author: FEIKENS, Chief Judge.

text:
    Frances REID, Plaintiff, v. The UNIVERSITY OF MICHIGAN, Defendant.
    No. 84-CV-7365-AA.
    United States District Court, E.D. Michigan, S.D.
    June 28, 1985.

      Frances Reid, in pro per.
    Robert M. Vercruysse, Butzel, Long, Gust, Klein & Van Zile, Detroit, Mich., for defendant.
   OPINION AND ORDER

FEIKENS, Chief Judge.

This action is brought pro se by Frances Reid (“plaintiff”) alleging that the University of Michigan discriminated against her on the basis of race and sex in denying her tenure as a professor. Defendant has moved for dismissal or summary judgment claiming that the alleged discrimination occurred more than 300 days before the filing of plaintiffs complaint with the Equal Employment Opportunity Commission (“EEOC”) and this action is thus time-barred by section 706(e) of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(e) (1982). After considering the parties’ legal arguments and supporting affidavits with great care, I conclude that the motion for summary judgment or dismissal must be denied.

I. BACKGROUND

Before stating the facts pertinent to this motion, I will note certain undisputed points in order to focus the issue before me. Plaintiff filed a complaint with the EEOC on February 22, 1980. Defendant argues that such an action must be filed within 300 days after the alleged unlawful employment practice occurred or plaintiff’s claim will be time-barred, 42 U.S.C. § 2000e-5(e) (1982), and plaintiff does not contest this claim. Hence, defendant is claiming it is entitled to summary relief unless plaintiff alleges that unlawful discrimination occurred on or after April 29, 1979, and I find that these allegations are sufficient to create a genuine issue of material fact.

Determining whether an "unlawful employment practice” occurred within the actionable period in this case is not an easy matter. As I will elaborate, the decision-making process challenged here began in 1977 and—in plaintiffs view—did not end until early 1980. Defendant’s position is that its decision to deny plaintiff tenure was made in December, 1977, and subsequent proceedings were merely unsuccessful attempts by plaintiff to obtain reconsideration and reversal of this decision.

In chronicling the different steps in this decision-making process and indicating when the alleged discrimination occurred, I must consider the evidence in the record “together with all inferences to be drawn therefrom ... in the light most favorable to the party opposing the motion” for summary disposition. Watkins v. Northwestern Ohio Tractor Pullers Association, 630 F.2d 1155, 1158 (6th Cir.1980). “The movant’s papers are to be closely scrutinized while those of the opponent are to be viewed indulgently.” 630 F.2d at 1158. This indulgence is particularly important in a case such as this where the plaintiff is proceeding pro se. See Caston v. Sears, Roebuck & Co., 556 F.2d 1305, 1310 (5th Cir.1977) (“District courts should be sensitive to the problems faced by pro se litigants and innovative in their responses to them.”). To prevail on this motion, defendant must show “conclusively that there exists no genuine issue as to a material fact.” Watkins, 630 F.2d at 1158.

Plaintiff acknowledges that the Political Science Department at defendant University decided not to grant her tenure on December 16, 1977 (and gave her written notification of this decision on May 8, 1978). During the ensuing year, plaintiff sought reconsideration of this decision, and at one point the Executive Committee of the Political Science Department recommended that plaintiff be given a temporary appointment. These efforts to improve plaintiff’s employment status at the University were ultimately rejected and plaintiff was informed on at least two occasions that her employment with defendant would end with the 1978-79 academic year.

Plaintiff then decided to grieve defendant’s tenure decision. On August 31, 1979, a grievance committee found that while there was no showing of impropriety in the original tenure decision, there were “allegations of sexual misconduct against [plaintiff] in January 1978 [that] were intended to, and did indeed, derail what would have been a normal appeal for reconsideration____ All events after January 13, 1978 were affected by it.” Plaintiff’s Response Brief, Document S. Consequently, the committee concluded that plaintiff’s grievance was valid and recommended that she be reconsidered for tenure within the Department. This recommendation was endorsed by the Executive Committee for the College of Literature, Science, and the Arts (“LSA”). The LSA Executive Committee emphasized that because of the “exceptional nature of the case” some modifications from regular procedures might be necessary to guarantee a fair reconsideration of the tenure decision. In particular, it recommended that consideration be given to “extraordinary ways in which political scientists external to the Department and/or the University can be involved” in evaluating plaintiffs scholarship and in making recommendations on that facet of her qualifications for tenure. Plaintiffs Response Brief, Document U.

The documents and affidavits submitted by plaintiff support plaintiffs contention that from December, 1979, through January, 1980, defendant made a de novo decision on plaintiffs tenure (at the very least, they raise a question of fact on this point). See Affidavit of Lawrence B. Mohr; Affidavit of Frances S. Reid; Plaintiffs Response Brief, Document V. This evidence indicates that political science professors outside the University were solicited to review plaintiffs record and make recommendations on tenure. The final tenure decision was made by defendant. On January 17, 1980, plaintiff was notified that her position with defendant was terminated as of August 31,1979. On February 14, 1980, she was further notified that the LSA Executive Committee had decided against granting her tenure.

Plaintiff filed an EEOC complaint on February 22, 1980. On August 1, 1984, after receiving a right to sue letter from the EEOC, plaintiff filed the action now before me. She alleges in her complaint that her qualifications were as strong or stronger than those of males and non-minorities accepted for tenure, that the tenure decision was prejudiced by false accusations that she had secured support for her tenure by granting sexual favors, and that these slanderous allegations were made again and negatively affected the de novo consideration of plaintiffs tenure petition.

Defendant then filed this motion arguing that plaintiff’s claims were time-barred as a matter of law. A hearing on the motion was scheduled but plaintiff did not appear. The Court contacted plaintiff by telephone to determine whether she intended to pursue the case and, if so, to instruct her to either make an appearance before the Court, or submit affidavits, to indicate the specific acts of discrimination that she claims occurred within the actionable period. As plaintiff stated her preference to file affidavits in lieu of a hearing on the motion, and has filed the requested affidavits, I am now prepared to rule on the motion.

II. DISCUSSION

As I have indicated, the parties agree that plaintiff must allege that an unlawful employment practice occurred on or after April 29, 1979. In arguing that the discriminatory event being challenged here occurred before that date, defendant relies on the rule articulated in Delaware State College v. Ricks, 449 U.S. 250, 101 S.Ct. 498, 66 L.Ed.2d 431 (1980). In Ricks, the United States Supreme Court held that the unlawful employment practice in the case before it occurred “at the time the tenure decision was made and communicated” to the plaintiff; the actual termination of the plaintiff was merely a consequence of that decision and did not constitute continuing or independently actionable discriminatory conduct. Because the unlawful employment practice complained of—the tenure decision—did not occur within the actionable period (in that case, within 180 days of the filing of the EEOC complaint), the action was time-barred.

The Court rejected the plaintiff’s contention that the pendency of grievance proceedings tolled the running of the limitations period. The Court reasoned that these proceedings did “not suggest that the earlier decision [denying tenure] was in any respect tentative. The grievance procedure, by its nature, is a remedy for a prior decision, not an opportunity to influence that decision before it is made.” 449 U.S. at 261, 101 S.Ct. at 506. See also Kessler v. Board of Regents, 738 F.2d 751 (6th Cir.1984); Garland v. Shapiro, 579 F.Supp. 858 (E.D.Mich.1984); Beamer v. Regents of the University of Michigan, No. 81-73113 (E.D.Mich.1982).

Defendant argues that Ricks is controlling here. According to defendant, if there was an unlawful employment practice in this case it occurred at the time plaintiff was notified that tenure was denied; subsequent grievance proceedings constituted neither continuing discrimination nor a discriminatory event that might be viewed as independent of the original tenure decision.

Defendant’s analysis ignores a significant difference between this case and Ricks. In this case, defendant decided that its original decision-making process was flawed and then made a de novo tenure decision within the actionable period. In contrast, in concluding that the unlawful employment practice in Ricks occurred on June 26, 1974 (before the actionable period), the Supreme Court explained that:

By June 26, the tenure committee had twice recommended that Ricks not receive tenure; the Faculty Senate had voted to support the tenure committee’s recommendation; and the Board of Trustees formally had voted to deny Ricks tenure. In light of this unbroken array of negative decisions, the District Court was justified in concluding that the College had established its official position—and made that position apparent to Ricks —no later than June 26, 1974.

449 U.S. at 262, 101 S.Ct. at 506 (emphasis added) (footnotes omitted). The importance of this difference must be carefully considered in view of the admonition in Ricks that “[cjomplaints that employment termination resulted from discrimination can present widely varying circumstances ____ The application of the general principles discussed herein necessarily must be made on a case-by-case basis.” 449 U.S. at 258 n. 9, 101 S.Ct. at 504 n. 9.

On the facts alleged in this case, I think plaintiff is entitled to show that defendant discriminated against her when, after a de novo tenure decision, it denied her tenure and notified her of this fact early in 1980. Plaintiff alleges that in this tenure decision she was treated differently than males and non-minorities both procedurally (because a more burdensome decision-making process was employed) and substantively (because innuendos that arguably were sex-based influenced the decision-makers and, as a result, plaintiff was denied tenure even though she was more qualified than males and non-minorities who have been granted tenure). If plaintiff can prove that the de novo decision was discriminatory in these respects, that decision would be an unlawful employment practice occurring within the actionable period. Ricks expressly indicates that even where a tenure decision was made earlier, the limitations period will commence at the date of discharge where “the manner in which ... employment was terminated differed discriminatorily from the manner in which the College terminated other professors who also had been denied tenure.” 449 U.S. at 258, 101 S.Ct. at 504. The same conclusion is required when such discriminatory treatment infects a de novo tenure decision.

A different result would, in effect, require plaintiffs to commence suits against institutions such as this defendant even when the defendant has acknowledged irregularities in its original decision and agreed to proceed de novo. Requiring plaintiffs to bypass the administrative process by initiating litigation in these circumstances would be completely incongruous with the wealth of case law demanding exhaustion of administrative remedies. Indeed, the wisdom of allowing the administrative process to run its course is especially compelling when university tenure decisions are at issue, for such decisions necessarily call on the expertise of the university in a very difficult, and perhaps somewhat subjective, matter.

