation claim is not preempted by federal labor law. Defendant’s Motion to Dismiss is DENIED.

      . The Illinois Supreme Court has agreed to review this same issue in the case of Homer Ward v. The Howard P. Foley Co., — Ill.2d —, 469 N.E.2d 1115, 83 Ill.Dec. 181 (1984).

      . See, Ohio Brass Co., 261 N.L.R.B. 18 (1982), Country Club of Little Rock, 260 N.L.R.B. 151 (1982), Miners Union, Local 29, Welfare, Pension and Vacation Funds, 256 N.L.R.B. 170 (1981), Bay State Gas Co., 225 N.L.R.B. 99 (1982), Krispy Kreme Donut Corp., 245 N.L.R.B. 1053 (1979), enforcement denied, 535 F.2d 304 (4th Cir.1980).


author: HAND, Chief Judge.

text:
    Gary H. McLAUGHLIN d/b/a McLaughlin’s IGA Foodliner, Plaintiff, v. WESTERN CASUALTY AND SURETY COMPANY, a corporation, Defendant.
    Civ. A. No. 85-0168-H.
    United States District Court, S.D. Alabama, S.D.
    Feb. 27, 1985.
   ORDER

HAND, Chief Judge.

This cause comes before the Court on plaintiff’s motion for a remand and sanctions under Fed.R.Civ.P. 11. A hearing was conducted on February 15, 1985, the Honorable W.B. Hand, Chief Judge, presiding.

This case involves an insurance claim for payment due under a policy of fire insurance, along with a claim for fraud and misrepresentation. The original complaint, filed in the Circuit Court of Mobile County, Alabama on January 20, 1981, named as defendants Western Casualty and Surety Co. and Alabama Farm Bureau Mutual Casualty Insurance Co., Inc. Alabama Farm is a corporation organized and existing under the laws of the State of Alabama. On September 9,1982 the American National Bank & Trust Co. (AmSouth) filed a complaint in intervention in the state court action. As intervenor, AmSouth sought to recover proceeds of insurance policies issued to plaintiff, based on a security agreement between plaintiff and AmSouth. AmSouth is a resident of Alabama for diversity purposes.

On October 22, 1984, defendant Alabama Farm was dismissed from the state court action. On January 28, 1985 AmSouth filed a motion under Ala.R.Civ.Proc. 41(a)(2) to dismiss its complaint in intervention. On February 4, 1985 the date the case had been set down for trial to a jury in Mobile County Circuit Court, defendant Western Casualty announced ready for trial. After a jury was struck and trial was ready to commence, Western Casualty announced that a petition for removal had been filed in this Court, and a mistrial was ordered by the Circuit Court judge, the Honorable Michael E. Zoghby.

Plaintiff Gary H. McLaughlin has filed an objection to removal and a motion to remand. The objection is based on 28 U.S.C. § 1446(b). The second paragraph of that subsection states:

If the case stated by the initial pleading is not removable, a petition for removal may be filed within thirty days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable.

As originally filed the named defendants included an Alabama resident, therefore complete diversity did not exist. This Alabama resident was dismissed, however, on October 22,1984, one hundred five days prior to the filing of the petition for removal. Defendant Western Casualty contends that removal was not proper until the dismissal of AmSouth, because Am-South is also an Alabama resident. This contention is erroneous. AmSouth’s interest in the destroyed property was derived entirely from McLaughlin. There was no dispute whatsoever as to the extent of that interest. AmSouth was simply standing with McLaughlin to await recovery. See, e.g., Broidy v. State Mut. Life Assur. Co., 186 F.2d 490 (2d Cir.1951); Thompson v. Bankers and Shippers Ins. Co. of N. Y, 479 F.Supp. 956 (N.D.Miss.1979); Utica Hillcrest Manor Corp. v. Phoenix Ins. Co., 165 F.Supp. 189 (S.D.N.Y.1958). Cf. City of Indianapolis v. Chase Nat’l Bank, 314 U.S. 63, 62 S.Ct. 15, 86 L.Ed. 47 (1941) (diversity must be ascertained from suit’s principal purpose); Hamer v. New York Ry., 244 U.S. 266, 37 S.Ct. 511, 61 L.Ed. 1125 (1917) (parties must be realigned for diversity purposes according to their ultimate interests in the outcome of the case); 13B C. Wright, A. Miller and Cooper, Federal Practice and Procedure, § 3607 (1984). At the hearing, counsel for Western Casualty indicated that AmSouth had to be in a position adverse to that of Mr. McLaughlin. In light of the above cited case law, the Court fails to see counsel’s rationale for such a contention. As the law on this point is so clear as to be virtually “Hornbook”, counsel’s arguments could only be the product of either a willful attempt to mislead this Court, or of an appalling ignorance.

It is clear that, as AmSouth and McLaughlin occupy the position of plaintiffs, the dismissal of Alabama Farm was the incident that brought this case within the jurisdiction of this Court under 28 U.S.C: § 1332. 28 U.S.C. § 1446(b), as noted above, requires removal to be accomplished within thirty days of the case’s becoming removable. Defendant Western Casualty removed this case after one hundred five days. Therefore the removal was improvident and the motion to remand is well taken.

