author: WEXLER, District Judge.

text:
    Rose L. KRAMER, 100% Stockholder, Finast Metal Products, Inc., Plaintiff, v. SECRETARY, U.S. DEPARTMENT OF THE ARMY & Chief, Legal Department of the U.S. Department of the Army, Defendants.
    No. CV 79-0062.
    United States District Court, E.D. New York.
    Dec. 10, 1985.

      Rose L. Kramer, plaintiff pro se.
    Raymond J. Dearie, U.S. Atty. by Robert L. Begleiter, Asst. U.S. Atty., Brooklyn, N.Y., for defendants.
   MEMORANDUM AND ORDER

WEXLER, District Judge.

On January 8, 1979, Rose L. Kramer, the 100% stockholder of Finast Metal Products, Inc. (Finast), filed suit against the United States Department of the Army. Judge Costantino of this Court granted defendant’s motion to dismiss for failure to state a claim, and dismissed Mrs. Kramer’s action on July 17,1979. Mrs. Kramer appealed pro se to the United States Court of Appeals for the Second Circuit.

The Court of Appeals observed that although plaintiff alleged a range of charges so broad as to encompass a variety of actions, that as far as actions maintainable in federal district court, her complaint boiled down to one for misappropriation of a trade secret. Kramer v. Secretary, 653 F.2d 726, 728, 730 (2d Cir.1980). The Court of Appeals held that under New York law misappropriation of a trade secret is a tort, and that it is a tort action that can be maintained under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b), 2671-2680. Kramer v. Secretary, 653 F.2d at 729-30. Accordingly, the Court of Appeals reversed the district court and remanded the case for further proceedings.

At the same time the Court of Appeals refused to decide the jurisdictional issues of exhaustion of administrative remedies and the statute of limitations, declaring that those questions were for the district court, which had not yet heard or decided them. Id. at 730. It is on these grounds that the government now seeks dismissal or summary judgment in its favor. Rules 12(b)(1), 56(b), Fed.R.Civ.P. Specifically, defendant contends that plaintiff has not met the exhaustion requirement of the FTCA, 28 U.S.C. § 2675(a), and that the claim is also time barred under the FTCA’s two year statute of limitations, 28 U.S.C. § 2401(b). Plaintiff opposes.

I.

The Court addresses some of the points raised by Mrs. Kramer in her lengthy and wide-ranging brief in opposition to the government’s motion. First, the propriety or legality of the government’s termination of its contract with plaintiff is not at issue here. That issue is properly before the United States Claims Court in Mrs. Kramer’s breach of contract action. The issues now before this Court are solely those of the exhaustion requirement and statute of limitations under the FTCA.

Second, the questions of time bar and administrative exhaustion have not been previously litigated or decided by any judge on this bench or the Court of Appeals. Consequently, res judicata and related doctrines are inapplicable. Judge Costantino dismissed this action in 1979 for failure to state a claim and did not address the statute of limitations or exhaustion defenses. The Court of Appeals noted that Judge Costantino had not decided the issues, and also declined to decide them, preferring to first let the district court address them. Kramer, 653 F.2d at 730. After remand, Judge Costantino reassigned the action to newly-appointed Judge Wexler. No determination of these issues has been made since remand or at any point in this case. That the government waited for years to make its motion does not waive the defenses. Accordingly, plaintiff’s res judicata argument fails.

Third, Mrs. Kramer mistakenly believes she has a claim before this Court under 42 U.S.C. § 1983 in the form of a “tort of denial of due process.” One cannot sue the United States government, its agencies, or its agents under 42 U.S.C. § 1983. Section 1983 creates a cause of action against persons, or other entities, who violate one’s constitutional rights “under color of state law.” The federal government does not act under color of state law. One seeks redress for violation of the right to due process by the federal government under the Fifth Amendment to the United States Constitution. Nevertheless, Mrs. Kramer has not made out any factual basis for denial of due process. In fact, she is receiving a great deal of due process before the Armed Services Board of Contract Appeals (ASBCA), the Claims Court, the Second Circuit Court of Appeals, and this Court. That she may not agree with the results does not mean that she has not had due process. Equally so, not every wrong perpetrated by the federal government amounts to a constitutional issue. Even if a court were to find that the government breached its contract with Mrs. Kramer or misappropriated her trade secrets, it would not give rise to a cause of action for denial of due process or violation of civil rights.

The only cause of action before this Court is one for misappropriation of a trade secret which the Court of Appeals distilled from the complaint. The action for breach of contract is properly before the ASBCA and Claims Court. Kramer, 653 F.2d at 729. There is no civil rights claim of any sort here.

II.

The following chronology of events is not disputed. Plaintiff Rose L. Kramer is the 100% stockholder of Finast. In September 1973 Finast bid on a government contract for manufacture and delivery of 60mm projectiles. Finast expected to manufacture the projectiles from blanks supplied by National Extruded Metal Products Company (NEMPC). In January 1974 Finast learned NEMPC, the only known source of blanks, was going out of business. Mrs. Kramer immediately found an engineer acquaintance who was setting up a foundry and was willing to forge the needed blanks. That company was Canusa Extrusion-Engineering, Inc. (Canusa). When the government asked for the name of the blank supplier, Mrs. Kramer secured an agreement of confidentiality before revealing Canusa’s identity. Id. at 728. Thereafter, Finast was awarded the contract.

The government terminated the contract with Finast some four months later in October 1974. In January 1975 the government awarded the contract for 60mm projectiles to Stewart-Warner Corporation of Chicago, Illinois. Canusa became Stewart-Warner’s supplier of blanks. The gravamen of this suit is that the government violated its confidentiality agreement and revealed Canusa’s identity to Stewart-Warner.

Mrs. Kramer quickly appealed her contract termination, and the ASBCA held a hearing in July 1975. During the hearings there was testimony as to how Canusa and Stewart-Warner became aware of each other in the last quarter of 1974. In January 1976 Mrs. Kramer filed a civil suit in this Court against Canusa and Stewart-Warner alleging among other things that the two companies had conspired together and negotiated with the federal government to take over Finast’s contract. On January 8, 1979, plaintiff commenced the instant FTCA action against the government. On January 15, 1979 plaintiff filed the same claim with the U.S. Army Claims Service.

III.

As the Court determines that the only claim before it is one for misappropriation of a trade secret under the FTCA, the Court must look to the FTCA statute of limitations, which is contained at 28 U.S.C. § 2401:

(b) A tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues or unless action is begun within six months after the date of mailing, by certified or registered mail, of notice of final denial of the claim by the agency to which it was presented.

Under the doctrine of sovereign immunity the government is immune from suit unless it specifically waives immunity and consents to be sued. The FTCA is such a waiver of sovereign immunity by Congress. The Act sets out the particular instances and conditions under which the government can be sued. A claimant must adhere strictly to these terms in order to maintain his suit. Peterson v. United States, 694 F.2d 943, 944-45 (3d Cir.1982) (and cases cited therein). In particular, the statute of limitations on FTCA actions is a jurisdictional requirement that must be strictly construed by the courts and cannot be extended by equitable considerations. United States v. Kubrick, 444 U.S. 111, 117-18, 100 S.Ct. 352, 357, 62 L.Ed.2d 259 (1979); Soriano v. United States, 352 U.S. 270, 276, 77 S.Ct. 269, 273, 1 L.Ed.2d 306 (1957).

The frequent statute of limitations problem is determining when an action accrues. This involves not only the time of events, but determining what events commence the running of the statute. The standard under the FTCA is that a cause of action accrues when the injured party knows of the injury and its probable cause. United States v. Kubrick, 444 U.S. Ill, 100 S.Ct. 352, 62 L.Ed.2d 259; Peterson v. United States, 694 F.2d at 945.

According to the government’s Rule 3(g) Statement, Stewart-Warner became aware that Canusa was a source of 60mm blanks during the last quarter of 1974, and in no event later than the first quarter of 1975. During the July 1975 ASBCA hearings on Finast’s contract termination there was repeated testimony as to how and when Stewart-Warner was awarded Finast’s contract and made Canusa its supplier of forgings. Then in 1976 plaintiff filed the suit against Canusa and Stewart-Warner.

The Court now turns to an examination of the timing of events, construing the allegations in a light most favorable to the plaintiff. Taking as true, for the purposes of this motion, the allegation that the government disclosed Finast’s trade secret to Stewart-Warner, the disclosure date can be pinpointed at October 1974 (Defendant’s Rule 3(g) Statement 1116). It is beyond dispute that Stewart-Warner had come to know that Canusa was a supply source by the time it was awarded the contract in January 1975. The Court, however, cannot reasonably say that Mrs. Kramer knew or could have known of the breach of confidentiality in either October 1974 or January 1975. The action, therefore, cannot be said to have accrued at those times.

In July 1975, however, a great deal of testimony was taken in hearings before ASBCA as to the Canusa and Stewart-Warner connection. As Mrs. Kramer was a party to the hearings, it cannot be disputed that she then came to know that the government had acted to reveal information she had imparted under a promise of confidentiality. Finally, in January 1976, Mrs. Kramer filed suit in this Court against Stewart-Warner and Canusa charging their conspiracy with the government to take over Finast’s contract (Defendants’ Rule 3(g) Statement 1( 18; Finast v. Canusa Complaint ¶¶ 55, 56). This complaint definitively shows that plaintiff knew of the injury and its cause in January 1976 (Exhibit B of Defendant’s Rule 3(g) Statement).

Section 2401(b) requires that a claim be presented in writing to the government within two years of accrual, and then allows plaintiff six months from the final administrative denial to commence a court action. It matters not whether the Court insists that plaintiffs cause of action accrued in July 1975, when plaintiff could reasonably be expected to know of her injury and its cause, or January 1976 when she manifested clear knowledge of both. Mrs. Kramer did not present the claim to an administrative agency until at least three years after her claim accrued. That is the gap between July 1975 or January 1976 and the January 1979 filing. Under either accrual date the two year statute of limitations ran at least one year before the action was commenced in this Court or presented in writing to a federal agency. Nor does the fact that in July 1979 the U.S. Army Claims Service denied, or declined to act on, her claim extend the time limit (Plaintiff’s Exhibit D). For the agency itself was barred by § 2401(b) from hearing the claim.

IV.

The government also raises the statutory requirement that the claimant exhaust administrative remedies before commencing a court action. 28 U.S.C. § 2675(a). In the instant case, plaintiff filed her administrative claim a week after filing the action in this Court. Exhaustion of administrative remedies is a jurisdictional prerequisite to maintaining a suit under the FTCA. E.g., Sprecker v. Graber, 716 F.2d 968, 973 (2d Cir.1983). Nevertheless, where the administrative claim is subsequently filed and those remedies exhausted, the Court could consider the issue moot. E.g., Clark v. United States, 481 F.Supp. 1086, 1098-99 (S.D.N.Y.1979). In this instance, however, the claim is time barred and discussion of the case law on exhaustion and premature filing will not alter the outcome.