In short, I conclude that plaintiff is entitled to challenge sex or race discrimination in defendant’s de novo tenure decision in early 1980. I also conclude that plaintiff has made sufficient allegations of discrimination in the de novo decision to raise a genuine issue of fact. Although many of plaintiff’s allegations are highly conclusory, plaintiff has alleged those facts which she must prove to establish a prima facie case of unlawful discrimination in the de novo decision: she is a member of a protected minority; she applied and was qualified for a tenured position that was open at the University; and despite her qualifications, she was rejected. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973). While defendant is entitled to show, in rebuttal, that it had a legitimate reason for denying plaintiff tenure—e.g., that her qualifications were inadequate—dismissal or summary judgment in this case cannot be predicated simply on this assertion. In light of the allegations in plaintiffs complaint and supporting affidavits—as well as the leniency that is required when a pro se Title VII plaintiff appears before the Court—I conclude that plaintiff has raised a genuine issue of material fact and this dispute must be resolved by a trial.

In closing, I will offer some guidance to plaintiff as to how the trial will proceed. “[PJlaintiff has the burden of proving by the preponderance of the evidence a prima facie case of discrimination.” Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 1093, 67 L.Ed.2d 207 (1981). I have already articulated the proof that McDonnell Douglas indicates will establish a prima facie case. See note 2 supra and accompanying text. I should add that the elements of a prima facie case are “not inflexible, as ‘[t]he facts necessarily will vary in Title VII cases.’ ” Burdine, 450 U.S. at 253 n. 6, 101 S.Ct. at 1094 n. 6. While the burden of establishing a prima facie case “is not onerous,” Burdine, 450 U.S. at 253, 101 S.Ct. at 1094, I must emphasize that to avoid the time-bar in section 706(e), plaintiff’s prima facie case must be tailored to the actionable period—that is, she must provide prima facie proof showing that an unlawful discriminatory employment practice occurred within the actionable period.

If plaintiff establishes this prima facie case, “the burden shifts to the defendant ‘to articulate some legitimate, nondiscriminatory reason for the employee’s rejection.’ ” Burdine, 450 U.S. at 253, 101 S.Ct. at 1093 (quoting McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824). Even at this stage, the burden of persuasion has remained on the plaintiff, Burdine, 450 U.S. at 253, 101 S.Ct. at 1093; the burden that has shifted to the defendant is to produce “evidence that the plaintiff was rejected, or someone else was preferred, for a legitimate, nondiseriminatory reason. The defendant need not persuade the court that it was actually motivated by the proffered reasons. It is sufficient if the defendant’s evidence raises a genuine issue of fact as to whether it discriminated against the plaintiff.” Burdine, 450 U.S. at 254-55, 101 S.Ct. at 1094 (citation and footnote omitted).

If defendant satisfies this burden of production, plaintiff then has “the opportunity to demonstrate that the proffered reason was not the true reason for the employment decision. This burden now merges with the ultimate burden of persuading the court that she has been the victim of intentional discrimination. She may succeed in this either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer’s proffered explanation is unworthy of credence.” Burdine, 450 U.S. at 256, 101 S.Ct. at 1095. While a showing that plaintiff was in fact more qualified than male or non-minority candidates granted tenure would certainly help plaintiff satisfy her burden of persuasion, it should be noted that this would not necessarily be sufficient—i.e., it might still be concluded that plaintiff had not established a discriminatory motive by the preponderance of the evidence. Hence, it may be useful and necessary for plaintiff to prove her additional claims—such as the claim that the decisionmakers in fact considered sex-based innuendos—in order to carry her ultimate burden. This explanation is offered to assist plaintiff as a pro se claimant; plaintiff is, of course, entitled to choose her own strategy in attempting to sustain her burden.

III. CONCLUSION

Plaintiff’s allegations and supporting affidavits indicate that there is a genuine issue of fact as to whether a discriminatory employment practice occurred within the actionable period. Accordingly, defendant’s motion for dismissal or summary judgment is hereby DENIED.

IT IS SO ORDERED.

      . Section 706(e) of Title VII provides:
      A charge under this section shall be filed within one hundred and eighty days after the alleged unlawful employment practice occurred ... except that in a case of an unlawful employment practice with respect to which the person aggrieved has initially instituted proceedings with a State or local agency with authority to grant or seek relief from such practice ... such charge shall be filed by or on behalf of the person aggrieved within three hundred days after the alleged unlawful employment practice occurred____
      42 U.S.C. § 2000e-5(e). I do not think it obvious from this statutory language that the 300-day period, rather than the 180-day period, is applicable (although defendant appears content to apply the longer limitations period). Because this difference in the length of the "actionable period” would not cause a different result in my ruling on this motion (the alleged unlawful employment practice occurred within both the 180-day limitation period and the 300-day period), I will assume, without deciding, that the 300-day period is applicable.

      . The McDonnell Douglas formulation also requires plaintiff to prove that after her rejection, “the position remained open and the employer continued to seek applications from persons of complainant’s qualifications." McDonnell Douglas Corp., 411 U.S. at 802, 93 S.Ct. at 1824 (footnote omitted). There does not appear to be any dispute here that a tenured position was available; plaintiff was considered for such a position and defendant has not suggested that plaintiff was rejected because it decided that the position was unavailable.

      . It should also be noted that the sequence and proofs explained here were designed for a Title VII case alleging disparate treatment. It also appears that plaintiff may be attempting to establish a disparate impact case here—i.e., that a facially neutral employment policy has a discriminatory impact on a protected class. If plaintiff pursues that theory at trial, she should be aware “that the factual issues, and therefore the character of the evidence presented, differ" from those outlined in this discussion. Burdine, 450 U.S. at 252 n. 5, 101 S.Ct. at 1093 n. 5. See generally McDonnell Douglas Corp. v. Green, 411 U.S. at 802, 93 S.Ct. at 1824; Griggs v. Duke Power Co., 401 U.S. 424, 431, 91 S.Ct. 849, 853, 28 L.Ed.2d 158 (1971); B. SCHLEI & P. GROSSMAN, EMPLOYMENT DISCRIMINATION LAW 1324-30 (1983).


source: Caselaw Access Project

author: JARVIS, District Judge.

license: Public Domain

text:
    FEDERAL DEPOSIT INSURANCE CORPORATION v. Charles S. RAMSEY, Jr.
    No. CIV. 3-84-719.
    United States District Court, E.D. Tennessee, N.D.
    June 28, 1985.

      Patricia Horton, Rex R. Veal, John C. Speer, Knoxville, Tenn., for plaintiff.
    Robert J. English, Knoxville, Tenn., for respondent.
   MEMORANDUM

JARVIS, District Judge.

This is a suit on a promissory note brought by the Federal Deposit Insurance Corporation [FDIC] in its corporate capacity. The case is before the Court on FDIC’s motion for summary judgment.

The note was executed by defendant in favor of United American Bank-Knoxville [UAB-K] on May 22, 1979, in the amount of $266,666.67. The note was transferred to the First Tennessee Bank pursuant to a Purchase and Assumption Agreement [P & A Agreement] entered into between the FDIC and First Tennessee after the failure of UAB-K. First Tennessee brought suit on the note in chancery court, and subsequently FDIC-corporate was substituted in the stead of First Tennessee and removed the case to this Court.

Defendant has admitted executing the note but denies liability on the following grounds: (1) fraud, (2) duress, and (3) estoppel. In response FDIC says that (1) it is a holder in due course and federal common law bars fraud related defenses against it; (2) defendant has failed to allege facts sufficient to assert a duress defense; (3) defendant is estopped from asserting duress, and (4) no conduct of FDIC gives rise to the defense of estoppel by defendant.

“[W]hen the FDIC in its corporate capacity, as part of a purchase and assumption transaction, acquires a note in good faith, for value, and without actual knowledge of any defense against the note, it takes the note free of all defenses that would not prevail against a holder in due course.” FDIC v. Wood, 758 F.2d 156, 161 (6th Cir.1985). Actual knowledge of any defenses must be shown as of the date the FDIC entered into the P & A agreement. Id. at 162.

Defendant argues that FDIC did not give value for the note at the time of the P & A agreement because, under the terms of the P & A agreement, the note was transferred to First Tennessee Bank and was retransferred to FDIC only after defendant had raised defenses to the note in the chancery court proceeding brought by First Tennessee Bank. FDIC says that it gave value for the note at the time of the P & A agreement in the form of loss assistance.

The Court is of the opinion that FDIC meets the requirements of a holder in due course. Under the terms of the P & A agreement, FDIC was obligated to reimburse First Tennessee for any loss sustained in excess of 86.5 million dollars. (See Doc. 23, exh. A, Purchase and Assumption Agreement § 3.2.). The P & A agreement defines a loss as “any dimunition in the value of the Bank’s assets resulting from their classification as a Loss by FDIC ... and their being charged or written-off by Assuming Bank____” (Id. at § 1.2). By affidavit the FDIC says that the promissory note at issue was determined to be a loss, whereupon FDIC paid the balance due on the note to First Tennessee. (Doc. 23, Affidavit of Mel Edmondson). Thus, the Court is of the opinion that FDIC acquired the note in good faith, for value, and without actual knowledge of any defense against the note at the time it entered into the P & A agreement. Thus defendant’s defenses of fraud, misrepresentation, and failure of consideration are barred.

Defendant asserts that a question of fact exists whether he executed the note in question under duress. The facts show that defendant met with Frank Woods, president of the United American Bank-Nashville [UAB-N] in January 1979 to discuss refinancing of loans at UAB-N in the amount of approximately five to six million dollars. (Doc. 10, Discovery Deposition of Charles S. Ramsey, Jr., Jan. 10, 1985 [hereafter Ramsey Depo.] at 33-35). Defendant says that at this meeting Mr. Woods stated, “I need to recapitalize United American Bank, and since you all are my largest borrowers, I need a favor. [W]e would like for you to become a member of the family and purchase some stock in United American Bank.” (Id. at 34-35). Mr. Woods allegedly stated that he needed defendant and others to purchase about a million dollars in stock in UAB-N. (Id.). Mr. Ramsey stated that he would be unable to pay for that amount of stock and Mr. Woods allegedly said, “Don’t worry about it, I will take care of it.” (Id.). Subsequently, on May 22, 1979, defendant executed the note in issue in the amount of $266,666.67 to purchase 111,111 shares of stock in UAB-N. (Doc. 23, exh. A, Promissory Note).

