author: TASHIMA, District Judge.

text:
    Gerry Lee ZAKS, Plaintiff, v. AMERICAN BROADCASTING COMPANIES, INC., et al., Defendants.
    No. CV 85-6779 AWT.
    United States District Court, C.D. California.
    Dec. 10, 1985.

      Leroy S. Walker and Peter F. Laura, Los Angeles, Cal., for plaintiff.

      William S. Waldo, Paul, Hastings, Janofsky & Walker, Los Angeles, Cal., for defendants.
   MEMORANDUM ORDER OF PARTIAL REMAND

TASHIMA, District Judge.

This action was commenced in state court and removed here by two of the 16 named defendants. Upon examination of the petition for removal (the “petition”) and its supporting documents, the Court issued an order to show cause (“OSC”) why this action should not be remanded to state court. The issues raised by the OSC have now been fully briefed and argued. As set forth below, I conclude that all but two of the claims against defendant American Broadcasting Companies, Inc. (“ABC”) should be remanded.

Without recounting the allegations of the First Amended Complaint (the “complaint”) in detail, plaintiff alleges that while an employee of ABC over a period of many months he was subjected to harassment, vandalism, abusive conduct, assault and battery, culminating in being stabbed in the back and arm by a fellow employee and stuffed unconscious into a closet by fellow workers because of his homosexual orientation. Based on these allegations, the complaint asserts ten causes of action. These claims and the defendants against whom they are directed are:

1. Breach of contract between ABC and defendant California Plant Protection, Inc., of which plaintiff was a third-party beneficiary.

2. Breach of implied-in-fact employment contract between plaintiff and ABC.

3. Assault against ABC and five named defendants who are ABC employees. (Here, as in the rest of the listing, I ignore claims against fictitious defendants.)

4. Battery against ABC and four of the five ABC employee-defendants named in the third claim.

5. Intentional infliction of emotional distress against ABC and all 14 individual defendants. Ten of the 14 are alleged to be managerial employees of ABC; the remaining four are those named in the third and fourth claims.

6. Negligence against all defendants.

7. Invasion of privacy against ABC and 13 individual defendants. (One managerial-level employee of ABC is not named.)

8. Violation of state constitutional privacy rights against ABC and the same 13 employee-defendants as are named in the seventh claim.

9. Wrongful termination of employment against ABC.

10. Violation of municipal ordinance prohibiting sexual orientation discrimination against ABC.

The petition was filed by ABC and one of the managerial employee-defendants, who were the only served defendants at that time. It asserts that the employment relationship between plaintiff and ABC was governed by a collective bargaining agreement (“CBA”). This assertion, that a CBA was in effect, is not controverted by plaintiff. The petition claims that on the basis of the CBA, federal question jurisdiction exists over the second, fifth and ninth claims under § 301 of the Labor Management Relations Act of 1947 (“LMRA”), 29 U.S.C. § 185. This result is invoked under the “artful pleading” doctrine, as applied in federal labor law preemption cases. See, e.g., Olguin v. Inspiration Consol. Copper Co., 740 F.2d 1468, 1472 (9th Cir.1984).

I agree with defendants that the second and ninth claims are “artfully pleaded” claims for breach of the CBA and, thus, arise under .§ 301 of the LMRA; as such, they are preempted by federal law under Olguin. Plaintiff, at oral argument, claimed that because defendants’ conduct violated a clearly established public policy of California, i.e., non-discrimination because of sexual orientation, the second and ninth claims also should escape preemption under Garibaldi v. Lucky Food Stores, Inc., 726 F.2d 1367 (9th Cir.1984), cert. denied, — U.S. -, 105 S.Ct. 2319, 85 L.Ed.2d 839 (1985); see Tameny v. Atlan tic Richfield Co., 27 Cal.3d 167, 164 Cal. Rptr. 839, 610 P.2d 1330 (1980). There is neither a statutory nor any other clearly articulated basis of support for such a policy. The case primarily relied on by plaintiff, Gay Law Students Ass’n v. Pacific Tel. & Tel. Co., 24 Cal.3d 458, 156 Cal.Rptr. T4, 595 P.2d 592 (1979), is clearly distinguishable. There, the court held that state constitutional and statutory provisions imposed a special duty on public utilities not generally applicable to private sector employment not to discriminate in employment against homosexuals. The court also held that the California Fair Employment Practices Act, then applicable to all employers generally, did not prohibit discrimination based on homosexuality or sexual orientation. Id. at 489-92, 156 Cal.Rptr. 14, 595 P.2d 592. Thus, I conclude that the Garibaldi exception does not apply to the second and ninth claims.

Defendants’ argument that the fifth claim for emotional distress also is preempted is based on two cases which hold emotional distress damages which are caused by discharge are preempted. 01-guin, 740 F.2d 1468; Magnuson v. Burlington N, Inc., 576 F.2d 1367 (9th Cir. 1978). Neither of those cases involved the assertion of clearly unpreempted claims and the emotional distress damages could arise only out of the termination itself. That is not the case at bar. Here, the emotional distress is linked more closely to the non-preempted claims than the preempted claims. Therefore, under the analysis of Allis-Chalmers Corp. v. Lueck, — U.S. -, 105 S.Ct. 1904, 1912, 85 L.Ed.2d 206 (1985), I conclude that this claim is not preempted.

For the first time at oral argument, repeated in its supplemental brief, defendants claimed that the sixth claim for negligence should be preempted. This contention was not made in the petition or in defendants’ initial response to the OSC. I repeat here defendants’ own words that “it is improper for this Court to even entertain the arguments first introduced by opposing counsel at the November 18 hearing.” (Defts’ Supp.Br. at 3.) The analysis with respect to the emotional distress claim applies here. The negligence claim is intertwined with the unpreempted claims, rather than with the preempted claims. Therefore, under Lueck it should not be preempted.

All of the claims as against ABC, except the second and ninth claims, must, under Farmer v. United Bhd. of Carpenters & Joiners, 430 U.S. 290, 97 S.Ct. 1056, 51 L.Ed.2d 338 (1977), be characterized as unpreempted. The tortious conduct alleged here is so outrageous that no national labor policy would be served by preempting these claims; no federal interest would be harmed by enforcement of the state-created rights here.

“Similar reasoning underlies the exception to the pre-emption rule in cases involving violent tortious activity. Nothing in the federal labor statutes protects or immunizes from state action violence or the threat of violence ... and thus there is no risk that state damages actions will fetter the exercise of rights protected by the NLRA ... And ... state-court actions to redress injuries caused by violence or threats of violence are consistent with effective administration of the federal scheme: Such actions can be adjudicated without regard to the merits of the underlying labor controversy.”

Id. at 299-300, 97 S.Ct. at 1063 (citations omitted). I conclude that preemption of the two clearly CBA-based claims is sufficient to protect any federal interest.

