author: ELFVIN, District Judge.

text:
    TOTALPLAN CORP. OF AMERICA, Plaintiff, v. LURE CAMERA LIMITED, Defendant. TOTALPLAN CORP. OF AMERICA, v. Richard L. MIKESELL, Defendant. TOTALPLAN CORP. OF AMERICA, Plaintiff, v. Wendell A. LEWIS, Harry S. Montgomery, Walter Petrovsky, Defendants. TOTALPLAN CORP. OF AMERICA, Plaintiff, v. NORTHWEST PIPE & SUPPLY CO., LTD., Michael Chwelos, Robert B. Colborne, Carmen Strong, James Boughton, John T. Brown, William Meiklejohn, Keith Yardley, Defendants.
    Nos. CIV-82-698E to CIV-82-701E.
    United States District Court, W.D. New York.
    Jan. 31, 1985.

      John F. Papsidero, Tonawanda, N.Y., for plaintiff.
    R.L. Miklesell, Craig L. Miller, Buffalo, N.Y., for defendants.
   MEMORANDUM and ORDER

ELFVIN, District Judge.

These four related actions,' involving allegations of breach of contract, fraud, unfair competition, theft of trade secrets, slander and trademark infringement, apparently constitute attempts to cure venue defects in an earlier action, Totalplan Corp. of America v. Lure Camera, et al., CIV-72-699, which I dismissed on such basis July 18,1980. I found that result to be required by 28 U.S.C. § 1391(b) which provides that where, as here, jurisdiction in a civil action “is not founded solely on diversity of citizenship,” such action “may be brought only in the judicial district where all defendants reside, or in which the claim arose, except as otherwise provided by law.” I found venue to be improper in the Western District of New York because none of the defendants resides in this district and not all of plaintiff’s claims arose in this district. I further found that I was unable to transfer that case to any district because there was no district in which the section 1391(b) venue requirements were satisfied as to the case in its then posture, and hence no district in which the case “could have been brought” within the meaning of 28 U.S.C. § 1406(a). The action was accordingly dismissed.

Plaintiff has now filed the present four suits, dropping some of the original defendants and dividing the others among the four suits. Defendants have moved to dismiss each action for lack of personal jurisdiction over defendants under New York’s jurisdictional statutes, lack of proper venue and failure of certain of the “causes of action” alleged in the within Complaints to state a claim.

As a preliminary matter, it is necessary to review the time when the Complaints were served on the various defendants, plaintiff having urged that the instant motions should be denied as not timely filed under Fed.R.Civ.P. rule 12(b). I conclude that most of the defendants have waived their rights to object to this court’s exercise of personal jurisdiction over them and to venue in this court, by their failures to move on such matters prior to the expiration of the time in which a responsive pleading was required. Fed.R.Civ.P. rule 12(h)(1).

In CIV-82-698E, service of the Summons and Complaint upon the sole defendant therein, Lure Camera Limited, was made by mail August 18, 1982; the return receipt attached to the affidavit of service indicates receipt by Lure August 24th. In this case, as in each of the others, no stipulation of extension of time to answer or move was obtained and defendant served its motion to dismiss September 30, 1982.

In CIV-82-699E, defendant Richard L. Mikesell, who is also the attorney for all defendants in these cases, was served by plaintiff August 18, 1982 by service in person at an address in Encino, Cal.

In CIV-82-700E, Walter Petrovsky was personally served August 20, 1982 at an address in Pasadena, Cal. Harry S. Montgomery was personally served at an address in Colorado Springs, Col. August 30, 1982. Service has not been proven on Wendell A. Lewis. Petrovsky, according to the notice of motion in CIV-82-700E, does not join in such motion. Lewis has waived any objection to insufficiency of service of process against him (as indeed have all defendants in these actions), by failing to have asserted such defense in his motion to dismiss (see discussion infra).

In CIV-82-701E, service upon defendants Robert B. Colborne, Carmen Strong, James Boughton, John T. Brown and Keith Yardley was made by mail August 18, 1982; return receipts attached to the affidavits of service indicate receipts of process by these defendants August 23rd and August 26th. The remaining defendants in CIV-82-701E — Northwest Pipe & Supply Co., Ltd. (“Northwest Pipe”), Michael Chwelos and William Meiklejohn — were not served by mail until September 10, 1982.

Rule 12(a) of the Federal Rules of Civil Procedure provides: “A defendant shall serve his answer within 20 days after the service of the summons and complaint upon him.” Paragraph (b) of this rule, governing the time and manner of presentation of defenses and objection, provides:

“Every defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross-claim, or third-party claim, shall be asserted in the responsive pleading thereto, if one is required, except that the following defenses may at the option of the pleader be made by motion: (1) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person, (3) improper venue, (4) insufficiency of process, (5) insufficiency of service of process, (6) failure to state a claim upon which relief can be granted, (7) failure to join a party under Rule 19. A motion making any of these defenses shall be made before pleading if a further pleading is permitted.” (Emphasis added.)

Thus under rules 12(a) and 12(b), a motion to dismiss any claim raised in the Complaint on any of grounds 2 through 7 stated in (b) must be brought, if at all, within the twenty days allowed for an answer by (a). Under paragraph (h)(1),

“[a] defense of lack of jurisdiction over the person, improper venue, insufficiency of process, or insufficiency of service of process is waived (A) if omitted from a motion in the circumstances described in subdivision (g), or (B) if it is neither made by motion under this rule nor included in a responsive pleading or an amendment thereof permitted by rule 15(a) to be made as a matter of course.”

Paragraph (g) referred to in (h)(1)(A) requires a 12(b) motion to include all available defenses recited in paragraph (b), at the cost of being thereafter precluded from thereafter making any motion based on any omitted defenses, except as permitted by paragraph (h)(2). Paragraph (h)(2) expressly preserves against waiver “the more substantial defenses of failure to state a claim upon which relief can be granted, failure to join a party indispensable under Rule 19, and failure to state a legal defense to a claim * ' *, as well as the defense of lack of jurisdiction over the subject matter.” Notes of Advisory Committee on Rules, 1966 Amendment.

“[Vjenue, like jurisdiction over the person, may be waived. A defendant, properly served with process by a court having subject matter jurisdiction, waives venue by failing seasonably to assert it, or even simply by making default.” Hoffman v. Blaski, 363 U.S. 335, 343, 80 S.Ct. 1084, 1089, 4 L.Ed.2d 1254 (1960). Thus an assertion of lack of jurisdiction over the person or lack of proper venue is waived if not made prior to the time when the proponent is required to appear in response to the pleading sought to be challenged, in this case within twenty days of the service of the Summonses and Complaints as provided by rule 12(b), as the plain wording of rule 12(h)(1) indicates. See, also, Leroy v. Great Western United Corp., 443 U.S. 173, 180, 99 S.Ct. 2710, 2714, 61 L.Ed.2d 464 (1979) (“[Njeither personal jurisdiction nor venue is fundamentally preliminary in the sense that subject-matter jurisdiction is, for both are personal privileges of the defendant, rather than absolute strictures on the court, and both may be waived by the parties.”); Commercial Ins. Co. v. Stone Co., 278 U.S. 177, 179-80, 49 S.Ct. 98, 99-100, 73 L.Ed. 252 (1929) (“We are of the opinion that the privilege [of challenging venue] is of such a nature that it must be asserted at latest before the expiration of the period allotted for entering a general appearance and challenging the merits. * * * [A contrary conclusion] would be in our opinion subversive of orderly procedure and make for harmful delay and confusion.”); Concession Consultants, Inc. v. Mirisch, 355 F.2d 369 (2d Cir.1966); Orange Theatre Corp. v. Rayherstz Amusement Corp., 139 F.2d 871 (3d Cir.1944); Granger v. Kemm, Inc., 250 F.Supp. 644 (E.D.Pa.1966); Nelson v. Victory Electric Works, 210 F.Supp. 954, 956 (D.Md.1962). All defendants in these four actions, except Northwest Pipe & Supply Co., Ltd., Michael Chwelos, William Meicklejohn and Walter Lewis, having been served with process between thirty-five and forty-two days before they served their motions to dismiss for lack of venue and lack of personal jurisdiction, have, as I said, waived their right to advance these defenses or the other defenses recited in rule 12(h)(1), including insufficiency of service of process.

By appearing on the instant motion without objecting to any lack of service of process on himself, defendant Lewis has submitted to this court’s jurisdiction and waived any objection to the sufficiency of service of process. However, his motion to dismiss is timely inasmuch as he came under no obligation to respond to the Complaint until his appearance without objection to lack of service, and hence the venue and personal jurisdiction defenses may be considered as to him as well as to defendants Northwest Pipe, Chwelos and Meiklejohn, all domiciled outside of New York, who moved against the Complaint within twenty days of being served with process by mail.

