author: EDELSTEIN, District Judge:

text:
    Thomas WALKER, Plaintiff, v. TIME LIFE FILMS, INC., David Susskind, Gill Champion, Martin Richards and Heywood Gould, Defendants.
    No. 83 Civ. 6755 (DNE).
    United States District Court, S.D. New York.
    Aug. 14, 1985.

      Jimmie L. Engram, New York City, of counsel, for plaintiff.
    Patterson, Belknap, Webb & Tyler, New York City (Eugene L. Girden, Blair Axel and Dietrich Snell, New York City, of counsel), for defendants.
   EDELSTEIN, District Judge:

This is an action for copyright infringement, misappropriation, breach of a confidential and fiduciary relationship and unfair competition, brought by plaintiff, Thomas Walker (“Walker”), author of the book Fort Apache. Plaintiff alleges that defendant, Time Life Films, Inc. (“Time Life”), and various persons engaged by Time Life to write, produce and direct the film “Fort Apache, The Bronx,” illegally used plaintiffs original ideas and expression in making the film.

This court has jurisdiction over the copyright infringement claim under 28 U.S.C. § 1338(a) and (b). Plaintiff also invokes this court’s pendent jurisdiction over his state law claims of breach of confidence, misappropriation, unfair competition and deceptive trade practices. Defendants have moved for summary judgment on all claims. The motion is granted.

FACTUAL BACKGROUND

On June 25, 1980, Walker, a former police officer employed by the New York City Police Department, filed a complaint in New York State Supreme Court. Defendants in this action were Time Life, the producers of the film “Fort Apache, the Bronx,” David Susskind, Gill Champion, and Martin Richards and the screenwriter, Heywood Gould. The complaint alleged copyright infringement, unfair competition, breach of a fiduciary and confidential relationship and violation of the common law copyright. The state action was dismissed on the ground that, pursuant to 28 U.S.C. § 1338, federal courts have original and exclusive jurisdiction of any civil action arising under any act of Congress relating to copyright. As to the balance of plaintiff’s claims, the state court ruled that the state law claims of unfair competition and breach of a fiduciary and confidential relationship are simply “redundant and equivalent” to the copyright claim and were asserted for the purpose of avoiding federal preemption. Thus, the state court dismissed the claim in its entirety for lack of subject matter jurisdiction.

On September 14, 1983, Walker filed a complaint in this court against the same defendants. The complaint alleges copyright infringement, pursuant to 17 U.S.C. § 301, violation of the Lanham Act, 15 U.S.C. § 1125(a), unfair competition, deceptive trade practices and breach of a fiduciary and confidential relationship. The common law copyright action was not included in the federal court action. Defendants have moved for summary judgment.

The undisputed facts are as follows. Walker was employed as a lieutenant and captain for the New York City Police Department assigned to the 41st precinct in the Bronx. The precinct is commonly known as Fort Apache due to the high incidence of arson and other crimes within it. In 1976, the Thomas Y. Crowell Company published a book written by the plaintiff and entitled Fort Apache. On February 23, 1977, New York Magazine printed a cover story on plaintiff’s book Fort Apache. Prior to the book’s publication, defendant Heywood Gould entered into a contractual agreement with defendants Martin Richards and Gill Champion to write a screenplay based on police activities in the South Bronx. In March of 1974, a screenplay, entitled “Fort Apache, The Bronx,” was filed by Gill Champion with the copyright office in the District of Columbia and given copyright # 90013. On February 6, 1981, Time Life released the motion picture “Fort Apache, the Bronx,” based on the screenplay by Heywood Gould.

The disputed issues of fact include the origin of the idea for defendants’ film and the similarity of themes, characters and episodes in the book and the film. Defendants have conceded access to the unpublished manuscript for the purpose of this motion.

Walker asserts that in late 1971 or early 1972, Heywood Gould visited the 41st Precinct and identified himself as a newspaper reporter investigating the arson problem in the area. Walker claims he offered to show Gould a copy of his manuscript, provided Gould would not take notes. Gould allegedly agreed to this condition; however, Walker claims that when he returned later, he caught Gould taking notes. A few weeks after Gould’s visit, Walker claims the manuscript disappeared from his locker in the station house.

The defendants contend that Gould never met Walker and did not visit the precinct until after publication of the book. Defendants claim that the idea for the film originated in the late 1960’s or early 1970’s, when Mel Richards and Gill Champion saw a news report of a gruesome crime that occurred in the South Bronx. They began to research the background of the South Bronx with its escalating crime rate and made preparations for a dramatization of police activity in the area.

The book Fort Apache is an autobiographical account of Walker’s experiences as a policeman patrolling the streets of the 41st precinct. The book’s organization is topical. Chapters center on youth gang violence, poor officer morale and attacks on officers. Stylistically, the book reads more like a daily journal than a tightly interwoven and plotted dramatic account. The title Fort Apache is not Walker’s independent creation; it has been commonly used to refer to the territory covered by the 41st Precinct since the late 1960’s.

Time Life’s screen production is a dramatic fictional account of a police officer’s romantic involvement with a drug-addicted nurse and the search for the killer of two 41st Precinct police officers. Although the film uses reports of some actual crimes that occurred in the South Bronx as source material, the film is predominantly a fictional work. The main character in the film, Murphy, unlike Walker, is a divorced, disillusioned patrolman, who is contemptuous of authority.

Although plaintiff contends that a factual dispute exists as to whether the works are substantially similar, defendants contend that no reasonable observer could find substantial similarity between the two works. After viewing the final screen version of the film and the book as published in 1976, this court holds that no reasonable observer could find substantial similarity. Any similarity that may exist is either trivial, abstract or non-protectible as a matter of law.

DISCUSSION

1. The Copyright Infringement Claim.

A. AMENABILITY TO SUMMARY JUDGMENT.

A series of copyright cases in this District have found noninfringement as a matter of law on a motion for summary judgment, either because the similar elements of the two works are non-copyrightable, or because no substantial similarity exists between the two works. E.g. Warner Bros. v. American Broadcasting Companies, 720 F.2d 231, 240 (2d Cir.1983); Smith v. Weinstein, 578 F.Supp. 1297, 1302 (S.D.N. Y.), aff’d. mem., 738 F.2d 410 (2d Cir.1984).

B. COURT’S EXAMINATION OF THE WORKS.

In determining copyright infringement, the works themselves supersede and control contrary allegations and conclusions, or descriptions of the works as contained in the pleadings. Davis v. United Artists, Inc., 547 F.Supp. 722, 724 (S.D.N. Y.1982). The Court considers the works as they were presented to the public. Id. Plaintiff requests the court to compare the two works on the basis of lists of random similarities and on earlier scripts of the screenplay. Affidavit of Samuel Rosenburg, Exhibit 1, November 16, 1984. This request is denied. Courts have routinely rejected requests to consider earlier drafts of the screenplay. Consideration of earlier versions of the screenplay is too unreliable in determining substantial similarity. Huie v. National Broadcasting Company, 184 F.Supp. 198, 199 (S.D.N.Y.1960). See also Litchfield v. Spielberg, 736 F.2d 1352, 1356 (9th Cir.1984), cert. denied, — U.S. —, 105 S.Ct. 1753, 84 L.Ed.2d 817 (1985) (rejection of list method of comparing works for substantial similarity, because it is “inherently subjective and unreliable.”).

It is also unnecessary to discuss every alleged similarity in the two works; a brief discussion of the salient portions of plaintiff’s argument is illustrative and sufficient. Zambito v. Paramount Pictures, 613 F.Supp. 1107, 1111 (E.D.N.Y.1985).

C. THE MERITS.

In a copyright infringement action, the plaintiff must prove copying by the defendant. See M. Nimmer, The Law of Copyright, 7809 ¶ 7 141 (1976). Evidence of access and substantial similarity are in themselves sufficient to create an inference of copying. Warner Bros. v. American Broadcasting Company, 654 F.2d 204, 207 (2d Cir.1980).

I. NON-PROTECTIBLE MATERIAL.

Assuming, arguendo, that plaintiff can prove substantial similarity, copyright protection does not extend to historical or contemporary facts, material traceable to common sources or in the public domain, and scenes a faire. Many of the alleged similarities between Walker’s book and the film fall into one of these categories.

a. FACTUAL INFORMATION.

Factual information is in the public domain and hence not protectible. See Werlin v. Reader’s Digest Ass’n. Inc., 528

F.Supp. 451, 462 (S.D.N.Y.1981); Rosemont Enterprises, Inc., v. Random House, Inc., 366 F.2d 303, 309 (2d Cir.1966), cert. denied, 385 U.S. 1009, 87 S.Ct. 714, 17 L.Ed.2d 546 (1967). There is no copyright protection extended to the presentation of facts or in their selection. Hoehling v. Universal City Studios, Inc., 618 F.2d 972, 978 (2d Cir.), cert. denied, 449 U.S. 841, 101 S.Ct. 121, 66 L.Ed.2d 49 (1980).

