author: PER CURIAM: WALLACE, Circuit Judge

text:
    The DOW CHEMICAL COMPANY, Appellant, v. DART INDUSTRIES, INC., Appellee. BRAND PLASTICS COMPANY et al., Appellees, v. The DOW CHEMICAL COMPANY, Appellant.
    Nos. 71-1371, 71-1372.
    United States Court of Appeals, Ninth Circuit.
    Feb. 20, 1973.
    Rehearing Denied April 5,1973.
    Neal A. Waldrop (argued), of Harness, Dickey & Pierce, Detroit, Mich., William Howard Nicholas, of Nicholas, Kolliner, Myers, D’Angelo & Givens, Los Angeles, Cal., William M. Yates, Sidney J. Walker, Midland, Mich., Naylor & Neal, San Francisco, Cal., for appellant.
    Carl Hoppe (argued), James F. Mitchell, San Francisco, Cal., David S. Romney, Richard E. Lyon (argued), Roland N. Smoot, of Lyon & Lyon, Los Angeles, Cal., Grant A. Brown, Arthur G. Gilkes, Ralph C. Medhurst, Chicago, 111., for appellees.
    Before ELY, TRASK, and WALLACE, Circuit Judges.
   PER CURIAM:

The patent involved in this suit is Number 2,694,692. The District Court held that the patent was invalid, anticipated by certain prior arts and embracing a procedure that would have been obvious to one skilled in the prior art. The appellant vigorously challenges this conclusion, but we are not persuaded that we should disturb it. The trial was extensive, consuming some twenty days, with highly expert, opposing opinions expressed by different witnesses presented by the competing parties. This being true, we cannot hold that the District Court’s finding of fact in this respect was clearly erroneous.

We take a different view on another argument advanced by the appellee, an argument aimed at the District Court’s finding that this was an “exceptional” case under 35 U.S.C. § 285 and leading to the District Court’s conclusion that approximately one million dollars should be awarded as attorneys fees to the appellees and paid by the appellant. To substantiate such fees, there must be precise findings that clearly show the necessary prerequisites. See Florida Brace Corporation v. Bartels, 332 F.2d 337 (9th Cir. 1964). Here, there were no findings of the requisite precision, and we are persuaded that even had such findings been made, they would have lacked sufficient evidentiary foundation.

We have carefully examined the record, particularly that concerned with the appellant’s negotiations with the patent office and its procurement of the patent in suit. We are left with the definite conviction that there was no palpable fraud committed by the appellant in respect to these negotiations and that, on the whole, the conduct of it and its attorneys was essentially fair. Nothing of significance was concealed from the patent office. This is not that type of an exceptional case in which one procuring and seeking to protect its patent should be compelled to absorb the expense of attorneys’ fees incurred by its adversaries, and the District Court’s conclusion to the contrary is reversed. Cf. Locklin v. Day-Glo Color Corp., 468 F.2d 1359 (9th Cir. 1972). Upon remand, the judgment of the District Court will be modified accordingly.

Affirmed in part; reversed in part, with directions.

WALLACE, Circuit Judge

(concurring:)

I concur in the opinion except I am not persuaded that given findings which meet the test of Florida Brace Corporation, the evidence would not be sufficient to sustain the award of attorneys’ fees under Shingle Product Patents v. Gleason, 211 F.2d 437, 441 (9th Cir. 1954).


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    Luke Joseph RENER, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
    No. 72-3715
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    March 28, 1973.

      Luke Rener, pro se.
    Frank D. McCown, U. S. Atty., Ft. Worth, Tex., Harry Koch, Asst. U. S. Atty., Dallas, Tex., for respondent-appellee.
    Before JOHN R. BROWN, Chief Judge, and DYER and SIMPSON, Circuit Judges.

       Rule 18, 5 Cir., Isbell Enterprises, Inc. v. Citizens Casualty Company of New York et al., 5 Cir., 1970, 431 F.2d 409, Part I.

   PER CURIAM:

The district court denied Rener’s petition for writ of error coram nobis. We affirm.

Rener is confined in the Texas Department of Corrections by virtue of his convictions for attempted burglary and possession of narcotics. In his petition for coram nobis relief he sought to have a previously served federal conviction vacated on grounds that the 1952 conviction for possession of untaxed marihuana was invalid under the decision of Leary v. United States, 1969, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57.

The district court denied relief, finding that Rener had failed to present any “compelling circumstances” which would justify the grant of the extraordinary remedy of coram nobis. We agree.

Nowhere in the pleadings filed below did Rener allege that he is subject to any adverse effects emanating from the prior federal conviction. On the basis of the respondent’s answer filed in the district court stating that Rener was convicted and sentenced on four felony offenses subsequent to the 1952 conviction, it appears unlikely that such is the ease. The writ of error coram nobis should only be allowed to remedy manifest injustice. Cf. Reyes Correa-Negron v. United States, 5 Cir. 1973, 473 F.2d 684. Its purpose is not to burden courts with the rendition of “futile decrees.” Rodgers v. United States, 5 Cir. 1971, 451 F.2d 562, 563; United States v. Morgan, 1954, 346 U.S. 502, 74 S.Ct. 247, 98 L.Ed. 248.

For the first time on appeal, Rener attempts to raise the point that the 1952 conviction was used to enhance his present state sentence. We decline to consider this argument since the issue was never raised in the proceedings below. Reyes Correa-Negron v. United States, supra; United States v. Hall, 5 Cir. 1971, 440 F.2d 1277; Hemming v. United States, 5 Cir. 1969, 409 F.2d 11.

The judgment appealed from is affirmed.

Affirmed.

      . Rener was convicted under 26 U.S.C. § 2593(a), which has since been repealed. Thereafter, the provisions of § 2593(a) were contained in 26 U.S.C. § 4744, which has also been repealed.

      . The district court, apparently under the erroneous impression that Rener had been convicted under the provisions contained in 21 U.S.C. § 176a, made the incorrect observation that the challenged conviction was valid since the Leary presumption of illegal importation was not used against him.


text:
    Joseph R. THOMPSON, Appellant, v. David E. GROSHENS and Elmer Lentz.
    No. 72-1517.
    United States Court of Appeals, Third Circuit.
    Argued March 6, 1973.
    Decided March 6, 1973.
    E. J. O’Halloran, Philadelphia, Pa., for appellant.
    Cecil Maidman, Asst. Atty. Gen., Herman Rosenberger, 2nd, Dante Mattioni, Philadelphia, Pa., J. Shane Creamer, Atty. Gen., Harrisburg, Pa., for appellee, David E. Groshens.
    John A. Lord, Philadelphia, Pa., for appellee, Elmer Lentz.

      Before GIBBONS and HUNTER, Circuit Judges and MUIR, District Judge.
   OPINION OF THE COURT

PER CURIAM:

This is an appeal from an order of the district court which denied appellant’s motion for the convening of a three-judge district court and dismissed his complaint, 342 F.Supp. 516. The complaint alleges that Pa.Stat.Ann. tit. 18, § 4733, which provides a summary remedy against husbands for support of a wife and children, is unconstitutional. Proceedings brought pursuant to the Pennsylvania statute are pending in the Montgomery County Court of Common Pleas. In an earlier stage of the Commonwealth nonsupport proceeding the appellant made the same challenges to the constitutionality of the Pennsylvania statute as are here presented. They were rejected in the Common Pleas Court and on appeal to the Pennsylvania Superior Court. The Supreme Court denied certiorari. See Thompson v. Thompson, 217 Pa.Super. 874, 272 A.2d 189 (1970) (per curiam), appeal dismissed and cert. denied, 405 U.S. 971, 92 S.Ct. 1191, 31 L.Ed.2d 245 (1972).

While the nonsupport case was pending on appeal the appellant’s wife filed a petition in the Court of Common Pleas seeking an increase in support payments. Since his constitutional attack had already been rejected by the Court of Common Pleas, appellant sought, by this injunction action against the Judge and the Chief Domestic Relations Officer of the Court, to collaterally attack the earlier judgment in a federal court proceeding.

In ruling on a motion to convene a three-judge district court, the inquiries of a single district judge are limited to (1) whether the constitutional challenge to the statute is substantial, and (2) whether the complaint alleges a basis for equitable relief. Idlewild Bon Voyage Liquor Corp. v. Epstein, 370 U.S. 713, 82 S.Ct. 1294, 8 L.Ed.2d 794 (1962) (per curiam). In deciding the second question the district court’s inquiry is properly at least as probing as in its determination of the first. Majuri v. United States, 431 F.2d 469 (3d Cir.), cert. denied, 400 U.S. 943, 91 S.Ct. 245, 27 L.Ed.2d 248 (1970); cf. Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). Here the pleadings before the district court established that the appellant had been afforded a full opportunity to litigate his constitutional contentions in the Pennsylvania courts, and had lost. A complaint alleging that he should be permitted to relitigate those contentions in a federal injunction action does not state a basis for equitable relief. Certainly no injunction could issue enjoining on constitutional grounds the enforcement of a statute in face of a decision, binding on this apellant, that the statute is constitutional. The complaint, therefore, was properly dismissed by a single district court judge.

In view of the foregoing we have no occasion to pass upon the additional grounds for dismissing the complaint set forth in the opinion of the district court, except to note that we do not agree with those parts of that opinion referring to lack of jurisdiction. A dismissal of the action with prejudice would not have been proper if the court lacked jurisdiction.


author: SWYGERT, Chief Judge.

text:
    Frederick H. MURRAY et al., Plaintiffs-Appellants, v. WILSON OAK FLOORING CO., INC., a corporation, Defendant-Appellee.
    No. 71-1353.
    United States Court of Appeals, Seventh Circuit.
    Argued Sept. 22, 1973.
    Decided March 5, 1973.
    Rehearing March 30, 1973.
    David Ruttenberg, Chicago, Ill., for plaintiffs-appellants.
    James T. Ferrini, Stephen D. Marcus, Chicago, Ill., for defendant-appellee.
    Before SWYGERT, Chief Judge, CUMMINGS and SPRECHER, Circuit Judges.
   SWYGERT, Chief Judge.