Defendant says that because of the timing of Mr. Woods’ request that he purchase stock in the UAB-N, he felt under a compulsion to purchase the stock in order to secure the refinancing of the five to six million dollar notes. By affidavit, Frank Woods states that he never made any written or oral representation to Mr. Ramsey that he would not receive a renewal on any obligation held by UAB-N because of Mr. Ramsey’s failure to execute any other notes. (Doc. 24, Affidavit of Frank Woods). Mr. Woods further states that he never put any pressure on Mr. Ramsey to execute the note in issue. (Id.). Mr. Woods also states that to the best of his knowledge UAB-N never refused to renew any note on which Mr. Ramsey was directly liable. (Id.). Defendant acknowledges that Mr. Woods never told him that unless he bought the stock he would not get a renewal of the other notes. [Ramsey depo. at 33].

Duress is defined as “an unlawful restraint, intimidation, or compulsion of another to such an extent and degree as to induce such other person to do or perform some act which he is not legally bound to do, contrary to his will and inclination.” Johnson v. Ford, 147 Tenn. 63, 86, 245 S.W. 531 (1922). The alleged coercive event must be of such severity, either threatened, impending or actually inflicted, so as to overcome the mind and will of a person of ordinary firmness. Fogg v. Union Bank, 63 Tenn. [4 Baxter] 530, 535 (1830).

The Court is of the opinion that the facts set forth in the case, taken in the light most favorable to defendant, are insufficient as a matter of law to support a defense of duress. The undisputed facts show that no threat was made to defendant that, unless he executed the note at issue, he would not receive renewal of another obligation. Defendant’s subjective belief that he was under pressure to purchase the stock simply because of the timing of Mr. Woods’ request is insufficient to show an unlawful restraint, intimidation or compulsion to such a degree as to induce a person of ordinary firmness to perform the act against his will. Further, defendant executed the note several months after the meeting at which he allegedly felt compelled to execute the note. Thus, clearly defendant was under no immediate compulsion to execute the note. Finally, defendant never complained about the execution of the note until a lawsuit was filed in an attempt to collect judgment on the note. For these reasons, the Court finds that defendant’s duress defense is without merit.

Defendant asserts that FDIC should be estopped to collect the note because at the time it assumed the note it was aware of defendant’s defenses to the note. It has been held that the FDIC is estopped to collect on a note where by its actions it led defendants to believe that it would not look to them for payment of the note. See FDIC v. Harrison, 735 F.2d 408 (11th Cir.1984). In Harrison, the FDIC brought suit against guarantors of a promissory note made by one Henry B. Bell. The court held that the FDIC was estopped to bring suit against the guarantors of the note because the FDIC had told the guarantors that Bell was paying on time, that the guarantors would not be held liable on the note, and the guarantors, in reliance on FDIC’s representation, paid off other notes held by FDIC. In the case sub judice defendant has alleged no representations by FDIC upon which he relied to his detriment. Thus the Court is of the opinion that FDIC is not estopped to collect on the note at issue.

For the foregoing reasons, plaintiff’s motion for summary judgment be, and the same hereby is, GRANTED. It is further ORDERED that the parties will submit an appropriate judgment for entry.

Order Accordingly.


author: BILLINGS, District Judge.

text:
    UNITED STATES of America v. Philippe DEVAL. UNITED STATES of America v. Daniel LUSSIER.
    Cr. Nos. 85-13-01, 85-13-02.
    United States District Court, D. Vermont.
    July 1, 1985.

      Donald Rendall, Asst. U.S. Atty., Rut-land, Vt., for plaintiff.
    Sigismund Wysolmerski, Abatiell & Abatiell, Rutland, Vt., for defendant Deval.
    Jeffrey Meller, Burlington, Vt., for defendant Lussier.
   FINDINGS OF FACT AND CONCLUSIONS OF LAW

BILLINGS, District Judge.

This proceeding came before the Court on the motion of defendant Daniel Lussier to suppress the use in evidence of 233.8 grams of hashish taken from his person and on the motion of defendant Philippe Deval to suppress the use in evidence of 98.4 grams of cocaine found between his feet. The following findings of fact and conclusions of law are based on testimony elicited at a suppression hearing held on May 28, 1985, and are found for resolution of this motion only.

For the reasons recited below, both motions are DENIED.

FACTS

On March 29, 1985, Robert LaBelle, an Agent of the United States Border Patrol, conducted a transportation check at the Burlington International Airport in South Burlington, Vermont. Agent LaBelle has been a border patrol agent for 8 years, and for the last 6 years he has been stationed in Swanton, Vermont. At approximately 6:30 a.m., Agent LaBelle watched passengers deplaning from a People’s Express flight that had originated in Newark, New Jersey.

Agent LaBelle noticed an individual, subsequently identified as defendant Pierre Beauvais, who had a deep sun tan, a Canadian-style haircut, and wore a Canadian-type leather jacket and pointed shoes. Agent LaBelle observed that this individual stood approximately 30 feet from the luggage conveyor belt until the time that he retrieved two bags. Beauvais then left the airport with an individual, subsequently identified as defendant Daniel Lussier, who carried three bags.

Based on the foregoing observations, Agent LaBelle believed that the individuals might be aliens illegally in the United States. He decided to confront them. He followed the two individuals to the airport parking lot, and watched them approach a red Mercury Bobcat automobile that carried Quebec registration plates. A third person, subsequently identified as defendant Philippe Deval, sat on the passenger side of the automobile. Deval got out of the car and helped Beauvais and Lussier place their luggage in the trunk and rear seat of the car. All three individuals then sat in the car for a period of several minutes.

During this time, Agent LaBelle went to his unmarked automobile, which was parked approximately 50-75 feet away from the red Mercury. While continuing to observe the defendants, Agent LaBelle used his radio to request a check on the license plate number of the Mercury.

The defendants then got out of their car and looked around the parking lot. Agent LaBelle testified that they appeared nervous at this time. After at least one of the individuals made eye contact with LaBelle, all three began to walk out of the parking lot and toward Airport Drive. Agent La-Belle followed in his automobile. At that time, he received information that several days before the driver of the Mercury had withdrawn his application for entry into the United States at the Champlain, New York point of entry. The reason for the withdrawal was the refusal of the Customs Service to allow the entry of one Philippe Deval, a passenger in the car, because he had a prior criminal record for aggressive and violent behavior.

When the defendants had proceeded almost 200 yards from the airport parking lot, the Agent drove his automobile alongside them. He identified himself as a Border Patrol Agent, showed the defendants a badge, and said that he wished to talk to them. Deval, and then Lussier and Beauvais, approached the vehicle. The Agent then asked Deval where he was from, and he replied “Montreal,” and also volunteered that he was a Canadian. The other two individuals nodded assent.

Deval, on request, then gave the Agent an identification card. The Agent recognized the name as that of the automobile passenger who had been denied entry into the United States. Beauvais also gave the Agent an identification card, but Lussier said his identification was still in the automobile in the parking lot. Lussier also stated, on inquiry, that he had a drug record in Canada. He then handed the Agent a birth certificate written in French. The Agent told Lussier that he needed more identification, and LaBelle offered Lussier a ride back to the parking lot.

Beauvais then began to enter the automobile. Agent LaBelle, to protect himself, decided to pat down the defendants before they entered the vehicle. When patting down Lussier, the Agent noted a hard object, the size of a wallet, deep in his right pocket. The Agent also noticed an odor of marijuana. When the Agent asked Lussier what the object was, he made no reply. The Agent then discovered that the package appeared to contain hashish.

The Agent then placed all three defendants under arrest. He used his only pair of handcuffs to restrain Lussier, and directed Beauvais and Deval to stand, face forward, against his automobile. LaBelle then called the South Burlington Police Department for back-up assistance. Police officers arrived within three to five minutes. No-one searched Deval, but the police officers found between his feet a packet that appeared to contain cocaine. A search of Beauvais revealed a package appearing to be hashish that was hidden in the area around his abdomen. The police officers then took all three individuals into custody and took them to the South Burlington Police station.

DISCUSSION

The ultimate issue presented by the suppression motions of defendants is whether the actions of the Border Patrol agent violated the defendants’ 4th Amendment right to be free from unreasonable searches and seizures. This, in turn, requires the resolution of several discrete issues, including classification of the Border Patrol activity; distillation of the legal standards relevant to the activity; and application of these standards to the facts of the case.

A. Border Patrol Activity

At the border of the United States, Federal agents may, without warrant or even suspicion, detain and search individuals, as courts have deemed such actions historically reasonable within the ambit of the 4th Amendment. Carroll v. United States, 267 U.S. 182, 154, 45 S.Ct. 280, 285, 69 L.Ed. 543 (1925) (national self protection reasonably requires determination of whether person and his belongings may legally enter the country); United States v. Ramsey, 431 U.S. 606, 619, 97 S.Ct. 1972, 1980, 52 L.Ed.2d 617 (1977). The same rule applies to those places that are the functional equivalents of the border. Almeida-Sanchez v. United States, 413 U.S. 266, 273, 93 S.Ct. 2535, 2539, 37 L.Ed.2d 596 (1972); United States v. Brown, 499 F.2d 829 (7th Cir.), cert. denied, 419 U.S. 1047, 95 S.Ct. 619, 42 L.Ed.2d 640 (1974). Recognized functional equivalents of the border of the United States include an established station near the border, a point marking the confluence of two or more roads that extend from the border, or that portion of an airport where passengers deplane from international flights. Almeida-Sanchez, supra, 413 U.S. at 273, 93 S.Ct. at 2539. Since no direct commercial flights from other countries land at the Burlington International Airport, and since South Burlington is not within close proximity to the border, the airport is not the functional equivalent of the border. See United States v. Barbera, 514 F.2d 294, 298-99 (2d Cir.1975).

The Border Patrol also enforces the nation’s immigration laws through the use of checkpoints, temporary checkpoints and roving patrols to detect the presence of illegal aliens in the United States. Almeida-Sanchez, supra, 413 U.S. at 268, 93 S.Ct. at 2537. Although courts have used these terms primarily with reference to the questioning and searches of operators of and passengers in automobiles, the categories are equally applicable to the activities carried out by Agent LaBelle at the Burlington Airport.

Since the Border Patrol only conducted “transportation checks” at the airport for some 3-8 hours each week, the airport was clearly not the site of a permanent checkpoint. Here, the periodic foot patrols at the airport resemble the actions of Border Patrol agents who made random checks of the Niagara Frontier Authority Bus Terminal in downtown Buffalo, New York. United States v. Sugrim, 732 F.2d 25 (2d Cir.1984). In Sugrim, the Second Circuit held that the activities of the agents amounted to a roving patrol. Likewise, this Court concludes that the “transportation check” activities of Agent LaBelle constituted a roving patrol at the airport.