V.

Finally, Mrs. Kramer contends that the statute of limitations did not begin to run in 1975 or 1976 because she was misled as to certain facts by the government. She argues that the government waived or should be estopped from asserting the statute by its conduct. As pointed out earlier, the § 2401 statute of limitations is jurisdictional and cannot be waived. E.g., Lien v. Beehner, 453 F.Supp. 604, 606 (N.D.N.Y.1978). Nor can the government’s conduct operate to estop assertion of the time bar. E.g., Pittman v. United States, 341 F.2d 739 (9th Cir.), cert. denied, 382 U.S. 941, 86 S.Ct. 394, 15 L.Ed.2d 351 (1965). The rule is a harsh one, but it comports with the principle that where the sovereign consents to be sued, the terms and conditions of that consent are strictly interpreted. Soriano v. United States, 352 U.S. at 276, 77 S.Ct. at 273. As the United States Supreme Court declared, “Men must turn square corners when they deal with the Government. If it attaches even purely formal conditions to its consent to be sued those conditions must be complied with.” Rock Island, A. & L.R. Co. v. United States, 254 U.S. 141, 143, 41 S.Ct. 55, 56, 65 L.Ed. 188 (1920).

Moreover, the conduct on which Mrs. Kramer seeks to base waiver or estoppel is the July 1975 testimony of a government employee that a number of named companies produced the necessary forgings, and that Canusa was not a sole source. Plaintiff claims that this statement misled her as to the importance of Canusa and therefore the knowledge that she had a cause of action against the government. Thus, she did not commence her suit until after she learned that Canusa was, in truth, the sole source of the blanks. The conduct complained of is inconsequential to knowledge of the cause of action. In 1974 Mrs. Kramer believed NEMPC to be the sole source of blanks, until she contacted Canusa. She then extracted a promise of confidentiality from the government before revealing Canusa’s identity. She knew no later than July 1975 that the government had played some sort of intermediary role between Canusa and the company that took over Finast’s government contract. She hardly needed more for her original allegations of conversion against the government, which were restated later by the Second Circuit as misappropriation of a trade secret. And the information was certainly enough to trigger her duty to diligently search and discover relevant facts. United States v. Kubrick, 444 U.S. at 123-25, 100 S.Ct. at 360. In short, the conduct complained of does not amount to concealment of facts that would in any way delay plaintiffs knowledge of her injury and its cause, and so delay accrual of the claim by a year or more after July 1975 or January 1976.

VI.

The Court concludes that plaintiffs action was commenced at least one year after the two-year limit for the filing of claims under the FTCA. 28 U.S.C. § 2401(b). The limit is jurisdictional and cannot be waived or extended by equitable considerations. Therefore, defendant’s motion to dismiss is granted.

The Clerk of the Court is hereby ordered to enter judgment in defendant’s favor, dismissing plaintiff’s action as barred under 28 U.S.C. § 2401(b).

SO ORDERED.

      . The United States was substituted as the proper defendant in this action.

      . Finast Metal Products, Inc. v. Canusa Extrusion—Engineering Inc. and Stewart-Warner Corp., No. CV 76-64 (E.D.N.Y.).

      . The Court notes that according to defendant’s Rule 3(g) Statement, the July 1975 testimony indicated that it was the government who informed Canusa that Stewart-Warner was a likely substitute for Finast on the contract, and it was Canusa’s vice president who contacted Stewart-Warner on October 18, 1974 (¶ 16). The Second Circuit, in its decision casting plaintiff’s claim as one for misappropriation of a trade secret, states the reverse: that the government disclosed Canusa’s identity to Stewart-Warner. Kramer v. Secretary, 653 F.2d at 728. For the purposes of this motion the Court uses the Second Circuit’s version of events.


source: Caselaw Access Project

author: KRAM, District Judge.

license: Public Domain

text:
    Harvey EDWARDS, Plaintiff, v. Frederic Gale RUFFNER, III, and Avanti Press, Defendants.
    No. 85 Civ. 3870 (SWK).
    United States District Court, S.D. New York.
    Dec. 10, 1985.
    Stiefel, Gross, Kurland & Pavane, P.C., New York City by Lawrence G. Kurland, for plaintiff.
    Wofsey, Certilman, Haft, Lebow & Balin, New York City by Barry I. Fredericks, for defendants.
   MEMORANDUM OPINION AND ORDER

KRAM, District Judge.

Plaintiff in the above-captioned matter has moved for a preliminary injunction pursuant to Fed.R.Civ.P. 65(a). For the reasons which follow, this motion is DENIED.

Plaintiff is an artist and a photographer. The source of the instant dispute is one of plaintiff’s photographs in particular. Plaintiff has photographed a ballet dancer in the “fifth position.” The photograph is entitled “Leg Warmers.” Plaintiffs photograph depicts a ballet dancer, from slightly above the knee-caps to the feet, in the fifth position. The dancer is wearing torn “legwarmers”, socks or stockings, and ballet shoes. Plaintiffs photograph was created on March 1, 1979 and plaintiff obtained a copyright registration for it on January 21, 1981.

Plaintiffs photograph has been reproduced in many forms, including a very successful and widely sold art gallery poster, also entitled “Leg Warmers”. At the time plaintiff commenced this lawsuit, he was negotiating for his photograph to be used on a greeting card.

Plaintiff alleges that the defendants have used a photograph on their greeting card entitled “Toe Shoes”, which violates his copyrighted work “Leg Warmers.” The alleged infringing photograph was taken by Elyse Lewin. Ms. Lewin’s photograph also portrays a ballet dancer in the “fifth position.” This photograph depicts a ballet dancer from about midway between the ankles and the knee-caps to the feet. The dancer in Lewin’s photograph is wearing leg-warmers which are not torn, and are completely different in appearance and col- or from those in plaintiff’s photograph. Lewin’s photograph depicts a dancer wearing socks or stockings and ballet shoes, and these, too, are in stark contrast to the stockings and shoes in plaintiff’s photograph. Moreover, while both dancers are in the “fifth position”, the photographs are noticeably distinguishable in their portrayals of this classic pose, in the angle from which they were taken, and in their overall portrayal, effect and presentation. In short, the Court finds that there is no likelihood of confusion between these two photos.

In addition to the obvious differences between the two photographs, Ms. Lewin declared that she had created the alleged infringing photograph on November 13, 1981. See Declaration of Elyse Lewin, dated May 29,1985, ¶ 6. Moreover, Ms. Lewin declared that when she took her photograph she had never heard of plaintiff and had never seen his “famous” “Leg Warmers” photograph or poster. Id., at 117. This evidence is not contradicted by any credible evidence.

DISCUSSION

The Second Circuit has recently summarized the standard for obtaining a preliminary injunction as follows:

A party seeking a preliminary injunction in this circuit must establish both possible irreparable injury and either (1) a likelihood of success on the merits or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly in the movant’s favor.

LeSportsac, Inc. v. K Mart Corp., 754 F.2d 71, 74 (2d Cir.1985) (citations omitted).

Plaintiff has failed to meet any prong of this standard. The alleged infringing photograph bears no resemblance to plaintiff’s photograph, and any similarity which exists is due solely to features common to ballet dancers in the fifth position. See Eden Toys, Inc. v. Marshall Field & Co., 675 F.2d 498, 499 (2d Cir.1982).

Plaintiff has failed to show either a likelihood of success on the merits or a sufficiently serious question going to the merits of his claim for copyright infringement. To establish copyright infringement, plaintiff “must show ownership of a valid copyright and copying by the defendant.” Novelty Textile Mills, Inc. v. Joan Fabrics Corp., 558 F.2d 1090, 1092 (2d Cir.1977), quoted in, Eden Toys, Inc. v. Marshall Field, & Co., 675 F.2d 498, 499 (2d Cir.1982).

In the instant case, plaintiff has failed to produce any direct evidence of copying. Moreover, plaintiff has failed to show copying by circumstantial evidence. Plaintiff failed to adduce any evidence “that the defendant [or Ms. Lewin] had access to the copyrighted work and that the two works are substantially similar.” Eden Toys, Inc., 675 F.2d at 500 (citation omitted). Accordingly, plaintiff has failed to make the requisite showing of likelihood of success on the merits or the existence of a sufficiently serious question going to the merits.

Indeed, the instant case is virtually identical to the situation presented in Eden Toys, Inc., supra. There, the Second Circuit observed, “The protection afforded a copyrighted work covers only the work’s particular expression of an idea, not the idea itself.” Id. (citation omitted). In Eden Toys, the competing products were toy snowmen. The Second Circuit noted that any similarity between the two products “would appear to the ordinary observer to result solely from the fact that both are snowmen.” Id. (citations and footnote omitted). This applies with equal vigor to the instant case.

In view of the foregoing, plaintiff has failed to show either a likelihood of success on the merits or a sufficiently serious question going to the merits of his copyright infringement claim. Plaintiff cannot preclude others from depicting a ballet dancer in the classic “fifth position”. “Although the process of separating the unprotected idea from the protected expression can sometimes be arduous, the instant case does not present any difficulties in this regard.” Eden Toys, Inc., 675 F.2d at 500 (citation omitted). Accordingly, plaintiff’s motion for a preliminary injunction is denied.

SO ORDERED.

      . Plaintiff initially moved for a temporary restraining order as well. The Court denied this application.

      . The parties have submitted legal memoranda, supporting affidavits and numerous exhibits. The parties agreed that the Court should resolve the preliminary injunction motion based on these submissions, and further agreed that an evidentiary hearing was not required.

      . Plaintiff also alleges a claim for trademark infringement. He has failed to make the requisite showing on this claim as well.

      . Plaintiff has also failed to show irreparable injury on either his copyright infringement or his trademark infringement claim. Plaintiff has failed to show substantial similarity in the two works, and, therefore failed to show any likelihood of confusion.


author: MENTZ, District Judge.

text:
    Damian AMONFO, et al. v. Alvin Huey TATE, et al.
    Civ. A. No. 84-2495.
    United States District Court, E.D. Louisiana.
    Dec. 10, 1985.

      Michael L. Lash, Porobil, Maguire & Lash, New Orleans, La., for plaintiff.
    John C. Tollefson, Bienvenu, Foster, Ryan & O’Bannon, New Orleans, La., for defendant.

      . Prior to the electromyelogram, Dr. Rosenkrantz examined plaintiff on February 2, 14 and 27, 1984.

   MEMORANDUM OPINION

MENTZ, District Judge.

I.