Merely remanding this case will not do, however. Having examined the facts of this case, it appears to the Court that the removal petition was not only untimely, but was filed purely for the improper purpose of delaying trial. The Court notes that this case has been pending in state court for fully four years. Enormous time and energy have been expended until, finally, this case was ready for trial. Not content with merely postponing the trial by the stratagem of filing an untimely removal petition, counsel for Western Casualty also ruined an entire state court trial proceeding by announcing ready for trial, striking a jury and then announcing the filing of the petition. (Something they could have accomplished by their own statements before the sounding of the docket.) Such tactics are a reason for the low esteem with which lawyers are currently regarded.

Every attorney occupies a position in our society of particular trust and confidence. A client comes to an attorney with the expectations that the resources of our legal and judicial system that are at the attorney’s disposal will be used to insure the client’s fair treatment. It is not merely money that is at stake when an attorney embarks on the representation of a client. Livelihood, professions, reputations, familial relations and even physical and mental health can all be affected by the actions of an attorney. This is particularly true when the representation involves actual litigation. It is every attorney’s responsibility to conduct himself in an irreproachable manner in all of his professional dealings, not just in connection with his client escrow account. Attorneys embroiled in litigation must remember their duty to the legal system and the boundaries imposed by that duty. Only then will our system of justice function smoothly, dispense justice even handedly, and safeguard the interests and rights that are at risk.

Fed.R.Civ.P. 11 provides the authority by which a court may discourage delaying and harassing tactics and enforce principled adherence to the obligations imposed on all lawyers. The Rule itself states:

.Every pleading, motion, and other paper of a party represented by an attorney shall be signed by at least one attorney of record in his individual name, whose address shall be stated. A party who is not represented by an attorney shall sign his pleading, motion, or other paper and state his address. Except when otherwise specifically provided by rule or statute, pleadings need not be verified or accompanied by affidavit. The rule in equity that the averments of an answer under oath must be overcome by the testimony of two witnesses or of one witness sustained by corroborating circumstances is abolished. The signature of an attorney or party constitutes a certificate by him that he has read the pleading, motion, or other paper; that to the best of his knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. If a pleading, motion, or other paper is not signed, it shall be stricken unless it is signed promptly after the omission is called to the attention of the pleader or movant. If a pleading, motion, or other paper is signed in violation of this rule, the court, upon motion or upon its own initiative, shall impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion, or other paper, including a reasonable attorney’s fee.

(emphasis added).

The Advisory Committee Notes to the Amended Rule indicate that the amendment “should eliminate any doubt as to the propriety of assessing sanctions against the attorney.” Fed.R.Civ.P. 11 advisory committee notes. The Notes also indicate that the party seeking sanctions should give prompt notice to the court and the offending party. Plaintiff herein filed his objection to removal and request for sanctions on February 6, 1985. This was sufficiently prompt notice.

The Court has determined, from the briefs filed and the oral arguments presented, that sanctions under Rule 11 are fully justified. The Rule states that the Court “shall” impose sanctions when appropriate.

Rule 11 imposes two duties on every lawyer. First,.the attorney must make a reasonable inquiry into both the facts of the case and the law that applies to those facts. Both the facts and the law must support the pleading. Second, the pleading must not be interposed for an improper purpose. An attorney must fulfill both obligations to comply with the Rule. Counsel for defendant Western Casualty have neglected one or both of these responsibilities.

Here the petition for removal was neither “well grounded in fact” nor “warranted by existing law or a good faith argument” for a change in existing law. From the brief and oral argument of counsel for defendant Western Casualty, it is evident that the “reasonable inquiry” prescribed by the Rule was not conducted. The term “reasonable inquiry” connotes an objective standard. That is, would that amount of investigation that a reasonable attorney would make uncover the law controlling the attorney’s choice of action? The standard is not a subjective one judged by whether the individual attorney believes he conducted a reasonable degree of research. Such a subjective standard would virtually emasculate the Rule and revive the problems associated with former Rule 11.

The second duty is less objective than the first. However, it is a generally correct statement that if the first obligation is met, the second will be also. If an attorney fails out of negligence to discharge the first burden, improper motive must still be proven. Such motive may, and by necessity most likely will, be proven by circumstantial evidence.

The law governing the alignment of the parties in this suit is so clear that an objectively reasonable inquiry would have revealed counsel’s error. Counsel thus failed to comply with the first duty imposed by Rule 11.

The Court also questions the motive behind the filing of the removal petition. First, counsel’s legal arguments are totally without merit, thus the petition is frivolous. Second, the overall facts and circumstances of the case indicate willfulness. That is, counsel’s delay after the dismissal of Alabama Farm; the fact that counsel did not give any hint of the intent to remove after January 28, 1985, even though they knew plaintiff’s attorney must be in the process of preparing for trial; and finally, the conduct of counsel on the trial date. The Court also notes that the two attorneys representing defendant Western Casualty have over 33 years of combined experience. The filing of this removal petition was not an oversight caused by inexperience. Counsel for defendant was evidently attempting to put off the trial of this matter, after four years of preparation. The Court finds that some improper motive was present, judging from the overall facts and after listening to counsel’s arguments in open court. The Court is convinced by a preponderance of the evidence that defense counsel’s actions were willful.

As counsel for defendant have violated Rule 11, sanctions are required. The Court therefore awards costs and the following expenses and attorney’s fees as reasonable and just.