Although creation of a non-fiction work, even a compilation of pure fact, entails originality, the police reports of the 41st precinct are not independent creations of Walker’s imagination entitled to copyright protection. Harper and Row Publishers v. Nation Enterprises, — U.S. —, 105 S.Ct. 2218, 2224, 85 L.Ed.2d 588 (1985). Walker concedes that the events narrated in the book are true and that only the names were changed to respect the privacy of the individuals. T. Walker, Fort Apache, (1976) (copyright page), Deposition of T. Walker, July 17, 1980 at 10. The policemen’s responses to the aftermath of crimes and attempted criminal acts are facts logged in police records, and are not protected by federal copyright statutes. As the court concluded in Alexander v. Haley, 460 F.Supp. 40, 45 (S.D.N.Y.1978), “where common sources exist for the alleged similarities, or the material that is similar is otherwise not original with the plaintiff, there is no infringement.”

In Smith v. Weinstein, supra, 578 F.Supp. at 1303, the film “Stir Crazy,” was based on a prison rodeo, and thus did not infringe copyrightable elements of the book by the same name. The court concluded that no copying was possible because the rodeo was placed in the public domain by extensive news treatment. Similarly, in this case, the high rate of crime and violence in the burned-out blocks of the South Bronx received extensive news coverage in both print and on television. The subject matter was fair game for any artist. The crimes outlined by Walker were newsworthy events in the public domain and not entitled to copyright protection.

b. SCENES A FAIRE.

Similarly, scenes a faire —incidents, characters or settings which, as a practical matter, are indispensable or standard in the treatment of a given topic—are not protected. Reyher v. Children’s Television Workshop, 533 F.2d 87, 91 (2d Cir.), cert. denied, 429 U.S. 980, 97 S.Ct. 492, 50 L.Ed.2d 588 (1976). In any account based on experiences in a poverty stricken, crime-ridden environment, depictions of bribery, prostitution, purse-snatching and neighborhood hostility to law enforcers are inevitable. Plaintiff contends that similar accounts in the film and book describe the disarming of threatening individuals, and the poor morale of disgruntled officers. See Affidavit of Samuel Rosenburg in Opposition to Defendants’s Motion for Summary Judgment. These incidents are stock material for most police stories. Affidavit of George Stade, at 4-6 Plaintiff’s claims of copying based on the portrayal of these events is without merit.

II. COPYRIGHTABLE MATERIAL.

Even as to the copyrightable elements, the court finds that no reasonable observer could conclude that the book and the film are substantially similar.

a. TEST FOR DETERMINING SUBSTANTIAL SIMILARITY.

The standard test for determining substantial similarity is whether an “average lay observer would recognize the alleged copyrighted work as having been appropriated from the [original] copyrighted work,” Ideal Toy Corp. v. Fab-Lu Ltd., 360 F.2d 1021, 1022 (2d Cir.1966); however, this test has been qualified in this, Circuit. In Warner Bros v. American Broadcasting Company, supra, 720 F.2d at 245, the court stated that the test of substantial similarity for determining infringement is not a concept familiar to the public at large. Rather than using the reasonable observer test, substantial similarity is a “term to be used in a courtroom to strike a delicate balance between the protection to which authors are entitled under an act of Congress and the freedom that exists for all others to create their works outside the area protected against infringement.” Id.

There are two criteria for determining substantial similarity: proving “literal,” or “word for word,” similarity in certain instances of the work, or finding infringement of the work’s “fundamental essence” or structure. Werlin v. Reader’s Digest Ass ’n. Inc., supra, 528 F.Supp. at 462.

b. ALLEGATIONS OF LITERAL SIMILARITY.

Plaintiff indirectly alleges both forms of similarity. In support of his claim of literal similarity, plaintiff contends that Murphy’s statement in the film “better than the movies” copies Walker’s statement “better than a double feature at the R.K.O. Fordham.” Plaintiff’s Statement Pursuant to Rule 3(g), Exhibit 1. This claim of similarity is too vague and general. Further, plaintiff contends that Murphy’s line in an earlier scripted version of the film, “we’re here to keep the lid on a garbage can ...,” which was not included in the film, explicitly copies Walker’s statement that “rumors ... rattle through the area like a careening garbage can lid.” T. Walker, Fort Apache, at 67, (1976). However, the court need consider only the final version of the film as presented to the viewing public. Davis v. United Artists, Inc., supra, 547 F.Supp. at 724 n. 9. Plaintiff also contends that Murphy’s statement to an arrested man, “you’ll be out on the street in an hour,” copies Walker’s phrase “out in few minutes.” This and. other alleged similarities are not material to the copied work and, even if they were material, they are too strained, far-fetched and abstract to be of consequence. Comparison of the film and book reveals no basis for this claim of literal or word-for-word similarity.

c. ALLEGATIONS OF SIMILARITY OF FUNDAMENTAL ESSENCE.

Plaintiff finds support for his substantial similarity claim from three newspaper articles which cite Walker as the source for the film: The Daily News, November 15, 1981, “Romanticizing Real Life Stories”, Lorenzo Carcaterra, The Pompano Ledger, Ed Foley, and The Pompano Beach Rotary Bulletin, March 14,1981. Because the subject matter of the Pompano newspaper articles concerns Doctor Goldenkrantz’s visit to the Pompano Beach Rotary Club, plaintiffs assertions lack merit. Further, Carcaterra, the reporter for The Daily News, has conceded that he did not read Walker’s book. Affidavit of Thomas Walker, February 1, 1985. Plaintiff then contends that a group entitled the Union Patriotia Puertoriquena also finds the book and film to be substantially similar. Affidavit of Thomas Walker, January 25, 1985. However, the Second Circuit in Warner Bros. v. American Broadcasting Company supra, 720 F.2d at 245, concluded that a few opinions cannot enlarge the scope of statutory protection enjoyed by a copyrighted property.

d. PROTECTION OF EXPRESSION OF IDEAS.

The similarity to be assessed must concern the expression of ideas, not simply the ideas themselves. 17 U.S.C. § 102(b). To analyze similarity in expression, courts must compare the following elements of the two works: the analysis and interpretation of events, the structuring of material and marshaling of facts, the choice of words, and the emphasis given to a particular development. Werlin v. Reader’s Di-gestAss’n. Inc., supra, 528 F.Supp. at 461-62.

Although the two works at issue are both based on police activities in the 41st precinct of the South Bronx, the structure of the two works and the authors’ use of the factual information are clearly divergent. Plaintiff’s book has no central plot or organizing scheme; the book reads more like a policeman’s diary of daily events than a unified literary creation with interdependent characters and stereotypes. In the later chapters, Walker organizes the patrolmen’s experiences topically; chapters concentrate on youth gang violence, the officers’ psychological instabilities, and attacks on the station house. Unlike the book, the film’s narrative is centered on Murphy’s relationship with a drug-addicted nurse and the related murder of two fellow officers of the 41st precinct. All of the characters are interrelated; coincidentally, the nurse’s drug dealer killed both the nurse and the psychopathic prostitute. Although both the film and book include the murder of two policemen, the book mentions the crime only briefly. Even if the producers of the film had given the murder similar treatment and emphasis, the event was based on an actual crime and thus not entitled to copyright protection. Alexander v. Haley, supra, 460 F.Supp. at 44-45. In contrast, the murder of the policemen in the film was a central motif. Many of the scenes in the film related to the murder, including the prostitute’s subsequent attacks on unsuspecting male victims, the resulting round-up of innocent civilians and the neighborhood attacks on the station house. Walker’s work, was unoriginal, as it failed to present a combination of ideas that could develop into a distinctive and protected creation by an interplay of characters and narratives. The plaintiff has not persuaded this court that a similarity of protected expression between the two works exists.

This court rejects plaintiff’s claimed similarities between the prologue, the beginning of the book and the first scenes of the film. Affidavit of Thomas Walker in Opposition to Defendant’s Motion for Summary Judgment, November 12, 1984. Walker’s affidavit claims that the murder of two policemen, a futile chase scene, and a stolen wig, which all predominate in the book’s beginning, are copied in the film. After viewing the film, this court cannot find substantial similarity. The film begins with the prostitute’s brutal shooting of two Fort Apache officers, a transvestite’s threat to kill himself and the arresting officer’s visit to the hospital. The only reference to a wig in the film is the transvestite’s concern with his appearance. The murder alluded to in the novel was based on the actual shootings of Joseph Piagintini and Waverly Jones, a news event. Affidavit of Eugene Girden, Exhibit S at 20, October 19, 1984. No reasonable observer could possibly find substantial similarity of protected material between the beginning of the film and book.

e. TRIVIAL, IMMATERIAL AND INSUBSTANTIAL ALLEGATIONS.

Many of plaintiff’s allegations of copying refer to incidents which are trivial, immaterial or insubstantial. For example, plaintiff contends that Murphy’s recommendation to Corelli, his partner, to read either Dick Tracy or the Yellow Pages illustrates that the filmmakers copied Sargeant Bar-tow’s suggestion that Sargeant Grit, a fellow officer in the 41st precinct, read the The Blue Knight. See Exhibit 6 of Plaintiff’s Memorandum in Opposition to Defendant’s Motion for Summary Judgment. Further, Walker contends that the book’s description of the lack of safe parking and the inadequate protection from vandals was copied in the film. These allegations, even if true, are trivial, insubstantial, and insufficient to prove substantial similarity of protectible material.

f. CHARACTER COMPARISON.