Jurisdiction

This action arises out of an intersectional collision between an automobile driven by plaintiff, Chukwugmeka Amonfo (“plaintiff”), and a truck driven by defendant, Alvin Huey Tate, an employee of defendant, AAA Cooper Transportation Company, Inc., which is insured by defendant, Transport Insurance Company (“defendants”). All of the defendants were diverse in citizenship from plaintiff and the amount in controversy exceeded $10,000.00. Accordingly, the Court was properly vested with jurisdiction in accordance with 28 U.S.C. § 1332. Mr. Amonfo is a Nigerian national who received a Master’s degree at Tulane University in the public health field.

II.

Background

The collision which formed the basis of this lawsuit occurred on January 11, 1984 when the automobile driven by plaintiff was struck by defendants’ truck at the intersection of Martin Luther King Blvd. and South Claiborne Avenue in New Orleans, Louisiana. Before the Court were issues involving negligence in terms of what transpired at that intersection, liability for resultant personal injuries and property damage and allegations by plaintiff that he suffered a severe mental injury as a direct result of the collision. On May 9, 1984, the Court conducted a bench trial of this matter.

About one month prior to trial, plaintiff asserted a claim for psychological depression which he contended was a result of the collision. However, the possibility existed that other factors, including a failed marriage and a grain export enterprise which never came to fruition, might have caused or contributed to plaintiff’s alleged depression. The Court was further concerned by the stuporous condition of plaintiff during examination at trial, and his inability to behave in a lucid and coherent fashion at that time. In order that these questions might be resolved, Mr. Amonfo was referred by the Court to Dr. Charles R. Smith, M.D. for psychiatric evaluation. After completing his examinations of plaintiff, Dr. Smith issued a medical report and was deposed by the parties.

Based on the pleadings, evidence produced at trial, post-trial discovery, and the applicable law, the Court now gives written findings of fact and conclusions of law which resolve this matter.

III.

Findings of Fact

(1)

On January 11, 1984, a collision occurred at the intersection of Martin Luther King Blvd. and South Claiborne Avenue in the Parish of Orleans, State of Louisiana. The collision occurred between the Ford LTD automobile owned and operated by plaintiff, and a tractor trailer operated by defendant, Alvin Huey Tate, and owned by defendant, AAA Cooper Transportation, Inc. At the time of the accident, Alvin Huey Tate was insured with a policy of automobile liability insurance coverage through defendant, Transport Insurance Company.

(2)

The accident giving rise to this lawsuit occurred at approximately 1:30 p.m. on January 11, 1984. It was a clear, dry day and the road surface was dry. Both Martin Luther King Blvd. and South Claiborne Avenue are divided roadways; the former runs roughly north/south and the latter east/west.

(3)

Just prior to the accident, plaintiff was stopped at a red light in the south bound lane of King Blvd., in the South Claiborne Avenue median. When the traffic light changed from red to green, plaintiff had to traverse the three eastbound lanes of South Claiborne Avenue before continuing southbound on Martin Luther King Blvd. Plaintiff had the green light southbound at the moment of collision and had the right of way over eastbound drivers on South Claiborne Avenue who were required to stop for the red light at the intersection. When the traffic light for the southbound lane of Martin Luther King Blvd. turned green, plaintiff traversed two of the eastbound lanes of traffic on South Claiborne Avenue. Upon entering the third eastbound lane (the one farthest from the median), plaintiffs vehicle was struck by the truck driven by defendant Alvin Huey Tate.

(4)

Defendant Tate disregarded a red light controlling the flow of eastbound traffic on South Claiborne Avenue and collided with plaintiffs automobile. The accident was caused solely by the negligence of defendant Tate in failing to stop for the red light at the intersection of Martin Luther King Blvd. and South Claiborne Avenue.

(5)

The impact from the collision caused substantial damage to plaintiffs automobile, amounting to $3,165.00. This damage was suffered when the front of defendant’s truck struck the right side of plaintiff’s automobile in “broadside” fashion.

(6)

Although testimony at trial indicated that the witness Keith Johnson (in the northbound lane of Martin Luther King Blvd. at the time of the collision) refrained from entering the intersection for fear that defendant’s truck would not stop, no evidence was adduced which would indicate that plaintiff was even aware of the truck until after the collision. The Court does not find plaintiff negligent for reason that the evidence indicates he did nothing other than enter an intersection after a “green” traffic light gave him the right of way. Further, no testimony or evidence presented at trial showed any want of driving skills or imprudent action on plaintiffs part.

(V)

Immediately after the accident, plaintiff was taken to Charity Hospital’s emergency room, treated and released. Charity Hospital’s bill amounted to $150.00.

(8)

Plaintiff was seen by Dr. D.S. Condie from January 16, 1984 through January 30, 1984, and was diagnosed and treated for cervical strain and lumbar strain. Dr. Con-die’s total bill for treatment amounted to $675.00.

(9)

Plaintiff was subsequently treated by Dr. Milton Rosenkrantz, who initially diagnosed plaintiff as having cervical disc syndrome with radiative pain and lumbar disc syndrome with sciatic problems. As no bone fractures were visible in x-ray photographs taken on the day of the accident by Charity Hospital, Dr. Rosenkrantz ordered an electromyelogram in order to confirm or rule out disc involvement or nerve root injury.

(10)

On March 22, 1984, an electromyelogram was conducted on plaintiff and its results were negative for both nerve root involvement and disc injury. On May 21, 1984, Dr. Rosenkrantz changed his diagnosis of plaintiff from cervical/lumbar disc syndrome to cervical/lumbar strain. This change in diagnosis was occasioned by the negative electromyelogram and a showing of definite improvement of plaintiff’s physical condition.

(11)

On June 8, 1984, Dr. Rosenkrantz found that plaintiff enjoyed a good, active range of neck movement which indicated a healing process. On July 2, 1984, Dr. Rosenkrantz noted continued improvement in plaintiff’s condition. At this time he had a normal gait (i.e. normal posture and no limp) which indicated no severe nerve or muscle problems in plaintiff’s legs or back. It is at this point that the Court believes plaintiff had substantially recovered from any collision-induced injury. Accordingly, the Court finds that defendant’s negligence occasioned the pain and suffering experienced by plaintiff from the date of the accident through July 2, 1984. Because plaintiff’s posture was essentially normal at this time, a recurrence of the symptoms would necessarily be caused by forces unrelated to the crash six months earlier.

(12)

At some time in July 1984, after having made steady improvement since January 1984, plaintiff began walking more frequently and engaged in supermarket shopping. While visiting Dr. Rosenkrantz, plaintiff was found to have “over-asserted” himself and exacerbated his condition. This re-injury was unrelated to the collision.

(13)

Plaintiff continued to visit Dr. Rosenkrantz. By the end of August, 1984, he was advised to go back on his neck and back exercise program. While plaintiff continued to complain of pain in his back, Dr. Rosenkrantz’s testimony reflects that signs of improvement as to plaintiff’s neck and back were noted throughout September and October, 1984.

(14)

In order to resolve the question of disc injury in conclusive fashion, a CT scan was conducted upon plaintiff on November 30, 1984. The results of the CT scan were completely negative and normal, ruling out any nerve root or disc involvement.

(15)

In April, 1985, fifteen months after the collision giving rise to this action, plaintiff was tested by Phillip T. Griffin, Ph.D., a clinical psychologist. Based on a single visit and plaintiffs answers to test questions, Dr. Griffin concluded that plaintiff was depressed and that he expressed this depression through complaints of bodily pain. This was the first indication to the Court that plaintiff allegedly suffered a psychological disability resulting from the collision. An examination of all other medical reports made during the claimed period of plaintiffs disability reveal neither complaints by plaintiff of depression nor any diagnosis of a condition of depression. This inconsistency motivated the Court to obtain an independent psychiatric evaluation of plaintiff.

(16)

Subsequent to the May 9th, 1985 trial of this matter, plaintiff was twice examined by Dr. Charles R. Smith, M.D., a respected psychiatrist. After his first visit, Dr. Smith noted that plaintiff seemed to be depressed. However, after plaintiffs second visit, Dr. Smith noted a dramatic change in plaintiffs behavior and personality. Between the two visits, plaintiff had gone to Southeast Louisiana Hospital for two weeks of treatment. Dr. Smith noted that following the hospital stay and change in medication, Mr. Amonfo showed “marked improvement”, was “more alert,” and “walked into the office in a friendly manner.” Dr. Smith noted that the improvement was such that plaintiff “had been considered on the road to recover.”

(17)

When called upon to determine if the January 11, 1984 accident was the cause of plaintiffs condition, Dr. Smith opined that “the diagnosis of schizophrenia, the most likely one, would in its origin involve genetic, endocrine, and many life process factors that would proceed the accident.” [emphasis added]. Dr. Smith further noted that “stressful events could aggravate the underlying disorder.” [emphasis added].

(18)

In regard to whether the symptoms exhibited by plaintiff were brought about by the accident or a post-accident failure of a prospective business venture, Dr. Smith stated, “... although the accident was a stressful circumstance for him, there are other matters to be taken into account and neither can be considered a solitary, causative agent.” Dr. Smith further stated, “there were at least three or four other factors to take into consideration____”

(19)

After a careful review of Dr. Smith’s report and deposition transcript, the Court finds that plaintiff’s mental problems preceeded the accident, and that other factors including the failure of a future grain business, the failure of a prior marriage, and an inability to relate to American culture and language exacerbated this pre-existing problem. While the collision may have been an aggravating factor in a pre-existing condition, plaintiff failed to prove at trial that the accident was the cause of either his mental illness or his failed business venture.

(20)

Plaintiff has not proven any lost wages or profits. At the time of the accident, Mr. Amonfo was unemployed. While he planned to form his own grain exportation business, he had not entered into any contracts for the purchase or sale of any grain. Further, plaintiff presented no records of any money that he had made, expended or lost in connection with the anticipated grain endeavor.

(21)

Plaintiff claims to have incurred $2,068.84 in rental car expenses as a result of the accident. Plaintiff did not show the necessity or the reasonableness of this February through April 11, 1984 rental and testified on cross-examination that after April 11, 1985 he stayed home and developed a fear of automobiles. The Court finds that this immoderate rental expense, while incurred as a result of the collision caused by defendant’s negligence, was not justified in light of the evidence presented by plaintiff.

IV.

CONCLUSIONS OF LAW

0)

This Court has jurisdiction over this claim pursuant to 28 U.S.C. § 1332(a)(1). When a federal court’s jurisdiction is based upon diversity of citizenship, the Court must apply the substantive law of the state in which it is sitting. Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938); Morris v. LTV Corp., 725 F.2d 1024, 1026-27 (5th Cir.1984). Additionally, in diversity actions, this Court is bound by the decisions of the intermediate appellate courts absent a strong showing that the Louisiana Supreme Court would hold otherwise. Estate of Mann, 731 F.2d 267 (5th Cir.1984); See Commissioner v. Estate of Bosch, 387 U.S. 456, 464-65, 87 S.Ct. 1776, 1782-83, 18 L.Ed.2d 886 (1967); See generally 1A Moore’s Federal Practice H 0.307[2] (2d ed. 1976).