B. Legal Standards

Although roving patrols of border agents may not conduct searches without probable cause, United States v. Ortiz, 422 U.S. 891, 896-97, 95 S.Ct. 2585, 2588-89, 45 L.Ed.2d 623 (1975) (probable cause necessary for automobile search at a permanent checkpoint); Sugrim, supra, 732 F.2d at 29 (searches at temporary checkpoints by roving patrols may not be conducted on less than probable cause), roving patrols may stop and detain persons for questioning about their citizenship if the agent or agents have a reasonable suspicion that the persons may be aliens. United States v. Brignoni-Ponce, 422 U.S. 873, 884, 95 S.Ct. 2574, 2581, 45 L.Ed.2d 607 (1975). Border Patrol agents may develop a “reasonable suspicion” based upon, inter alia, the mode of dress and hair cut of the individual, the behavior of the individual, and the prior experience of the agents with aliens at the same location. Id., 422 U.S. at 884-85, 95 S.Ct. at 2581-82. Essentially, reasonable suspicion arises from “the specific reasonable inferences which (the agent) is entitled to draw from the facts in light of his experience.” Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 1883, 20 L.Ed.2d 889 (1968).

When an agent has properly detained an individual, the agent, to protect his own safety, may make a reasonable search for weapons. Such a search is justified if the circumstances at the time would warrant the belief by a reasonably prudent person that his safety or the safety of others was in danger. Terry, supra, 392 U.S. at 27, 88 S.Ct. at 1883.

An agent may arrest an individual if he has probable cause to believe that a crime has been or is being committed. United States v. Ginsberg, 758 F.2d 823, 827 (2d Cir.1985). Although probable cause is “a practical, non-technical concept,” Illinois v. Gates, 462 U.S. 213, 231, 103 S.Ct. 2317, 2328, 76 L.Ed.2d 527 (1983), an agent may arrest an individual if the agent has “reasonably trustworthy information ... sufficient ... to warrant a man of reasonable caution in the belief that a crime has been or is being committed.” Brinegar v. United States, 338 U.S. 160, 175-76, 69 S.Ct. 1302, 1310-11, 93 L.Ed. 1879 (1949). After an officer has made a legal arrest, he may then conduct a warrantless search of the person and immediate area around the person. Chimel v. California, 395 U.S. 752, 763, 89 S.Ct. 2034, 2040, 23 L.Ed.2d 685 (1969).

C. Conclusions of Law

In this case, the initial 4th Amendment issue arose when Agent LaBelle first stopped Deval, Lussier and Beauvais for questioning. Agent LaBelle initially made contact with the defendants when they were approximately 200 yards outside the airport parking lot. At that time, Agent LaBelle had observed the hair cut, appearance and behavior of Beauvais and the general appearance and behavior of Lussier and Deval. Standing alone, these observations might well have failed to support a constitutional detention of the defendants, as the Agent suspected that the defendants were illegally in the country only because they appeared to be Canadian. Brignoni-Ponce, supra, 422 U.S. at 884 n. 9, 95 S.Ct. at 2582 n. 9.

However, before he actually stopped the defendants, the Agent had heard over his radio that the car in which the defendants had met had carried, only a few days previously, a passenger who was refused entry at the United States-Canada border. The presence of the car in the United States shortly after this incident, and after the occupants had not pursued their initial application for entry, supported a particularized suspicion of the Agent that at least one of the three individuals might illegally be in the United States. The Agent then identified himself, and temporarily detained the defendants to ask them questions related to the Agent’s suspicion that the immigration laws were being violated. Cf. Royer, supra, 460 U.S. at 498, 103 S.Ct. at 1324 (citing Brignoni-Ponce, supra, 422 U.S. at 881-82, 95 S.Ct. at 2580-81).

Upon discovering that one of the defendants had the same name as the automobile passenger previously refused entry to the United States, Agent LaBelle had probable cause to suspect that Deval had broken an immigration law of the United States. The information he had heard on the radio, in combination with the voluntary identification, warranted such a belief.

Similarly, when defendant Lussier volunteered the information that he had a drug record in Canada, Agent LaBelle then had a justified and particularized suspicion that Lussier was also present in the United States in violation of the immigration laws. See 8 U.S.C. § 1182(a)(9) (aliens who admit having committed a crime involving moral turpitude shall be excluded from the United States); Royer, supra, 460 U.S. at 497-98, 103 S.Ct. at 1323-24 (law enforcement officers may approach an individual, ask questions and offer his voluntary answers as evidence in a criminal prosecution).

These facts, known to Agent LaBelle at the time that he patted down Lussier, more than satisfy either the constitutional standards applicable to a Terry search or to a search incidental to the making of an arrest based upon probable cause. Chimel, supra, 395 U.S. at 763, 89 S.Ct. at 2040. Neither defendant Deval nor defendant Lussier can claim that the acts of Agent LaBelle violated their 4th Amendment right to be free from unreasonable searches or seizures.

The motion to suppress of defendant Philippe Deval and the motion to suppress of defendant Daniel Lussier are each DENIED.

SO ORDERED.

      . Defendant Beauvais failed to appear for arraignment and for re-scheduled arraignment.

      . While still in the parking lot, Agent LaBelle made eye contact with at least one of the defendants. Although this contact apparently made the defendants act in a nervous fashion, a reasonable person would not believe, on this basis alone, that he was not free to walk away. United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980); cf. Florida v. Royer, 460 U.S. 491, 501, 103 S.Ct. 1319, 1326, 75 L.Ed.2d 229 (1983) (asking for airline ticket and driver’s license not tantamount to any detention).

      . Agent LaBelle also testified that he was suspicious because Beauvais stood 30 feet away from the luggage conveyor and because Lussier and Beauvais between them carried five bags from the airport. This Court finds it difficult to see how these observations could support a suspicion that the defendants were illegally in the United States. The Court’s difficulty is intensified by the testimony of a Border Patrol agent offered in Sugrim, supra, 732 F.2d at 30, that the absence of luggage contributed to his suspicion that individuals were illegally in the country. The implication of these statements is that the Border Patrol harbors suspicion of anyone not carrying exactly one article of luggage.


author: MacMAHON, District Judge.

text:
    Judith ROSSNER and Miriam Gibbon, as Trustee of Trusts for the Benefit of Jean Rossner and Daniel Rossner, Plaintiffs, v. CBS, INC., Grosso-Jacobson Productions, Inc. and Paramount Pictures Corporation, Defendants.
    No. 83 Civ. 7543 (LFM).
    United States District Court, S.D. New York.
    July 1, 1985.

      Squadron, Ellenoff, Plesent & Lehrer, New York City, for plaintiffs; Howard M. Squadron and Eugenie C. Gavenchak, New York City, of counsel.
    Ronald E. Guttman and Douglas P. Jacobs, New York City, for defendant CBS, Inc.; Laura V. Jones, New York City, of counsel.
    Pryor, Cashman, Sherman & Flynn, New York City, for defendant Grosso-Jacobson Productions, Inc. and Paramount Pictures Corp.; Steven F. Huff and Tom J. Ferber, New York City, of counsel.
   MacMAHON, District Judge.

This is an action for injunctive relief and damages brought by Judith Rossner (Rossner) and Miriam Gibbon (Gibbon), as trustee of trusts for the benefit of Jean Rossner and Daniel Rossner, against CBS, Inc. (CBS), Grosso-Jacobson Productions, Inc. (Grosso-Jacobson), and Paramount Pictures Corporation (Paramount). The action was tried before us, without a jury, on March 25, 26, 27 and 28, 1985.

Plaintiffs seek to enjoin defendants permanently from using the word “Goodbar” as part of a title for a made-for-television movie entitled Trackdown: Finding the Goodbar Killer (Trackdown). Alleging that defendants’ use of the word “Good-bar” constitutes a false designation of origin, plaintiffs claim violation of Lanham Act § 43(a), 15 U.S.C. § 1125(a) (1946), unfair competition and violation of N.Y.General Business Law § 368-d (McKinney 1984). Alternatively, asserting that Track-down is a sequel to the movie Looking for Mr. Goodbar (Goodbar movie), plaintiffs seek $75,000 in damages from Paramount for alleged breach of a contract which required Paramount to pay Rossner that sum upon the production of any sequel to the Goodbar movie.

Plaintiffs also seek a permanent injunction directing defendants to broadcast a consent-ordered disclaimer with the credits of Trackdown during any future showing of the movie. Finally, plaintiffs seek compensatory damages, punitive damages, and attorneys’ fees against all defendants.

JURISDICTION

We have subject matter jurisdiction of the federal claims pursuant to 15 U.S.C. § 1121 and 28 U.S.C. § 1338(a) and (b) and pendent jurisdiction of the state claims.

THE PARTIES

Plaintiff Rossner, a celebrated novelist, is a resident of New York. Defendant Grosso-Jacobson, a Delaware corporation with its principal place of business in New York, is an independent producer of movies primarily for broadcast on network television. Defendant CBS, a New York corporation with its principal place of business in New York, operates the CBS television broadcasting network. Defendant Paramount, a Delaware corporation with its principal place of business in California, is a major motion picture studio.

FACTS

After carefully considering the exhibits, hearing and observing the witnesses, and weighing all the evidence and the arguments of counsel, we find the following facts:

Roseann Quinn (Quinn), a twenty-eight year old school teacher, was brutally murdered in her apartment on the upper west side of Manhattan on January 1,1973. The police apprehended and charged John Wayne Wilson (Wilson), a man whom Quinn had picked up in a singles' bar, with the murder. Both the murder and the ensuing investigation were extensively reported in the local newspapers.

Rossner read the reports and, sometime later, commenced writing a novel about a school teacher who is murdered by a man she meets in a singles’ bar. The novel is not a factual account of the Quinn murder, but the characters and the events depicted are loosely based on the actual murder.

Rossner entitled her novel Looking for Mr. Goodbar (Goodbar novel). It was published by Simon & Schuster, Inc. in June 1975 and generated wide critical acclaim and popular success, selling approximately 133,000 copies in hardcover editions and 3,609,059 in paperback and appearing on best-seller lists for twenty-seven weeks.

On July 1, 1975, Rossner and Gibbon, along with another trustee, entered into an agreement with Paramount (Paramount Agreement), whereby Rossner granted and assigned to Paramount “the sole and exclusive rights” to use the Goodbar novel, its title, and any similar title “in the making of motion picture photoplays” based upon the novel (Paragraph Second, Paramount Agreement). Pursuant to the agreement, in 1977, Paramount released a movie entitled Looking for Mr. Goodbar, which was based on the Goodbar novel.