This appeal concerns a diversity suit in tort. Plaintiff, Frederick H. Murray, appeals from a judgment non obstante veredicto entered on motion of the appellee, Wilson Oak Flooring Co., Inc. The sole issue presented is whether the district court, on the facts of the case, properly granted a judgment notwithstanding the verdict. Both sides agree that the law of Illinois governs the resolution of this issue.

I

The facts are undisputed for the most part. The plaintiff was the owner of a small brick residential property located in Chicago. On the evening of October 3, 1969, Murray was preparing to install a parquet-wood flooring on a portion of the second floor of this building, pursuant to a plan for overall remodeling. He planned to use Latex “45” Adhesive to hold the flooring in place. Both the flooring and the adhesive had been received by Murray as a gift from the Kingston Tile Company, one of his business associates. Kingston, however, neither manufactured nor was the primary distributor of these items; both, instead, bore the label of Wilson, for whom the adhesive was manufactured on a private label basis by the Chicago Mastic Corporation.

Affixed to the five-gallon can of Latex “45” Adhesive were two labels, one of which, bright red and diamond shaped, set forth its message in boldface black letters having the following content, size and arrangement:

Another label was affixed to the opposite side of the can. White with red lettering, it set forth, in part, this message:

Prior to spreading any of the mastic, Murray thoroughly familiarized himself with the contents of these lables.

The second floor of the Wieland building was in the shape of an elongated rectangle. The front one-third of the floor was comprised of a living room, a work room and an entry hall; the middle one-third contained a combination billiards and dining room, a kitchen, and a storage-utility room. Murray planned to install parquet floor on the area described by the entry hall and the billiards-dining room, which he realized would require the spreading of adhesive on the floor adjacent to the kitchen and the storage-utility room. The following floor plan, taken from an exhibit introduced at trial, indicates the arrangement of these areas; the crosshatched section represents part of the area which Murray intended to cover with parquet flooring:

The kitchen, linked to the billiards-dining room by a doorless cased opening, contained a built-in stove and oven, each of which was fitted with pilot lights: two for the stove and one for the oven. Housed in the storage-utility room were a furnace and a water heater, both gas-supplied and furnished with single pilot lights. Unlike the kitchen, however, this room was separated from the billardsdining area by a door, nailed into place and tightly fitted into the door frame except at the bottom, where a horizontal gap existed about the width of a finger. On the night of October 3, all of the pilot lights servicing these various appliances were lit and functioning, with the possible exception of the furnace light.

Murray was aware of this fact when he began to apply adhesive to the front-most portion of the entry hall at approximately 6:00 P.M. on October 3. Three hours later he had applied adhesive to most of the area he intended to cover with flooring, working his way from his starting point back toward the kitchen and bathroom. The area was not entirely covered, however. Murray left himself an eight to ten inch path along the wall separating the billiards-dining area from the kitchen and storage-utility room, evidently to allow his return to the front of the apartment without having to tread on wet adhesive. Unfortunately, this path was never used. While on his knees near the bathroom door, facing the front of the building and nearly finished with applying mastic, Murray heard an explosive noise, later described by him as a “whompf”. This was accompanied by a bright orange flame, which Murray first observed about five feet in front of him at a location marked by an “X” on the floor plan. In an ensuing fire, Murray sustained burns which resulted in his permanent injury.

This suit for damages followed. Evidence produced at trial established that the warnings placed on the can of Latex “45” Adhesive were not in conformance with either the Federal Hazardous Substances Labeling Act, 74 Stat. 372 (1960), or the Illinois Hazardous Substances Labeling Act, Ill.Rev.Stat. Ch. IIV/2 § 251 et seq. To comply with those Acts, a product having the combustibility of Latex “45” — equivalent to that of gasoline — would have required labeling which read “danger” rather than “caution” and “extremely flammable” rather than “inflammable”.

The evidence also established that the fire was caused when combustible vapors from the adhesive came in contact with one of the lit pilot lights, the most likely candidate being the pilot light of the water heater in the storage-utility room. Expert witnesses for both sides testified that Latex “45” emits a heavy and highly combustible vapor capable (1) of traveling for some distance along a floor from the point at which the mastic is spread, (2) of burning with explosive force upon encountering any form of exposed flame, and (3) of transmitting that flame back to the body of spread adhesive. Thus the water heater pilot was chosen as the most likely site for generating the explosion not only because it was substantially closer to the mastic than the stove pilot lights but because it was much nearer to the floor than the pilot lights on the stove, and therefore more likely to contact low-lying vapors easily capable of traveling under a door.

After hearing all of the evidence, the jury in the cause returned a verdict in favor of Murray, and assessed damages against Wilson in the sum of $20,429.00. Wilson then filed a motion for a judgment in its favor non obstante veredicto which was granted by the district judge. He based his decision on the following facts:

[T]he plaintiff Frederick H. Murray admitted on the trial that at the time of the occurrence there were burners blazing and that he knew they were there. The product was plainly marked as inflammable. Said plaintiff’s action was clearly a contributing cause of the explosion and fire that occurred, and he was therefore guilty of contributory negligence herein.

By “blazing burners” we take the judge to have meant the various pilot lights adjacent to the applied mastic.

II

We have carefully considered the evidence in this case, and conclude that the trial judge erred in entering a judgment non obstante veredicto for Wilson. Perhaps the most crucial fact relevant to our decision is the presence of the word “near” in the primary warning on Wilson’s adhesive can, a term which we think must be taken to modify subordinate warnings on the same level. The most important of these is the recitation: “Do not smoke — Extinguish flame — including pilot lights.” (emphasis added). Reexamining the floor plan introduced as evidence in this case, and taking the evidence at its worst for Murray, it would appear that he spread mastic to within four or five feet of the water heater pilot light and within seven to eight horizontal feet of the stove pilot lights. These figures allow for the eight to ten inch path Murray left for his return to the front of the apartment.

We cannot say as a matter of law that the term “near” was sufficient to inform Murray that his spreading of adhesive within four feet of a pilot light located behind a closed door and within eight feet of stove pilot lights three feet off the floor exposed him to the risk of an explosion and attendant fire damage. All of the evidence, when viewed in its aspect most favorable to Murray, fails to “so overwhelmingly [favor] movant [Wilson] that no contrary verdict based on that evidence could ever stand.” Pedrick v. Peoria & Eastern R. R., 37 Ill.2d 494, 510, 229 N.E.2d 504, 514 (1967). Nearness is a matter of degree. To the president of Wilson, “near” included the entire house in which an application of Latex “45” Adhesive was taking place. The reasonable man, we think, would disagree. Thus, whether “near” fairly encompassed the door and distances of this case was a question for the jury.

This is not to say that no separation could be too small to foreclose a jury from ruling on the scope of the term “near”. Two cases decided by this court recognize the existence of a threshold gap below which a judgment n. o. v. becomes appropriate. In Moschkau v. Sears Roebuck & Co., 282 F.2d 878 (7th Cir., 1960), we upheld a judgment n. o. v. where the evidence showed that the plaintiff, an experienced carpenter, had brought combustible adhesive to within eighteen inches of stove burners serviced by lit pilot lights. The limits of Moschkau were tested six years later in Borowicz v. Chicago Mastic Co., 367 F.2d 751 (7th Cir., 1966), where we held that judgment n. o. v. was appropriate against an experienced carpenter who had left a can of inflammable mastic within three feet of stove pilot lights. In both eases the adhesive was the same type as that which caused the fire here, and the respective containers were labeled with warnings analogous in content to those set out herein. In neither case was the separation between the mastic and flame blocked by a solid impediment.

Of the two cases, Borowicz is undoubtedly the closest to the facts of this case; here mastic was applied within perhaps four feet of a lit pilot light, there the distance was three feet. A controlling distinction, however, is that Murray laid down mastic in a room that was separate and apart from the room where the flame was located, a separation made more complete by the interposition of a sturdy door. With respect to the kitchen pilot lights, seven or eight feet of horizontal distance and approximately three feet of vertical distance separated them from the mastic, a gap which is not, we think, the equivalent of a three foot distance without vertical separation for the purposes of a judgment n. o. v.

Lastly, we note two other distinctions which, though not of themselves controlling, further serve to distinguish Borowicz and Moschkau: (1) in neither case was any evidence adduced, as here, to establish a case of prima facie negligence on the part of the defendant by failure to comply with industry-wide standards of warning, and (2) Murray was not an experienced carpenter with extensive practice in using the material causing the accident complained of.

III

We must go further, however, than distinguishing Borowicz and Moschkau. In the years since those decisions, the Illinois Supreme Court has made a significant revision in the law of Illinois dealing with judgments n. o. v. and directed verdicts. The case was Pedrick v. Peoria & Eastern R. R., 37 Ill.2d 494, 229 N.E.2d 504 (1967), which announced the standard earlier referred to in this opinion:

In our judgment verdicts ought to be directed and judgments n. o. v. entered only in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand. 37 Ill.2d at 510, 229 N.E.2d at 513-514.

Wilson urges, first, that this standard represents a marked easing of the prior requirement of Illinois law respecting the grant of judgments n. o. v.; that is, that these are now easier to obtain than when Moschkau and Borowicz were decided. From this they argue that the factual distinctions of the present case from Moschkau and Borowicz are of insufficient importance to overcome that precedent when read in combination with Pedrick. Since Wilson’s premise is faulty, however, we cannot accept this argument.

Prior to Pedrick, two different standards had governed two species of cases. In determining when questions of negligence and contributory negligence became questions of law, Illinois courts answered in the affirmative only when “all of the evidence, viewed in its aspect most favorable to the party against whom the court would rule, was such that reasonable minds would reach the same conclusion.” Pedrick v. Peoria & Eastern R. R., 37 Ill.2d 494, 502, 229 N.E.2d 504, 509 (1967). In other types of eases, Illinois courts applied an “any evidence" test, granting directed verdicts or judgments n. o. v. only when all of the evidence in the case, considered in its light most favorable to the party against whom the court would rule, contained no evidence in favor of the nonmovant on an essential issue of the case. Pedrick eliminated both categories, and the standard it announced was designed to apply to all types of cases.