Counsel for plaintiff has submitted two sets of expenses, costs and fees incurred due to the filing of this frivolous removal petition. The first set consists of twenty-two (22) hours spent in litigating this removal petition. These twenty-two (22) hours constitute a reasonable period of time. The work performed was all necessary if plaintiff was to succeed on his motion to remand. Plaintiff’s counsel was forced to interrupt his busy schedule and spend a great deal of time on a frivolous matter. Finally, counsel succeeded in this litigation, as a remand is being ordered. The Court disallows fifteen minutes of the time spent in research and study as being allocated to the copying of cases. Photocopying is a task almost any non-lawyer can perform. The Court therefore allows twenty-one and three-quarters hours (21.-75) for plaintiffs counsel’s litigating the removal petition.

Counsel for plaintiff also seeks to recover fees for the time he spent in trial preparation before the state court trial. The rationale for this is that by filing a frivolous motion that sidetracked the trial, defendant’s counsel forced plaintiff’s counsel to repeat the work of trial preparation. Plaintiff presented cogent evidence, in the form of testimony by the president of the local bar association, on this point. The Court has carefully reviewed the itemized list of hours. While some of the tasks need not be repeated, many of the thirty-eight (38) hours are forever wasted. The Court disallows time spent in the dictation and drafting of jury charges and voir dire jury questions. The Court similarly finds that counsel for plaintiff will not require the identical time when this case is retried for reviewing evidence, relevant law or for going over expected testimony with witnesses. The Court therefore allows twenty and one-half (20.5) hours as the amount of time that counsel will of necessity spend in meaningless repetition because this case was improperly and frivolously removed.

The total time for which plaintiff will be able to recover attorney’s fees equals 42.25 hours. In light of the conduct exhibited by the attorneys representing defendant Western Casualty, and of the testimony presented by the bar association’s president, the Court finds that the rate of $100.00 per hour is reasonable. The total award of fees recovered thus equals $4,225.00. In addition, plaintiff is entitled to recover the $60.00 in subpoena fees wasted when the first state trial was abruptly cancelled, plus the costs incident to this action. The total amount comes to $4,285.00, plus costs. This sum is to be paid to plaintiff’s attorney by the two attorneys who represented Western Casualty and signed the removal petition.

Finally, as this case was improvidently removed, see Blow v. Liberty Travel, Inc., 550 F.Supp. 375 (E.D.Pa.1982), it is hereby ORDERED, pursuant to 28 U.S.C. § 1447(c), that this case be REMANDED to the Circuit Court for Mobile County, Alabama.

IT IS SO ORDERED.

      . Counsel was provided with copies of the above cited cases prior to the hearing.

      . One of the main frailties of the prior version of Rule 11 was found in the following language:
      The signature of an attorney constitutes a certificate by him that he has read the pleadings; that to the best of his knowledge, information, and belief there is good ground to support it; and that it is not interposed for delay. If a pleading is not signed or is signed with intent to defeat the purpose of this rule, it may be stricken as sham and false....
      Fed.R.Civ.P. 11 (West 1960) (emphasis added). Under this Rule courts tended to require both evil motive and a complete lack of substance before finding a violation. See 5 C. Wright & A. Miller, Federal Practice and Procedure § 1334 (1969 and Supp.1984). The effect was that the duty placed upon counsel was merely to not intentionally distort the truth. Since this is difficult to prove, the Rule had little bite. See 5 Wright & Miller, supra § 1334 at 500; Fed.R. Civ.P. 11 advisory committee notes. A subjective standard in the new Rule would require the court to become embroiled in a factual dispute over intent, a danger against which the advisory committee expressly warned. Id., (Court should , avoid "satellite" litigation).


author: HAIGHT, District Judge:

text:
    Anthony HERBERT, Plaintiff, v. Barry LANDO, Mike Wallace, Columbia Broadcasting System, Inc., Defendants.
    No. 74 Civ. 434-CSH.
    United States District Court, S.D. New York.
    Feb. 27, 1985.

      Cohn, Glickstein, Lurie, Ostrin, Lubell & Lubell, New York City, for plaintiff; Jonathan W. Lubell, New York City, of counsel.
    Coudert Brothers, New York City, for defendants CBS, Inc. and Mike Wallace; Pamela G. Ostrager, New York City, Selene E. Mize, of counsel.
    Green & Hillman, New York ■ City, for defendant Barry Lando; Richard G. Green, Adria S. Hillman, New York City, of counsel.
    Ronald E. Guttman, New York City, for CBS, Inc.
   MEMORANDUM OPINION AND ORDER

HAIGHT, District Judge:

In this action for defamation brought by a public figure plaintiff and arising out of a television program and subsequent magazine article, defendants Lando, Wallace, and Columbia Broadcasting System, Inc. (“CBS”) moved for summary judgment dismissing the complaint. This Court granted the motion in part and denied it in part, thereby requiring trial on two particular statements ascribed to defendants. That decision is reported at 596 F.Supp. 1178 (S.D.N.Y.1984), with which familiarity is assumed.

Plaintiff and defendants now cross move for reargument pursuant to Civil Rule 3(j) of this Court. Plaintiff asks that the complaint be entirely reinstated. Defendants | ask that it be entirely dismissed. Both motions are denied.

Rule 3(j) provides that to succeed on a motion for reargument, the moving party bears the burden of “setting forth concisely the matters or controlling decisions which counsel believes the court has overlooked.” Implicit in that obligation is the conclusion that if such “matters or controlling decisions” are not demonstrated, the motion fails.

