Scribd Logo
Upload

Welcome to Scribd!

  • Dorothy Quinn, Jacqueline Marchese and Nina Assajew v. Aetna Life & Casualty Co., 616 F.2d 38, 2d Cir. (1980)

    Uploaded by

    Scribd Government Docs
    43 views4 pages
    This document summarizes a court case in which three plaintiffs sued an insurance company to prevent it from publishing advertisements critical of large personal injury awards. The district court dismissed the case, finding the requested injunction would violate the insurance company's free speech rights. The appellate court affirmed, agreeing the relief sought was barred by the First Amendment and did not require the district court to abstain or defer to the state court's prior ruling.

    Original Description:

    Filed: 1980-01-28 Precedential Status: Precedential Citations: 616 F.2d 38 Docket: 325

    Copyright

    © Public Domain

    Available Formats

    PDF or read online from Scribd

    Did you find this document useful?

    Is this content inappropriate?

    Report this Document
    This document summarizes a court case in which three plaintiffs sued an insurance company to prevent it from publishing advertisements critical of large personal injury awards. The district court dismissed the case, finding the requested injunction would violate the insurance company's free speech rights. The appellate court affirmed, agreeing the relief sought was barred by the First Amendment and did not require the district court to abstain or defer to the state court's prior ruling.

    Copyright:

    Public Domain
    Download as PDF or read online from Scribd
    Flag for inappropriate content
    Download as pdf
    43 views4 pages

    Dorothy Quinn, Jacqueline Marchese and Nina Assajew v. Aetna Life & Casualty Co., 616 F.2d 38, 2d Cir. (1980)

    Uploaded by

    Scribd Government Docs
    This document summarizes a court case in which three plaintiffs sued an insurance company to prevent it from publishing advertisements critical of large personal injury awards. The district court dismissed the case, finding the requested injunction would violate the insurance company's free speech rights. The appellate court affirmed, agreeing the relief sought was barred by the First Amendment and did not require the district court to abstain or defer to the state court's prior ruling.

    Copyright:

    Public Domain
    Download as PDF or read online from Scribd
    Flag for inappropriate content
    Download as pdf
    of 4

    616 F.

    2d 38
    5 Media L. Rep. 2432

    Dorothy QUINN, Jacqueline Marchese and Nina Assajew,


    Plaintiffs-Appellants,
    v.
    AETNA LIFE & CASUALTY CO., Defendant-Appellee.
    No. 325, Docket 79-7495.

    United States Court of Appeals,


    Second Circuit.
    Argued Nov. 29, 1979.
    Decided Jan. 28, 1980.

    Edward Vesel, Forest Hills, N. Y. (Martin L. Baron, Baron & Vesel,


    Forest Hills, N. Y., of counsel), for appellants.
    Lewis A. Kaplan, New York City (Marvin Wexler, Paul, Weiss, Rifkind,
    Wharton & Garrison, New York City, of counsel), for appellee.
    Before LUMBARD, MESKILL and NEWMAN, Circuit Judges.
    PER CURIAM:

    Appeal is taken from a judgment entered in the United States District Court for
    the Eastern District of New York, Charles P. Sifton, Judge, 482 F.Supp. 22
    (E.D.N.Y.1979), dismissing this action on the pleadings pursuant to Rule 12(c),
    Fed.R.Civ.P. This proceeding was originally brought in the New York Supreme
    Court, County of Queens, by the three named plaintiffs, all New York
    residents, each of whom was then prosecuting a suit in state court seeking
    recovery for personal injuries allegedly sustained in an automobile accident. 1
    The complaint sought to enjoin publication in two magazines, both New York
    residents, of a series of advertisements submitted by Aetna Life & Casualty Co.
    ("Aetna"), a Connecticut resident, which were critical of the present system of
    adjudicating tort cases, particularly of the perceived trend towards increasingly
    large awards. In essence, plaintiffs contended that their rights to receive a fair
    trial were jeopardized by these statements. Despite the fact that their cases had

    not been called for trial and notwithstanding the availability of techniques
    designed to identify and disqualify jurors who had been unduly affected by
    Aetna's campaign, plaintiffs sought permanent injunctive relief.
    2

    Aetna's initial attempt to remove the action pursuant to 28 U.S.C. 1332 and
    1441 was rebuffed because the presence of the magazine defendants destroyed
    the requisite diversity. Plaintiffs then moved in the state court for a preliminary
    injunction and defendants responded by requesting dismissal for failure to state
    a claim upon which relief could be granted. The request for a preliminary
    injunction was denied, and the complaint was dismissed as against the
    magazines but not as against Aetna. The matter was set down for an expedited
    trial. In denying Aetna's motion the state court indicated that the advertisements
    in issue were merely "commercial" expression, not fully protected by the First
    Amendment to the federal Constitution, and as such, were susceptible to the
    restraint sought by plaintiffs.

    Following these rulings, the plaintiffs and the magazines consented to the
    severance of the claims against the magazines from the claims against Aetna,
    and plaintiffs elected not to appeal the ruling dismissing the magazines from
    their suit. Having attained complete diversity in this manner, Aetna again
    removed the case, under authority of 28 U.S.C. 1441(b), 1446(b),2 and
    thereupon moved for dismissal upon the same grounds as had been previously
    asserted before the state court. Plaintiffs responded by asking the district court
    to abstain in favor of state adjudication, or, alternatively, to abide by the prior
    ruling of the state judge on the dismissal motion. Neither request was granted.
    The district judge, expressing his clear conviction of error with respect to the
    state court's decision, dismissed the action on its pleadings, holding that the
    relief sought was entirely improper as it constituted a prior restraint on the
    exercise of First Amendment freedoms. Nebraska Press Ass'n v. Stuart, 427
    U.S. 539, 96 S.Ct. 2791, 49 L.Ed.2d 683 (1976); First National Bank of Boston
    v. Bellotti, 435 U.S. 765, 98 S.Ct. 1407, 55 L.Ed.2d 707 (1978). This appeal
    followed.

