author: GLASSER, District Judge:

text:
    INTERFACE BIOMEDICAL LABORATORIES CORP., Plaintiff, v. AXIOM MEDICAL, INC., Defendant.
    No. 84 Civ. 3447.
    United States District Court, E.D. New York.
    Jan. 11, 1985.

      Pennie & Edmonds, New York City, for plaintiff.
    Davis, Hoxie, Faithfull & Hapgood, New York City, for defendant.
   MEMORANDUM AND ORDER

GLASSER, District Judge:

Plaintiff in this action seeks injunctive and declaratory relief, and damages, for defendant's activities in connection with the manufacture and marketing of a medical product known as SUPERSTAT. Plaintiff’s complaint alleges four claims for relief: (1) for a declaratory judgment that the parties have not entered a joint venture agreement and defendant is not plaintiff’s exclusive distributor and licensee (“Count 1”); (2) for injunctive relief restraining defendant from engaging in trade secret misappropriation (“Count 2”); (3) for injunctive relief restraining defendant from engaging in unfair competition (“Count 3”); and (4) for damages for unjust enrichment (“Count 4”).

Defendant has moved under Rule 12(b)(2) of the Federal Rules of Civil Procedure for an order dismissing the complaint for lack of personal jurisdiction, and under Rule 12(b)(3) for an order dismissing the complaint for improper venue insofar as Counts 3 and 4 allege patent infringement. For the reasons that follow, defendant’s motion is denied with respect to Count 1, and granted with respect to Count 2, 3 and 4. I find it unnecessary to decide defendant’s motion with respect to venue. Background

Plaintiff is a New York corporation, with its principal place of business in Brooklyn, New York, engaged in the research and development of medical products. Plaintiff maintains that it is in the business of licensing patents and associated trade secrets to responsible organizations, but that it is not presently engaged in the sale of medical products. Defendant is a California corporation, with its principal place of business in California, engaged in the manufacture and sale of medical products. Plaintiff has developed a medical product called SUPERSTAT, for which it claims to have acquired various trademarks, patents, trade secrets and other confidential proprietary information. Prior to the events that gave rise to the present action, SUPERSTAT was manufactured by Smith Laboratories Company and marketed by Superstat Corporation, a corporation which was jointly formed by plaintiff and Orange Medical for the purpose of marketing SUPERSTAT. In early 1983, both Smith and Orange withdrew from the manufacture and sale of SUPERSTAT, and plaintiff acquired the rights to manufacture and market SUPERSTAT.

Byron Economidy, the president of defendant, and Philip Sawyer, the president of plaintiff, initially met at a medical convention in San Francisco during June of 1983. Defendant claims that the parties entered into an oral joint venture agreement at that meeting, under which defendant was to manufacture and market SUPERSTAT under an exclusive licensing and distributorship arrangement with plaintiff. Plaintiff claims that the parties merely discussed the “possibility” of such an agreement. Letters exchanged by the parties after the meeting tend to confirm plaintiffs contention. In defendant’s June 20, 1983 letter to plaintiff, Economidy stated that he was “excited about the opportunity to possibly work with you.” Exhibit 1 to Sawyer Affidavit (emphasis added). Plaintiff’s responsive letter, dated July 12, 1983, ■ stated: “This letter is sent to you to produce a formal relationship between [plaintiff and defendant] assuming that an attempt will be made by the co-joint companies to market SUPERSTAT____ I would be willing to consider placing the current manufacturing and marketing of SUPERS-TAT in Axiom’s hands on the presumption that Impra and Mr. Boyd Baker do not pick up their option on SUPERSTAT.” Exhibit 2 to Sawyer Affidavit.

During the following year, Sawyer and Economidy met three times in New York. Plaintiff claims that the parties negotiated the terms of a potential joint venture agreement at all three meetings. Defendant claims that no negotiations with regard to a joint venture agreement occurred at any of the three meetings. The parties agree that at the first meeting, in July 1983, Sawyer demonstrated the use of SUPERSTAT in surgery; at the second meeting in October 1983, the parties discussed certain matters unrelated to the SUPERS-TAT agreement; and the third meeting in May 1984 occurred at a trade convention. During the same time period, the parties and their attorneys engaged in numerous written and telephonic communications with regard to the negotiation of a written joint venture agreement. Also during this period, plaintiff sent defendant various trademarks, existing inventories of SUPERSTAT, and information on trade secrets and processes involved in the manufacture of SUPERSTAT. Defendant subsequently contracted for the manufacture of SUPERSTAT by a third party, and began selling the product.

On July 20, 1984, plaintiff sent the defendant a letter withdrawing “all offers and proposals” and demanding that defendant cease and desist from making, using, selling, or offering for sale any products involving plaintiff’s patents, trademarks and know-how. Exhibit 5 to the Sawyer Affidavit. Defendant responded in a letter dated July 27, 1984, asserting that the parties had entered into a joint venture agreement regarding the manufacture and marketing of SUPERSTAT, advising plaintiff that defendant intended to continue its marketing of SUPERSTAT, and formally refusing to comply with the demands expressed in the July 20, 1984 letter.

In a letter to the Food & Drug Administration dated July 30, 1984, defendant stated:

Axiom Medical, Inc., as exclusive distributor and licensee under Interface Biomedical Laboratories Corp., for the manufacture of SUPERSTAT, is requesting permission to have a new additional manufacturing site for our SUPERSTAT Hemostatic Collagen Sponge.

Exhibit 6 to the Sawyer Affidavit. Plaintiffs attorney admitted at oral argument that defendant has not manufactured SUPERSTAT since it received plaintiffs July 20, 1984 letter, but states that he has reason to believe that defendant is seeking to manufacture SUPERSTAT outside the United States. Transcript of Oral Argument held on October 26, 1984, at 28-29.

Discussion

In determining the amenability of a foreign corporation to a suit in federal district court, the court must apply the standards for personal jurisdiction of the state in which it sits. Arrowsmith v. United Press International, 320 F.2d 219, 223 (2d Cir.1963); Round One Productions Inc. v. Greg Page Enterprises, Inc., 566 F.Supp. 934, 935-36 (E.D.N.Y.1982). Defendant has conceded that the assertion of jurisdiction in this ease would be constitutional. Therefore, the only question remaining for determination is whether “long-arm” jurisdiction can be asserted in this case under § 302 of the New York Civil Practice Law and Rules (“CPLR”). The court must “determine the issue of personal jurisdiction separately for each cause of action asserted in [the plaintiffs] complaint.” Sterling Television Presentations v. Shintron, 454 F.Supp. 183 (S.D.N.Y.1978). Cf. Darby Drug Company, Inc. v. Zlotnick, 573 F.Supp. 661 (E.D.N.Y.1983) (finding personal jurisdiction for causes of action for misappropriation of corporate opportunity and breach of fiduciary duty, but no personal jurisdiction for causes of action for misappropriation of trade secrets); R.F.D. Group Limited v. Rubber Fabricators, Inc., 323 F.Supp. 521 (S.D.N.Y.1971) (finding personal jurisdiction with respect to causes of action for copyright violations, trademark violations and unfair competition through the sale of products in New York, but no personal jurisdiction with respect to causes of action for breach of contract and unfair competition by the wrongful appropriation of trade secrets).

A. Count 1

C.P.L.R. § 302(a) provides:

Acts Which Are the Basis of Jurisdiction. As to a cause of action arising from any of the acts enumerated in this section, a court may exercise personal jurisdiction over any non-domiciliary, or his executor or administrator, who in person or through an agent:
(1) transacts any business within the state or contracts anywhere to supply goods or services in the state; or
* * * * * *
(3) commits a tortious act without the state causing injury to person or property within the state, except as to a cause of action for defamation of character arising from the act if he
(i) regularly does or solicits business or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered in the state, or
(ii) expects or should reasonably expect the act to have consequences in the state and derives substantial revenue from interstate or international commerce.

Plaintiff claims that the three meetings between the parties which took place in New York constitute a transaction of business in New York sufficient to establish personal jurisdiction with regard to Count 1 — the cause of action for declaratory judgment. The defendant contends that a joint venture agreement was created when the parties met in San Francisco, no negotiations occurred at the later three meetings in New York, and therefore, there was no transaction of business sufficient to establish jurisdiction.

The Second Circuit has stated: Marine Midland Bank, N.A. v. Miller, 664 F.2d 899, 904 (2d Cir.1981) (citing Visual Sciences, Inc. v. Integrated Communications, Inc., 660 F.2d 56 (2d Cir.1981); Welsh v. Gibbs, 631 F.2d 436, 438-39 (6th Cir.1980), cert. denied, 450 U.S. 981, 101 S.Ct. 1517, 67 L.Ed.2d 816 (1981); Data Disc, Inc. v. Systems Technology Associates, Inc., 557 F.2d 1280, 1285 (9th Cir. 1977)).

In deciding a pretrial motion to dismiss for lack of personal jurisdiction, a district court has considerable leeway. It may determine the motion on the basis of affidavits alone, or it may permit discovery in aid of the motion, or it may conduct an evidentiary hearing on the merits of the motion____ If the court chooses not to conduct a full-blown evidentiary hearing on the motion, the plaintiff need make only a prima facie showing of jurisdiction through its own affidavits and supporting materials. Eventually, of course, the plaintiff must establish jurisdiction by a preponderance of the evidence, either at a pretrial evidentiary hearing or at trial. But until such hearing is held, a prima facie showing suffices, notwithstanding any controverting presentation by the moving party to defeat the motion.