Finally, I add that NLRA preemption can only apply to claims against ABC, the employer who is the party to the CBA. Thus, in arguing for removal of the entire case (which defendants did initially, but now concede was not a well taken position) defendants are calling on this Court to exercise pendent party jurisdiction. Such jurisdiction does not exist in this circuit. Carptenters S. Cal. Admin. Corp. v. D & L Camp Constr. Co., 738 F.2d 999 (9th Cir.1984). Were this Court to have jurisdiction over any claim against any defendant other than ABC under 28 U.S.C. § 1441(c) as a “separate and independent claim,” I exercise my discretion not to retain jurisdiction over such claim and remand all of them to state court.

IT IS ORDERED that this action, except for the claims against defendant American Broadcasting Companies, Inc., made in the Second and Ninth Causes of Action in the First Amended Complaint For Damages, is remanded to the Superior Court of the State of California for the County of Los Angeles as having been removed improvidently and without jurisdiction. 28 U.S.C. § 1447(c).

Plaintiff and defendant ABC shall comply promptly with Local Rule 6 with respect to the non-remanded claims.


source: Caselaw Access Project

author: WILLIAM T. HART, District Judge.

license: Public Domain

text:
    M-F-G CORPORATION, an Illinois corporation, Plaintiff, v. EMRA CORPORATION, a California corporation, Dion, Inc., a California corporation, Robert Parsons and Julie Parsons, as individuals, Defendants.
    No. 84 C 10846.
    United States District Court, N.D. Illinois, E.D.
    Dec. 12, 1985.

      Jerome F. Fallon, John W. Chestnut, Til-ton, Fallon, Lungmus & Chestnut, Chicago, Ill., for plaintiff.
    William Van Santen, John Mortimer, Chicago, Ill., Bruce W. Schwab, George Schwab, Townsend & Townsend, San Francisco, Cal., for defendants.
   MEMORANDUM OPINION AND ORDER

WILLIAM T. HART, District Judge.

FACTS

Plaintiff M-F-G Corporation (“MFG”) is an Illinois corporation in the business of selling beauty and barber supplies primarily to the hair care industry. MFG sells a wide variety of products (approximately 1,500 items according to its 1984 10-K report to the SEC) through intermediaries such as barber supply houses and cosmetology and barber schools. Certain hair cutting scissors and replacement blades are sold by MFG under the trademark “SU-PERCUT” (see Fig. 1 in Appendix). The word “SUPERCUT” was originally registered by MFG as a trademark on the Supplemental Register in 1954. In 1975 MFG obtained registration No. 1,005,242 on the Principal Register for that same word.

Defendant EMRA Corporation (“EMRA”) is a California corporation and owns or franchises several hundred hair-cutting shops featuring the name “SUPER-CUTS” (see Fig. 2 in Appendix). EMRA opened the first such shop in 1975. EMRA also sells shampoo and conditioner to its customers which bear the name “SUPER-CUTS.” In 1983 one of EMRA’s distributors on the West Coast imported - 1,210 pairs of scissors bearing the EMRA “SU-PERCUTS” logo, some of which were used at the EMRA training center and some of which were sold to various “SUPERCUTS” shops.

Defendant Dion, Inc., is a California corporation involved in the operation of the “SUPERCUTS” shops. Defendants Robert and Julie Parsons are individuals doing business in Illinois under the name “SU-PERCUTS.” For purposes of these motions all defendants will be referred to collectively as EMRA.

MFG filed suit against defendants alleging violations of MFG’s rights under the following theories: (1) trademark infringement under the Lanham Act, 15 U.S.C. § 1051 et seq.; (2) violation of MFG’s common law rights in its trademark; (3) unfair competition; (4) false designation of origin under the Lanham Act; (5) dilution of the mark in violation of the Illinois Anti-Dilution Statute, Ill.Rev.Stat. ch. 140, § 22; and (6) deceptive trade practices in violation of the Illinois Deceptive Trade Practices Act, Ill.Rev.Stat. ch. 12U/2, §§ 312-313. MFG seeks injunctive relief and damages, as well as costs and fees.

EMRA asserts the affirmative defenses of laches, estoppel, acquiescence, and unclean hands. EMRA also asserts, as affirmative defenses, that MFG’s mark is a weak mark unknown to the general public and that EMRA adopted and continuously used the “SUPERCUTS” mark since prior to MFG's registration. EMRA also counterclaims, alleging unfair competition on the part of MFG in bringing the lawsuit and seeking declaratory relief.

Now EMRA has moved for summary judgment pursuant to Federal Rule of Civil Procedure 56 as to all issues presented in the complaint and Count III of the counterclaim, which seeks declaratory relief. MFG has moved for partial summary judgment on the question of whether EMRA infringed MFG’s trademark by using hair-cutting shears bearing the word “SUPER-CUTS.”

DISCUSSION

The Seventh Circuit has stated the standards for summary judgment:

Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment shall be granted if the record shows that ‘there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.’ It is clear that the party moving for summary judgment has the burden of establishing that there is no genuine issue of material fact.... ‘For the purpose of determining whether any material fact remains disputed, “the inferences to be drawn from the underlying facts ... must be viewed in the light most favorable to the party opposing the motion.” ’

Korf v. Ball State University, 726 F.2d 1222, 1226 (7th Cir.1984). However, the non-movant may not merely rely on conclusory statements to withstand summary judgment. In responding to a motion for summary judgment, the non-movant must set forth specific facts in affidavits or otherwise show that there are genuine issues that must be decided at trial. Posey v. Skyline Corp., 702 F.2d 102, 105 (7th Cir.), cert. denied, 464 U.S. 960, 104 S.Ct. 392, 78 L.Ed.2d 336 (1983). Courts will not strain to find a genuine issue where none exists. Kirk v. Home Indemnity Co., 431 F.2d 554, 559-60 (7th Cir.1970); Victory Pipe Craftsmen, Inc. v. Faberge, Inc., 582 F.Supp. 551, 554 (N.D.Ill.1984).

I. Trademark Infringement and EMRA’s Activities Other Than the Use of Scissors

Defendants contend that EMRA’s activities other than the use of scissors marked “SUPERCUTS” (which will be considered separately in part II, infra) do not infringe MFG’s trademark. They argue that MFG’s mark is weak and therefore has a narrow scope of protection, and that there is no likelihood of confusion between MFG’s “SUPERCUT” scissors and blades and EMRA’s use of the “SUPERCUTS” mark.