It is arguable that the dismissal motions of those defendants who have waived their venue and personal jurisdiction privileges by the untimeliness of their motions ought not to be entertained at this time, but in view of their technical defaults ought to be required to show cause why they should be allowed to defend these actions at all. Cf. Busey v. Deshler Hotel Co., 130 F.2d 187 (6th Cir.1942). However, plaintiff has not sought entries of default against defendants and, in view of the relatively relaxed standard for vacating an entry of a default (see Meehan v. Snow, 652 F.2d 274 (2d Cir.1981)) and the apparent lack of willfulness in these defendants’ defaults and of prejudice to plaintiff and in the interests of economy, all defendants’ motions to dismiss for failure to state a claim will be dealt with here. Personal jurisdiction over and venue as to Northwest Pipe, Chwelos, Meiklejohn and Lewis

“The question of personal jurisdiction, which goes to the court’s power to exercise control over the parties, is typically decided in advance of venue, which is primarily a matter of choosing a convenient forum.” Leroy v. Great Western United Corp., supra, 443 U.S. at 180, 99 S.Ct. at 2714. Hence the personal jurisdiction issues raised by those defendants who have timely raised objections in this regard should be addressed initially. It is to New York law that one must look to determine whether personal jurisdiction may be exercised over the movants, both as to plaintiff’s diversity-grounded claims and its federal trademark claim. See, Galgay v. Bulletin Company, Inc., 504 F.2d 1062 (2d Cir.1974); Andrulonis v. United States, 526 F.Supp. 183, 187 (N.D.N.Y.1981). The burden is on the plaintiff to establish a prima facie jurisdictional basis, by means of the pleadings and/or affidavits, which will be considered in the light most favorable to a finding of jurisdiction; such prima facie basis must be further proven at an evidentiary hearing at trial by a preponderance of the evidence. See, e.g., Marine Midland Bank, N.A. v. Miller, 664 F.2d 899, 904 (2d Cir.1981).

The relevant law of New York consists of sections 301 and 302 of New York’s Civil Practice Law and Rules (“CPLR”), as expounded by New York’s courts. Section 301 provides for the exercise of “such jurisdiction over such persons, property, or status as might have been exercised heretofore.” This section has been interpreted to permit the exercise of personal jurisdiction over foreign corporations “doing business” in New York State — i.e., “operating in New York ‘not occasionally or casually, but with a fair measure of permanence and continuity.’ Tauza v. Susquehanna Coal Co., 220 N.Y. 259, 267, 115 N.E. 915, 917 (1917).” Andrulonis v. United States, supra, at 187.

CPLR § 302, New York’s “long arm” jurisdictional statute, provides in the portion pertinent to plaintiff’s claim of jurisdiction:

“(a) Acts which are the basis of jurisdiction. As to a cause of action arising from any of the acts enumerated in this section, a court may exercise personal jurisdiction over any nondomiciliary, or his executor or administrator, who in person or through an agent:
1. Transacts any business within the state or contracts anywhere to supply goods or services in the state; or
2. Commits a tortious act within the state * * * ; or
3. Commits a tortious act without the state causing injury to person or property within the state, * * * if he
(i) regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in the state, or
(ii) expects or should reasonably expect the act to have consequences in the state and derives substantial revenue from interstate or international commerce[.]”

Regarding the individual defendants (Lewis, Chwelos and Meiklejohn), it must be observed that, under the equitable “fiduciary shield” doctrine, actions taken by them solely in their capacity as corporate officers cannot provide a basis for an exercise of jurisdiction over their persons, absent circumstances making such exercise appropriate. See Laufer v. Ostrow, 55 N.Y.2d 305, 313, 449 N.Y.S.2d 456, 460, 434 N.E.2d 692, 696 (1982), Marine Midland Bank, N.A. v. Miller, supra, at 902-03. As recently expounded by our court of appeals in the latter case, this doctrine confers jurisdictional immunity upon corporate officials, even though their conduct be tortious, as long as the actions taken were in the interests of the corporation and not purely personal, and the corporation is not merely a shell for the individual, and does not lack sufficient assets to respond.

Plaintiff has not made any showing that the corporation represented by Lewis is a mere shell for the transaction of business; nor has he made such showing as regards Northwest Pipe, of which Chwelos is said to be the president. Lewis’s corporate employers are not named defendants in these actions, but Northwest Pipe is named and has responded, negating any possible inference of financial inability to respond to this suit. Finally, plaintiff has made no showing that the alleged actions of Lewis and Chwelos were not in furtherance of the interests of their corporate employers. Hence plaintiff has not borne its burden to the extent of barring application to Lewis and to Chwelos (as president of Northwest Pipe), of the fiduciary shield doctrine which, while not without its critics (see McLaughlin, Supplementary Practice Commentary C302:3 (1982), in 7B McKinney’s Consolidated Laws of New York, Supp.1982, p. 34), is the law of New York and of this circuit and hence requires dismissal of plaintiff’s claims as to Lewis (CIY-82-700E) and as to Chwelos in his capacity as president of Northwest Pipe (CIV-82-701E) for lack of personal jurisdiction. I need not, therefore, reach these defendants’ contentions regarding venue.

Plaintiff has alleged that, by virtue of a transfer of Lure Camera Limited’s assets to Northwest Pipe, it became a mere shell for the transaction of the affairs of its officers, directors and shareholders (including Northwest Pipe), negating application of the “fiduciary shield’s” doctrine as to them. This allegation, contained in plaintiff’s attorney’s affidavit, is supported by an assertion in plaintiff’s president’s affidavit that defendant Mikesell had appeared as attorney for Lure Camera Limited in an action commenced by such company against plaintiff and others, and had represented before the arbitrator therein that the company was insolvent. The instant Complaints state that, notwithstanding the allegedly fraudulent transfer to Northwest Pipe, “Lure Camera was and remains a solvent corporation and no actual sale has transpired whereby monetary consideration or other considerations changed hands.” Defendants point to this allegation in support of their motion to dismiss for failure to state a claim, prompting plaintiff’s attorney’s reply that the actual allegation is that the “purported transfer should be set aside as a nullity, and that without the transfer, Lure, therefore, is solvent and has assets which can be reached by creditors.” Whatever the intention of the allegations of the Complaints, however, plaintiff has made a prima facie showing not affirmatively contradicted by defendants that Lure Camera Limited is a mere shell for the conduct of Chwelos’s, Meiklejohn's and Northwest Pipe’s affairs. Therefore, if personal jurisdiction would be properly exercised in this case over Lure Camera Limited, it may be exercised as well over these defendants, to the extent that plaintiff’s claims against Lure Camera Limited run also against these defendants and until the propriety of “piercing the corporate veil” as to these defendants is disproven upon a hearing or at trial. Lure Camera Limited has waived personal jurisdiction objections; inasmuch as plaintiff’s prima facie showing of personal jurisdiction over Chwelos, Meiklejohn and Northwest Pipe is premised upon the insolvency of Lure Camera Limited, and its use as an alter ego of these defendants, it would be inapropos to allow the company effectively to negate its waiver by determining jurisdiction over these defendants by analysis of the sufficiency of its contacts with this forum. Its waiver thus in effect extends to these defendants, through the rent made by plaintiff in the corporate veil.

It is appropriate further to consider whether plaintiff has shown another basis for personal jurisdiction over Northwest Pipe, as it is possible that the “alter ego” jurisdictional exercise regarding this defendant may later prove improper and that an independent basis may exist. Except as Lure Camera Limited’s alter ego, an hypothesis rejected for present purposes, Northwest Pipe has not been shown to do anything construable as “doing business” or “transacting any business” in New York, within the meaning of CPLR §§ 301 and 302(a)(1). To consider whether jurisdiction may be asserted under section 302(a)(2) (commission of a tortious act within the state), or section 302(a)(3)(i) (commission of a tortious act without the state, but with significant specified in-state contacts), or section 302(a)(3)(h) (out-of-state tort, but with anticipatable in-state consequences and substantial interstate or international commerce revenues), would require a more full showing from plaintiff as to conduct by and the nature of the business of Northwest Pipe than has been made. Hence, except on a theory of identity with Lure Camera Limited, plaintiff has not sustained the burden of proving personal jurisdiction over Northwest Pipe.

There must next be considered the motions by Northwest Pipe, Chwelos and Meiklejohn to dismiss for lack of venue. The movants have done little or nothing to support this motion, having merely cited Fed.R.Civ.P. rule 12(b)(3) in their notice of motion, and the supporting affidavit and brief are directed entirely to the motions to dismiss for lack of personal jurisdiction and for failure to state a claim. It is not apparent which venue provision movants wish to invoke or, assuming that the general venue statute (28 U.S.C. § 1391) is contemplated, which paragraph thereof is considered controlling. Thus the motion to dismiss for lack of venue must be denied as insufficient. 28 U.S.C. § 1406(b). Cf., Goldberg v. Wharf Constructers, 209 F.Supp. 499 (D.C.Ala.1962). See, also 1 Moore’s Federal Practice, 11 0.140[l.-4] (2d ed.). Alternatively, as it is alleged in the Complaints and not controverted by movants that Chwelos and Meiklejohn are residents and citizens of Canada and that Northwest Pipe is a Canadian corporation located in Canada, I hold that venue is proper here pursuant to 28 U.S.C. § 1391(d), which provides that “[a]n alien may be sued in any district.” Statement of a claim upon which relief can be granted

In CIV-82-698E, Lure Camera Limited contends that the Complaint’s “second cause of action” (misdenominated the “first cause of action” in its motion papers) involving allegations of conspiracy between Lure Camera Limited’s officers and Northwest Pipe fraudulently to transfer the assets of Lure Camera Limited to Northwest Pipe so as to avoid creditors and obligors (including plaintiff, by nullifying plaintiff’s contracts and agreements with Lure Camera Limited) fails to allege the essential element of injury, citing Hanlon v. MacFadden Publications, 302 N.Y. 502, 99 N.E.2d 546 (1951), and thus fails to state a claim for fraud.