    We affirm the resolution of the First Amendment claim substantially for the
    reasons set forth in Judge Sifton's thorough and considered opinion, supra, 482
    F.Supp. 22. The relief sought by plaintiffs is clearly barred by the Fist
    Amendment and by recent decisions construing it, and plaintiffs' reliance on
    the "commercial speech" doctrine is misplaced. Nor do we find any procedural
    bar to the vindication in federal court of defendant-appellee's First Amendment
    rights. Relitigation of Aetna's motion for dismissal on the pleadings was not
    barred by the law of the case doctrine, which is discretionary, First National
    Bank of Hollywood v. American Foam Rubber Corp., 530 F.2d 450, 453 n.3

    (2d Cir. 1976), even when the case is one transferred from state to federal court,
    Hill v. U. S. Fidelity & Guaranty Co., 428 F.2d 112, 115 (5th Cir. 1970), and in
    any event cannot bind an appellate court. Appellants' arguments as to waiver,
    full faith and credit and res judicata are baseless.
    5

    Judge Sifton correctly held that this was not a proper case for abstention. It
    falls into none of the three categories described by the Supreme Court in
    Colorado River Water Conservation District v. United States, 424 U.S. 800,
    814-16, 96 S.Ct. 1236, 1244-45, 47 L.Ed.2d 483,3 and he so held. It is easily
    distinguishable from Naylor v. Case & McGrath, Inc., 585 F.2d 557 (2d Cir.
    1978), a case in which we ordered abstention when a similar suit challenging
    substantially the same advertisements came before us, because Naylor involved
    the construction of a new Connecticut statute. Complex and unsettled issues of
    state law, whose resolution might well affect broad policies of the state, were
    involved in Naylor but are not present here. New York law is clear that the
    plaintiffs do not have a cause of action under either the Penal Law prohibiting
    jury tampering, which may only be enforced by criminal prosecution, or the
    General Business Law's strictures on false advertising, which may only be
    enforced by the state attorney general. Under these circumstances and in light
    of the principle that "abstention cannot be ordered simply to give state courts
    the first opportunity to vindicate (a) federal claim," Zwickler v. Koota, 389
    U.S. 241, 251, 88 S.Ct. 391, 397, 19 L.Ed.2d 444 (1967), abstention would
    have been inappropriate in this case.4

    The judgment of the district court is affirmed.

    Counsel advised us at oral argument that the Quinn negligence case had been
    settled after the entry of judgment by the district court. The Marchese and
    Assajew cases were pending

    The district court had subject matter jurisdiction over this action despite the line
    of cases holding that, even under the 1949 amendment to 28 U.S.C. 1446(b),
    the involuntary dismissal of non-diverse parties does not make an action
    removable. See Weems v. Louis Dreyfus Corp., 380 F.2d 545 (5th Cir. 1967);
    Squibb-Mathieson Int'l Corp. v. St. Paul Mercury Ins. Co., 238 F.Supp. 598
    (S.D.N.Y.1965); 14 Wright, Miller & Cooper, 3723. The purpose of this
    distinction is to protect against the possibility that a party might secure a
    reversal on appeal in state court of the non-diverse party's dismissal, SquibbMathieson v. St. Paul, supra at 599, quoting 14 Wright, Miller & Cooper,
    3723 at 595, producing renewed lack of complete diversity in the state court
    action, a result repugnant to the requirement in 28 U.S.C. 1441 that an action,

    in order to be removable, be one which could have been brought in federal court
    in the first instance. By the time Judge Sifton came to decide the removability
    of this case, however, the time for plaintiffs to take an appeal from the
    involuntary dismissal of the non-diverse defendants had long passed, and no
    appeal by the plaintiffs had been taken. Thus he was correct in concluding that
    no appeal could occur which could produce the result, described above,
    forbidden by the statute. Under these circumstances, plaintiffs' failure to take
    an appeal constituted the functional equivalent of a "voluntary" dismissal
    3

    Colorado River's three categories are (1) cases in which the federal
    constitutional question might be mooted or altered by reason of a state court
    determination of state law; (2) cases involving difficult state law issues with
    broad public policy impact; and (3) cases in which restraint of state criminal
    proceedings is sought. 424 U.S. at 814-16, 96 S.Ct. at 1244-45

    Consequently, we need not rule on the district court's apparent partial reliance
    on two other reasons for declining to abstain: the fact that abstention was
    sought by the plaintiffs, rather than the defendant, and the fact that jurisdiction
    is based on diversity of citizenship. We doubt that the appropriateness of
    abstention pursuant to Railroad Commission of Texas v. Pullman Co., 312 U.S.
    496, 61 S.Ct. 643, 85 L.Ed. 971 (1941), turns on the fortuity of the identity of
    the party seeking it, see 17 Wright, Miller & Cooper, Federal Practice and
    Procedure, Civil: 4243 at 471. Since the state law question does not warrant
    abstention in any event, we express no view on the difficult issue as to whether
    abstention is appropriate in a diversity case to seek state court clarification of a
    state law issue, and, if so, whether it is appropriate when the state law issue
    might affect the resolution of a federal law defense, especially one grounded on
    the First Amendment. See Miller-Davis Co. v. Illinois State Toll Highway
    Authority, 567 F.2d 323, 326 (7th Cir. 1977)

    You might also like