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  T.C. STONE, Jr.,
v. No. 3-92-CV-0939-G DIANA KILMURY, et al.,
v. CENTRAL FREIGHT LINES, INC.,
Pursuant to Rule 56 of the Federal Rules of Civil Procedure, and based on the accompanying memorandum of law, affidavits, exhibits, and deposition transcripts, defendants move the Court to grant them a partial summary judgment, determining that plaintiff is a "public figure" for the purpose of this case and that the statements alleged to be defamatory were made in the course of "labor dispute." Defendants further move the Court to grant summary judgment dismissing for lack of legally sufficient evidence of actual damages, which are required if the Court agrees that the action arises out of a labor dispute. A proposed order is also attached. Defendants will file a second motion for summary judgment, addressing the issues of substantial truth and lack of actual malice, within the next few weeks. Pursuant to Local Rule 5.2(a), this motion includes a detailed statement, with citations to supporting evidence, of the material facts about which there is no genuine issue and that support the legal conclusions that plaintiff is a public figure, that the statements arose out of of labor dispute, and that plaintiff cannot prove actual damages. 1. The International Brotherhood of Teamsters ("IBT") is the nation's largest union. It represents employees in many different crafts and industries, in every state in the union and every province in Canada. Its role in the transportation industry gives it particular economic importance, Miller v. Transamerican Press, 621 F.2d 721, 724 (5th Cir. 1980), because a Teamster strike can hinder commerce, as the current freight strike has begun to do. 2. In part because of its very importance, the Teamsters union for many years suffered from infiltration by organized crime figures and other corrupt elements. Of the five presidents who served from 1952 through 1988, three (Dave Beck, Jimmy Hoffa, Roy Williams) left office upon being convicted of federal offenses, and one (Presser) died in office while awaiting trial. Neff, Mobbed Up 1-5, 367, 419-423 (1989); LaBotz, Rank and File Rebellion 124-136 (1990). These problems drew attention both from the federal government, which tried for many years to put the malefactors in jail, and from the union membership, which formed rank-and-file groups to encourage the fellow members to vote the rascals out as well as insisting on good representation and honest unionism. Over the years, these efforts to reform the Teamsters and to oust its criminals have drawn unceasing attention from all sectors of the mass media, not to speak of government commissions, legislative committees, and the like. See bibliographies in La Botz, Rank and File Rebellion 330-331 (1990), Neff, Mobbed Up (1989), and Friedman, Teamster Rank and File 285-290 (1982); President's Commission on Organized Crime, The Edge: Organized Crime, Business, and Labor Unions, ch. 5 (1986); 8/93 VID, 4:06:40 ("union has been under attack since the McClellan Committee").(1) 3. Since 1989, Stone has been the principal officer of Teamsters Local 745, as well as of Teamsters Joint Council 80 and the Texas Conference of Teamsters. For several years before he became the principal officer, Stone was an officer and employee of the local. Dec. Dep. Exhibit 2, Plaintiff's Supplemental Answer to Interrogatory No. 33, at 8-9. For the last five years before he became the principal officer, Stone was the local's main representative at meetings throughout the country. Feb. Dep. 73. 4. Teamsters Local 745 is the largest Teamsters local in Texas, and, indeed, in the entire South. Joint Council 80 includes all locals in northern Texas. The Texas Conference of Teamsters not only includes all Texas locals, but also, like Joint Council 80, includes the Teamsters local in Shreveport. Dec. Dep. 39, 217, 222-223, 242-243.(2) 5. The local in the Texas Conference represent approximately 49,000 employees in many different industries, Dallas Morning News, April 1, 1989, page 4A (contained in Exhibit R, group 1, to the Levy Affidavit), ranging from trucking, warehousing and airlines to the movie industry and trade shows, from industrial companies of various kinds to retail operations. Dec. Dep. 39. 6. Except for one period of time when the leadership of Local 745 was out of favor with certain national officials, leadership in Local 745 has, because of the local's size and importance, carried with it the leadership of both Joint Council 80 and the Texas Conference of Teamsters. Haddock Dep. 130-132, 178-182, 187-188; Dec. Dep. 221-222, 232-233, 241-242. 7. When the Letter was published, Stone was also an officer of both the Dallas Central Labor Council and the Texas AFL-CIO. Dec. Dep. Exh. 2, Answer to Interrog. No. 33, at 9. 