Did Pedrick make it easier to obtain a judgment n. o. v. in the former type of case, where a finding of contributory negligence as a matter of law is sought? We think not. Our chief support for this view lies in a comparison of the respective inadequacies of the two then-existent standards pointed out by the Pedrick Court. With respect to the “any evidence” standard, it was said:

[Neither] the any evidence rule [n]or any of its variants ... is entirely satisfactory, for literal application thereof prohibits direction of a verdict even though the evidence relied upon in opposition is so overwhelmingly rebutted that no verdict based thereon could possibly stand. In such instances no action other than a directed verdict [or judgment n. o. v.] is consonant with efficiency in our judicial system and with a fair and expeditious termination of litigation. 37 Ill.2d at 510, 229 N.E. at 513.

The objection to the negligence, or “reasonable men,” test was of a somewhat less pragmatic import:

Our dissatisfaction stems from the fact that there is at least a surface incongruity in a trial judge saying all reasonable men agree that the proof established the presence or absence of due care when 12 jurors have just reached a contrary conclusion. And it seems even more incongruous for reviewing courts to so state when the trial judge and jury reached the opposite result, when the trial and reviewing courts disagree or the members of a reviewing court disagree among themselves that such is the case. 37 Ill.2d at 510, 229 N.E.2d at 513.

It is thus apparent that the Illinois Supreme Court did not intend in Pedrick to make judgments n. o. v. any easier to obtain in negligence cases than had previously been the rule, while they did so intend in cases, unlike this one, which had earlier fallen under the “any evidence” rule.

The judgment of the district court is reversed, and the case remanded with instructions to reinstate the verdict of the jury.

Cummings, Circuit Judge, dissents.

       Of particular pertinence to this conclusion is the following excerpt from Pedrick: The fact that our “any evidence” rule has not always operated to the satisfaction of this court is manifest from the concurrent presence of the “reasonable, men" test, and the fact that there are cases in which the evidence, when viewed in its entirety and in its aspect most favorable to the party against whom the court would rule, so overwhelmingly favors one party that an opposite verdict must always be set aside irrespective of the number of times the case may be tried even though some evidence exists which supports the verdict and satisfies the “any evidence” rule. Under such circumstances there is no real reason for trial judges to continue to submit the case to successive juries. 37 Ill.2d at 504, 229 N.E.2d at 510. (emphasis supplied)


author: COFFIN, Chief Judge.

text:
    German ORTIZ et al., Plaintiffs, Appellants, v. Honorable Rafael Hernandez COLON, Governor of the Commonwealth of Puerto Rico, et al., Defendants, Appellees.
    No. 73-1017.
    United States Court of Appeals, First Circuit.
    Heard Feb. 5, 1973.
    Decided March 28, 1973.
    Harvey B. Nachman, San Juan, P. R., with whom Dubon & Dubon, San Juan, P. R., and Nachman, Feldstein & Gelpi, San Juan, P. R., were on brief, for appellants.
    Peter Ortiz, Asst. Sol. Gen., with whom Francisco De Jesus Schuck, Secretary of Justice, and J. F. Rodriguez Rivera, Acting Sol. Gen., were on brief, for appellee, Honorable Rafael Hernandez Colon, Governor of The Commonwealth of Puerto Rico.
    Luis Munoz Rivera, pro se.
    Before COFFIN, Chief Judge, McENTEE and CAMPBELL, Circuit Judges.
   COFFIN, Chief Judge.

Appellants, on January 3, 1973, filed a complaint which sought to enjoin the Governor of Puerto Rico from complying with his statutory duty of appointing five members of the Municipal Assembly of San Juan; on the grounds that L.P.R.A., tit. 21, § 1152(b), which authorizes such action, results in an unconstitutional deprivation of equal protection in that the residents of San Juan, who elect twelve other members of the Municipal Assembly, suffer an illegal dilution of their votes in violation of the principle of “one person-one vote”. A request for a three-judge court was denied since, although a substantial constitutional question was presented, the district court found that the Commonwealth statute at issue “affects only the electorate of San Juan and not the rest of the Commonwealth.” Appellants’ claims were subsequently rejected by the court. We have decided that a three-judge court is required to hear appellants’ contentions, and consequently remand for a trial before such a court without expressing any opinion on the merits of the case. Goosby v. Osser, 409 U.S. 512, 93 S.Ct. 854, 35 L.Ed.2d 36 (U.S. Jan. 17,1973).

The statute governing us, 28 U.S.C. § 2281, requires the convening of a three-judge court when what is sought is an “injunction restraining the enforcement, operation or execution of any State statute by restraining the action of any officer of such State in the enforcement or execution of such statute . . . This has been said not to apply to a state statute which relates to a matter not “of statewide concern but [which] affects exclusively a particular district [in the state].” Rorick v. Board of Commissioners, 307 U.S. 208, 212, 59 S.Ct. 808, 811, 83 L.Ed. 1242 (1939). Later, the Court referred to convening a § 2281 court to hear challenges to “state law the application of which is statewide”, Cleveland v. United States, 323 U.S. 329, 65 S.Ct. 280, 89 L.Ed. 274 (1945), thereby seemingly focusing more on the application or impact of the state statute, rather than on the breadth of the concerns which it manifested. This view was reinforced in Moody v. Flowers, 387 U.S. 97, 101-102, 87 S.Ct. 1544, 1548, 18 L.Ed.2d 643 (1967), which indicated that a three-judge court was proper “only when a state statute of general and statewide application is sought to be enjoined . . . [and not when] state officers [perform] matters of purely local concern.” Where the “ ‘statute’ is one of limited application, concerning only a particular county”, id. at 104, 87 S.Ct. at 1549, a single judge should hear the cause. Most recently, certain language in Board of Regents v. New Left Education Project, 404 U.S. 541, 543, 92 S.Ct. 652, 654, 30 L.Ed.2d 697, if taken out of context, might be said to confirm the propriety of determining whether a “state statute [has] only a local impact” — as opposed to a statewide impact — as the touchstone for deciding the applicability of § 2281.

The district court apparently relied solely upon the “application” or “impact” test and decided that appellants had not demonstrated any statewide application of § 1152(b). But we do not think that “local impact”, measured in terms of geography, is alone the decisive factor. As the reference in Moody v. Flowers, supra, 387 U.S. at 102, 87 S.Ct. 1544, to “purely local concern” suggests, single judge jurisdiction is premised not only upon local impact but upon the absence from the challenged state statute of a significant expression of statewide policy. “The crux of the [three-judge court] business is procedural protection against an improvident state-wide doom by a federal court of a state’s legislative policy.” Phillips v. United States, 312 U.S. 246, 251, 61 S.Ct. 480, 483, 85 L.Ed. 800 (1940).

In Alabama State Teachers Ass’n v. Alabama Public School & College Authority, 393 U.S. 400, 89 S.Ct. 681, 21 L.Ed.2d 631 (1969), the Court summarily affirmed a three-judge court decision that a state statute directing the issuance of bonds for construction of one state university in one city did not contribute to racial segregation. In New Left, the Court left no doubt that Alabama State Teachers Ass’n had been properly before it, stating that “that action, although having a local impact, [was alleged to be] expressive of an official, statewide policy to maintain a racially identifiable, dual system of education. . . . [Thus] a statewide policy was sufficiently implicated to sustain the jurisdiction of the three-judge court . . . .’’New Left, supra, 404 U.S. at 544 n. 2, 92 S.Ct. at 654.

There can be no doubt here that an analogous “official, statewide policy” to give all Puerto Ricans a voice in the affairs of San Juan is implicated in § 1152 (b). Reference to predecessors of the challenged statute reveals that Act No. 99, § 55 (1931), first established an appointed Board of Commissioners for the capital of Puerto Rico with a changeover to a fully elected board to occur in 1937. However, Act No. 10 (1936) amended the 1931 law to provide for a nine-member Board with five popularly elected members and four appointed by the Governor. In 1960 the present law was enacted whereby the Governor appoints five of seventeen members.

The rationale underlying the current law was thus expressed by the Majority Leader of the Senate:

“Now the decision has been that there be, in the municipality of San Juan, where the country’s general interests are represented, an indirect intervention by the collective will of the people, in some specific form, by determining the style in which its government shall be constituted.
“If we think, Mr. Chairman, that the general fund of the country has to invest here copious amounts of money for the port development, that belongs to all of Puerto Rico, for the University facilities which belong to all of Puerto Rico, for the large traffic arteries needed for the economic progress of this country, for banking, for industry, for the moving control of this country throughout the developing process and growth thereof, and its life itself, there are sufficient reasons to have a voice from all the Puerto Rican citizenry, even though tinily represented, to be heard in regard to the manner in which the San Juan municipality is governed.” Diario de

Sesiones, Vol. XIII, Tomo 4, p. 1715.

The long history of the various types of government under which San Juan has been administered is indicative of the concerns of the Puerto Rican legislature that affairs of the capital be conducted to reflect the will of all Puerto Ricans because of the role played by that city in all aspects of life in the Commonwealth. Such concerns constitute a policy which cannot be said to be of only local import, whatever may be the statute’s application or impact.

The judgment of the district court is therefore vacated, and the case remanded for reference to a three-judge court.

       Most recently, in 1971, House Bill 510, which provided for the popular election of all seventeen assembly members, passed the Puerto Rican House and Senate, but was vetoed by the Governor.


author: VAN DUSEN, Circuit Judge.

text:
    Hymen SCHLESINGER and David A. Hensler, Petitioners, v. Hon. Hubert TEITELBAUM, United States District Judge, et al., Respondent.
    No. 73-1091.
    United States Court of Appeals, Third Circuit.
    Submitted Feb. 1, 1973.
    Decided March 9, 1973.

      Hymen Schlesinger, Pittsburgh, Pa., for petitioners.
    Richard L. Thornburgh, U. S. Atty., Henry G. Barr, Asst. U. S. Atty., for Teitelbaum.
    Loyal H. Gregg, of Jones, Gregg, Creehan & Gerace, Pittsburgh, Pa., for Point Towing, River Transp. and M. G. Transport.
    Before VAN DUSEN and ADAMS, Circuit Judges, and BARLOW, District Judge.
   OPINION OF THE COURT

VAN DUSEN, Circuit Judge.