(2)

LSA-CC Art. 2315 provides:

“Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.”

(3)

In a suit for damages, it is plaintiff’s burden to prove that the damages he suffered were the result of defendant’s fault, and to support an award there must be evidence in the record. Borden, Inc. v. Howard Trucking Co., Inc., 454 So.2d 1081, 1092 (La.1983). Plaintiff also bears the burden of establishing each and every element of damage claimed. Woodfield v. Dugas, 450 So.2d 1011, 1014 (La.App. 1st Cir.1984). Proof must be shown by a preponderance of the evidence, and mere possibility is not sufficient. Meyers v. Imperial Casualty Indemnity Co., 451 So.2d 649, 658 (La.App. 3rd Cir.1984). Further, under Louisiana law, a damage award cannot be based on speculation or conjecture. Haley v. Pan American World Airways, Inc., 746 F.2d 311, 316 (5th Cir.1984), rehearing denied, 751 F.2d 1258 (5th Cir.1984); Napasco International, Inc. v. Tymshare, Inc., 556 F.Supp. 654, 661 (E.D.La.1983).

(4)

The testimony of plaintiff coupled with that of the witness, Keith Johnson, convinced the Court that defendant’s driver ran a red light and caused the collision with plaintiff’s automobile. The Court concludes that plaintiff carried his burden of proof as to both the circumstances of the accident and defendants’ fault in accordance with Borden, Inc. v. Howard Trucking Co., Inc., supra. The testimony of Dr. Rosenkrantz established that plaintiff suffered back and neck pain until July 2, 1984 when the doctor determined plaintiff had regained normal posture. Id. Therefore, the Court perceives plaintiff’s proven damages to be those relative to his automobile, medical expenses incurred between January 11, 1984 and July 2, 1984, and plaintiff’s pain and suffering between the date of the accident and July 2, 1984.

(5)

As to plaintiff’s personal pain and suffering experienced as a result of neck and/or back trauma sustained in the accident, the Court’s general damage award is guided by previous appellate decisions in Louisiana involving similar injuries. In accordance with Cassreino v. Brown, 144 So.2d 608, 610 (La.App. 4th Cir.1962), “awards should be made with some degree of uniformity in instances involving comparable cases, to the end that awards will not be out of proportion with one another.” The Cassreino court, in an opinion by Judge Tate, recognized three types of injuries in regard to duration and severity of pain in relation to general damages awardable to a plaintiff. These categories are:

1. An injury producing “permanent disability or severe pain of prolonged duration.”
2. An injury producing “severe initial pain and with however only a short period of residual discomfort,” or “producing less severe pain but a relatively long period (e.g. a year or two) of residual discomfort or disability.”
3. An injury producing “moderate or slight pain, which is cured without residual [pain] in a matter of weeks.”

144 So.2d at 611.

(6)

This Court has found that the plaintiff’s physical condition had returned to “normal posture” as of July 2, 1984, and that an electro myelogram performed on plaintiff in March 1984 ruled out disc or nerve root injury. Therefore, the Court concludes that plaintiff falls into the second class of neck/back injuries described in Cassreino, i.e. “severe initial pain and with however only a short period of residual discomfort.”

(7)

In Mart v. Schlumberger, Ltd., 422 So.2d 1205, (La.App. 1st Cir.1982), plaintiff was injured in an automobile accident. The appellate court observed:

“... Nowhere in that evidence is it indicated that she sustained a serious injury as a result of the accident. In fact, the most definite diagnosis, the one contained in Dr. Landry’s evaluation of August 13, 1981, indicated the plaintiff had sustained a combined cervical and lumbar strain. Both of the myelograms run on plaintiff were normal.” [emphasis added].

422 So.2d at 1207. This case is factually similar to the case at bar. Both plaintiffs sustained cervical and lumbar strains and both underwent myelograms which had negative results. In Mart, the appellate court upheld the trial court’s award of $3,000.00 in general damages awarded to plaintiff.

(8)

The Court has reviewed other Louisiana appellate decisions involving automobile collisions which result in cervical and lumbar sprains to the plaintiff, as well as noting the general damages those actions have awarded. In Tate v. Myers, 422 So.2d 532, 533 (La.App. 5th Cir.1982), two plaintiffs each suffering cervical and lumbar sprain injuries were, respectively, awarded $5,193.00 and $4,700.00. In Bruins v. United Sates Fleet Leasing, Inc., 430 So.2d 386, 387 (La.App. 3rd Cir.1983) plaintiff suffered both a cervical and a low back sprain. The appellate court upheld the trial court’s award of $4,500.00 in general damages to plaintiff. In Lee v. USF & G, 433 So.2d 903, 905 (La.App. 3rd Cir.1983), the court ruled that it was not an abuse of discretion to award $4,000.00 in general damages to a plaintiff who, in an automobile collision, suffered an acute cervical strain as well as an acute lumbar strain and was found to be suffering back spasms seven weeks after the accident and a mild sprain some nine months after the accident.

(9)

In comparing the general damage awards in the four cases cited above, the Court observes that the award range is from $3,000.00 to $5,193.00. Based upon the fact that both an electro myelogram and a CT scan revealed no abnormalities as to Mr. Amonfo’s spine or nerve roots and considering the five and one-half month period of pain the Court attributes to the collision, an award of $3,500.00 to plaintiff in general damages is appropriate.

(10)

The Court finds that Mr. Amonfo has not sustained his burden of proof in showing that his alleged psychological damage was caused by the accident. The burden of proving such damages is set forth in Jordan v. Travelers Insurance Co., 231 So.2d 678, 684 (La.App. 1st Cir.1970), modified on other grounds, 257 La. 995, 245 So.2d 151 (1971) which held:

“We now turn our attention to the crucial issue in this instant matter and that is whether or not the negligent act of the defendant also brought about the subsequent mental residuals endured by .plaintiff. For plaintiff to recover for these injuries he must establish that there is a causal relation between the two and that the injuries complained of did in fact result from the accident. In shouldering this burden of proof, probabilities and possibilities are not enough; however, neither is plaintiff required to prove this causal relation beyond a reasonable doubt. The amount of proof required, therefore involves a question of degree. The answers thereto is one of reasonableness. This is so because not all injuries are susceptible of proof by testimony that is beyond legitimate quandary. It is for this reason that our jurisprudence has provided that the legal requirement for the burden of proof is satisfied when plaintiff has established to a reasonable certainty that the negligent act caused his injuries. To prove less is not enough but to require more would make a plaintiff’s task an unreasonable one and in many cases impossible.” Jordan v. Travelers Insurance Company, supra, 231 So.2d at 684.

Where, as here, evidence of post-traumatic neurosis is based on symptoms that do not manifest themselves at a point in time close to that of the trauma, such evidence must be carefully scrutinized and viewed with caution. Jordan v. Travelers Insurance Co., supra at 685; Waldo v. Toye Bros. Yellow Cab Co., 210 So.2d 125, 127-29 (La. App. 4th Cir.1968). The Court notes that plaintiff’s complaints of psychological difficulty came after both a negative electro myelogram and a negative CT scan. Furthermore, the psychiatric evaluation of Mr. Amonfo by Dr. Smith revealed “the diagnosis of schizophrenia, the most likely one, would in its origin involve genetic, endocrine, and many life process factors that would long proceed the accident.” On the basis of the negative tests, the psychiatric evaluation of plaintiff by Dr. Smith, and Dr. Rosenkrantz’s finding that plaintiff had returned to normal posture as of July 2, 1984, the Court concludes that there is no legal basis for attributing plaintiff’s psychiatric problems to the January 11, 1984 collision.

(ID

At the time of the accident, plaintiff was not employed and, although he testified that he intended to start up a business, he had taken no substantial steps to do so. Therefore, no claim for lost wages or for lost profits has been proven.

“It is an established rule that lost profits resulting from an offense or quasi offense must be proved with reasonable certainty, and damages will not be allowed where the lost profits are purely conjectural or uncertain.” Meshell v. INA, 416 So.2d 1383, 1388 (La.App. 3rd Cir.1982), and cases and authorities cited therein.

A claim for lost profits based solely on the testimony of the injured party and unsubstantiated by other evidence does not constitute a reasonable certainty. Louisiana Joint Underwriters v. Gant, 439 So.2d 1153, 1157 (La.App. 4th Cir.1983); See also Borden, Inc. v. Howard Trucking Co., Inc., supra at 1097; Landry v. Bourque, 460 So.2d 33 (La.App. 1st Cir.1984).

(12)

Mr. Amonfo claims $2,068.84 in damages for rental of a substitute vehicle. This amount is excessive. This item of damages can only be allowed for the period of time during which the plaintiff could reasonably have had the original vehicle repaired or in which a new vehicle could have been purchased. As held in Nolan v. Liuzza, 301 So.2d 892, 894 (La.App. 4th Cir.1974),

“... The period of compensable loss of use is only ‘the time required by the exercise of proper diligence to secure its repair,’ (citations omitted) and, when damage is very extensive, the time needed to determine whether the car is economically repairable or should be replaced.”

At trial, plaintiff presented neither evidence which would indicate that his Ford LTD automobile was in the repair process from January 11 until April 11, 1984 or that it had been declared a constructive, total loss. The only reason given for the return of the rental automobile was provided by plaintiff on cross-examination: He developed a fear of automobiles. After considering the extensive damage to plaintiff’s automobile caused by the collision, in relation to the unexplained three month rental period, the Court concludes that $750 represents adequate compensation to plaintiff for rental automobile expenses.

(13)

The damages recoverable by plaintiff, based upon the negligence and fault of defendants, are as follows:

1. Collision damage to plaintiff’s Ford LTD of $3,165.00.
2. All medical expenses incurred by plaintiff from January 11 through July 2, 1984.
3. Rental automobile expenses of $750.00.
4. Plaintiff’s pain and suffering: $3,500.00.

(14)

While the general rule requires that the party cast in judgment pay all costs of trial, Borden, Inc. v. Howard Trucking Co., Inc., 425 So.2d 893, 899 (La.App. 1st Cir.1983), the Court may make an equitable, different provision for costs. Bowman v. New Orleans Public Service, Inc., 410 So.2d 270, 271 (La.App. 4th Cir.1982); Metalock Corp. v. Metal Locking of La., Inc., 260 So.2d 814, 822 (La.App. 4th Cir.1972), writ denied, 262 La. 189, 262 So.2d 788 (1972). Accordingly, the Court shall require each party to bear its own costs.

(15)

IT IS ORDERED that judgment be rendered in favor of plaintiff and against defendants in the amount of $7,415.00 plus all unpaid medical expenses incurred by plaintiff from January 11 through July 2, 1984, together with legal interest from the date of judicial demand. Plaintiff shall submit an itemized, proposed form of judgment which shall include the $7,415.00 plus itemized medical expenses incurred from January 11, 1984 through July 2, 1984. The proposed judgment shall be submitted to the Court by MONDAY, DECEMBER 30, 1985.