The familiar principles governing consideration of a motion to dismiss for failure to state a claim — that the Complaint is to be liberally construed, that the well-pleaded material allegations are to be taken as admitted and that the motion is to be granted only if it appears to a certainty that plaintiff is entitled to no relief under any state of facts which could be proved in support of the claim {see, 2A Moore’s Federal Practice, § 12.08 (2d ed. 1982)) — require denial of the dismissal motion as to the claim of fraudulent conduct regarding the sale of Lure Camera Limited’s assets to Northwest Pipe. The Complaint clearly states, albeit in conclusory fashion, that such transfer resulted in injury to plaintiff, contrary to defendant’s assertion. It would appear, however, that the Complaint does fail to allege an element of an action for fraud or deceit not mentioned by this defendant — to wit, that the alleged fraud or deceit was relied upon by the plaintiff in good faith, to his or her or its detriment. See generally, Southern Dev. Co. v. Silva, 125 U.S. 247, 259, 8 S.Ct. 881, 887, 31 L.Ed. 678 (1888); 24 N. Y. Jurisprudence, Fraud and Deceit, §§ 157-168. Nonetheless, plaintiff has stated a colorable claim based on the action for fraudulent conveyance, which existed at the common law and was codified in the Uniform Fraudulent Conveyance Act (“U.F.C.A.”), adopted in substance by Article 10 of New York’s Debtor and Creditor Law. Section 274 of the Debtor and Creditor Law, which is identical with section 5 of the U.F.C.A. and governs “conveyances by persons in business,” appears particularly relevant to the pertinent allegations of the Complaint:

“Every conveyance made without fair consideration when the person making it is engaged or is about to engage in a business or transaction for which the property remaining in his hands after the conveyance is an unreasonably small capital, is fraudulent as to creditors and as to other persons who become creditors during the continuance of such business or transaction without regard to his actual intent.”

Defendant has not addressed the sufficiency of the Complaint to state a claim based upon fraudulent conveyance; at this juncture such claim appears viable under the Complaint as it now stands, militating against dismissal. The Complaint’s allegation that, notwithstanding the fraudulent sale of Lure Camera Limited’s assets, it “was and remains a solvent corporation and no actual sale has transpired,” to which allegation defendant points, makes sense in its context only as explained by plaintiff, that Lure Camera Limited would be solvent if the allegedly fraudulent conveyance were set aside.

The foregoing applies to CIV-82-699E, CIY-82-700E and CIV-82-701E, to the extent that the same issues are raised in these actions and by those defendants’ motions to dismiss, as fully as to CIV-82698E.

Defendant in CIV-82-698E contends that the Complaint’s third (misdenominated as second by defendant) cause of action insufficiently states facts to support conclusory allegations of conspiracy. I note that this claim of the Complaint does not reasonably appear to invoke breach of contract as a ground of recovery, mooting defendant’s further contentions in this regard.

Paragraph 60 of the Complaint appears to be a good guide to plaintiff’s intentions regarding the nature of the claim or claims advanced in the third cause of action:

“The individuals and corporations used and are using unfair methods of competition, including the misappropriation and using for their own purposes plaintiff’s secrets, self dealing harmful to plaintiff, while associated with plaintiff, slandering plaintiff in its business reputation, and conspiring to injure plaintiff’s business.”

There is no basis in the Complaint’s third cause of action for any claim that the defendant engaged in actionable “self-dealing” which at the least would require the presence of a fiduciary relationship between plaintiff and defendant (see, e.g., In re Scarborough Properties Corp., 25 N.Y.2d 553, 558, 307 N.Y.S.2d 641, 645, 255 N.E.2d 761, 765 (1969)). However, it does appear that the other alleged grounds for relief have colorable bases in the allegations and also that such allegations may state a claim for fraud in that it is alleged that defendant encouraged plaintiff, through false representations, to associate with Wendell Lewis, a defendant in CIV-82-700E, entirely for the purpose of getting at plaintiffs secret methods and its customer lists. In the context of the other allegations in the Complaint, such allegations would appear to satisfy Fed.R.Civ.P. rule 9(b)’s requirement of specific averments of circumstances constituting alleged fraud. See generally, 2A Moore’s Federal Practice, II 9.03. In view of the lack of input from the parties on the sufficiency vel non of this and the other claims stated in Paragraph 60 of the Complaint, I will not definitively rule on such at this time; the sympathetic reading of such allegations required in rule 12(b) motions suffices to defeat the motion to dismiss.

The case upon which defendant relies for the proposition that facts constituting an alleged conspiracy must be particularly pleaded, Black & Yates v. Mahogany Ass’n, 129 F.2d 227, 231 (3d Cir.1941), although decided subsequently to the 1937 adoption of the Federal Rules of Civil Procedure and the requirement of rule 8(a) thereof that a claim for relief merely “contain * * * a short and plain statement of the claim showing that the pleader is entitled to relief,” nonetheless relied upon pre1937 authorities for its requirement of factual averments. The case is not in line with the great majority of post-1937 decisions, which generally do not insist on factual averments, as long as the pleading adequately gives notice of the nature of the claim so as to permit a defense. See, 2A Moore’s Federal Practice, K 8.13, p. 8-103. Cf. Murchison v. Kirby, 27 F.R.D. 14 (S.D.N.Y.1961). There are, to be sure, decisions of our Court of Appeals holding that there must be specificity of allegations of overt acts in civil rights conspiracy cases {e.g., Angola v. Civiletti, 666 F.2d 1, 4 (2d Cir.1981); Powell v. Jarvis, 460 F.2d 551, 553 (2d Cir.1972)) but no recent decisions of any circuit have been found to apply such rule to business conspiracy cases.

While the allegations of the Complaint’s third cause of action want something of shortness and plainness, they are not so prolix and confusing as to fail to state a claim or to require dismissal for such reason. To the extent that the congested style of the Complaint makes difficult the framing of responsive pleadings, defendants have a sufficient remedy in the form of a motion for a more definite statement brought in accord with Fed.R.Civ.P. rule 12(e).

The foregoing applies to the corresponding “causes of action” and defendant’s objections thereto in CIV-82-700E and CIY-82-701E. Thus defendants’ motions to dismiss in CIV-82-698E, CIV-82-700E and CIV-82-701E must be denied in their entireties. Further particularized attention is required for the dismissal motion of Mike-sell, the sole defendant in CIV-82-699E.

Mikesell contends that the second cause of action stated in the Complaint against him fails to allege any conduct by himself. However, each of Paragraphs 52 through 56, and 58, alleges conduct by the “defendant, individuals and corporations.” The failure of these paragraphs to specify solely defendant’s alleged conduct is due to plaintiff’s attorney’s obvious effort to draft the pleadings in these actions in a manner providing optimum fungibility for their paragraphs. Nonetheless, there is arguably an allegation of actionable conduct by defendant in the second cause of action, which therefore cannot be dismissed for the reason urged by defendant.

The fourth cause of action against Mikesell seems to be grounded upon an alleged breach of Mikesell’s fiduciary duty to plaintiff when acting as counsel for plaintiff’s West-coast branch, in that during such time Mikesell used his access to plaintiff’s books and records to further the alleged conspiracy against plaintiff; also in that Mikesell had a conflict of interest which ought to have prevented him from acting as attorney for plaintiff’s West-coast branch because Mikesell was attorney for Wendell Lewis’s corporate entities with which plaintiff was engaged in business negotiations. Regarding this cause of action Mikesell states that the gravamen of the cause is unclear. However, it would appear that the claim is, as I said, for a breach of fiduciary duty by Mikesell, which in proper cases will require the errant fiduciary to answer in damages for his misconduct. See, e.g., Howard v. Murray, 43 N.Y.2d 417, 420-21, 401 N.Y.S.2d 781, 782-83, 372 N.E.2d 568, 569-70 (1977)). Wilson-Rich v. Don Aux Associates, Inc., 524 F.Supp. 1226, 1233-34 (S.D.N.Y.1981); Oil & Gas Ventures-First 1958 Fund, Ltd. v. Rung, 250 F.Supp. 744, 749 (S.D.N.Y.1966); 6 N.Y. Jurisprudence 2d, § 65. See, also, S.E.C. v. Capital Gains Bureau, 375 U.S. 180, 192-94, 84 S.Ct. 275, 283-84,11 L.Ed.2d 237 (1963).

Mikesell’s contention that Paragraph 81 of the Complaint in CIV-82-699E, which states “[t]hat it has been less than two years since plaintiff obtained any knowledge of defendant’s employment to act as attorney for Totalplan-West,” is obviously false because the same plaintiff alleged such knowledge in Paragraph 75 of the Complaint in CIV-79-699E, filed here September 21, 1979, is well-taken. Accordingly Paragraph 81 of the within Complaint will be stricken.

Finally, having considered the requests of defendants for monetary or other sanctions against plaintiff pursuant to rule 11, for instituting these suits allegedly without belief in any real prospect of success and, allegedly, for the sole purpose of delay, I find such requests insufficiently supported at this time and accordingly they are denied.

In accord with the foregoing it is hereby ORDERED that the motions of defendants in CIV-82-698E, CIV-82-699E, CIV-82700E and CIV-82-701E to dismiss for lack of personal jurisdiction, lack of venue and failure to state a claim, and for sanctions, are denied, with the exceptions (a) that Wendell A. Lewis’s motion to dismiss the Complaint in CIV-82-700E is granted and (b) that defendant Mikesell’s motion to strike Paragraph 81 of the Complaint in CIV-82-699E is granted.