This case, where petitioners (a seaman and his attorney) request issuance of a writ of mandamus and prohibition, presents the issue of whether a district court may establish a schedule of contingent fees for use in personal injury actions brought by seamen, providing that such fees or lesser fees considered as guidelines shall be deemed to be fair and reasonable and that any fees in excess of such schedule shall constitute the exaction of unreasonable compensation in violation of the Code of Professional Responsibility of the American Bar Association (see below at page 7) unless a showing is made justifying higher compensation based on unusual circumstances. Compare Special Rule 4 Regulating Conduct of Attorneys of the First and Second Judicial Departments of New York, as reproduced at note 1 in Gair v. Peck, 6 N.Y.2d 97, 188 N.Y.S.2d 491, 160 N.E.2d 43, 45-46 (1959), cert. denied, 361 U.S. 374, 80 S.Ct. 401, 4 L.Ed.2d 380 (1960).

This Petition for Writ of Mandamus and Prohibition (hereafter Petition) alleges that petitioner Hensler filed an action as a seaman for personal injuries against the corporate respondents in the district court on April 5, 1971. The amended complaint alleges that such petitioner, while complying with the command of the vessel on which he was employed, “was caused to slip on the barge and his foot and leg were badly mashed and injured when the same was caught between the vessel and the barge,” and that the injuries and disabilities suffered were due to the negligence of the corporate respondents and the unseaworthiness of the vessel. During the course of the trial, a compromise settlement of $17,500 was agreed upon by the parties and approved by the trial judge. Although the court was informed (paragraph 3 of the Petition) that counsel fees of one-third of the settlement had been agreed upon by Hensler and his attorney (petitioner Schlesinger), the trial judge stated that seamen were wards of the court and that “a fair fee in this case for representation of this [plaintiff], who is a seaman and ward of the court,” (11a) was the amount set forth in “a schedule that the court applies in seamen’s cases” (8a), which schedule is “a guideline which I see fit to follow” (12a). The schedule provided for 33%% for the first $10,000. of recovery and 25% above that amount on the next $90,000. of recovery (16a). The court rule (adopted in April 1971) provides that this schedule is to be the guideline “pending further study of the problem” (16a and paragraph 6 of Petition). The court added: “I have exercised my discretion and I have said what the fee is” (12a).

In addition to the above schedule, Local Rule 20 of the district court provides for court approval of all settlements in actions to which a seaman is a party. Paragraph (d) of this Rule provides: “The court . . . shall make an order approving . . . any settlement entered into by the proctor or attorney and the seaman for payment of counsel fees . . . out of the fund created by the . . . settlement . . . ; or the Court may make such order as it deems proper, fixing counsel fees. . The court shall then order the balance of the fund to be paid to the seaman. . . . ” The order challenged by this Petition provided as follows :

“AND NOW, to wit, this 11th day of December, 1972, in consideration of the plaintiff’s Petition for Compromise Settlement, in light of the general guidelines of this court regarding fees of counsel after the settlement of a seaman’s action, and with reference to the services rendered by plaintiff’s counsel in this particular seaman’s action, IT IS ORDERED that a reasonable and appropriate fee for plaintiff’s counsel in this action be and hereby is awarded in the amount of $5,208.33 (33% of $10,000.00 plus 25% of $7,500.00). IT IS FURTHER ORDERED that the $625.00 which represents the difference between the counsel fee allowed herein and the fee which the plaintiff by prearrangement agreed to pay his counsel (33% of the amount of recovery) shall be and hereby is placed in escrow with the Clerk of Court pending resolution of the plaintiff’s counsel’s contention that he is absolutely entitled to the fee agreed to between him and his client. IT IS FURTHER ORDERED that accordingly the Petition for Compromise Settlement be and hereby is granted.”

At the hearing held November 13, 1972, on the application of petitioners to use a larger percentage of the settlement for counsel fees than is permitted by the court’s tentative guidelines, petitioners produced no time records to justify the higher fee provided for in the contingent fee agreement and no facts showing the fee produced by the guidelines to be unfair have been alleged in this Pétition.

It is well recognized that the court has the power to set fees in cases involving persons of presumed incapacity to look after their affairs intelligently. See McKinnon, Contingent Fees for Legal Services, pp. 23 & 44; Cappel v. Adams, 434 F.2d 1278, 1279-1280 (5th Cir. 1970); United States v. Preston, 202 F.2d 740 (9th Cir. 1953) — Indian tribes not allowed to enter contingent fee contracts for certain claims. In the Cappel case, supra, Judge Wisdom used this langauge at pages 1279-1280 of 434 F.2d:

“ . . . Judge Murrah of the Tenth Circuit has well stated the applicable rule:
where an attorney recovers a fund in a suit under a contract with a client providing that he shall be compensated only out of the fund he creates, the court having jurisdiction of the subject matter of the suit has power to fix the attorney’s compensation and direct its payment out of the fund.
Garrett v. McRee, 10 Cir. 1953, 201 F.2d 250, 253. [Citing cases.] The sum determined to be a reasonable attorney’s fee is within the discretion of the district court; before a reviewing court should disturb the holding there should be a clear showing that the trial judge abused his discretion. Garrett v. McRee, 10 Cir. 1953, 201 F.2d 250, 254; Monaghan v. Hill, 9 Cir. 1944, 140 F.2d 31, 34. There is no such showing in this case.
“Splawn does not dispute the validity of these principles, but contends that they are inapplicable in a case in which the attorney has a valid contract fixing his fee. The action of the district court in these circumstances, Splawn argues, interferes with the right of the attorney and his client to establish the attorney’s fee by mutual agreement, ‘without being restrained by the law.’ We cannot agree.
“. . . [T] he right to contract for a contingent fee has never been thought to be unrestrained. . . . Contingent fee contracts have been especially subject to restriction when the client is a minor, largely because of the obvious possibilities of unfair advantage. Moreover, courts have refused to enforce contingent fee arrangements when the amount of the fee seemed excessive. .
“ . . . Judge Murrah did not condition his holding in Garrett v. McRee, supra, upon the non-existence of an express contingent fee arrangement ; indeed, it appears to have been argued specially that the attorneys involved had valid one-third contingent fee contracts.”

As recently as 1971, the Supreme Court of the United States has said in United States Bulk Carriers v. Arquelles, 400 U.S. 351, 355, 91 S.Ct. 409, 412, 27 L.Ed.2d 456 (1971):

“Seamen from the start were wards of admiralty. . . . The federal courts remained as the guardians of seamen, the agencies chosen by Congress to enforce their rights — a guardian concept which, so far as wage claims are concerned, is not much different from what it was in the 18th century.”

In Isbrandtsen Co. v. Johnson, 343 U.S. 779, at pp. 782, 783, 784, 72 S.Ct. 1011 at pp. 1014, 1015, 96 L.Ed. 1294 (1952), the court had said:

“Whenever congressional legislation in aid of seamen has been considered here since 1872, this Court has emphasized that such legislation is largely remedial and calls for liberal interpretation in favor of the seamen. The history and scope of the legislation is reviewed in Aguilar v. Standard Oil Co., 318 U.S. 724, 727-735, 63 S.Ct. 930, 932, 936, 87 L.Ed. 1107 and notes. ‘Our historic national policy, both legislative and judicial, points the other way [from burdening seamen]. Congress has generally sought to safeguard seamen’s rights.’ Garrett v. Moore-McCormack Co., 317 U.S. 239, 246, 63 S.Ct. 246, 251, 87 L.Ed. 239. ‘[T]he maritime law by inveterate tradition has made the ordinary seaman a member of a favored class. He is a “ward of the admiralty,” often ignored and helpless, and so in need of protection against himself as well as others. . . . Discrimination may thus be rational in respect of remedies for wages.’ [Citing cases.] ‘The ancient characterization of seamen as “wards of admiralty” is even more accurate now than it was formerly.’ TCiting cases.]
“Congressional legislation now touches nearly every phase of a seaman’s life. It concerns itself with his personal safety, comfort and health in many ways not necessary to review here. It deals specifically with his shipping articles and the payment to him of his wages.”

Also, in its supervisory power over the members of its bar, a court has jurisdiction of certain activities of such members, including the charges of contingent fees. See Gair v. Peck, supra; EC2-20, DR2-106(A) & (B)(8), EC5-7, and DR5-103(A) (2) of Code of Professional Responsibility of ABA; Peyton v. Margiotti, 398 Pa. 86, 156 A.2d 865, 867 (1959), where the court said “Contingent fees . . . are a special concern of the law . . . ”; New Jersey cases cited in McKinnon, supra, at note 61 on page 60, where the author states in the text (page 44):

“Some courts have, upon objection by the client to payment of a contingent fee, applied the usual stringent tests for contracts made between a fiduciary and cestui que trust. The attorney has the burden of showing absence of fraud and the reasonableness of the contract. In some cases the standard appears to be similar to that applied to a fiduciary’s contracts of other types. Other decisions seem to reflect a special concern with contingent fee contracts. In these, courts tend to review the fairness of the contract even if the evidence for reliance by the client to the attorney as to terms of the contract is quite thin.”

Rule 83 of the Federal Rules of Civil Procedure grants the district courts the power to “make and amend rules governing its practice,” and the Supreme Court of the United States has recognized the inherent power of such courts to take appropriate action to secure the just and prompt disposition of cases. See Link v. Wabash Railroad Co., 370 U.S. 626, 630-631, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962); Ex parte Peterson, 253 U.S. 300, 314, 40 S.Ct. 543, 64 L.Ed. 919 (1920). The district court had power to adopt the above-described rule of April 1971 insofar as it applies to a seaman’s personal injury action such as the suit of petitioner Hensler.

On the facts presented by this record, we hold that petitioners cannot rely simply on an allegation of the existence of a contingent fee agreement, which may have been dated after the establishment of the court’s tentative guidelines, to nullify such guidelines as “discriminatory, ulta vires and violative of due process” as a denial of petitioners’ contract rights (par. 10 of Petition).