      . At this intersection, Martin Luther King Blvd. is a divided, four-lane roadway and South Claiborne Avenue is a divided, six-lane roadway. A large, grass-covered "neutral ground” or median exists in the center of South Claiborne Avenue and separates east from westbound traffic on that avenue. Martin Luther King Blvd., which has a narrow median between north and southbound traffic, intersects the large median at South Claiborne Avenue.

      . The plaintiffs witness, Keith Johnson, observed the defendant’s truck from his vantage point at Martin Luther King Blvd.’s northbound lane on the south side of South Claiborne Avenue intersection. He testified that the truck was travelling at an estimated 35 to 40 mph and locked its brakes in an effort to stop. The impact of the collision knocked plaintiff’s automobile about 60-70 feet into the northbound lane of Martin Luther King Blvd.

      . Plaintiff was seen by Dr. Rosenkrantz on August 31, 1984, September 17, 1984, October 2, 1984, October 16, 1984, November 26, 1984, December 5, 1984, December 19, 1984 and December 25, 1984.

      . Mr. Amonfo was seen by Dr. Smith on June 10 and July 16, 1985. On July 23, 1985 Dr. Smith rendered his report as to plaintiffs condition.

      . At Southeast Louisiana Hospital, plaintiff was diagnosed as psychotic. During this time, plaintiff was taken off anti-depressant medications which, according to Dr. Smith’s July 23, 1984 report, p.2, may have "activated or prolonged the psychotic disorder.”

      . Dr. Smith’s report of July 23, 1985, pg. 2.

      . Dr. Smith’s deposition of September 30, 1985, pgs. 13-14.

      . Dr. Smith’s report of July 23, 1985, pg. 4.

      . Dr. Smith’s report of July 23, 1985, pg. 4.

      . "Substantive” in this context means that the state law applicable to the issue or issues of the suit would significantly affect the outcome of the suit. If so, the federal court must apply the applicable state law on these issues. Guaranty Trust Co. of New York v. York, 326 U.S. 99, 109, 65 S.Ct. 1464, 1469, 89 L.Ed. 2079 (1945); Morris v. LTV Corp., supra at 1027.

      . In addition to the electro myelogram, a CT scan was performed on plaintiff on November 30, 1984. The results were completely negative and normal.

      . In Mart, the plaintiff underwent two negative myelograms. In the instant dispute, plaintiff underwent one negative myelogram and one negative CT scan.

      . Dr. Smith’s report of July 23, 1985, pg. 2.

      . The statement by plaintiff that, at the time the rental automobile was returned on April 11, 1984, he had developed a "fear of automobiles" further convinces the Court that plaintiff was psychotic and not simply depressed. The Court perceives no rational connection between this psychotic episode and the collision three months earlier.

      . $3,165.00 for collision damage to plaintiffs Ford LTD, $750.00 for rental automobile expenses, plus $3,500.00 for plaintiffs personal pain and suffering.


author: DEBEVOISE, District Judge.

text:
    KELLEY DRYE & WARREN, Plaintiff, v. MURRAY INDUSTRIES, INC. and Murray Chris-Craft Sportboats, Inc., Defendants.
    Civ. A. No. 85-2495.
    United States District Court, D. New Jersey.
    Dec. 11, 1985.
    Kelley Drye & Warren by John Patrick Marshall, Morristown, N.J., pro se.
    Sills Beck Cummis Zuckerman Radin Tischman & Epstein by Jeffrey J. Greenbaum, Newark, N.J., for defendants.
   DEBEVOISE, District Judge.

A. The Proceedings

Plaintiff, Kelley Drye & Warren (“Kelley Drye”), commenced this action against defendants Murray Industries, Inc. and Murray Chris-Craft Sportboats, Inc. (collectively referred to as “Chris-Craft”) to recover the sum of $109,268.37 for services rendered and disbursements incurred during the representation of Chris-Craft in an action in this court entitled Image Boat Company v. Murray Chris-Craft Sport Boats, Inc., et al, 84 Civ. 2381. The complaint in that action alleged, inter alia, a violation of federal trademark law, violation of state common and statutory unfair competition laws, disparagement, violation of Florida’s “anti-splashing” statute, breach of contract and tortious interference with contractual relations. After settlement and dismissal of that action Kelley Drye sought payment of its bills for services and disbursements. Chris-Craft failed to pay. The complaint in this action was filed on May 24, 1985.

On July 11, 1985, purportedly acting pursuant to N.J.Ct.Rule l:20A-3(a), Chris-Craft filed a Request For Fee Arbitration with the District Fee Arbitration Committee of the Supreme Court of New Jersey (the “Committee”). The Request asked the Committee to “notify the United States District Court with respect to this timely filing so that the pending action will be stayed in accordance with Rule l:20A-3.”

Kelley Drye refused to accede to the jurisdiction of the Committee, and in lieu of answering in the instant case Chris-Craft moved to dismiss the complaint or, in the alternative, to compel arbitration and stay all proceedings.

B. New Jersey’s Fee Arbitration System

The New Jersey Constitution grants to the New Jersey Supreme Court exclusive jurisdiction “over the admission to the practice of law and the discipline of persons admitted.” N.J. Const., Art. 6, § 2, Para. 3. The Supreme Court has construed its rule making powers in the broadest terms. Winberry v. Salisbury, 5 N.J. 240, 74 A.2d 406 (1950), cert. denied, 340 U.S. 877, 71 S.Ct. 123, 95 L.Ed. 638 (1950).

Acting pursuant to its constitutional powers to regulate the admission to practice and the discipline of persons admitted, the Supreme Court provided for compulsory binding arbitration of attorney-client fee disputes if a client so requests. N.J.Ct. Rule 1:20A-1, et seq.

The Supreme Court has appointed a fee arbitration committee to serve in each of the State’s Disciplinary Districts. N.J.Ct. Rule 1:20A-1. Such committees consist of such number of members, not fewer than eight, as the Court may determine, at least four of whom shall be New Jersey attorneys and at least two of whom shall not be attorneys.

Each Fee [arbitration] Committee shall, pursuant to these rules, have jurisdiction (a) to arbitrate fee disputes____

N.J.Ct.Rule 1:20A-2.

(a) Submission. A fee dispute shall be arbitrated only upon a client’s written request or upon written consent to the attorney’s request. The fee committee shall have authority to consider such requests whether or not the attorney has already received the fee in dispute. The request or consent shall include a stipulation by the client that if an action for payment of the fee is then pending, it shall be stayed pending a determination by the fee committee, and the amount of the fees so determined shall be entered in the judgment in the action, provided that a client’s request for arbitration shall be filed within sixty (60) days after service of process____

N.J.Ct.Rule 1:20A-3.

The hearing must be held before a panel having at least three members, at least a majority of whom shall be attorneys. N.J. Ct.Rules 1:20A-3(b). Normally a panel has two attorney members and one non-attorney member. The determination will be made by a majority of the panel. Committees have the power, at a party’s request, to compel the attendance of witnesses and the production of documents by the issuance of subpoenas. No transcript or recording is made unless ordered by the Administrative Director of the Courts, nor need the rules of evidence be strictly observed. N.J.Ct.Rule 1:20A-3(b).

There is no appeal on the merits from the determination of a committee. However, either the attorney or the client may appeal to the Disciplinary Review Board (the nine-person body appointed by the Supreme Court to review the determinations of district ethics committees and fee arbitration committees) if it is alleged that a committee member improperly failed to disqualify himself, the committee failed to comply with the procedural requirements of the Rules or there was actual fraud on the part of any member of the committee. If the Disciplinary Review Board finds after a hearing that there had been a violation of N.J.Ct.Rule 1:20A-3(c) it may either remand to the committee for a new determination or determine the matter itself. There does not appear to be any appeal from the action of the Disciplinary Review Board.

A committee determination will be entered as a judgment against the client in any action pending against the client for collection of the fee or, if no such action is pending, the attorney may, by summary action obtain judgment in the amount of the fee determined by the committee. N.J. Ct.Rule 1:20A-3(a).

The New Jersey Supreme Court explained its purpose in enacting the Fee Arbitration System in In re LiVolsi, 85 N.J. 576, 428 A.2d 1268 (1981), which challenged the state and federal constitutionality of the system, as follows:

[FJorcing clients to go to court to resolve attorney fee disputes places a heavy burden on the clients____ Clients, especially those of limited income, often find it very difficult to procure another attorney to represent them in fee disputes. Also, if a client were forced to give the attorney a retainer that eventually proved to be unreasonably high, the client might not be able to afford the delay of another trial before being reimbursed____ [Ijmposing these burdens on clients causes “immeasurable” harm to the relationship between the Bar and the public. (Citations omitted.)

Id. at 599, 428 A.2d 1268.

Though the matters which come to fee arbitration represent a very small proportion of the total number of fee relationships, they are among the most visible matters to a public greatly concerned about how the judicial system deals with attorney-client disputes. Our success in establishing a fair fee arbitration system will do much to assure the public of the fairness of the judicial system as a whole, and thereby increase the public confidence that is so necessary for that system to operate effectively.

Id. at 604, 428 A.2d 1268.

Chris-Craft contends that this law, applicable in a diversity action such as this, prohibits judicial resolution of such claims when a client requests arbitration. Chris-Craft further argues that comity considerations compel arbitration and dismissal to avoid preemption of state proceedings. Finally, Chris-Craft argues that federal law favors arbitration, that Kelley Drye has an implicit agreement with the State of New Jersey to submit its claim to arbitration and that Chris-Craft is a third party beneficiary of this agreement.

In opposition, Kelley Drye argues that to apply Rule 1:20A-1 el seq. would strip this court of its diversity jurisdiction, something a state may never do. Furthermore, to submit the claim to binding arbitration would deny it its Seventh Amendment right to a jury trial. Kelley Drye argues that this controversy does not fall within the categories where abstention should be observed. Finally, Kelley Drye maintains that it has not entered into any agreement, implicit or otherwise, with the State of New Jersey to arbitrate such claims.

C. Applicability of NJ.Ct.Rule 1:20A-1, et seq. to Kelley Drye

In its complaint in this action (Par. 1) Kelley Drye asserts that it “is a partnership engaged m the practice of law, with its principal office at 101 Park Avenue, New York, New York and with an office at 175 South Street, Morristown, New Jersey.”

Even though it is a New York partnership, Kelley Drye is listed in the “Official List of Active Members of the Bar of New Jersey.” 1985 New Jersey Lawyers Diary and Manual, at p. 604. It is thus a New Jersey law firm admitted pursuant to the Rules of the New Jersey Supreme Court to practice law in this State. N.J.Ct.Rule 1:21-1, et seq.

