author: JOYCE HENS GREEN, District Judge.

text:
    MIZLOU TELEVISION NETWORK, INC., Plaintiff, v. NATIONAL BROADCASTING COMPANY, et al., Defendants.
    No. 84-1613.
    United States District Court, District of Columbia.
    Nov. 30, 1984.

      Wayne Hartke, Vance Hartke, Hartke & Hartke, Falls Church, Va., for plaintiff.
    Hugh P. Morrisson, Jr., Cahill, Gordon & Reindel, Washington, D.C., for defendants NBC, Arthur Watson and Jeff Cokin.
    Donald Zeifang, Baker & Hostetler, Washington, D.C., for defendants Fla. Citrus Sports Ass’n, Sam Hines, Charles Rohe, Vernon Hinely & Fla. Citrus Com’n.
    J. Hardin Peterson, Jr., Peterson, Myers, Craig, Crews, Brandon & Mann, P.A., Lakeland, Fla., pro hac vice per Ct. order for Fla. Citrus Com’n.
   MEMORANDUM OPINION AND ORDER

JOYCE HENS GREEN, District Judge.

This action involves a dispute over rights to televise the 1984 Florida Citrus Bowl (formerly the Tangerine Bowl), a college football game to be played on December 22 of this year. Plaintiff Mizlou Television Network, Inc. (“Mizlou”) raises various federal antitrust and pendent state law claims in connection with the decision of defendant Florida Citrus Sports Association to grant the broadcast rights for this year’s Citrus Bowl to defendant National Broadcasting Company. For the reasons that follow, all of plaintiff’s claims against each defendant must be dismissed.

Procedural Posture

Plaintiff filed this action on May 23, 1984, alleging a “contract, combination and conspiracy in restraint of trade” in violation of Section 1 of the Sherman Act, 15 U.S.C. § 1 (Complaint ¶ 7), an attempt to monopolize and a conspiracy to monopolize (Complaint 118) and perhaps monopolization (Complaint ¶ 14), all in violation of Section 2 of the Sherman Act, 15 U.S.C. § 2, a contract “to substantially lessen competition or tend to create a monopoly” in violation of Section 3 of the Clayton Act, 15 U.S.C. § 14, and breach of contract and tortious interference with contract (Complaint, ¶¶ 13, 14). Named as defendants to the complaint are:

(1) National Broadcasting Company (“NBC”).

(2) Arthur Watson, President, NBC Sports.

(3) Jeffrey Cokin, Director of Sports Contract Negotiations, NBC Sports.

(4) Florida Citrus Sports Association, Inc. (“FCSA”).

(5) Sam Hines, member of the FCSA Executive Committee.

(6) Charles Rohe, member of the FCSA Executive Committee.

(7) Vernon Hinely, member of the FCSA Executive Committee.

(8) Florida Citrus Commission.

On July 9, 1984, the NBC defendants (NBC, Watson and Cokin), the FCSA defendants (FCSA, Hines, Rohe and Hinely) and the Florida Citrus Commission filed separate motions to dismiss under Federal Rule of Civil Procedure 12(b). Three weeks after those motions ripened, plaintiff filed its October 1,1984 “motion for declaratory relief” seeking an expedited hearing and resolution of “the issue of rights to televising the bowl game.” Plaintiff’s Motion at 3. At the oral hearing on all motions held November 2, 1984, plaintiff confirmed that it seeks immediate consideration of its pendent state law claims, but acknowledged that it did not expect the antitrust claims to be decided on the merits before the December 22 Citrus Bowl game.

Plaintiff’s sudden demand for expedition is somewhat puzzling. Mizlou’s chief executive learned of the FCSA’s agreement with NBC in August 1983 at the latest, yet devoted fully eight months to “soulsearching” before deciding to bring this action. Once in court, plaintiff stipulated to extensions of filing deadlines requested by defendants and sought an extension of its own. Furthermore, plaintiffs complaint on its face seeks monetary relief only — there is no request in that pleading that the Court enjoin any conduct by any defendant before any fixed date.

More fundamentally, even if plaintiff's subsequent pleadings are viewed as amending the complaint to state a claim for injunctive relief, the merits of plaintiffs state law claims cannot be considered without first addressing issues raised by defendants in their motions to dismiss. Defendants assert, among other things, that defendant Florida Citrus Commission is immune from suit in this Court, that this Court lacks personal jurisdiction over six of the eight defendants, and that plaintiffs allegations fail to state an actionable claim under applicable state law or the federal antitrust statutes, the foundation of this Court’s pendent jurisdiction over plaintiff’s state law claims. Until those issues are resolved, consideration of the merits of the pendent claims would be premature. See Financial General Bankshares, Inc. v. Metzger, 680 F.2d 768, 773 (D.C.Cir.1982) (if federal claims are dismissed at an early stage of litigation, pendent state claims should be dismissed as well).

Factual Background

Upon consideration of defendants’ motions to dismiss for jurisdictional and pleading deficiencies, the Court must accept as true the factual allegations set forth in the complaint. See Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974). Those allegations, supplemented by documents introduced by plaintiff at the November 2, 1984 hearing, state the following:

Mizlou and FCSA, the successor corporation of the Tangerine Sports Association, Inc. (“TSA”), are parties to a contract entitled “Tangerine Bowl Television Rights Agreement” and dated November 12, 1980. Pursuant to that agreement, TSA granted to Mizlou the exclusive broadcast television rights to the 1980, 1981, 1982 and 1983 Tangerine/Citrus Bowls. Clause 15 of the Mizlou/TSA contract provided that TSA/FCSA could offer the right to cover the 1984, 1985 and 1986 games to competing broadcasters, but reserved to Mizlou the opportunity to match or better the offers of third parties under certain circumstances.

By letter dated August 9, 1983, defendant FCSA, through defendant Hines, informed Mizlou of existing offers (including one by defendant NBC) made to FCSA for future television coverage of the Citrus Bowl, beginning in 1984. Defendant’s letter stated that FCSA was submitting the list of offers “as required by [its] contract with Mizlou which runs through the 1983 game,” and further stated that “by previous agreement Mizlou has ten (10) days in which to exercise first right of refusal.” PX-2. On August 17, 1984, plaintiff responded that it had “elect[ed] to exercise [its] option to renew the agreement on the same terms and conditions offered by NBC Television Network” and stated its intention to submit to FCSA a formal agreement covering all points in the NBC offer. PX-3. Through its attorney, FCSA conveyed by telegram the following reply (PX-1):

On behalf of Florida Citrus Sports Association, Inc., we hereby advise you that the 10-day period within which you requested an opportunity to respond to other offers has now expired. It is our opinion that paragraph 15 of your contract with TSA does not confer upon you a right of first refusal under these circumstances. Nonetheless, pursuant to subsequent correspondence, it was thought to be appropriate to inform you, of the NBC offer. In our opinion, your offer does not match the value of the NBC offer. Since 10 days have passed since you have been informed of the NBC offer, it is our opinion that Florida Citrus Sports Association has no further obligations to Mizlou for 1984 and thereafter.

Subsequently, FCSA through defendant Hinely and NBC through defendant Cokin entered into an agreement whereby FCSA granted to NBC the rights to broadcast the 1984 Citrus Bowl and options to renew those rights in 1985 and 1986, under certain conditions. As a result of that agreement, plaintiff alleges, FCSA received from the Florida Citrus Commission a “financial donation” which had been contingent upon NBC obtaining television rights to the Citrus Bowl games.

Against that background, plaintiff alleges that all of the defendants, including the designated officials of NBC and FCSA, acted in concert to bring about a breach of plaintiff’s asserted contract right to match or better NBC’s offer to cover the 1984, 1985 and 1986 Citrus Bowl games. On a grander scale, plaintiff claims that the FCSA/NBC agreement is a product of NBC’s “dominance of power and control” in the market for college football bowl games. Plaintiff depicts a scenario in which “smaller competitors” in that market, including Mizlou, develop bowl games to the point of significant profitability, only to be displaced when NBC expresses interest in televising the events. Complaint ¶¶ 9, 18. In this instance, plaintiff claims, NBC and the other named defendants joined forces to replace Mizlou with NBC as Citrus Bowl broadcaster, with the intent and effect of impairing competition for bowl game television rights and creating a monopoly in the market for those rights. Complaint ¶¶ 7-10, 18. Before considering whether these allegations state any actionable claim, the jurisdictional issues raised by the various defendants shall be first addressed.