Section 32 of the Lanham Act, 15 U.S.C. § 1114, provides, in relevant part:

(1) Any person who shall, without the consent of the [trademark] registrant—
(a) use in commerce any reproduction, counterfeit, copy or colorable imitation of a registered mark in connection with which such use is likely to cause confusion, or to cause mistake, or to deceive ... shall be liable in a civil action by the registrant____

The central issue presented is whether EMRA’s use of “SUPERCUTS” is likely to cause confusion. Likelihood of confusion is an issue of fact. Union Carbide Corp. v. Ever-Ready, Inc., 531 F.2d 366 (7th Cir.), cert. denied, 429 U.S. 830, 97 S.Ct. 91, 50 L.Ed.2d 94 (1976). “In determining whether likelihood of confusion exists, courts consider such factors as the type of trademark in issue, the similarity of design, similarity of products, identity of retail outlets and purchasers, identity of advertising media utilized, defendants intent, and actual confusion.” Wesley-Jessen Div. of Schering Corp. v. Bausch & Bomb, Inc., 698 F.2d 862, 866 (7th Cir.1983); Union Carbide Corp., 531 F.2d at 381-82.

The first factor, “type of trademark,” is by far the most complex in a legal sense. Trademarks have been classified as “weak” or “strong” and also as being “distinctive” or not distinctive. See, e.g., Telemed Corp. v. Tel-Med, Inc., 588 F.2d 213, 219-20 (7th Cir.1978). In Telemed, The Seventh Circuit explained the importance of these classifications:

In essence, the distinctiveness and popularity of the trademark will determine its relative strength or weakness and will accordingly define the scope of protection to be accorded the mark against the confusing similarity of others. A mark is strong if it is conspicuously distinctive; it is distinctive if the public has already been educated to accept it as the hallmark of a particular source. Then too, a mark can be distinctive either because it is unique, that is, distinctive in itself, because it has been the subject of wide and intensive advertisement, or because of a combination of both.

Telemed, 588 F.2d at 219; Westward Coach Manufacturing Co. v. Ford Motor Co., 388 F.2d 627, 634 (7th Cir.) cert. denied, 392 U.S. 927, 88 S.Ct. 2286, 20 L.Ed.2d 1386 (1968); 3 R. Callman, Unfair Competition and Trademarks, § 82.1 at 1503-04 (2d ed.). The weaker the mark, the less the likelihood of confusion, and therefore the narrower the scope of protection. Telemed, 588 F.2d at 219. This protection may be limited to similar goods similarly marketed. Id. Only a strong mark will be protected against infringement arising out of its use in connection with noncompeting goods. Id.; Westward Coach, 388 F.2d at 634; 3 Callman, supra, § 82.1.

Under Telemed, a mark is “conspicuously distinctive” and therefore “strong”

1) because it is “unique” and therefore distinctive in itself,
2) because it has been the subject of wide and intensive advertisement, or

3) because of a combination of both. The “intrinsic” strength of a trademark is determined by placing it along a spectrum in which trademarks are classified as (1) generic or “common descriptive,” (2) “merely descriptive,” (3) suggestive, or (4) arbitrary or fanciful. Miller Brewing Co. v. G. Heileman Brewing Co., 561 F.2d 75, 79 (7th Cir.1977), cert. denied, 434 U.S. 1025, 98 S.Ct. 751, 54 L.Ed.2d 772 (1978). MFG contends that “SUPERCUT” as applied to scissors is “suggestive” while EMRA argues that it is “merely descriptive.” A “merely descriptive” term “specifically describes a characteristic or ingredient of an article” while a “suggestive” term “suggests rather than describes an ingredient or characteristic of the goods and requires the observer or listener to use imagination and perception to determine the nature of the goods.” Id. A merely descriptive mark is inherently much weaker than a suggestive mark and less deserving of protection. Telemed, supra, 588 F.2d at 217.

The “SUPERCUT” trademark is merely descriptive. Webster’s Third New International Dictionary defines the prefix “super” as “over and above: higher in quantity, quality, or degree” and the adjective “super” as “of a superfine grade or quality” or “of great worth, value, excellence, or superiority.” Webster’s at 2292. When followed by the word “cut,” signifying both the operation of the scissors and the result it produces, the word “SUPER-CUT” describes a scissors that produces a high or superior quality cut or that cuts in a superior fashion.

MFG argues that the word is not descriptive because “cut” is not synonymous with “scissors” or “shear.” But similar trademarks have been found to be merely descriptive. See, e.g., E.F. Drew & Co. v. Pam Industries, Inc., 299 F.2d 777 (7th Cir.1962) (“Dri-Fri” for vegetable oil for cooking); In re Sheaffer Pen Co., 158 F.2d 390, 34 CCPA 771 (1946) (“Fineline” for mechanical pencils and lead refills); In re Colonial Refining & Chemical Co., 196 U.S.P.Q. 46 (T.T.A.B.1977) (“Sure Grip” for a nonskid coating); Andrew J. McPartland, Inc. v. Montgomery Ward & Co., 164 F.2d 603, 35 CCPA 802 (1947), cert. denied, 333 U.S. 875, 68 S.Ct. 904, 92 L.Ed. 1151 (1948) (“Quick Start” for electric storage batteries).

The Seventh Circuit has identified as “perhaps the best statement of [this] distinction” to be the following:

“[I]f the mark imparts information directly, it is descriptive. If it stands for an idea which requires some operation of the imagination to connect it with the goods, it is suggestive.”

Union Carbide, supra, 531 F.2d at 379 (quoting A. Seidel, S. Dalroff, and E. Gonda, Trademark Law and Practice § 4.06 at 77 (1963)). It takes no imagination to understand that “SUPERCUT,” as applied to scissors, describes a scissors of high quality-

Neither has “SUPERCUT” become a strong and distinctive mark because of wide and intensive advertising on the part of MFG. While MFG spends a substantial amount each year on advertising, this advertising is directed toward all of its hundreds of products, whereas only a few of these products are “SUPERCUT” scissors and blades. Even if the court accepts MFG’s representations on the percentage of total advertising directed toward “SU-PERCUT” products to be true, as it must for purposes of this motion, this represents but a small percentage of MFG’s total advertising.

MFG emphasizes that it has been selling “SUPERCUT” scissors for thirty years. But duration is significant only when an owner “can point to a long period of time during which his mark was used on a great quantity of articles, as symbolic of his business.” Telemed, supra, 588 F.2d at 219. MFG has used “SUPERCUT” on very few of its products. It markets scissors under other trademarks as well. It has stated in its 10-K form that “none [of its 1,500 products] is significant in itself.” Clearly “SU-PERCUT” is not symbolic of MFG’s business in the way that so many trademarks are.

Trademarks are also considered weak if they are used on a variety of other products by other companies. Victory Pipe Craftsmen, Inc. v. Faberge, Inc., 582 F.Supp. 551, 557 (N.D.Ill.1984) (finding the trademark “Cellini” to be weak because it has been used extensively in connection with a wide range of goods); see also Telemed, supra, 588 F.2d at 220 (finding the mark “Telemed” entitled to narrow protection because “tele” and “med” were both extensively used for a variety of business and service names). The prefix “super” has been used for over one hundred marks registered in the area of cutting, hand tools and sidearms, including three registrations for “super-cut” and registrations for “supercutter,” “super-snips,” and “super-shear.”