Two years earlier, in October 1975, Lacey Fosburgh (Fosburgh), the reporter who covered the Quinn murder for The New York Times, wrote an article about the murder entitled Finding Mr. Goodbar, which was published in New Times magazine. A similar Fosburgh article entitled Finding the Real Mr. Goodbar was published in Cosmopolitan magazine in June 1976. The New Times issue had a circulation of approximately 214,269 and the Cosmopolitan issue 2,221,623. Subsequently, Fosburgh wrote a novel based on the Quinn murder entitled Closing Time: The True Story of the “Goodbar” Murder, which was published by Dellacorte Press in 1977. Over 118,116 copies of the novel were sold.

At trial, Rossner testified that she was aware of these publications and of Fosburgh’s continued use of the word “Good-bar” in their titles. Nevertheless, she decided not to take any legal action against Fosburgh because she found Fosburgh’s titles to be sufficiently distinguishable from her own work.

As a result of the extensive awareness of Rossner’s novel, its reviews, the Fosburgh publications, and the Paramount movie, the media has referred to the Quinn murder as “the Goodbar murder” and to Wilson as “the Goodbar killer.” There is also some evidence that the word “Goodbar” has entered the vernacular as a word describing “the singles’ scene” or a dangerous “pickup.”

In April 1981, Grosso-Jacobson agreed to produce a two-hour made-for-television movie for CBS based on the Quinn murder investigation. It hired John Lafferty, the detective primarily responsible for the actual investigation, as a consultant. Although aware of Rossner’s prior use of the word “Goodbar,” executives at CBS insisted that the word “Goodbar” be part of the movie’s title because they believed that it identified an actual murder known to the public and, therefore, would be an exploitable title. The movie, ultimately titled Trackdown: Finding the Goodbar Killer, was broadcast on CBS at 9:00 P.M. on October 15, 1983.

Upon learning that Trackdown was in production, Rossner directed her agent to advise Paramount to protect its movie rights in the title “Looking for Mr. Good-bar.” Paramount then wrote to CBS and Grosso-Jacobson claiming infringement of its rights to use of the word “Goodbar.” They countered that the term “Goodbar Killer” was in the public domain as a result of the media’s and Fosburgh’s use of the term to identify Wilson.

After negotiations, Paramount, CBS, and Grosso-Jacobson and its umbrella insurance company, Centerpoint Productions, Inc., entered into an agreement dated March 15, 1983 (March 15 Agreement). Under the agreement, Paramount waived its right to object to the use of the word “Goodbar” in the Trackdown title provided that (1) the word would not be emphasized in the title, (2) the movie would be a factual account of the Quinn murder, and (3) the advertising would not refer to the movie as a sequel or as otherwise derived from the Goodbar novel or the Goodbar movie.

On October 14,1983, plaintiffs moved, by order to show cause, for a preliminary injunction preventing the exhibition of Track-down, alleging, inter alia, unfair competition and false designation of origin. After a hearing, this court (Edelstein, J.) issued a consent order which provided:

“that the defendants’ broadcast of the movie ‘Trackdown: Finding the Goodbar Killer,’ will contain at its beginning and at its end for three-four seconds the attached disclaimer displayed in written form on the screen.”

The language of the disclaimer agreed to by the parties was as follows:

“The following broadcast is based on fact. It is not related to the Judith Rossner novel ‘Looking For Mr. Goodbar,’ and Miss Rossner has no connection with it.”

The consent order implicitly incorporated the parties’ agreement that the disclaimer would appear with the beginning and closing credits of Trackdown. The following evening, however, when CBS broadcast Trackdown, the disclaimer did not appear with the movie’s credits but among commercials at the beginning and closing of the program hour.

DISCUSSION

We emphasize, at the outset, that plaintiffs are not bringing an action in copyright. Nor are they claiming that the characters, plot, themes or events portrayed in Trackdown infringe on the Goodbar novel. Their claim is simply that defendants, through their use of the word “Goodbar” in the title of Trackdown, are trading on Rossner’s reputation and good will generated from the success of her novel. The claim arises from the fact that it was Rossner who, by virtue of her creative ability, first conceived of and used the word “Goodbar” to identify a fictionalized character in her novel.

Standing

Defendants’ first contention is that Rossner lacks standing to claim misappropriation of title because she assigned all of her right to use of the title Looking for Mr. Goodbar in motion pictures to Paramount. Paragraph Second of the Paramount Agreement provides, in pertinent part, that Rossner assigns and grants to Paramount:

“the sole and exclusive rights: to use ... the title ... in the making of motion picture photoplays ... (it being expressly understood ... that [Paramount] agrees not to use said title except in connection with any motion picture photoplay ... based, at least in part, upon [Rossner’s] work) ... (emphasis added).”

The agreement also provides that Rossner retains all rights in her work which are “not ... specifically granted” to Paramount. (Paragraph Nineteenth, Paramount Agreement.)

It appears that what Paramount essentially acquired from Rossner is the right to use her title in the making of motion pictures derived, to some degree, from her novel. Consequently, Rossner argues, and we agree, that from the bundle of literary property rights, she has retained that fraction of a right which allows her to use the title in movies not derived from her novel. This concept of fractional ownership is elusive. Nevertheless, after a careful reading of the Paramount Agreement, in light of the parties’ intentions, we are convinced that Rossner has retained a small, but protectable interest which is at stake in this litigation. Specifically, she holds a right to protect against the unauthorized use of the title in motion pictures not based on her novel, and defendants themselves assert that Trackdown is not based on the Goodbar novel. We therefore conclude that she has standing to bring the instant action.

Lanham Act

Plaintiffs’ initial claim is that defendants’ use of the title Trackdown: Finding the Goodbar Killer for their movie constitutes a false designation of origin, in violation of the Lanham Act, 15 U.S.C. § 1125(a) (1946). Section 1125(a) provides, in pertinent part:

“Any person who shall ... use in connection with any goods or services ... a false designation of origin, or any false description or representation, including words or other symbols tending falsely to describe or represent the same, and shall cause such goods or services to enter into commerce ... shall be liable to a civil action ... by any person who believes that he is or is likely to be damaged by the use of any such false description or representation.”

The Act has been construed to protect the title of a creative work when (1) the title has acquired “secondary meaning,” i.e., the public identifies the title with Rossner and her work, and (2) there is a “likelihood of public confusion,” i.e., the public will be mislead into believing that defendants’ work originated or is sponsored by Rossner because both works bear similar titles.

The test of secondary meaning for literary titles is essentially one of establishing whether, in the minds of a significant number of the public, the title is associated with a single source of the literary work. Since defendants have not used Rossner’s entire title, but only the word “Goodbar,” plaintiffs must demonstrate secondary meaning in the word itself. The question for us then becomes whether the public associates the word “Goodbar” with a single, though possibly, anonymous source.

The advertisements, reviews and other press clippings relating to the Goodbar novel indicate that the word “Goodbar” was associated with Rossner when her novel first came into the public eye. The “strength” of the word as a trademark, however, has been diminished by the subsequent use of the mark to identify other sources.

First, Rossner sold her rights to the Goodbar title for use in motion pictures to Paramount. Paramount then produced the Goodbar movie and the word “Goodbar” became associated with Paramount and its movie. Second, Fosburgh wrote two articles and a book which prominently used the word “Goodbar” in their titles and identified Wilson as the “Goodbar Killer.” Several newspaper articles reinforced this association in the minds of the public by referring to the Quinn murder as the “Goodbar murder” and to Wilson as the “Goodbar Killer.” Finally, the word itself has been used in the vernacular, specifically, in other movies, television programs and news articles, to identify the “singles’ scene,” “a dangerous pick-up” or “Mr. Right.”

“The strength or distinctiveness of a mark determines both the ease with which it may be established as a valid trademark and the degree of protection it will be accorded.” The strength of the “Goodbar” mark refers to its ability to identify a work sold under the mark as emanating from a particular source, namely, Rossner. Although Rossner is “not required to act immediately against every possibly infringing use [of her mark] to avoid a holding of abandonment,” her failure to police the mark has inevitably caused the mark to lose its primary significance as a source-denoting mark. The frequent and disparate uses of the word “Goodbar” in association with Paramount, Fosburgh and the Quinn murder, prevent Rossner from demonstrating secondary meaning in her mark.

Moreover, plaintiffs have presented no evidence that the public was mislead into believing that Rossner sponsored or was in any way involved in the production of Trackdown. Plaintiffs suggest that the various newspapers’ “association” of Trackdown with the Goodbar novel is equivalent to confusion. More “association,” however, is not sufficient to demonstrate a likelihood of confusion. The advertising of CBS and Grosso-Jacobson frequently explained that Trackdown was based on the event that inspired Rossner’s novel. Such statements are a means of accurately distinguishing Rossner’s work to avoid confusion.

To the extent that the viewers of Track-down may have mistakenly believed that Rossner was associated with that film, the disclaimer, if it had been appropriately placed with the credits, is an adequate means of alleviating the viewers’ confusion. “Disclaimers are a favored way of minimizing confusion as to source or sponsorship,” and “[ajbsolute prohibitions of speech as provided for in [injunctive relief] are improper where there is any possibility that ... [a] disclaimer will suffice.”

The problem with the disclaimer here is that it was buried within the commercials shown before and after the movie. The record is somewhat confusing, but it was clearly the intent of the court to grant an order, on consent of all counsel, incorporating the agreement reached between the parties concerning the placement and form of the disclaimer. Plaintiffs’ counsel described the agreement as follows:

“If your honor please, we believe that we have an agreement, and I want to state what I understand to be clearly the agreement and what there may still be some question about it.
We have agreed that there be a disclaimer accompanying this program whenever it appears, not only tomorrow night but thereafter, and that disclaimer will appear with the credits in the same size as the credits.
j): jfc >}s jj: s¡«
We have insisted that the disclaimer appear with the credits at the beginning of the program saying, ‘The following broadcast,’ and at the end of the program saying, ‘The preceding broadcast.’ (emphasis added).”

Defendants’ counsel at no time objected to placing the disclaimer within the credits. We are compelled to conclude that defendants failed, in good faith, to comply with the intent of the order and agreement, and undermined the impact and the intent of the disclaimer.