8. When the Letter was published, the Teamsters had a large number of representatives on the governing body of the Texas AFL-CIO, which gave them a "strong voice in state government." Dec. Dep. 282-283; Feb. Dep. 168 and Exhibit 29, page 1, col. 3-4. 9. Stone also participates in numerous national gatherings of union leaders, through which he has come to know most of the national leadership, as well as to be known nationwide. Nov. Dep. 49. 10. During the years 1990 to 1992, Stone traveled out of state in the course of campaigning for union office, or conducting union business, at least twenty times per year. Dec. Dep. 335-336; Levy Affidavit, Exh. G. The list of trips in the interrogatory answers attached as Exhibit G, which alone include approximately twenty out of state trips on union business per year, appears to be in addition to his travels in the course of his campaign in the 1991 election. A number of the destinations he identified during his deposition, Dec. Dep. 335-336, do not appear in the list provided in the interrogatory answers. Nor is there any mention of a trip to Teamsters June 1991 Convention in Orlando, although he acknowledged in his deposition (and exhibits show) that he was there. Dec. Dep. 276 and Exhibits 6 and 7. 11. Both Local 745, and plaintiff Stone individually, are nationally known within the IBT. March 1991 VID, 1:10:30; Dec. Dep. Exh. 18, Tr. (attached to Levy Affidavit as Exh. B) at 5-6 ("they know about you everywhere," though some of the things they say are not so good); 8/92 VID, 1:31, 1:33; 5/93 VID, 1:15:25. See also Dec. Dep. Exh. 6, at 23 (delegates throughout international said to "have heard about [Stone] for years"); Affidavits of Michael Namirr ¶ 8, Douglas Mims ¶ 6, and Donald Scott ¶ 7, attached to Defendants' Opposition to Plaintiff's Motion to Compel (member and officers of Atlanta local describe Stone's reputation). 12. Stone is "a major player" within the Southern Conference and International Brotherhood of Teamsters, and has "a pretty big hand" when its grievances are heard before grievance committees under union contracts. 11/92 VID, 1:22, 1:25:50. 13. Stone is a trustee of several pension plans, and has had national union appointments to negotiating and grievance committees. Dec. Dep., Exh. 1, Answer to No. 38, and Exh. 8, last unnumbered page; Feb. Dep., Exh. 27, page 1. 14. As head of Local 745, the Joint Council and the Texas Conference, Stone is "an important labor leader." Nov. Dep., at 40, and Exhibit 3, page 5, ¶ (b). 15. As a result of Stone's many positions of power, a "document critical of Plaintiff . . . is likely to be of great interest." Nov. Dep., at 40, and Exhibit 3, page 5, ¶ (b). 16. Stone heads the largest state conference in the Southern Conference of Teamsters. He heads the most active political action committee in the Teamsters Union, which collects more money than any local union in the entire International union. He and his unions are very active in state politics. Because of their importance, the Teamsters Union has had, at one time, three district vice presidents on the Texas AFL-CIO plus one union vice president. Stone and his unions are very active politically in state politics. Stone and his unions do extensive lobbying of the state government in Austin. Nov. 1992 Dep., 40-41. See also id. 34 ("I deal with politicians all the time"); Dec. Dep. Exh. 1 and 2, Answer to Interrogatory No. 39 ("hundreds of dealings with politicians," too many to remember or recount); 3/93 VID, 6:12 (largest DRIVE in the country). 17. Stone is well-known nationally by virtue of the size of his political action committee, which allocates almost $300,000 during each two-year election cycle to various candidates. Levy Affidavit, and Exh. I; 3/93 VID, 6:12:05 et seq. ("nowhere in America have they responded [with DRIVE contributions] like they have in Dallas . . . I'm fed up to here with these finks and punks [who won't contribute]"); Levy Affidavit, Exh. H (Ligurotis speech at convention). DRIVE funds are collected from members by check-off and sent to Washington; the national DRIVE then rebates a fraction of the funds collected in each local to that local. Dec. Dep. 189-129. Thus, the total DRIVE funds furnished by Local 745 is much greater than $300,000. 18. In addition to supplying financial support, under Stone's direction Local 745 supplies large numbers of campaign workers to put up signs, make telephone calls, and otherwise help their favorite candidates win elections, and also helps candidates by "opening doors" for them to other contributors and sources of in-kind contributions. 12/92 VID, 2:24; 4/93 VID, 7:08:15; 5/93 VID, 6:30, 29:45; Feb. Dep. 170; Levy Affidavit, Exhibit AA, 3/90 issue. 19. Under Stone, Local 745 has been the biggest contributor to a number of successful candidates. 