      . Total Marketing Concepts, Inc. (Complaint [CIV-82-700E], ¶¶ 32 & 42.


source: Caselaw Access Project

license: Public Domain

text:
    Robert N. DAVIS, Individually and on behalf of all others similarly situated, Plaintiff, v. BUFFALO PSYCHIATRIC CENTER; the New York State Office of Mental Health; the New York State Department of Mental Hygiene; and the New York State Office of Civil Service, Defendants.
    No. CIV-81-458E.
    United States District Court, W.D. New York.
    Feb. 19, 1985.

      Louis Steele, Buffalo, N.Y., for plaintiff. Patrick 0. McCormack, Asst. Atty. Gen., Buffalo, N.Y., for defendants.
   MEMORANDUM and ORDER

ELFVIN, District Judge.

Plaintiff, an employee of the Buffalo Psychiatric Center, brings this class action lawsuit alleging employment discrimination due to his race and sex in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., the Civil Rights Act of 1866, 42 U.S.C. § 1982 and the “equal protection” clauses of the Federal and New York State Constitutions. The Complaint sets forth- causes of action alleging discriminatory acts by defendants in hiring, assigning, promoting, training, disciplining, discharging and demoting, as well as retaliating against black and male workers. Plaintiff has moved pursuant to Fed.R. Civ.P. rule 23(c)(1) and Local Rule 8(c) for an Order determining that this action is maintainable as a class action with plaintiff designated as the representative of all black and male persons who are presently employed or might in the future be employed by defendants. Defendants have moved to dismiss the Complaint on numerous grounds including the statute of limitations, failure to exhaust administrative remedies, failure to state a claim and the Eleventh Amendment. Defendants also seek a stay of pre-trial discovery pending the determination of their motion.

Rule 8(c) of the Local Rules of Practice of this Court requires that a motion for class action certification be brought within 60 days of the filing of a complaint. Such did not occur in this case and no reason therefor, tenable or otherwise, has been advanced. As a consequence class action certification is being denied.

Plaintiff began his employment at the Buffalo Psychiatric Center (“BPC”) in 1955 and presently holds the position of a Community Mental Health Nurse, Grade 19. BPC is a comprehensive community mental health service center and is part of and administered by defendant the New York State Office of Mental Health (“OMH”). Defendant the New York State Department of Mental Hygiene (“DMH”) was the precursor agency to OMH and defendants state that BPC remains a component of DMH. Defendant the New York State Office of Civil Service (“OCS”) is an agency of the Executive Branch of the government of the State of New York and among its responsibilities is the staffing of BPC. Plaintiff alleges that OCS works in conjunction with BPC, OMH and DMH to implement and maintain the personnel policies at BPC.

Plaintiff states that, on at least two occasions (February 1976 and October 1977) he has been transferred from one program to another at BPC because he is a Black and a male. He also alleges that he was denied promotions in November 1975 and February 1977 due to impermissibly discriminatory reasons.

On or about July 29, 1976 plaintiff filed an individual employment discrimination charge with the Equal Employment Opportunity Commission (“the EEOC”) alleging that he had been involuntarily assigned from BPC’s Adolescent Unit to its Crisis Intervention Unit because of his race and his gender. On or about July 30, 1976 plaintiff filed similar charges with the New York’s Division of Human Rights (“DHR”). Defendants point out that the only respondent was BPC and that no mention was made of discriminatory hiring, promotion, testing, training, disciplining, terminating or retaliation. On or about December 20, 1978 plaintiff amended his DHR complaint to add allegations concerning discrimination in more recent job assignments as well as in promotional examinations and promotions.

On March 6, 1980, after an investigation, DHR issued a determination dismissing plaintiff’s charge of sex discrimination but finding that there was probable cause to believe that the claim of racial discrimination was valid. Conciliation efforts were then instituted. On March 2, 1981 the EEOC found there was no reasonable cause to believe plaintiff’s charges and issued and mailed to plaintiff a Notice of Right to Sue. The EEOC’s determination and Notice were received by plaintiff on March 7 or 8, 1981. DHR determined April 23, 1981 that BPC had complied with a previously issued Order after Conciliation and that there was no reason to believe that plaintiff had been retaliated against for filing charges with DHR.

On June 5, 1981 plaintiff filed a pro se complaint against BPC with this Court. Thereafter plaintiff retained counsel and an Amended Complaint adding OMH, DMH and OCS was filed on or about January 18, 1982. The Amended Complaint contained allegations of numerous discriminatory practices that had not been included in the charges filed with the EEOC or DHR.

Defendants first assert that this Court lacks subject matter jurisdiction because plaintiff failed to initiate this action within the ninety-day period from receipt of the Notice of Right to Sue letter, as prescribed by 42 U.S.C. § 2000e-5(f)(l). Defendants contend that March 7, 1981, the date that plaintiff received the letter, must be included in calculating the ninety-day period and therefore the last day timely to have commenced this action was on June 4, 1981. Defendants state that the ninety-day rule is mandatory and- that this action must be dismissed inasmuch as it was commenced June 5, 1981. Although defendants’ position that the date of receipt of the Right to Sue letter should be included in computing the period has been supported by two decisions — see Melendez v. SingerFriden Corp., 529 F.2d 321, 323 (10th Cir.1976); Bailey v. Boilermakers Local 667 of Intern. Broth., 480 F.Supp. 274, 282 (N.D.W.Va.1979) — the majority of courts that have addressed this issue have held that the date of receipt of the letter is to be omitted in making such computation. See Prophet v. Armco, 575 F.2d 579, 580 n. 1 (5th Cir.1978); Dunlap v. Sears, Roebuck & Co., 478 F.Supp. 610, 611 n. 2 (E.D.Pa.1979); Geronymo v. Joseph Horne Co., 440 F.Supp. 1157, 1159 (W.D.Pa.1977). This latter position is consistent with Fed.R.Civ.P. rule 6(a) which provides that the date from which any designated period begins to run shall not be included in computing any period of time prescribed by any applicable statute. Therefore this Court finds that the date of receipt of the Right to Sue letter is not to be included in computing the ninety-day limitations period and that the original Complaint was timely filed June 5, 1981. Cf. Pearson v. Furno Const. Co., 563 F.2d 815, 819 (7th Cir.1977); Hudson v. Teamsters Local Union No. 957, 536 F.Supp. 1138 (S.D.Ohio 1982); Jordan v. Lewis Grocer Co., 467 F.Supp. 113, 115 (N.D.Miss.1979) (Fed.R.Civ.P. rule 6(a) applicable in computing the ninety-day period under 42 U.S.C. § 2000e-5(f)(l)).

Defendants’ next assertions, in their second affirmative defense, contain two separate grounds for dismissal of aspects of the Complaint. They first point to the requirement of a charge being brought to the EEOC against a party as a prerequisite to a later federal court action based on Title VII against such entity. See Vines v. Alabama By-Products, Inc., 527 F.Supp. 1020 (N.D.Ala.1981). Defendants contend that BPC was the sole respondent before the EEOC and therefore the Title VII causes of action must be dismissed as to OMH, DMH and OCS. However defendants’ position fails to take heed of the well-recognized exception to the general requirement regarding the presence of a party before the EEOC. “[WJhere that party is indeed partially responsible for the acts of discrimination, or exercises sufficient control over the discriminating party, it may be considered as the mere ‘alter ego’ of the discriminating party, and the courts will assert jurisdiction over it as a proper party, regardless of plaintiff’s failure to charge it before the EEOC.” A. Larson, Employment Discrimination, § 49.42 (1983); accord, Glus v. G.C. Murphy, 562 F.2d 880 (3d Cir.1977); Roster v. Chase Manhattan Bank, 554 F.Supp. 285, 289 (S.D.N.Y.1983). A number of courts have allowed Title VII plaintiffs to join parties who were not charged before the EEOC as long as there exists a “substantial identity” between those named in the EEOC charge and the additional defendants. See Women in City Govern. United v. City of New York, 515 F.Supp. 295, 299 (S.D.N.Y.1981); Gill v. Monroe County Dept. of Social Services, 79 F.R.D. 316, 334 (W.D.N.Y.1978). Defendants do not dispute the “identity of interest” among BPC and OMH and DMH but merely point to the fact that they are not “identical.” Defendants’ Memorandum of Law, at p. 16. While defendants state that OCS is a distinct entity with no “identity of interest” with BPC, OMH or DMH, plaintiff’s allegations of OCS’s role in the formulation and control of BPC’s personnel policies are basically admitted by defendants’ answer— see Answer, ¶ 8 — and this Court could properly exercise jurisdiction over OCS despite the absence of prior charges against it before the EEOC. There exists a sufficient degree of control or “identity of interest” to withstand defendants’ motion to dismiss on this technical ground.