As for plaintiff, his further extensive briefs seek to reargue, without making the requisite showing, a considerable number of the adverse determinations contained in the Court’s prior opinion. Only one argument warrants consideration here. That is the contention appearing in plaintiff’s Main Brief on Reargument at 4:

“Plaintiff’s position throughout this litigation, also advanced in his opposing papers, has been that he was defamed by the program and article as a whole and not simply by isolated statements removed from that overall defamatory context.... By failing to consider plaintiff’s contentions regarding the defamations caused by the program and article as a whole, the court disregarded controlling precedent which holds that libel actions may be grounded upon the defamatory import of the publication as a whole.”

Plaintiff supports this indictment by citing the string of cases set forth in the margin. The fault in the Court’s prior opinion, as perceived by plaintiff, is that the Court “erroneously treated plaintiff’s position regarding the defamations at issue as restricted to eleven statements,” id. at 2. That is a reference to eleven particular statements which, in his brief opposing summary judgment, plaintiff culled from the television program and the article and alleged were defamatory, false, and published with knowledge of falsity. The Court’s prior opinion considered each of those eleven statements with respect to whether or not they were “actionable,” that is, “susceptible of imposing liability at the hands of a reasonable jury properly instructed on the law.” 596 F.Supp. at 1198.

No district judge particularly enjoys being told that he has “disregarded controlling precedent.” To avoid that professional embarrassment, the judge relies (a) upon the briefs of counsel, and (b) his own knowledge of the law, as supplemented by independent research. The judge reasonably relies upon counsel to call to his attention “controlling precedent” bearing upon the issues at hand. These reflections are prompted by the fact that none of the nine cases plaintiff now identifies as controlling precedents which this Court disregarded was cited in plaintiff’s 282-page brief in opposition to summary judgment, which cited 106 other cases. Nor was the argument presently put forward included in that brief, although the defendants, in their motion for summary judgment following extensive discovery, launched a broad scale attack upon the viability of plaintiff’s claims.

If the plaintiff’s new argument were sound, and the authorities now cited for the first time apposite, his motion for reargument would pose a question of substance, notwithstanding the Court’s perhaps understandably puzzled state at not having been told about them before. In fact, however, the argument is not sound, and the cases do not focus upon the analysis pursued in the Court’s prior opinion. In consequence, what emerges is not a puzzling ease of advocate’s amnesia, but an unsuccessful effort to recast claims which discovery has demonstrated are not actionable.

The cases now cited by plaintiff stand essentially for the proposition that whether or not statements are capable of a.defamatory interpretation often turns upon the context in which they appear. It is quite true, as plaintiff argues on the present motion, that “libel actions may be grounded upon the defamatory import of the publication as a whole.” The cases cited by plaintiff, fn. 1 supra, illustrate the working of that rule.

Golden Bear Distributing Systems of Texas v. Chase Revel, Inc. did not involve a public figure plaintiff. Hence the measure of liability was negligence, not malice, as in the case at bar. The holding upon which plaintiff relies relates to the initial inquiry of whether the article in question contained an actionable defamatory meaning. The purported quotation from the case (plaintiff’s Main Brief on Reargument at 5) does not in fact appear in the Fifth Circuit’s opinion; what does appear is this:

“The evidence presented at trial suggests that all the individual statements in the magazine article concerning Golden Bear of California’s fraudulent activities and Golden Bear of Texas’ representations to potential investors were true. The basis of the libel lies in the juxtaposition of truthful statements about one company with truthful statements about the illegal operations of an independent company of the same name located in a different state.”

708 F.2d at 948.

Street v. NBC involved a suit by the prosecutrix and main witness in the famous Scottsboro rape trials. She sued NBC for defamation, NBC having televised a play dramatizing the role of the presiding judge at one of the Scottsboro trials. The plaintiff was held still to be a “public figure.” Her claim was based on nine specific scenes in the play, each of which plaintiff contended contained false and defamatory statements of fact which she specifically identified. 645 F.2d at 1230-32. Having examined those statements in detail, the Sixth Circuit predictably concluded that “[t]he facts recited above illustrate that the play does cast plaintiff in an extremely derogatory light. She is portrayed as a perjurer, a woman of bad character, a woman who falsely accused the Scottsboro boys of rape knowing that the result would likely be the electric chair.” 645 F.2d at 1232. That recitation led to the equally unsurprising conclusion: “Taken as a whole, the play conveys a defamatory image of the plaintiff.” Ibid. Having resolved in plaintiff’s favor the issue of whether the play was defamatory, the Sixth Circuit then turned to the separate question of whether plaintiff had adduced evidence sufficient to support a jury verdict of malice. The court answered that question in the negative, and affirmed the district court’s directed verdict for NBC:

“So long as there is no evidence of bad faith or conscious or extreme disregard of the truth, the speaker in such a situation does not violate the malice standard. His version of history may be wrong, but the law does not punish him for being a bad historian.
“The malice standard is fléxible and encourages diverse political opinions and robust debate about social issues. It tolerates silly arguments and strange ways of yoking facts together in unusual patterns.”

645 F.2d at 1237.

Hoffman v. The Washington Post Company considered whether five particular statements in a newspaper article about plaintiff, a trainer of athletes, were defamatory in respect of the efficacy of dietary supplements sold by plaintiff, a public figure within the limited area of his claimed expertise. Defendant moved for summary judgment. The district court declined to read the five statements “as discrete units, for the challenged publication must be read as a whole. Its content must be considered in its entirety and weighed in connection with its structure, nuances, implications, and connotations.” 433 F.Supp. at 602 n. 1. The district judge concluded that the defendants’ article “was defamatory because it imputed dishonest conduct to Bob Hoffman and tended to disgrace him and bring him into ridicule.” Id. at 603. However, summary judgment was granted to defendants, after discovery, because “[t]he record in this case fails to demonstrate that plaintiff could produce clear and convincing evidence that each defendant acted with actual malice,” id. at 605.