When a court decides a motion to dismiss for lack of personal jurisdiction on the basis of affidavits and pleadings alone, it must resolve all doubts raised by the papers in the light most favorable to the plaintiff. Round One Productions, Inc. v. Greg Page Enterprises, Inc., 566 F.Supp. 934 (E.D.N.Y.1982); American Contract Designers, Inc. v. Cliffside, Inc., 458 F.Supp. 735 (S.D.N.Y.1978). This Court will therefore treat the plaintiff s complaint and the Sawyer Affidavit as true for purposes of deciding this motion.

The New York Court of Appeals has held that even a single transaction of business in New York, out of which the cause of action has arisen, may be sufficient for the assertion of longarm jurisdiction under C.P.L.R. § 302(a)(1). Longines-Wittnauer Watch Co. v. Barnes & Reinecke, Inc., 15 N.Y.2d 443, 456, 261 N.Y.S.2d 8, 18, 209 N.E.2d 68, 75, cert. denied sub nom. Estwing Mfg. Co. v. Singer, 382 U.S. 905, 86 S.Ct. 241, 15 L.Ed.2d 158 (1965). It has been said that the “relevant inquiry is whether the defendant has performed ‘purposeful acts’ in New York ‘in relation to the contract, albeit preliminarily or subsequent to its execution.’ ” American Contract Designers, 458 F.Supp. at 739, citing Longines-Wittnauer, 15 N.Y.2d at 457, 261 N.Y.S.2d at 18, 209 N.E.2d at 75. Accordingly, courts have held that a defendant’s presence in New York to negotiate a contract, which formed the basis of the cause of action, is sufficient for purposes of longarm jurisdiction. Liquid Carriers Corp. v. American Marine Corp., 375 F.2d 951 (2d Cir.1967); Round One Productions, 566 F.Supp. at 937; Bastille Properties, Inc. v. Hometels of America, Inc., 476 F.Supp. 175, 177 (S.D.N.Y.1979); American Contract Designers, Inc., 458 F.Supp. at 739. As one court has explained:

“Under Liquid Carriers Corp. v. American Marine Co., 375 F.2d 951, 955-956 (2nd Cir.1967), any contract negotiations evidencing a purposeful invocation of the laws of the foreign state are transactions of business for purposes of the longarm statute. It does not matter whether the negotiations are preliminary, or whether the contract is executed in New York, or whether the performance is contemplated for New York.... It therefore seems that the application of N.Y.C.P.L.R. § 302(a)(1) does not necessarily depend on the number of negotiating sessions or their proximity to the ultimate agreement; as long as the discussions ‘significantly advance the making of a corporate contract of importance,’ it would appear that the participants had transacted business within the state.”

Bastille Properties, 476 F.Supp. at 177.

In the present case, Economidy, as president of defendant, travelled to New York to attend a demonstration of the use of SUPERSTAT in surgery, and as plaintiff contends, to negotiate a contract concerning the manufacture and marketing of SUPERSTAT. There can be no question that on this visit Economidy’s presence in New York was for purposes of advancing a potential, or even existing, SUPERSTAT joint venture. Plaintiff contends that the parties also met in New York on two subsequent occasions for the purpose of negotiating a SUPERSTAT joint venture agreement. As in American Marine, the defendant “stood to derive considerable economic benefit from these excursions to New York,” American Marine, 375 F.2d at 956, and did indeed derive such benefit when plaintiff sent various trademarks, trade secrets and existing inventories of SUPERSTAT to defendant in California. Defendant’s conduct in New York demonstrates sufficiently purposeful activity to constitute the transaction of business under C.P.L.R. § 302(a)(1).

Defendant contends that the cases cited above, and similar cases cited in plaintiff’s memorandum, are distinguishable in that in those cases, the discussions in New York played a significant role in the negotiation process and ultimately led to the creation of a formal agreement. That is, the negotiations significantly advanced the formation of an agreement. Treating plaintiff’s affidavit as true, as I must on this motion to dismiss, defendant’s contention must be rejected. Plaintiff maintains that during the first meeting in New York, Economidy and Sawyer “discussed manufacturing details, alternative sizes and shapes for the product, potential areas of application and marketing ideas.” Sawyer Affidavit 1113. Subsequent to that meeting, plaintiff did ship to defendant “a complete set of trademarks for SUPERSTAT, a large quantity of raw material used in its manufacture, and volumes of documents relating to F.D.A.’s Premarket Approval which included various details of the SUPERSTAT manufacturing process.” Id. II14. These allegations are sufficient to meet plaintiff’s burden of showing that substantial negotiations took place in New York and that those negotiations significantly advanced the formation of an agreement.

Even if, as defendant contends, the parties first meeting in New York was solely for the purpose of conducting a demonstration and no negotiations took place during the meeting, jurisdiction may still be properly asserted in this case. “Meetings which are partially social in nature, as well as meetings which merely create the likelihood of a more solid business relationship are a sufficient basis for the exercise of in personam jurisdiction.” Round One Productions, 566 F.Supp. at 937-38. The only conceivable purpose of the demonstration was to foster a more solid relationship, if not a contract, with respect to the manufacture and marketing of SUPERSTAT. The meeting did indeed have that effect, as plaintiff subsequently shipped to defendant the various materials described above. See Sawyer Affidavit 1114. Likewise, after the second meeting, plaintiff provided defendant with a variety of information, services and products relevant to the manufacture and marketing of SUPERSTAT. Sawyer Affidavit 1116. Even if the meetings in New York were partially social in nature, they demonstrated sufficiently purposeful activity in New York to justify the assertion of longarm jurisdiction.

In light of the above, I find that plaintiff has sufficiently alleged the transaction of business in New York to withstand a motion to dismiss for lack of personal jurisdiction with respect to Count 1 of the complaint.

B. Counts 2, 3 and 4

Count 2 alleges that plaintiff supplied defendant with various trade secrets and confidential information relating to SUPERSTAT and that, since July 20, 1984, defendant has wrongfully refused to cease using and return the trade secrets and confidential information to the plaintiff. Count 3 alleges that defendant has engaged in unfair competition by using and exploiting plaintiffs patents, trademarks, trade secrets and confidential information. Count 4 alleges that defendant has unjustly enriched itself by profiting from the sale of SUPERSTAT which defendant obtains and sells by virtue of the misappropriation and unauthorized use of plaintiff’s patents, trademarks, trade secrets and confidential information. Plaintiff seeks to assert jurisdiction over defendant on these claims under either CPLR § 302(a)(1) or (3).

Jurisdiction cannot be asserted over Counts 2, 3 and 4 under CPLR § 302(a)(1). That section “requires not only that the defendant ‘transact business’ in the state, but that the cause of action ‘arise’ from the business so transacted.” Xedit Corp. v. Harvel Industries Corp., Fidelipac, 456 F.Supp. 725, 728 (S.D.N.Y.1978), citing Fontanetta v. American Board of Internal Medicine, 421 F.2d 355, 357 (2d Cir. 1970). Counts 2, 3 and 4 do not arise from defendant’s transaction of business in New York (the three meetings between Sawyer and Economidy in New York). Rather, these claims arise from defendant’s allegedly continuing or threatened use of plaintiff’s trademarks, patents and trade secrets after negotiation of the joint venture agreement had broken down and plaintiff had sent defendant the July 20, 1984 letter demanding that defendant cease and desist from making, using or selling SUPERSTAT and using defendant’s various intellectual property rights concerning the manufacture and sale of SUPERSTAT. Where, as here, the New York meetings did not cause or further the alleged misappropriation of intellectual property rights “except to the .extent that it was a link in the chain of events leading to the claim for which relief is sought,” the misappropriation claim and related unfair competition claim cannot be said to arise from transactions of business in New York. Xedit, 456 F.Supp. at 729. Accordingly, the courts have uniformly held that jurisdiction will not lie under § 302(a)(1) where contract negotiations were held in New York, but the alleged misappropriation of intellectual property occurred after either the contract negotiations broke down or the contract was breached. See American White Cross Laboratories, Inc. v. H.M. Cote, Inc., 556 F.Supp. 753, 759 (S.D.N.Y.1983); Xedit, 456 F.Supp. at 729; Sterling Television Presentations v. Shintron Co., 454 F.Supp. 183, 188 (S.D.N.Y.1978).

The decision in Sterling Television is of particular relevance to the present case. The plaintiff in Sterling Television brought an action for breach of an exclusive marketing agreement and misappropriation of trade secrets. The plaintiff was a New York corporation which held various intellectual property rights concerning the manufacture of “videotypewriters”. The defendant was a Massachusetts corporation. Agents of the defendant traveled to New York on several occasions to negotiate an exclusive marketing agreement. The parties subsequently entered into an agreement under which the defendant became the exclusive marketing agent for a certain videotypewriter. The agreement was terminated several months later, but the defendant continued to sell the videotypewriters and commenced manufacture of its own videotypewriters. The court held that the defendant’s New York activities were sufficient to justify the assertion of § 302(a)(1) jurisdiction over the contract claim, but held that the trade secret misappropriation claims did not arise from those activities and therefore the court had no § 301(a)(1) jurisdiction over those claims.

Likewise in the present case, defendant’s New York meetings justify the exercise of § 302(a)(1) jurisdiction over the cause of action for a declaration that there is no joint venture agreement. The commercial tort claims in Counts 2, 3 and 4 do not, however, arise from those meetings and therefore this Court cannot assert § 302(a)(1) jurisdiction over those claims.

Plaintiff alternatively contends that jurisdiction over Counts 2, 3 and 4 can be asserted under GPLR 302(a)(3). That section provides for jurisdiction under certain circumstances where the defendant “commits a tortious act without the state causing injury to person or property within the state ... if he ... (ii) expects or should expect the act to have consequences in the state and derives substantial revenue from interstate or international commerce.” CPLR § 302(a)(3). Defendant has not challenged plaintiff’s assertion that the requirements of subdivision (ii) have been met in this case. The sole issue contested by the parties with respect to § 302(a)(3) is whether defendant’s alleged activities caused an injury to plaintiff “within the state” of New York.