3/91 VID, 58; see also 5/93 VID, 5:30 ("this local union picked a winner in every race we supported"); Levy Affidavit, Exhibit AA, 3/90 issue. 20. Stone receives public recognition for this role, such as membership on the "inner" fundraising committees for Texas Attorney General Mattox and Texas Lieutenant Governor Bullock. Dec. Dep. 30-32. 21. Stone was also Bullock's representative on the committee that planned the inaugural ceremony for Bullock and Texas Governor Ann Richards. Dec. Dep. 32-33; 3/91 VID, 58 22. The union's political activity has enabled Teamsters leaders, including Stone, to be appointed to various state government posts. Dec. Dep. 325; Feb. Dep. 164-166. 23. Stone was a member of the Texas Employment Commission Advisory Council ("TECAC") from 1989 to 1993. The TECAC is a state body created by a Texas statute. Dec. Dep. 301 and Exhibit 18, Answer to Interrogatory No. 38, at 16; Article 5221b-9. 24. Regarding Texas Lieutenant Governor Bullock, Stone has said, "We got a bigger stick with him than anybody else in the state, and I'll tell you why: we bought his ass." MARCH 1991 VID, 58. 25. About Charles Miller, a judge on the Texas Court of Criminal Appeals, Stone has stated, "we always put the money where we need it . . . He's definitely our kind of guy, you can talk to him, and there's been a few times when we were instrumental to his survival, and . . . Chuck remembers that." Judge Miller, in turn, described Stone as "one of my closest advisers." 3/91 VID, 46; 12/93 VID, 2:11. 26. Stone and lawyers for Local 745 have frequently stated at union meetings that the local and its leaders have substantial influence with state judges to whom it makes financial contributions. E.g., 8/92 VID, 57 et seq. (discussing certain state court of appeals judges); id. 1:12 (if judge on case isn't in, "lawyer can take the client and file to one of the judges that are there; [named judge] is always there. You'd best support your Democratic judges"); 11/92 VID (1:03 to 1:04) (union officers said to "know everybody" in courthouses, so "we can deal with these people" and "we're so lucky . . . what we can do to [sic] our members"); 8/93 VID (3:51) (judge will reduce sentences for people). 27. Some judges reciprocate by attending meetings and telling members they understand why they are getting contributions. 12/92 VID, 2:25 (my door is open, I return phone calls, I help you to the extent I can); 8/92, 57 (acknowledging that support is based on whether judges are sensitive to concerns of "union working people"). 28. When United States Senator Kay Bailey Hutchison was first elected, her victory speech singled out Local 745 as one of two key supporters, apart from her family and staff. 6/93 VID, 2:39:40. 29. Stone and the unions he heads have lobbied on and influenced numerous pieces of legislation. Dec. Dep. Exh. 1, Answer to Interrogatory No. 43; Levy Affidavit, ¶ 8 and Exh. J; Levy Affidavit, Exh. AA ("we had direct input into formulating the law [and] in several areas we were able to prevail on the Legislature to modify or change their position"). 30. According to Stone, although the Texas AFL-CIO nominally co-ordinates the lobbying for labor in Texas, Local 745 supplies most of the actual lobbyists. 4/93 VID 7:57:45. 31. In addition, under Stone, Local 745 and the other Teamster bodies he runs constantly appeal for public support. Feb. Dep. 152-153. 32. During the period from August 1992 through December 1993, Local 745 tried to persuade employees at more than two dozen different companies to choose it as their bargaining representative during the period from August 1992 through December 1993. Levy Affidavit, ¶ 9 and Exhibit K. 33. From time to time, Stone and his subordinates at Local 745 have directed appeals to the general public by means of "informational" pickets whose nominal purpose is to appeal to the public not to patronize nonunion companies. Dec. Dep. 285-288; Feb. Dep. 153; Levy Affidavit, Exhibit AA (4/91 issue). 34. The real purpose of these picketlines, Stone has admitted, is to "cause chaos, we're good at that." 3/91 VID, 1:31. 35. From 1989 through 1991, the Texas Conference of Teamsters published, under Stone's direction, a newspaper called the Texas Conference News. A column by Stone appeared on the front page of each issue, and another column by Stone appeared inside each issue, during this period. Feb. Dep. 145-146. 36. The Texas Conference News was mailed to all members of participating local unions, and to selected Teamster unions outside Texas and non-Teamster unions within Texas. Feb. Dep. 154, 157-158. 37. The Texas Conference News was also used to affect public perception of the Teamsters, id. 152, 153-154, and so was directed, in part, to the communities in which the members live, as well as to the members themselves, id. 152, 155-156 and Exhibit 26. Members were asked to recirculate the paper in order to spread Teamster news and views. Id. 154-155 and Exhibit 26. 