Eleventh Amendment

Among the Florida Citrus Commission’s several arguments is that as an arm of the State of Florida, it is not subject to the jurisdiction of this or any other federal district court. The Commission relies upon the recent Supreme Court decision of Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984):

“ ‘An unconsenting state is immune from suits brought in federal courts by her own citizens as well as by citizens of another state.’ [Citations omitted] ... [I]n the absence of consent, a suit in which the state or one of its agencies is named as the defendant is proscribed by the Eleventh Amendment.”

104 S.Ct. at 908. Under Florida law, the Florida Citrus Commission is a twelve-man board within the Florida Department of Citrus which serves as the head of that department. The Department of Citrus is, in turn, a unit of the executive branch of government of the State of Florida. Fla. Stat. §§ 601.04, 20.04 (1983). Plaintiff does not dispute that by virtue of this statutory organizational structure, the Florida Citrus Commission is a sub-unit of the State of Florida. Accordingly, under Pennhurst, the Commission is not amenable to suit in this Court and must be dismissed as a defendant.

In Personam Jurisdiction

Six of the seven remaining defendants challenge plaintiff’s assertion that this Court may exercise personal jurisdiction over them. Due process concerns delineate the extent of this Court’s jurisdiction not only under the United States Constitution but also under the District of Columbia statute permitting an exercise of long-arm personal jurisdiction over a nonresident defendant who, directly or by an agent, “transaet[s] any business in the District of Columbia.” D.C.Code § 13-423(a)(1) (1981); Mitchell Energy Corp. v. Mary Helen Coal Co., 524 F.Supp. 558, 563 (D.D. C.1981); see also Stabilisierungsfonds Fur Wein v. Kaiser Stuhl Wine Distributors Pty. Ltd., 647 F.2d 200 (D.C.Cir.1981); Mouzavires v. Baxter, 434 A.2d 988 (D.C.App.1981), cert, denied, 455 U.S. 1006, 102 S.Ct. 1643, 71 L.Ed.2d 875 (1982).

Familiar principles of due process dictate that an out-of-state defendant (a description fitting all defendants to this action except NBC, which maintains a permanent office in the District of Columbia) may be haled into court only if there exist

‘certain minimum contacts’ [between the defendant and the forum state] such that the maintenance of the suit does not offend ‘traditional notions of fair place and substantial justice.’

International Shoe Co. v. State of Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945) (citations omitted); accord Helicopteros Nacionales de Colombia, S.A. v. Hall, — U.S. —, 104 S.Ct. 1868,1872, 80 L.Ed.2d 404 (1984); Worldwide Volkswagen Corp. v. Woodson, 444 U.S. 286, 291-92, 100 S.Ct. 559, 564, 62 L.Ed.2d 490 (1980). In judging minimum contacts, a court “properly focuses on ‘the relationship among the defendant, the forum, and the litigation.’ ” Keeton v. Hustler Magazine, Inc., — U.S. —, 104 S.Ct. 1473, 1478, 79 L.Ed.2d 790 (1984), quoting Shaffer v. Heitner, 433 U.S. 186, 204, 97 S.Ct. 2569, 53 L.Ed.2d 683 (1977); see also Calder v. Jones, — U.S. —, 104 S.Ct. 1482, 1486, 79 L.Ed.2d 804 (1984). Even in the absence of connections between the subject matter of the controversy and the forum state, jurisdiction may be based solely on a nonresident defendant’s “continuous and systematic general business contacts” with the forum. Helicopteros Nacionales de Colombia, S.A. v. Hall, 104 S.Ct. at 1873; Keeton v. Hustler Magazine, Inc., 104 S.Ct. at 1481.

Plaintiff has alleged no business contacts of a continuous and systematic nature linking FCSA or any of the individual defendants with this jurisdiction. Furthermore, factual support for any connection between those defendants and the District of Columbia relating to the subject matter of this controversy is scanty at best. Plaintiff has argued that unspecified “critical acts in furtherance of the conspiracy and tort” occurred in the District of Columbia, basing that argument on a supposed “admission” that “acts of review and decisionmaking concerning the terms of the NBC contract” took place here. The sources of that “admission” — unrebutted affidavits of defendants Cokin and Rohe — in fact assert that all contract negotiations between NBC and FCSA were conducted either by telephone between Cokin in New York City and Hines and Rohe in Orlando, Florida or in meetings held in New York or Orlando. Affidavit of Jeffrey.Cokin (“Cokin Aff.”) at 114, Affidavit of Charles Rohe (“Rohe Aff.”) at II4. Through those negotiations, NBC and FCSA reached an agreement in principle, the terms of which are essentially unchanged in the final contract, which was drafted in New York and executed in Florida. Cokin Aff. at ¶ 5, Rohe Aff. at ¶ 6.

The only link between the NBC/FCSA contract, defendants and the District of Columbia is through a nonparty law firm. Defendant FCSA receives legal counsel from the Orlando office of a firm with offices in five cities, including Washington, D.C. The firm’s communications law specialist practices from the District of Columbia office; consequently, on communications matters FCSA consults that specialist here. After the negotiations between NBC and FCSA had been completed and an agreement had been reached, the District of Columbia attorney, on behalf of FCSA, contacted Cokin in New York on six to twelve occasions by telephone or letter and together they reduced the NBC/FCSA agreement to writing. In addition, the attorney mailed the telegram (PX-1) informing Mizlou that FCSA recognized no further obligations to Mizlou for 1984 and thereafter.

Without more, these actions of the District of Columbia attorney do not justify an assertion of personal jurisdiction over FCSA and the individuals who negotiated, signed and/or approved the NBC/FCSA contract. The core of plaintiff’s complaint is the alleged substitution of NBC for Mizlou as the holder of rights to televise the 1984 Citrus Bowl and options for subsequent games. That alleged substitution, as charged, took place by the actions of the defendants, not the lawyer — that is, by the decision of NBC (in New York) to extend an offer for the broadcast rights to FCSA coupled with the decision of FCSA (in Florida) to accept that offer. The location of the attorney when those decisions were made is immaterial, as plaintiff does not assert that he played any part whatsoever in the actual decisionmaking process. The agreement was neither negotiated nor executed and will not be performed in the District of Columbia, and the few communications from the District lawyer on behalf of FCSA to NBC or Mizlou will not draw the nonresident defendants within the sphere of this Court’s jurisdiction. See Mitchell Energy Corp. v. Mary Helen Coal Co., supra, 524 F.Supp. 558; see generally Cockrell v. Cumberland Corp., 458 A.2d 716 (D.C.App.1983) (even calls and letters placed rather than received by out-of-state defendant do not satisfy long-arm statute’s “transacting business” test, which is jurisdictionally coextensive with due process analysis).

Finally, the mere fact that FCSA retained counsel in the District of Columbia will not confer personal jurisdiction over that or any other defendant in an action not arising from the lawyer/client relationship. Were this an action by the attorney for recovery of fees, defendant’s solicitation of a District of Columbia attorney would be jurisdictionally significant. See Mouzavires v. Baxter, supra, 434 A.2d 988; however, plaintiff here cannot claim that the fortuitous relationship between the Orlando-based FCSA and an expert in its counsel’s District of Columbia office constitutes a “purposeful availment” of the benefits and privileges of this forum vis-a-vis this litigation such that any of these defendants could reasonably anticipate being haled before this Court. See generally Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 1239, 2 L.Ed.2d 1283 (1958); see also Transamerican Steamship Corp. v. Somali Democratic Rep., 590 F.Supp. 968, 977 (D.D.C.1984).