As noted above, petitioners were given a hearing in the district court on their contention that plaintiff’s counsel was entitled to payment in accordance with the contingent fee agreement and no time records or other evidence supporting the fairness of that contingent fee agreement was supplied. Furthermore, no allegations or exhibits to the above-mentioned Petition filed in this court show the fairness of the $5,833.33 fee claimed by such counsel, even though the petitioners have the burden of proof in this application for a writ of mandamus and prohibition. See Solomon et al. v. Continental American Life Insurance Company et al. and Coolahan, 472 F.2d 1043, Opinion filed Jan. 23, 1973 (3d Cir.). There is no showing that the district court rule does any more than establish guidelines for reasonable fees in a case such as this, and petitioners had the opportunity to place in the record any special circumstances justifying the fee claimed by the attorney. Our holding in this case is narrowly limited solely to the situation presented by this record.

It is suggested that, in its regulation of seamen’s, as well as other, contingent fees by use of guidelines, the district court should give the members of its bar at some point, preferably as soon as possible since the guidelines have been in force for almost two years, an opportunity to present their views and factual data on such guidelines. Compare United Transportation Union v. Michigan Bar, 401 U.S. 576, 91 S.Ct. 1076, 28 L.Ed.2d 339 (1971), and cases there cited; M. Schwartz & J. Mitchell, “An Economic Analysis of the Contingent Fee in Personal Injury Litigation,” 22 Stanford L.Rev. 1125 (1970).

The petition will be denied.

      . The record does not make clear whether the contingent fee agreement between the petitioners was executed before or after the establishment by the district court of its guideline schedule (adopted on 4/20/71) of fees in personal injury actions for seamen (16a).

      . Paragraph 8 of the Petition states that “the amount of $625.00 represent [s] the difference between the fee agreed upon between plaintiff and his attorney, $5833.33, and the fee fixed by the Court, $5208.33, pending resolution of the- controversy (19a).”

      . This is a Report of the American Bar Foundation, published by Aldine Publishing Company, Chicago (1964).

      . The court acts in such cases under its equity jurisdiction over fiduciary relations.

      . In Gair v. Peek, supra, the court said at pages 51 & 53 of 160 N.E.2d:
      “The rule-making power is not limited to prescribing only for the specific ease after the event. The idea that imposition by lawyers on their clients, oppressive and unconscionable fee agreements or similar conduct is beyond the rule-making power of the court has no shadow of foundation. The idea is frivolous that disciplinary power over attorneys is unrelated to the exaction of excessive fees. Nor are the Appellate Divisions so helpless as to be denied the power of censure or of taking more incisive disciplinary action to curb the practice of excessive exactions against clients merely for the reason that the client himself has not elected to contest payment of the fee. The duty and function of the Appellate Divisions to keep the house of law in order does not hinge upon whether clients, worn down by injuries, delay, financial need and counsel holding the purse strings of settlement, knowing little about law or lawyers, have had the stamina to resist in court by hiring other lawyers to be paid out of the other half of the recovery for defending against the first lawyer.
      “ . . .It lay within the competence of the [Court] to adopt [the] rule . . . as a procedural aid in rendering effectual its disciplinary power over attorneys in the case of unlawful contingent fees. The so-called fee schedule merely determines where the burden of proof shall lie in the determination of the censurability of contingent fees in the individual case. Neither plaintiffs nor any segment of the Bar have a vested interest in the exaction of unlawful fees, which is all that this rule is fashioned to prevent, nor can they be heard to say that the Appellate Division is precluded from taking preventive measures for the reason that the client has decided not to litigate the fee. The contention that this is a fee-limiting measure is reduced to an argument that lawyers cannot be disciplined for accepting fees which would be uncollectible in court, if the clients defended on the ground that they are so out of proportion to the value of the work as to be unconscionable.”

      . Also in McKinnon, supra, at page 413, this language is used:
      “ . . . the general view in all jurisdictions seems to be that this right to make fee contracts is limited by the basic power of courts to prevent unprofessional conduct by its officers and the power of the legislature to regulate fees in the public interest.”

      . See, also, Pennsylvania cases supporting the disciplinary power of the court over the members of its Bar cited in In Re Schlesinger, 404 Pa. 584, 172 A.2d 835, 856 (1961) — dissenting opinion.


text:
    Simeon Toba ABIODUN et al., Plaintiffs-Appellants, v. MARTIN OIL SERVICE, INC., et al., Defendants-Appellees.
    No. 72-1501.
    United States Court of Appeals, Seventh Circuit.
    March 14, 1973.

      William J. Harte, Chicago, Ill., for plaintiffs-appellants.
    Reuben L. Hedlund, Roger Taylor, Bradley D. Steinberg, Chicago, Ill., for defendants-appellees.
    Before PELL, STEVENS and SPRECHER, Circuit Judges.
   PER CURIAM:

Plaintiffs have appealed from the entry of summary judgment in favor of the defendants as to alleged violations of the Thirteenth Amendment’s prohibition against involuntary servitude and from the dismissal of the complaint as to all other claims. The defendants have moved to affirm without oral argument, pursuant to Circuit Rule 22. We have reviewed the record and briefs and are satisfied that the issues presented on appeal are insubstantial.

Plaintiffs, four Nigerian citizens, signed contracts with Alpha-Niger Enterprises providing for training in the United States with Martin Oil Company and subsequent employment in Nigeria with Alpha-Niger. The contracts were signed by defendant, Harry Ayoade Akande, on behalf of Alpha-Niger. Plaintiffs allege that Akande represented himself as an agent of Martin Oil Service, Inc., with authority to select four or five persons who would be trained as executives in the United States and would then return to Nigeria to operate Martin Oil’s enterprises there. After the plaintiffs arrived in the United States and discovered that they were to be trained as service station operators and not as executives they filed this suit against Martin Oil Service, an Illinois corporation, two of its officers, the executors of the estate of one of the major shareholders, and Akande, a citizen of Nigeria.

Plaintiffs have advanced several theories to sustain federal jurisdiction. First, they claim jurisdiction under 28 U.S.C. § 1343 on the theory that the defendants’ conduct subjected them to peonage and involuntary servitude in violation of the Thirteenth Amendment and discriminated against them on the basis of race and national origin. A second jurisdictional claim, under 28 U. S.C. § 1350, is based on the theory that the defendants’ conduct constituted a tort in violation of the law of nations. A third jurisdictional allegation contained in the complaint, 8 U.S.C. § 1329, is not argued in plaintiffs’ brief on appeal. Finally, plaintiffs argue that the district judge should have exercised pendant jurisdiction over certain ancillary claims, under the doctrine developed in United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966).

The plaintiffs argue that summary judgment was improper on the Thirteenth Amendment claim because they were denied adequate discovery and because material issues of fact remained unresolved. Rule 56, F.R.Civ.P. The record before us conclusively refutes these claims. The complaint was filed March 11, 1971, and discovery was initially ordered closed by November 30, 1971. On the plaintiffs’ motion, the time for completion of discovery was extended to December 30, 1971, and again until January 6, 1972. According to the plaintiffs’ motion of November 19, 1971, seeking to extend discovery for an additional six months, the only discovery that they had undertaken to that date was a one-day deposition of Akande which was not completed. Prior to the close of discovery, however, the plaintiffs deposed eleven employees of the defendant Martin Oil and the defendant Akande; plaintiffs also gave over 2,000 pages of deposition testimony, and participated in a full exchange of documents. The motion for summary judgment was filed on January 4, 1972, and was supported by several affidavits and citations to deposition testimony. The plaintiffs admit that they failed to submit any affidavits or other documentary material in opposition. To avoid summary judgment on this ground, pursuant to Rule 56(e), they argue that the denial of their motion for extended discovery prevented them from pursuing discovery in Nigeria, which discovery would reveal information regarding the motivation of the defendants in undertaking the training program and the understanding of Nigerian officials with respect to the course of events. See Rule 56(f). However, in view of the amount of time which had already been afforded the plaintiffs, their delay in beginning discovery, and the vague and speculative nature of their assertion that further discovery in Nigeria would develop genuine issues of material fact, we find no error in the district judge’s refusal to further extend the time for completion of discovery. Cf. First National Bank v. Cities Services Co., 391 U.S. 253, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968).

Furthermore, nothing in the papers before the district judge on the motion for summary judgment presented a genuine issue as to any material fact so as to preclude summary judgment on the claim that plaintiffs were coerced to work against their will. The complaint alleged that the plaintiffs were in the United States “under a condition in the nature of peons performing involuntary servitude” because they could no longer find employment in Nigeria, their former jobs were unavailable, and they were required to reimburse Martin Oil for travel and other expenses. However, it was unrefuted that three of the plaintiffs are no longer employed by Martin Oil, that the fourth chose to remain although stating in his deposition that he was not prevented from leaving, that Martin Oil had written off any indebtedness, and that all had obtained changes in their visa category to that of “foreign student.” None sought work from any Nigerian employer other than their former employer, or requested the assistance of friends or relatives in Nigeria, or registered for work with any agency, or searched want ads in Nigeria. Plaintiffs also did not dispute defendants’ claim that they were paid union scale wages. Clearly the district judge was correct in his conclusion that there were no genuine issues of material fact on the Thirteenth Amendment claim.

Plaintiffs also assert jurisdiction under 28 U.S.C. § 1343, on the theory that they were discriminated against because of their status as aliens and members of a particular ethnic group, in violation of 42 U.S.C. § 1981. However, the complaint fails to allege any specific acts of discrimination based on race or national origin and is subject to dismissal on this basis. See, e. g., Kamsler v. Zaslawsky, 355 F.2d 526, 527 (7th Cir. 1966). Plaintiffs’ brief merely asserts that the entire contractual connection involved in this case can be viewed as a sophisticated form of discrimination, designed to exploit individuals handicapped due to their national origin. We find no error in the dismissal of the § 1981 claim.