Defendants’ second affirmative defense also raises statute of limitations problems due to the fact that the original Complaint only named BPC as a defendant. Plaintiff relies on the “relation back” doctrine of Fed.R.Civ.P. rule 15(c) in arguing that the claims against the three added defendants are timely. An amended pleading adding a new party may relate back to the date of the original pleading for statute of limitations purposes where the new party has received timely notice of the institution of the action so as to not be prejudiced in maintaining his defense, and should have known that but for a mistake the action would have been brought against him. See Fed.R.Civ.P. rule 15(c); Florence v. Krasucki, 533 F.Supp. 1047, 1053 (W.D.N.Y.1982). Plaintiff’s failure to join OMH and DMH in his original pro se complaint reflected a narrow view of the causes of action available to him which would probably not have been taken by an attorney drafting a complaint. These two defendants knew or should have known that their joinder was a distinct possibility and that their omission was due to the pro se nature of the original Complaint. See Taliferro v. Costello, 467 F.Supp. 33, 36 (E.D.Pa.1979). In addition, DMH was named, although apparently not prosecuted, as a party in plaintiff’s original Complaint filed with the EEOC. In view of these factors I find that OMH and DMH received sufficient notification of the commencement of this action under either the “identity of interest” doctrine, see Dutka v. Southern Ry. Co., 92 F.R.D. 375, 378 (N.D.Ga.1981); Swann Oil, Inc. v. M/S Vassilis, 91 F.R.D. 267, 269 (E.D.N.C.1981), or the agency doctrine that holds the notice requirement satisfied where the additional defendants are represented by the same attorney as the earlier defendant. See Kirk v. Cronwich, 629 F.2d 404, 408 (5th Cir.1980); Florence v. Krasucki, 533 F.Supp. 1047, 1054 (W.D.N.Y.1982). Inasmuch as neither the original Complaint before the EEOC nor the one filed with this Court mentioned OCS, this defendant had no reason to believe that its joinder was a distinct possibility and the Amended Complaint cannot be deemed to relate back regarding it. See Hernandez Jiminez v. Calero Toledo, 604 F.2d 99, 102-103 (1st Cir.1979). Although many of the claims in the Amended Complaint arise out of the same occurrences as do the claims in the original Complaint, plaintiff has failed to demonstrate that even if OCS had received notice or constructive notice of the lawsuit commenced June 5, 1981 such defendant knew or should have known that but for a mistake the action would have been brought against it. Therefore the Title VII allegations regarding OCS are untimely and shall be dismissed.

Defendants’ third affirmative defense raises the statute of limitations regarding plaintiff’s claims under 42 U.S.C. § 1981 and the equal protection clauses of the Federal and the New York State Constitutions. Defendants correctly state that these claims are governed by the three-year statute of limitations of section 214(2) of New York’s Civil Practice Law and Rules (liability based on a statute). See Keyse v. California Texas Oil Cory., 590 F.2d 45, 47 (2d Cir.1978); Ervin v. Lanier, 404 F.Supp. 15, 20 (E.D.N.Y.1975). However they ignore the fact that the Amended Complaint filed with DHR, the original pro se Complaint filed in this action and the Amended Complaint before this Court all set forth allegations of continuing unlawful discriminatory practices. Therefore plaintiff’s constitutional and 42 U.S.C. § 1981 causes of action have not lapsed. “A continuously maintained illegal employment policy may be the subject of a valid complaint until a specified number of days after the last occurrence of an instance of that policy.” Acha v. Beame, 570 F.2d 57, 65 (2d Cir.1978). Where the plaintiff alleges a continuous and present practice of discrimination, the statute of limitations is not a bar. Ingrams v. Madison Square Garden Ctr., Inc., 482 F.Supp. 414, 423 (S.D.N.Y.1979).

Defendants’ fourth affirmative defense seeks dismissal of plaintiff’s Title VII claims that were not presented to the EEOC. The charges filed by plaintiff with the EEOC alleged racial and gender discrimination in job promotions and assignment. These same allegations were repeated in the pro se Complaint. Defendant asserts that the additional allegations in the Amended Complaint such as those regarding hiring practices are beyond the scope of the charges filed before the EEOC and should be dismissed.

The general rule holds that the scope of subsequent civil Title VII litigation in federal court is defined and limited by the scope of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination. Ostapowicz v. Johnson, 541 F.2d 394 (3d Cir.1976), cert. denied, 429 U.S. 1041, 97 S.Ct. 741, 50 L.Ed.2d 753 (1977). The complaint in the civil action may properly encompass any discrimination similar to or reasonably related to the charges filed with the EEOC. Danner v. Phillips Petroleum, 447 F.2d 159, 162 (5th Cir.1971). In the case at bar, plaintiffs individual claims of racial and gender discrimination regarding transfers, assignments, promotions, promotional opportunities and denial of a “performance advancement” in July 1981 in retaliation for his filing of administrative complaints were raised before the EEOC or are reasonably related to the previously filed charges. And, although allegations regarding discrimination against Blacks and males in hiring, initial assignments, harassment, disciplining, demoting and discharging employees by defendants were not raised charges before the EEOC, they are said to arise from the same types of discrimination as were complained of to the EEOC and can be asserted here.

Defendants’ fifth affirmative defense raises the statute of limitations and lack of exhaustion defenses regarding the Title VII, 42 U.S.C. § 1981 and equal protection allegations in the Amended Complaint. The Court has rejected defendants’ statute of limitations argument previously, except for the dismissed Title VII claims against OCS, and the issue of unexhausted claims has also been dealt with regarding the Title VII allegations. In addition, the exhaustion rule regarding a Title VII action does not apply to a cause of action under 42 U.S.C. § 1981 where the plaintiff is entitled to bring claims which exceed the scope of the charges before the EEOC. Alpha Portland Cement Company v. Reese, 507 F.2d 607, 610 (5th Cir.1975).

The sixth affirmative defense restates the challenges to plaintiff’s Title VII cause of action due to failure to exhaust administrative remedies. These grounds for dismissal have been adequately dealt with previously.

Defendants’ seventh and eighth affirmative defenses assert that the Complaint fails to state a claim upon which the requested relief can be granted because defendants’ decisions regarding plaintiff’s job assignments and promotion were legitimate and in accordance with 42 U.S.C. § 2000e-2 et seq. The standard which governs the dismissal of a complaint under Fed.R.Civ.P. rule 12(b)(6) is that plaintiff’s pleading should not be dismissed unless it appears certain that plaintiff is entitled to no relief under any facts which could be proven in support of the claim. Lipsky v. Com. United Corp., 551 F.2d 887, 894 (2d Cir.1976). In view of this standard and the additional rule that the allegations of the Complaint must be taken as true for the purposes of a motion to dismiss — see Cooper v. Pate, 378 U.S. 546, 84 S.Ct. 1733, 12 L.Ed.2d 1030 (1964) — this Court finds that the Complaint does set forth proper claims and that defendants’ seventh and eighth affirmative defenses do not present grounds for dismissal. Similarly the ninth defense against raising Fed.R.Civ.P. rule 12(b)(6) because “defendants did not act in bad faith, were not deliberately indifferent, grossly negligent, nor did they personally know, acquiesce or participate in the alleged deprivation of the plaintiff’s constitutional rights” must be rejected as a ground for dismissal in view of the Complaint’s clear allegations of claims upon which relief can properly be granted.

The tenth and final affirmative defense states that the defendant state agencies may not be sued in federal court for damages or declaratory or injunctive relief due to the Eleventh Amendment to the United States Constitution. It is clear that plaintiffs employment discrimination claims under Title VII, 42 U.S.C. § 2000e et seq., are not barred by the Eleventh Amendment. Fitzpatrick v. Bitzer, 427 U.S. 445, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976), explained that the State sovereign immunity embodied in the Eleventh Amendment can be limited by Congress’s enactment of appropriate legislation pursuant to the enforcement provisions of section 5 of the Fourteenth Amendment. The Court held that private Title VII federal lawsuits against states or state officials were not barred by the Eleventh Amendment. 427 U.S. at 455-456. However defendants correctly assert that plaintiff’s section 1981 claim must be dismissed because a state and its agencies are not “persons” within the meaning of such section and therefore the named defendant agencies are not subject to suit regarding the section 1981 claim. See United States v. State of South Carolina, 445 F.Supp. 1094, 1100 (D.S.C.1977), aff'd, 434 U.S. 1026, 98 S.Ct. 756, 54 L.Ed.2d 775 (1976); Percy v. Brennan, 384 F.Supp. 800, 809 (S.D.N.Y.1974). Furthermore, the Eleventh Amendment bars plaintiff’s claims based upon the Federal and New York State Constitutions. Plaintiff has not sought relief against any named official of the four state agency defendants so as to come within the purview of the “stripping doctrine” enunciated in Ex parte Young, 209 U.S. 123, 159-60, 28 S.Ct. 441, 453-54, 52 L.Ed. 714 (1908). In addition plaintiff has failed to demonstrate that the State of New York has waived its sovereign immmunity regarding these claims. See Percy v. Brennan, 384 F.Supp. 800, 809 (S.D.N.Y.1974). A waiver of sovereign immunity must be clearly expressed, and the waiver of immunity in section 8 of New York’s Court of Claims Act has not been construed as consent by New York State to suits containing federally created claims. Maloney v. State, 3 N.Y.2d 356, 144 N.E.2d 364, 165 N.Y.S.2d 465 (1957). There is also no indication that New York has waived the protections of the Eleventh Amendment regarding plaintiff’s State Constitution equal protection cause of action. See Percy v. Brennan, supra, at 809. Therefore plaintiffs claims based upon 42 U.S.C. § 1981 and the Federal and New York State Constitutions shall be dismissed.