Plaintiff’s expert, Samuel Rosenburg, has submitted an affidavit which claims that the film’s leading characters are substantially similar to the protaganists in Walker’s book. Exhibit 6 of Plaintiff’s Memorandum in Opposition to Defendant’s Motion for Summary Judgment, November 12, 1984 Based on this affidavit, plaintiff contends that the Walker character is split into two characters in the film: Captain Connolly (Edward Asner) and Officer Murphy (Paul Newman). The plaintiff suggests that the dual role played by Walker “did not go unnoticed by the makers of the film.” Id. A comparative character analysis of the book and film illustrates both the absurdity of this argument and the lack of merit in the analogy. The characters in the film bear no similarity to the book’s protaganists. The only identifiable similarity is their role as policemen in the same precinct. This Court takes judicial notice that members of the New York Police Department are often portrayed as Irish, smokers, drinkers, and third or fourth generation police officers. The assertion that defendants wrongfully appropriated any expression of plaintiff’s characters and ideas is rejected. See Giangrasso v. Central Broadcastion Company Inc., 534 F.Supp. 472, 478 (E.D.N.Y.1982).

The differences between Murphy and Walker are far greater than the abstract similarities asserted by plaintiff. Whereas Murphy is hostile, contemptuous of authority and lacks ambition, Walker is a disciplinarian who respects his commanding officers and is actively climbing the bureaucratic ladder. Walker is a new arrival and leaves the precinct at the conclusion of the book when he is transferred. In contrast, Murphy, an 18-year veteran of the 41st precinct, considers resigning; however, the end of the film implies that Murphy will stay in the precinct. Another divergence is the marital status of the two characters. Murphy is divorced, and his relationship with the emergency room nurse is a central element in the film’s plot. In contrast, Walker is happily married.

There is almost no similarity between Walker and Captain Connolly (Edward Asner), aside from their positions of authority. Lt. Walker is relegated to patrolling the streets, and the Captain’s responsibilities are based at the station house. In Plaintiff’s Sur Reply Memorandum, he alleges that Lt. Walker and Captain Connolly (Asner) bear similar facial resemblances. This allegation is meritless because a finding of similarity by the ordinary reasonable observer is impossible; the reader of Walker’s book is not presented with a clear picture of the author’s physical appearance. The book traces the waning of Walker’s naive idealism and, by the conclusion, he is realistically assessing the dim prospects for improving the crime-ridden area. In contrast, Captain Connolly’s idealism is unaltered; this reflects the great differences that underlie the characters in the film and the novel.

There are no characters in the book equivalent to Murphy, Connolly, Morgan, Finley, the track star, the nurse, the drug dealer, the prostitute, the South Bronx People’s Party and Corelli’s fiance. Affidavit of Eugene Girden, Exhibit 5.

These divergences clearly surpass and outweigh any abstract similarities that may inevitably be found in works centered on New York City policemen patrolling a crime-ridden area.

In Durham Industries Inc. v. Tomy Corp., supra, 630 F.2d 905 at 913 (2nd Cir.1980), the Second Circuit assessed the problems of the relative value to be given to some similarities: “as a matter of logic as well as law, the more numerous the differences between the two works, the less likely it is that they will create the same aesthetic impact so that one will appear to have been appropriated from the other.” In determining infringement, if the points of dissimilarity not only exceed the remaining examples of similarity, but indicate that these slight similarities are of minimal importance either quantitatively or qualitatively, then there is no infringement. 3 M. Nimmer, supra, ¶ 13.03[b], at 13-37. That is the case here. Accordingly, the copyright infringement claim is dismissed.

2. The Lanham Act Claim.

Plaintiff’s fourth cause of action alleges a violation of the Lanham Act, 15 U.S.C. § 1125(a), which prohibits false designation of origin or title. The Lanham Act provides: “Any person who shall ... use in connection with any goods ... false description or representation ... falsely to describe or represent same ... shall be liable to a civil action by any person who believes that he is or is likely to be damaged by the use of any such false description or representation.” To prove a violation of the Lanham Act, two elements must be shown: (1) the infringed work must acquire a secondary meaning so that the public identifies it with the plaintiff and his work and (2) similar titles must spawn public confusion and the misconception that plaintiff either originated, sponsored, or is associated with defendant’s work. In considering the second element, the Second Circuit in B and L Sales Associated v. H. Daroff and Sons, Inc., 421 F.2d 352, 353-54 (2d Cir.), cert. denied, 398 U.S. 952, 90 S.Ct. 1873, 26 L.Ed.2d 292 (1970) concluded that although likelihood of confusion is frequently a fairly disputed issue of fact on which reasonable minds may differ, the issue is amenable to summary judgment in appropriate cases. As with claims of copyright infringement, courts retain the authority to monitor the outer limits of substantial similarity within which to determine whether there is a likelihood of confusion as to the source. Otherwise, the scope of protection a work enjoys would be expanded beyond what Congress prescribed. Warner Bros. v. American Broadcasting Companies, supra, 720 F.2d at 246.

Courts in the Second Circuit have determined that “absence of similarity leaves little basis for asserting a likelihood of confusion” in violation of the Lanham Act. Warner Bros. v. American Broad casting Companies, supra, 720 F.2d at 246, (quoting Durham Industries Inc., v. Tomy Corp., supra, 630 F.2d at 918). However, lack of substantial similarity is not a blanket reason for dismissal of a Lanham Act claim. If the second comer falsely represents his good as that of the trademark owner, a violation has occurred. A claim of ‘passing off’ or ‘palming off’ may be established even if the goods are not confusingly similar. The wrong lies in the misrepresentation of a common source. Id. at 247.

Walker claims that Time Life’s Variety advertisement misrepresents the film as deriving from the book Fort Apache. The advertisement however, simply announces the beginning of photography for the film. No reasonable observer could infer that the film derived from the book based on the advertisement.

This court also rejects plaintiff’s contention of public confusion; plaintiff presents three isolated newspaper articles which credit Walker as the author of both the book and the film. See supra, at 436-437. These examples alone do not illustrate popular misconception and are insufficient to prove that the public has come to identify the title with plaintiff and his work. This is particularly true when the title refers to a geographical location that is not the plaintiff’s independent creation. See Pre-Trial Order ¶ 5. Accordingly, Walker’s Lanham Act claim is dismissed.

3. The State Law Claims.

A. JURISDICTION.

Dismissal of plaintiff’s federal claims raises the question of whether the state law claims of misappropriation, unfair competition and trade practices, and breach of a confidential and fiduciary relationship should be dismissed without prejudice to their commencement in state court. This court has jurisdiction over the pendent claims under United Mine Worker’s of America v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966). The state court dismissed all the common law claims, finding that they are “simply redundant and equivalent” to plaintiff’s copyright claim and are based on the same facts. Walker v. Time Life Films Inc., No. 8938/80, slip op. at 4 (N.Y.Sup.Ct.1983). Although the Second Circuit has indicated that “... if the federal claims could be disposed of on summary judgment under Fed.R.Civ.P. 56, the court should refrain from exercising pendent jurisdiction, absent exceptional circumstances,” Kavit v. A. L. Stamm and Co., 491 F.2d 1176, 1180 (2d Cir.1974), in this particular fact situation, exceptional circumstances exist. The state court already had an opportunity to adjudicate the issue. Thus, by deciding the state law claims, this court is not usurping the state court’s role in deciding the state law claims.

B. BREACH OF A CONFIDENTIAL AND FIDUCIARY RELATIONSHIP.

Plaintiff’s first cause of action alleges that defendant Heywood Gould, the screenwriter, abused a fiduciary or confidential relationship with plaintiff in obtaining access to the appropriated material. Actionable claims for breach of confidential and fiduciary relationships are centered on breach of an agreement between parties, or breach of trust they place in each other because of the nature of their relationship. Smith v. Weinstein, supra, 578 F.Supp. at 1307. Although plaintiff alleges that Heywood Gould, the screenwriter, read and took notes from an earlier manuscript, plaintiff has not submitted sufficient support showing that a confidential or fiduciary relationship existed between Walker and Gould. Furthermore, the cases cited by the plaintiff do not support his claim of a confidential relationship. In Harper & Row Publishers, Inc. v. Nation Enterprises, 501 F.Supp. 848, (S.D.N.Y.1980), aff’d., 723 F.2d 195 (2d Cir.1983), rev’d on other grounds, — U.S. —, 105 S.Ct. 2218, 85 L.Ed.2d 588 (1985), the claims asserted were copyright infringement, conversion and interference with a contract; no claim for breach of a confidential relationship was presented. Further, the facts in Smith v. Weinstein, supra, 578 F.Supp. at 1297, are clearly distinguishable because Smith (the writer) and Weinstein’s (the producer) relationship consisted of close personal and professional contacts, as Weinstein read Smith’s scripts and directed them to film producers.