Unfair Competition and Anti-Dilution Statute

Plaintiffs’ claims under the New York common law of unfair competition and the anti-dilution statute are premised, as is their claim under the Lanham Act, on the contention that the public was deceived as to the origin of Trackdown. We recognize the breadth of New York’s common law tort of unfair competition but emphasize that, in each instance, the tort results from the deception of the public as to the origin of a work. As stated earlier, we find that plaintiffs have failed to establish such deception or confusion.

Plaintiffs’ reliance on Section 368-d of the New York General Business Law (McKinney 1984) is similarly misplaced. While confusion is not required under the statute, plaintiffs must demonstrate that they have a strong mark, and “there must be a blurring or tarnishing of the plaintiff’s mark sufficient to constitute dilution.” Plaintiffs have failed to present any evidence that Trackdown has blurred or tarnished the “Goodbar” mark.

Sequel

Plaintiffs’ alternative claim is that Trackdown is a sequel to the Goodbar movie and, thus, that Paramount owes Rossner $75,000 pursuant to the Paramount Agreement. Paramount contends that it did not license its sequel rights to Grosso-Jacobson or to CBS for the production of Trackdown, and, furthermore, that Trackdown is not a sequel to the Goodbar movie.

In the March 15 Agreement, Paramount agreed not to object to the use of the title Trackdown: Finding the Goodbar Killer for a movie which was a factual account of the Quinn murder investigation. Although defendants argue that this agreement is merely “a waiver of objection,” it is, in essence, a covenant not to sue CBS or Grosso-Jacobson for their use of the word “Goodbar.” Such a covenant has the practical effect of a license because it permits and induces the use of the word “Goodbar” in the title of Trackdown free from allegations of misappropriation.

Once we find that Paramount licensed its sequel rights, the question for us is whether Trackdown is a sequel to the Goodbar movie. Paragraph Seventeen of the Paramount Agreement provides that upon the commencement of the principal photography of any “sequel” to the Goodbar movie, which is longer than one and one-half hours, Paramount shall pay Rossner $75,-000. Paragraph 17(a) defines a “sequel” as a film:

“in which the principal characters of the first feature length, theatrical motion picture produced hereunder participate in an entirely new and different story ... (emphasis added).”

Since the language of the agreement is clear and unambiguous, we must interpret its terms exactly as written. By definition, then, whether a movie is a “sequel” under the Paramount Agreement depends on its content, not its title.

The Goodbar movie recounts the story of a lonely schoolteacher who frequents singles’ bars in search of companionship. The last scene in the movie is a violent depiction of her murder by a man she met in one such bar. Trackdown begins where the Goodbar movie leaves off, with the murder of a young woman, and goes on to tell the “entirely new and different story” of the police investigation which leads to the final apprehension of her killer.

The “principal characters” in the Good-bar movie are Theresa Dunn, the schoolteacher; her father, her sister; James, her caring boyfriend; and Tony. Two other characters who appear in the movie, but only for a short duration, are the killer and the killer’s homosexual lover. The only characters who are also found in Track-down are the schoolteacher, the killer and his homosexual lover. Based on these three characters and the fact that the events in Trackdown logically follow those in the Goodbar movie, plaintiffs contend that Trackdown is a sequel to the Goodbar movie.

Initially, we note that the schoolteacher, the killer and his homosexual lover play relatively minor roles in Trackdown. Although the teacher’s murder is the catalyst for the movie, the movie’s primary focus is on the story of the detective, his investigation and his personal life. More importantly, even if these three characters were considered “principal characters,” they are not taken from Rossner’s fictionalized characters but from people involved in the Quinn murder.

Rossner may not have intended to model her characters in the Goodbar novel on actual persons. Nevertheless, her characters of Theresa Dunn, the victim, and Gary Cooper White, the killer, bear strong similarities to their real-life counterparts, Quinn and Wilson. Dunn, like Quinn, was Irish Catholic, taught deaf children, walked with a slight limp, and lived a fairly quiet and reserved life except for her attraction to singles’ bars. White, like Wilson, was a young drifter with a pregnant wife in Florida and a homosexual lover in New York, had been in and out of jails, and had confessed to the brutal murder of a young schoolteacher whom he had picked up in a singles’ bar.

We find that any similarities between the characters in Trackdown and those from Rossner's novel depicted in the Goodbar movie exist because Rossner drew fictional inspiration from an actual event and not because Trackdown is a sequel to the Goodbar movie. In Greenbie v. Noble, 151 F.Supp. 45, 65 (S.D.N.Y.1957), this court observed that:

“The fact that two works relate to the same subject matter or are similar to one another does not constitute an infringement if each is the fruit of the author’s independent intellectual effort. This is especially true when both works are derived from common sources and materials available to all so that the resemblances are either accidental or result from the nature of the subject.”

Rossner cannot build a story and characters around an historical incident and then claim the exclusive right to use of the incident. Defendants have the right to avail themselves of the facts contained in Rossner’s novel which relate to the Quinn murder and use such information in their movie. “To avoid a chilling effect on authors who contemplate tackling an historical issue or event, broad latitude must be granted to subsequent authors who make use of historical subject matter____” To the extent that Rossner’s characters were “inspired” by actual persons, she cannot prevent the future depiction of these characters through the independent creative efforts of others.

We conclude that Trackdown was essentially a factual depiction of the Quinn murder investigation and, thus, is not a sequel to the Goodbar movie, as that term is defined in the Paramount Agreement.

The foregoing opinion constitutes this court's findings of fact and conclusions of law, pursuant to Rule 52, Fed.R.Civ.P.

Accordingly, defendants CBS, Inc. and Grosso-Jacobson Productions, Inc. are permanently enjoined from broadcasting the movie Trackdown: Finding the Goodbar Killer without simultaneously broadcasting the consent-ordered disclaimer with the opening and closing credits of the movie. Plaintiffs’ action is dismissed in all other respects. The parties are directed to settle a judgment and order containing a form of permanent injunction consistent with this opinion within twenty (20) days.

      . See Warner Bros. Pictures, Inc. v. Majestic Pictures Corp., 70 F.2d 310, 311 (2d Cir.1934); National Lampoon, Inc. v. American Broadcasting Cos., 376 F.Supp. 733, 746-47 (S.D.N.Y.), aff’d, 497 F.2d 1343 (2d Cir.1974).

      . 1 J. Thomas McCarthy, Trademarks & Unfair Competition § 10:4 at 331-2 (2d ed. 1984).

      . McGregor-Doniger Inc. v. Drizzle Inc., 599 F.2d 1126, 1131 (2d Cir.1979).

      . Id. at 1131.

      . Wallpaper Mfrs., Ltd. v. Crown Wallcovering Corp., 680 F.2d 755, 766 (C.C.P.A.1982).

      . See Universal City Studios, Inc. v. Nintendo Co., 578 F.Supp. 911, 925 (S.D.N.Y.1983), aff’d, 746 F.2d 112 (2d Cir.1984) (presence in the market of other unrelated producers with legally protected images that are very similar to plaintiffs’ is fundamentally inconsistent with the requirement that the mark indicate to consumers a single source of origin); Warner Bros., Inc. v. Gay Toys, Inc., 724 F.2d 327, 333 (2d Cir.1983).

      . See Ideal Toy Corp. v. Kenner Products Division of General Mills Fun Group, Inc., 443 F.Supp. 291, 308 (S.D.N.Y.1977). Accord, American Footwear Corp. v. General Footwear Corp.,
        609 F.2d 655, 663 (2d Cir.1979), cert. denied, 445 U.S. 951, 100 S.Ct. 1601, 63 L.Ed.2d 787 (1980).

      . See Anti-Monopoly, Inc. v. General Mills Fun Group, 611 F.2d 296, 301 n. 2 (9th Cir.1979), cert. denied, 459 U.S. 1227, 103 S.Ct. 1234, 75 L.Ed.2d 468 (1983).

      . Consumers Union of United States, Inc. v. General Signal Corp., 724 F.2d 1044, 1053 (2d Cir.1983), cert. denied, — U.S.-, 105 S.Ct. 100, 83 L.Ed.2d 45 (1985).

      . Warner Bros. Inc. v. American Broadcasting Cos., 720 F.2d 231, 248 (2d Cir.1983).

      . Glen Mfg. Inc. v. Perfect Fit Indus., Inc., 299 F.Supp. 278 (S.D.N.Y.1969), remanded on other grounds, 420 F.2d 319 (2d Cir.), cert. denied, 397 U.S. 1042, 90 S.Ct. 1365, 25 L.Ed.2d 653 (1970).

      . Hoehling v. Universal City Studios, Inc., 618 F.2d 972, 979 (2d Cir.), cert. denied, 449 U.S. 841, 101 S.Ct. 121, 66 L.Ed.2d 49 (1980).

      . Id., 618 F.2d at 978.


author: REYNOLDS, Chief Judge.

text:
    Lawrence VANDENPLAS and Barbara Vandenplas, Plaintiffs, v. CITY OF MUSKEGO, et al., Defendants.
    Civ. A. No. 81-C-1043.
    United States District Court, E.D. Wisconsin.
    July 1, 1985.

      Robert E. Sutton, Milwaukee, Wis., for plaintiffs.
    Raymond J. Pollen, Milwaukee, Wis., for defendants.
   DECISION AND ORDER

REYNOLDS, Chief Judge.

The plaintiffs brought this action for damages and declaratory relief pursuant to 42 U.S.C. § 1983 and the court has jurisdiction under 28 U.S.C. §§ 1331 and 1343. The action is before the court on the defendants’ renewed motion for attorneys’ fees as the prevailing parties pursuant to 42 U.S.C. § 1988. The defendants initial motion for attorneys’ fees was denied without prejudice pending appeal. The disposition of this case was affirmed on appeal, Vandenplas v. City of Muskego, 753 F.2d 555 (7th Cir.1985), and the renewed motion is fully briefed and ready for decision.

The plaintiffs sought redress against the City of Muskego and various city officials and employees for the city’s ultimately successful effort at obtaining and executing a condemnation order to raze an old farmhouse and barn used for storing grain and housing hogs, respectively, on the plaintiffs’ property. The condemnation order was issued pursuant to § 66.05 Wis.Stats. on August 8, 1980, and after several state court hearings, an appeal to the Wisconsin Court of Appeals, and the denial of injunctive relief in federal district court, the house and barn were destroyed on June 12, 1981. This action was filed on August 5, 1981.

The complaint raised six claims, only one of which went to trial. The defendants were granted summary judgment on Counts 1 and 2, which alleged that the decision to condemn the buildings violated the plaintiffs’ constitutional rights to due process and equal protection and was taken in retaliation for the plaintiffs’ exercise of their First Amendment rights, because these claims could have been raised in the prior state court proceedings and were consequently precluded on grounds of res judicata.