Plaintiff’s meager allegations in support of personal jurisdiction do not begin to establish the requisite minimum contacts with the District of Columbia. Plaintiff does not challenge the accuracy of the jurisdictional facts submitted by defendants, and in fact relies upon them to construct the arguments rejected above. Under these circumstances, plaintiff’s request to conduct discovery on this issue shall be denied, see Naartex Consulting Corp. v. Watt, 722 F.2d 779, 788 (D.C.Cir.1983), cert. denied, — U.S. —, 104 S.Ct. 2399, 81 L.Ed.2d 355 (1984), and, in accordance with due process, plaintiff’s claims against defendants FCSA, Watson, Cokin, Rohe, Hines and Hinely shall be dismissed for lack of personal jurisdiction.

Claims Against NBC

(a). Antitrust Claims

Remaining before the Court are plaintiff’s antitrust and state law claims against NBC. Although the complaint is replete with the vocabulary of antitrust law, the facts alleged, even accepted as true, do not state a claim under Sections 1 or 2 of the Sherman Act, 15 U.S.C. §§ 1, 2 (“Sections 1 and 2”), or Section 3 of the Clayton Act, 15 U.S.C. § 14 (“Section 3”).

Plaintiff's Section 1 claim rests on the proposition that the NBC/FCSA contract constitutes a contract, combination or conspiracy in restraint of trade. To distinguish this claim from a mere business tort, plaintiff must make a sufficient allegation of anti-competitive effects resulting from NBC’s actions; absent injury to competition, injury to plaintiff as a competitor will not satisfy this pleading requirement. Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 488, 97 S.Ct. 690, 697, 50 L.Ed.2d 701 (1977); Brown Shoe Co. v. United States, 370 U.S. 294, 320, 82 S.Ct. 1502,1521, 8 L.Ed.2d 510 (1962); Havoco of America, Ltd. v. Shell Oil Co., 626 F.2d 549, 554 (6th Cir.1980). Furthermore, unlike some horizontal relationships among competitors, the vertical arrangement between NBC and FCSA described by plaintiff cannot be characterized as per se unlawful, see Continental T.V., Inc. v. G.T.E. Sylvania, Inc., 433 U.S. 36, 97 S.Ct. 2549, 53 L.Ed.2d 568 (1977); Transource International, Inc. v. Trinity Indus., Inc., 725 F.2d 274 (5th Cir.1984); but instead must be analyzed under a “rule of reason”: to state an actionable claim, plaintiff must allege an unreasonable restraint on competition, see National Society of Professional Engineers v. United States, 435 U.S. 679, 688, 98 S.Ct. 1355, 1363, 55 L.Ed.2d 637 (1978); Transource International, supra. Thus, the legality of defendant’s conduct turns on the consequences of that conduct in the relevant market. See Monsanto Co. v. Spray-Rite Service Corp., — U.S. —, 104 S.Ct. 1464, 79 L.Ed.2d 775 (1984); Havoco of America, 626 F.2d at 554.

Despite conclusory assertions that NBC’s conduct will restrain competition, plaintiff has alleged no specific impact on competition in any particular market. At one point in the complaint, plaintiff challenges NBC’s conduct only as it affects competition for television rights to the Bluebonnet Bowl, Holiday Bowl, Hall of Fame Bowl and Citrus Bowl, only 4 of the 21 college football bowl games scheduled to take place at the end of the 1984 season. Complaint ¶ 18. That market definition is unduly narrow, as it excludes rights to numerous other bowl games which are “reasonably interchangeable” from the broadcaster’s standpoint. See Brown Shoe Co. v. United States, 370 U.S. at 325, 82 S.Ct. at 1523; Southern Pacific Communications Co. v. American Telegraph and Telephone Co., 556 F.Supp. 825 (D.D.C.1983), affd. 740 F.2d 980 (D.C. Cir.1984); Gianna Enterprises v. Miss World (Jersey) Ltd., 551 F.Supp. 1348, 1354 (D.N.J.1982) (rejecting market definition which included only international beauty pageants but excluded state and national pageants).

Even accepting for present purposes a broader market definition of “collegiate football bowl games”, see Complaint ¶¶ 8, 10, 18, the Court finds no facts to support plaintiff’s bald claim of anticompetitive impact — plaintiff has alleged no specific and demonstrable market effect of NBC’s contract to cover the Citrus Bowl, and plaintiff’s own loss of business with FCSA will not suffice. See Gianna Enterprises v. Miss World (Jersey) Ltd., supra; see also Car Carriers, Inc. v. Ford Motor Co., 1984-2 CCH Trade Cases ¶ 66,220 (7th Cir. 1984); Havoco of America, 626 F.2d at 558. The Sherman Act outlaws practices that make markets less competitive and thereby hurt the people transacting with the firms in those markets. See, e.g., Reiter v. Sonotone Corp., 442 U.S. 330, 343, 99 S.Ct. 2326, 2333, 60 L.Ed.2d 931 (1979). “To injure, even to cripple or destroy, one or two competitors in a market will not, if there are many competitors in that market, have much if any effect on consumers or anyone else” besides the injured competitor. Sutliff, Inc. v. Donovan Companies, Inc., 727 F.2d 648 (7th Cir.1984).

For similar reasons, plaintiffs Section 2 claims of monopolization, attempt to monopolize, and conspiracy to monopolize must be dismissed. Plaintiff makes the conclusory assertion that the NBC/FCSA agreement is a “consequence of [NBC’s] dominance of power and control”, Complaint ¶ 9, but offers not a single fact to document NBC’s supposed actual or probable market power. The omission is fatal — an essential element of a monopolization claim is “the possession of monopoly power in the relevant market”, United States v. Grinnell Corp., 384 U.S. 563, 570, 86 S.Ct. 1698, 1704, 16 L.Ed.2d 778 (1966); that is, a Section 2 plaintiff must allege that the defendant has the power to control price and exclude competition generally in the relevant market. Id. at 571, 86 S.Ct. at 1704; Southern Pacific Communications Co., 740 F.2d at 1000. Even a claim of attempt to monopolize requires a plaintiff to plead facts alleging a dangerous probability that, if unchecked, the defendant’s conduct will ripen into monopolization. Transource International, Inc. v. Trinity Indus., Inc., supra; Merit Motors, Inc. v. Chrysler Corp., 417 F.Supp. 263 (D.D.C. 1976), affd. 569 F.2d 666 (D.C.Cir.1977). Furthermore, a plaintiff raising claims of attempt or conspiracy to monopolize must allege a specific intent to monopolize on the part of the defendant. See e.g., Arthur S. Langenderfer, Inc. v. S.E. Johnson, 729 F.2d 1050 (6th Cir.1984).

Plaintiff’s complaint recites the proper conclusory verbiage but suffers from a paucity of facts. It does not identify the owner(s) of rights to any bowl game except the Citrus Bowl, nor does it contain a shred of data concerning NBC’s market position relative to other television broadcasters, including the competing major networks. Absent any facts even hinting at an actual, imminent or intended concentration of market power in NBC alone, plaintiff’s allegations do not state a claim under Section 2. See generally Havoco of America, 626 F.2d at 558 (plaintiff’s “naked statement” that defendants conspired to establish one supplier as “dominant marketer” of goods, without supporting factual allegations, did not survive 12(b)(6) motion to dismiss).

Finally, the minimal factual allegations of plaintiff’s complaint provide no basis for plaintiff’s claim under Section 3 of the Clayton Act. Section 3 prohibits certain exclusive dealing or tied sale arrangements which “substantially lessen competition or tend to create a monopoly.” 15 U.S.C. § 14. Even if the rights to broadcast the 1984 Citrus Bowl may be considered a “commodity” within the meaning of this provision, plaintiff has failed to allege facts, as distinguished from legal conclusions, indicating any decrease in competition in the market for those rights. The only effect of the NBC/FCSA contract discernible from the complaint is that NBC will cover the Citrus Bowl and Mizlou will not. Any tendency toward monopoly would depend on NBC’s ability to drive out not only plaintiff, but all or nearly all other competitors. No facts submitted by plaintiff adumbrate such a threat, and from the face of the complaint a Section 3 injury to competition is not self-evident. See generally Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. at 488, 97 S.Ct. at 697 (antitrust statutes — including the Clayton Act — guard against injury to competition generally, not mere injury to competitors).