Plaintiffs’ next jurisdictional allegation is based on 28 U.S.C. § 1350, which gives the district courts jurisdiction of civil actions by aliens for a tort only, committed in violation of the law of nations or a treaty of the United States. On its face, plaintiffs’ claim is for breach of contract. To avoid this conclusion, plaintiffs assert that the elements of fraud and deceit in the defendants’ conduct make this a claim sounding in tort. Even if this is a correct characterization of their claim, there is simply no basis for claiming a violation of the law of nations. Plaintiffs advance two arguments in this regard. First, they argue that transporting persons from one country to another and forcing them to work against their will violates the law of nations. This is merely an attempt to restate the Thirteenth Amendment claim which we have found to be without merit. Secondly, they argue that fraud is considered immoral and unlawful by all nations and thus is a violation of the law of nations. Although the concept of “law of nations” is an elusive one, there is nothing in the authorities cited by the plaintiffs that would support such an expansive interpretation of federal court jurisdiction under 28 U.S.C. § 1350. See Abdul-Rahman Omar Adra v. Clift, 195 F.Supp. 857 (D.Md.1961) and Lopes v. Schroder, 225 F.Supp. 292 (E.D.Pa.1963). In Lopes, the court concluded that the phrase “in violátion of the law of nations,” “means, inter alia, at least a violation by one or more individuals of those standards, rules or customs (a) affecting the relationship between states or between an individual and a foreign state, and (b) used by those states for their common good and/or in dealings inter se.” Supra at page 297. This case is totally unlike those cases in which violations of the “law of nations” have been held actionable. See Moxon v. Fanny, 17 Fed.Cas. p. 942, No. 9,895 (D.Pa.1793); Bolchos v. Darrel, 3 Fed.Cas. p. 810, No. 1,607 (D.S.C.1795); O’Reilly DeCamara v. Brooke, 209 U.S. 45, 28 S.Ct. 439, 52 L.Ed. 676 (1908); Khedivial Line, S.A.E. v. Seafarer’s International Union, 278 F.2d 49, 52 (2nd Cir. 1960).

Finally, the plaintiffs argue that the district court erred in refusing to exercise pendant jurisdiction over the contract claims. The Gibbs case, supra, states clearly that “pendant jurisdiction is a doctrine of discretion, not of plaintiff’s right,” and that “certainly, if the federal claims are dismissed before trial, even though not insubstantial in a jurisdiction sense, the state claims should be dismissed as well.” Supra at page 726, 86 S.Ct. at page 1139. Rosado v. Wyman, 397 U.S. 397, 90 S.Ct. 1207, 25 L.Ed.2d 442 (1970), cited by plaintiffs for the proposition that the Supreme Court has retreated from the rigid language in Gibbs regarding dismissal of federal claims before trial, dealt with a dismissal for mootness and not insubstantiality. We are convinced that there was no abuse of discretion in refusing to exercise pendant jurisdiction, after the disposition of the civil rights and law of nations claims.

Accordingly, the motion to affirm without oral argument is granted and the judgment of the district court is affirmed.


author: GOLDBERG, Circuit Judge:

text:
    M. M. MATTHEWS, Plaintiff-Appellee-Cross Appellant, v. DREW CHEMICAL CORPORATION, Defendant-Appellant-Cross Appellee.
    No. 72-1838.
    United States Court of Appeals, Fifth Circuit.
    March 9, 1973.
    As Modified on Denial of Rehearing and Rehearing En Banc April 24, 1973.

      William A. Gillen, Tampa, Fla., for appellant.
    W. H. Faulk, Jr., David A. Maney, Tampa, Fla., Jack W. Floyd, Greensboro, N. C., for appellee.
    Before GEWIN, GOLDBERG and DYER, Circuit Judges.
   GOLDBERG, Circuit Judge:

This is a diversity action that was brought by appellee, M. M. Matthews, to redress the allegedly wrongful termination on June 25, 1968 of his employment with appellant, Drew Chemical Corporation. Drew Chemical sought to justify its having fired Matthews by showing that on May 10, 1968, he had signed a contractual “memorandum of employment” that in either of two alternative ways prevented him from prevailing. First, the contract was alleged to have given both parties the right to terminate employment by merely giving notice to the other party. Secondly, Drew Chemical insisted that the contract required Matthews to submit work reports “as required," that Matthews explicitly refused to obey a direct order to submit his reports to a named district manager, and that therefore it was Matthews who breached the employment contract, not Drew Chemical.

At the trial below Matthews did not dispute the existence of the written “memorandum of employment.” Rather, he based his breach of contract claim on additional oral agreements that were allegedly entered into during February of 1966, well before the writing was signed, and that allegedly remained in effect at all times thereafter. Despite Drew Chemical’s insistence that an express integration clause contained in the written agreement barred the introduction of parol evidence regarding the terms and conditions of Matthews’ employment, such evidence was admitted. Testimony was received that indicated (1) the written termination clause had a previously agreed upon, oral, “for cause” requirement appended to it, and (2) the clause requiring Matthews to report “as required” had a similar prior appendage, an oral agreement that Matthews could always submit his reports to a certain company executive.

Although the usual pre-trial procedures were followed in the court below, neither party saw fit to advise the court of the impending and clearly foreseeable problem regarding the admission of parol evidence in the face of a written document. When the evidence was offered, the trial judge was thus forced to interrupt the trial, send the jury from the courtroom, hear argument, and then rule from the bench on the admissibility of the parol evidence. Matthews’ brief on appeal characterizes the trial judge’s ruling and the subsequent trial action as follows:

“Having determined that the writing, with respect to the intent of the parties, was equivocal, the trial court permitted oral testimony to determine what was that intent. The trial court then correctly determined that it was not the intent of the parties to embody their entire agreement in that writing. Having determined that it was not the intent of the parties to embody the entire agreement in the writing . . . the trial court submitted to the jury the responsibility of determining what was the agreement of the parties, taking into consideration not only the writing but also the testimony of the parties, as to the nature and extent of the agreement. The jury found for Matthews.

Each party raises several issues on this appeal, but we need reach only one. If notwithstanding any prior oral agreements the written termination clause gave Drew Chemical the power to terminate Matthews’ employment as it did, then as a matter of law Matthews cannot prevail on his breach of contract claim. We hold that on the facts of this case the written termination clause must control and that Drew Chemical is therefore entitled to judgment in its favor.

We begin our analysis by recognizing that even though a writing declares on its face that it is “integrated,” circumstances may well exist that justify receiving parol evidence to determine what the parties intended the document to be or mean. Regarding partial integrations, for example, the law is clear:

“The parol evidence rule does not preclude the introduction of evidence showing a prior or contemporaneous agreement if the writing, or writings, constitute only a partial integration of the agreement between the parties. That is, if the writings are but a partial integration of the agreement, the rest of the agreement, or collateral agreements, may be shown through parol.
“It follows, therefore, that where the issue is fairly raised by the evidence, the court must preliminarily and initially determine whether the writings in question were intended to, and do, constitute a complete integration of the agreement between the parties. For the purpose of making that preliminary determination, the parol evidence rule is inapplicable.

Walley v. Bay Petroleum Corp., 5 Cir. 1963, 312 F.2d 540, 543-544. See also South Florida Lumber Mills v. Breuchard, 5 Cir. 1931, 51 F.2d 490.

As a general proposition, then, there can be no error in a trial judge’s allowing parol testimony into evidence in the first instance. See, e. g., Ivy H. Smith Co. v. Moretrench Corp., 5 Cir. 1958, 253 F.2d 688 (writing itself stated that it “contains all of the agreement”). Thus, we cannot say that it was improper for the judge below to have heard parol evidence regarding the intent of the parties as to whether this document was to be a total integration of Matthews’ employment contract. But the matter cannot be put to rest by making that determination. The real issue in these cases is whether the parol evidence could permissibly be used during the trial in the manner in which it was employed. Here, Matthews was allowed to convince the jury that, in light of their prior oral agreement, when the parties wrote “Employment may be terminated at any time by either party to this Agreement giving notice to the other party,” they were really agreeing that “Employment may be terminated at any time by either party to this agreement giving notice to the other party, but employer shall have the power to exercise this right to terminate only if he can show good cause for terminating employee’s employment.” We find that it was error to allow the parol evidence to be put to this use.

The parol evidence rule is a matter of substantive law, and it clearly prohibits the use of prior or contemporaneous agreements to alter the terms of or add inconsistent provisions to a written contract:

“Undoubtedly, the existence of a separate oral agreement as to any matter on which a written contract is silent, and which is not inconsistent with its terms, may be proven by parol, if, under the circumstances of the particular case, it may properly be inferred that the parties did not. intend the written paper to be a complete and final statement of the whole of the transaction between them. But such an agreement must not only be collateral, but must relate to .a subject distinct from that to which the written contract applies; that is, it must not be so closely connected with the principal transaction as to form part and parcel of it. And when the writing itself upon its face is couched in such terms as import a complete legal obligation, without any uncertainty as to the object or extent of the engagement, it is conclusively presumed that the whole engagement of the parties [as to that event], and the extent and manner of their undertaking, was reduced to writing.”

Seitz v. Brewers’ Refrigerating Machine Co., 1891, 141 U.S. 510, 517, 12 S.Ct. 46, 47, 35 L.Ed. 837, 840; Squires v. Kilgore, 1926, 92 Fla. 1001, 111 So. 113; Waters v. Southern Asphalt & Constr. Co., 1914, 67 Fla. 440, 65 So. 457; McNair & Wade Land Co. v. Adams, 1907, 54 Fla. 550, 45 So. 492. See also Asphalt Paving, Inc. v. Ulery, Fla.App. 1963, 149 So.2d 370.

The Supreme Court’s decision in Seitz v. Brewers’ Refrigerating Machine Co., supra, makes clear that parol evidence cannot be used to vary one of the written terms of a partially integrated document where the particular term is “complete and perfect on its face, without ambiguity . . .” 141 U.S. at 517, 12 S.Ct. at 48, 35 L.Ed. at 840. We hold that on the facts of this case, the written contract, be it characterized as a total or only a partial integration, unambiguously defined the sole borders of Drew Chemical’s contractual power to terminate Matthews’ employment. Even where parol evidence has been admitted to show some general or specific intent, that evidence may not be used to change the meaning of whatever unambiguous terms do appear in the writing.