MFG argues that the incontestable status of its “SUPERCUT” mark renders it distinctive as a matter of law and that it can no longer be found to be weak. However, Park ’N Fly, Inc. v. Dollar Park and Fly, Inc., — U.S.-, 105 S.Ct. 658, 83 L.Ed.2d 582 (1985), cited by MFG, held only that the validity of an incontestable trademark cannot be challenged as merely descriptive. But the validity of MFG’s mark is not at issue — only the scope of its protection. “Incontestability does not broaden a trademark in the sense that it allows a registrant to claim rights over a greater range of products than he would otherwise be entitled to claim.” Union Carbide, supra, 531 F.2d at 377.

Moreover, several of the other factors listed in Wesley-Jessen and Union Carbide also support the conclusion that EMRA’s activities do not create a likelihood of confusion and that there is no genuine issue as to this material fact. There is no identity of retail outlets whatsoever. All of EMRA’s services and products are sold through the shops owned or franchised by EMRA. MFG sells its products through supply houses or beauty and barber schools. There is no evidence of any overlapping.

Similarly, there is no identity of purchasers. EMRA sells its services and products to the general public. MFG sells its products to hair care purveyors. These are clearly different markets. MFG argues that EMRA actually sells its products to the owners of the franchised “SUPER-CUTS” stores, who are themselves hair care purveyors, and that when analyzed at the proper level of the distribution chain the purchasers are the same. However, the general public is the proper set of EMRA purchasers for purposes of this analysis. The franchised shops are merely a part of EMRA’s distribution chain, just as the wholesale distributors and supply houses are for MFG. Wesley-Jessen v. Bausch & Lomb, Inc., 698 F.2d 862 (7th Cir.1983), cited by MFG, is inapplicable. In Wesley-Jessen, both parties manufactured contact lenses and sold them to eye care professionals for sale to the public. There was no other relationship between the parties and their customers than sellers and buyers.

Neither is there any identity of advertising media. EMRA advertises through TV, radio, billboards, and other mass market media directed toward the general public. MFG advertises in beauty and barber trade journals, with direct mailings to the beauty and barber industry, and through its catalog, also directed to the hair care industry. While the parties dispute the amounts spent on advertising, the relevant criteria here is the type of advertising.

Most significant is the total absence of any evidence of actual confusion. MFG contends that this result is faulty because EMRA has allegedly failed to conduct a thorough investigation of its franchisees on this point. But MFG has presented no evidence of its own. Nothing has precluded MFG, a company that has been supplying the hair care industry for thirty years, from surveying that industry on its own or from presenting evidence of actual confusion that has come to its attention during the ten years that EMRA has been using the “SUPERCUTS” trademark. The fact that these two nationwide firms have been coexisting for many years, and that MFG has presented no evidence of actual confusion shows that such confusion is not a factor. See FS Services, Inc. v. Custom Farm Services, Inc., 325 F.Supp. 153 (N.D.Ill.1970), affd, 471 F.2d 671 (7th Cir.1972).

MFG argues that EMRA learned of MFG’s “SUPERCUT” trademark in 1979 and continued to operate and expand under its “SUPERCUTS” label and that this is evidence of EMRA’s evil intent. But the court finds this to be of little weight. EMRA submits sworn statements that it did not know of MFG’s trademark in 1975 when it began its business. MFG produces no evidence to refute that. Therefore the court concludes in the absence of other evidence that EMRA innocently adopted its “SUPERCUTS” name when it began operations.

It is true that the trademarks themselves are similar to the extent that they use virtually the same word. However, even the significance of that fact is mitigated by the different styles of these trademarks. See Telemed Corp. v. Tel-Med, Inc., 588 F.2d 213, 220 (7th Cir.1978). MFG’s “SUPERCUT” is in block print on the package and small block print on the scissors themselves (see Fig. 1), while EMRA’s trademark is written in a more stylized form (see Fig. 2).

Finally, MFG argues that the products are similar because they are all related to hair care. While it is true that scissors, shampoo, and haircuts are all within some universe of hair care products and services, they are not, of themselves, particularly similar in the way, for example, that scissors and replacement blades are or that shampoo and conditioner are.

In light of the weak and descriptive nature of the “SUPERCUT” trademark, the absence of any actual confusion, and the absence of any identity between purchasers, retail outlets, and advertising media, the court concludes that there is no likelihood of confusion. Whatever similarity exists between the trademarks and the products is insignificant in light of these other factors and fails to create a genuine issue of fact as to the likelihood of confusion.

The court finds support for this result in Westward Coach Manufacturing Co. v. Ford Motor Co., 388 F.2d 627 (7th Cir.), cert. denied, 392 U.S. 927, 88 S.Ct. 2286, 20 L.Ed.2d 1386 (1968). In Westward Coach, the Seventh Circuit affirmed the granting of summary judgment in favor of the defendant, Ford Motor Co. The plaintiff manufactured and sold campers and trailers under the trademark “Mustang” that were designed for mounting on pick-up trucks and for towing. In 1967 Ford began selling its “Mustang” automobile and the plaintiff brought an action for infringement. The court found that the mark “Mustang” was a weak mark because it was a noun of common usage used in connection with a variety of products and was federally registered as a trademark numerous times; that the plaintiff’s trademark was limited to the trailer industry; that the plaintiff’s trailers did not compete with Ford’s sports cars; and that there was no likelihood of confusion. This was true even though the trademarks were virtually identical (both consisted of the word “Mustang” together with a symbol of a horse) and the products were related in the same general way as the products in the present case. Therefore, the court finds that defendants’ motion for summary judgment should be granted on Count I as to defendants’ activities other than the use of “SU-PERCUTS” scissors.

In Count II, MFG alleges that EMRA has violated its common law trademark rights. The same principles applied above would govern the court’s analysis in determining whether there is a genuine issue as to any material fact under Illinois law. Victory Pipe Craftsmen, Inc. v. Faberge, Inc., 582 F.Supp. 551, 559 (N.D.Ill.1984). Therefore, for the reasons stated above as to Count I, the court finds that EMRA is entitled to summary judgment on Count II as to the same “non-scissors” activities.

II. Trademark Infringement and EMRA’S Use of Scissors Marked “SUPERCUTS”

The use by EMRA of scissors marked “SUPERCUTS” clearly presents a different question than EMRA’s other activities. These scissors are arguably within the scope of protection afforded MFG’s trademark. However, EMRA argues that its use of these scissors was short-lived and discontinued and did not damage MFG. Therefore, EMRA argues, even assuming that its use of these scissors did infringe MFG’s mark, there is no reason for the court to grant injunctive relief or damages.