38. On several occasions, civil or even criminal charges have been made about the use of violence by Local 745 and its members, stewards and/or officers. Levy Affidavit, Exh. L. 39. In 1986, Local 745 lawyer James Hicks and Local 745 leader Charles Haddock, among others, announced at a membership meeting that a grand jury was pursuing allegations that all of the union's officers had engaged in racketeering activity, specifically including the use of violence. At the time, Stone was an officer and a business agent of Local 745. Feb. Dep. at 9-10; see also 3/86 AUDIOTAPE, Partial Transcript attached to Levy Affidavit, Exh. A). 40. During this meeting, Mr. Hicks also stated that criminal investigations of Local 745's leadership were a recurring phenomenon, and Local 745 passed a motion making similar assertions in a whereas clause. Id. 41. At least two of the charges under investigation concerned violence against union dissenters employed as dock workers at Yellow Freight Lines. At the time, Stone was a union business agent for Yellow Freight's dock workers. Levy Affidavit, Exh. M; Dec. Dep. 82-83. According to TRF's interrogatory answers, these were among the incidents about which TRF staff had heard before they published the Letter. Feb. Dep., Exh. 24, at 8-9. 42. Stone and other Local 745 leaders have also been the subject of complaints and charges to superior union officers and bodies. Levy Affidavit, Exh. N (complaint to IBT President Presser about Haddock sending "his goon business agents," naming Stone among others, to threaten and intimidate members who complain); id., Exh. O (complaint to Joint Council about misuse of union funds by local officers, naming Stone among others); Feb. Dep. 384-386 (investigation by union's Ethical Practices Committee). 43. The National Labor Relations Board has also pursued several charges of violence and threats of violence against those disfavored by the union. E.g., East Texas Motor Freight, 262 NLRB 868 (1982); Teamsters Local 745 (Transcon), 240 NLRB 537 (1979); Levy Affidavit, Exh. P. In recent years, other reported NLRB cases have involved charges against Local 745. Teamsters Local 745, 302 NLRB 957 (1991). An interrogatory requesting the complete list of complaints against Local 745 is outstanding. 44. In one NLRB case, which was still pending when the Letter was sent, the General Counsel's complaint alleged that Stone himself had warned a worker that he would be assaulted by union members if he did not stop exercising his legal right to refrain from paying union dues. Yellow Freight Systems, 307 NLRB 1024 (1992) (showing decision issued June 30, 1992, after Letter); Feb. Dep. 20 and Exh. 19. 45. Stone's reaction to this charge was one of contempt -- he told a local union meeting that he didn't recognize this legal right, and he didn't care what laws were passed, he still wouldn't recognize it. 3/91 VID, 45. Local 745 was held jointly liable for approximately $24,000 in back pay for this incident. Levy Affidavit, Exh. Q. 46. Over the years, "labor unions in general, and the Teamsters in particular [have been] good fodder for the media," in the sense that they are "a topic that they like to cover." Statement of James Hicks, Esquire, during Deposition of Byron Harris in Rogers v. Belo Broadcasting, at 94. 47. Teamsters Local 745 and its leadership have attracted continuing media coverage over the years, both before Stone became the leader of Local 745 and since then: (a) Local 745 generally, and Stone specifically, have been mentioned in at least 62 stories in the print media. Levy Affidavit, Exh. R, groups 1 and 2. (b) They have been mentioned in numerous stories on radio and television stations. EXHIBIT AB (videotape of six stories); 12/92 VID, 2:37:15 (mention of previous television coverage); 5/93 Vid, 3:01, 24 (showing television crews present); 6/93 Vid, 2:39:40, 2:40:35 (reporting extensive state-wide coverage of senator thanking Local 745 for support). See also Deposition of Charles Haddock in Rogers v. Belo Broadcasting 525-526 (extensive media attacks on Local 745). 48. The very week before this motion was filed, Stone's criticism of the IBT's handling of a major strike was quoted in a Dallas newspaper. Levy Affidavit, Exh. R, Group 1, 4/14/94 story. 49. A fair amount of coverage has been related specifically to problems of violence in Local 745. Newspaper and magazine articles have reported on the NLRB charges, civil suits and criminal investigations mentioned above; television news stories have reported on beatings, shootings, and other forms of intimidation, including violence directed against reporters who were trying to cover the local's political affairs. See evidence cited in ¶ 47. 