C. MISAPPROPRIATION AND UNFAIR COMPETITION.

Walker claims that Time Life is liable under New York tort law for misappropriation of his book’s content, ideas, and concepts. However, plaintiff’s exclusive remedy for his state law claims that rely on the misappropriation allegations of the unfair competition claim is 17 U.S.C. § 301(a). Congress’ purpose was clearly expressed: “[t]he intention of Section 301 is to preempt and abolish any rights under the common law or state statutes, that are equivalent to copyright and that extend to works within the Federal Copyright Law.” H.R.Rep. No. 1476, 94th Cong., 2d Sess. at 130, reprinted in 1976 U.S.Code Cong. & Ad.News, 5659, 5746. The state cause of action only protects rights which are qualitatively different from the rights protected by the Copyright Act. Harper & Row Publishers Inc. v. Nation Enterprises, supra, 501 F.Supp. at 850. To the extent that plaintiff’s unfair competition claim seeks protection against copying, it is also based on a right equivalent to rights within the scope of the Act and defeated by 17 U.S.C. § 301(a). Warner Bros. v. American Broadcasting Companies, supra, 720 F.2d at 247. Plaintiff’s claim of unfair competition is a thinly veiled attempt to achieve what he failed to accomplish by asserting his copyright infringement claim. Durham Industries Inc. v. Tomy Corp., supra, 630 F.2d at 918.

D. DECEPTIVE TRADE PRACTICES.

Plaintiff claims that Time Life confused and misled the trade and public and induced the mistaken belief that the film is associated with plaintiff’s book. Complaint 1140. Plaintiff contends that Time Life’s advertisement in Variety on February 15, 1976 illustrates Time Life’s attempt to market a similar product and steal profits. This assertion alone is insufficient for any reasonable trier of fact to find that the trade and public were confused and misled. Plaintiff himself admits that his book was well publicized even before the Variety advertisement appeared. See Affidavit of Thomas Walker, at 9. Walker even appeared on the cover of New York Magazine and on television and radio promotional spots. Moreover, the Variety advertisement makes no reference to Walker’s book; it simply states that principal photography was to begin in May of 1976. Plaintiff’s Memorandum in Opposition, Exhibit 1, November 16, 1984. Although plaintiff’s book and defendant’s film refer to the same area of the South Bronx, plaintiff’s use of the title Fort Apache is not sufficient to state a cause of action of unfair competition. Plaintiff concedes that the name Fort Apache predates his book, having been used since the late 1960’s to refer to the 41st precinct in the South Bronx. See Pretrial Order H 5, Deposition of Thomas Walker, July 17, 1980 at 184. Plaintiff does not show that the defendant makes any allusion to being affiliated, connected or associated with the plaintiff; thus plaintiff’s claims of unfair competition and deceptive trade practices are summarily dismissed.

Plaintiff’s seventh cause of action asserts that defendant’s film dissipated and destroyed the value of plaintiff’s dramatic rights, irreparably and irretrievably, by injuring and damaging his prospective profits. This claim approximates the misappropriation claim and is predicated on plaintiff’s premise that there is substantial similarity between the two works. Because the misappropriation claim fails, there can be no relief for this claim. Further, upon this court’s conclusion that there is no substantial similarity and only some similarity of nonprotectible and trivial material, this claim must be dismissed, because the works are fundamentally different. This precludes the plaintiff from arguing that the defendant stole 'the value of his future rights to a dramatic reproduction of Fort Apache. Pre-trial Order 11 5.

CONCLUSION

Defendants’ motion for summary judgment is granted in all respects. The clerk shall enter judgment in favor of defendants.

SO ORDERED.

      . This information was provided for the court in the statements submitted by the parties pursuant to Rule 3(g) of the civil rules of the U.S. District Courts for the Southern and Eastern Districts of New York.

      . This court has not considered plaintiff's voiced over analysis of the film’s first scenes. The plaintiff claims that Rule 1006 of the Federal Rules of Evidence authorizes the court to consider a shortened and edited version of the film. Plaintiff has misapplied Rule 1006 which only allows summaries and charts in abbreviated form for trial. The rule seeks to avoid distorting material from its general context. In determining substantial similarity, the court must only consider the works in their entirety and final form as presented to the public.

      . The rationale underlying the scope of copyright protection afforded in the Second Circuit is best explained in Hoehling v. Universal City Studios, Inc., supra, 618 F.2d at 972. The Court reasoned that although the plots of the two works being compared by the courts were necessarily similar, there was no infringement because to forbid copying of historical facts and contemporary events would "interfere with the federal policy of allowing free access to copy whatever the federal patent and copyright laws leave in the public domain.” Id. at 978.

      . Plaintiff has referred to issues which are appropriate for a jury to decide. However, it should be noted that plaintiff failed to demand a jury.

      . Plaintiff does not cite a page number, and the
        court cannot find the quote in the book.

      . Dr. Goldenkrantz is the doctor who delivered Walker at birth.

      . This document does not contain page numbers.

      . Morgan and Finley, police officers in the 41st precinct, threw a teenager off the roof of an apartment building.


source: Caselaw Access Project

author: COHILL, Chief Judge.

license: Public Domain

text:
    James A. JONES, Jr., Plaintiff, v. Jerry LOGUE, David Vaupel, Floyd Nevling, James Miles, George Reilly, Gary Start, and Marty Smith, individually and in each of their capacities as police officers with the Allegheny County Police Dept., and the Allegheny County Police Dept., Defendants.
    No. Civ. A. 84-2667.
    United States District Court, W.D. Pennsylvania.
    Aug. 14, 1985.

      Michael L. Rosenfield, Pittsburgh, Pa., for plaintiff.
    Evan E. Lloyd, Asst. County Sol., David M. Newhart, Dickie, McCamey & Chilcote, Pittsburgh, Pa., for defendants.
   MEMORANDUM OPINION

COHILL, Chief Judge.

Presently before us is Defendants’ Motion for Judgment on the Pleadings, pursuant to Fed.R.Civ.P. 12(c).

The Complaint alleges that defendants violated plaintiff’s civil rights by seizing alleged fireworks and by destroying some of the fireworks without testing them to determine whether, in fact, they were fireworks. Plaintiff alleges violations of 42 U.S.C. §§ 1983, 1985 and the Fourteenth Amendment. Plaintiff demands compensatory and punitive damages, as well as declaratory and injunctive relief. We will deny Defendants’ motion.

Standard

In considering a motion brought under Rule 12(c), all of the well pleaded factual allegations in the adversary’s pleadings are assumed to be true and all contravening assertions in the movant’s pleadings are taken to be false. 5 C. Wright & A. Miller, Federal Practice and Procedure, § 1368, at 691. The motion only has utility when all material allegations of fact are admitted and only questions of law remain. Society Hill Civic Ass’n v. Harris, 632 F.2d 1045, 1054 (3d Cir.1980). In addition, all reasonable inferences are drawn in favor of the nonmoving party. NLRB v. Weirton Steel Co., 146 F.2d 144 (3d Cir.1944); Chuy v. National Football League Players Ass’n, 495 F.Supp. 137, 138 (E.D.Pa.1980). Since a motion for judgment on the pleadings is directed towards a determination of the substantive merits of the controversy, courts are generally unwilling to grant such a motion unless it is clear that the merits can be fairly and fully decided in this summary manner. 5 C. Wright & A. Miller, supra, § 1369, at 700.

The Complaint

The Complaint alleges that Plaintiff was arrested on June 29,1983 and charged with the unlawful sale of fireworks. Complaint, n 6-7. At the time of arrest, Defendants allegedly confiscated certain items which were destroyed by Defendants some time between June 29 and July 13, 1983. Id. ¶¶ 8-9. Plaintiff alleges that Defendants followed procedures of the Allegheny County Police Department in destroying certain items listed in Exhibit 1 to Plaintiff’s Complaint, but never examined these items prior to their destruction to determine whether or not they were “fireworks” as defined by Pennsylvania law. Id. ¶¶ 11-12. Plaintiff alleges that defendants never obtained a court order authorizing destruction of plaintiff’s property, and that no evidence was ever presented at plaintiff’s trial in the Court of Common Pleas of Allegheny County as to whether or not the items listed in Exhibit 1 were, in fact, fireworks.

Plaintiff seeks a declaratory judgment to declare unconstitutional the procedure by which defendants destroy suspected fireworks without a hearing or court order; a declaratory judgment that an owner of fireworks may have fireworks returned if he can demonstrate that the fireworks will be transferred to or sold in a state where such sale is legal; a permanent injunction prohibiting defendants from destroying suspected fireworks without a hearing or court order; compensatory and punitive damages, and attorney’s fees.

Discussion

Defendants have moved for a judgment on the pleadings, arguing that, accepting as true “all uncontradicted facts,” they are entitled to judgment based on four theories: 1) failure to exhaust state remedies; 2) collateral estoppel; 3) mootness of the claims for declaratory and injunctive relief; and 4) that the items seized and destroyed were “fireworks” as defined under Pennsylvania law, and were properly confiscated and destroyed. Motion for Judgment on the Pleadings, till 1, 2. We will examine these contentions in turn, noting, however, that defendants’ assertion that all “uncontradicted” facts are taken is true is erroneous. As we stated before, the standard under Rule 12(c) requires us to take as true all the factual allegations of the Complaint.

A. Failure to Exhaust State Remedies

A party is not required to exhaust state remedies as a prerequisite to bringing civil rights action in federal court. Monroe v. Pape, 365 U.S. 167, 183, 81 S.Ct. 473, 482, 5 L.Ed.2d 492, 503 (1961); see also Patsy v. Board of Regents, 457 U.S. 496, 500, 102 S.Ct. 2557, 2559-60, 73 L.Ed.2d 172 (1982); Allee v. Medrano, 416 U.S. 802, 815, 94 S.Ct. 2191, 40 L.Ed.2d 566, 580 (1974); Schultz v. Baumgart, 738 F.2d 231, 237 (7th Cir.1984); Schwartz v. Judicial Retirement System, 584 F.Supp. 711, 718 (D.N.J.1984).