Afro-American Publishing Co. v. Jaffe involved an appeal by defendants after bench trial in a libel action brought by a pharmacist who operated a local drugstore in Washington, D.C. Plaintiff, who was white, served a neighborhood where 80% of his customers were black. Plaintiff ceased distributing the defendant's newspaper “Afro” because he regarded it as racist and inflammatory. This provoked an editorial in “Afro” critical of plaintiff, prompting a suit for invasion of privacy and defamation. Plaintiff recovered compensatory and punitive damages on both counts. The District of Columbia Circuit, sitting en banc, reversed the award for invasion of privacy, 366 F.2d at 654, but affirmed the judgment for compensatory (although not punitive) damages for defamation. The court stated generally that the publication “must be taken as a whole, and in the sense in which it would be understood by the readers to whom it was addressed”; certain “false statements were critical in the total impact of the article. The article contained other items that were true, but in the setting already described these only reinforced the defamatory impression.” Id. at 655. It is worth noting that the Court of Appeals specifically found that the plaintiff was not a public figure, so that he was not required to prove malice under New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), and its progeny.

Sellers v. Time, Inc., a diversity action turning upon Pennsylvania law, involved a Time magazine article about a businessman-golfer who succeeded in driving a golf ball backwards and into the eye of a golfing partner. The perpetrator of this unintended assault was sued by his golfing partner; he pleaded the defense of assumption of the risk; Time regarded the incident as newsworthy and published an article about it. In plaintiffs ensuing suit for libel, defendant moved successfully for summary judgment. The Third Circuit noted plaintiff’s contention that various perceived innuendoes “support his contention that the article as a whole portrays him as one for whom business success overrides all concerns for others,” 423 F.2d 890, but concluded that the article was not defamatory: “While the article may have caused Sellers great personal annoyance, annoyance alone does not constitute defamation.” Id. at 891 (citing Pennsylvania cases).

Mulvihill v. Forbes is another case in which the motion of the defendant, Forbes magazine, for summary judgment was granted. A Forbes article discussed “boiler shop” security operations and mentioned plaintiff’s name. The Court said: “The issue in the instant case, simply stated, is whether there has actually been a defamation.” 9 Med.L.Rptr. at 1138. The district judge accepted plaintiff’s argument that “the court should review the article as a whole, and not view the passage which names Mulvihill out of context,” but went on to say: “The court does not believe that the article, viewed as a whole, can reasonably be considered to be defamatory.” Id. at 1140-41.

Wilder v. Johnson Publishing Co. also turned only upon the question of whether or not a published article was defamatory, the issue arising within the context of defendant’s motion to dismiss the complaint under Rule 12(b)(6) for failure to state a claim. The district court held that one aspect of the article was not defamatory, but that another aspect was, and set the case down for trial in respect of that aspect. No other issues were raised or decided.

Green v. Northern Publishing involved an action by a physician appointed by prison authorities to supervise the health of incarcerated individuals. The death of a prisoner in custody excited newspaper attention, culminating in an editorial which reported the termination of the plaintiff physician’s services by the prison authorities, and made other comments concerning him. The Alaska Supreme Court reversed a summary judgment in defendant’s favor. The opinion deals first with the question of whether or not the editorial was defamatory of plaintiff, the court concluding that it was 8 Med.L.Rptr. at 2418. Turning to the separate issues present, the Court observed generally: “Defamation defendants have two defenses — truth and privilege.” Ibid. Citing New York Times Co. v. Sullivan, supra, the Alaska Supreme Court refers to “a conditional constitutional privilege for media defendants in defamation suits brought by ‘public officials.’ The ‘condition’ was that the privilege applied only if the media defendant had not uttered the defamation with ‘actual malice’, i.e., with actual knowledge that its utterance was false or with reckless disregard for its truth or falsity.” Ibid. The Court held that the physician plaintiff should be regarded as a “public official,” and that, on the evidence in the record, reasonable jurors could find that at least one statement in the editorial was published with malice.

Clark v. Pearson, another case dealing with the issue of defamation, states generally: “An accused publication must be read as a whole. Its content must be considered in its entirety and weighed in connection with its structure, nuances, implications and connotations.... It is not sufficient to take every sentence separately and demonstrate its individual accuracy, detached and wrenched out of its context.” 248 F.Supp. at 191. The district judge concluded that the article in question could reasonably be regarded as defamatory, and denied defendant’s motion for summary judgment. It is worth nothing, however, that the court also regarded the plaintiff as a private individual, and not a public figure, id. at 195, so that the case did not present the question of actual malice.

I have no quarrel with the holdings or the rationales of any of these cases. Nor does this Court’s prior opinion depart in any way from their principles.