“It is within the discretion of the trial court to grant or deny an injunction against conduct which has ceased and is not likely to recur.” Sckutt Mfg. Co. v. Riddell, Inc., 673 F.2d 202, 207 (7th Cir. 1982). In Schutt the district court had ruled that because the defendant in that trademark and unfair competition case “did not threaten to continue in the conduct complained of — and in fact had discontinued that conduct more than a year prior to the commencement of [the] action — the request for equitable relief was moot.” Id. at 206.

In the present case EMRA authorized the purchase of 1,210 pairs of scissors bearing the “SUPERCUTS” logo for use in “SUPERCUTS” shops and at EMRA’s training center in 1983. These scissors were provided through School Distributors, a division of West Coast Beauty Supply Co., which distributes products to “SUPER-CUTS” shops in the western states. The distributor distributed the entire supply of scissors to the EMRA shops and training center in 1983. The distributor declares that it has no intention of reordering such scissors. EMRA asserts that these scissors have since worn out and have been replaced and there is no intention of reordering.

MFG argues that there is a continuing likelihood of infringement through EMRA’s reordering of such scissors. The only evidence that MFG provides to support this assertion, however, is a statement by MFG’s president, Wilford Gallinat, that “a supplier to EMRA” has contacted MFG for submission of a quotation for scissors bearing the mark “SUPERCUTS” for sale to EMRA. This evidence would, of course, have substantially more value if the supplier were named and there was direct evidence of its intentions. Moreover, while a supplier to EMRA may intend to sell such scissors to EMRA, one cannot infer, without more, that EMRA has any knowledge of this or that it intends to cooperate by buying.

Under the circumstances, the court finds that EMRA’s use of “SUPERCUTS” scissors was a temporary and discontinued practice and that there is no genuine issue of fact as to whether this practice continues. Therefore the court will follow the example of this court in Schutt and refuse to grant injunctive relief.

As to the award of damages, “a party seeking such relief is required to show not only the likelihood of such confusion, but must demonstrate that it has been damaged by actual consumer reliance on the misleading statements.” Schutt, supra, 673 F.2d at 206. Therefore, assuming that EMRA’s use of these scissors infringed MFG’s trademark, MFG would have to prove that it was damaged by actual consumer reliance. But the scissors marked “SUPERCUTS” were not sold by the EMRA shops; they were used by the employees in the “SUPERCUTS” shops and by those being trained in the “SUPER-CUTS” training center. These individuals, involved as they were in a non-market relationship with the “SUPERCUTS” organization, were not confused by the meaning of the label on the scissors they were using. These individuals understood that the mark was related to the organization for which they worked and not another company with a similar trademark. The court finds, in the absence of any evidence of such confusion, that MFG was not damaged by this practice.

Therefore the court finds that summary judgment should be granted in favor of the defendants on Counts I and II as to EMRA’s temporary and discontinued use of “SUPERCUTS” scissors. Together with the result in Part I, supra, this requires granting summary judgment in favor of the defendants as to Counts I and II in their entirety.

III. Counts III-VI

Count IV of the complaint alleges a violation of section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a), for false designation of origin. Recovery under 15 U.S.C. § 1125(a) requires plaintiff to establish that defendants have created a likelihood of confusion as to the origin of their products. Hooker v. Columbia Pictures Industries, 551 F.Supp. 1060 (N.D.Ill.1982). Under both 15 U.S.C. § 1114 and 15 U.S.C. § 1125, the same test is applied to determine whether a particular activity violates the Lanham Act: likelihood of confusion. Invicta Plastics (USA) Ltd. v. Mego. Corp., 523 F.Supp. 619, 622 (S.D.N.Y.1981). Therefore, for the reasons stated in Parts I and II, supra, defendants’ motion for summary judgment is granted as to Count IV.

Count III alleges a violation of common law unfair competition. Under Illinois law, unfair competition is a broader concept than trademark infringement in that it allows consideration of the whole product, rather than just the trademark, when evaluating the likelihood of confusion. Thompson v. Spring-Green Lawn Care, 126 Ill. App.3d 99, 466 N.E.2d 1004, 1015, 81 Ill. Dec. 202, 213 (1st Dist.1984). However, a finding of unfair competition still requires that likelihood of confusion exists as to the source of plaintiffs goods. Id. Since likelihood of confusion does not exist on the basis of the parties’ trademarks, and since nothing else about their products and services increases the likelihood of confusion, the court concludes that no such requisite likelihood exists and that summary judgment should be granted for defendants as to Count III.

Count V alleges a violation of the Illinois Anti-Dilution Act, Ill.Rev.Stat. ch. 140, § 22. An action for dilution requires that plaintiff show his mark to be a strong mark which has acquired a widespread reputation through much effort or costly and extensive advertising and which has a distinctiveness or secondary meaning. Thompson, supra, 466 N.E.2d at 1015, 81 Ill.Dec. at 213. As discussed in Part I, supra, MFG’s mark is not a strong mark. Therefore summary judgment should be granted for defendants as to Count V.

Count VI alleges a violation of the Illinois Deceptive Trade Practices Act, Ill.Rev.Stat. ch. 121V2, §§ 312-313. Plaintiff alleges that defendants have violated this statute by causing a likelihood' of confusion as to the source of their goods and services with respect to plaintiff’s mark and products. “Likelihood of confusion” has the same meaning under the Deceptive Trade Practices Act as it has in trademark infringement cases. Hooker v. Columbia Pictures Industries, 551 F.Supp. 1060, 1064 (N.D.Ill.1982). Therefore summary judgment must be granted for defendants as to Count VI.

IV. Declaratory Relief

Finally, defendants seek summary judgment as to Count III of their counterclaims, which seeks declarations regarding non-infringement. The findings and conclusions set forth above support a declaration that as to its products other than scissors defendants have not infringed plaintiff’s trademark. Declaratory judgment is denied as to the infringement of plaintiff’s trademark on its scissor’s product.

IT IS THEREFORE ORDERED that:

(1) Defendants’ motion for summary judgment as to Counts I-VI of the complaint is granted and the complaint is dismissed.

(2) Plaintiff’s motion for partial summary judgment is denied.

(3) Defendants’ motion for summary declaratory judgment as to Count III of the counterclaim is granted in part and denied in part as set forth in the court’s opinion.

(4) Count I of the counterclaim is dismissed with the consent of the defendants.

      . EMRA's counterclaim based on abuse of process was dismissed. Order of May 10, 1985.

      . MFG also argues that its "SUPERCUT" trademark is protected under the Doctrine of Natural Expansion for any goods or services which purchasers might reasonably expect’ it to expand to in the normal expansion of its business under the mark. But MFG does not suggest that it might expand into haircutting services and the court finds no support for the suggestion that MFG would expand into shampoo and other products under its "SUPERCUT” trademark for two reasons: (1) MFG has never expanded its "SUPERCUT" mark beyond scissors and blades in the thirty years it has been using it (or at least there is no evidence of this) and (2) MFG does currently sell a complete line of other hair care products under dozens of other trademarks. Obviously MFG has long believed that different products are best identified by different trademarks tailored to their particular properties.