The written contract answers the question “How may either party terminate this relationship?” by unequivorcally saying “By giving notice.” No mention or intimation of additional requirements is made, and it can hardly be said to be consistent with that “answer” to add “and by proving that good cause exists.” As Florida states its rule:

“The chief and most satisfactory index to determine the intent of the parties to an agreement as to whether they intended their written contract to be a complete and final statement of the whole transaction is whether or not the particular element of the alleged extrinsic negotiation is dealt with at all in the writing. If it is mentioned, covered, or dealt with in the writing, then presumably the writing was meant to represent all of the transaction on that element.”

Greenwald v. Food Fair Stores Corp., Fla.App.1958, 100 So.2d 200, 202.

If a contract provides in writing for a term of “Ten years from date” but is silent as to salary, the salary could be supplied by parol — but the term for which the salary is to be paid could not be shown to be something inconsistent with the ten years. The conditions of termination are here unambiguously written, without allegations of duress, uninduced by fraud, and not with omissions due to mistake. Although under certain conditions parol evidence may be used to supplement a partially written but unintegrated contract, such testimony cannot disintegrate the unimpeachable portions of the written partial integration. An unintegrated written contract having a positive element or term cannot be negatived by parol proof of a contradictory and inconsistent positive that was existent before the writing was signed. The case is reversed and remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.

      . In addition to the diversity claim, Matthews also alleged a cause of action under the Federal Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. A jury verdict adverse to Matthews was returned on that portion of the suit, however, and he has not appealed from that part of the judgment.

      . In the years immediately preceding Matthews’ dismissal, several such documents were signed. Bach is labelled “MEMO OF EMPLOYMENT AGREEMENT” and sets forth miscellaneous features of the relationship between the parties including, inter alia, specifically captioned terms regarding the following: remuneration, bonus, expenses, duties, territory, equipment, reports, and termination of employment. The terms with which we are here concerned remained essentially the same during the years in question.

      . The document provided as follows :
      “Employment may be terminated at any time by either party to this Agreement giving notice to the other party.”

      . The document provided as follows:
      “Employee agrees to furnish Company with daily reports covering his work; a weekly recap sheet; and other routine reports as required.”

      . Matthews admits that he so refused to comply. Indeed, on May 25, 1968, Matthews advised Drew Chemical by letter that he considered the order directing him to send the reports and other paperwork to the new district manager to be improper, see note 9 infra, and added:
      “ . . .1 will not work for or under [the new district manager] at any time. . I do hope that you will not terminate me, but I cannot work for or under [him]. I feel very strong on this point. I will just have to be terminated if this point is forced, for I have come to' a point of no return on this now

      . The dispute regarding where Matthews should submit his work reports had precipitated a series of letters to and from the company. In response to the letter partially reproduced in note 5, supra,
        Drew Chemical advised Matthews that if he did not retract the letter within one week, the company would consider it his resignation and would arrange for an immediate severance. Matthews chose not to comply and Drew Chemical advised him that it was terminating his employment.

      . The document provided as follows:
      “This Agreement supersedes any prior existing Agreement or understanding, and it will be reviewed annually.”

      . Matthews testified that in February of 1966 he was orally promised that he could remain with Drew Chemical until retirement age “so long as he did not give Drew cause for his discharge.”

      . Matthews testified that in February of 1966 he was orally promised that he would always have a special reporting privilege. The dispute arose when the company ordered Matthews to submit his reports to the man who had replaced him as district manager, a man whom Matthews had hired and trained. Matthews refused to submit his reports to the new manager and chose instead to stand on his assertion that the company had specifically promised him that he could always submit his reports to a different person.

      . The commentators agree that parol evidence problems should be viewed as having these two separate steps. E. g., IX Wigmore on Evidence §§ 2430, 2431; Simpson on Contracts § 65; 4 Williston on Contracts §§ 609, 618, 629, 633. See also Restatement of Contracts § 238(a).

      . IX Wigmore on Evidence § 2400. See also Restatement of Contracts § 237, Comment a.

      . It appears that Matthews’ suit also included a claim, for commissions earned prior to his termination, which, if meritorious, could justify a recovery notwithstanding our holding here.


author: WATERMAN, Circuit Judge:

text:
    Stark RITCHIE, Plaintiff-Appellant, v. Ralph LANDAU, Defendant-Appellee.
    Docket No. 72-1672.
    United States Court of Appeals, Second Circuit.
    Argued Nov. 30, 1972.
    Decided March 14, 1973.

      Vincent L. Broderick, C. Douglas Webb, Forsyth, Decker, Murray & Broderick, New York City, for plaintiff-appellant.
    Guy C. Quinlan, Caesar L. Pitassy, Royall, Koegel & Wells, New York City, for defendant-appellee.
    Before FRIENDLY, Chief Judge, and WATERMAN and HAYS, Circuit Judges.
   WATERMAN, Circuit Judge:

Plaintiff-appellant, a lawyer, commenced this diversity action in the United States District Court for the Southern District of New York by filing a complaint on November 18, 1970, in which he named two defendants, first, Ralph Landau, a 43% stockholder in Halcon International, Inc., its president and its chief operating officer, and, second, Halcon International, Inc. (Halcon) a Delaware corporation engaged in the petrochemical business. Plaintiff set forth in the complaint that he had been employed by Halcon, first in its legal department and later as its general counsel, and that he had executed a two year renewal of his employment contract with it because Landau, both individually and as president of Halcon, had promised him a substantial bonus if Halcon obtained recoveries from certain Italian corporations with which Halcon had licensing agreements. Plaintiff set forth that through his labors and pursuant to his advice Halcon had initiated a suit in the Southern District of New York against these Italian corporations seeking damages for their violations of Hal-con’s licensing agreements with them, and the alleged bonus was to be paid if plaintiff was successful in persuading the United States Department of Commerce, Office of Export Control, to issue a “charging letter” against the Italian corporations which Halcon was claiming had reexported Halcon’s petrochemical processes to Czechoslovakia in violation of both the United States export control laws and the licensing agreements between the Italian corporations and Hal-con. The “charging letter” was issued and, fourteen months later, partially as a result of plaintiff’s efforts, Halcon recovered $8,500,000 from .these Italian concerns in an out of court settlement. No satisfactory bonus having been offered or paid to him and his employment having been terminated, Ritchie sued both defendants in both contract and quantum meruit, claiming the total damages of $2,112,000 in each count, asserting that this was a fair sum in view of Halcon’s $8,500,000 recovery against the Italian concerns.

After the complaint was filed defendant Halcon commenced a proceeding in the American Arbitration Association pursuant to an arbitration clause in plaintiff’s employment contract with Halcon, seeking a declaration that plaintiff was not entitled to the bonus for which he had brought suit in district court. Court proceedings as to Halcon were ordered stayed until arbitration had been had. Concurrently, Landau filed a motion to dismiss the complaint as to him, and this motion was held in abeyance, on consent of the parties, pending arbitration.

Plaintiff then submitted his claim against Halcon to the arbitration panel. He counterclaimed for the total bonus of $2,112,000 which he had demanded in his district court complaint. After three days of detailed proceedings, the arbitrators reduced plaintiff’s claim and awarded him aboUtrs of $200,000 with costs of $5450 “in full settlement of all claims and counterclaims submitted to this Arbitration.” On plaintiff’s motion this award was confirmed and reduced to judgment in the New York State Supreme Court, and Halcon paid the judgment.

Thereupon the counts against Halcon in the district court action were dismissed, leaving the counts against Landau in his individual capacity awaiting decision upon Landau’s motion to dismiss them. Before finally ruling on that motion the court permitted Ritchie to file an amended complaint.

In the amended complaint, Ritchie, alleging the same facts which were alleged in the original complaint and which were presented to the arbitrators, sought from Landau the same damages of $2,112,000, reduced by the $200,000 paid by Halcon. In addition to these restated counts in contract and quantum meruit, Ritchie added an additional count in which he alleged that Landau had fraudulently and deceitfully induced him to execute the two year extension of his employment contract on the promise that he would be paid a substantial bonus — a promise which Ritchie alleged' Landau never intended to keep — and, in addition to his claim for $1,912,000 compensatory damages, he additionally sought in this new cause of action $500,000 in punitive damages and $99,000 for attorneys’ fees and litigation expense.

Defendant Landau moved, pursuant to Rules 12(b)(6) and 56 of the Fed.R. Civ.P., to dismiss the amended complaint. The trial judge found that the realleged contract and quantum meruit claims relative to the bonus issue had already been litigated and reduced to judgment in the arbitration proceeding, and he held that by the application of the doctrine of collateral estoppel plaintiff was therefore estopped from reasserting them a second time. He also dismissed the post-arbitration cause of action sounding in fraud, in which Ritchie had alleged that he had been fraudulently induced to extend his employment contract, for he found that this newly pleaded cause of action was only a semantic ploy to circumvent the collateral estoppel defense.

In a diversity action in federal court the state law is controlling on the question of the applicability of the collateral estoppel doctrine to a given set of circumstances. Breeland v. Security Insurance Co. of New Haven, Conn., 421 F.2d 918 (5 Cir. 1969); Priest v. American Smelting and Refining Company, 409 F.2d 1229 (9 Cir. 1969); Graves v. Associated Transport, Inc., 344 F.2d 894 (4 Cir. 1965); Blum v. William Goldman Theatres, 174 F.2d 914 (3 Cir. 1949).

After a careful review of the entire record and after applying the New York law of collateral estoppel to the facts as pleaded by plaintiff and as developed on the record, we conclude that the judgment below should be affirmed.

