Opinion
99 Civ. 4265 (MBM).
March 14, 2001.
ELIHU H. BERMAN, Esquire, Clearwater FL., BRUCE J. ROBBINS, Esquire, Eastchester, NY., Attorney for Plaintiff.
GEORGE FREEMAN, Esquire, New York, NY., Attorney for Defendants.
OPINION AND ORDER
Defendants' motion to dismiss was granted on August 23, 2000. Plaintiff Robert Van Buskirk now moves for reconsideration pursuant to Local Civil Rule 6.3. For the reasons stated below, the motion is denied.
I.
In June 1998, defendant John L. Plaster wrote a letter regarding a CNN broadcast covering "Operation Tailwind," a United States military operation in a Laotian village in September 1970. (Am. Compl. ¶¶ 8-10, 14) The letter was published on the Internet site hosted by the Special Operations Association (the "Internet letter"). (Id. ¶ 10) The Internet letter described Van Buskirk as the "sole source" for a CNN report that the operation's "major objective" was to kill American defectors present in the village and that Van Buskirk had participated in the killing. (Id. ¶ 20) The letter also described Van Buskirk as the "primary source" for CNN's report that U.S. forces used nerve gas during the operation. (Id.)
Plaster sent a letter similar to the Internet letter to The New York Times (Id. ¶ 11), which the Times edited and published as an article on its opinion page (the "Times article"). (Id. ¶ 12) The Times article states that the CNN broadcast advanced Van Buskirk's claims that the operation was intended to kill American defectors and that the military used nerve gas during the operation. (Id. ¶ 32)
Van Buskirk's complaint alleged that he was defamed by the Internet letter and the Times article. However, he moves for reconsideration only with respect to the claim that he was defamed by the Times article.
II.
Van Buskirk alleged that he was defamed by the Times article because several statements from the article suggested that he had committed war crimes. I dismissed that claim on the ground that the article was not reasonably susceptible of this interpretation. Van Buskirk contends that his complaint also alleged that he was defamed because the article suggested that he misled CNN. (Pl. Mem. at 3)
Local Rule 6.3 requires the moving party to demonstrate that the court overlooked controlling decisions or factual matters that were put before the court in the underlying motion. See Local Civ. R. 6.3. The motion for reconsideration must be served within 10 days after the court's determination of the underlying motion. See id.
Van Buskirk's motion was served more than 10 days after I dismissed his complaint, (Pl. Mem. at 4), and that delay would be a sufficient reason to deny his motion, see Virgin Atlantic Airways v. Nat. Mediation Bd., 956 F.2d 1245, 1255 (2d Cir. 1992) (explaining that the district court properly held the defendant in violation of Rule 11 for filing a clearly untimely motion for reconsideration — even though the motion was correct on the merits). Van Buskirk has failed to offer any reason for his delay.
Even if the motion had been served on time, however, it would be found without merit. Van Buskirk now maintains that his complaint also alleged that the article was defamatory because it suggested that he misled CNN. (Pl. Mem. at 3) In my prior order, I explained in a footnote that it was not "necessary to decide whether the article is reasonably susceptible of that interpretation because Van Buskirk never raises it as a possibility."
However, Van Buskirk contends that he did raise it as a possibility. In particular, he cites paragraph 35 of his complaint, in which he alleges that "[n]either Plaster nor The Times sufficiently investigated to determine the truth of the matters contained in the above referenced statements, and they both ignored the fact that the plaintiff had never uttered the claims attributed to him by Plaster and The Times in the article." (Id.) The "above referenced statements" refers to paragraph 32, in which Van Buskirk alleges that the article made the following statements about him: "that [he] had claimed that the raid was intended to kill American defectors; that [he] had claimed that the United States Special Forces used sarin, a lethal nerve gas, on a Laotian village believed to be harboring American soldiers who had defected; that [he] had claimed that nerve gas had been dumped on the village the night before he and his team, without gas masks, attacked it." (Id.)
I do not read paragraph 35 to allege that the article suggested Van Buskirk misled CNN. Instead, paragraph 35 appears to allege two different things. First, it alleges that the Times failed to investigate whether the paragraph 32 statements attributed to Van Buskirk were true, and second, paragraph 35 alleges that the Times disregarded evidence that Van Buskirk never made those statements.
Even if Van Buskirk meant to allege that the article suggested he misled CNN, the article is not reasonably susceptible of that interpretation. The article maintains that CNN's accusations are untrue. (Pl. Mem., Ex. B) It also explains that the CNN report attributes those accusations to Van Buskirk. (Id.) However, the article avoids speculating as to why CNN reported false accusations. (Id.) It suggests neither that CNN mistakenly attributed the accusations to Van Buskirk, nor that CNN was misled, let alone that CNN was misled by Van Buskirk. Accordingly, the motion for reconsideration is denied.
c III.
Van Buskirk also refers to his motion as one for permission to file [a] second amended complaint." (Pl. Mem. at 1) However, "once judgment is entered the filing of an amended complaint is not permissible until judgment is set aside or vacated. . . ."Nat'l Petrochemical Co. of Iran v. M/T Stolt Sheaf, 930 F.2d 240, 244 (2d Cir. 1991) (quoting Cooper v. Shumway, 780 F.2d 27, 29 (10th Cir. 1985) ("Unless there is a valid basis to vacate the previously entered judgment, it would be contradictory to entertain a motion to amend the complaint.") Here, the judgment has not been set aside or vacated. Accordingly, that part of Van Buskirk's motion is also denied.
* * *
For the reasons stated above, the motion is denied.