To assert jurisdiction under § 302(a)(3), “the injury within the state ... must be ‘direct, and not remote or consequential.’ ” Faherty v. Fender, 572 F.Supp. 142, 149 (S.D.N.Y.1983), citing Porcello v. Brackett, 85 A.D.2d 917, 446 N.Y.S.2d 780 (4th Dept.1981). Thus, the New York State Court of Appeals has held that “the residence or domicile of the injured party within the State is not a sufficient predicate for jurisdiction, which must be based upon a more direct injury within the State and a closer expectation of consequences within the State than the indirect financial loss resulting from the fact that the injured party resides or is domiciled there....” Fantis Foods, Inc. v. Standard Importing Co., 49 N.Y.2d 317, 326, 425 N.Y.S.2d 783, 787, 402 N.E.2d 122, 126 (1980). In commercial tort actions, the courts have uniformly held that the mere fact that the plaintiff resides in New York and therefore ultimately experiences a financial loss there is not a sufficient basis for jurisdiction under § 302(a)(3). See American Eutectic Welding Alloys Sales Co. v. Dytron Alloys Corp., 439 F.2d 428 (2d Cir.1971); Arbitron Co. v. E.W. Scripps, Inc., 559 F.Supp. 400 (S.D.N.Y.1983); Data Communications, Inc. v. Dirmeyer, 514 F.Supp. 26 (E.D.N.Y.1981); Stark Carpet Corp. v. M-Geough Robinson, Inc., 481 F.Supp. 499 (S.D.N.Y.1980); (hereafter collectively called the “American Eutectic cases”). See also Connecticut Artcraft Corp. v. Smith, 574 F.Supp. 626 (D.Conn.1983) (applying the Connecticut longarm statute which is “nearly identical” to CPLR § 302(a)(3)). In all of these cases, the courts held that the place of injury was where the defendant conducted the allegedly improper sale of goods or services or wrongfully manufactured the goods.

Typical of these cases is Arbitron, where the claims for copyright infringement and related torts were brought in federal district court in New York against a Tennessee defendant. The plaintiff, the Arbitron Company, alleged that the defendant had obtained unauthorized access to Arbitron’s estimates of radio and television audiences and that the defendant had used those estimates to prepare comparative advertising brochures that were distributed in and around Memphis, Tennessee. 559 F.Supp. at 401. The only tie of the alleged tort to New York was that the plaintiff resided there and the plaintiff claimed to have suffered financial loss or loss of good will in the state. Id. at 404. The court held that

“[tjhese are inadequate links. Both would have been suffered by the plaintiff, if indeed they did occur, wherever it resides. Further, if the plaintiff lost any business as a result of defendant’s action, such business was lost in Memphis____ To hold to the contrary would allow courts to exercise jurisdiction over all out-of-state defendants provided that the plaintiff resides in New York and claims a loss of good will. No jurisdiction is present under CPLR § 302.”

Id.

Defendant contends that the American Eutectic cases should control the present case because defendant did not make any allegedly improper sales of SUPERSTAT in New York and therefore any injury suffered by plaintiff in New York was solely the result of plaintiff’s residence in the state. Plaintiff argues that all of those cases should be distinguished because they involved the allegedly improper manufacture or sale of goods or services that violated the respective plaintiff’s rights in their intellectual property. Plaintiff maintains that it is not engaged in the business of manufacturing or selling goods utilizing various intellectual property rights, but that its business is actually the sale of the intellectual property rights. Plaintiff contends that defendant’s allegedly present or threatened future sales of SUPERSTAT create a cloud over plaintiff’s title to its various rights concerning SUPERSTAT, thereby damaging plaintiff’s business by impeding its ability to sell those rights in New York. In support of this position, plaintiff cites Sybron Corp. v. Wetzel, 46 N.Y.2d 197, 413 N.Y.S.2d 127, 385 N.E.2d 1055 (1981). In Sybron, a manufacturer and reliner of glass-lined vessels brought suit against a former employee and a nonresident competitor to enjoin the competitor’s hiring of the employee and to prevent a disclosure of the plaintiff’s trade secrets. The Court of Appeals held that jurisdiction existed under § 302(a)(3) for the purely prospective relief sought by the plaintiff, where the “economic injury the plaintiff seeks to avert stems from the threatened loss of important customers.” Id., 46 N.Y.2d at 205, 413 N.Y.S.2d 127, 385 N.E.2d 1055. The court noted that the defendant corporation had already solicited and secured an order from one of the plaintiff’s major New York customers. Id. at 205-06, 413 N.Y.S.2d 127, 385 N.E.2d 1055.

Plaintiff’s attempt to distinguish the American Eutectic cases is plainly unavailing with respect to Count 4 of the complaint. Count 4 alleges that defendant was unjustly enriched by the sales of SUPERS-TAT which it obtained and sold in violation of plaintiff’s various intellectual property rights. This claim cannot be construed as only an action to quiet title in plaintiff’s intellectual property rights. It is nothing more than a claim for damages arising from defendant’s allegedly improper manufacture and sale of SUPERSTAT. As such, Count 4 is controlled by the American Eutectic cases. Since plaintiff has not made any allegation of lost sales from customers of SUPERSTAT in New York (and indeed maintains that it does not sell SUPERSTAT), jurisdiction over Count 4 cannot be asserted under § 302(a)(3).

A more difficult question is whether the American Eutectic cases should control with respect to Counts 2 and 3. As discussed above, in all those cases and in Sybron, the critical inquiry was whether the plaintiff suffered injury within New York solely because they resided in the state, or whether there were additional factors placing the injury in New York. Perhaps the most pragmatic means of approaching this inquiry is to ask whether any injury would still have occurred within New York if the plaintiff had resided in another state. To phrase it differently, whether the injury would have occurred wherever the plaintiff resided. See Arbitron, 559 F.Supp. at 404. In the American Eutectic cases, there would have been no injury in New York if the respective plaintiffs had not resided in New York. In each of those cases, the courts found no jurisdiction under § 302(a)(3). In Sybron, there would still have been an injury in New York, the threatened loss of a major New York customer, if the plaintiff had not resided in New York. The court upheld jurisdiction in that case.

In the present case, the plaintiff has not offered any evidence indicating that there would be injury to plaintiff in New York if plaintiff resided in another state. Plaintiff has not specified any actual or threatened loss of customers in New York for its intellectual property rights. Indeed, plaintiff has not shown why, apart from plaintiff’s New York residence, the alleged cloud over its title to the various SUPERS-TAT rights will have any effect in New York that is different from the effect it will have in the other 49 states: impeding plaintiff’s ability to sell its SUPERSTAT rights anywhere. At most, plaintiff is contending in essence that it is injured in New York because its intellectual property rights, as intangible property, must be located wherever plaintiff is located. The Supreme Court has noted, however, that “intangible property has no actual situs” and the fictional presence accorded such property by law “can have no jurisdictional signifiance.” Rush v. Savchuk, 444 U.S. 320, 328-30, 100 S.Ct. 571, 577-78, 62 L.Ed.2d 516 (1980). I therefore conclude that under the American Eutectic cases, plaintiff did not suffer the injuries alleged in Counts 2 and 3 within New York. This Court cannot assert jurisdiction over those claims under CPLR § 302(a)(3).

For the reasons discussed above, defendant’s motion to dismiss for lack of personal jurisdiction over the defendant is denied with respect to Count 1, but granted with respect to Counts 2, 3 and 4.

Defendant has also moved to dismiss Counts 3 and 4 of the complaint for improper venue, insofar as those Counts seek relief for patent infringement. In light of the determination that the Court lacks personal jurisdiction over the defendant with respect to Counts 2, 3 and 4, and the representation of plaintiff’s attorney that plaintiff is not asserting a patent infringement claim, I find it unnecessary to decide defendant’s motion regarding venue.

SO ORDERED.

      . "SUPERSTAT is a modified collagenous hemostatic sponge which, when introduced into a wound, produces hemostasis (‘clotting’) of blood vessels and subsequently dissolves such that there is absolutely nothing that a surgeon need remove." Sawyer Aff. ¶ 4.

      . Curiously, neither party submitted a copy of the July 27, 1984 letter from defendant to plaintiff.

      . CPLR 302 does not extend jurisdiction as far as may be constitutionally permitted. American Eutectic Welding Alloys Sales Co. v. Dytron Alloys Corp., 439 F.2d 428, 435 (2d Cir.1971); Liquid Carriers Corp. v. American Marine Corp., 375 F.2d 951, 955 (2d Cir.1967); Kramer v. Vogl, 17 N.Y.2d 27, 32, 267 N.Y.S.2d 900, 904, 215 N.E.2d 159, 162 (1966).

      . In any event, I find it difficult to credit the assertions made by defendant through the Economidy affidavit. Economidy claims that when he and Sawyer met "for the very first time” at a San Francisco trade show, they entered into an agreement to form a joint venture to manufacture and market SUPERSTAT. Economidy Aff. ¶¶ 8, 11. This rather extraordinary claim is contradicted by the June 20, 1983 and July 12, 1983 letters exchanged by the parties, which indicate that the parties did not believe that any binding agreement had been formed in San Francisco. Defendant contends that these letters were phrased in tentative language because the joint venture agreement was contingent upon certain third parties failing to exercise options on SUPERSTAT. This, too, is contradicted by the July 12, 1983 letter from Sawyer to Economidy: "I would be willing to consider placing the current manufacturing and marketing of Superstat in Axiom’s brands on the assumption that Impra and Mr. Boyd Baker do not pick up their option on Superstat.” Exhibit 2 to Sawyer Aff. (emphasis added). The veracity of Economidy’s claim that a joint venture agreement was formed in San Francisco is also called into doubt by Economidy’s admission that “[i]n a letter dated September 1, 1983, Sawyer suggested that IBML and Axiom document their joint venture arrangement in a formal written agreement. Soon thereafter, attorneys for Axiom and IBML prepared and exchanged (via the mail), formal written proposed agreements. I discussed these proposed agreements with Sawyer during numerous telephone conversations and at certain trade conventions outside New York State.” Economidy Aff. ¶ 15.