In this appeal defendant Landau raises the defense of collateral estoppel against Ritchie on the ground that Ritchie has already had a fair opportunity to litigate his claim for his bonus in the arbitration proceeding. At that time Ritchie testified extensively on his own behalf and he also cross-examined Landau and other hostile witnesses. In fact, Ritchie appears almost to concede that under the present New York rule which has relaxed an older more rigid concept of “mutuality,” Landau is not precluded from raising the collateral estoppel defense despite the fact that technically he was not a named party to the arbitration proceeding which had been initiated by the corporate defendant. In order to avoid the fatal effects of the defense, however, Ritchie now argues that the claim presented to the arbitrators was for only a part of the bonus he had sought, i. e., a part owed by Halcón, and that he has never received a fair hearing on the other part, a bonus portion allegedly owed by Landau personally. This belated contention is belied by the clear state of the record. At no time prior to the arbitration proceeding, or during the arbitration proceeding, did plaintiff contend that the bonus claim was divisible into two parts and that only one of them was being arbitrated. Although the original complaint filed in district court contained four counts, two against Halcon as a corporate defendant and two against Landau individually, the clear implication of the complaint is that Halcon and Landau are being sued for the same bonus that Landau allegedly orally promised Ritchie. Indeed, the amount of relief requested in each of the four counts is $2,112,000, the total amount of the alleged bonus — not a portion thereof. Likewise, the complaint submitted by Ritchie to the panel of arbitrators does not indicate that he is seeking an award of only a part of his claim. If Ritchie had been presenting the arbitrators with only “part” of the total relief he desired, his counterclaim would surely have contained explicit language to this effect, and the award which he demanded would have been for a proportionate part of the total, for only the corporation’s share of the $2,-112,000. Moreover, our detailed examination of the transcript of the arbitration proceedings uncovers nothing which suggests that the arbitrators believed they were adjudicating only part of the bonus claim. No testimony was introduced by either party on the issues of any “partial or proportional liability,” or, if any bonus were owed to Ritchie, what part of it was owed by Halcon and what part by Landau individually. The plain language of the arbitrator’s award seems dispositive of this issue. It states: “This Award is in full settlement (emphasis added) of all claims and counterclaims submitted to this Arbitration.” The counterclaim sought an award of $2,112,000 and the Arbitrators disposed of it by allowing $200,000. We find no merit to plaintiff’s contention that there lurks within the bonus claim' an unidentified proportionable divisibility between Halcon and Landau.

By the amended complaint plaintiff seeks to litigate the entire bonus issue a second time. However, he has had a full and fair opportunity to litigate it, and we agree with the court below that he cannot now relitigate it. Even if it were to be concluded that there is a “failure of mutuality” here — a . point about which we have serious doubt but need not decide- — under New York law Landau’s defense of collateral estoppel can prevail despite the fact that he was not a party to the arbitration proceeding in an individual capacity. The New York Court of Appeals has referred to the doctrine of mutuality as a “dead letter.” B. R. De Witt, Inc. v. Hall, 19 N.Y.2d 141, 278 N.Y.S.2d 596, 225 N.E. 2d 195 (1967). In determining whether one not a party to a prior proceeding can successfully raise the defense of collateral estoppel as to an issue which had been litigated in that prior proceeding-, New York State has adopted the “full and fair opportunity” test. Under this test the defense is available if the party against whom it is raised has had a. full and fair opportunity to contest the issue in a prior action and the issue which was decided in the prior action is identical to the issue which is to be decided in the action in which the defense is raised. Schwartz v. Public Adm. of County of Bronx, 24 N.Y.2d 65, 298 N.Y.S.2d 955, 246 N.E.2d 725 (1969); James Talcott, Inc. v. Allahabad Bank, Ltd., 444 F.2d 451 (5 Cir. 1971)), cert. denied, 404 U.S. 940, 92 S.Ct. 280, 30 L.Ed.2d 253 (1972). Here the defense is available to Landau. Ritchie was provided a fair opportunity to litigate his entire bonus claim in the arbitration proceeding, he did so, the award of the arbitrators reduced the amount he sought but gave him a recovery, the award was confirmed by the Supreme Court of New York on November 23, 1971, and the award has been paid in full. More than this the judicial process is not required to provide to disappointed claimants. In a similar situation to the present one we have held that one not a named party to an arbitration proceeding can successfully rely in defense of a court action upon the collateral estoppel doctrine when the party suing him had been given a full opportunity to litigate the issue in the prior arbitration proceeding. Goldstein v. Doft, 236 F.Supp. 730 (SDNY 1964), aff’d 353 F.2d 484 (2 Cir. 1965), cert. denied, 383 U.S. 960, 86 S.Ct. 1226, 16 L.Ed.2d 302 (1966); see Israel v. Wood Dolson Co., 1 N.Y.2d 116, 151 N.Y.S.2d 1, 134 N.E. 2d 97 (1956). Although plaintiff attempts to distinguish Goldstein v. Doft, supra, on the ground that plaintiff Goldstein “lost” in the arbitration proceedings, while plaintiff Ritchie “won,” this attempted distinction is clearly without merit. The critical fact in both cases is that the plaintiffs were given one opportunity to litigate their claims for compensation before the arbitrators; and one opportunity is all they are entitled to have. See Cohen v. Dana, Sup., 83 N.Y.S.2d 414 (1948), aff’d, 300 N.Y. 608, 90 N.E.2d 65 (1949).

Plaintiff also contends that, irrespective of a disposal adverse to him of his contract and quantum meruit claims against Landau, his newly raised fraud cause of action should not summarily be dismissed because the fraud claim had not been raised in the arbitration proceeding. Aside from the question of whether plaintiff has waived his right to raise this at this late stage, we conclude that the court should not now entertain the issue. Although fraudulent inducement to enter into a contract is actionable in tort in New York State and can be raised in addition to any claims for compensatory damages arising from the breach of the contract, (see, e. g., Sabo v. Delman, 3 N.Y.2d 155, 164 N.Y.S.2d 714, 143 N.E.2d 906 (1957); Werblud v. Mehadrin Dairy Corporation, 11 Misc.2d 167, 169 N.Y.S. 2d 465 (1957)), the plaintiff must be able to show actual damages resulting from the fraud which are distinguishable from the damages which he has already recovered in a prior adjudicatory proceeding. Even assuming plaintiff could prove that Landau made a promise of a bonus which Landau never intended to perform and thereby fraudulently induced plaintiff to execute the second two-year employment contract, the $200,000 recovery would estop any claim for compensatory damages, since the making of the promise was as deliberately denied by Halcón as it was by Landau.

In this additional post-arbitration cause of action which Ritchie has pleaded he seeks to recover “$99,000, representing attorneys’ fees, travel and litigation expenses and lost time.” He also alleges that “In addition, exemplary damages should be assessed against defendant in the amount of $500,000.”

Our above disposition of this belatedly pleaded cause of action disposes as well of these claims for special damages for they, if recoverable at all, would only be recoverable if there were no valid defense to the cause of action itself.

Affirmed.

      . The bonus Ritchie claimed he -was entitled to was $2,125,000, twenty-five per cent of $8,500,000. However, inasmuch as Landau had allegedly advanced $13,000 the remainder which was claimed was $2,-112,000.

      . One who, though not a party of record, controls in furtherance of his own self interest the conduct of adjudicatory proceedings by or against another is bound by the result of the proceeding. See Developments in the Law of Res Judicata, 65 Harv.L.Rev. 818, 856. Although Landau, a 43% stockholder and chief operating officer of Halcon, was not a named party to the arbitration proceeding he clearly participated as an active “non party.” He testified at length on behalf of Halcon and, as president of Halcon, he effectively controlled the development of Halcon’s litigation. Moreover, as a substantial stockholder of Halcon, codefendant with it, and potential joint obligor on the alleged promise to Ritchie, he was obviously participating in the arbitration proceedings in order to protect his own self interest. Although ordinarily a stockholder is not bound by determinations made against his corporation, in the circumstances of this case Landau would probably be bound by the award against it. See Souffront v. Campagnie des Suereries, 217 U.S. 475, 486-487, 30 S.Ct. 608, 54 L.Ed. 846 (1910); Minneapolis-Honeywell Regulator Co. v. Thermoco, Inc., 116 F.2d 845 (2 Cir. 1941); Cohen v. Lewis, 31 Misc.2d 689, 221 N.Y.S.2d 884 (1961); Horn v. Bennett, 253 A.D. 630, 3 N.Y.S.2d 525 (1938). Essentialy, the doctrine of collateral estoppel is a rule of justice and fairness, and we can ascertain no ground for holding that Landau would not be bound if the situation were reversed and Ritchie were raising the collateral estoppel defense against him. Commissioners of the State Insurance Fund v. Low, 3 N.Y.2d 590, 595, 170 N.Y.S.2d 795, 798, 148 N.E.2d 136 (1958).

      . The fact that the arbitration forum is not plaintiff’s forum is irrelevant under the New York test so long as the conduct of the proceeding before the arbitrators was fair. See B. R. DeWitt, Inc. v. Hall, 19 N.Y. 2d 141, 278 N.Y.S.2d 596, 225 N.E.2d 195 (1967). There has been no allegation that the conduct of the arbitration proceeding in this case was unfair to the plaintiff.

      . Goldstein was decided prior to the more recent formulations of the New York rule in B. R. DeWitt, Inc. v. Hall, supra, and Schwartz v. Public Adm. of County of Bronx, 24 N.Y.2d 65, 298 N.Y.S.2d 955, 246 N.E.2d 725 (1969). Insofar as these decisions relax the need for strict mutuality they clearly strengthen the decisional doctrine of Goldstein v. Doft.

      . It can be strongly argued that plaintiff had an obligation in these circumstances to consolidate into a single proceeding all of his causes of action and to raise in one complaint all the claims which he could reasonably foresee could arise out of the same transaction. Armstrong v. White Plains Council of Girl Scouts, 30 A.D. 2d 818, 292 N.Y.S.2d 813, aff’d, 24 N.Y.2d 748, 299 N.Y.S.2d 846, 247 N.E.2d 662 (1968). Courts should not permit the splitting of causes of action when the result of doing so could result in vexatious litigation for the defendant and an undue clogging of the dockets of the court. Plaintiff’s excuse here that he could not have raised the late-pleaded fraud claim earlier is not persuasive. He states he was not aware of the possibility of fraud until he heard Landau testify before the arbitrators that he never promised a bonus to Ritchie. Surely, when he commenced his action, begun before any testimony was taken in the arbitration proceedings, Ritchie knew or had reason to know that a defense that no bonus arrangement was ever made or was ever planned to be paid would likely be raised.