Plaintiff’s claim on reargument of judicial disregard of “controlling precedent” itself disregards the three separate issues which arise in a public figure’s libel action against the media. “When a public figure sues for defamation, the first amendment bars recovery unless the defamatory falsehoods were made with knowledge of falsity or with reckless disregard for the truth.” Hotchner v. Castillo-Puche, 551 F.2d 910, 912 (2d Cir.1977). Thus before a media defendant may be held liable to a public figure plaintiff, the plaintiff must prevail on each of three discrete issues: (1) was the statement defamatory? (2) was the statement false? (3) was the statement published with actual malice? It will be recalled that these are the precise questions, and in that order, submitted by Judge Sofaer to the jury in Sharon v. Time, Inc., 83 Civ. 4660 (ADS). Sharon’s complaint was dismissed because, although he prevailed on the first two questions, the jury held against him on the third. The separate and independent nature of these three issues is further emphasized by the fact that the plaintiff’s burdens of proof as between them are different: “... there is a significant difference between proof of actual malice and mere proof of falsity,” Bose Corp. v. Consumers Union of U.S., Inc., — U.S. —, 104 S.Ct. 1949, 1965, 80 L.Ed.2d 502 (1984).

This brings me again to the task I set myself in response to defendants’ motion for summary judgment, namely, to consider whether the eleven specific statements identified by plaintiff were “actionable,” in the sense of permitting a reasonable jury to answer all three questions in plaintiff’s favor. In respect to the nine statements as to which summary judgment was granted, I concluded that a reasonable jury, properly instructed, could not do so.

A reading of the Court’s prior opinion makes it plain that the main focus was upon whether or not a jury could find that plaintiff had proved actual malice by that measurably heavier burden of “clear and convincing evidence.” In emphasizing that issue, I did not disregard the others. It was the parties themselves, in their motion papers, who concentrated upon the issue of actual malice. It would be an exaggeration to say that the defendants conceded that the program and the article were defamatory; but the argument was not emphasized, the main debate revolving around the issue of malice. While as an alternative ground for decision I concluded that some of the statements were not defamatory, defendants’ motion for summary judgment, to the extent that it was granted, depends primarily upon the Court’s conclusions concerning the challenged statements that plaintiff could not prove actual malice at trial. Nothing in plaintiff’s motion for reargument causes me to question those conclusions.

Plaintiff complains of the Court’s concentration upon the eleven specific statements which plaintiff urged in his brief were defamatory, false, and published with malice. I remain of the view that plaintiff was entitled to no more than that. Fully appreciating plaintiff’s contention that “he was defamed by the program as a whole, not simply by particular statements made on the program,” Main Brief on Reargument at 2, even those cases which properly consider the publication as a whole in determining defamation vel non typically begin their analyses with the particular statements alleged to be false and defamatory. Street v. NBC, supra, is illustrative. The nine specific incidents identified by plaintiff as false and defamatory, within the context of the Seottsboro play as a whole, are the functional equivalents of the eleven statements identified by the present plaintiff as false and defamatory within the context of the television program and article.

There are policy reasons for requiring specific pleading in cases of this nature. Media discussion of a public figure’s conduct enjoys presumptive First Amendment protection. Small v. ABC, 10 Med.L.Rptr. 2391, 2392 (N.D.Iowa 1984); Barger v. Playboy Enterprises, Inc., 564 F.Supp. 1151, 1154 (N.D.Cal.1983). In Franchise

Realty Interstate Corp. v. San Francisco Local Joint Executive Board of Culinary Workers, 542 F.2d 1076, 1082-83 (9th Cir. 1976), the Ninth Circuit stated generally that in cases involving “conduct which is prima facie protected by the First Amendment, the danger that the mere pendency of the action will chill the exercise of First Amendment rights requires more specific allegations than would otherwise be required.” Because of that principle, the district court in Small v. ABC, supra, an action which like the case at bar alleged defamation in a television news program, granted defendants’ motion “to require the plaintiff to state in his complaint the exact words broadcast which were defamatory.” Id. at 2392. Given the constitutional implications of such cases, that is not asking too much of a public figure plaintiff. In the case at bar, defendants made no such motion addressing the sufficiency of the complaint; plaintiff’s specifications of “the exact words [broadcast and in the article] which were defamatory” first emerged in his opposition to summary judgment. The inadequacy of general allegations of defamation, divorced from the specific words plaintiff challenges, is all the more apparent in light of the established rule that, on the separate issue of actual malice, an article’s “uncomplimentary” or “snide” tone “is no evidence that the article was published with actual malice.” Reliance Insurance Co. v. Barrons’, 442 F.Supp. 1341, 1352 (S.D.N.Y.1977). Judge Leval made the same point more recently in Westmoreland v. CBS, 601 F.Supp. 66, 68 (S.D.N.Y. 1984):

“Publishers and reporters do not commit a libel in a public figure case by publishing unfair one-sided attacks. The issue in the libel suit is whether the publisher recklessly or knowingly published false material. The fact that a commentary is one sided and sets forth categorical accusations has no tendency to prove that the publisher believed it to be false.”

First Amendment implications aside, under general principles it is usually held that a defamation plaintiff does not satisfy the requirements of notice pleading unless he specifically alleges the words said to be actionable. Asay v. Hallmark Cards, Inc., 594 F.2d 692, 699 (8th Cir.1979) (“Nevertheless, the use of in haec verba pleadings on defamation charges is favored in the federal courts because generally knowledge of the exact language used is necessary to form responsive pleadings.”). The Second Circuit, construing New York law in diversity cases, has reached the same conclusion. Foltz v. Moore-McCormack Lines, 189 F.2d 537, 539 (2d Cir.1951) (“It is true that in actions for libel or slander the false and defamatory matter should be pleaded in haec verba.’’), citing and approving Simpson v. Oil Transfer Corporation, 75 F.Supp. 819, 822 (N.D.N.Y.1948) (“It has long been held that defamatory words must be set forth in the complaint, if an action is to be based thereon.”). For further New York authority, see N.Y. CPLR § 3016(a) (McKinney 1974): “In an action for libel or slander, the particular words complained of shall be set forth in the complaint....”; Laiken v. American Bank & Trust Company, 34 A.D.2d 514, 308 N.Y.S.2d 111, 112 (1st Dept.1970) (“The complaint in an action for slander is required to state in haec verba the words used. This requirement is strictly enforced and the exact words must be set forth.”).