In sum, the gist of this complaint is that Mizlou — not the market — has been wronged. Although we do not decide this today, it is, of course, possible that plaintiff may have a cognizable claim under tort or contract; however, the allegations before this Court simply cannot rise to the level of federal antitrust claims. Liberal use of the language of antitrust will not transform the cause of action — “when stripped to its essentials], the complaint does no more than state plaintiff’s commercial disappointment”, a matter grounded in state law. See Car Carriers, Inc. v. Ford Motor Co., supra, quoting Dunn & Mavis, Inc. v. Nu-Car Driveaway, Inc., 691 F.2d 241, 245 (6th Cir.1982); see also Sutliff, Inc. v. Donovan Companies, Inc., 727 F.2d at 654.

(b). Pendent Claims

In light of the prompt dismissal of plaintiffs federal antitrust claims against NBC, principles of comity and federalism support dismissal of plaintiffs pendent state claims as well. See Financial General Bankshares, Inc. v. Metzger, 680 F.2d at 772. The interests underlying the doctrine of pendent jurisdiction — “judicial economy, convenience, and fairness to litigants”, United Mine Workers of America v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 1139, 16 L.Ed.2d 218 (1966); see also Rosado v. Wyman, 397 U.S. 397, 90 S.Ct. 1207, 25 L.Ed.2d 442 (1970) — would not be served by this Court’s retention of plaintiff’s state law claims, inasmuch as this litigation has not progressed beyond the initial pleading and dispositive motions. See Financial General Bankshares, Inc., supra.

In accordance with the above discussion, it is, by the Court, this 30th day of November, 1984

ORDERED that:

1. Plaintiff’s claims against defendant Florida Citrus Commission are dismissed in accordance with the Eleventh Amendment;

2. Plaintiff’s claims against defendants Arthur Watson, Jeffrey Cokin, Florida Citrus Sports Association, Sam Hines, Charles Rohe and Vernon Hinely are dismissed for lack of personal jurisdiction;

3. Plaintiff’s claims against defendant National Broadcasting Company under Sections 1 and 2 of the Sherman Act, 15 U.S.C. §§ 1, 2, and Section 3 of the Clayton Act, 15 U.S.C. § 14, are dismissed for failure to state a claim upon which relief can be granted; and

4. Plaintiff’s pendent state law claims against defendant National Broadcasting Company are dismissed in accordance with principles of federalism and comity.

This cause stands dismissed.

      . Transcript of Nov. 2, 1984 hearing at 19.

      . The full text of Clause 15 reads as follows:
      "15. OPTION TO RENEW
      "Commencing on July 1, 1983, TSA will negotiate with MTN [Mizlou] and other third parties with respect to the TV broadcast rights to the games for 1984, 1985 and 1986. If by December 31, 1983, the parties hereto have not reached an agreement in regard to such rights, TSA may offer such rights to third persons, provided that TSA shall not offer such rights upon terms and conditions less favorable to TSA than those which MTN shall have, in writing, last previously offered to TSA (whether prior to or after December 31, 1983) unless TSA shall have first made available to MTN, bona fide offers from other companies, in reasonable detail and in writing, and afforded MTN a period of ten (10) business days within which to match or better such offers. Any such offers shall be deemed to be bona fide only if the terms thereof are susceptible to ready reduction to a determinable sum of money.
      "If no agreement has been reached by TSA with respect to the TV broadcast rights to the games for 1984, 1985 and 1986, with MTN or any other company (excluding NBC, CBS or ABC) by April 1, 1984, then MTN’s option for 1984, 1985 and 1986 is automatically renewed as of that date and time, under the terms and conditions of the agreement applicable for the 1983 Game, plus ten (10%) percent.”
      Exh. A to Affidavit of Jeffrey Cokin.

      . Under the agreement, NBC also obtained options to renew the broadcast rights for the 1987 and 1988 games. The 1987 and 1988 options are not relevant to this complaint.

      . With respect to the individual defendants, plaintiff alleges that:
      Defendant Hines signed the August 9, 1983 letter from FCSA to plaintiff (Complaint ¶ 4);
      Defendant Rohe made statements to the effect that he would make life miserable for Mizlou (Complaint ¶ 13); and
      Defendants Hinely and Cokin signed the FCSA/NBC contract (Complaint ¶ 16).
      Plaintiff attributes no specific action to defendant Watson.

      . No other provision of the District of Columbia long-arm statute is applicable to these facts. See D.C.Code § 13-423 (1981).


source: Caselaw Access Project

author: MOTLEY, Chief Judge.

license: Public Domain

text:
    CBF TRADING CO., INC., Plaintiff, v. The HANOVER INSURANCE COMPANY, Defendant. The HANOVER INSURANCE COMPANY, Defendant and Third-Party Plaintiff, v. Eli A. COHEN, Third-Party Defendant.
    No. 83 Civ. 4088 (CBM).
    United States District Court, S.D. New York.
    Dec. 3, 1984.

      Nathanson & Devack, P.C. by Mitchell Devack, Franklin Square, N.Y., for third-party defendant.
    Penzer & Sloan by Carl R. Sloan, New York City, for plaintiff.
    Tell, Chester, Breitbart & Lefkowitz by Benjamin L. Tell, New York City, for defendant and third-party plaintiff.
   OPINION

MOTLEY, Chief Judge.

Defendant Hanover Insurance Company (“Hanover”) and third-party defendant Eli Cohen have each moved for summary judgment. Defendant Hanover asserts that summary judgment should be granted in its favor as to the second cause of action. Plaintiff’s second cause of action is based upon an insurance contract issued to Eli A. Cohen, the third-party defendant. Hanover contends that the plaintiff does not have a direct cause of action against it under this policy and, accordingly, the second cause of action must be dismissed. If this motion for summary judgment is denied, defendant Hanover moves for separate trials of the two causes of action. The third-party defendant moves for summary judgment dismissing the third-party complaint on the grounds that an insurer has no right of subrogation against its own insured. For the following reasons, the motions are all denied.

FACTS

Plaintiff CBF Trading Co., Inc., has commenced this action against defendant Hanover seeking $146,719.64 in damages pursuant to two policies of jewelers block insurance issued by the defendant. The first policy, Jewelers Block Policy #IM 671297 was issued to plaintiff. The second policy is Jewelers Block Policy #IM 474656 and was issued to third-party defendant Cohen. The causes of action arose when Cohen, serving as bailee for plaintiff, allegedly lost certain precious stones and jewels belonging to plaintiff.. This property was covered by an All-Risk memorandum issued to plaintiff. Cohen was brought in as a third-party defendant by Hanover. Hanover seeks to exercise its equitable right of subrogation against the third-party defendant. Cohen also has commenced an action in the Eastern District of New York against Hanover, seeking to recover for the same loss.

THIRD-PARTY DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

Third-party defendant argues that Hanover does not have a right of subrogation against him since no right of subrogation can arise in favor of an insurer against its own insured. Hanover, however, contends that the right of subrogation exists in this instance since the third-party defendant is not insured under the same policy as plaintiff. Furthermore, Hanover states that the insurance policy issued to Cohen was void at its inception and therefore no valid policy exists.

Under the Federal Rules of Civil Procedure, Rule 56, the third-party defendant must demonstrate that there remains no genuine issue of material fact for trial and that it is entitled to judgment as a matter of law before summary judgment can be granted. Robertson v. Seidman & Seidman, 609 F.2d 583, 591 (2d Cir.1979). It is not necessary at this time, therefore, to consider whether the insurer may seek subrogation against a party which is insured under a different policy of the insurer. It is clear that a material issue of fact exists in this action, whether the policy issued to the third party defendant Cohen is valid. Accordingly, the third-party defendant’s motion for summary judgment is denied.

DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

Defendant Hanover, in bringing its summary judgment motion, seeks to have the second cause of action dismissed, alleging that the plaintiff has no direct action against the insurance company in connection with the insurance policy issued to Cohen, the third-party defendant. Defendant asserts that only Cohen, the insured under the policy of insurance, may be sued by plaintiff. Hanover contends that the policy covers Cohen’s legal liability to plaintiff and, accordingly, plaintiff has no direct cause of action against the insurer.

Plaintiff, however, relies on the policy issued to Cohen. It asserts that paragraph 3 of the policy provides that the defendant insures:

property ... entrusted to the insured by others who are dealers in such property ... only to the extent of the insured’s own actual interest therein ... or legal liability of or damage thereof.

Plaintiff also relies on paragraph 10 of the policy which provides:

In the event of loss or damage to property of others held by the insured by which claim is made upon the company, the right to adjust such loss or damage with the owner or owners of the property is reserved to the company and the receipt of such owner or owners in satisfaction thereof shall be in full satisfaction of any claim of the insured for which such payment has been made.

According to plaintiff, these two clauses establish its right to a direct action against defendant insurer.

As a general rule, there is no privity between an injured party and the insurer of the wrongdoer, and the injured party has no right of direct action against the insurer. Oakes v. United States, 35 F.Supp. 868, 869 (S.D.N.Y.1940); Rozell v. Rozell, 281 N.Y. 106, 22 N.E.2d 254 (1939); Jefferson v. Sinclair Refining Co., 14 A.D.2d 238, 220 N.Y.S.2d 387, 390 (1st Dep’t), affd, 10 N.Y.2d 422, 223 N.Y.S.2d 863, 179 N.E.2d 706 (1961). Exceptions to this general rule exist where direct action is authorized by statute, Miller v. American S.S. Owners Mut. Protection Co., 509 F.Supp. 1047, 1049 & n.1 (S.D.N.Y.1981); Wabco Trade Co. v. S.S. Inger Skou, 508 F.Supp. 94, 96 (S.D.N.Y.1980); N.Y. Insurance Law section 167(7), or a contractual provision in an insurance policy issued to a bailee. B.N. Exton & Co. v. Home Fire and Marine Insurance Co., 249 N.Y. 258, 164 N.E. 43 (1928); Mord v. New York Indemnity Co., 216 App.Div. 252, 253, 214 N.Y.S. 693 (2d Dep’t 1926), aff’d, 244 N.Y. 589, 155 N.E.2d 908 (1927).

In Mord v. New York Indemnity Co., supra, the insurance policy in issue contained a provision similar to paragraph 10 of the insurance contract issued to Mr. Cohen. The policy in Mord, was issued to a bailee of furs. One clause of this policy provided that in case of loss or damage to property held in trust, the insurance company might adjust the loss either with the assured or with the owner of the property, and payment to the owner constituted full satisfaction of any claim for such loss by the assured. 216 App.Div. at 253. The court, held that the bailor may recover directly against the bailee’s insurer, noting that the terms of the insurance policy gave the owners of property a direct cause of action against the insurer without the consent of the insured. Id. See also Rappaport v. Phil Gottlieb-Sattler, Inc., 280 App.Div. 424, 114 N.Y.S.2d 221 (1st Dep’t 1952) affd, 305 N.Y. 594, 596, 111 N.E.2d 647 (1953) (insurance policy provided that insurer was to pay “on behalf of the assured” all sums which the assured shall become obligated as bailee to pay a customer for damages “because of loss of property; customer may recover directly on policy). Accord, Levine v. Arthur Rosenbaum, Inc., 16 Misc.2d 980, 182 N.Y.S.2d 135 (N.Y.City Ct.1958); Arkush v. Citron, 14 Misc.2d 707, 715, 180 N.Y.S.2d 514 (N.Y.Mun.Ct.1958). Cf. Philip Wick Co. v. Lee Dyeing of Johnstown, 71 Misc.2d 82, 335 N.Y.S.2d 619 (Fulton Sup.Ct.1972), affd, 41 A.D.2d 905, 343 N.Y.S.2d 595 (3d Dep’t 1973) (bailee not entitled to benefit of bail- or’s insurance); Hoffman v. Fireman’s Fund Indemnity Co., 160 Misc. 823, 290 N.Y.S. 876 (N.Y.City Ct.1935), affd, 248 App.Div. 866, 290 N.Y.S. 878 (1st Dep’t 1936) (settlement of loss entered into in good faith between insurer and insured bailee prevents bailor from maintaining action against insurer).

It is clear from paragraph 10 of the insurance contract that defendant Hanover understood that it was insuring the bailee of goods and that the terms of the policy covered not only goods owned by the insured but also property held by him in trust. Moreover, the clause specifically provides that any loss may be adjusted by defendant with either the insured or the owner of the property. Therefore, pursuant to the terms of the policy written by the insurer it is evident that the insurer intended to provide the right of direct action by owners of property held in trust by the insured. The defendant’s motion for summary judgment is denied.

DEFENDANT’S MOTION FOR SEPARATE TRIALS

In the event that its motion for summary judgment were not granted, Hanover also has moved for separate trials of the two causes of action, claiming that the issues presented would be too difficult and confusing for one jury to decide. Furthermore, Hanover asserts that were the jury to try both cases at the same time, it would be highly prejudicial to the defendant.

The issues to be presented to the jury if the two causes of action were tried together are not so complex as to warrant separate trials. The issues are the similar and the damages sought are the same. Accordingly, this court, in the exercise of its sound discretion, denies defendant’s motion for separate trials as to the two causes or action.

CONCLUSION

For the above reasons, the summary judgment motions of the defendant and third-party defendant are denied. Additionally defendant’s motion for separate trials is also denied.


author: HAROLD H. GREENE, District Judge.

text:
    Peter PECKARSKY, Plaintiff, v. AMERICAN BROADCASTING COMPANY, INC., et al., Defendants.
    Civ. A. No. 81-2482.
    United States District Court, District of Columbia.
    Dec. 6, 1984.

      Vincent A. Fuller, Jr., Alexandria, Va., Peter Peckarsky, Washington, D.C., for plaintiff.
    Mark D. Herlach, Washington, D.C., Michael J. Calvey, Paul J. Mansfield, Coudert Bros., New York City, for defendants.
   MEMORANDUM

HAROLD H. GREENE, District Judge.

In this action plaintiff, a free-lance journalist and attorney who is appearing pro se, has sued defendants American Broadcasting Company (ABC), et al., for their alleged breach of an agreement concerning his 1978 article, “The Selling of the President.” The claims asserted against the defendants include common-law breach of contract (Count I), unfair trade practices (Count III), unfair competition (Count IV), fraudulent misrepresentation (Count V), negligent misrepresentation (Count VII), and trade secret conversion (Count VIII) claims, as well as federal copyright (Count II) and civil RICO (Count VI) claims. Plaintiff has moved for summary judgment against various defendants with respect to several of the counts asserted in the complaint; defendants have cross-moved for summary judgment and dismissal of the complaint in its entirety. For the reasons stated below, the Court will deny plaintiff’s motion, and it will grant defendants’ motion with respect to Counts II, III, IV, VI, and VIII.

I

Most of the material facts concerning the incidents involved in this case are not in dispute. In July, 1978 plaintiff brought a copy of his copyrighted seventeen page article, “The Selling of the President”, to defendant ABC’s Washington, D.C. headquarters. The article focused on a series of alleged irregularities and improprieties in then-President Jimmy Carter’s personal finances. Defendants George Watson, the Washington Bureau Chief of ABC News, and C. Robert Zelnick, the Bureau’s Director of News Coverage, thought the allegations sufficiently newsworthy to merit further investigation. Watson therefore directed Zelnick to negotiate with plaintiff concerning the use of the article, and Zelnick did so.

There is no dispute between the parties concerning most of the terms of the verbal agreement reached between plaintiff and Zelnick. ABC was to have exclusive rights to the information contained in plaintiff’s article for a period of three weeks (between approximately August 7 to August 27, 1978). During that time, ABC was to investigate the allegations contained in the article with the assistance of plaintiff, who was retained as a consultant at a fee of $500 per week for the three-week period. If ABC broadcast reports based on the article, plaintiff was to be paid $1,000 for each television spot and $100 for each radio spot.