The defendants were also granted summary judgment on claim 3, which alleged that the members of the common council, the mayor, the building inspector and the city were liable because they failed to adopt a special resolution, after the conclusion of the state court proceedings, to permit the plaintiffs to repair the buildings and avoid the raze order. The Court ruled that the claim that the council failed to adopt the resolution in retaliation for the plaintiffs’ exercise of their First Amendment was not actionable under the circumstances presented. The state court found that the raze order was reasonable after viewing the property, and the council was entitled to rely on this finding, absent some allegation that the council had a general practice of passing special resolutions to reverse raze orders for structures belonging to individuals who had not engaged in First Amendment activity.

Finally, summary judgment was granted on claim 6, which joined the public works employees who executed the raze order, because the order itself was constitutional. Claim 5 simply alleged that the City was a proper defendant on the basis of its statutory indemnity liability for the actions of its employees acting within the scope of their employment. Consequently, claim 5 was dismissed to the extent that it related to indemnification for the claims that were dismissed. Only the claim that the police used excessive force against the plaintiffs on the day the raze order was executed went to trial.

The defendants’ motion for attorneys’ fees under § 1988 must be considered under the same standard applicable to a defense request for fees under Title VII of the Civil Rights Act of 1964. Hughes v. Rowe, 449 U.S. 5, 101 S.Ct. 173, 66 L.Ed.2d 163 (1980). Thus, “a district court may in its discretion award attorney’s fees to a prevailing defendant ... upon a finding that the plaintiff’s action was frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith.” Christianburg Garment Co. v. EEOC, 434 U.S. 412, 421, 98 S.Ct. 694, 700, 54 L.Ed.2d 648 (1977). The mere fact that the plaintiff did not prevail is not a sufficient reason for finding his action unreasonable or without foundation, however, and the court should not engage in post hoc reasoning. Id.

Applying these principles to the facts of this case, the Court finds that each of the claims dismissed prior to trial were utterly frivolous. The plaintiffs were given ample opportunity to challenge the raze order in the state courts and the claim that they were denied due process under the condemnation statute was meritless. Moreover, the plaintiffs’ constitutional claims related to the issuance and execution of the condemnation order by the city and its officials were a transparent attempt to seek collateral review of a final state court judgment. Under the statute, the state court made specific findings that the buildings constituted a public nuisance and that the raze order was reasonable. The plaintiffs could have raised their claims of retaliation in the state proceeding and failed to do so.

The argument that the statute is unconstitutional because it prevents a property owner from spending an excessive amount to repair a dilapidated structure is equally frivolous under the facts of this case. Despite its finding that the raze order was reasonable, the state court stayed the order for six months to allow the plaintiffs to make repairs. The plaintiffs failed to take advantage of this opportunity, yet sought damages in this action in part because they were not given additional time to make repairs. Although the Court of Appeals ruled after the fact that the six month stay was improper, the plaintiffs were not damaged by the statutory presumption that repair is unreasonable if the costs are excessive.

The plaintiffs claim that they were denied equal protection since their agricultural property was judged by a standard applicable to residential property was also frivolous. The statute applies to buildings that are unfit for human habitation, occupancy or use. The plaintiffs did not contend that the buildings were not used by humans. The focus of the statute is on the condition of the building, and not on the use to which it is put. The state court judge viewed the buildings before finding the raze order reasonable, and the plaintiffs had an opportunity to challenge this finding in the state courts. The plaintiff presented no evidence to suggest that similarly situated agricultural buildings were treated more favorably.

The plaintiffs’ claim that the police used excessive force against them on the day the buildings were razed was tried, and the jury found that the defendants were not liable and that the plaintiffs had suffered no damages. The jury’s verdict does not compel a finding that this claim was frivolous, however, since reasonable minds could differ on the evidence presented. Although the excessive force claim was weak, it was not without foundation as a matter of law like the claims dismissed before trial. Consequently, the Court will deny the defendants’ motion for attorneys’ fees for any work attributable to defending against the excessive force claim.

The Court is mindful of the fact that prevailing defendants seeking attorney’s fees under § 1988 face a heavy burden so that plaintiffs are not discouraged from attempting to enforce their constitutional or statutory rights under § 1983. Nonetheless, the Court finds that the defendants are entitled to an award of fees in this case, since all but one of the plaintiffs’ claims were utterly frivolous and unreasonable and the pursuit of these claims was a waste of judicial resources. Attorneys who represent plaintiffs in § 1983 actions have an obligation to other parties, the court, and especially to their clients, to realistically assess potential claims in light of the facts and to inform their clients when they have no valid claim and to retreat from asserted claims once discovery fails to disclose a sufficient factual basis to support them. Thus, § 1988 works both to encourage the pursuit of meritorious claims by “private attorney generals” and as a sanction in cases like this where the plaintiffs unreasonably require persons acting under color of state law to defend their actions.

The Court has reviewed the detailed affidavit of time spent defending this action and finds the amount of time spent justified and the hourly rate requested reasonable and consistent with the prevailing rate for similar work in this area. Counsel for the defendants is directed to “break out” those entries attributable to defending the excessive force claim and file a supplementary affidavit on or before July 19, 1985, setting forth the time spent defending the claims dismissed prior to trial. The plaintiffs shall file any objections to the computations set forth in the supplementary affidavit within 10 days of receipt thereof.

IT IS THEREFORE ORDERED that the defendants’ motion for attorneys’ fees is granted in part and the parties shall proceed in accordance with this decision.


author: CASTAGNA, District Judge.

text:
    Estella FRAZIER, et al., individually and on Behalf of all others similarly situated, Plaintiffs, v. David PINGREE, Secretary of Health and Rehabilitative Services, State of Florida, and Margaret M. Heckler, Secretary of the U.S. Department of Health and Human Services, Defendants.
    No. 85-640 Civ-T-15.
    United States District Court, M.D. Florida, Tampa Division.
    July 2, 1985.

      Michael A. Campbell and Maria L. Soto, Florida Rural Legal Services, Bartow, Fla., for plaintiffs.
    Dennis I. Moore, Asst. U.S. Atty., Tampa, Fla., for defendant Heckler.

      Harden King, Asst. Gen. Counsel for Dept, of Health and Rehab. Services, Tallahassee, Fla., for defendant Pingree.
   ORDER

CASTAGNA, District Judge.

This matter is before the Court on the plaintiffs’ Motion For Preliminary Injunction. That Motion was set for hearing, and the Court heard argument from plaintiffs’ counsel, as well as counsel for both of the governmental defendants. At the Court’s request, counsel have submitted supplemental memoranda, and the matter is now ripe for determination.

This case was brought as a class action on behalf of certain minor children who receive insurance benefits under Title II of the Social Security Act and who have half-siblings qualifying for benefits under the Aid to Families with Dependent Children (AFDC) program, and also on behalf of the class of persons comprised of the minor class members’ parents and care-taker relatives. The plaintiffs seek to enjoin the enforcement of rules promulgated by the Florida Department of Health and Rehabilitative services (HRS) and the United States Department of Health and Human Services (HHS) that require the inclusion of the minor class plaintiffs in AFDC assistance groups for purposes of computing AFDC allotments. In most cases the inclusion of the Title II minor plaintiffs in those groups results in a decrease in the AFDC group’s financial payment from HRS, which according to the plaintiffs results in the improper use of the minor plaintiffs’ Title II benefits by the entire assistance group. The plaintiffs therefore seek to enjoin the enforcement of various HHS and HRS rules and regulations contending that those administrative regulations violate the Social Security Act itself and numerous of the plaintiffs’ constitutional protections. The defendants respond, of course, by asserting that their regulations are neither unlawful nor unconstitutional, and that in fact they comport fully with the Social Security Act and the Deficit Reduction Act of 1984 (DRA).

The Court has carefully examined the parties’ submissions in their entireties, and it is clear that the exact issue before this Court is one that has been grappled with extensively by other courts in recent months. Counsel has cited three district court decisions finding in the government’s favor on identical or substantially similar issues. See Creaton v. Heckler, Case No. 85-3306-R (C.D.Cal. Unpublished Order dated June 20, 1985); Huber v. Blinzinger, Case No. S 82-542 (N.D.Ind. Unpublished Memorandum and Order dated April 8, 1985); Shonkwiler v. Heckler, Case No. IP 84-1612-C (S.D.Ind. Unpublished Order dated February 20, 1985). Two contrary decisions support the plaintiffs' position here. See White Horse v. Heckler, Case No. CIV. 85-3006 (D.S.Dak. Unpublished Memorandum Opinion dated March 29, 1985); Gorrie v. Heckler, 606 F.Supp. 368 (D.Minn.1985). This Court need not recultivate in depth the grounds of the decisions in the aforementioned cases, those courts having considered in detail the respective arguments that have been presented by the parties to this case. Rather, this Court finds the rationale set forth in Judge Porter’s White Horse Opinion and in Judge Lord’s Gorrie Opinion to be persuasive.

It is apparent to this Court, as pointed out in White Horse, that the core issue involved here is whether Congress implicitly or explicitly intended to alter the provisions of the Title II benefits legislation contained in Section 205(j), 42 U.S.C. § 405(j), and Section 208(e), 42 U.S.C. § 408(e), by enacting Section 2640(a) of the Deficit Reduction Act of 1984, Pub.L.No. 98-369, 98 Stat. 494, 1145 (1984). If not, the HRS and HHS regulations adopted in reliance upon that interpretation would be invalid. This Court preliminarily concludes, as did Judge Porter, that the ambiguous reference to § 205(j) in § 2640(a) and the legislative history of that section are simply not sufficient to indicate such an alteration of the core essence of the Title II benefits scheme—that those benefits are to be used only on behalf of the minor beneficiary. This Court might be more inclined to find such an implied repeal if the question merely involved § 205®, due to the mention of that section in the text of § 2640(a). See Appendix. But due to the criminal nature of § 208(e), the Court is extremely reluctant to read § 2640(a)’s ambiguous reference to § 205® as an implied repeal of § 208(e). Representative payees simply should not be required to rely on this bootstrapping argument, which is based on an ambiguous reference to § 205® to begin with, in light of the potential risk for criminal sanctions under § 208(e). As the Court noted in Huber, supra, at 5-6, a specific statute is not subject to repeal by implication by a later generalized statute absent a clear intention to do so. Contrary to the finding in Huber, however, no such clear intention to repeal the earlier criminal statute appears to the Court’s satisfaction in this case.