      . See plaintiff's memorandum at 11-17.

      . Plaintiff cites two recent Supreme Court cases as standing for the proposition that the plaintiff’s domicile in the forum state may play an important role in justifying the assertion of jurisdiction in that state. Calder v. Jones, — U.S. -, 104 S.Ct. 1482, 79 L.Ed.2d 804 (1984); Keeton v. Hustler Magazine, — U.S. -, 104 S.Ct. 1473, 79 L.Ed.2d 790 (1984). These cases are inapplicable in the present case because they address the constitutionally permissible scope of jurisdiction. At issue in this case is the narrower scope of jurisdiction permitted under New York’s Civil Practice Law and Rules. See note 3 supra. As discussed above, the New York Court of Appeals has unequivocally stated that under CPLR 302(a)(3), residence or domicile of the plaintiff within the state is not a sufficient basis upon which to assert jurisdiction. Fantis Foods, 49 N.Y.2d at 326, 425 N.Y.S.2d 783, 402 N.E.2d 122. Furthermore, both Calder and Keeton addressed the unique jurisdiction problems inherent in libel actions arising from publications in a national newspaper or magazine. The jurisdictional issues presented in this case differ significantly from those raised in such libel actions.


source: Caselaw Access Project

author: CASSIBRY, Senior District Judge:

license: Public Domain

text:
    FARRELL LINES, INC., Plaintiff, v. INSURANCE COMPANY OF NORTH AMERICA, Defendant.
    Civ. A. No. 82-4445.
    United States District Court, E.D. Louisiana.
    Jan. 11, 1985.

      Michael H. Bagot, Jr., Richard N. Dichar-' ry, New Orleans, La., for plaintiff.
    Suzanne P. Keevers, New Orleans, La., for defendant.
   CASSIBRY, Senior District Judge:

In this case plaintiff Farrell Lines, Inc., seeks to recover from the defendant Insurance Company of North America [INA] the amount it has paid for defense of a personal injury suit filed in 1975 and tried in 1980 in Section “H” of this court, William Glas per v. Farrell Lines, Inc., et al., 638 F.2d 1233 (5th Cir.1981), the cost of prosecuting the present action, and interest and penalties under LSA-R.S. 22:658, contending that a defense was owed to it under one or more policies issued to it by the defendant.

The insurance claims of Farrell Lines made in this case were sought to be made in a third-party complaint in the Glasper suit in which a verdict was rendered in favor of Farrell Lines.

Judge Adrian G. Duplantier, Judge of Section “H” of this court denied Farrell Lines’ motion to file the third-party complaint on the grounds of tardiness, inasmuch as the suit had been proceeding for four and one-half years. Farrell Lines then filed the present action. The case has been submitted on the record, stipulations of fact, joint exhibits and memoranda of the parties.

Glasper claimed inter alia in his complaint filed against Farrell Lines on March 10, 1975 that he was injured by a defective container owned and/or leased by that defendant which was in the process of being lifted up by a gantry for loading in the M/V AUSTRAL ENTENTE owned by Farrell Lines. Glasper, an employee of the stevedore, alleged that his injury was caused by his fall from a tractor he was operating as it was lifted off the ground because a latch which secured the container to the trailer malfunctioned. Defendant Insurance Company of North America [INA] denied any coverage of Farrell Lines which imposed on it a duty to defend that law suit. Farrell Lines’ P & I insurer then defended the suit.

The P & I policy of Farrell Lines contained a $25,000.00 deductible provision. A total of $21,953.98 was expended in defense of that suit. Farrell Lines is attempting in this suit to collect that amount plus the costs of prosecuting this litigation, and interest and penalties under LSA-R.S. 22:658 from INA under two policies issued by INA to it. Having decided the coverage issue in favor of INA, the court now enters the following Findings of Fact and Conclusions of Law.

FINDINGS OF FACT

1. Plaintiff Farrell Lines is a New York corporation with its principal offices in New York.

2. Defendant INA is a corporation formed according to the laws of a state other than New York with its principal offices in Pennsylvania.

3. The amount in controversy in this suit on insurance policies exceeds $10,-000.00.

4. Farrell Lines owned the M/V AUSTRAL ENTENTE on the date of William Glasper’s accident and was in the business of transporting cargo.

5. Farrell Lines obtained stevedoring services from J. Young & Co., Inc., William Glasper’s employer, to transfer containers from the France Road wharf to the M/V AUSTRAL ENTENTE in New Orleans, Louisiana.

6. In loading the M/V AUSTRAL ENTENTE, the stevedore used cargo containers which, among other equipment, was leased to Farrell by third parties.

7. Neither the France Road wharf nor the ways immediately adjoining it were owned, rented to or controlled by Farrell Lines.

8. William Glasper was injured during the loading of the M/V AUSTRAL ENTENTE as he assisted in the transfer of containerized cargo from the wharf to the vessel.

9. Farrell Lines was the insured in two INA policies in effect on the date of William Glasper’s accident:

(1) Comprehensive General Liability policy No. 46 84 21;
(2) Multiple liability policy No. 22 95 03, including Comprehensive Automobile Liability.

10. INA policy CGL 46 84 21 contained a standard watercraft exclusion as follows:

EXCLUSIONS:
This insurance does not apply:
.....
(e) to bodily injury or property damage arising out of the ownership, maintenance, operation, use, loading or unloading of
(1) Any watercraft owned or operated by or rented or loaned to any insured, or
(2) Any other watercraft operated by any other person in the course of his employment by any insured,
but this exclusion does not apply to watercraft while ashore on premises owned by, rented to or controlled by the Named Insured: ...

11. INA policy CGL 46 84 21 also contained the following special Exclusion Endorsement:

EXCLUSION ENDORSEMENT
In consideration of the premium charged, it is agreed that such insurance as is afforded by the Policy to which this endorsement forms a part shall not apply;
(1) to the ownership, maintenance, existence, operations, use, loading or unloading of watercraft;
(2) to any occurrence or accident happening on board watercraft or any gangway forming a part of watercraft;
(3) to any occurrence or accident which is or would be covered in whole or in part under Protection and Indemnity policy of Marine Insurance whether or not such insurance is carried by the insured;
(4) to stevedoring and freight handling operation at any pier, dock or wharf performed by the insured unless the company is advised of such operation within thirty (30) days after completion.

12. A watercraft exclusion appears also in INA policy GAL 22 95 03 which schedules 1,000 containers in the Manufacturers and Contractors Liability Insurance portion of the policy. That exclusion reads:

This insurance does not apply:
.....
(e) to bodily injury or property damage arising out of the ownership, maintenance, operation, use, loading or unloading of
(1) any watercraft owned or operated by or rented or loaned to any insured, or
(2) any other watercraft operated by any person in the course of his employment by any insured;
but this exclusion does not apply to watercraft while ashore on premises owned by, rented to or controlled by the Named Insured.

13. Policy GAL 22 95 03 contains a clause insuring Farrell Lines against liability arising out of the “ownership, maintenance or use” of automobiles. In the policy’s Schedule of Automobile Liability Hazards” it is stated that “Owned and Leased Running Gear, Mobile wheels, Bogies, Dollies and Similar Trailer Type Equipment” ... “will be Principally Garaged” in “New York, N. Y.”

14. Policy GAL 22 95 03 provides only excess insurance as to certain automobiles. Clause VI of the policy reads, “with respect to a leased automobile or a non-owned automobile, this insurance shall be excess insurance over any other valid and collectible insurance available to the Insured.”

15. The automobile liability insurance portion of policy GAL 22 95 03 contains the following exclusion:

This insurance does not apply:
.....
(b) to any obligation for which the insured or any carrier as his insurer may be held liable under any workmen’s compensation or disability benefits law, or under any similar law.

16. On the date of William Glasper’s accident Farrell Lines also had in effect for the M/V AUSTRAL ENTENTE a Protection and Indemnity (P & I) policy of insurance No. 2-3782 provided by the American Steamship Mutual Protection and Indemnity Association, Inc.

17. The P & I policy states:

The Association agrees to indemnify the Assured against all loss, damage or expense which the assured shall become liable to pay and shall pay by reason of the fact that the assured is the owner (or operator, manager, charterer, mortgagee, trustee, receiver or agent as the case may be) of the insured vessel and which shall result from the following liabilities, risks, events, occurrence and expenditure
...
(a) Liability hereunder in connection with the handling of cargo for the insured vessel shall commence from the time receipt by the assured of the cargo on dock or wharf, or on craft alongside for loading, and shall continue until due, delivery thereof from dock or wharf of discharge or until discharge from the insured vessel onto a craft alongside.

18. Clause 24 of the P & I policy provides:

The Association shall not be liable for any loss, damage . or expense against which, but for the insurance herein provided, the Assured is or would be insured under existing insurance.

19. The P & I policy has a deductible of $25,000.00.

20. On March 10, 1975 William Glasper, a longshoreman employed by J. Young & Co., filed suit against Farrell Lines and others alleging that he was injured on March 10, 1974 while operating a tractor in conjunction with the loading of the AUSTRAL ENTENTE at the France Road Wharf in New Orleans.

21. Immediately before his accident, Glasper had driven the tractor with a trailer that was loaded with a container to the apron of the France Road Wharf so that the container could be loaded aboard the AUSTRAL ENTENTE by a shoreside gantry crane operated by a fellow longshoreman.