It is also undisputed that both parties substantially performed these terms. Plaintiff provided defendants with exclusive access to his article; he assisted in undertaking additional investigations; and defendants paid plaintiff his $1,500 consulting fee. Defendants also paid plaintiff $2,000 after they broadcast two spot reports — one on the October 19, 1978 edition of “World News Tonight”, and the other on the October 20, 1978 edition of “Good Morning America” — concerning alleged discrepancies in President Carter’s valuation of farm equipment for federal income and local property tax purposes that had been reported in plaintiff’s article.

The contest here revolves primarily around ABC’s alleged promise to give plaintiff audio and video credit on any spots based on his article. Plaintiff has produced an August 7, 1978 letter from himself to Zelnick which purports to memorialize the agreement between the parties, and which includes the disputed credit provision. The letter also includes a request that Zelnick notify plaintiff if the letter did not accurately reflect the parties’ agreement, and a handwritten note by plaintiff, apparently in reference to a telephone conversation with Zelnick, that the letter accurately reflects the agreement. Defendants, for their part, vigorously deny, both in their papers and in their depositions, that Zelnick or any other ABC employee agreed that plaintiff would receive audio-visual credit on any spots, although they admit that plaintiff sought such credit and that he and Zelnick discussed the matter several times. In the event, ABC never performed the contested term of the agreement — that is, plaintiff never received any sort of on-air credit in the television spots that concerned allegations contained in the article.

It should also be noted that in his most recent amendment to the complaint, plaintiff alleged for the first time that defendants also breached the terms of the agreement requiring that he be paid for each radio and television spot based on his article. Specifically, he claims that ABC broadcast five additional spots based on his article for which he was never paid and on which he received no on-air credit. Defendants admit both that they have not paid plaintiff for the additional broadcasts, and that they did not provide him with on-air credit, but they deny that they had any obligation to do so.

II

The two breach of contract claims in Count I of the complaint — one relating to defendants’ alleged failure to pay plaintiff for the later television spots based on his article, and the other to their failure to provide him with audio-video credit on all seven television spots — form the heart of this case.

A. Defendants’ motion for summary judgment with respect to the failure to credit claim proceeds on the grounds (1) that Zelnick never agreed on behalf of ABC to provide plaintiff with on-air credit, and (2) that even if Zelnick made such a promise, he lacked authority to do so and he therefore he could not bind the other defendants.

It appears from the affidavits submitted by defendants and from the deposition testimony that Zelnick did lack actual authority to bind ABC to an agreement to provide on-air credit. But even absent actual authority, an on-air credit promise by Zelnick — if one was made — could have bound ABC if Zelnick possessed apparent authority to do so. See 1 Restatement (2d) of Agency §§ 8, 48, 140, 159 (1958). The issues of the precise scope of Zelnick’s authority, of plaintiff’s contemporaneous belief concerning that authority, and of the reasonableness of his beliefs in light of industry custom and practice all involve unresolved questions of material fact.

Assuming that plaintiff is able to prove that, under agency principles, Zelnick’s promises bind ABC, the factual question remains what' promises Zelnick actually made with respect to on-air credit to plaintiff. This question involves both intent and credibility — clearly matters for the finders of fact and therefore inappropriate for summary judgment. See Centronics Financial Corp. v. El Conquistador Hotel Corp., 573 F.2d 779, 782 (2d Cir.1978). Defendants’ summary judgment motion with respect to the failure to credit claim must accordingly be denied.

B. Defendants’ motion with regard to the later newscasts proceeds on two premises: (1) that the claim is barred by the statute of limitations; and (2) that those newscasts concerned only Carter Administration reactions to the original stories and that, as such, they were not covered by the agreement.

Clearly, the claims concerning the five additional October and November, 1978 broadcasts were first asserted well beyond the statute of limitations period. The applicable District of Columbia limitations period, which governs this common-law diversity contract claim, is three years. D.C. Code Ann. §§ 12-301(7) (contracts) and 12-308 (other unenumerated claims). Since the alleged breaches occurred in 1978, plaintiff’s assertion of these claims in his 1984 amended complaint came more than two years after the statutory filing period. Accordingly, plaintiff’s claims concerning these later broadcasts are time-barred unless saved by a doctrine that mitigates the statutory bar.

The Court finds that these particular claims “relate back” under Fed.R. Civ.P. 15(c) to the date of plaintiff’s original complaint and are therefore timely. Under Rule 15(c), Fed.R.Civ.P., amendments relate back to the date of the original pleading if they arise out of the same “conduct, transaction or occurrence” set forth in the original pleading. In this Circuit (as elsewhere), policies of notice pleading and judicial economy favor the liberal use of relation back as long as the original pleading provided sufficient notice to defendant so that he will not be prejudiced by the assertion of the new claim. See Columbia Plaza Corp. v. Security National Bank, 525 F.2d 620, 626 (D.C.Cir.1975); see generally, 6 C. Wright & A. Miller, Federal Practice and Procedure Civil § 1497 (1971 and Supp.1984).

Here the later broadcasts occurred close in time to the broadcasts identified in the original complaint, and the breach of contract claims concerning those broadcasts involve failure to credit claims identical to those asserted concerning the earlier identified broadcasts. To be sure, the claim that defendants failed to compensate plaintiff for the later broadcasts represents a different breach than the previously asserted on-air credit breach. But that is not conclusive. Plaintiff’s assertion of the on-air credit issue required defendants to review five additional newscast tapes, as they have already done during discovery. That is also the only factual preparation necessary to address the new factual issues posed by the non-payment claim — i.e., whether the television spots mentioned the allegations contained in plaintiff’s article.

The crux of all of these claims is the proper construction of one agreement, which is now asserted to have been violated basically in two respects rather than in one. To require defendants to address these additional claims on the merits will neither unduly complicate the case nor prejudice them. Accordingly, the Court holds that the claims with respect to the latter five broadcasts relate back and are therefore not time-barred.

With regard to the merits of the non-payment claims, there exist genuine, controverted issues of material fact that preclude the granting of summary judgment on this issue to either party. An examination of the broadcast transcripts submitted to the Court reveals that they are indeed concerned with Carter Administration reactions to the earlier broadcasts (for which plaintiff was paid) or are follow-up reports on new developments not reported in plaintiff’s article. However, the content of the broadcasts is not alone determinative in assessing this claim. Rather, its resolution requires determinations as to the parties’ original intent, the scope of the payment provision of their agreement, and indeed, whether the agreement necessary to form a contract ever existed. All of these are material questions of fact. See Davis v. Chevy Chase Financial, Ltd., 667 F.2d 160, 170-71 (D.C.Cir.1981); Martin Ice Cream Co. v. Chipwich, Inc., 554 F.Supp. 933, 937-39 (S.D.N.Y.1983); see generally, 10A C. Wright & A. Miller, Federal Practice and Procedure Civil § 2730.1. Accordingly, both parties’ motions for summary judgment on this aspect of the contract claim will be denied.

Ill

The Court’s conclusion with respect to the contract claim also disposes of the parties’ motions regarding the fraudulent misrepresentation claim (Count V of the complaint). To establish the common law tort of fraudulent misrepresentation, a plaintiff must prove that defendants (1) made a false representation (2) with respect to a material fact, (3) with knowledge of its falsity, (4) with the intent to deceive plaintiff, and (5) that plaintiff acted in reliance on the false representation. Nader v. Allegheny Airlines, 512 F.2d 527, 541 n. 32 (D.C.Cir.1975), rev’d on other grounds, 426 U.S. 290, 96 S.Ct. 1978, 48 L.Ed.2d 643 (1976); Rothenberg v. Aero Mayflower Transit Co., Inc., 495 F.Supp. 399, 406 (D.D.C.1980). Plaintiffs allegations, read as they must be in the light most favorable to him, as well as the deposition testimony, indicate that, if plaintiffs claims that defendants agreed to provide him with on-air credit and payment even for Carter Administration “reaction” stories are true, then plaintiff may be able to establish the elements of the fraudulent misrepresentation claim. Since, as indicated, the facts concerning the provisions of plaintiffs agreement with defendants remain disputed, the fraudulent misrepresentation claim, which largely turns on the same facts as the contract claim, is similarly unripe for summary judgment. Accordingly, both parties’ summary judgment motions must and will be denied as to this claim.