50. In 1978, members of Local 745 were convicted for an assault on cameramen for TV channel 8. Local 745 stewards organized a defense fund for the members who were prosecuted; the union leadership participated in the collection effort, while keeping the funds separate from the union treasury. Belo Broadcasting sued Local 745 over this incident, and Local 745 paid $22,000 to settle the case. Deposition of Glenn Holmes in Rogers v. Belo Broadcasting 24-26, 45-46; Deposition of Charles Rogers in Rogers v. Belo Broadcasting 510-513; Levy Affidavit, Exh. S. 51. The reason for these assaults was that members were angry about the content of the station's coverage of Local 745. Deposition of Charles Haddock in Rogers v. Belo Broadcasting 525-526. The camera crews were trying to film dissident union members as they tried to attend a union meeting. East Texas Motor Freight, 262 NLRB 868, 889 (1982). 52. In recent years, Stone himself has repeatedly referred this violence against the news media. In March, 1991, he referred to the beating of television cameramen immediately after stating that he hoped TDU members would come to Dallas, "Because I know what happens to them." 3/91 VID, 1:42. In May 1993, Stone teased reporters who came to film a favored candidate at a union meeting that "you didn't fare so well last time you were here," emphasizing that this was because on this occasion their coverage was invited. 5/93 VID, 6, 1:36:15. Stone also said that it made a difference because the media had sent friendly reporters, or "doves," and not "that one that had the black eye, what the hell is his name, . . . that arrogant son-of-a-bitch" whose unfavorable coverage resulted in a libel suit. MAY 1993 VID, 1:36:15; 1:37:10. 53. James Hicks also jokingly praised Carl Branch for his restraint on this occasion. 5/93 VID, 1:09:05. Branch was one of the Local 745 members who was convicted of assault on the previous occasion. Levy Affidavit, Exh. T; Feb. Dep. 359-360. 54. In 1988, the United States filed suit under the RICO Act against the IBT and its officers, alleging that La Cosa Nostra controlled the union, and alleging as predicate acts a large number of instances of corruption and violence against reform elements within the union. LaBotz, Rank and File Rebellion 293-294 (1990). The IBT had tried to prevent the filing of this suit by recruiting members of Congress to sign a letter, and running a publicity campaign denouncing the proposed suit. Crowe, Collision: How the Rank and File Took Back the Teamsters 69-74 (1992) (cited as "Collision"). 55. Although the government's original proposal had been to impose a court-appointed trusteeship over the union, the Teamster reform movement successfully urged a different approach -- to ask the Court to use its power to "reorganize" the racketeer-influenced enterprise to require that, in the future, all international officers be elected by a direct, one-person, one-vote ballot, instead of having local union officers go to a convention to select the leadership. LaBotz, Rank and File Rebellion 290-291 (1990); Collision 66 (1992). 56. These reforms were accomplished through a Consent Decree that required the union to amend its constitution to incorporate several major structural reforms. United States v. Teamsters, 931 F.2d 177, 180-181 (2d Cir. 1991). 57. The need to amend the constitution pursuant to the Consent Decree, and the effort to resist that requirement, were the subject of debate within the union and the labor movement. Dec. Dep. 259-260, 265-266. 58. Stone was a participant in the debate about whether this Consent Decree was a good idea, and was a member of the International's Constitution Committee. Dec. Dep. 257-258, 265-266. 59. This Committee urged members to vote to override almost all of the structural reforms that the Consent Decree required. Collision 208-209 (1992). 60. Acting on motion of the United States government, the federal court overseeing the Consent Decree issued an injunction barring implementation of these votes without the consent of the government and the Court. United States v. Teamsters, 764 F. Supp. 787 (S.D.N.Y.), aff'd, 139 LRRM 2807 (2d Cir. 1991); Collision 206-207 (1992). This controversy was covered by the press. See articles cited in ¶¶ 47(a) and 74. 61. Plaintiff and both defendants were high-profile participants in the election campaign, which began in mid-1989 and culminated with the certification of the reform slate's victory in January, 1992. See generally Collision (1992). 62. Defendant Kilmury was elected Vice-President, running on the reform slate, headed by Ron Carey. Nov. Dep. 12-13 and Exh. 3 at 7-8; Levy Affidavit, Exh. Z. 63. She is a long-time leader of Teamsters for a Democratic Union ("TDU"), which has for many years been recognized as the principal reform group in the Teamsters union. E.g., La Botz, Rank and File Rebellion (1990); Friedman, Teamster Rank and File ch. 10 (1982). 