It is hereby ORDERED that (a) plaintiffs motion for an Order certifying this action as a class action is denied, (b) defendant’s motion to dismiss the Amended Complaint is denied except that (i) all allegations against defendant the New York State Office of Civil Service are dismissed, (ii) all allegations regarding causes of action under 42 U.S.C. § 1981 and the Federal and New York State Constitutions are stricken and (iii) all allegations not relevant to claims of racial or gender discrimination in violation of Title VII are dismissed and (c) the motion for a protective order staying pretrial discovery pending determination of their dismissal motion is denied as moot.

      . Although there is some dispute whether plaintiff actually "received” the Right to Sue letter on Saturday, March 7, 1981 or Sunday, March 8, 1981 this controversy is of no consequence since this Court finds this action to be timely even if the letter was received on the earlier date.

      . 42 U.S.C. § 2000e-5(f)(l) provides in part:
      "If a charge filed with the Commission pursuant to subsection (b) of this section is dismissed by the Commission * * * or the Commission has not entered into a conciliation agreement to which the person aggrieved is a party, the Commission * * * shall so notify the person aggrieved and within ninety days after the giving of such notice a civil action may be brought against the respondent named in the charge

      . Section 1981 provides in part that "all persons within the jurisdiction of the United States shall have the same right * * * to make and enforce contracts * * * as is enjoyed by white citizens * * The section clearly applies to private acts of employment discrimination. Johnson v. Railway Express Agency, 421 U.S. 454, 95 S.Ct. 1716, 44 L.Ed.2d 295 (1975).

      . The Fourteenth Amendment to the United States Constitution states in part that no State shall "deny to any person within its jurisdiction the equal protection of the laws * * * ". The requirement of state action is satisfied where the plaintiff alleging discrimination is an employee of the state. See, e.g., Wood v. Mills, 528 F.2d 321 (4th Cir.1975).

      . Article 1, § 11 of New York's Constitution provides:
      “No person shall be denied the equal protection of the laws of this state or any subdivision thereof. No person shall, because of race, col- or, creed or religion, be subjected to any discrimination in his civil rights by any other person or by any firm, corporation, or institution, or by the state or any agency or subdivision of the state."


author: RAMBO, District Judge.

text:
    Angel ROSA, Plaintiff, v. UNITED STATES of America, Defendant.
    Civ. A. No. 82-0957.
    United States District Court, M.D. Pennsylvania.
    Feb. 25, 1985.

      Timothy D. Sheffey, Egli, Reilly, Wolf-son, Sheffey and Schrum, Lebanon, Pa., for plaintiff.
    Barbara L. Kosik, Asst. U.S. Atty., Scranton, Pa., for defendant.
   MEMORANDUM

RAMBO, District Judge.

Plaintiff filed the captioned action on August 6, 1982, seeking wrongful death and survivors’ benefits in the death of eight year old Maria Rosa. This court, sitting without a jury, heard testimony from both parties in a trial which commenced October 16, 1984. Upon consideration of the record before it, this court finds the defendant liable in the death of Maria Rosa.

Discussion

Factual Background

Blue Marsh Lake, located in the Schuylkill River Basin, Tulpehocken Creek, Lees-port, Berks County, Pennsylvania, is property owned by the United States and administered by the Army Corps of Engineers. In October, 1962, pursuant to the provisions of the Rivers and Harbors Act, 33 U.S.C. § 426e-426g and the Omnibus Flood Control Act, 33 U.S.C. § 701, et seq., Congress approved implementation of the Blue Marsh Lake Project. The Project, completed in 1980, is designed primarily to assist flood control and to enhance the quality and quantity of water supplied throughout the western sector of Perks County. In addition, designated areas incidentally created by and not devoted to these purposes are made available to the public for recreational use.

The principal day-use facility, known as the Dry Brooks Recreation Area, is situated on approximately sixty-six acres of land bordering the northeast shore of the Lake’s main lower section. A boathouse, concession stand and beach area are all available for use by the public. No fee is charged for admission to the Dry Brooks Recreation Area, or for use of the available facilities. The designated swimming area consists of a shallow pool with a maximum depth of five feet. This area is marked off by orange buoys. Surrounding the designated swimming area is another area marked off by white buoys, referred to as the no boat zone. Water depths increase substantially. The area beyond the white buoys is referred to as the boat zone.

Several differences between the designated swimming area and the boat zone are significant to this litigation. In the designated swim area, the water depths are shallow and increase only gradually. Even at a distance of eighty (80) feet from shore, the water depth would not exceed five (5) feet. The lake bottom is packed and fairly uniform. In contrast, in the boat zone (the area beyond the white buoys) the bottom is not packed; the surface is rocky and uneven. Water depths increase rapidly. The depth reaches five (5) feet at a distance of twenty-five (25) feet from shore. At a distance of seventy-five to eighty feet, the depth would be ten feet, or twice that of the designated swim area at a similar distance from shore. The uneven lake bottom makes it difficult to determine water depth in any given area. On a busy day when many people are in the lake, the water becomes muddy, making it even more difficult to determine water depth.

Beach regulations are posted in the park area. The regulations provide, in part, that swimming is at one’s “own risk,” see 36 C.F.R. § 327.5 (1982); that for one’s own safety, persons using the facilities should “remain inside the orange-zoned area” as “depths increase beyond,” and that “inner tubes are prohibited” within the designated swimming area. Swimming outside the designated area is permitted but swimming at boat launch sites is prohibited. There were no signs which indicated the actual water depths in the area beyond the white buoy.

The park manager at Blue Marsh Lake was Albert Schoenebeck. Mr. Schoenebeck is a graduate of Penn State University with a degree in Park and Recreation Administration. Following graduation, he spent ten (10) years working as an assistant park director. In May of 1979, he was hired by the Army Corps of Engineers as the first and only park manager at Blue Marsh Lake.

As park manager, Schoenebeck supervised a staff of park technicians. These technicians would patrol the park, oversee the beach area and enforce park regulations. They received several days of training at the beginning of their employment. This training would include a Park Technicians’ Manual drafted in part by Schoenebeck. No lifeguards were employed at the park. However, it appeared from the testimony that those technicians who patrolled the beach area had training in lifesaving. It is not clear from the record whether such training was a requirement for employment.

Blue Marsh Lake was very busy on summer weekends. In an effort to control crowds when the parking lot was filled to capacity, technicians on duty would close the gates to the park. This action was not effective in controlling the crowds, since those wishing to use the lake would park outside the gates and walk in. No efforts were made to discourage this practice. Sunday, June 28, 1981 was such a day. Schoenebeck estimated that approximately 1800-2800 persons used the facilities of the Dry Brooks Complex at Blue Marsh Lake on that day.

On June 28, 1981, eight year old Maria Rosa went to Blue Marsh Lake with an older brother, Andres, age 13, two sisters, Elizabeth, age 14 and Madolyn, age 9, and two adult family friends. Specifically, the group went to the Dry Brooks Complex. Maria Rosa was a nonswimmer. Andres and Elizabeth could swim only to a limited degree. The children took with them two innertubes.

During the course of the afternoon, Maria’s brother Andres and her sister Elizabeth took the innertubes into the designated swimming area (the area within the orange buoys). Maria was with them. Andres testified that while in that area, he walked to the end of the orange buoy. He got off the innertube and while the water came up to his chin he was able to walk on the sandy bottom of the lake. Andres was, by his own recollection, about five feet, five inches tall at that time.

A short time later, Kathy Grimm, a uniformed park attendant and an employee of defendant United States of America, got the attention of the Rosa children and told them that the rules of Blue Marsh Lake prohibited them from using innertubes within the designated swimming area. That uniformed employee went on to instruct the children that they could move down the beach and use their innertubes in the boat zone (the area outside the white buoys). Maria was present during this interaction with the park attendant.

The children followed the instructions given by the park attendant. They left the water, and returned to the beach for a short time. They then went to the boat zone (the area beyond the white buoys) in keeping with the instructions they had been given, and took their innertubes into the water. The children went out to about the same distance from shore as they had been while in the designated swimming area. Other people were standing in the water near them. While playing with her brother and sister, Maria Rosa attempted to jump from one innertube to another. She slipped from the tube and into the water. Unable to swim, she quickly sank below the water’s surface. Elizabeth felt Maria’s hand under water and grabbed it. Maria then slipped from her sister’s grasp and could not be found again.

At approximately 4:40 p.m., a park technician was alerted that Maria had disappeared under water. The technician radioed the Park Manager who, in turn, notified the local police and ambulance company. Park technicians then assembled a human chain of rescue volunteers and began repeated searches in the area where Maria was reported to have disappeared. At approximately 4:49 p.m., the police arrived. At approximately 4:50 p.m., Maria was found by a volunteer about 15 yards from the shore in water about ten feet deep. The police immediately began to administer CPR as Maria was carried to shore. She was transported by ambulance to Reading Hospital. Maria never regained consciousness and died on July 1, 1981 while undergoing intensive care.

There were two sets of regulations in effect at Blue Marsh Lake in June of 1981, “Beach Regulations” and “Area Regulations.” Typically, these regulations were displayed together. They were posted in the bath house (four locations), at the food concession stand (one location), and on a wooden kiosk or information center (beach regulations only). That kiosk, a roofed structure approximately four feet by four feet, was located about midway between the concession stand and the beach, a total distance of about 100-120 feet. There was some testimony that signs were also posted in the parking and picnicking areas. The signs were printed in English only.