When Kelley Drye sought and obtained admission to the bar of New Jersey, it voluntarily subjected itself to the disciplinary jurisdiction of the New Jersey Supreme Court. That jurisdiction includes the fee arbitration procedures mandated by the Court Rules.

(a) Every attorney authorized to practice law in the State of New Jersey ... shall be subject to the disciplinary jurisdiction of the Supreme Court____
To assist in the administration of its disciplinary function, the Supreme Court shall establish in accordance with these rules ... District Fee Arbitration Committees ... a Disciplinary Review Board____

N.J.Ct.Rule l:20-l(a).

When Kelley Drye entered an appearance in the federal action in which it represented Chris-Craft, it was not admitted pro hac vice pursuant to General Rule 4C of the Rules of this court. Rather it was admitted pursuant to General Rule 4B which provides for the automatic admission of attorneys licensed to practice by the Supreme Court of New Jersey.

It seems very clear that when Kelley Drye elected to avail itself of the right to practice law in New Jersey it undertook to do so in accordance with the Rules and procedures established by the New Jersey Supreme Court. It did not shed itself of the obligations it assumed and the limitations to which it subjected itself simply because it chose to institute its action for attorneys’ fees in the federal court. Thus it is bound by the New Jersey Disciplinary Rules, including N.J.Ct.Rule 1:20A-1, et seq.

D. Diversity Jurisdiction

Kelley Drye urges that it is in federal court by right, diversity jurisdiction having been conferred upon the court by 28 U.S.C. § 1332. Kelley Drye is a New York partnership. Chris-Craft’s component corporations are Delaware corporations with their principal places of business in Florida. (Presumably none of Kelley Drye’s partners are citizens of Delaware or Florida.) The amount in controversy exceeds the value of $10,000 exclusive of interest and costs. Kelley Drye maintains, quite correctly, that a state cannot divest a federal court of diversity jurisdiction either by statute or by court rule. Railway Company v. Whitton’s Administration, 80 U.S. (13 Wall) 270, 286, 20 L.Ed. 571 (1871).

Kelley Drye contends that New Jersey law has provided it with the substantive right to be paid for the legal services which it has performed, and that having created that right the State cannot mandate that the right be enforced in State rather than federal proceedings. Markham v. City of Newport News, 292 F.2d 711, 716 (4th Cir. 1961).

In Kanouse v. Westwood Obstetrical and Gynecological Associates, 505 F.Supp. 129 (D.N.J.1981), a medical malpractice action in which jurisdiction was based upon diversity of citizenship, defendants moved to dismiss the action on the basis of NJ.Ct. Rule 4:21 which set forth procedures for state panel review of medical malpractice cases after they were instituted. Judge Brotman denied the motion on the ground that a state statute or rule cannot divest a federal court of its jurisdiction.

Thus in the present case Chris-Craft’s motion to dismiss should be denied. The court has diversity jurisdiction, and the existence of the fee arbitration rule cannot deprive the court of that jurisdiction.

E. Applicable Law

The determination that this court must retain jurisdiction does not dictate that this court should decide the attorneys’ fee controversy. Under the doctrine of Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938) a federal court in diversity cases must give effect to the substantive law of the state in which it sits. Here, while the substantive law of New Jersey gives attorneys the right to charge and recover legal fees for services rendered, New Jersey substantive law also conditions the right to practice law in New Jersey upon an undertaking to resolve attorneys’ fee disputes through arbitration as provided in the Rules of Court. The obligations imposed by this undertaking constitute substantive law which New Jersey courts will enforce. I see no reason why these obligations should not similarly be enforced by the federal court.

Closely analogous is the situation where the parties agree to arbitrate specified disputes. Such an agreement will be enforced in either the state or federal court.

Arbitration is a favored method of dispute resolution, e.g., Dean Witter Reynolds, Inc. v. Byrd,—U.S.-, 105 S.Ct. 1238, 84 L.Ed.2d 158 (1985); Barrowclough v. Kidder, Peabody & Company, Inc., 752 F.2d 923 (3d Cir.1985). Chris-Craft argues persuasively that the present action is governed by 9 U.S.C. § 3 providing for a stay of proceedings where an issue therein is referable to arbitration:

If any suit or proceeding be brought in any of the Courts of the United States upon any issue referable to arbitration under an agreement in writing for such arbitration, the court in which such suit is pending, upon being satisfied that the issue involved in such suit or proceeding is referable to arbitration under such an agreement, shall on application of one of the parties stay the trial of the action until such arbitration has been had in accordance with the terms of the agreement, providing the applicant for the stay is not in default in proceeding with such arbitration.

N.J.Ct.Rule 1:20-1(a) subjecting every attorney authorized to practice law in New Jersey to the disciplinary jurisdiction of the Supreme Court and N.J.Ct.Rule 1:20A-1, et seq., adopted pursuant to that jurisdiction, requiring New Jersey attorneys to arbitrate fee disputes might well constitute a written agreement for arbitration within the meaning of 9 U.S.C. § 3, Kelley Drye having become a party to the agreement by taking advantage of the opportunity to practice law in New Jersey. However, that question of federal law need not be decided. It is sufficient that under New Jersey law Kelley Drye has committed itself to resolving fee disputes through the Court prescribed arbitration process if a client so elects. The federal arbitration cases, if not controlling, at least demonstrate that New Jersey’s Court Rule and its enforcement are consistent with federal policies favoring arbitration.

F. Right to Jury Trial

Kelley Drye has not yet made a jury demand but it asserts that it may still do so, and if it does the conclusive effect of the committee’s determination puts the fee arbitration system in direct collision with the Seventh Amendment right to a jury trial. The New Jersey Supreme Court has decided that New Jersey equity courts have historically had the power to adjudicate attorney-client fee disputes without juries. In re LiVolsi, 85 N.J. 576, 587-591, 428 A.2d 1268 (1981).

This holding does not apply to a federal court’s diversity jurisdiction.

[T]he right to a jury trial in the federal courts is to be determined as a matter of federal law in diversity as well as other actions. The federal policy favoring jury trials is of historic and continuing strength____ Only through a holding that the jury-trial right is to be determined according to federal law can the uniformity in its exercise which is demanded by the Seventh Amendment be achieved. In diversity cases, of course, the substantive dimension of the claim asserted finds its source in state law, ... but the characterization of that state created claim as legal or equitable for purposes of whether a right to jury trial is indicated must be made by recourse to federal law.

Simler v. Conner, 372 U.S. 221, 222, 83 S.Ct. 609, 610, 9 L.Ed.2d 691 (1963). Commentators find the Court’s holding in Simler unambiguous.

State law may deny a jury trial in a case where the Seventh Amendment requires a jury trial. In this situation it is clear that the federal court must allow a jury trial. This is the precise holding of Simler and that holding is sound. The language of the Rules of Decision Act cannot prevail over the clear command of the Seventh Amendment____ Congress not only has explicit Constitutional authority to provide a jury trial in common law cases but indeed is prohibited from denying that kind of trial.

9 Wright & Miller, Federal Practice and Procedure § 2303 (1971). See also Reddish & Phillips, Erie and the Rules of Decision Act: In Search of an Appropriate Dilemma, 97 Harvard L.Rev. 356, 386-387 (1977). The command of the Seventh Amendment does not allow for the evaluation and balancing of state and federal interests as recommended by commentators in deciding what procedure to apply when state interests would interfere with the right to a jury trial. Id. at 394; 19 Wright & Miller, Federal Practice and Procedure § 4504 (1971). See Byrd v. Blue Ridge Rural Electric Cooperative, Inc., 356 U.S. 525, 78 S.Ct. 893, 2 L.Ed.2d 953 (1958).

However, the right to a jury trial can be given up, as parties do when they agree to arbitrate. Here Kelley Drye has voluntarily given up its right to a trial of any kind if a client elects to arbitrate a fee dispute. No one has an absolute right to practice law, and the State may impose reasonable conditions and limitations upon those who wish to exercise that privilege. Here the Court Rules are reasonable and Kelley Drye has opted to be bound by them. No Seventh Amendment rights are implicated.

G. Miscellaneous Matters

Kelley Drye urges that the fee arbitration rule be relaxed in this case. N.J.Ct. Rule 1:1-2 provides that “[ujnless otherwise stated, any rule may be relaxed or dispensed with by the court in which the action is pending if adherence to it would result in an injustice.” As a basis for relaxing the arbitration requirement Kelley Drye urges that its services were rendered in a federal court proceeding with which the Committee members would be unfamiliar, Chris-Craft is an out-of-state corporation which would not be subject to the Committee’s subpoena power, and discovery would be unavailable.

To relax N.J.Ct.Rules 1:20A-1, et seq., except in the most extraordinary circumstances, would seriously undermine the policies described above which the Rule seeks to'Hmplement. Further, none of the reasons for relaxation advanced by Kelley Drye are persuasive. The kinds of legal services rendered in the earlier federal action cannot be significantly different from the kinds of legal services rendered in other substantial state and federal actions. There should be little or no need for discovery. The information which Kelley Drye needs to establish its entitlement to the amount of fees and disbursements it seeks must be in its own possession. Chris-Craft will be before the Committee and subject to the Committee’s subpoena or direction to produce needed information. Depositions and extensive pretrial proceedings are precisely what the arbitration procedure is designed to avoid.

Chris-Craft urges dismissal on grounds of comity and abstention, e.g., Middlesex Ethics Committee v. Garden State Bar Association, 457 U.S. 423, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982). This issue would be material only if I had concluded that it was necessary to address the substance of Kelley Drye's attorneys’ fee claim. Nothing in the manner in which this case will be disposed of will affect New Jersey’s public policy, and therefore I need not decide whether Younger abstention would be appropriate. Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971).

H. Conclusion

For the reasons set forth above (i) Chris-Craft’s motion to dismiss the complaint will be denied, (ii) an order will be entered requiring Kelley Drye to proceed with arbitration of its claim pursuant to N.J.Ct. Rules 1:20A-1, et seq., staying this action pending completion of the arbitration proceedings and administratively terminating this action with the right of any party to move to reopen in order to enter a judgment in the amount determined in the arbitration proceeding or otherwise for good cause.

The attorneys for Chris-Craft are requested to submit an appropriate form of order.

      . In re LiVolsi held that the fee arbitration system did not violate the Fourteenth Amendment right to equal protection or the qualified right to a jury trial under New Jersey's Constitution (this right had never been absolute in attorney-client fee disputes). Id.

      . Judge Brotman, however, provided for the creation of a review panel in medical malpractice cases so that such cases instituted in the federal court would be processed in a manner quite similar to state procedures. C/., Hamilton v. Roth, 624 F.2d 1204 (3d Cir.1980), which held that compliance with Pennsylvania’s nonbinding arbitration proceedings in medical malpractice claims was a condition precedent to the existence of a cause of action which could be sued on in any court, state or federal.