64. Defendant TRF is an educational foundation, recognized as tax-exempt by the Internal Revenue Service, that was established for the purpose of providing education and legal services in connection with Teamster reform efforts. As a foundation, TRF could not endorse any candidates, but it provided legal support services to supporters of the reform slate, and non-partisan election rights advice for Teamster members. [First] Gruelle Affidavit, ¶ 2 (attached to defendants' Motion to Dismiss; United States v. Teamsters (Appeal of TDU and TRF), 968 F.2d 1506, 1508 (2d Cir. 1992). 65. The incumbent leadership divided into two factions; the larger faction, to which most of the national leadership belonged, fielded a slate headed by R.V. Durham; the other faction, which was strongest in large Northern cities such as Chicago and New York, was headed by Walter Shea. Collision 153-166, 194-198 (1992). 66. Stone ran for International Vice-President for the Southern Conference, nominally as an independent candidate. In fact, however, he supported the Durham slate, except for its candidates for International Vice-President for the Southern Conference. 8/92 VID, 14:15; 2/93 VID, 4:57:15. 67. Stone campaigned in every major city in the South, and in many smaller ones, as well, Dec. Dep. 335-336; Feb. Dep. 94, and mailed campaign flyers to the union membership. Id. 268-269. 68. In addition, Stone's campaign materials were published in the IBT's magazine and distributed nationwide to some 1.5 million Teamster members in the United States and Canada. E.g., Dec. Dep. 278-279; D. Stone Affidavit, ¶ 2. 69. Stone also sought press coverage of his campaign. Dec. Dep. 280. 70. Stone expressed gratitude even for critical coverage in TDU's newspaper, the Convoy-Dispatch, stating "Hell, I love to see my name in Convoy-Dispatch, because it shows I'm doing my damn job" Houston VID, at 1:42. See also 3/93 VID, 6:24 ("there'll be those coming, I can't hardly wait to see the flyers, I love it, man, because they can't tell the truth"). 71. At his deposition, Stone explained this remark by stating that TDU only criticizes good union officers; thus, TDU criticism, in effect, counts as praise among right-thinking Teamsters. Dec. Dep. 425-426. 72. Throughout the campaign, Stone expounded his views about the direction the union ought to take. Specifically, he glorified the rough and tumble reputation of his own local, and urged a return to the methods of the past, which, he said had worked well. He urged anybody who would listen to speak with the members of Local 745 to find out what kind of leader he was. HOUSTON VID, 1:39 ("we had to build a wall for survival, and we done a well job. Nobody can take it, we invite 'em to come"), 1:42 ("There's a flyer going around, Stone's going to take you back to the Stone Age. What the hell's wrong with the way we did it ten years ago? We did it right, you know"); Dec. Dep. 275-276 and Exhibits 6-8. 73. As Stone admitted during his deposition, he held out his own local as a model for the Teamsters union of the future, and offered his own performance as a fair subject for comment. Dec. Dep. 270-271. 74. There was extensive press coverage of this campaign. In 1991 alone, there were almost 100 stories about the election and the doings of the Court Officers appointed under the Consent Decree, in five national newspaper alone (Wall Street Journal, Washington Post, New Tork Times, Los Angeles Times, Christian Science Monitor). Levy Affidavit, ¶ 18 and Exhibit U. As reflected in Exhibit R (group 3), stories about the election appeared in Texas newspapers as well as in the national press. At least one book has also been written about it. Crowe, Collision: How the Rank and File Took Back the Teamsters (1992). A published review of this book was discussed by Stone at a union meeting. 10/93 VID, 6:00. See also 8/93 VID, 4:03 (mentioning extensive television coverage of election, and describing it as "the most publicized election there ever was"). 75. The election also received extensive coverage in more specialized, labor-related publications. For example, a steady diet of stories relating to the election appeared in TDU's newspaper, the Convoy-Dispatch, and in the newsletter Labor Notes. Levy Affidavit, Exh. V, W. 76. A story in Convoy-Dispatch specifically criticized Stone for plundering the union treasury to reward himself with a big salary and a big car. Levy Affidavit, Exh. V. Stone also appeared in Convoy-Dispatch listings of officials who received multiple salaries, from more than one Teamster union entity, or salaries in excess of $100,000. Id. 77. The election resulted in a victory for the reform slate, which won an overwhelming plurality of the vote. Stone carried his own local by a two to one margin, but in the rest of Texas he ran slightly behind the reform slate. D. Stone Affidavit, ¶ 3. Stone lost the election for IBT