22. The container was secured to the trailer by four latches which were to be released by longshoremen prior to the container’s being lifted by the crane.

23. Glasper alleged that when the crane began to pick up the container, the tractor and trailer were also lifted because of a design, manufacturing or maintenance defect in one of the container’s latches which failed to disengage.

24. Glasper alleged that he was injured when he fell off of the tractor to the France Road Wharf.

25. The AUSTRAL ENTENTE was owned and operated by Farrell Lines.

26. The trailer and container were owned by third parties and leased to Farrell Lines.

27. Farrell Lines notified its insurance agent, Carroon & Black, of William Glasper’s accident by letter dated March 17, 1975, initiating the inquiry whether its P & I insurer or public liability insurer should respond.

28. Carroon & Black notified INA of William Glasper’s accident by letter dated March 19, 1975.

29. After an INA adjuster took two statements of witnesses to Glasper's accident, INA denied coverage under policy GLP 46 84 21 and so informed Farrell by letter dated August 7, 1975.

30. ■ Farrell’s manager of marine claims, F. E. Moles, then forwarded the Glasper suit to the law firm of Phelps, Dunbar, Marks, Claverie & Sims for defense.

31. The P & I insurer defended Farrell Lines.

32. On August 8, 1977 counsel for Farrell Lines wrote INA’s supervisor of the New Orleans office, Mr. William E. Long, suggesting that the watercraft exclusion in policy GLP 46 84 21 did not apply and that INA should defend and indemnify Farrell Lines.

33. William Long responded on October 14, 1977, continuing to deny coverage based on the watercraft exclusion.

34. Counsel for Farrell Lines reiterated the request in eléven additional letters between October 26, 1977 and October 10, 1979, but INA remained firm in its refusal to undertake the defense of Farrell Lines in the Glasper case.

35. On November 6, 1979 counsel for Farrell Lines suggested for the first time that INA owed Farrell Lines a defense under policy GAL 22 95 03 and forwarded a copy of that policy to William Long.

36. Farrell Lines sought to file a third party complaint against INA in the Glasper suit in January 1980.

37. Due to the proximity of trial, Judge Adrian G. Duplantier disallowed the third-party complaint.

38. Trial of the Glasper case was held on March 10-12,1980, resulting in a verdict in favor of Farrell Lines.

39. That verdict was affirmed by the Fifth Circuit Court of Appeals on February 17, 1981.

40. Phelps, Dunbar, Marks, Claverie & Sims billed Farrell Lines $20,700.00 in fees and $1,253.98 in expenses in the defense of the Glasper suit.

41. Farrell Lines paid $240.99 on July 7, 1979, $5,965.00 on July 17, 1979, $719.44 on October 15, 1980 and $15,029.35 on November 10, 1981 for the defense of the Glasper suit.

CONCLUSIONS OF LAW

1. The Court has jurisdiction of this suit under 28 U.S.C. § 1332, and venue is proper in this District.

2. In this diversity case the Court must apply the law of the State of Louisiana. Erie R.R. Co. v. Tompkins, 304 U.S. 64, 74, 58 S.Ct. 817, 820, 82 L.Ed. 1188 (1938).

3. A contract of insurance, like any other contract, is the law between the parties, and is enforced according to the true intent of the parties as shown by the wording of the policy. Schmieder v. State Farm Fire & Cas. Co., 339 So.2d 390 (La.App. 1st Cir.1976), writs denied 341 So.2d 895 (La.1977); Harmon v. Lumbermens Mut. Cas. Co., 247 La. 263, 170 So.2d 646 (1965); La.Civ.Code Arts. 1901, 1945, 1946.

4. Coverage for Glasper’s accident is excluded in INA policy CGL 46 84 21 by the watercraft exclusion which excludes those risks arising out of Farrell Lines “ownership, maintenance, operation, use, loading or unloading” of a vessel. While the decision in Grigsby v. Coastal Marine, 412 F.2d 1011 (5th Cir.1969), relied on by Farrell Lines, stands for the proposition that the standard watercraft exclusion does not apply in instances where an insured’s involvement with the watercraft is peripheral, it does apply when the activity giving rise to the risk is closely connected to the activities of the watercraft owner.

In this case the loading of Farrell’s vessel the AUSTRAL ENTENTE was Farrell’s work being done when Glasper was injured, regardless of the fact that Farrell had hired a stevedore to load its vessel. Farrell Lines’ lending of its leased equipment to its stevedore to load its vessel was closely related to its activities as vessel owner of transporting cargo for profit.

5. The intention in policy CGL 46 84 21 was to exclude those risks normally undertaken by a marine underwriter. Risks associated with cargo handling and the loading and unloading of vessels are normally covered by protection and indemnity policies of marine insurance. Broad coverage for those risks is extended to Farrell Lines in its P & I policy, although the exclusion in policy CGL 46 84 21 does not require as a condition that there be a P & I policy, only that the occurrence or accident involved be of a type which “is or would be covered” by maritime P & I policies.

6. INA’s contention that it was not given sufficient notice of a claim under INA policy GAL 22 95 03 is not sustained. Carroon & Black’s notification of INA of the Glasper suit on March 19, 1975 was sufficient notice of a claim under any INA policy which may have been in effect and applicable to the loss.

7. Although INA policy GAL 22 95 03 schedules 1,000 containers in the “Manufacturers and Contractors Liability Insurance” portion of the policy, the watercraft exclusion in that portion is effective to exclude liability for this loss for the reasons stated hereinabove in connection with the watercraft exclusion in INA policy CGL 46 84 21.

8. The trailer and container alleged to be defective in the Glasper suit is not an automobile within the contemplation of the Automobile Liability Insurance portion of INA policy GAL 22 95 03. The policy produced by Farrell Lines lacks a definition of automobile, and INA was unable to find a copy of the policy after Farrell Lines produced it.

In common parlance a trailer and container attached to a small tractor is not an automobile. Farrell Lines does not contend otherwise, but argues that the statement in the “Schedule of Automobile Liability Hazards” that “Owned and Leased Running Gear, Mobile Wheels, Bogies, Dollies and Similar Trailer Type Equipment” ... “Will Be Principally Garaged” in “New York, N. Y.” indicates an intent that the tractor and trailer allegedly involved in Glasper’s accident would fall within the automobile liability insurance. This statement cannot reasonably be so construed. Trailer type equipment when attached to an automobile would become a part of the automobile. A mere listing of trailer-type equipment in this Automobile Liability Insurance portion of the policy does not show any intent that such equipment is considered of itself to be an automobile.

9. If my conclusion that the trailer and container are not an automobile were otherwise, they would nevertheless not be an automobile covered by this policy. The trailer-type equipment enumerated is equipment which “Will Be Principally Garaged” in “New York, N. Y.” In its submission of the case Farrell Lines has offered no facts to show that the equipment in New Orleans was ever garaged in New York. It argues simply that “because the policy does not state that it is voided or coverage precluded if an accident occurs outside of New York, N. Y., the policy applies to accidents in the port of New Orleans.” I would agree that, if the equipment were principally garaged in New York, the policy would apply to the equipment even in accidents involving it in the port of New Orleans.

10. Part (b) of the exclusions in policy GAL 22 95 03 does not serve as an additional ground to exclude coverage under that policy. INA’s argument is not valid that, because an injured longshoreman’s tort action against a third-party is preserved by Section 5(b) of the Longshoremen’s Compensation Act, LHWCA as amended in 1972, the exclusion of “any obligation for which the insured or any carrier as its insurer may be held liable under any workmen’s compensation or disability benefits law or under any similar law” excludes liability under the policy. That portion of the Act preserving third-party tort liability actions to longshoremen is not similar to employment-related benefit laws such as workmen’s compensation and disability benefits laws.

The Clerk shall enter judgment dismissing plaintiff’s complaint.


author: McLAUGHLIN, District Judge.

text:
    AIR LINE PILOTS ASSOCIATION, INTERNATIONAL, Plaintiff, v. PAN AMERICAN WORLD AIRWAYS, INC., Defendant. FLIGHT ENGINEERS’ INTERNATIONAL ASSOCIATION, PAA CHAPTER, AFL-CIO, Plaintiff, v. PAN AMERICAN WORLD AIRWAYS, INC., Defendant.
    Nos. 84 CV 4878, 84 CV 4900.
    United States District Court, E.D. New York.
    Jan. 11, 1985.

      Michael E. Abram, James L. Linsey, Cohen, Weiss & Simon, New York City, for plaintiff Air Line Pilots Association, Intern.
    O’Donnell & Schwartz, Asher W. Schwartz, and David B. Rosen, New York City, for FEIA.
    Morgan, Lewis & Bockius, New York City, Ernest L. Garb, Harry Rissetto, Tom Reinert, for Pan American World Airways, Inc.
   MEMORANDUM AND ORDER

McLAUGHLIN, District Judge.

This is an action under the Railway Labor Act (“RLA”), 45 U.S.C. § 151 et seq., brought by the Air Line Pilots Association, International (“ALPA”) and the Flight Engineers’ International Association, PAA Chapter, AFL-CIO (“FEIA”) against Pan American World Airways, Inc. (“PAN AM”). The unions seek a preliminary injunction compelling Pan Am to observe the provisions of the Agreements expiring on January 1, 1985 pending exhaustion of negotiátion procedures mandated by the Act.

I agree with the parties that further evidence is unnecessary, as the essential facts are not in dispute. Accordingly, I have consolidated the trial on the merits with the hearing on the instant application in accordance with Rule 65(a)(2) of the Federal Rules of Civil Procedure.

For the reasons developed below, the unions’ request for injunctive relief is granted.

