537 F.2d 758
Bart J. DOUGHERTY, Appellant,v.HARPER'S MAGAZINE COMPANY.
No. 75--1702.
United States Court of Appeals,Third Circuit.
Argued Jan. 20, 1976. Decided June 22, 1976. As Amended Aug. 4, 1976.
Bart J. Dougherty, pro se.Cary J. Frieze, Pitney, Hardin & Kipp, Morristown, N.J., for appellee.Before HUNTER, BIGGS and GARTH, Circuit Judges.OPINION OF THE COURTBIGGS, Circuit Judge.1The appellant, Dougherty, appeals the dismissal of his suit by the United StatesDistrict Court for the District of New Jersey. Jurisdiction was alleged to exist pursuant to 'the Civil Rights Acts of the United States' and by reason of diversity of citizenship. The allegations relating to diversity are odd indeed.
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They state: '(p)laintiff is a resident of the State of New Jersey' and the'(d)efendant, Harper's Magazine Company (Harper's), has its place of businessat 2 Park Avenue, New York, N.Y. . . .' Paragraph 3(a) of the complaint alsoavers that '(t)his is a civil action between citizens of different states wherein theamount in controversy exceeds the value of $10,000, exclusive of interest andcosts.' Dougherty complains that an essay on nutrition published in the June1974 issue of Harper's Magazine, allegedly published by Harper's, is '7. . . .derogative of the civil right(s) of the plaintiff and others of Irish heritage. 8. Thearticle complained of is false, malicious, scandalous and defamatory, andconcern(s) the plaintiff . . . 10. Plaintiff is informed and believes and thereforeavers that the libel complained of was deliberate, intentional, the result of a
conspiracy and designed to subvert his civil rights, to injure his good name,subject him to shame, infamy, ridicule, disgrace, abuse and injury him in hisemployment.'2The article, which Dougherty asserts has damaged him and all other Irishmen,is entitled 'Strangulation in the Open Air' and reads in part as follows: 'Take thecase of Terence MacSwiney, the Irish revolutionist and mayor of Cork whoundertook a famous hunger strike in 1920 while a prisoner in a British jail. Helived for seventy-four days without so much as a morsel before dying of starvation. Admittedly one must take into account, in the case of MacSwiney,the thickness of an Irishman's skin and his preliminary state of preservationfrom alcohol, as well as the execrable climate of his island (which induces akind of cheerful fatalism) and the glorious devotion to his cause. Nonetheless,seventy-four days without food remains a deathless reproach to the gluttony of Georgian England.' The complaint also alleges a conspiracy between Harper'sand Great Britain to instill a feeling of inferiority in Irish Americans. Thecomplaint prays for damages, counsel fees and costs, and for injunctive relief.3A timetable of sorts is necessary for full understanding of the operative facts.On December 19, 1974, appellee's counsel filed an answer which stated, amongother things, that 'Harper's Magazine Company is not a corporation or other legal entity, but is a division of the Minneapolis Star and Tribune Company,Inc., a Minnesota corporation.' Jurisdictional amount adequate for diversity wasadmitted. On April 8, 1975, counsel for the defendant moved for judgment onthe pleadings, to dismiss the complaint pursuant to Rule 12(c), FRCP,
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on theground that the complaint did not state a claim upon which relief could begranted and, in the alternative, to strike pursuant to Rule 11, FRCP, on theground that the claim was 'sham and false'. Harper's also asked for counsel feesand costs. The notice of motion stated that on the 28th day of April, 1975, at teno'clock in the morning, the attorney for Harper's would move for relief sought by the motion.4It is clear from the affidavit of James Johnston that on April 8 the motion washand delivered to Norman Fischbein, Esquire, still attorney or record for Dougherty. On April 9, 1975, the Clerk of court sent a letter to counsel for thedefendant stating that no affidavit of mailing or acknowledgment of serviceaccompanied Harper's motion to dismiss in defiance of Local Rule 12. Thisnotice stated: 'After curing the default, it will be necessary for you to serve andfile a notice of a new hearing date which may not be less than 20 days after theservice of such notice.' No notice of a new hearing date seems to have beengiven, albeit there is a document, no. 16, addressed to counsel for defendant,stating: '(p)lease be advised that your motion for judgment on the pleadings
dismissing the complaint, etc., previously defaulted, will be heard on April28th, 1975 at 10:00 a.m. or as soon thereafter as may be heard.' Copies of bothof these papers, according to the documents themselves, were sent to NormanFischbein, Esquire. According to the statement made by Mr. Dougherty in opencourt, Mr. Dougherty consulted Mr. Fischbein about the motions on April 21,1975. This statement remains uncontradicted. However, before the return dayof the motion, viz., April 28, 1975, on April 22, 1975, without notice to anyone,the trial Judge filed a 'Letter Opinion and Order,' and dismissed Dougherty'scomplaint apparently pursuant to Rule 12(b)(6), FRCP, for failure to state aclaim upon which relief could be granted, and for want of jurisdiction.Dougherty stated in open court at the time of argument herein that he firstlearned of the disposition of his case from an account in a New York newspaper on April 22, 1975. Again, this statement was not contradicted. Dougherty,acting pro se, wrote the trial Judge in substance asking for rehearing. The Judgewrote a memorandum, after denying the request, stating: '(p)laintiff filedthrough counsel and only counsel can make any intended motions so long as heappears of record.' Dougherty's letter was filed April 30, 1975, and the Judge'smemorandum was filed May 1, 1975.5We need not decide in this case if a District Court on its own initiative maynote the inadequacies of a complaint and dismiss it for failure to state a claimupon which relief can be granted. See Literature, Inc. v. Quinn, 482 F.2d 372,374 (1st Cir. 1973), as follows: 'While no motion to dismiss had been filed, adistrict court may, in appropriate circumstances, note the inadequacy of thecomplaint and, on its own initiative, dismiss the complaint. Dodd v. SpokaneCounty, 393 F.2d 330 (9th Cir. 1968); 5 Wright & Miller, Federal Practice andProcedure: Civil § 1357. Yet a court may not do so without at least giving plaintiffs notice of the proposed action and affording them an opportunity toaddress the issue.' Rule 12(d), FRCP, requires that a Rule 12(b) (6) motion for dismissal or a 12(c) motion for judgment on the pleadings may be disposed of only after a hearing,
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which affords an opportunity to present legal argumentseither orally, in writing, or both at the District Court's discretion. The right tohearing is 'the essence of our judicial system, and the judge's feeling that thecase is probably frivolous does not justify bypassing that right.' Harmon v.Superior Court, 307 F.2d 796, 797--98 (9th Cir. 1962), cited with approval,Urbano v. Calissi, 353 F.2d 196, 197 (3d Cir. 1965) (per curiam). In Jordan v.County of Montgomery, Pennsylvania, 404 F.2d 747 (3d Cir. 1969), we heldthat an order dismissing a complaint under Rule 12(b)(6), entered withoutaffording the plaintiff an opportunity to be heard, must be reversed. We notethat in Council of Federated Organizations v. Mize, 339 F.2d 898 (5th Cir.1964), the Court characterized as a denial of due process the entry of an order dismissing the complaint for failure to state a claim without giving the plaintiff
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