Vice-President as a whole. Levy Affidavit, Exh. Z. 78. The election did not end the debate, either within the union or beyond it, about the future of the Teamsters union. Newly elected President Carey and his slate set about to implement their reform program, while the Teamster Old Guard, which continued to hold most local union and regional offices, opposed it. The two sides have continued to proclaim their positions, and criticize each other, to this very day, and the mass media have continued to cover this debate. Levy Affidavit, Exh. AC and U; Dec. Dep. Exh. 12 (Local 745 meeting minutes); other minutes; 11/92 VID 49 (James Hicks urging locals to "circle your wagons" to block a Carey proposal), 1:26 (Stone says that "the same politics continues throughout the South. We are a major player"). 79. Plaintiff and his representatives have been avid participants in the debate. For example, the day before the Letter was mailed, Stone's counsel, James Hicks, Esquire, spoke to a Local 745 membership meeting, and proclaimed that Carey's inaugural promise to promote more democracy and to clean up corruption showed that Carey "is not a union man, and is carrying a torch to do great destruction [to the union];" consequently, he suggested, members should stand behind Stone and "the barbed wire fence, through which only our friends can come to Dallas, is going to have to be built stronger and higher, and you're the ones that are going to have to do it." Dec. Dep. Exh. 18, Tr. 2, lines 8-19, and 3, lines 17-20 (attached to Levy Affidavit as Exh. B). 80. Stone has also continued to seek higher office in the union, such as by leading a slate for the Policy Committee that runs the Southern Conference of Teamsters. Dec. Dep. 249-250. In that race, he again held forth his record in Local 745 as the model for what he hoped to do throughout the South. Id. 251-252. Although Stone implied in his deposition that the decision to run for this office was made at the last minute, id. 251-254, videotapes of Local 745 meetings show that, as early as November, 1992, Stone was considering whether to "take the Southern Conference." 11/92 VID, 1:27. 81. On February 3, 1992, TRF published the letter about which this suit has been filed over Kilmury's signature (the "Letter"), and mailed it to approximately 3500 members of the public who were believed to be interested in the cause of union reform. [First] Gruelle Affidavit ¶¶ 6, 13. The Letter stated, One example, from the fair state of Texas, will show what I mean about the challenges facing the rank-and-file movement. T.C. Stone, head of Local 745 in Dallas, told a union meeting recently that he was going to build a wall around "his" local 745, with barbed wire across the top. He was describing in advance his reaction to any programs the new International leadership might have for rank and file involvement. And rank and file members have paid a price for their own involvement. Meetings of reformers have been disrupted by goons, mail boxes and cars with Carey bumper stickers have been vandalized, and the front door of one members' home was blasted with a shot-gun -- all in response to these members voicing views that Stone wouldn't tolerate. 82. During the following week, as the Letter was being mailed, Stone was a featured speaker at a meeting of the Teamsters Industrial Trades Division in Puerto Rico, where he denounced TDU and expressed dismay at the direction in which TDU, and Carey administration, were taking the union. Nov. Dep. 52-53; Dec. Dep. 416-417 and Exhibit 18, Tr. (attached to Levy Affidavit as Exhibit B) at 1 lines 2-4 and 10 lines 17-18 (Stone announced that he has to leave the meeting to catch a plane to the Industrial Trades meeting). 83. Stone testified at his deposition that he has continued to speak out in this manner throughout the country. Dec. Dep. 417. 84. In a recent lawsuit filed by Stone, in which he demanded the right to mail his views opposing a proposed union dues increase to every union member in the United States and Canada, Stone described himself as an "outspoken critic" of Carey's policies. Levy Affidavit, Exh. Y. 85. The persons who received the Letter were drawn from two separate mailing lists: persons who had previously contributed to TRF, and persons who were current subscribers to the newsletter Labor Notes. [First] Gruelle Affidavit, ¶ 13. 86. TRF contributors receive copies of TDU's newspaper, the Convoy-Dispatch. Second Gruelle Affidavit, ¶ 2. Thus, they receive news of the Teamster reform movement on a regular basis. 87. Labor Notes has long covered the Teamster reform movement. Second Gruelle Affidavit, ¶ 3. 88. The audience targeted to receive the Letter were the individual members of the public who, as donors to TRF and subscribers to Labor Notes, were the most likely to be interested in the on-going Teamsters election and debate about the future of the union that had been extensively reported in both Convoy-Dispatch and Labor Notes. Second Gruelle Affidavit, ¶ 4. 