      . Kelley Drye's right to a jury trial cannot be deemed waived until Chris-Craft files its answer to the complaint. Fed.R.Civ.P. 38(b).


author: OBERDORFER, District Judge.

text:
    The COMMUNITY FOR CREATIVE NON-VIOLENCE, et al., Plaintiffs, v. Donald P. HODEL, et al., Defendants.
    Civ. A. No. 85-3861.
    United States District Court, District of Columbia.
    Dec. 11, 1985.

      Charles Morgan, Jr., J. Richard Cohen, David W. Crosland, III, Morgan Associates, Chartered, Washington, D.C., for plaintiffs.
    Joseph E. diGenova, U.S. Atty., Royce C. Lamberth, R. Craig Lawrence, John D. Bates, Asst. U.S. Attys., Washington, D.C., for defendants.
   MEMORANDUM

OBERDORFER, District Judge.

I.

This is an action for declaratory and injunctive relief brought by the Community for Creative Non-Violence (CCNV) and Mitch Snyder, its primary spokesperson. Defendants are Donald P. Hodel, Secretary of the Interior, and Manus J. Fish, Jr., Regional Director, National Capital Region, of the National Park Service (Park Service).

The controversy in this case stems from the Park Service’s denial of CCNV’s request to include a statue it commissioned in the 1985 Christmas Pageant of Peace. The Christmas Pageant is an annual “national celebration event” held on the oval portion of the Ellipse during the last weeks of December. 36 C.F.R. § 50.19(d)(1) (1985). It will begin this year on December 12, 1985, at which time the several artifacts of a Christmas celebration will be in place.

The Christmas Pageant is sponsored by the Park Service with the cooperation of The Christmas Pageant of Peace, Inc. The policy of the Park Service is to “encourage[] the expression of views regarding [the Pageant].” 46 Fed.Reg. 55,-961. To that end, a public meeting is held several weeks before the Pageant to present a general plan for the event, and to solicit public “suggestions for activities within the theme and format of the Christmas Pageant.” Id.

See Plaintiffs’ Exhibit 14. Snyder requested that the sculpture be included as part of the Christmas Pageant. On November 26, 1985, the Park Service informed plaintiffs by letter that that it had “decided to deny [CCNV’s] request.” The letter went on:

The Christmas Pageant of Peace is a non-partisan, non-political special event held each year on the Ellipse. It is cosponsored by the National Park Service and Christmas Pageant of Peace, Inc., a non-sectarian, non-partisan civic organization____
The statue that you wish to have displayed along with those items, as described in your remarks in the public meeting, is not appropriate for the Pageant of Peace. It is not a traditional symbol of the Christmas holiday. Further, the statue and accompanying sign represent your group’s statement on a political issue now the subject of great controversy. In addition, as pointed out in your remarks at the public meeting and in your recent press release on the statue, the statue will be used to raise monies for a national fund for the homeless. While this goal is admirable, we believe that it is inappropriate to initiate any fund-raising campaign at the Pageant of Peace. Finally, we are concerned about the expense to the National Park Service resulting from the installation of a functional heating grate, an important part of the statue, on the Pageant site. Although you gave us few details on the statue, it appears that considerable re-planning would have to be done to accommodate the statue as a part of the Christmas Pageant of Peace display.

Plaintiffs’ Exhibit 1-A. The letter concluded:

[Y]ou may set up your statue on the Ellipse in close proximity to the Pageant of Peace under regulations applicable to First Amendment activities on park lands. In this regard, I have enclosed an application for a permit to conduct your activity.

Id. Thus, plaintiffs have been invited, in accordance with established regulations, to display their statue on the Ellipse in close proximity to the Pageant; the access denied is to the Pageant, itself.

II.

Plaintiffs’ complaint alleges that the government has abridged all of the rights guaranteed them by the First Amendment: the prohibition against the establishment of religion, the right to free exercise of religion, the guarantees of free speech and freedom of the press, the right peaceably to assemble, and the right to petition the government for redress of grievances. Complaint for Declaratory and Injunctive Relief at H 43 (filed Dec. 5, 1985). The complaint also alleges that defendants’ actions abridge plaintiffs’ right to equal protection, and were arbitrary and capricious under the Administrative Procedure Act, 5 U.S.C. § 706. In Plaintiffs' Motion in Support of Application for Temporary Restraining Order and Motion for Preliminary Injunction (filed Dec. 5, 1985), plaintiffs restate all their arguments, but then only brief to any substantial degree the free speech issue. Defendants filed their opposition to plaintiffs’ motion at the close of business on December 9, 1985, only substantially briefing in opposition the free speech issue. See Memorandum in Support of Defendants’ Motion to Dismiss or, in the Alternative, for Summary Judgment and in Opposition to Plaintiffs’ Motion for a Temporary Restraining Order or Preliminary Injunction at 1 n. 1 (filed Dec. 9, 1985). Plaintiffs filed a reply in the morning of December 10, 1985, when a hearing on their application and motion was set for 10:00 A.M. Defense counsel represented that he was served with a copy during the hearing, after he had presented his argument.

Due to the exigencies of the briefing of the temporary restraining order application and preliminary injunction motion, the timing of plaintiffs’ reply was understandable. However, in their reply, plaintiffs present an innovative Establishment Clause argument not developed in their original brief. Before this time, it was not clear how plaintiffs, given the Supreme Court’s decision in Lynch v. Donnelly, 465 U.S. 668, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984), planned to address the denial of their request on Establishment Clause grounds. The government has had no opportunity to respond to these recent arguments by plaintiffs and the Court is faced with the situation where emergency relief is required if the statue is to be installed before December 12, 1985. Consequently, the Court will limit the temporary restraining order and preliminary injunction decision to the free speech allegations briefed before the December 10 hearing. Any consideration of other First Amendment issues will be reserved for the plenary proceedings.

III.

The factors to consider in deciding upon a request for a temporary restraining order or preliminary injunction are: (1) the plaintiff’s likelihood of prevailing on the merits; (2) the threat of irreparable injury to the plaintiff in the absence of injunctive relief; (3) the possibility of substantial harm to other interested parties should injunctive relief be granted; and (4) the interests of the public. Foundation on Economic Trends v. Heckler, 756 F.2d 143, 151 (D.C. Cir.1985); Washington Metropolitan Area Transit Commission v. Holiday Tours, Inc., 559 F.2d 841, 843 (D.C.Cir.1977).

Under the Freedom of Expression Clause of the First Amendment, plaintiffs and defendants are in general agreement as to the legal analysis to apply to this case. Components of the analysis are whether the Christmas Pageant represents a limited public forum or a non-public forum, and whether, under the standards applicable to either type of forum, the government’s decision is defensible. The parties agree that the relevant forum is the Christmas Pageant, and not the entire Ellipse.

A.

Plaintiffs contend that the Christmas Pageant is a limited public forum. They cite Perry Education Assoc, v. Perry Local Educators’ Assoc., 460 U.S. 37, 46 n. 7, 103 S.Ct. 948, 955 n. 7, 74 L.Ed.2d 794 (1983), to say, “A public forum may be created for a limited purpose such as ... for the discussion of certain subjects.” See also North Shore Right to Life Committee v. Manhasset American Legion Post No. 301 452 F.Supp. 834, 838-40 (E.D.N.Y.1978) (Memorial Day parade is limited public forum); Toward a Gayer Bicentennial Committee v. Rhode Island Bicentennial Foundation, 417 F.Supp. 632, 639 (D.R.I.1976) (bicentennial commemoration is limited public forum). Plaintiffs place great emphasis on the public meeting held by the Park Service to solicit public views on the Pageant. They also hark to the special nature of parks as “quintessential public forums.” Perry, supra, 460 U.S. at 45, 103 S.Ct. at 954.

The significance of finding the Pageant to represent a limited public forum is that in order to enforce a content-based exclusion the government must show a compelling state interest which is narrowly drawn to achieve its end. Id. at 46, 103 S.Ct. at 955. Plaintiffs argue that the only legitimate issue for decision by the Park Service was whether the statue fits the theme of the Pageant. However, even this issue, they argue, may not be susceptible to decision because the Park Service does not have adequate guidelines for resolution of the issue. See Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 553, 95 S.Ct. 1239, 1243, 43 L.Ed.2d 448 (1975).

Plaintiffs contend that the reasons given by the government for exclusion of the statue do not pass muster under this constitutional analysis. They argue first that none of the criteria were articulated in advance, and second, even if they were, they are not legitimate. As to tradition, they argue that characters as untraditional as the Chipmunks and Yogi Bear have performed at previous ceremonies. Moreover, they argue that the statue is traditional in its message—compassion for the homeless—and in its inscription from the biblical Christmas story. They further claim that their message is not political, and even if it is, the Pageant is not apolitical. See Women Strike for Peace v. Morton, 472 F.2d 1273, 1291-92 (D.C.Cir.1972) (per curiam) (Wright, J. concurring). They claim that they are not planning to initiate a fund-raising campaign at the Pageant, but only afterwards, and that numerous commercial sponsors are listed in the Pageant programs. See Plaintiffs’ Exhibits 2-C, 2-D, 2-E. Finally, they claim the grate is to be part of the statue and will not cause excessive effort for the Park Service to install.

Plaintiffs also argue that even if the Pageant is a nonpublic forum, the government action is illegitimate. They argue essentially that, by rejecting the statue, the government is trying to suppress expression of a point of view which is distasteful to the government, and that viewpoint discrimination is prohibited even in a nonpublic forum. See Cornelius v. NAACP Legal Defense and Educational Fund, Inc.,—U.S.-, 105 S.Ct. 3439, 3454, 87 L.Ed.2d 567 (1985).

Beyond the merits, plaintiffs argue that the other prerequisites to injunctive relief are met. First, they argue that any denial of First Amendment rights constitutes irreparable injury. Elrod v. Burns, 427 U.S. 347, 373, 96 S.Ct. 2673, 2689, 49 L.Ed.2d 547 (1976); A Quaker Action Group v. Hickel, 421 F.2d 1111, 1116 (D.C.Cir.1969). Second, they argue that only minimal steps are required by the government to accommodate plaintiffs’ statue. And third, plaintiffs claim that the public interest would be served by vindication of First Amendment rights.

B.

Defendants argue that the Pageant is a nonpublic forum. They rely primarily on Cornelius, supra, and Perry, supra. They argue that in these cases, the fora were defined as to the particular means of communication sought rather than by identifying the property at issue as owned by the government. They claim that where the use of the relevant forum is limited and requires the permission of the government, the policy and practice of the government must be examined to ascertain whether the government intended to designate the property in question for public discourse on all or on some limited subjects. See Cornelius, supra, 105 S.Ct. at 3449. If permission is not merely routine, then selective access, argues the government, does not create a public forum.