The beach regulations in effect in 1981 provided:

1. SWIMMING BEYOND NO-BOAT-ZONE BUOYS IS PROHIBITED. FOR YOUR SAFETY, PLEASE REMAIN IN SHALLOW ORANGE ZONE; DEPTHS INCREASE BEYOND.
2. BUOYS, BALLS, AIR MATS, FLOATS, FRISBEES ARE NOT PERMITTED. U.S. COAST GUARD APPROVED FLOTATION DEVICES ARE ALLOWED.

Plaintiffs exhibit # 4.

In practice, Schoenebeck said these regulations were not strictly enforced. Swimming was allowed in the no boat zone at the flanks of the designated swim area. The prohibition was enforced only in the area facing the center portion of the lake, where swimmers would come in contact with boaters. Similarly, the prohibition relating to inflatables and other flotation devices was not enforced as stated. Rather, it was only enforced in the designated swimming area.

Schoenebeck testified that he drafted the rules in force at Blue Marsh Lake but that those rules had to conform to the national policies of the Army Corps of Engineers. However, the Corps of Engineers had no established policy on the use of innertubes. That particular regulation, as it existed at Blue Marsh Lake, was developed by Albert Schoenebeck in his position as park manager. He testified that he used his professional judgment in drafting the regulation and that its purpose was to prevent horseplay in the swim zone.

Schoenebeck further testified that he was familiar with a text prepared by the American Red Cross entitled Lifesaving: Rescue and Water Safety which reads in part,

Nonswimmers require a considerable area of shallow water. They should not venture into water beyond shoulder depth. They should resist at all times the temptation to go beyond.-this depth with artificial supports such as air mattresses, inner tubes ... or beach balls or on the shoulders of a swimming companion. If the unexpected happens and the nonswimmer loses his support, the ability to regain the shore is also lost. Non-swimmers should not use flotation devices in any locations where they would not be comfortable and safe without them.
Weak or novice swimmers must confine their activities to areas in which they may be quickly and easily reached if anything goes wrong.

P. 17-18.

Of particular significance in this case is Schoenebeck’s testimony regarding a survey he conducted in the summer of 1980. Schoenebeck surveyed innertube users at Blue Marsh Lake, primarily at the boundary between the boat and the no-boat zone areas, flanking the swim zone. In that survey of approximately 150 persons, Schoenebeck learned that about 70% of the innertube users were poor to non-swimmers. The results of the survey make it clear that, in addition to his familiarity with the opinion of generally accepted authorities such as the Red Cross, by the end of the summer of 1980, Schoenebeck had actual knowledge that a serious question existed as to the continued safe use of inner-tubes. However, in Schoenebeck’s view the problem was the conflict between inner-tubes and boaters rather than the danger to non-swimmers.

Testimony was offered by of Dr. Ralph Johnson, an expert in water safety. Dr. Johnson testified as to the risks inherent in the use of innertubes. There is a particular danger to non-swimmers who, by the use of innertubes, have support in water depths where they otherwise would not be. When support is lost, the non-swimmer is in immediate distress. According to Dr. Johnson, it is the prevailing opinion in the industry that the use of innertubes should not be permitted in outdoor facilities. He further testified that a park manager has two options available which would limit that inherent risk. At a minimum, the use of innertubes should be limited to the shallow water of the designated swim area. However, the better solution is to prohibit their use completely.

Plaintiff’s expert further testified that in his opinion Albert Schoenebeck, based on his prior experience and training, should have realized the danger created by the existing innertube policy and should have taken action to eliminate that risk. Dr. Johnson was presented with the rule then in effect at Blue Marsh Lake which prohibited tubes in the no-boat zone but permitted their use in the boat zone. He was asked to offer his opinion as to what Schoenebeck knew or should have known about its continued enforcement. It was his opinion that based on Schoenebeck’s experience— including the 1980 survey — he should have known that there was a potential for accidents and that, especially on a crowded day, all floats should have been ordered off the lake.

Dr. Johnson was also asked to offer his expert opinion as to the relationship, if any, of the innertube rules as enforced at Blue Marsh Lake, as well as the actions of the female park attendant to the death of Maria Rosa. He testified that the innertube rule and its enforcement was one of the most significant factors in Maria’s death. Once she was in water over her head, her chance for survival decreased. The interaction with the park employee further increased the risk of harm. In the opinion of Dr. Johnson, this was the most important factor because once Maria was told to take the device outside the white buoy area, she was in water over her head. This interaction was, in the expert’s opinion, the final factor in the sequence of events which caused Maria’s death.

Andres Rosa testified that on the date of Maria’s accident he and his sisters were using innertubes in the designated swim area. A female park technician blew a whistle and indicated that they should take their tubes and leave that area. Andres testified that the technician told him and his sisters that they were not to use inner-tubes in the swimming area but that they may use the tubes outside the white buoy area. He further testified that the technician did not ask if the children could swim, nor did she warn them about the water depths. He and his sisters returned briefly to shore and then Andres, Elizabeth and Maria took their innertubes to the area outside the white buoy as instructed by the park technician.

The female park attendant on duty that day was Kathy Grimm. Ms. Grimm testified that she spoke with many people while patroling the park; however, she could not remember any specific interaction with the Rosa children. She did testify as to the procedure she habitually followed upon finding someone using innertubes in the designated swimming area. Typically, she would call that person out of the water, explain the rules and ask that the tubes be removed from that area. She would often tell them to take the tubes to an area outside the orange buoys, sending them down the beach to the boat zone where the tubes were permitted.

This practice was corroborated by the testimony of another park technician, John Cave. According to Cave, during the summer of 1981 the use of inner tubes was permitted outside the white buoys. If he observed someone using an inner tube within the designated swim area, he would instruct that person to move to the area outside the white buoys. He did not inquire whether that person could swim.

Findings of Fact

The parties have stipulated to certain undisputed findings of fact which are part of the record before this court and which are incorporated herein by reference. The court makes the following additional findings:

1. Schoenebeck was familiar that the American National Red Cross teachings require lifeguards to be used at public swimming areas.

2. Although familiar with the teachings of the American National Red Cross and with the American National Red Cross publication, Lifesaving, and recognizing that publication as an authority in the area of water safety, Schoenebeck ignored its precepts concerning non-swimmers and the use of inner tubes and floatation devices.

3. A short time after entering the orange float area (designated swimming area) with the inner tubes, a female park employee, in uniform, got the children’s attention and told them they were not permitted to use the inner tubes in that area, and that they could only use them in the area beyond the white floats (the boat zone).

4. As a result of this direction and instruction from the uniformed park employee, the children, relying upon what they had been told, left the orange float area, and, a short time later, began using the inner tubes in the area beyond the white floats, but immediately adjacent to them.

5. This park employee did not tell the children about the increased water depth in this part of the boat zone, nor did she ask of the children whether they could swim, nor did she inquire about any adult supervision.

6. A short while later, at approximately 4:30 p.m., the children were on inner tubes approximately thirty to forty-five feet from the beach, and Maria Rosa jumped from the inner tube upon which she was riding to the other innertube. When she jumped, Maria Rosa reached the other inner tube but her grasp slipped; she fell into the water and disappeared under its surface.

7. Maria Rosa was treated at the Reading Hospital and Medical Center from her admission on June 28, 1981, until the time of her death on July 1, 1981.

8. The cause of death of Maria Rosa was hypoxic encephalopathy due to drowning. The immediate cause of death on July 1, 1981 was the cessation of heart function.

9. At the time of her death, Maria Rosa had a life expectancy of an additional 66.85 years, and a work life expectancy of 47 years.

10. After slipping beneath the surface of the water, Maria Rosa was conscious for a period of thirty seconds to three minutes. During that time, she inhaled water and suffered a choking spasm. Her air supply was cut off.

11. While under the water, and conscious, Maria Rosa would have been in a struggle driven by fear and an inability to breathe until she lapsed into unconsciousness from which she never recovered.

12. Immediately prior to June 28, 1981, Maria Rosa was in excellent health and had no serious medical problems.

13. Maria Rosa had finished the first grade in public school, and, although she had some problems, she had shown the typical progress expected for a first grader and was at or almost at grade level in most subjects. She was well-behaved, well-mannered, outgoing, got along well with her peers, and could be very cooperative and helpful.

14. Maria Rosa performed regular chores around the house, got along very well with her siblings and had close family ties with her parents and showed genuine expressions of love with her family. She could speak English and Spanish.

15. She lived with her parents, Angel Rosa and Juanita Rosa.

16. Angel Rosa wanted, desired and expected Maria Rosa, and his other children, to at least complete high school.

Discussion

Plaintiff alleges liability on two grounds. First, pursuant to the Pennsylvania Recreation Use of Land and Water Act, 68 P.S. § 477-1 et seq., he asserts that the United States of America willfully failed to guard or warn against a dangerous condition, use or activity, with respect to Maria Rosa at Blue Marsh Lake on June 28, 1981. In an order dated October 27, 1983, this court ruled that the Pennsylvania statute was applicable to the instant case. The Act relieves an owner of land from liability for negligence where that land has been made available to the public for certain recreational purposes. 68 P.S. § 477-3. The landowner is not relieved from liability, however, where he has willfully failed to guard or warn against a dangerous condition or activity. 68 P.S. § 477-3.