In the light of these authorities, it is useful to review the chronology of the case at bar. Plaintiff’s complaint alleged that the program and the article defamed him in several respects. Those allegations were reiterated in plaintiff’s motion opposing summary judgment. 596 F.Supp. at 1184. The allegations of the complaint were general and conclusory. They are of doubtful sufficiency under New York law as interpreted by the Second Circuit. But defendants did not test the sufficiency of the pleading by motion. Instead, they joined issue by answer. Pre-trial discovery then began. The boundaries of proper discovery were litigated and eventually resolved by the Supreme Court. 441 U.S. 153, 99 S.Ct. 1635, 60 L.Ed.2d 115 (1979). During discovery, plaintiff and the individual defendants each testified for days. Other witnesses were deposed. Tens of thousands of pages of testimony were generated. Hundreds of exhibits were produced. After completion of discovery, defendants moved for summary judgment. They argued that nothing in the article or program was false or defamatory; but that in any event, the discovery demonstrated that, as a matter of law, plaintiff could not prove actual malice by clear and convincing evidence that any statement was made with actual malice.

Plaintiff’s answering papers identified eleven specific statements in the program and article which plaintiff claimed were false, defamatory, and known by defendants to be false. Brief at 224-228. They fell within one or another of the general areas of defamation plaintiff articulated in his pleadings. Plaintiff discussed these specific statements separately, with references to prior analyses in the brief (pages 37-156) of the evidence pertinent to each of them.

Defendants’ reply papers focused upon those eleven statements. Defendants argued that certain of the statements were not false, or if false, not defamatory; but that in no case could plaintiff demonstrate actual malice.

The Court’s opinion, granting summary judgment in part and denying it in part, similarly focused upon the eleven statements specified by plaintiff. The evidence as to each statement was reviewed. Nine statements were found to be nonactionable, and the remaining two statements actionable. 596 F.Supp. at 1198-1224.

Plaintiff now contends on reargument that the Court should not have concentrated upon the eleven statements discussed in the briefs, but should rather have adjudicated the summary judgment motion on the basis of plaintiff’s more general and conclusory allegations of defamation set forth in the pleadings.

I cannot, under prevailing law, accept that proposition. It is simply not sufficient for a public figure libel plaintiff, bearing the burdens of proof imposed by existing law on the discrete issues of defamation, falsity, and actual malice, in resisting a summary judgment motion after extensive discovery, to proffer the full text of a media program or article and argue that its general tone or thrust could sustain a plaintiff’s verdict. The media, protected by the First Amendment, and the Court, charged inter alia with its enforcement, are entitled to be directed by the public figure plaintiff to specific statements which are defamatory; false (the falsity lying in haec verba or dishonest juxtaposition of true statements); and which a jury could find on clear and convincing evidence were published with actual malice. The present plaintiff undertook that burden in his opposing papers, and the Court dealt fully with the issues as raised. Disappointed in the result, and under the guise of a motion for reargument, plaintiff attempts a different and less demanding approach which constitutional principles reject. Plaintiff’s difficulty lies in part in the failure to plead specifically; but it is much more than that. After comprehensive discovery, plaintiff has not shown, save for the two statements as to which summary judgment was denied, that a reasonable jury could find actual malice in respect of any statement uttered by any defendant.

I have considered the other contentions of the parties. They do not conform to the requirements of the rule governing motions for reargument, and require no further discussion.

The motions for reargument are denied in their entirety. Trial will go forward in accordance with the separate scheduling order entered concurrently.

It is SO ORDERED.

      . The Court granted summary judgment to the magazine publisher, Atlantic Monthly Company, and dismissed the complaint as to it.

      . Golden Bear Distributing Systems of Texas, Inc. v. Chase Revel, Inc., 708 F.2d 944 (5th Cir.1983); Street v. NBC, 645 F.2d 1227 (6th Cir.1981), cert. dismissed, 454 U.S. 1095, 102 S.Ct. 667, 70 L.Ed.2d 636 (1981); Hoffman v. Washington Post Co., 433 F.Supp. 600 (D.D.C. 1977), aff'd, 578 F.2d 442 (D.C.Cir.1978); Afro-American Publishing Co. v. Jaffe, 366 F.2d 649 (D.C.Cir.1966) (en banc); Sellers v. Time, Inc., 423 F.2d 887 (3rd Cir.), cert. denied, 400 U.S. 830, 91 S.Ct. 61, 27 L.Ed.2d 61 (1970); Mulvihill v. Forbes, 9 Med.L.Rptr. 1137 (D.N.J.1982); Wilder v. Johnson Publishing Co., 551 F.Supp. 622 (E.D.Va.1982); Green v. Northern Publishing Co., Inc., 8 Med.L.Rptr. 2515 (Alaska Sup.Ct. 1982), cert. denied, — U.S. —, 103 S.Ct. 3539, 77 L.Ed.2d 1389 (1983); Clark v. Pearson, 248 F.Supp. 188 (D.D.C. 1965).