Applying this analysis to the case here, the government argues the the Pageant is unquestionably not a limited public forum. That is, the Pageant is not open to all speakers even on the general subject of Christmas. Defendants argue that the fact that the Park Service holds a public meeting prior to the Pageant does not make the Pageant itself into a public forum. The preliminary meeting may be public, they concede, but even so, the Pageant is not. They distinguish the entertainment portions of the Pageant (which arguably have included non-traditional fare) from the displays which are fixed and thus subject to different regulation by the Park Service. They argue that the government has consistently limited the physical features of the Pageant to traditional Christmas displays.

Defendants further support their argument with a line of cases dealing with the Pageant, itself. Courts have upheld the right of the Park Service to designate the area of the Ellipse for the particular purpose articulated and to keep others (e.g., those who want to conduct a demonstration) out. Women Strike for Peace, supra; Sanders v. United States, 518 F.Supp. 728 (D.D.C.1981), aff'd. mem., 679 F.2d 262 (D.C.Cir.1982).

In a nonpublic forum, distinctions need only be reasonable and viewpoint neutral. Perry, supra, 460 U.S. at 46, 103 S.Ct. at 955. Defendants thus agree that even if the Pageant is a nonpublic forum, it cannot be used by the government to discriminate against individuals according to their point of view. Cornelius, supra, 105 S.Ct. at 3454. Defendants emphasize that in nonpublic forum analysis, the availability of alternate fora is an important factor in assessing the reasonableness of the government’s regulation. Cornelius, supra, 105 S.Ct. at 3453; Perry, supra, 460 U.S. at 53, 103 S.Ct. at 959. Here, argue defendants, plaintiffs have been offered an opportunity to apply for access to another site at the Ellipse. They also claim that the government can legitimately seek to avoid the appearance of favoring any political points of view in a nonpublic forum. Cornelius, supra, 105 S.Ct. at 3453.

Defendants next demonstrate that exclusion of plaintiffs’ statue was viewpoint neutral. They argue that plaintiffs’ claims of discrimination are mere unsupported speculation. Defendants appeal to a common sense view of the statue, arguing that although the plaintiffs’ message may be traditional, the symbol embodied in the statue obviously is not. Defendants argue that the traditional items included in the Pageant are a reindeer, a yule log, a creche, and a number of trees. .-.The statue, they argue, is simply different. They claim that the Park Service’s decision is consistent with the law of the Circuit, which allows the Service to “preempt” a portion of the Ellipse, so long as the other part of the park is available for all sorts of public views. Women Strike for Peace, supra, 472 F.2d at 1293 (Wright, J., concurring); 1294, 1303-04 (Leventhal, J., concurring); 1304 (Robb, J., concurring). Defendants next go through each basis for rejection and argue that it is reasonable. All that is required, they conclude, is that the government reach a reasonable conclusion that the desired speech is inconsistent with the purpose of the forum. Here, they argue, the proffered statue would damage the “traditional” theme, and politicize and commercialize the Pageant.

Defendants also answer a Fifth Amendment claim raised by plaintiffs. Plaintiffs argue that their contemporary creche cannot be excluded so long as a traditional creche is in the Pageant. Defendants answer that because there is no First Amendment right to access to the Pageant, there is no denial of a fundamental right. See Perry, supra, 460 U.S. at 54, 103 S.Ct. at 959 (citing San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 17, 93 S.Ct. 1278, 1288, 36 L.Ed.2d 16 (1973)). Consequently, the decision to deny access must only have a rational basis, which they claim they have demonstrated.

IV.

As the parties have indicated, the key to analyzing the merits of this controversy is to determine the type of forum at issue. Here, as the government argues, the recent decisions in Cornelius, supra, and Perry, supra, are crucial. The parties agree that the relevant forum here is the Pageant itself, not the entire Ellipse, Determination of the type of forum under Cornelius and Perry, however, requires that the forum be defined narrowly as to the particular means of access sought. 105 S.Ct. at 3449, 460 U.S. at 46-47. At this preliminary stage of factual development, it appears that the Park Service has established different means of access for (1) the permanent displays of Christmas artifacts and (2) the entertainment element of the Pageant, a greater number and variety of individuals and groups being permitted access to the entertainment forum. See Plaintiffs’ Exhibits 2-C, 2-D, 2-E. Because plaintiffs seek access as a permanent Pageant display (as distinguished from access to the entertainment phase), the forum for displays appears to be the forum to be considered.

Once the scope of the forum is defined, Cornelius and Perry provide further guidance in determining the nature of the forum. The Cornelius case dealt with the Combined Federal Campaign. The Court there found that the government did not intend to open the forum to all charities, but had consistently limited the drive to “appropriate” charities, and had required permission to participate. The Court concentrated its analysis on whether the government intended to create a forum for expressive activity, or for some other purpose. The Court undertook a similar analysis in Perry.

Here, the facts as they appear at this preliminary stage indicate that the Park Service solicits only suggestions as to possible displays, and has consistently maintained the power to decide what displays are appropriate to the Pageant. Affidavit of Manus J. Fish, Jr. at ¶¶ 10, 11 (filed Dec. 9, 1985). The facts on the record at this time indicate that the Park Service has designated the Pageant as a forum for Christmas displays that it views as “traditional,” not a forum for all expression on the subject of Christmas, or for all displays on that subject. Moreover, it appears that the Park Service carefully selects only a few displays and does not routinely accept displays from those who tender them. It thus appears at this stage of the litigation that the forum for Pageant displays is nonpublic.

In its nonpublic forum, the Park Service’s decision to deny plaintiffs access must be reasonable and viewpoint neutral. Perry, supra, 460 U.S. at 46, 103 S.Ct. at 955. As to whether the Park Service has made a reasonable determination that plaintiffs’ proffered statue is nontraditional, the decision of the Supreme Court in Lynch v. Donnelly, supra, is instructive. The Court there recognized the existence of the Establishment Clause, yet found that certain state sponsorships of displays with “religious implications,” 104 S.Ct. at 1363, have become such a part of our tradition that they do not violate this clause of the Constitution. The Court explained its distinction more by example than by principle, and it is thus this distinction by example which must be applied here.

The Supreme Court listed as items “traditionally associated with Christmas”:

a Santa Claus house, reindeer pulling Santa’s sleigh, candy-striped poles, a Christmas tree, carolers, cutout figures representing such characters as a clown, an elephant, and a teddy bear, hundreds of colored lights, a large banner that reads ‘SEASONS GREETINGS,’ and [a] creche ... consisting] of the traditional figures, including the Infant Jesus, Mary and Joseph, angels, shepherds, kings, and animals.

104 S.Ct. at 1358. We take this list as the law on what constitute “traditional” Christmas artifacts. The tension between Lynch and Supreme Court doctrine which firmly separated government from religion, compare Lynch, supra, 104 S.Ct. at 1359, with Everson v. Board of Educ., 330 U.S. 1, 15, 67 S.Ct. 504, 511, 91 L.Ed. 711 (1947), can best be accommodated by treating this list as marking the outer limit of what artifacts are permissible for use in a government-sponsored display celebrating a traditional American Christmas. Moreover, strict construction of the Lynch list relieves the Park Service and the judiciary from any need to make impermissible judgments about religious doctrine. See Presbyterian Church v. Mary Elizabeth Blue Hull Memorial Presbyterian Church, 393 U.S. 440, 450, 89 S.Ct. 601, 606, 21 L.Ed.2d 658 (1969). Such strict construction also supplies a clear guideline for decision which eliminates concern about the possible ambiguity of the term “traditional.”

Under this standard, it appears rational for the Park Service to include a yule log, reindeer, a Christmas tree, and a creche in a traditional straw-based manger in their Pageant while excluding plaintiffs’ modern depiction of homeless people over a steam grate. Whether or not plaintiffs’ symbol portrays Christmas as traditionally experienced by a number of Americans is not the issue to be addressed in this preliminary injunction. The items deemed acceptable by the Supreme Court in Lynch do not include portrayals of contemporaneous experiences in the form proposed by plaintiffs here. Thus, it is not irrational for the Park Service to select as traditional the Pageant items approved by the Supreme Court as traditional in Lynch. Nor is it irrational for the Park Service to exclude from the traditional items to be displayed at the Pageant items not specifically approved as traditional by Lynch.

The fact that plaintiffs allege that they are simply presenting a different view of Christmas does not establish that the Park Service is illegally trying to suppress plaintiffs’ point of view. In a nonpublic forum, the government can make distinctions according to “subject matter and speaker identity.” Perry, supra, 460 U.S. at 49, 103 S.Ct. at 957. To say that the government cannot engage in viewpoint discrimination means that it may not “suppress expression merely because public officials oppose the speaker’s view.” Id. at 46, 103 S.Ct. at 955. The only evidence of viewpoint discrimination proffered by plaintiffs thus far is the fact that plaintiffs and the government have been in the past, and continue to be now, on opposite sides in the press and in the courtroom on a number of issues. Some of the government’s explanations as to plaintiffs’ rejection are sufficiently plausible as to preclude a finding at this preliminary stage that plaintiffs are likely to prevail in their contention that the Park Service’s decision was pretextual. Moreover, the government’s offer of a place for their statue on the Ellipse pursuant to permit demonstrates that the government will allow plaintiffs meaningfully to communicate their message, even if not precisely in their preferred forum.

A finding on the likelihood of success on the merits of plaintiffs’ Equal Protection claim follows from a finding that the Pageant will likely be found to be a nonpublic forum. Plaintiffs have not thus far demonstrated that they are likely to establish a First Amendment right to access, and as expounded upon above, under current legal precedent the government’s explanation for rejection appears reasonable.

In sum, it appears that plaintiffs have not so far demonstrated a substantial likelihood of success on the merits. In light of this finding, it is difficult to say that the balance of harms obviously weighs in favor of granting plaintiffs’ requested relief. Plaintiffs have one view of the public interest, and defendants, another. Plaintiffs have failed to tip the balance sufficiently to warrant preliminary relief. The accompanying Order will deny plaintiffs’ application for a temporary restraining order or preliminary injunction, without prejudice, in reliance on the representation in the Park Service’s letter to plaintiffs that plaintiffs may set up their statue at the Ellipse “in close proximity to the Pageant of Peace under regulations applicable to First Amendment activities on park lands,” Plaintiffs’ Exhibit 1-A; and in reliance on government counsel’s representation at the December 10, 1985 hearing that a permit application could be processed promptly, and that the application for, or the granting of, such a permit will not moot the controversy with respect to plaintiffs’ claim to placement of their display within the Pageant perimeter.

      . At the December 10, 1985 hearing, government counsel represented that a permit could be issued within 24 hours after plaintiffs filed an application and that an application for, or the granting of, such a permit would not moot the controversy with respect to plaintiffs’ claim to placement of their display within the Pageant perimeter.

      . See Letter from David W. Crosland to Judge Oberdorfer (filed Dec. 11, 1985).