89. Stone has disavowed any financial loss from distribution of the Letter. Dec. Dep. Exh. 1, Answer to Interrogatory No. 53, at 23-24. 90. In defending a motion to compel him to answer interrogatories seeking the names of persons who had information about his reputation before and after the publication of the Letter, Stone assured the Court that he would present no evidence at trial to prove actual loss of reputation, but rather would rest on a legal presumption that the Letter injured his reputation. Levy Affidavit, Exh. X, at 13-14. 91. In answers to Interrogatories, Stone denied having communicated with anybody, other than attorney-client communications, about the Letter. Dec. Dep. Exh. 1, Answer to Interrogatory No. 2, at 2-3. This interrogatory specifically included oral communications. Dec. Dep. Exhibit 3, at 2-3. 92. At his deposition, Stone mentioned several conversations with others about the Letter. These conversations consisted primarily either of mutual agreement that the letter was typical TDU "B.S.," or of members thanking him for having gone after defendants by filing a libel suit. Stone was unable to name a single individual who thinks less of him because of the Letter. Feb. Dep. 181-182, 229-230. 93. Stone required no medication and no medical or psychological treatment for the effects of the Letter. Dec. Dep. Exhibit 18, Answer to Interrogatory No. 56. 1. Does federal labor law require Stone to prove both actual malice and actual damages because the Letter about which he complains arose out of a "labor dispute," under Linn v. Plant Guards? 2. In light of Stone's lack of pecuinary loss or actual damage to reputation, is his evidence of actual damages insufficient as a matter of law to meet the Linn standard? 3. Are the principal officers of labor unions se public figures for the purpose of libel suits over statements about their actions in that role? 4. Is Stone a public figure for the purpose of this case, (a) because of his union positions, the controversies into which he and his union have been drawn, and his repeated intra-union campaigns for higher union office and in opposition to the reform forces, in which he has held out his performance in office as a fair subject for criticism, or (b) because of the totality of his important role in resolving economic and political questions in the community? Respectfully submitted,
Paul Alan Levy (DC Bar 946400) Alan B. Morrison (DC Bar 073114) Public Citizen Litigation Group
Steven B. Thorpe (Texas Bar 05420500) Thorpe & Hatcher
Of counsel: Barbara Harvey
Attorneys for Defendants April 19, 1994 1. A substantial amount of evidence supporting this motion is is found in videotapes and audiotapes of meetings of Teamsters Local 745. Five different videotapes, each made by Local 745 itself, are being submitted. Two contain individual meetings: one in March, 1991, and another in August, 1992. Three contain several meetings each: one runs from November, 1992 through April, 1993; another begins with the end of the April 1993 meeting and continues almost to the end of the October 1993 meeting; and a third contains the conslusion of the October meeting, as well as the November and December 1993 meetings. Statements on these videotapes are each identified by the date of the meeting and the actual running time on the tape where the cited statement appears. Thus, the citation here, "8/93 VID, 4:07", indicates that the cited statement appears 4 hours and 7 minutes into the videotape containing the Agust 1993 meeting. Because the counter numbers for audiotapes may vary from tape recorder to tape recorder, a different approach is used. For the February 1992 tape, which was introduced as Exhibit 18 during the December, 1993 portion of the deposition of plaintiff Stone, a partial transcript is provided for the relevant portion. The March 1986 videotape was played, in part, at the Stone deposition, and those portions were transcribed by the court reporter. An exhibit to the Levy Affidavit contains transcriptions of a few other portions of this audiotape. 2. Five volumes of depositions of plaintiff Stone accompany this motion, and are cited in the following manner. Stone was deposed on the issue of personal jurisdiction in November 1992; that deposition is cited as "Nov. Dep.", followed by the page number(s) to which reference is made. Stone's merits deposition began in December 1993 (two volumes), and continued in February 1994 (two more volumes). The page numbering began at 1 in each such deposition, although the exhibit numbers in the two merits depositions are sequential. These depositions are cited as "Dec. Dep." and "Feb. Dep.") more resources
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