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March 13, 1957

John W. DORNEY, Plaintiff,

The opinion of the court was delivered by: MODARELLI

Plaintiff, a clergyman in Sussex County, New Jersey, who doubles as Executive Director of the Tri-State Dairy Farmers' Guild, complains that defendant, a New York corporation, published in its newspaper, The Dairymen's League News of June 5, 1956, the following editorial which allegedly libelled him:


 'THE REV. John W. Dorney, New Jersey's apostle of the Get-Rich Quick dogma, again, moved into Central New York during the past week; this time following a promotional drumming of newspaper advertisements, radio entreaties, and handbill harranguing.

 'Mr. Dorney, who accomplished the transition from Longshoremen's Union organizer to ecclesiastical cohort of the Teamsters Union by way of a Balesville, N.J. pulpit, was accompanied by high-salaried Homer Martin of Detroit, one-time organizer of the United Auto Workers and recent leader of the ill-fated Detroit milk strike.

 'This combination of union drumbeaters, blasted the DAIRYMEN'S LEAGUE NEWS as 'a rag' from their dance hall meeting place for reprinting in the last issue an article which exposed the inter-union fight in Michigan for control of rump-group producers. This blast at the DAIRYMEN'S LEAGUE NEWS for its exercising an editorial prerogative was punctuated with additional blasts at all established farmer cooperatives for 'exploitation of its members' and apparently, for not championing the cause of the Teamsters in the Milkshed.

 'The Rev. Dorney stuck to his gospel of $ 6 a hundredweight for all milk, but, as usual, carefully skirted how such a blend could be accomplished without pricing milk away from the consumer.

 'Mr. Martin's appearance in the Utica area was and is a source of amazement to those who have been keeping tabs on the Detroit marketing area's acrobatics.

 'In that area, Mr. Martin, who once headed the only 'Fair Share' group, and focused all his vituperation on Michigan Milk Producers Association, is now head of one of the two 'Fair Share' groups which are fighting each other with more spirit than was ever exerted against the MMPA.

 'Homer Martin and his followers (by the way he received $ 3,000 from Mr. Dorney during his strike) now head the Fair Share Milk Bargaining Association. The CIO, which once gave Brother Martin short shift, is sponsoring the rival Fair Share Bargaining Association. Martin's position may best be explained by again taking the liberty of reprinting from the Lapeer County Press, Lapeer, Mich.:

 "It's true that Martin has returned to the attack of MMPA in recent meetings. But he does so with the air of a general who's worried about an attack from the rear * * *.' So much for Mr. Martin -- now.

 'At the Marcy meeting, it must be noted, just six of the more than 200 who attended the meeting indicated they wanted to join Mr. Dorney. Refreshments were served -- took four bartenders to serve them.'

 Plaintiff seeks compensatory damages of $ 500,000, and punitive damages of $ 1,000,000. No special damages have been pleaded. This opinion is directed to defendant's motion to dismiss on the ground that the complaint fails to state a claim upon which relief can be granted. Fed.Rules Civ.Proc. rule 12(b)(6), 28 U.S.C.A.

 Federal jurisdiction of this case rests upon diversity of citizenship and the requisite amount in controversy. The substantive rights of the parties are to be determined according to local law. Erie R. Co. v. Tompkins, 1938, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188. Included within such applicable law is the local rule of conflicts. Klaxon Company v. Stentor Electric Mfg. Co., Inc., 1941, 313 U.S. 487, 496, 61 S. Ct. 1020, 85 L. Ed. 1477. The State of New Jersey follows the general rule that the law of the place where the alleged tort was committed governs. See Kieffer v. Blue Seal Chemical Co., 3 Cir., 1952, 196 F.2d 614; Zephyr American Corporation v. Bates Mfg. Co., D.C.N.J.1945, 59 F.Supp. 573. The journal in question was published in Poughkeepsie, New York. The law of the place where the cause of action accrued governs in the creation of substantive rights. Hartmann v. Time, Inc., 3 Cir., 1948, 166 F.2d 127, 133, 1 A.L.R.2d 370. New York follows the so-called 'single publication' rule. Wolfson v. Syracuse Newspapers, 1948, 254 App.Div. 211, 4 N.Y.S.2d 640, affirmed 1939, 279 N.Y. 716, 18 N.E.2d 676.

 What is the scope of the court's inquiry upon a motion to dismiss under the Rule 12(b)(6)? The Third Circuit has observed in Frederick Hart & Co. v. ...

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