Facts

ALPA

ALPA is the collective bargaining representative for Pan Am’s pilots. On January 28, 1983 the parties entered into a new basic agreement effective until January 1, 1985. The parties refer to this basic agreement as “the white pages.” Also on January 28, 1983, the parties entered an accompanying memorandum of agreement which provides certain concessionary modifications in the basic agreement as to hours of service, pay and working conditions. These concessionary provisions, included “between the covers” of the basic agreement, are referred to as the “pink pages.”

The pink pages constitute temporary revisions to the basic agreement. Those temporary revisions “shall terminate in all respects at 2400 hours on December 31, 1984.” Agreement, p. 244, par. 3. The pink pages further provide:

On and after January 1, 1985, the corresponding provisions of the Agreement between Pan American World Airways, Inc. and its Air Line Pilots as represented by the Air Line Pilots Association, International, dated January 28, 1983, shall be implemented and shall continue in full force and effect thereafter, regardless of whether the parties have exchanged notices of intended change under Section 6 of the Railway Labor Act or are in any phase of negotiations for a new Agreement. The Company explicitly waives any and all rights whatsoever to claim that any of the temporary revisions ... remain in effect after 2400 hours on December 31, 1984 or that on and after January 1, 1985, the corresponding provisions of the Agreement between Pan American World Airways, Inc. and its pilots as represented by the Air Line Pilots Association International, dated January 28, 1983, should not be implemented and continue in full force and effect thereafter.

Id. at 245. (emphasis added).

By letter dated September 19, 1984 Pan Am informed ALPA of its intent to reopen negotiations for a new agreement, pursuant to section 6 of the RLA. In the ensuing months, ALPA took the position that pursuant to the above-quoted contractual provision, the white pages would be applicable to all flights after midnight December 31, 1984. By letter dated November 26,1984, however, Pan Am informed ALPA that the terms then in effect, i.e., the pink pages, would be continued on and after January 1, 1985. Accordingly, on December 19, 1984, ALPA commenced the instant action seeking injunctive relief. PEIA

The dispute between Pan Am and the flight engineers is essentially the same as that between Pan Am and ALPA, i.e., a 1983 agreement contained concessionary provisions (pink pages) intended to remain in effect until January 1, 1985. These pink page concessions were not “to continue under Section 6 of the Railway Labor Act beyond January 1, 1985, except by mutual agreement ____” Although the provisions of the FEIA contract are not semantically identical to those contained in the ALPA contract, Pan Am has conceded that the legal effect of both agreements is the same.

In the fall of 1984 Pan Am informed FEIA of its intent to reopen negotiations for a new agreement, pursuant to Section 6 of the Railway Labor Act, and that it intended to continue the (pink sheet) rates of pay, rules and working conditions after January 1, 1985. On December 20, 1984, FEIA commenced this action to enjoin Pan Am from continuing to operate under the concessionary provisions after January 1, 1985.

Discussion

Section 6 of the Railway Labor Act provides in pertinent part as follows:

Carriers and representatives of the employees shall give at least thirty days’ written notice of an intended change in agreements affecting rates of pay, rules, or working conditions____ In every case where such notice of intended change has been given, rates of pay, rules or working conditions shall not be altered by the carrier until the controversy has been finally acted upon as required by Section 155 of this Title____

This so-called “status quo requirement” of Section 6 mandates that the parties

... preserve and maintain unchanged those actual, objective working conditions and practices, broadly conceived, which were in effect prior to the time the pending dispute arose and which are involved in or related to that dispute.

Detroit & Toledo Shore Line R. Co. v. United Transportation Union, 396 U.S. 142, 153, 90 S.Ct. 294, 301, 24 L.Ed.2d 325 (1969). See also Air Cargo, Inc. v. Local Union 851, Teamsters, 733 F.2d 241, 246 (2d Cir.1984). The Supreme Court has termed the status quo requirement as central to the RLA’s design because it facilitates labor peace. Id., 396 U.S., at 150, 90 S.Ct., at 299. Moreover, the courts have consistently held that violations of the status quo are enjoinable. See Manning v. American Airlines, 329 F.2d 32, 34 (2d Cir.1964), cert. denied, 379 U.S. 817, 85 S.Ct. 33, 13 L.Ed.2d 29 (1964); Air Cargo, Inc., supra, at 247.

Thus, in the case at hand I am asked to decide what constitutes the status quo. Pan Am contends that the status quo consists of the concessionary rates and conditions (the pink sheets) in effect immediately prior to the expiration of the Agreement. The unions argue, however, that the parties have by agreement rendered the white pages the status quo.

It is the general rule that in determining the status quo a court must look to the actual conditions in effect prior to the expiration of an agreement rather than to the terms of the agreement itself. As Chief Judge Weinstein has stated:

The Railway Labor Act does not preserve employment contracts beyond their expiration date. It preserves pay rates, working conditions and rules during contract negotiations.

Transport Workers v. Eastern Airlines, 544 F.Supp. 1315 (E.D.N.Y.1982).

Significant to the instant dispute, however, are the cases indicating that the parties’ agreements can constitute the status quo. To appreciate this line of authority, however, it is necessary to focus on the origin of the rule that conditions, not contracts, are preserved.

In Detroit & Toledo Shore Line, the Supreme Court noted that “the status quo extends to those actual, objective working conditions out of which the dispute arose, and clearly these conditions need not be covered in an existing agreement.” 396 U.S- at 153, 90 S.Ct. at 301 (emphasis added). In other words, even if an agreement is silent as to a carrier’s authority to take a particular action, that authority may still constitute the status quo if the carrier has repeatedly taken the action over the years and the union has acquiesced.

It is true that courts determining the status quo in the wake of Detroit & Toledo Shore Line have placed emphasis on actual conditions, and not agreements. Indeed this approach has recently been reiterated by the Second Circuit in Air Cargo, Inc. v. Local Union 851, 733 F.2d 241, 246 (2d Cir.1984). However, the Second Circuit went on to observe the following:

The objective working conditions on the actual date of the agreement’s expiration, however, do not always constitute the statutory status quo. Otherwise, a party could take any action it wanted on the last day of an agreement and call that the status quo. Instead, there must be a ‘mutual understanding, either express or implied’ to turn a party’s behavior into the RLA section 6 status quo.

Accordingly, the Second Circuit remanded the case with an instruction that the district court determine whether the actual agreement or the parties’ behavior established the statutory status quo.

Since it is clear that parties to a labor contract may establish the status quo by their actions or informal agreements, it seems logical that, a fortiori, they may determine the status quo by express contractual provisions. Put another way, since the Second Circuit has noted above that a “mutual understanding, either express or implied” may turn a party’s behavior into the status quo, it surely follows that they may expressly agree in an appropriate instance that certain temporary actions are not to be construed as the status quo.

It is significant that the “conditions” that Pan Am now considers to be the status quo are derived from the very agreement that contains Pan Am’s express waiver of a right to argue that the pink pages survive their expiration date under § 6 or otherwise. That agreement clearly states that the white pages will constitute the status quo during the negotiation period in 1985.

It is certainly reasonable to infer that the unions might not have made the concessions in the first place were it not for the parties’ agreement that the temporary concessions should not be considered the status quo. If I applied Pan Am’s interpretation of the status quo, I would be promoting the very sort of labor unrest which the statutory status quo provision was designed to prevent. Accordingly, I find that the parties have validly agreed that the white pages of the agreement shall constitute the status quo during the § 6 negotiation period.

Since I have consolidated the instant application for a preliminary injunction with the trial on the merits, and since injunctive relief is mandated by section 6, it appears unnecessary to address the issue of irreparable harm. See Local 553, Transport Workers Union of America v. Eastern Airlines, Inc., 695 F.2d 668, 677 (2d Cir.1982). For the record, however, I note that an adequate showing has been made that the unions will be irreparably harmed absent an immediate grant of injunctive relief.

First, it would be nearly impossible months from now to reconstruct the scenario that would have ensued if Pan Am had operated under the white pages of the agreement. Essentially, the scheduling of flight assignments is determined monthly pursuant to a bidding procedure. Each month, Pan Am is required to determine its patterns of flying for the next month and to construct and distribute “bid lines.” The bid line package sets forth the times, places and number of compensable hours associated with each month long “line” of flight assignments. The bid lines are then awarded to each pilot and flight engineer according to seniority by consideration of the bids they have submitted.

Although bidding for job lines is based on a number of factors, one of the most important is the number of compensable hours associated with each line. Essentially, compensable or credited hours consist of a combination of flight hours and credit for periods on duty, time away from the base and other factors specified in the Agreement. The rules for computing credited hours were temporarily modified by the pink pages. Thus, if bids were made on the basis of concessionary bid lines which are later held invalid, it would be virtually impossible to reconstruct the system on the basis of valid bid lines.

In addition to the difficulty of recalculating bid lines, the unions also maintain that negotiations between the parties are being irreparably harmed by Pan Am’s refusal to comply with its agreements. The unions emphasize the difficulty they will experience in selling an agreement to the rank and file when Pan Am openly refuses to honor its previous commitments. Absent injunctive relief, the unions will be placed in a position of having to bargain for what they have already obtained.

Conclusion

The Court is aware that the bid lines for January have already been constructed and that the issuance of revised January bid-lines at this point would be unduly burdensome. Accordingly, the motion to require Pan Am to reconstruct its previously issued bid lines pursuant to the white pages of the agreement is denied. In all other respects, however, the motions for injunctive relief are granted. Accordingly, as to all bid lines yet to be distributed, Pan Am shall construct those bid lines in accordance with the non-concessionary provisions of the Agreement.

SO ORDERED.