B. Collateral Estoppel

Defendants’ Answer states, as a defense, that after arrest and prior to trial, Plaintiff filed a motion on September 28, 1983 with the Court of Common Pleas of Allegheny County seeking the return of the confiscated items. Answer, ¶ 16. The Answer further states that, on February 15, 1984, Plaintiff filed a Motion for Rule to Show Cause why the confiscated items should not be returned. Id. ¶ 17 and Ex. A. Plaintiffs Motion was denied by summary order of March 8, 1984. Id. ¶ 18 and Ex. C. Defendants rely on this order in asserting that it collaterally estops plaintiff in the present action. See Defendant’s Brief in Support of Motion for Judgment on the Pleadings, at 3. Defendants state “[t]he state court’s order is dispositive of the issues of whether defendants acted properly under state law.” Id.

Under the doctrine of collateral estoppel, a court’s decision on an issue of law or fact, which is necessary to its judgment, is conclusive with respect to that issue in subsequent suits based on a different cause of action involving a party to the first case. Montana v. United States, 440 U.S. 147, 153, 99 S.Ct. 970, 973, 59 L.Ed.2d 210 (1979). It is now firmly established that the doctrine of collateral estoppel is applicable to actions brought under § 1983. Allen v. McCurry, 449 U.S. 90, 94, 101 S.Ct. 411, 414, 66 L.Ed.2d 308 (1980). Collateral estoppel applies when 1) the issue decided in the prior litigation is identical to the issue presently before the court; 2) the prior litigation resulted in a judgment on the merits; 3) the party against whom estoppel is asserted is á party, or in privity with a party to the prior proceeding; and 4) the opportunity to present the claim in the prior proceeding was full and fair. Miller v. Indiana Hospital, 562 F.Supp. 1259, 1279 (W.D.Pa.1983) (citing Scooper Dooper, Inc. v. Kraftco Corp., 494 F.2d 840, 844 (3d Cir.1974)).

We have no indication, on the basis of a one-sentence order, as to the basis of the court’s denial of Plaintiff’s Motion to Return Property in the state court proceedings. We certainly cannot say, as defendants assert, either that the state’s court order is dispositive of the issue of whether defendants acted properly under state law, or whether such a finding should be given collateral estoppel effect in Plaintiff’s federal civil rights action.

C. Mootness

Defendants also argue that plaintiff’s claims for injunctive and declaratory relief are moot because Plaintiff’s property has been destroyed. Defendant’s Brief, at 3. We decline to rule on this argument in the context of a 12(c) motion. We note only that Defendants are asserting that the relief requested is inappropriate; we prefer to reserve such decisions until after a decision on the merits.

D. The Seizure and Destruction Were Proper

35 Pa.Stat.Ann. § 1271 provides that

The term “fireworks” shall mean and include any combustible or explosive composition or any substance or combination of substances, or, except as hereinafter provided, any article prepared for the purpose of producing a visible or an audible effect by combusion, explosion, deflagration or detonation, and shall include blank cartridges and toy cannons in which explosives are used, the type of balloons which require fire underneath to propel the same, firecrackers, torpedoes, skyrockets, Roman candles, aerial fireworks, or other fireworks of like construction, and any fireworks containing any explosive or flammable compound or any tablets or other device containing an explosive substance.
The term “fireworks” shall not include sparklers, toy pistols, toy canes, toy guns, or other devices in which paper caps containing twenty-five hundredths grains or less of explosive compound are used, providing they are so constructed that the hand cannot come in contact with the cap when in place for the explosion, and toy pistol paper caps which contain less than twenty hundredths grains of explosive mixture, the sale and use of which shall be permitted at all times, nor shall the term “fireworks” include toy cannons which operate on the principle of mixing calcium carbide, weighing less than one tenth of an ounce, and water in the reservoir of the cannon and in which ignition results upon the creation of a spark.

The statute makes it unlawful to offer for sale, expose for sale, sell at retail, or use or explode any fireworks. 35 Pa.Stat.Ann. § 1272. “Competent operators,” however, may be approved by local governing bodies to display fireworks under certain conditions. Id. Sale of nonprohibited fireworks are not forbidden if sold by resident dealers, wholesalers, or jobbers, nor is the sale of any kind of fireworks prohibited if shipped directly out of state, or if the fireworks are to be used by a person holding a permit from a municipality. Id. § 1275. Fireworks are also permitted for agricultural use, use by railroads or other transportation agencies for signal purposes, or. for certain carefully specified other uses. Id. The Pennsylvania State Police, or any sheriff, police officer, or constable, are empowered to “seize, take, remove, or cause to be removed” fireworks held, sold, or used in violation of the Act. Id. § 1276.

Defendants state that “[a] review of Exhibit 1 shows that the items in question fall within [the broad definition of fireworks contained in 35 Pa.Stat.Ann. § 1271].”

Section 1271 excludes certain specified items from the definition of “fireworks.” Among these are “sparklers ... or other devices in which paper caps containing twenty-five hundredths grains or less of explosive compound... [or] toy cannons [meeting certain specified requirements].” Examining Exhibit 1, we note that among the items listed are 360 packs of “Morning Glory Sparklers.” On the basis of the pleadings, this Court cannot say either that the items in Plaintiffs possession were “fireworks” or that the destruction was proper. More importantly, the issue here is not whether the defendants acted properly under state law, but whether the actions taken under the alleged procedures of the Allegheny County Police Department satisfy federal constitutional standards. See Schultz v. Baumgart, 738 F.2d 231, 236 (7th Cir.1984).

Because we consider judgment on the pleadings inappropriate under each of the four theories asserted, we will deny Defendant's Motion.

ORDER

AND NOW, to-wit, this 14th day of August, 1985, it is hereby ORDERED, ADJUDGED and DECREED that Defendant’s Motion be and hereby is DENIED.


author: WEXLER, District Judge.

text:
    William HARTMANN, Joseph Bernagozzi, Joseph Naples, George Agnostakios & Charles Arnao, and “Jane Doe” and “John Doe”, who are Vietnam Veterans (whose names are unknown) individually and on behalf of others similarly situated, Plaintiffs, v. The UNITED STATES of America, the Veterans Administration of the United States, Harry Walters, as Administrator of the Veterans Administration, its officers, agents, employees and all those acting in concert with it, Defendants.
    No. CV 85-2728.
    United States District Court, E.D. New York.
    Aug. 14, 1985.
    Solotoff & Spivak, by Lawrence Solotoff, Great Neck, N.Y., for plaintiffs; Pegalis & Wachsman by Harvey F. Wachsman, Great Neck, N.Y., of counsel.
    Raymond J. Dearie, U.S. Atty. by Anne E. Stanley, Asst. U.S. Atty., Brooklyn, N.Y., for defendants.
   WEXLER, District Judge.

Plaintiffs bring this action against the United States government, the Veterans’ Administration (“V.A.”), its Administrator, and its employees and agents. The defendants will be denominated simply as the V.A. Plaintiffs Hartmann, Bernagozzi, and Naples are Viet Nam veterans who earlier filed malpractice suits against the V.A. under the Federal Tort Claims Act alleging failure to diagnose and treat them for filariasis. Plaintiffs Agnostakios and Arnao do not appear to have filed malpractice claims and no particular factual allegations are made with respect to their condition and treatment. While the complaint clearly indicates an intention to seek class certification for all Viet Nam veterans suffering from filariasis, a formal application for class certification has not been made or granted. Accordingly, this is not yet a class action.

Filariasis is a disease caused by a minute parasitic worm endemic to parts of Viet Nam and transmitted by certain species of mosquito. The symptoms can be quite horrible and include swelling of the lymph glands, legs, and genitalia, joint pain, night sweats, and rashes that become so severe as to look like “chopped meat.” Detection of the disease can be difficult, but is done by blood test or observation of a reaction to the drug used to treat the disease, Hetrazan. Allegedly, there are World War II veterans who were treated for filariasis, and treatment with Hetrazan is neither difficult or expensive.

Plaintiffs seek mandamus, declaratory and equitable relief pursuant to 28 U.S.C. § 2201, 2202, and 1361. They allege violation of equal protection under the Fifth Amendment, and violation of the Ninth Amendment and the Veterans’ Benefit Act, 38 U.S.C. §§ 601 and 5001. Plaintiffs ground jurisdiction in 28 U.S.C. § 1331 and § 1346(a)(2), and 5 U.S.C. § 702. In essence, they ask that this Court order the V.A. to provide diagnostic testing and correct treatment for filariasis in Viet Nam veterans. Plaintiffs contend that as Viet Nam veterans they are not receiving the medical care for filariasis that World War II veterans receive and that the V.A. thus violates their right to equal protection under the Constitution and their right to benefits provided by federal statute. They seek a preliminary injunction ordering the V.A. to test and treat for filariasis veterans already deemed eligible for medical care by the V.A.