Plaintiffs common-law claim of negligent misrepresentation (Count VII), to the effect that defendants “owed plaintiff a duty not to mislead him concerning their proposed use of his proprietary, copyrighted material,” Complaint at paragraph 56, is similarly unripe for summary judgment. Defendants have moved for summary judgment on the grounds that no misrepresentations were made. However, as noted above, the nature and truth of the representations made to plaintiff remain very much contested issues of material fact. Accordingly, defendants’ motion for summary judgment will be denied with respect to this claim.

IV

Both parties have moved for summary judgment on the copyright claim: plaintiff on the ground that defendants copied his work without authorization by broadcasting infringing news spots without compensating him, and defendants on the basis that no reasonable jury could find that defendants infringed the copyright.

It is well recognized that the federal copyright laws provide only limited protection for news reports. Although a reporter’s mode of expression is protected by copyright, the facts reported are not themselves so protected. See Harper and Row Publishers, Inc. v. Nation Enterprises, 723 F.2d 195, 202, cert, granted, — U.S. —, 104 S.Ct. 2655, 81 L.Ed.2d 362 (1984); Miller v. Universal City Studios, Inc., 650 F.2d 1365 (5th Cir.1981); see generally, 1 Nimmer on Copyright § 2.11 (1983). Similarly, the Copyright Act does not extend copyright protection to ideas contained within the article. The Act thus strikes a careful balance, protecting authors’ original expression without impeding the public’s access to information and ideas.

A comparison of plaintiff’s articles with transcripts of the allegedly infringing newscasts compels the conclusion that no copyright infringement occurred. To be sure, the later newscasts reported some facts concerning former President Carter’s taxes that were similar to those reported by plaintiff. But such material was distinctly subordinate to the theme of the newscasts. Plaintiff’s article contains numerous allegations of irregularities and improprieties concerning Carter family finances, and it suggests that loans received from Saudi Arabian and domestic sources constitute conflicts of interest and raise substantial doubts about the President’s integrity. The ABC broadcasts, by contrast, reported only a single allegation similar to those raised in the article, and, significantly, they raised no conflict of interest questions whatsoever. The broadcasts reported numerous additional facts based on ABC’s own investigations, and their thrust was to question the consistency of the President’s actions with his statements about the federal tax system.

In short, the references to plaintiff’s work were entirely incidental to the publication of ideas and news reports of benefit to the public. To hold that plaintiff had a copyright on this material would be inconsistent with copyright law precepts and entirely inimical to First Amendment principles. Defendants’ motion for summary judgment will accordingly be granted with respect to Count II of the complaint.

V

Defendants have moved for summary judgment with respect to the unfair trade practices claims (Count III) and the unfair competition claims (Count IV) on the basis that these common law claims are preempted by the Copyright Act.

Section 301 of the Copyright Act, 17 U.S.C. § 301, provides a broad statutory basis for the pre-emption of state claims equivalent to copyright that extend to works within the scope of federal copyright law. The purpose of this broad statutory pre-emption scheme is to further the Copyright Act’s goal of encouraging contributions to recorded knowledge by precluding the use of state law to prevent the copying of material that Congress has determined should be left in the public domain. See Sears, Roebuck & Co. v. Stiffel Co., 376 U.S. 225, 84 S.Ct. 784, 11 L.Ed.2d 661 (1964); Hoehling v. Universal City Studios, Inc., 618 F.2d 972, 980 (2d Cir.1980).

Plaintiff’s copyrighted article is plainly within the subject matter of the Copyright Act. The seventeen-page article is an “original work of authorship fixed in a tangible medium of expression”. 17 U.S.C. §§ 102(a), 301. It is also clear from the allegations of the complaint that the thrust of his unfair competition and unfair trade practices charges is that ABC improperly made unauthorized use of the material contained in his article and failed to provide him with compensation and on-air credit therefor. The rights to control the use or reproduction of copyrighted work are explicitly protected by section 106 of the Copyright Act. Although section 106 does not explicitly protect the right of attribution of authorship, assertion of such a claim in an otherwise pre-empted common law action will not save the common law claim from pre-emption. See Suid v. Newsweek Magazine, Inc., 503 F.Supp. 146, 149 (D.D.C.1980).

Plaintiffs unfair competition and unfair trade practices claims thus fall squarely within the pre-emption provisions of § 301 of the Copyright Act. Accordingly, defendants’ motion for summary judgment will be granted with respect to Counts III and IV of the complaint.

VI

Plaintiff has alleged in count VI that the non-corporate defendants committed numerous acts of wire and mail fraud in furtherance of their alleged scheme to defraud him, and that they are therefore liable under the Racketeer Influenced and Corrupt Organizations (RICO) Act, 18 U.S.C. § 1961 et seq. To prevail on his RICO claim, plaintiff is required to prove (1) the existence of an enterprise (2) affecting interstate commerce (3) with which defendants were associated (4) and in the affairs of which they participated (5) through a pattern of racketeering activity. Martin-Trigona v. Smith, 712 F.2d 1421, 1426 n. 6 (D.C.Cir.1983). Certainly, as defendants concede, the first four elements are satisfied here. It is equally clear, however, that plaintiff has not satisfied the fifth element.

Plaintiff has failed to develop any facts tending to prove the two predicate criminal acts necessary to establish the requisite pattern of racketeering activity, and his RICO claim therefore cannot stand. 18 U.S.C. § 1961(5); see United States v. Swiderski, 593 F.2d 1246, 1247 (D.C.Cir. 1978), cert. denied sub nom McGowan v. United States, 441 U.S. 933, 99 S.Ct. 2056, 60 L.Ed.2d 662 (1979). Assuming the truth of plaintiff’s allegations that Zelnick engaged in fraudulent misrepresentations in their August 1, 1978 telephone conversation — allegations which, it may be noted, are very much disputed — this conversation between plaintiff in Virginia and Zelnick in the District of Columbia could in theory be found to be within the federal wire fraud statute, which constitutes one of the predicate RICO felonies. However, despite his allegations that defendants engaged in numerous interstate telephone conversations with each other in furtherance of the fraud, extensive discovery has produced not the slightest factual support for these claims. The Court will not require defendants to contest at trial so serious a charge on grounds which are so flimsy as to be non-existent.

Similarly defective is the allegation that the ABC television news spots constituted acts of wire fraud: if any fraud occurred, it was consummated prior to the broadcasts, when defendants obtained plaintiff’s services and access to his article, and the broadcasts therefore cannot be considered acts in the furtherance or execution of the alleged fraudulent scheme, as is required for coverage under the wire fraud statute. See 18 U.S.C. § 1343; United States v. Alston, 609 F.2d 531, 536 (D.C.Cir.1976). The Court will therefore grant summary judgment to defendants with respect to this claim.

VII

Finally, plaintiff claims that defendants converted his alleged trade secrets (Count VIII). Defendants’ motion argues (1) that the information contained in the article does not constitute a trade secret, and (2) that plaintiff’s intangible property rights in the article cannot be the subject of conversion.

Plaintiff’s contention that his article, or the information contained therein, constituted a trade secret is frivolous. Plaintiff’s compilation of facts, the overwhelming majority of which consisted of publicly available information, cannot reasonably be characterized as a “formula, pattern, device or compilation of information” regularly used in his business. See Ashland Oil, Inc. v. FTC, 409 F.Supp. 297, 303 (D.D.C.), affd, 548 F.2d 977 (D.C.Cir. 1976) (citing the widely used definition in 4 Restatement of Torts § 757, comment (b) (1939)); see also, 1 Milgrim on Trade Secrets § 2.01 at 2-2 — 2-8 (1984). The compilation of facts was not used by plaintiff as a means for conducting his business as an investigative reporter; rather, it was the product of his efforts as a reporter.