      . On January 4, 1985, ALPA raised a question as to whether a § 6 notice was in fact served on ALPA by Pan Am. In order to expedite the proceedings, however, the parties agreed to proceed without taking any testimony on this issue.
      The instant decision is obviously premised upon the assumption that the parties are presently engaged in § 6 negotiations and thus, are obligated to maintain the status quo. Assuming arguendo that the § 6 notice dated September 19, 1984 was not received by ALPA, however, ALPA’s request for injunctive relief would nonetheless be granted. In a letter dated November 26, 1984 the union was apprised of Pan Am’s intention to alter the agreement by continuing in effect the pink pages. That letter concluded with the phrase "and that consistent with the Railway Labor Act the terms presently in effect will continue after January 1, 1985.” In a letter dated November 28, 1984, ALPA acknowledged receipt of Pan Am’s letter.
      Pan Am's November 26th letter satisfied the requirement that a carrier give 30 days written notice of its intention to take action that changes an agreement, and, thus, gives rise to a “major” dispute. Local 553, Transport Workers Union of America v. Eastern Air Lines, Inc., 695 F.2d 668, 674 (2d Cir.1982). The dispute between ALPA and Pan Am must be characterized as a major dispute under the RLA since Pan Am’s contractual justification for its action is “obviously insubstantial.” Id. at 673. Thus, even if the September § 6 notice was not served, the parties are nonetheless obliged to maintain the status quo until the major dispute resolution process runs its course. Id. at 674.

      . One rather obvious difference in the two contracts is that the pages containing the temporary revisions in the FEIA contract are yellow instead of pink. For the sake of simplicity, however, the concessionary provisions applicable to both ALPA and FEIA will be referred to as the "pink pages.”


author: BERTELSMAN, District Judge:

text:
    Roger ASKIN, Richard T. Phillips and James Yocum, Plaintiffs, v. FIRESTONE TIRE & RUBBER CO., Defendant.
    Civ. A. No. 83-83.
    United States District Court, E.D. Kentucky, Covington Division.
    Jan. 11, 1985.

      Kenneth W. Scott, Edward S. Monohan, IV, Florence, Ky., for plaintiffs.
    Mark G. Arnzen, Covington, Ky., Millisor, Belkin & Nobil, Cleveland, Ohio, for defendant.
   OPINION AND ORDER

BERTELSMAN, District Judge:

This matter is before the court on the motion of the plaintiffs to reconsider this court’s order and judgment granting defendant's motion for summary judgment and dismissing plaintiffs’ complaint. The court will treat the “motion for reconsideration” as a motion to alter, amend or vacate the judgment pursuant to Fed.R.Civ.P. 59.

The facts are fully reflected in the materials supporting and opposing the motion for summary judgment, in the completed final pretrial order and in the transcript of the final pretrial conference, which the court also considered. Nevertheless, a brief recapitulation of the facts will be helpful.

Each of the three plaintiffs was a store manager or assistant manager for the defendant Firestone. Each was a member of the protected age group (over 40) and each was discharged and replaced by a younger person. Thus, according to the authorities hereinafter cited, the plaintiffs did make out a “prima facie case.” The exact meaning of the term “prima facie case” in this context is the principal subject of this opinion.

Defendant articulated and supported by admissible evidence reasons for the adverse personnel action to the effect that the performance of each plaintiff was unsatisfactory. Primarily, Firestone complained of the plaintiffs’ inability to make the various stores to which they were assigned profit-making ventures. Each plaintiff admitted in his deposition that the store to which he was assigned was suffering growing loses under Firestone’s accounting system and that his performance had been criticized by his superiors.

The plaintiffs attempted to challenge the articulated reasons of the defendant by proffering evidence that Firestone’s policies for managers were unreasonable, that the managers were given insufficient voice in managing their particular stores, that the stores were charged with expenses over which the managers had little control, that Firestone would not follow the managers’ advice, charged unreasonable amounts to the stores to purchase inventory, and used unreasonable internal accounting procedures in computing profitability.

Throughout the lengthy hearing on the summary judgment motion, the court kept reiterating that in its understanding of the law the plaintiffs were required to do more at this stage than show that the defendant was unreasonable. Plaintiffs were required to show that the articulated reasons were a pretext for age discrimination, rather than a pretext for arbitrariness. This plaintiffs did not do and admitted they could not do.

Plaintiffs argued strenuously that if they could show that defendant’s articulated reasons were unreasonable or a pretext for some arbitrary or oppressive motive, plaintiffs could then fall back on their “prima facie case” without introducing specific evidence that the articulated reasons were a pretext for age discrimination. The court held that this was not the law, and a review of the authorities confirms that holding.

The fallacy of the plaintiffs’ argument is their failure to understand the effect of their making out a “prima facie case” in this context. As stated in the Fourth Circuit’s well reasoned opinion in Lovelace v. Sherwin-Williams Co., 681 F.2d 230, 238 (4th Cir.1982):

“The substantive elements of the claim— without regard to attempted modes of proof — are (a) that an employee covered by the Act (b) has suffered an unfavorable employment action by an employer covered by the Act (c) under circumstances in which the employee’s ‘age was a determining factor’ in the action in the sense that ‘ “but for” his employer’s motive to discriminate against him because of his age, he would not [have suffered the action].’ Spagnuolo v. Whirlpool Corp., 641 F.2d at 1112 (citing to Loeb [v. Textron, Inc., 600 F.2d 1003, 1019 (1st Cir.1979)]).”

Because of the difficulty of proving discriminatory motive the Supreme Court in Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981), has made available a special order of proof in employment discrimination cases, the initial stage of which is described as plaintiff’s making out a “prima facie case” by adducing evidence of the following four factors: (1) that he was in the protected group (here over 40); (2) that he applied for or held a job for which he was qualified; (3) that adverse job action was taken and (4) that the job remained open and applicants for it were sought. Of course, if a plaintiff has more direct proof of age discrimination, he may introduce such evidence in addition to or instead of these classic four factors.

As stated, the plaintiffs here produced evidence showing the four enumerated factors but no specific evidence of age discrimination. Under Burdine, if the plaintiff makes out a “prima facie case,” the burden then shifts to defendant to articulate a legitimate non-discriminatory reason for having discharged plaintiffs. Firestone here met this burden with evidence that the stores where plaintiffs were employed were not' profitable under Firestone’s accounting criteria in use.

The plaintiffs contend that their evidence casting aspersions on the defendant’s articulated non-discriminatory reasons for the discharges showed that Firestone’s policies are unreasonable, arbitrary or ill-advised, or based on improper accounting principles. They argue that they, therefore, have a right to go to the jury on the evidence that made out the “prima facie case”, without introducing any further evidence of age discrimination.

This is not the first case where plaintiffs have made such an argument. However, the position of plaintiffs here is based on a misunderstanding of the law of presumptions in this context. The error of plaintiffs’ view is illustrated by a careful analysis of the Supreme Court’s discussion in Burdine, supra.

As is well known, the primary holding of Burdine that the burden that shifts to the defendant in a discrimination case upon the plaintiff’s making out a “prima facie case” is one, not of persuasion, but of going forward with the evidence. However, a careful reading of the Court’s opinion also reveals the limited effect of the plaintiff’s “prima facie case.”

The Court’s meaning in this regard is apparent from its discussions in footnotes 7, 8 and 10 in the Burdine opinion. These notes are as follows:

“7 The phrase ‘prima facie case’ not only may denote the establishment of a legally mandatory, rebuttable presumption, but also may be used by courts to describe the plaintiff's burden of producing enough evidence to permit the trier of fact to infer the fact at issue. 9 J. Wigmore, Evidence § 2494 (3d ed. 1940). McDonnell Douglas should have made it apparent that in the Title VII context we use ‘prima facie case’ in the former sense.”
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“8 This evidentiary relationship between the presumption created by a prima facie case and the consequential burden of production placed on the defendant is a traditional feature of the common law. ‘The word “presumption” properly used refers only to a device for allocating the production burden.’ F. James & G. Hazard, Civil Procedure § 7.9, p. 255 (2d ed. 1977) (footnote omitted). See Fed.Rule Evid. 301. See generally 9 J. Wigmore, Evidence § 2491(3d ed. 1940). Cf. J. Maguire, Evidence, Common Sense and Common Law 185— 186 (1947). Usually, assessing the burden of production helps the judge determine whether the litigants have created an issue of fact to be decided by the jury. In a Title VII case, the allocation of burdens and the creation of a presumption by the establishment of a prima facie case is intended progressively to sharpen the inquiry into the elusive factual question of intentional discrimination.”
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“10 See generally J. Thayer, Preliminary Treatise on Evidence 346 (1898). In saying that the presumption drops from the case, we do not imply that the trier of fact no longer may consider evidence previously introduced by the plaintiff to establish a prima facie case. A satisfactory explanation by the defendant destroys the legally mandatory inference of discrimination arising from the plaintiffs initial evidence. Nonetheless, this evidence and inferences properly drawn therefrom may be considered by the trier of fact on the issue of whether the defendant’s explanation is pretextual. Indeed, there may be some cases where the plaintiff’s initial evidence, combined with effective cross-examination of the defendant, will suffice to discredit the defendant’s explanation.”

Thus, under the doctrine of Bur-dine, the making of the “prima facie case” by the plaintiff only shifts to the defendant the doctrine of going forward to produce some specific admissible evidence of a nondiscriminatory reason for the personnel action complained of. Once the defendant has done, this, the plaintiff must be given an opportunity to show that the articulated reason is a pretext. But the “pretext” must be a pretext for discrimination, not a pretext of some other ill-advised or unreasonable factor, such as a personality conflict or unreasonably high but evenly applied standards of performance. Harker v. Federal Land Bank of Louisville, 679 S.W.2d 226, 231 (Ky.1984).

Upon introduction of the plaintiff’s pretextual evidence, the court then evaluates plaintiff’s case as a whole, including the evidence originally introduced to make out the “prima facie case” and the evidence to rebut the pretext. Lovelace v. Sherwin Williams Co., 681 F.2d 230, 240-1 (4th Cir.1982).