      . MFG argues that Westward Coach is inapplicable because it is based on Indiana law. However, Westward Coach has frequently been cited in cases involving both federal and Illinois trademark law, thus indicating the applicability of its analysis and result. See, e.g., Telemed Corp., supra, 588 F.2d at 219 (citing Westward Coach as clarifying the significance of strong and weak marks in a federal trademark case); Victory Pipe Craftsmen, Inc. v. Faberge, Inc., 582 F.Supp. 551 (N.D.Ill.1984) (relying on Westward Coach in granting summary judgment in a case involving both federal and Illinois law).


author: GEORGE KENDALL SHARP, District Judge.

text:
    Margaret Greene BREW, f/k/a Margaret Arnold, Plaintiff, v. SCHOOL BOARD OF ORANGE COUNTY, FLORIDA, et al., Defendants.
    No. 84-424-CIV-ORL-18.
    United States District Court, M.D. Florida, Orlando Division.
    Dec. 12, 1985.

      Melanie Malherbe, Atty., Orlando, Fla., for plaintiff.
    Frank C. Kruppenbacher, Orlando, Fla., for defendants.
   FINDINGS OF FACT AND CONCLUSIONS OF LAW

GEORGE KENDALL SHARP, District Judge.

This case came before the Court for a bench trial on August 28, 1985. Having heard and considered the plaintiffs case and argument of counsel, the Court treated defendants’ motion for a directed verdict as a motion for involuntary dismissal and granted it. The Court enters the following Findings of Fact and Conclusions of Law:

FINDINGS OF FACT

In this action under 42 U.S.C. § 1983, plaintiff seeks damages, reinstatement, back wages and benefits, attorney’s fees and costs for alleged violations of her First Amendment right of association and her Fourteenth Amendment due process rights. Plaintiff alleged that she was fired by defendants, Orange County School Board (School Board), Dr. James Schott and Jane D. Courtney, from her teacher aide position without due process because of her “fraternization” with prisoners on a work release program at the school where she was employed. Neither party demanded a jury trial.

Plaintiff was employed by the defendant School Board in 1979 as an office clerk under the CETA program. She subsequently was hired by the School Board as a teacher’s aide in October 1979, and was employed by the Board as a classified non-certified employee with a fixed-term contract for the ten-month period that concluded in June 1982. At the time her contract was not renewed in the Spring of 1982, plaintiff was employed by the defendant School Board as a teacher’s aide at the Woodlands School, which was the school opened in 1980 by the Orange County School System for retarded, physically handicapped and multi-handicapped children at Sunland State Hospital. Plaintiff’s position as a teacher’s aide was within the bargaining unit represented by the Orange County Classified Employees Association, American Federation of State, County and Municipal Employees, AFL-CIO, Local 3053, and was subject to the contract between the School Board and the Union.

The defendant, Orange County School Board, operates, controls and supervises the public schools within the school district of Orange County, Florida, pursuant to the authority delegated by Section 4(b) of Article IX of the Florida Constitution and § 230.03(2), Florida Statutes. Defendant, Dr. James Schott, is and was at all times relevant to this action the Superintendent of Orange County Public Schools. Defendant, Dr. Jane D. Courtney, was at all times relevant to this action the Principal of the Woodlands School of Orange County Public Schools. In that capacity, she was plaintiff’s employment supervisor. Dr. Courtney recommended plaintiff’s reappointment or non-reappointment to Dr. Schott, who in turn made such recommendations to the School Board.

Plaintiff testified that in the Spring of 1982, Dr. Courtney told her at a weekly meeting with teachers and teacher’s aides that they would have jobs for the next school year unless they were laid off. According to plaintiff, Dr. Courtney initially informed plaintiff she would be laid off, and subsequently at a private meeting told her that her position was available. Plaintiff testified that she first learned that she would not be reappointed for the next school year after she was suspended with pay in May 1982.

In contrast, Dr. Courtney testified that she informed plaintiff at her March 1982 evaluation that she was not recommending plaintiff for reappointment for the 1982-83 school year. Dr. Courtney indicated that she recommended plaintiff’s non-reappointment, despite giving plaintiff satisfactory marks on her evaluation form, because of numerous minor problems such as plaintiff’s excessive absenteeism, her reading of magazines during working hours, her difficulty working with other aides, her failure to wear appropriate shoes, and her failure to require her guests to check in before visiting her as required by a School Board rule. In fact, Dr. Courtney specifically noted on plaintiff’s otherwise positive evaluation that plaintiff wore inappropriate shoes, and Dr. Courtney deliberately left blank the evaluation category for attitude and cooperation. Dr. Courtney’s recommendation of non-reappointment was adopted by defendant Dr. Schott and the defendant School Board in May, 1982. Thereafter, plaintiff was notified of the non-reappointment by defendants. Dr. Courtney’s testimony that she recommended plaintiff’s non-reappointment in March was supported by defendants’ exhibits. Based upon these exhibits and Dr. Courtney’s testimony, the Court finds that in March, Dr. Courtney recommended that plaintiff not be reappointed and informed plaintiff of her recommendation.

After Dr. Courtney advised plaintiff of her recommendation of non-reappointment, plaintiff was reprimanded by Defendant Courtney for fraternization with prisoners who were on the Woodlands School campus on a work release program. The Woodlands School was on the campus of the Sunland State Hospital, which was operated by the State of Florida. Sunland had specific rules prohibiting fraternization with the prisoners by its employees. The Woodlands School was governed by these rules since it was a tenant of the Sunland Center. Plaintiff testified that she regarded the term fraternization as meaning that she was having a sexual relationship with a work release prisoner, and was very upset by the fraternization reprimand.

In fact, the evidence showed that plaintiff was so upset that she had an altercation with the member of the teaching faculty who had reported that plaintiff passed notes to the prisoners. Specifically, the teacher reported to defendant Dr. Courtney that she was chased home in her car by plaintiff, and alleged that plaintiff had harassed her. Defendant Dr. Courtney notified the Employee Relations Department of defendant Orange County School Board, and an investigation was conducted. The plaintiff was relieved from duty with pay pending investigation by letter dated May 28, 1982, with relief of duty effective June 1, 1982. Plaintiff received full pay and benefits for the approximately two weeks remaining on her fixed-term contract. On June 21, 1982, defendants notified plaintiff that the investigation in connection with the alleged harassment of other employees had been completed. However, since plaintiff had not been reappointed to a position for the 1982-83 school year, the School Board took no further action in the matter. There was no report issued as a result of the investigation.

The May 28 letter was the only notification plaintiff received in connection with her relief of duty with pay. She was not notified of any procedures available to contest her relief of duty with pay, and she indicated that she was never apprised of the results of the investigation. She also was not accorded notice and an opportunity to be heard in connection with her non-reappointment. Although plaintiff was not reappointed to a teacher’s aide position for the 1982-83 school year, she testified that she subsequently worked for the School Board as a substitute teacher and eventually with handicapped children.