Plaintiffs second allegation of liability is grounded in the Restatement of Torts Second, Section 323. That section has been accepted by the Pennsylvania Courts. Hamil v. Bashline, 481 Pa. 256, 392 A.2d 1280 (1978); Riddle Memorial Hospital v. Dohan, 504 Pa. 571, 475 A.2d 1314 (1984). The principle has been held specifically applicable to the United States. Blessing v. United States, 447 F.Supp. 1160, 1187 and fn. 38 (E.D.Pa.1978). Section 323A provides that one who undertakes, whether gratuitously or for consideration, to render services to another is held liable for negligent rendering of those services if the negligence causes injury either to the person on whose behalf the services are being performed or to a foreseeable third party.

The court finds the Government liable under both theories.

Willful Failure to Warn

The term “willful” is not defined in the Pennsylvania Recreation use of Land and Water Act. Thus, its precise definition is left to the courts. In Wehr v. Burroughs Corp., 619 F.2d 276 (3d Cir.1980), the Court of Appeals was required to define “willful” in the context of an age discrimination statute. After an extensive review of the difficulties courts have had in defining this term, the court found “willful” to mean an act done voluntarily or intentionally or knowingly, as distinguished from accidental conduct.

In Saaybe v. Penn Central Transportation Company, 438 F.Supp. 65 (E.D.Pa.1977), the district court defined “willful” to mean that an actor desired to bring about the result that followed, or at least that the actor was aware that the result was substantially certain to follow. 438 F.Supp. at 69 fn. 6. Actual prior knowledge must be found before the actor may be held liable for willful conduct. Id., citing Evans v. Philadelphia Transportation Co., 418 Pa. 567, 212 A.2d 440 (1965). The Saaybe court further held that the critical element in any determination of willful conduct is whether or not the actor had reason to know of the risk of harm created by his conduct, 438 F.Supp. at 69 fn. 6. If the evidence shows that the actor had reason to know his conduct created an allegedly unreasonable risk of harm, whether because of general or specific information and knowledge, or from any findings or warnings regarding the hazardous nature of the activity, that evidence will support a finding of willful misconduct.

Plaintiff directs the court to Prosser, Handbook of the Law of Torts, West Publishing Company, 4th Edition, 1971, pp. 184-186. Dean Prosser advocates an objective standard defining willful conduct as highly unreasonable conduct or an extreme departure from ordinary care in a situation where a high degree of danger is apparent. Liability should be found if it is clear from the facts that the actor, whatever his state of mind, has proceeded in disregard of a high degree of danger, either known or apparent to a reasonable person in the actor’s position. The standard put forth by Professor Prosser was accepted in the case of Stephens v. United States of America, 472 F.Supp. 998 (C.D.Ill.,1979), a case which involved the liability of the Army Corps of Engineers. In Stephens, trees were cleared to develop a recreational lake leaving stumps about six inches high. According to Corps policy, swimming was permitted throughout the lake which was thus created. The Corps did not post signs nor give any other warnings about the location of the stumps or prohibiting swimming or diving. In considering the Corps’ liability under a statute similar to the Pennsylvania law at issue here, the court defined “willful” to include three elements: (1) foreseeability of the danger; (2) defendants’ knowledge of the danger; and (3) the actions taken by the defendant in light of the first two factors. The Stephens court found that the Army Corps willfully failed to guard or to warn against a dangerous activity, use or condition.

Finally, in Davidow v. United States of America, 583 F.Supp. 1170 (W.D.Pa.1984), the district court found the Army Corps of Engineers liable for a willful failure to warn or to guard against a dangerous condition, in violation of the Pennsylvania Recreation Use of Land and Water Act. The case involved a combination flood control and recreational project under the control of the Army Corps of Engineers. Several peninsulas penetrated the lake, one of which was known as a dangerous area and a navigational hazard for boaters because of severely restricted visibility. A danger buoy had been located at the point of this peninsula for about four (4) years. The buoy floated upstream in 1978 and was not replaced in either the 1978 or 1979 season. In September, 1979, two boats collided off the point where the danger buoy had been located. Without providing a specific definition for “willful”, the court found that the failure to maintain the buoy was a willful failure to guard or to warn, in violation of the Pennsylvania Recreation Use of Land and Water Act.

In the instant case, the Army Corps knew that a dangerous condition existed. It knew the design of the lake. It knew that the floor of the lake in the area beyond the white buoys was rocky and uneven and that depths increased there dramatically. The Corps also knew that such an area is dangerous to non-swimmers who need to be close to shore, in shallow depths to avoid the risk of drowning. It should have known that water safety experts consider the use of innertubes a dangerous condition in facilities of this kind. Finally, the Corps knew, based on Al Schoenebeck’s study, that 70% of those who used inner-tubes at Blue Marsh Lake were poor to non-swimmers. Yet the Corps took no action to prevent or to correct the danger inherent in this condition. Although its own rules prohibited the use of innertubes, the Corps continued its policy of non-enforcement, except in the swimming areas. Finally, the Corps permitted and actually encouraged use of the tubes in the area beyond the white buoys.

This court finds that the Corps willfully failed to guard or to warn against a dangerous condition and thus must be held liable for its actions.

Section 323

The principle set forth in the Restatement of Torts Second § 323 has been held applicable to the United States. Blessing, supra at p. 1187, fn. 38. On June 28, 1981, Maria Rosa was an eight year old non-swimmer. Testimony was presented which showed that among those knowledgable in the area of water safety, innertubes are considered a dangerous instrumentality. That danger increases as the water depths increase and as the swimming ability of the innertube user decreases. Al Schoenebeck knew of this danger, and he specifically testified that he was familiar with the Red Cross Manual.

The female park attendant cannot recall her specific conversation with the Rosa children, or distinguish it from among the many such conversations she had in the course of her duties. However, her testimony as to her usual behavior does not conflict with Andres Rosa’s clear recollection of the instructions given to him and his sisters. She got the attention of Maria Rosa and her siblings. She explained the rule in effect at Blue Marsh Lake which prohibited the use of innertubes inside the orange-buoyed area. The children had been in this shallow area for sometime and Maria was with them to hear the employee’s instructions. The park employee went on to explain to the children where they could use the innertubes — down the beach, beyond the white buoys, in the boat zone. The park employee did not tell the children that the water was deeper in the boat zone than in the shallow area where they had been playing. There were no signs from which the children could tell the difference in water depth between that shallow zone and the boat zone where they were instructed to go. The children could not stand on the shore and observe the depth of the water in the boat zone. The children were familiar with the water depth in the shallow zone. Maria’s brother and sister had been able to walk almost to the end of the shallow zone without difficulty and Maria observed this. They did not know that depths would be different in the boat zone where they were instructed to take their innertube.

By so instructing Maria Rosa, the park employee rendered services which should have been recognized as necessary for the protection of Maria Rosa. This negligent rendering of service was relied upon by Maria Rosa and she suffered harm because of her reliance. The risk of harm to Maria Rosa was increased by the park employee’s enforcement of the innertube policy. Maria Rosa was not aware of, nor warned about, the water depth difference between the orange buoy shallow zone and the boat zone beyond the white buoy. Thus the United States violated the principles of § 323 of the Restatement Second of Torts. The United States was negligent and this court finds it liable in the death of Maria Rosa.

Defendant’s answer raises the defense of contributory negligence. That argument fails on two grounds. Contributory negligence on the part of the plaintiff, like the negligence of the defendant, is defined as a lack of due care under the circumstances. O’Neill v. United States, 411 F.2d 139, 144 (3d Cir.1969). Under Pennsylvania law, a plaintiff who is guilty of contributory negligence, however slight, is barred from recovery against a negligent defendant unless defendant’s negligence constitutes wanton or willful misconduct. Thompson v. Pennsylvania Power Co., 402 F.2d 88 (3d Cir.1968). Since this court has found defendant’s negligence here to be willful, any negligence on the part of Maria Rosa would not bar recovery. However, the court must go further. When the acts of children are measured to determine if they constitute negligence, the list differs from the objection list applied to adults. A child is held to that measure of care which other minors of similar age, experience, capacity and development would ordinarily exercise under similar circumstances. Dunn v. Teti, 280 Pa.Super. 399, 421 A.2d 782, 783 (1980). The law applies several presumptions when evaluating children’s conduct. First, minors under the age of seven are conclusively presumed incapable of negligence; (2) minors between the ages of seven and fourteen years are presumed incapable of negligence, but the presumption is a rebuttable one that weakens as the fourteenth year approaches. Third, minors over fourteen years are presumptively capable of negligence with the burden on the minor to prove incapacity. Kuhns v. Brugger, 390 Pa. 331, 135 A.2d 395 (1957). Maria Rosa was approximately eight and one-half years old at the time of her death. This court finds that the presumption of incapacity applies and the defendant has not come forward with any evidence which would rebut that presumption.

Damages

Upon consideration of all of the evidence and testimony presented, the court finds the following damages to be appropriate.

Wrongful death $ 4,417.49
Survival
Loss of life’s pleasures 5,000.00
Pain and suffering 20,000.00
Lost future earning capacity 150,000.00
Total $179,417.49

In reaching a figure for lost future earning capacity, the court considered the following factors: High school graduate, working to age 65, maintenance expenditure of 75%, a productivity figure of 1% and fringe benefits calculated at 5%.

      . Defendants state, and it is not contested, that the concession stand is leased to a private business. Food and beverages are available for those who wish to purchase them.