Beyond that, neither the article nor the facts contained therein were secret. At the time plaintiff showed the article to Zelnick, he had already shown it to editors at Penthouse magazine, and earlier drafts had been shown to several other journalistic organizations. Indeed, most of the facts contained in the article were available in the public record; ascertainment of these facts certainly required effort, but hardly the sort of effort and expense normally associated with the development of trade secrets. See Ashland Oil, supra, 409 F.Supp. at 303. Defendants’ motion for summary judgment will accordingly be granted as to Count VIII.

VIII

As the foregoing analysis has suggested, plaintiff has transformed a relatively simple contract claim into major federal litigation through the addition of numerous common law and federal statutory claims, most of which are legally unsupportable. Accordingly, defendants’ motion for summary judgment will be granted with respect to these inappropriate additional claims (set forth in counts II, III, IV, VI, and VIII of the complaint), which will be dismissed. The parties’ motions for summary judgment will be denied as to the contract and misrepresentation claims (set forth in counts I, V, and VII), which involve factual disputes appropriate for resolution at trial. It is the Court’s expectation that, now that the scope of this lawsuit has been properly narrowed, a prompt resolution can be anticipated. Accordingly, the Court will schedule a status call in order that the Court and the parties can set final discovery cut-off, pretrial, and trial dates, and bring this case to an expeditious resolution on the merits.

      . Plaintiff seeks summary judgment against defendant ABC with respect to portions of Counts I, II, V and VI, and against defendants Zelnick and Watson with respect to portions of Counts V and VI of the complaint. For a more detailed elaboration of the counts as to which plaintiff seeks summary judgment, see the discussion of the individual counts in parts II-VII, infra.

      . The article, which included a prominent copyright notice on the top of the first page, and which plaintiff registered with the Register of Copyrights effective October 9, 1981, satisfied the requirements for protection under the Copyright Act, 17 U.S.C. § 101 et seq. See 2 Nimmer on Copyright §§ 7.16[A][1], [B], p. 7-111 (1983).

      . Specifically, the article alleged that the Carter Warehouse (the Carter family business) had placed a high valuation on recently purchased equipment for federal income tax purposes, thereby obtaining substantial tax benefits for depreciation, and a low valuation on the same equipment for local property tax purposes, to minimize property tax liability. In short, the allegation was that the Carter warehouse sought improperly to limit its federal and local tax liability by filing inconsistent valuations of the same equipment.

      . Plaintiff was allowed to amend his complaint (for the second time) in January, 1984.

      . The five newscasts for which plaintiff received neither payment nor on-air credit include: an October 20, 1978 “Good Morning America” spot; an October 20, 1978 “World News Tonight” spot; a November 1, 1978 "World News Tonight” spot; a November 21, 1978 “World News Tonight” spot; and a November 22, 1978 "Good Morning America” spot.

      . Plaintiff has moved for summary judgment only with respect to the non-payment claim; defendants have moved for summary judgment on different grounds with respect to each of the two contract claims.

      . See Guaranty Trust v. York, 326 U.S. 99, 65 S.Ct. 1464, 89 L.Ed. 2079 (1945); Steorts v. American Airlines, 647 F.2d 194 (D.C.Cir.1981).

      . Although the doctrine of Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), applies with full force to the District of Columbia as well as to the states, see Anchorage-Hynning & Co. v. Moringiello, 697 F.2d 356, 360-61 (D.C.Cir.1983), no real Erie conflict exists here, since District of Columbia law provides that the Federal Rules of Civil Procedure shall govern proceedings in local courts. See D.C.Code Ann. § 11-946.

      . See Exhibits 3 (Attachments B, C, and D) and 4 (Attachments A and B) to defendants’ motion for summary judgment.

      . The Copyright Act is codified at 17 U.S.C. § 101 et seq.

      . As Professor Nimmer has explained:
      This may be understood as an application of the requirement of originality. No one may claim originality as to facts. Facts may be discovered, but they are not created by an act of authorship. One who discovers an otherwise unknown fact may well have performed a socially useful function, but the discovery does not render him an "author” in either the constitutional or statutory sense.
      1 Nimmer on Copyright § 2.11[A] at 2-157-58 (1983).

      . Harper and Row, supra, 723 F.2d at 202 n. 7.

      . For example, plaintiffs article states that President Carter’s federal income tax return valued the farm equipment at $658,000.00, while the October 19, 1978 “World News Tonight” report indicated that the equipment was valued at "just under $700,000.00." Similarly, plaintiff reports that the Carter Warehouse valued the equipment at $425,000.00 for local property tax purposes, while the ABC figure is $367,000.00.

      . Plaintiff does not dispute that defendants undertook additional factual investigations of the charges contained in his article.

      . Notwithstanding such decisions as Arnstein v. Porter, 154 F.2d 464, 468 (2d Cir.1946), the courts have in recent years recognized the appropriateness of summary judgment as to copyright claims where, as here, the alleged similarity relates to non-copyrightable elements of plaintiff s work. See, e.g., Hoehling v. Universal City Studios, 618 F.2d 972, 977 (2d Cir.1980).

      . Section 301(a) of the Copyright Act provides as follows:
      On and after January 1, 1978, all legal or equitable rights that are equivalent to any of the exclusive rights within the general scope of copyright as specified by section 106 in works of authorship that are fixed in a tangible medium of expression ad come within the subject matter of copyright as specified by sections 102 and 103, whether created before or after that date and whether published or unpublished, are governed exclusively by this title. Thereafter, no person is entitled to any such right or equivalent right in any such work under the common law or statutes of any State.
      17 U.S.C. § 301(a). Thus, "[a]s long as a work fits within one of the general subject matter categories of Sections 102 and 103, the [Act] prevents the States from protecting it even if it fails to achieve Federal statutory copyright.” House Report No. 94-1476 at 131, reprinted in 5 U.S.Code Cong, and Admin.News 5659 at 5747 (1976).

      . That plaintiff'could not prevail on his copyright claim, see supra, in no way affects this conclusion, as the two claims involve distinct inquiries. See Harper and Row, 723 F.2d at 200; cf. 1 Nimmer, supra, § 2.03[E] at 2-33.

      . Section 106 of the Copyright Act provides, in pertinent part:
      Subject to sections 107 through 118, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:
      (1) to reproduce the copyrighted work ...
      (2) to prepare derivative works......
      (3) to distribute copies.........
      (4) in the case of literary, musical, dramatic, and choreographic works, ... to perform the copyrighted work publicly; and
      (5) in the case of literary ... works, to display the copyrighted material publicly.

      . The Court also assumes for present purposes, without deciding the question, that an organized crime link is not required to establish a civil RICO claim. See Moss v. Morgan Stanley, 719 F.2d 5, 21 (2d Cir.1983).

      . The federal wire fraud statute, 18 U.S.C.
      § 1343, provides that:
      Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, transmits or causes to be transmitted by means of wire, radio, or television communication in interstate or foreign commerce, any writings, signs, signals, pictures, or sounds for the purpose of executing such scheme or artifice, shall be fined not more than $1,000 or imprisoned not more than five years, or both.

      . See 18 U.S.C. § 1961(1)(B).

      . The Court notes also that Judge Johnson of this Court has recently held that a criminal conviction is a necessary predicate for civil RICO claims, Berg v. First American Bankshares, Inc., 599 F.Supp. 500, 505-506 (October 19, 1984). The lack of such a conviction against defendants may thus form an alternative ground for dismissing plaintiff’s RICO claim.

      . Even if it were to be assumed that plaintiff used some of the information to prepare later articles in his business as a reporter, such irregular, limited use is inconsistent with generally accepted views as to the definition of trade secrets. See Milgrim, supra, at 2-8.

      . The Court also notes that the common-law conversion claim appears to be pre-empted and precluded by the Copyright Act for the reasons discussed in Part V, supra. See Harper and Row, 723 F.2d at 200-01.