Plaintiff contends that she had an expectation of continued employment because Dr. Courtney told her that her position would be open and that plaintiff would have a position. Plaintiff’s testimony concerning her understanding of the reappointment process was evasive, and plaintiff claimed that she did not understand the term “appointment” or the appointment process. However, when questioned about her understanding of the process in a specific factual context, it was clear she understood that she was employed on a yearly basis.

Under the contract between the School Board and the Union, a classified non-certified employee may be disciplined or dismissed only for just cause. Sylvester Gates, a Union executive board member and chief grievance representative who has been employed by the defendant School Board as an annually reappointed classified employee for nineteen years, testified on plaintiff’s behalf. Mr. Gates was involved in negotiating the Union contract in effect from August 1981 through June 1984. Mr. Gates stated that relief of duty with pay during an investigation is not a disciplinary action under the Union contract. He also indicated that the Union has asserted the position that once an employee has successfully passed the probationary period, they may not be non-reappointed except for cause under the Union contract discharge provisions. Mr. Gates admitted that the Union has never contested the right of a principal to non-reappointment of a classified employee and did not do so in this case, although he indicated that he expected such a challenge to be heard this Fall.

Dr. James Skaggs, the associate superintendent for Employee Relations, testified as the spokesperson for Dr. Schott. Dr. Skaggs indicated that the defendant School Board had an unwritten policy under which classified employees could be terminated by non-reappointment. He further stated that under this process the classified employee had no right to notification and utilization of the Union grievance procedures or other procedural formalities. He also testified that relief of duty with pay is not a disciplinary action.

CONCLUSIONS OF LAW

The Court has jurisdiction over this matter pursuant to 28 U.S.C. §§ 1331, 1343. In her complaint, plaintiff seeks relief for violations of her Fourteenth Amendment right to procedural due process and her First Amendment right of association.

I. Procedural Due Process

Counts I and III of plaintiffs complaint allege that plaintiff was deprived of property and liberty respectively without due process. It is axiomatic that “[t]he requirements of procedural due process apply only to the deprivation of interests encompassed by the Fourteenth Amendment’s protection of liberty and property.” Board of Regents v. Roth, 408 U.S. 564, 569, 92 S.Ct. 2701, 2705, 33 L.Ed.2d 548 (1972). Thus, the initial due process inquiry is whether or not plaintiff had a constitutionally protected property or liberty interest in connection with her employment by the defendant School Board, the relief of duty with pay, and the nonrenewal of her fixed-term contract.

(A) Property

The Supreme Court has recognized that a government employee may have a constitutionally protected property interest in continued government employment. Id. at 577, 92 S.Ct. at 2709. In order to establish that she had a property, interest in her teacher’s aide position, plaintiff must show that she had a “legitimate claim of entitlement” to her continued employment. Id.; Sullivan v. School Board of Pinellas County, 773 F.2d 1182, 1185 (11th Cir. 1985). For example, a permanent government employee whose employment may be terminated only for cause has a property interest in her continued employment. Blanton v. Griel Memorial Psychiatric Hospital, 758 F.2d 1540, 1542 (11th Cir. 1985); Thompson v. Bass, 616 F.2d 1259, 1265 (5th Cir.), cert. denied, 449 U.S. 983, 101 S.Ct. 399, 66 L.Ed.2d 245 (1980).' In contrast, a government employee who may be discharged at will does not have a property interest in her continued employment. Id. An employee’s mere subjective expectation of continued employment does not give her a constitutionally protected property interest. Perry v. Sinderman, 408 U.S. 593, 603, 92 S.Ct. 2694, 2700, 33 L.Ed.2d 570 (1972); Board of Regents v. Roth, 408 U.S. at 577, 92 S.Ct. at 2709; Wells v. Doland, 711 F.2d 670, 675 (5th Cir.1983). However, a “person’s interest in a benefit is a ‘property interest for due process purposes if there are ... ’ rules or mutually explicit understandings that support [her] claim of entitlement to the benefit.” Perry v. Sinderman, 408 U.S. at 601, 92 S.Ct. at 2699.

Applying these legal precepts to the facts in this case, it is clear that plaintiff was not deprived of a constitutionally protected property interest. The evidence at trial showed that plaintiff had a valid fixed-term contract binding the defendant School Board to employ her for the ten-month period which ended in June 1982. Plaintiff was employed, paid and received all benefits through expiration of her contract, although she was relieved of duty for approximately the last two weeks of her contract. Plaintiff attempted to prove that she had a property interest in her position on three theories: (1) the relief of duty with pay in May 1982; (2) nonrenewal without cause despite the Union position that classified employees on fixed-term contracts could not be non-reappointed without cause, and (3) nonrenewal of her contract despite Dr. Courtney’s alleged assurances that she would have her position the next year.

The Union contract which covered plaintiff’s position provides that employees may not be disciplined without cause. Thus, the Union contract arguably gave her a property interest in her position through the end of the ten-month contract. From plaintiff’s arguments at trial and the allegations in the complaint that plaintiff was fired, it appears that plaintiff claims that her relief of duty with pay pending investigation in May 1982 was a disciplinary action which deprived her of a property interest, and that defendants failed to afford her due process in imposing the disciplinary penalty. However, the evidence produced in plaintiff’s case showed that relief of duty with pay pending investigation is not a disciplinary action within the meaning of the Union contract. Dr. Skaggs, Dr. Courtney and Mr. Gates, the Union representative, all testified that they did not consider relief of duty with pay pending investigation of the harassment allegations a disciplinary action. Based upon the evidence at trial, the Court concludes that the relief of duty with pay and benefits was not a disciplinary action. Thus, even if plaintiff had a protected property interest in her employment through the end of her contract, she was not disciplined or discharged. Therefore, plaintiff was not deprived of any property interest in connection with the relief of duty with pay pending investigation.

Plaintiff also contends that she had a protected property interest in her continued government employment based upon the Union’s position that once a classified employee has successfully completed the probationary period, she may not be non-reappointed except for cause under the Union contract discharge provisions. In argument, plaintiff emphasized that the Union contract does not specify that classified employees are year-to-year employees with annual contracts. However, the evidence at trial showed that the School Board has had a longstanding policy that annual contract, classified employees are employed only for the term of their ten- or twelvemonth contracts and are subject to the reappointment process. The Union contract was negotiated in the context of the School Board’s longstanding annual contract and reappointment policy. Further, at trial the Union representative admitted that the Union had never contested the right of a principal to non-reappoint a classified employee, although such a challenge was anticipated. Furthermore, although plaintiff claimed she did not understand the reappointment process, it was clear from the facts that she understood that she was employed annually. Thus, it is clear that the parties did not have a “mutual explicit understanding” that classified employees are entitled to reappointment absent just cause for non-reappointment. Given the factual context and the lack of specificity in the Union contract terms, the Court is unwilling to hold, as a matter of law, that the Union contract precludes the annual reappointment process utilized by the defendant School Board. Thus, the Union contract did not confer upon plaintiff a constitutionally protected property interest beyond the expiration of her fixed-term contract.