Defendant opposes the grant of preliminary equitable relief and cross-moves for dismissal, asserting that this Court lacks subject matter jurisdiction. Rule 12(b)(1), Fed.R.Civ.P. Plaintiffs, in turn, contend that the Court does have jurisdiction to hear and decide their claims.

I.

Congress has explicitly limited the courts’ jurisdiction to review the V.A. Administrator’s decisions of fact and law. As provided by 38 U.S.C. § 211:

(a) On and after October 17, 1940, except as provided in sections 775, 784, and as to matters arising under chapter 37 of this title, the decisions of the Administrator on any question of law or fact under any law administered by the Veterans’ Administration providing benefits for veterans and their dependents or survivors shall be final and conclusive and no other official or any court of the United States shall have power or jurisdiction to review any such decision by an action in the nature of mandamus or otherwise.

Clearly, as a rule the federal courts lack the power to review the actions of the V.A.

There are, however, exceptions to the rule. In Johnson v. Robison the United States Supreme Court held that § 211(a) is not a bar to judicial review of constitutional claims. 415 U.S. 361, 94 S.Ct. 1160, 39 L.Ed.2d 389 (1974). In that case the constitutional question before the Supreme Court was whether conscientious objectors who performed alternative service, instead of military service as draftees, were entitled to veterans’ benefits. The conscientious objectors contended that to deny them benefits denied them equal protection under the law. U.S. Const. amend. V. The government argued that § 211(a) deprived the Supreme Court of jurisdiction to review the constitutionality of the statutory provisions at issue.

In rejecting the government’s argument the Court concluded that Congress intended to insulate the day-to-day policy decisions of the V.A. from judicial review and identified the two primary purposes of § 211(a):

(1) to' insure that veterans’ benefits claims will not burden the courts and the Veterans’ Administration with expensive and time-consuming litigation, and (2) to insure that the technical and complex determinations and applications of Veterans’ Administration policy connected with veterans’s benefits decisions will be adequately and uniformly made.

Id. at 370, 94 S.Ct. at 1167 (footnotes omitted). Nevertheless, the Court reasoned that in view of the legislative purpose, the proper construction of the no-review clause allowed the federal courts to review constitutional challenges to veterans’ benefits law. Id. at 373, 94 S.Ct. at 1169.

More recently, the United States Court of Appeals for the Sixth Circuit extended the rationale in Johnson to allow review of agency regulations promulgated by the Administrator of the V.A. In Wayne State University v. Cleland the plaintiff university contested the validity of V.A. regulations defining a full-time course of study that qualifies for educational assistance benefits under 38 U.S.C. § 1788(a)(4). 590 F.2d 627 (6th Cir.1978). At issue was the agency requirement of at least twelve “standard classroom sessions” per week for qualification as a full-time study program. The Wayne State program called for television broadcast lectures and compressed much of the classroom time into several lengthy weekend sessions. The plaintiff university contended that the V.A. regulations were a redefinition of the statute that exceeded the Administrator’s authority.

The Court of Appeals held that suits challenging the V.A.’s authority to promulgate regulations are not barred by 38 U.S.C. § 211(a). The Court based its holding on the Johnson analysis of the purposes of § 211(a), reasoning that judicial review of promulgated regulations neither resulted in a multiplicity of burdensome suits against the V.A. nor involved the courts in complex and technical aspects of agency policy. The Court of Appeals extended the application of the analysis in Johnson to conclude that review of regulatory authority did not call for involvement in day-to-day operations of the V.A. and did not interfere with uniform administration of policy to particular cases, and therefore was not prohibited by § 211(a).

In sum, the Supreme Court and Sixth Circuit have articulated two exceptions to the jurisdictional restriction of § 211(a). In so doing they particularly sought to avoid an unconstitutional construction of the clause. Hence, under Johnson the courts can review the constitutional claims under the veterans’ benefits statutes and under Wayne State they can review the quasi-legislative actions of the Administrator. In order for the plaintiffs in the instant ease to maintain their action it must fall within an exception to the no-review bar. Clearly, plaintiffs are not challenging a specific agency regulation and thus can not rely on the regulatory review exception to § 211(a). They do attempt, however, to frame their claim as one for equal protection or as otherwise calling for relief that does not impinge on the primary purposes of agency insulation described in Johnson. In this they fail.

II.

Plaintiffs seek to cast their claim as one for equal protection. They rely heavily on Falter v. Veterans’ Administration, 502 F.Supp. 1178 (D.N.J.1980), for the proposition that veterans receiving treatment at V.A. medical facilities have a judicially reviewable claim arising under the Constitution when their treatment is substantially different from or unequal to treatment received by other veterans. From this general statement of the Falter case the plaintiffs ask the Court to reason that since World War II veterans are getting correct treatment for filariasis and Viet Nam veterans are not, the latter group’s right to equal protection is violated. Such a distillation of the holding in Falter ignores the facts and declared limited application of the principle of equal protection in the case.

In Falter, Judge Ackerman found that the conditions of living at the V.A. medical center in Lyons, New Jersey violated veterans' equal protection rights. Judge Ackerman did not review medical treatment at the facility but limited his review of the V.A.’s activities to what amounted to conditions of confinement, a well-recognized area of constitutional claims. Specifically, Judge Ackerman held that the plaintiff vetefans had judicially reviewable claims against the V.A. concerning access to postage stamps, telephones, property lockers, and issues of personal privacy.

Finding the § 211(a) restriction on judicial review inapplicable, Judge Ackerman declared:

[T]he present case remains an unusual equal protection case insofar as it raises issues not relating to inequalities created by legislative acts or by administrative rule-making but rather to unequal administration of benefits such that individuals who are ostensibly entitled to receive identical benefits under the law are in fact receiving substantially different treatment depending upon where they go to receive these benefits.

502 F.Supp. at 1185-86. Nevertheless, he explicitly excluded the provision of medical treatment from consideration under an “unequal administration of benefits” analysis, declaring:

When I say that they are treated differently I am not referring to the substance of their medical or psychiatric treatment, I am referring to how they are treated as human beings.

Id. at 1185. Judge Ackerman deliberately differentiated between the extension of judicial review to the “selfhood” of the patient, id. at 1189, and the “clearly non-reviewable situation where a veteran claims that the V.A. failed to extend benefits that it has a statutory obligation to provide to that veteran,” id. at 1181.

Judge Ackerman, then, used the Supreme Court’s rationale in Johnson as the basis for a third exception to the § 211(a) jurisdictional bar. In addition to the statutory review of Johnson and regulatory review of Wayne State, Judge Ackerman held that § 211(a) did not preclude jurisdiction over claims of basic rights to liberty and property rising to the level of a constitutional claim for equal protection. At the same time, he particularly refused to frame disparaties in delivery of medical care as equal protection issues subject to judicial review. Applying the rationale in Johnson, he concluded that decisions about medical care were the sort of quasi-adjudicatory, day-to-day determination and administration of policy properly insulated from review by § 211(a). Plaintiffs’ reliance on Falter, therefore, is misplaced.

Instead the Court finds guidance in Judge Pratt’s decision in Ryan v. Cleland, 531 F.Supp. 724 (E.D.N.Y.1982). The case is on point, although plaintiffs argue otherwise. It is unnecessary for this Court to recapitulate Judge Pratt’s thorough analysis. Briefly, in Ryan a group of Viet Nam veterans sought a wide range of declaratory and injunctive relief aimed generally at forcing V.A. recognition and treatment of the consequences of Viet Nam veterans’ exposure to dioxin. The V.A. interposed the § 211(a) no-review clause as a bar to the Court’s jurisdiction over the action. After careful consideration, Judge Pratt concluded that the claim for entitlement to medical benefits did not “sink to the level of a constitutional violation.” Id. at 732-33. Applying the Supreme Court’s reasoning in Johnson, Judge Pratt held that review of the V.A.’s provision of medical care for dioxin exposure required precisely the judicial review of administrative determinations prohibited by the letter and purpose of § 211(a). Id. at 730-31. Accordingly, he dismissed the veterans’ suit for lack of jurisdiction.

Plaintiffs seek to distinguish Ryan on the ground that the issue there was eligibility where as here the veterans have been deemed eligible for medical care but are not receiving equal treatment. The point is too fine. In both cases the veteran groups contended that the V.A. was giving inadequate diagnoses and treatment and asked the Court to order the agency to provide specific tests and care. In any event, whether the issue is eligibility for V.A. treatment or choice of a type of test or treatment, it remains an administrative determination of how particular cases will be handled and therefore falls within the insulated category of quasi-adjudicatory decisions. In neither instance can the issue correctly be cast as one of the three exceptions to the § 211(a) jurisdictional bar. Nor can the concept of constitutionality articulated in Johnson or Falter be stretched further to cover the plaintiffs’ claim here.

III.

While the statute and case law are not complex, the decision in this case remains vexing. The Viet Nam veterans fought for their country under hard conditions. In recent months military and V.A. hospitals have been charged publicly with inadequate but unnecessarily costly medical care. This ease would appear to be one more instance of the poor thanks we extend to our veterans and servicemen.

Nevertheless, the application of the statute is clear. Review of the treatment decisions made by the V.A. is barred by 38 U.S.C. § 211(a). This Court lacks jurisdiction to hear and decide any of the matters plaintiffs seek to plead in this action.