The federal government additionally argues that “under prior law, if a Title II child was voluntarily included in the assistance unit by the caretaker relative, the Secretary never considered the representative payee’s use of OASDI benefits for other family members to be a violation of section 208(e).” Federal Defendant’s Brief (D #20), at 21. Although the Affidavit of Harris G. Factor (D #21), at paragraph 5, corroborates this statement relying upon State Letter No. 1088 attached to the Affidavit, that Letter clearly states the further requirement that the Title II child may be included in the AFDC family unit only where the end result is a benefit to the child that would not otherwise result. The defendant’s argument that the conduct required here of using the Title II benefits for other family members falls within this prior permissible conduct is not accurate. As in the case of the named plaintiffs, such action will clearly diminish the benefits received from the Title II payments by the minor recipient, as the family unit’s AFDC income will be almost totally wiped out and the only other income is the Title II benefits. The defendants would be hard put to classify that result as “clearly advantageous” to the minor child as required under Letter No. 1088.

The federal defendant has also argued that the secretary is in the process of promulgating new regulations to harmonize its view of a payee’s obligations under Title II with the new requirements of the DRA. Even if this is true, the Court notes that named plaintiff Doris Johnson is still under direction from HHS to use the Title II benefits for only the minor beneficiaries’ benefit. See Appendix III—3, HHS Letter affixed to the Affidavit of Doris Johnson. At any rate, in light of the Court’s earlier conclusion as to the repeal issue, the validity of any new regulations permitting the use of Title II benefits for other family members and/or decriminalizing such behavior would be subject to serious question.

And as a final matter, the Court notes that there are apparently serious inconsistencies arising from the treatment of the Title II benefits depending upon the status of the representative payee as either custodial or non-custodial. As the plaintiffs point out in their Supplemental Memorandum at 3-4, the new regulations permit different treatment of Title II benefits for AFDC purposes depending upon the status of the representative payee. That distinction has been carried though in the Florida Administrative Code with a distinction as to the form of the benefits conferred on the Title II minor by a non-custodial payee. In sum, the end result is that a non-custodial payee may confer the entire Title II benefits on the minor beneficiary in the form of merchandise or other non-cash benefits, and those benefits would not qualify as family income for AFDC purposes. Fla. Admin.Code 1001.102(1). The result, illogically, is that a non-custodial payee can circumscribe the inclusion of the Title II benefits in the AFDC allowance computation entirely, while the custodial payee can not do so. While this inconsistency itself will not result in invalidation of the regulations in question, the Court views this result as indicative of confusion as to whether the “sole use” standard under Title II has in fact been repealed.

In reaching this conclusion, the Court is mindful of the authority cited by the federal defendant requiring that substantial deference be extended by the courts to the responsible agency’s interpretation of legislation for which it bears the responsibility of administering, so long as that interpretation is reasonable and consistent with the underlying congressional purpose for the legislation. The problem is that here, this Court must balance this deference against the constraints of implied repeal and the potential criminal ramifications stemming therefrom. In short, the Court recognizes Congress’ intent to reduce the federal deficit by passing the DRA, but there is not a sufficient indication that by that action Congress also intended to alter the very foundations of the Title II program, with the corresponding consequences that would accompany such drastic action.

With this preliminary evaluation in mind, the Court notes that this matter is presently before the Court on the plaintiffs’ Motion for Preliminary Injunction. The four classic prerequisites for granting such extraordinary relief are: 1) a substantial likelihood of ultimate success on the merits; 2) irreparable injury arising from the denial of injunctive relief; 3) that the threatened injury to the plaintiff outweighs the harm to the defendant resulting from the injunction; and 4) that issuance of the injunction will not disserve the public interest. Canal Authority v. Callaway, 489 F.2d 567 (5th Cir.1974). The Court finds that each of these requirements has been met. In light of the preceding discussion, the plaintiffs of course have a substantial likelihood of success on the merits, and the Court has not even addressed the substantial constitutional questions raised in the remaining five counts of the complaint. Irreparable injury will also arise from both the irreversible economic consequences and potential damage to the plaintiffs’ familial life stemming from the defendants’ actions. Finally, the Court finds that the injunction would serve the public’s interest and that any harm to the defendants would be outweighed by the injuries occasioned upon the plaintiffs, having considered the effect of the injunction upon the respective pocketbooks of the federal budget and the destitute individuals involved here. As both the plaintiffs’ and defendants’ arguments on this score implicitly recognize, the propriety of issuing an injunction in this case to a large degree turns upon the Court’s perception of the strength of the merits and whether the statutory fiscal scheme involved would be frustrated or promoted by such relief. Having found in the plaintiffs’ favor in this regard earlier, the Court can now hardly find that the denial of an injunction would promote the statutory scheme found in the DRA as urged by the defendants.

The final matter for the Court’s determination at this time is the question of whether this case should be certified as a class action, and the related question of the scope of the injunctive relief to be granted. The defendants urge that this matter need not be certified as a class action under F.R.Civ.P. 23(b)(2) inasmuch as any relief granted on behalf of the named plaintiffs would necessarily affect any prospective class members. The problem with this argument is that it assumes that any injunctive relief granted on behalf of the named plaintiffs by this Court would necessarily encompass the prospective class members. The defendants simply assume too much. An injunction preventing enforcement of the regulations in question as against the named plaintiffs only would not prohibit the general enforcement of those regulations against the prospective class members.

Furthermore, it is true that Edelman v. Jordan, 415 U.S. 651, 668, 94 S.Ct. 1347, 1358, 39 L.Ed.2d 662 (1974), would prohibit the restoration of past unpaid benefits to members of the prospective classes. For that reason, failure to certify a class at this time would result in an unremediable loss of benefits should the defendants decline to apply the Court’s decision regarding the named plaintiffs to the prospective plaintiff classes as a whole. Finally, the Court perceives the defendants’ concerns about the increased costs and inefficiency of litigating this matter as a class action to be greatly exaggerated. The issues involved in this case are largely legal issues of interpreting the DRA, Title II and the administrative regulations promulgated thereunder. The Court does not anticipate that substantial discovery would be required as to the elements necessary to challenge class certification, and. any costs that might be incurred would certainly be less than the cost of litigating numerous individual suits. Due to the nature of the claims presented, the type of relief sought, and the indigent status of the prospective plaintiffs involved, this Court cannot imagine a more appropriate case for proceeding efficiently under the auspices of Rule 23. Alternatively, of course, should the defendants at a later time agree to be bound by and to apply the Court’s decision as to the named plaintiffs to any similarly situated prospective class members, the Court might well consider the decertification of any previously certified classes for purposes of simplifying the litigation.

Turning then to the four prerequisites for class certification under Rule 23(a), the Court finds that joinder of all prospective plaintiffs would be impractical due to the estimated number of plaintiffs “far exceeding 100” persons; that all of their claims are typical in that the challenged regulations operate against all in the same manner; that the named plaintiffs clearly fall within and have consistent interests with the prospective classes; and that plaintiffs constitute adequate class representatives, both as individuals and as to the counsel they have retained. This Court consequently determines that this matter should be preliminarily certified as a class action as set forth below.

Based upon the foregoing, it is accordingly

ORDERED:

1. The plaintiffs’ Motion For Preliminary Injunction is GRANTED. The defendants are enjoined from enforcing any regulation, including but not limited to 45 CFR § 206.10(a)(l)(vii)(B) (1984), 49 Fed. Reg. 35589, Rule 10C-1.101(l)(a), Rule 10G-1.102(l)(c), and Fla. emergency rule 10 CER 84-6, against the plaintiff class members designated below in such a manner as to require the inclusion of the Title II beneficiaries in Class 1 in the AFDC assistance group containing their custodial payees designated in Class 2.

2. On or before July 19, 1985, both defendants are to file notices with this Court acknowledging their compliance with this Order. Those notices shall set forth the steps taken by the defendants to ascertain the members of the prospective classes and to ensure compliance with this Order.

3. The plaintiffs’ Motion For Class Certification is GRANTED. The following two classes are provisionally certified pursuant to Fed.R.Civ.P. 23(b)(2):

CLASS 1: All children (suing by and through their natural guardians and next friends) in the State of Florida who receive Child’s Insurance Benefits under Title II of the Social Security Act and who have half-brothers or -sisters who (i) are dependent children as defined in 42 U.S.C. § 602(a)(1), or (ii) would be dependent children but for the defendants’ actions in deeming the class members’ Title II benefits as income to the half siblings.
CLASS 2: All custodial parents and other care-taker relatives of the members of Class 1, which parents and relatives are also representative payees of the Child’s Insurance Benefits of the members of Class 1.

4. Due to the plaintiffs’ indigent status and the nature of this action, the plaintiffs are relieved of the bond requirements set forth in Fed.R.Civ.P. 65.

5. That the federal defendant’s Motion to Dismiss is Denied.

6. On or before July 12, 1985, counsel for all parties are to confer and report to the Court the parties’ respective intentions as to the future course of this litigation, including but not limited to:

a. The estimated length of time to complete discovery;
b. The extent and nature of discovery contemplated; and
c. Whether accelerated disposition of the merits is called for.

APPENDIX

1. Section 2640(a) of the Deficit Reduction Act of 1984, 42 U.S.C. § 602(a)(38):

(38) provide that in making the determination under paragraph (7) with respect to a dependent child and applying paragraph (8) the State agency shall (except otherwise provided in this part) include: (a) any parent of such child, and (b) any brother or sister of such child, if such brother or sister meets the conditions described in clauses (1) and (2) of 406(a), if such parent, brother, or sister is living in the same home as the dependent child, and any income of or available for such parent, brother or sister shall be included in making such determination and applying such paragraph with respect to the family (notwithstanding section 205®, in the case of benefits provided under Title II); ....

2. Section 205® of Title II, 42 U.S.C. § 405®:

(j) Direct or indirect certification
When it appears to the Secretary that the interest of an applicant entitled to a payment would be served thereby, certification of payment may be made, regardless of the legal competency or incompetency of the individual entitled thereto, either for direct payment to such applicant, or for his use and benefit to a relative or some other person.

3. Section 208(e) of Title II, 42 U.S.C. § 408(e):

Whoever—
(e) having made application to receive payment under this subchapter for the use and benefit of another and having received such a payment, knowingly and willfully converts such a payment, or any part thereof, to a use other than for the use and benefit of such other person; shall be guilty of a felony____