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Dalbec v. Gentleman's Companion Inc.

decided: September 4, 1987.

DONNA NEWBURY DALBEC, FORMERLY DONNA NEWBURY, AND RICHARD DALBEC, PLAINTIFFS-APPELLEES, CROSS-APPELLANTS,
v.
GENTLEMAN'S COMPANION, INC., GENTLE-MAN'S COMPANION MAGAZINE, INC. AND LFP, INC., DEFENDANTS, GENTLEMAN'S COMPANION MAGAZINE, INC. AND LFP, INC., DEFENDANTS-APPELLANTS, CROSS-APPELLEES



Appeal from a judgment entered in the United States District Court for the Northern District of New York, McCurn, J., following a jury trial, holding that defendants twice libeled plaintiff Donna Dalbec and awarding $325,000 in damages. Plaintiffs cross-appeal from the district court's allowance of certain amendments to defendants' answers, which resulted in dismissal of certain plaintiffs' claims. Judgment affirmed. Judge Mahoney concurs in a separate opinion.

Author: Meskill

MESKILL, Circuit Judge

Gentleman's Companion Magazine, Inc., (GCMI) and LFP, Inc. appeal from a judgment entered following a jury trial in the United States District Court for the Northern District of New York, McCurn, J., determining that GCMI and LFP (sometimes collectively referred to hereinafter as "the magazine" or " Gentleman's Companion ") libeled plaintiff Donna Dalbec on two occasions and awarding Dalbec and her co-plaintiff, husband Richard Dalbec, $325,000 in compensatory and punitive damages. Judge McCurn denied the defendant's motion for judgment notwithstanding the verdict or, in the alternative, a new trial. The Dalbecs cross-appeal from the district court's ruling allowing GCMI and LFP to amend their answers, which resulted in dismissal of certain of plaintiffs' claims.

The judgment is affirmed.

BACKGROUND

Gentleman's Companion magazine published the following statement, labeled "Classified Information," in its May 1980 issue.

TINY YOUNG GIRL

22 but looks 13, 4' 5", 82 lbs., will be your "Lolita." I am very small and cannot take a big man, except by mouth. Send all details and SASE to Donna Newbury, P.O. Box 43, East Greenbush, NY 12061.

J. App. at 251, 257 (hereinafter the "May statement"). Gentleman's Companion obtained the May statement, along with several other personal solicitations, by contacting individuals who previously had placed advertisements in M.E.T. Personals, a magazine that publishes similar "swinger's ads." Tr. 132-33. Gentleman's Companion received a consent form,*fn1 purportedly signed by "Donna Newbury," along with the May statement, which it published without charge. The statement and the consent form, however, actually were signed and submitted by one James Bruni, a stranger to plaintiffs and to this action. Bruni apparently hoped to entice readers to send money to him in exchange for picture or correspondence from "Donna Newburg." The issue of Gentleman's Companion containing the May statement went on sale on April 10, 1980. In July 1980, Gentleman's Companion learned that Bruni had falsely submitted the May statement and had forged the consent form. Tr. 131-46, 248.

Plaintiff Donna Dalbec's maiden name is Donna Newbury. She and her husband Richard Dalbec reside in East Greenbush, a small rural community where Mrs. Dalbec has spent most of her life. Mrs. Dalbec, a mother of two, enjoyed an excellent reputation among her family, friends and neighbors there. After circulation of the May statement, however, plaintiffs were deluged with telephone calls soliciting the sexual favors of "Donna Newbury." Mrs. Dalbec's mother, Ruth Newbury, received 90-100 calls. Tr. 32. Other family members likewise received calls. As a result, Mrs. Dalbec became distraught, nervous and fearful, and her relationships with her husband and children suffered. In September 1980, in response to the May statement, plaintiffs instituted this libel action against LFP and GCMI, the publishers of Gentleman's Companion. Tr. 186

After learning of Bruni's attempted fraud and after receiving plaintiff's summons and complaint, Gentleman's Companion published what it now describes as a "retraction," which provided:

It turns out that Margie Phillips and Donna Newbury (E. Greenbush, New York -- Near Albany) are phonies operating out of the same company. Both of their letters are written on the same pink copy paper. Donna says that the dresses like a little girl, while Margie claims to be a love slave. Their ads are come-ons designed to rip off our readers, so we've deleted them . . . If you receive a letter from a "swinger" that asks you to send money, please inform the GC office immediately, and we'll kick the scumbag out. Classified Information was designed to open up your sex life and help you meet new people, not to allow these leeches to steal your money, so help us keep the section clean.

J. App. at 256, 258 (hereinafter the "December statement"). Mrs. Dalbec was not contacted before publication of the December statement and, upon learning of it, she and her husband amended their complaint to allege an additional charge of libel based on the December statement's depiction of her a a "phony)."

Initially, GCMI and LFP jointly admitted responsibility for publication of both the May and December statements. GCMI, a wholly owned subsidiary of LFP, was incorporated after publication of the May statement. Following the close of plaintiffs' case, each defendant moved to amend its answer regarding responsibility for the statements. LFP moved to change it admission to publication of the December statement to a denial and GCMI moved to change its admission to publication of the May statement to a denial. The district court allowed the amendments and dismissed the claims against GCMI arising out of the May statement and the claims against LFP arising out of the December statement. Tr. 339.

On August 8, 1986, after a four day trial a jury awarded Donna Dalbec $50,000 for loss of reputation and $145,000 for mental anguish as a result of the May statement, as well as $15,000 for loss of reputation, $75,000 for mental anguish and $25,000 in punitive damages arising out of the December statement. The jury awarded Richard Dalbec $10,000 for loss of consortium as a result of the May statement and $5,000 for loss of consortium as a result of the December statement. The district court denied ...


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