Accordingly, the action is dismissed for lack of jurisdiction, 38 U.S.C. § 211(a). The Clerk of the Court is directed to enter judgment dismissing the complaint. The parties are to bear their own costs.

      . Benagozzi v. U.S.A., CV 85-1121; Hartmann v. U.S.A., CV 85-1122; Naples v. U.S.A., CV 85-1123.

      . Diethylcarbamazine or "DEC".

      . The Supreme Court decided that denial of veterans’ benefits to conscientious objectors was not a violation of equal protection.

      . The Court of Appeals held that the Administrator had authority to promulgate the regulations in question.

      . Although the complaint is vague on the point, insofar as relief is sought for failure to inform Viet Nam servicemen of the risk of filariasis and properly treat them while in the service, that claim is barred by the Feres doctrine.


author: SPRIZZO, District Judge:

text:
    Ted KATSAROS, on his own behalf and on behalf of all persons similarly situated, Plaintiff, v. TRANSIT-MIX CONCRETE CORPORATION and Local 282, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Defendants.
    No. 81 Civ. 5230 (JES).
    United States District Court, S.D. New York.
    Aug. 14, 1985.
    Hall, Clifton & Schwartz, New York City, for plaintiff; Daniel E. Clifton, New York City, of counsel.
    Altieri, Kushner & Miuccio, New York City, for defendant Transit-Mix; Robert F. Meehan, New York City, of counsel.
    O’Connor & Mangan, P.C., Long Island City, N.Y., for defendant Local 282, Intern. Broth, of Teamsters, Chauffeurs, Ware-housemen and Helpers of America; J. Warren Mangan, Long Island City, N.Y., of counsel.
   OPINION & ORDER

SPRIZZO, District Judge:

Plaintiff Ted Katsaros brings this action against his employer Transit-Mix Concrete Corporation (“Transit Mix”) for breach of its collective bargaining agreement in violation of section 301 of the Labor Management Relations Act, 29 U.S.C. § 185, and against Local 282 of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (“the Union”) for breach of its duty of fair representation.

The facts of the case are set forth in this Court’s previous Opinion and Order, see Katsaros v. Transit-Mix Concrete Corp., 585 F.Supp. 576 (S.D.N.Y.1984), and will not be repeated herein except as necessary to resolve the instant motion. By that Order, the Court dismissed the first and second claims of plaintiff’s complaint as time-barred, and granted leave to file an amended pleading. Plaintiff did so, and upon defendants’ motion, and after an evidentiary hearing, the Court dismissed the first and second claims of the amended complaint as time-barred. Plaintiff now moves for reargument of that dismissal.

Plaintiff was employed by Colonial Sand and Stone Co. (“Colonial”) in 1976 when most of Colonial’s assets were purchased by Transit-Mix. Pursuant to the relevant collective bargaining agreement, Colonial employees like plaintiff who were not immediately given work with Transit-Mix were placed at the end of the Transit-Mix seniority list, and were advised by the Union and by Transit-Mix that they would be notified of available work when their name reached the top of the list. Plaintiff was never notified of any available work, although he alleges others who were listed after him on the seniority list were given work. He commenced this action on August 21, 1981.

The claims at issue herein relate to the alleged failure of Transit-Mix to hire in accordance with the seniority list, and the allegedly inadequate representation by the Union at an arbitration held with respect to hiring from the seniority list. The Court dismissed these claims as barred by the six-month statute of limitations applicable to such actions pursuant to DelCostello v. International Brotherhood of Teamsters, 462 U.S. 151, 155, 103 S.Ct. 2281, 2285, 76 L.Ed.2d 476 (1983), because the Court found that plaintiff’s claims accrued, at the very latest, when plaintiff filed charges with the National Labor Relations Board (“NLRB”) in June 1980 and the present action was filed more than a year later in August 1981. Since the NLRB charges were essentially similar to those upon which this action is based, it is clear that as of June 1980, plaintiff knew or reasonably should have known of all the facts which are the factual predicate for his present action. Therefore, the instant action is untimely. See, e.g., Santos v. District Council of New York City, 619 F.2d 963, 969 (2d Cir.1980); Former Frigidaire Employees Association v. International Union of Electrical, Radio and Machine Workers, 573 F.Supp. 59, 62 (S.D.Ohio 1983).

Plaintiff now contends that the statute of limitations should have been tolled during the pendency of the NLRB proceedings, because those proceedings raised the same issues that plaintiff complains of here. Plaintiff argues that the NLRB proceedings placed defendants on notice of his claims, and therefore under the rationale of Burnett v. New York Central Railroad Co., 380 U.S. 424, 85 S.Ct. 1050, 13 L.Ed.2d 941 (1965), American Pipe and Construction Co. v. Utah, 414 U.S. 538, 94 S.Ct. 756, 38 L.Ed.2d 713 (1974), and Retail Clerks Union Local 648, AFL-CIO v. Hub Pharmacy, Inc., 707 F.2d 1030 (9th Cir.1983), the limitations period should be tolled.

The Court rejects this argument. The cases relied upon by plaintiff are factually and legally distinguishable. In Burnett, the plaintiff commenced a judicial action under the Federal Employers’ Liability Act in state court. The defendants were served in the state action. The state court dismissed the complaint for improper venue, whereupon plaintiff promptly brought an identical action in federal court. Under those circumstances, the Supreme Court held it was consistent with congressional intent to toll the federal statute of limitations during the pendency of the state action. See 380 U.S. at 427-28, 85 S.Ct. at 1054. The Court noted that “the filing of a lawsuit ‘itself shows the proper diligence on the part of the plaintiff which ... statutes of limitation were intended to insure.’ ” Id. at 430, 85 S.Ct. at 1056 (quoting Goldlawr Inc. v. Heiman, 369 U.S. 463, 467, 82 S.Ct. 913, 916, 8 L.Ed.2d 39 (1962)).

American Pipe also involved a tolling of the statute of limitations during the pend-ency of a previous judicial action. In that case, a class action was timely commenced which encompassed plaintiffs’ claims. The trial judge subsequently ruled that the action could not be maintained as a class action because, although the other requirements of Fed.R.Civ.P. 23 were satisfied, the plaintiff class was not so numerous as to make joinder impracticable. Eight days later, more than sixty parties who had been putative members of the original class moved to intervene as plaintiffs. The Court held that the purported class members had originally “stood as parties to the suit,” see 414 U.S. at 550-51, 94 S.Ct. at 765, and that “the commencement of the action satisfied the purpose of the limitation provision as to all those who might subsequently participate in the suit as well as for the named plaintiffs.” Id. at 551, 94 S.Ct. at 765.

Finally, Retail Sales is also inapplicable. That case did not involve a hybrid section 301/fair representation claim, but only sought relief pursuant to section 301. Therefore, state law governed the limitations and tolling provisions. As the Supreme Court noted in DelCostello, cases which apply state law do not apply here, see 462 U.S. at 162-63, 165, 103 S.Ct. at 2289, 2291, (distinguishing Auto Workers v. Hoosier Cardinal Corp., 383 U.S. 696, 86 S.Ct. 1107, 16 L.Ed.2d 192 (1966)), because federal law governs limitations in hybrid actions. See id., 462 U.S. at 162, 103 S.Ct. at 2289, passim.

In the instant case, plaintiff brought no judicial action prior to the commencement of this suit. The only previous proceeding was an investigatory action brought and prosecuted by the NLRB, which is very different from a lawsuit brought by plaintiff to protect plaintiff’s rights. The fact that the NLRB charges contained similar allegations to those made in this action is insufficient in itself to toll the limitations period, and did not notify defendants that they would have to defend against similar charges in federal court after the NLRB proceedings were concluded.

It follows that plaintiff’s motion must be denied.

It is SO ORDERED.

      . Plaintiff also complains of the Union's failure to notify him that this arbitration was taking place, and failure to notify him of the arbitrator's award. As the Court ruled in its previous Opinion and Order, these claims are time-barred. See Katsaros, supra, 585 F.Supp. at 578-79.

      . Plaintiff’s charges to the NLRB alleged that Transit-Mix and the Union "contrived a fraudulent arbitration proceeding and decision” and kept knowledge of both from plaintiff and other former Colonial employees. See Memorandum in Support of Plaintiff's Motion for Reargument, Appendix A. Plaintiff testified at the evidentiary hearing held before this Court that the bases for his NLRB charges were the Union's faulty representation at the arbitration and the fact that plaintiff suspected collusion between the Union and Transit-Mix. See Transcript of September 5, 1984 Hearing ("Tr.") at 18-21, 23-24, 71. Plaintiff stated that he had discussed these things with his attorney at the time of filing the charges. See id. at 17, 27-28, 43, 75.

      . The Court also noted that given the fact that under other similar circumstances -FELA actions commenced in improper venues tolled the limitations period, failure to toll the statute of limitations in this case would result in a nonuniform limitation period, and that this would violate the purposes behind a federal limitations provision. See 380 U.S. at 430-32, 85 S.Ct. at 1055-56.