Even though the prima facie case may have been enough to shift the burden of production to the defendant, it is not necessarily enough to entitle the plaintiff to submit his or her case to the jury. This is the principle plaintiffs here fail to understand. To avoid confusion in this kind of case, it is absolutely essential to distinguish the two meanings of the term “prima facie case.” As made clear by a careful reading of the Burdine opinion, the plaintiff may have adduced a prima facie case in one sense, that is, shifted the burden of production, without having adduced one in a second sense of producing sufficient evidence to meet the challenge of a motion for directed verdict. For purposes of illustration it is helpful to employ two distinct terms for the two kinds of “prima facie case.” “Prima facie case (production)” and “prima facie case (persuasion)” will do as well as any. Using these terms for clarification, the law concerning burden of proof in these cases may then be stated as follows:

(1) The plaintiff adduces evidence making out a prima facie case (production).
(2) If the defendant offers no evidence plaintiff is entitled to a directed verdict.
(3) If the defendant offers admissible evidence of a non-diseriminatory reason for the adverse action, the plaintiffs may then introduce further evidence to show that the defendant’s reason is a pretext for discrimination.
(4) Then upon a motion for directed verdict, the court must re-evaluate all the evidence to see if plaintiffs have made out a prima facie case (persuasion). In doing so, the court must consider the evidence plaintiff offered earlier in establishing the prima facie case (production) as well as all other evidence.
(5) But the fact that plaintiff earlier established a prima facie case (production) does not automatically mean that he has established a prima facie case (persuasion). That must be determined by the court in utilizing the usual directed verdict tests.

The above process is merely an application of the standard law of rebuttable presumptions. “Whenever a rule of law, whatever the terminology by which it is formulated, provides that from one fact or group of facts a specified assumption must be made in the absence of explanation, the product is a rebuttable presumption.” D. Louisell & C. Mueller, Federal Evidence 539 (1977). Upon the establishing by plaintiff of a prima facie case (production) a rebuttable presumption arises shifting the burden of producing evidence to the defendant. Upon defendant’s meeting said burden the presumption “disappears,” and the evidence is re-evaluated in the usual manner on a directed verdict or summary judgment motion.

Thus, the Burdine model is a special application of Fed.R.Evid. 301. It has been stated by a leading text that the evidence giving rise to a rebuttable presumption will also meet a directed verdict challenge only if the evidence making up the rebuttable presumption is itself then sufficient in logic and reason to support the presumed fact, once the rebuttable presumption is dissipated. S. Saltzburg & K. Redden, Federal Rules of Evidence Manual, 66-67 (3d ed. 1982), quoting Louisell, Instructing the Jury on Presumption in Civil Actions & Proceedings, 63 Va.L.Rev. 281 (1977). Or, in the terms we have used in this opinion: the prima facie case (production) will also be a prima facie case (persuasion) only if the evidence making up the former is in itself sufficient to withstand a directed verdict or summary judgment challenge.

In the case at bar, we have an illustration of these principles. The plaintiffs made out a prima facie case (production). The defendant then proffered specific admissible evidence articulating a non-discriminatory reason for its action — the unprofitability of the stores.

Plaintiff attacked the reasonableness and soundness of the justification offered by the defendant. But plaintiffs, although perhaps showing that defendant’s personnel policies were ill-advised and their calculations of profitability not in accordance with generally accepted accounting principles, still offered no additional statistical, direct, or circumstantial proof of age discrimination. Evaluating all of the evidence in the case, including that making up the original prima facie case (production), the court concluded that, even though the plaintiffs succeeded in shifting the burden of production, they failed to carry the burden of persuasion and thus failed to meet a summary judgment challenge. Since at the final pretrial conference, where all plaintiffs’ evidence was to be disclosed pursuant to the court’s pretrial order, plaintiffs were unable to suggest any other evidence that might be forthcoming, summary judgment was proper.

In the terms stated above, the plaintiffs, although having made out a prima facie case (production), failed to make out a pri ma facie case (persuasion). The fallacy of their argument on this motion is that they fail to perceive the difference.

For all the proof plaintiffs adduced, Firestone merely had the policy of throwing each manager off the dock into deep water and letting him sink or swim. For all their evidence reflects, young and old were left to drown alike. The law does not guarantee an employee a reasonable employer but only affords protection against discrimination. This point is ably and thoroughly discussed in the excellent opinion of Justice Wintersheimer in Harker v. Federal Land Bank of Louisville, 679 S.W.2d 226 (Ky.1984) (applying federal law by analogy).

Therefore, the motion for reconsideration must be, and is hereby denied.

      . Plaintiff Richard Phillips was 44 years of age; plaintiff James Yocum was 46 years of age; and plaintiff Roger Askin was 43 years of age.

      . A typical segment of the oral hearing on the motion for summary judgment went as follows (Transcript, page 26):
      “MR. MONOHAN: Judge, Roger Askins was transferred to the Newport store. And he told his Newport supervisor before he went that everybody who goes there gets fired. He said, ‘I don’t want to go to Newport. Everybody who goes in there gets fired.’
      THE COURT: That’s the very point I’m trying to make. You keep confusing the fact that they may have been unreasonable. I’m not saying they were reasonable. But let’s assume they were unreasonable (but not) to get people because of their age. If they're very unreasonable, ... if they’re unreasonable about their position and even if they’ve got a policy of rapid turnover, if it’s not because of age or race, it's not protected — or sex — it’s not protected.
      MR. MONOHAN: I guess we keep going back to our—
      THE COURT: You've got to have evidence. I just can’t — (the authorities) are very clear that I’m not just to let you offer a lot of speculation to the jury about — ‘Well, gee, it must have been my age because I was a good employee.’ You have to have some pattern. I guess you have to show some kind of a pattern or catch them with their hand in the cookie jar.
      MR. MONOHAN: Well, we maintain we cannot do that. We will admit that to the Court. We can't catch them with their hand in the cookie jar. We can simply show that these are people in the protected category. They were doing a good job. They were fired for no reason at all. That’s probably — that’s it." (Emphasis added)

      . 450 U.S. at 253, n. 6, 101 S.Ct. at 1094, n. 6. See also, Lovelace, supra; Laugesen v. Anaconda Company, 510 F.2d 307, 311 (6th Cir.1975).

      . Blackwell v. Sun Electric Corporation, 696 F.2d 1176, 1179 (6th Cir.1983) (four factors not to be applied rigidly, rather case-by-case approach to be used in age discrimination). See Grubb v. W.A. Foote Mem. Hospital, 741 F.2d 1486, 1498 (6th Cir.1984) (prima facie case may be made by using the four factors or by statistical information or other direct or circumstantial evidence of age discrimination).

      . Some cases state that if the employer has genuinely shown that it is not satisfied with the plaintiff’s job performance, plaintiff has not proved the second factor in Burdine. The court will assume for purposes of this motion that this factor has been met. See cases in note 6, infra.

      . A defendant must only "articulate” such reason by adducing admissible evidence of it. The burden of persuasion remains with plaintiff throughout the case. See discussion, infra and especially Davis v. Combustion Engineering, 742 F.2d 916, 921 (6th Cir.1984) and cases cited therein.

      . The above is a restatement of the law reflected by Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). Accord: Lovelace v. Sherwin-Williams Co., 681 F.2d 230, 239-40 (4th Cir.1982); Equal Employment Opportunity Commission v. University of Oklahoma, 554 F.Supp. 735, 738-40 (W.D.Okla.1982).

      . This Rule reads: "In all civil actions and proceedings not otherwise provided for by Act of Congress or by these rules, a presumption imposes on the party against whom it is directed the burden of going forward with evidence to rebut or meet the presumption, but does not shift to such party the burden of proof in the sense of the risk of nonpersuasion, which remains throughout the trial upon the party on whom it was originally cast."

      . In addition to those cases already cited the following cases support this court’s analysis in this opinion. In Ackerman v. Diamond Shamrock Corporation, 670 F.2d 66 (6th Cir.1982), the court squarely rejected the theory that the articulated reasons of the employer may be rejected if unreasonable, arbitrary or capricious and granted summary judgment even though plaintiff had made out a prima facie case (production). There, the court said:
      "Nothing in the record, other than personal conclusions by Ackerman, suggests that Ackerman’s age in any way was a factor in the decision. Even Ackerman seems to be unsure about the motivation behind the elimination of his job. In a letter written to a personal friend, and obtained during discovery, he stated that he thought that a personality conflict was the basis for the decision. Personality conflicts alone cannot supply a basis for an ADEA claim. ‘[A]n employer may make a subjective judgment to discharge an employee for any reason that is not discriminatory.’ Walter v. KFGO Radio, 518 F.Supp. 1309, 1314 (D.N.D.1981) citing Loeb v. Textron, Inc., 600 F.2d 1003, 1013 n. 6 (1st Cir.1979). This is especially true when, as in the present case, a management level job is involved. Loeb v. Textron, supra, 600 F.2d at 1019.” 670 F.2d at 70.
      In Kephart v. Institute of Gas Technology, 630 F.2d 1217 (7th Cir.1980), it is stated that dissatisfaction with the plaintiff’s work, if not a mere pretext, may not only go to the articulated reason of the defendant, but may even be the basis for the finding that the plaintiff has not made out a prima facie case (production). 630 F.2d at 1219, 1220, 1223.
      A conclusory statement by the plaintiff that he was discharged by reason of age will not serve as a defense against a properly documented summary judgment motion setting forth specific instances of unsatisfactory job performance. Locke v. Commercial Union Insurance Company, 676 F.2d 205, 206 (6th Cir.1982). Accord: Grubb v. W.A. Foote Mem. Hosp., 741 F.2d 1486, 1498 (6th Cir.1984).