      . Golden Bear Distributing Systems of Texas v. Chase Revel, Inc., supra, appears at first blush to be different because the Fifth Circuit said at 708 F.2d 948 that "all the individual statements ... were true.” But Golden Bear’s particular facts make any difference more apparent than real. The particular libel of which plaintiff complained lay "in the juxtaposition of truthful statements about one company with truthful statements about the illegal operations of an independent company of the same name located in a different state.” Ibid. In other words, by misleading editing the defendant achieved the functional equivalent of a false statement, which plaintiff identified and specifically challenged as defamatory. Plaintiff makes no comparable claim in the case at bar.

      . In his reply brief on reargument, plaintiff cites for the first time Locricchio v. Evening News Association, Inc., No. 64729 (Mich.App. entered August 24, 1983), reh’g. denied (October 17, 1983), cert. denied, — U.S. —, 105 S.Ct. 433, 83 L.Ed.2d 360 (1984). The suit arose out of a series of allegedly defamatory articles published in the Detroit News concerning plaintiffs’ activities with regard to the development and operation of an entertainment complex. Defendants interposed interrogatories asking plaintiffs to specifically identify each statement claimed to be defamatory or false. Plaintiffs in their answers did not do so, contending rather that "the entire series of articles, in their entirety" defamed them by presenting "a false portrayal, implication, imputation and/or insinuation” that plaintiffs were, inter alia, members of the Mafia. On the basis of that response, defendants moved for summary judgment. The trial court denied summary judgment and the Michigan Court of Appeals affirmed, expressing the view that the pleadings raised "a genuine issue of material fact as to whether the specified articles, read as a whole, carry a defamatory insinuation or inference that plaintiffs are associated with organized crime.”

        Locricchio, while to a degree supportive of plaintiffs position, does not alter the conclusions which I reach in the case at bar. Michigan law, to the extent that it forms the basis for decision, is not applicable here. There is no indication that the plaintiffs were public figures —indeed, one infers that they preferred to keep a low profile — and so the constitutional considerations implicit when the media discuss public figures do not arise. Furthermore, Locricchio came to the Michigan Court of Appeals at the pleading stage; no discovery had been held, and as the result of the combination of these circumstances, the issue of actual malice was not before the court.

      . Plaintiff’s allegations of defamation are no more specific than those condemned in Simpson v. Oil Transfer Corporation, supra, at 75 F.Supp. 822, or those found insufficient for defamation purposes in Foltz v. Moore-McCormack Lines, supra, 189 F.2d at 539, which approved Simpson.

      . I am inclined to the view that, when a public figure plaintiff sues the media for libel, he must allege the actionable words with precision or be non-suited. Such a requirement is not inconsistent with the rule that the allegedly offending publication must be read as a whole; that salutary principle requires that the specified words be read in context. Cf. Cianci v. New Times Publishing Co., 639 F.2d 54 (2d Cir.1980), where the former mayor of Providence pointed to the headline in a newspaper article about him— "BUDDY WE HARDLY KNEW YA" — and Judge Friendly observed that a jury, "considering this in light of the article as a whole, could surely conclude that New Times was saying that Mayor Cianci” was a disreputable character. It is a quite different proposition to say that a public figure plaintiff sufficiently alleges a defamation action against the media without specifically identifying the offending statements, relying instead upon general allegations of insinuation or suggestion. I would be inclined to hold, in a case where the issue is squarely presented, that the First Amendment protection afforded to the press includes protection against embarking upon that slippery slope of interpretation. But I need not decide the issue in the case at bar, because defendants moved not on the pleadings. but for summary judgment after comprehensive discovery.

      . Plaintiff offers, in his briefs on reargument, four additional specific statements said to be actionable. Main Brief on Reargument at 25-27. Given the chronology of the case, these additional claims are untimely. In any event, the statements are not actionable.
      Plaintiff attacks the credibility of helicopter pilot Plantz's descriptions of incidents involving Herbert, as recounted by Wallace on the program. But Lando, who researched the program, was not required in law to credit Herbert’s denials, or the hearsay opinions of Kahila, Peyser and Bruce Potter that such incidents were unlikely to have occurred; or pursue independent corroboration of Plantz. There is no evidence that Lando or Wallace knew Plantz's statements were false, or that they had a "high degree of awareness of their probable falsity,” Garrison v. Louisiana, 379 U.S. 64, 74, 85 S.Ct. 209, 215, 13 L.Ed.2d 125 (1964), cited in this Court’s prior opinion at 596 F.Supp. 1187.
      Rosenblum’s opinion that the Barnes investigation "wasn’t a whitewash,” included on the program, was his personal opinion, based on reasons which he articulated, and is not actionable on any theory. Furthermore, the facts that Barnes “took the Fifth” and the investigators chose not to call as witnesses certain individuals is not inconsistent with Rosenblum’s reasoning, or the opinion he expressed that the Army conducted a thorough investigation.
      Wallace’s statement and Lando’s writing concerning the claims of LTC Nicholson and Major Crouch that they flew back from Hawaii to Vietnam with Franklin are peripheral to the particular defamation plaintiff alleges, namely, that Franklin was not in Vietnam on February 14 to receive the report that Herbert says he gave him. See 596 F.Supp. at 1210-1212. On reargument plaintiff argues Crouch should not be believed. The reasons given do not, and could not, amount in law to a showing that Lando knew what both Crouch and Nicholson reported about their trip with Franklin were false or probably so.