      . The Court noted that:
      no different a standard should apply to those members of the class who did not rely upon the commencement of the class action (or who were even unaware that such a suit existed) and thus cannot claim that they refrained from bringing timely motions for individual intervention or joinder because of a belief that their interests would be represented in the class suit. Rule 23 is not designed to afford class action representation only to those who are active participants in or even aware of the proceedings in the suit prior to the order that the suit shall or shall not proceed as a class action. During the pendency of the District Court’s determination in this regard, which is to be made 'as soon as practicable after the commencement of an action,’ potential class members are mere passive beneficiaries of the action brought in their behalf. Not until the existence and limits of the class have been established and notice of membership has been sent does a class member have any duty to take note of the suit or to the exercise any responsibility with respect to it in order to profit from the eventual outcome of the case. It follows that even as to asserted class members who were unaware of the proceedings brought in their interest or who demonstrably did not rely on the institution of those proceedings, the later running of the applicable statute of limitations does not bar participation in the class action and in its ultimate judgment.
      414 U.S. at 551-52, 94 S.Ct. at 765 (footnote omitted).

      . Moreover, plaintiff testified that one of the reasons he decided not to commence any judicial action during the NLRB proceedings was the fact that he had no money to prosecute his own lawsuit, while his understanding was that an NLRB investigation would involve no cost to him. See Tr. at 26-28. While there is nothing wrong with making such a decision, it would not be consistent with the policy obligations served by statutes of limitations to allow a plaintiff to impose upon a defendant the consequences of that choice by extending the time in which a judicial action may be timely commenced. This is especially true since, as plaintiff testified, his decision to belatedly commence a judicial proceeding was in no way related to the NLRB proceedings.


author: PENCE, Senior District Judge.

text:
    Duane A. SMITH, Plaintiff, v. STATE FARM INSURANCE COMPANY, Defendant.
    Civ. No. 85-0527.
    United States District Court, D. Hawaii.
    Aug. 15, 1985.

      Gill Park Park & Kim, Gordon Kim, Arthur Y. Park, Honolulu, Hawaii, for plaintiff.
    Kobayashi, Watanabe, Sugita & Kawashima, James Kawashima, Randall Y. Yamamoto, Honolulu, Hawaii, for defendant.
   DECISION AND ORDER DENYING MOTION TO REMAND

PENCE, Senior District Judge.

Facts

On Sept. 16, 1978, Duane A. Smith was seriously injured when a car crashed in which he was a passenger. The car was driven and owned by Leonard Barbieto. State Farm, Barbieto’s no-fault insurer, paid Smith its policy limit of $15,000.

Smith’s parents had a no’-fault insurance policy with the same insurer, State Farm, on their car. This policy covered Smith up to $50,000. When the Barbieto no-fault policy was exhausted, State Farm paid Smith $35,000 on his parents’ policy under the Hawaii no-fault statute, H.R.S. chapter 294. State Farm refused to pay the balance of the policy, $15,000.

Under H.R.S. section 294-5(d), the policy primarily applicable to Smith’s medical expenses was that covering the vehicle occupied by the injured person at the time of the accident, or Barbieto’s vehicle. In denying Smith’s claim for the balance of the policy, State Farm relied on paragraph 4 of the “Conditions” portion of the policy, which provided that policies other than the primary one “shall apply as excess to the extent their respective aggregate limits exceed those of the primary policy.” The clause added that “the maximum recovery under all insurance” was the “amount which would have been payable under the provisions of the insurance providing the highest dollar limit____”

On May 14, 1985, Smith sued in state court for a declaratory judgment that State Farm owed him the additional $15,000 on his parents’ policy. On June 5, 1985, State Farm filed a petition for removal to this court under 28 U.S.C. sections 1332, 1441, 1446. Before this court today is Smith’s motion for remand.

Analysis

Smith advances two grounds to support his argument that the case should be remanded to state court.

I

28 U.S.C. section 1332(c)' provides in pertinent part:

For the purpose of this section ... a corporation shall be deemed a citizen of any state by which it has been incorporated and of the state where it has its principal place of business: Provided further, That in any direct action against the insurer of a policy or contract of liability insurance.. .to which action the insured is not joined as a party defendant, such insurer shall be deemed a citizen of the state of which the insured is a citizen____

As plaintiff herein, Smith, the insured, is, obviously, not joined as a defendant. Urging that the above quoted language be read literally, he argues that there is no diversity jurisdiction because State Farm should be considered a citizen of the same state as the insured.

Smith cites several cases in support of his contention. They are not in point. In none of them did plaintiff sue his own insurance company. For example, in McMurry v. Prudential Property and Casualty Ins. Co., 458 F.Supp. 209 (E.D. Mich.1978), the court held that section 1332(c), supra, applied to no-fault cases because they were direct actions. However, the insured was not the plaintiff. Properly, section 1332(c) applies in third-party tort liability eases, in which the insured is the defendant-tortfeasor, not the plaintiff-victim who is suing his own insurer on a contract theory. Thornton v. Allstate, 492 F.Supp. 645 (E.D.Mich.1980).

State Farm covered the vehicles of both the driver, Barbieto, and the plaintiff, Smith. That its liability to Smith may have arisen in the first place because of the possible negligence of a third party, Barbieto, does not dispose of the issue. The extent of the insurer’s liability to Smith on Smith’s family’s own policy is the subject of this action. State Farm is not an insurer of a third party with respect to the particular policy sued upon.

Smith’s reading would, of course, automatically destroy diversity jurisdiction in every case where an insured sued his insurer. Common sense dictates against this result, as does the very wording of section 1332(c). The statute refers to cases in which the insured is not joined as a defendant. This plainly was not meant to cover a case where the insured is the plaintiff.

This court holds that section 1332(c) does not apply to destroy its diversity jurisdiction in this case.

II

Smith also urges that the state courts be allowed to rule on whether the policy language on which the insurer relied in denying payment of the last $15,000 is valid under the Hawaii no-fault law. In Yamaguchi v. State Farm, 706 F.2d 940 (9th Cir.1983), the court held that the no-fault statute permits stacking. In light of this development, argues Smith, the state courts should provide the definitive ruling on a policy provision which limits overall secondary recovery.

Generally, the validity and construction of an insurance contract is determined by the law of the state where the contract was made. Lowery v. Kovac, 320 F.Supp. 215 (D.Ct.1970).

A federal court may abstain from exercising its jurisdiction if it believes that an important, unsettled issue of state law is involved, and that the incorrect resolution of that issue would threaten important state policies. Miller-Davis Co. v. Illinois State Toll Highway Authority, 567 F.2d 323 (7th Cir.1977).

A federal court will abstain from hearing diversity declaratory judgment actions for construction of an insurance policy only if doubtful, unresolved state law issues are present in a field of law where the state has shown its interest by significant legislative activity and administrative regulation. Smith v. Metropolitan Property & Liability Ins. Co., 483 F.Supp. 673 (D.Ct.1980).

Smith acknowledges that the issue before this court was resolved adversely to his position in Yamaguchi, supra. In that case, the primary insurer of the car in which the injured passenger was riding paid its policy limit of $15,000. The injured passenger had no-fault coverage on two cars of $50,000 each. This court awarded the passenger $100,000, 515 F.Supp. 186 (Shiro Kashiwa, J., Court of Claims, sitting by designation). On appeal, this was reduced to $35,000, giving effect to limiting policy language similar to that here.

The decision was contrary to an earlier ruling by the state Supreme Court on a similar, although not identical, issue. In Walton v. State Farm, 55 Hawaii 326, 518 P.2d 1399 (1974), the insured passenger was injured in an accident in which the other car was driven by an uninsured motorist. The passenger received the policy limit of $10,000 in uninsured motorist benefits from the driver’s carrier. His insurer declined to pay him its own $10,000 uninsured motorist benefit. It relied on language in its policy specifying that the policy provided only excess coverage over other applicable insurance. The court held this limiting language invalid as repugnant to the uninsured motorist statute, H.R.S. 431-448, which required insurers to offer uninsured motorist coverage.

Obviously, the Walton court construed a different statute from that in Yamaguchi. Yet, the Walton holding illustrates the Hawaii Supreme Court’s disapproval of language in secondary insurance policies limiting liability to the amount by which their coverage exceeds that afforded' by other applicable policies. Yamaguchi and the instant case raise the same issue. If Walton were followed, the state courts might possibly rule contrary to Yamaguchi on this issue.

Smith also points out that if the case is not remanded, the issue may never be decided by the Supreme Court of Hawaii because insurance companies will always remove such cases as this to federal court.

Nonetheless, this court declines to remand the case to state court. While the state court in Walton and the federal court in Yamaguchi decided not dissimilar issues differently, this court believes that Yamaguchi squarely interpreted the Hawaii no-fault law at issue in this case. As it is this Circuit’s precedent, Yamaguchi is binding on this court. Hasbrouck v. Texaco, 663 F.2d 930, 933 (9th Cir.1981). Even though Yamaguchi is not binding on the state court, the issue cannot be considered unresolved.

The state has, of course, shown its interest in the subject of no-fault insurance by enacting a detailed no-fault statute. However, this court finds nothing in the record to support Smith’s argument that applying federal case law, which is the only authority squarely in point, to resolve the question presented would threaten any significant state policy evidenced by the passage of the no-fault statute or by state administrative regulation thereunder.

It is ORDERED that Smith’s motion to remand be, and it hereby is, DENIED.