Finally, plaintiff contends that she had a legitimate subjective expectation of continued employment based upon Dr. Courtney’s assurances that she would be employed for the next year. However, the Court has found as a fact that plaintiff was informed by Dr. Courtney that she would not recommend plaintiff for reappointment, and that no written or verbal representations of employment beyond the fixed-term were made to plaintiff. Further, the satisfactory evaluation did not create a protected property interest based upon a mutually explicit understanding. See Sullivan v. School Board of Pinellas County, 773 F.2d at 1186. Thus, plaintiff’s unilateral subjective expectations were not based upon a mutual understanding, and do not confer upon her a constitutionally protected property interest in her government position.

In summary, plaintiff failed to show that she had a constitutionally protected property interest in her continued government employment. Under her contract, plaintiff had no right to any employment or re-employment beyond the expiration of her 1981-1982 fixed-term contract. Relief of duty with pay by defendants was not a disciplinary action for which just cause was required under the Union contract, and the Union contract did not confer upon her a right to reappointment absent just cause. Nor did plaintiff have a legitimate subjective expectation of continued government employment. Therefore, the Court concludes that plaintiff did not establish that she was deprived of a constitutionally protected property interest.

B. Liberty

Plaintiff also alleges that she had a constitutionally protected liberty interest in her employment, and that she was deprived of her liberty interest without due process. Plaintiff need not have a property interest within the meaning of the Fourteenth Amendment in her position to have a constitutionally protected liberty interest. Dennis v. S & S Consolidated Rural High School District, 577 F.2d 338, 340-41 (5th Cir.1978); Wells v. Doland, 711 F.2d at 676. Although plaintiffs Fourteenth Amendment liberty interest encompasses her freedom to work and earn a living, Wells v. Doland, 711 F.2d at 676, “mere non-renewal of a ... contract is not such a blight upon [her] good name, reputation, honor, or integrity as to constitute a deprivation of liberty.” Dennis v. S & S Consolidated Rural High School District, 577 F.2d at 340; see Kelleher v. Flawn, 761 F.2d 1079, 1087 (5th Cir.1985); Campos v. Guillot, 743 F.2d 1123, 1125 (5th Cir.1984).

In Blanton v. Griel Memorial Psychiatric Hospital, 758 F.2d 1540 at 1544, (11th Cir.1985), the Eleventh Circuit set forth the test for determining if the plaintiff has a liberty interest sufficient to implicate Fourteenth Amendment safeguards:

In order to establish a claim that his freedom to take advantage of other employment opportunities was impaired, plaintiff must show that his freedom to work was stigmatized in or as a result of the charge process, that the charges were made public, and that plaintiff was denied a meaningful hearing to clear his name. Wells v. Doland, 711 F.2d 670, 676 (5th Cir.1983).

See, e.g., Vaughn v. Shannon, 758 F.2d 1535, 1537 (11th Cir.1985); Kelleher v. Flawn, 761 F.2d at 1087; Thompson v. Bass, 616 F.2d at 1266. In order to establish that she has been stigmatized, plaintiff must show that the charges against her seriously damaged her standing and association in the community or foreclosed her freedom to take advantage of other employment opportunities, and that the charges were false. Codd v. Velger, 429 U.S. 624, 628, 97 S.Ct. 882, 884, 51 L.Ed.2d 92 (1977); Board of Regents v. Roth, 408 U.S. at 573, 92 S.Ct. at 2707; Sullivan v. School Board of Pinellas County, 773 F.2d at 1187; Vaughn v. Shannon, 758 F.2d at 1537; Wells v. Doland, 711 F.2d at 676-77. Plaintiff failed to adequately establish that her standing in the community is or would be seriously damaged by the fraternization allegations. Furthermore, plaintiff failed to show that her employment opportunities were foreclosed because she was employed by the defendant School Board as a substitute teacher after her non-reappointment. See Wells v. Do-land, 711 F.2d at 676 n. 10.

Plaintiff also failed to show that the fraternization allegations were false. In fact, she admitted communicating with a work release prisoner while at school on several occasions. Thus, it appears that the allegations were concededly true, at least in part. Because plaintiff did not prove each of the Wells factors adopted by the Eleventh Circuit in Blanton and Vaughn, the Court concludes that plaintiff failed to establish a liberty interest cognizable under the Fourteenth Amendment.

II. First Amendment — Right of Association

In her complaint, plaintiff also claimed that she was discharged because of her fraternization with work release prisoners, and that defendant’s discharge of her for this reason violated her First Amendment right of association. “A fundamental proposition in our constitutional jurisprudence is that government employment may hot be conditioned upon a relinquishment of a constitutional right, including the rights to speech and association guaranteed under the first amendment.” Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977); Wilson v. Taylor, 733 F.2d 1539, 1542 (11th Cir.1984) (Wilson II)] Waters v. Chaffin, 684 F.2d 833, 836 (11th Cir.1982); Wilson v. Taylor, 658 F.2d 1021, 1027 (11th Cir.1981) (Wilson I); Littlejohn v. Rose, 768 F.2d 765, 769 (6th Cir.1985). Plaintiff, as a government employee, could not be disciplined or dismissed for a constitutionally infirm reason.

In examining whether or not a plaintiff has been disciplined or discharged for a reason which infringes upon her constitutionally protected First Amendment right of association, the Court must apply a tripartite test derived from Mt. Healthy and Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). Under the applicable test, plaintiff must show that her conduct was constitutionally protected, and that this conduct was a substantial or motivating factor in the decision to discipline or not rehire her. If the Court decides that the speech or activity was constitutionally protected and a substantial or motivating factor in the discharge or disciplinary decision, the burden shifts to the defendant to show by a preponderance of the evidence that it would have reached the same decision in the absence of the protected conduct. Id.; Wilson II, 733 F.2d at 1542-43; Waters v. Chaffin, 684 F.2d at 836-37; Wilson I, 658 F.2d at 1207; . Thompson v. Bass, 616 F.2d at 1267.

In this action, plaintiff failed to carry her burden of proving that her fraternization with work release prisoners was a substantial or motivating factor in the decision to discipline or not rehire her. First, the Court determined that relief of duty with pay was not a disciplinary action. Second, the evidence at trial showed that the allegations that plaintiff harrassed a teacher were the primary reason for plaintiff’s suspension with pay pending an investigation. Third, the Court found that Dr. Courtney’s decision not to recommend that plaintiff be reappointed was made prior to the fraternization and harassment allegations. Thus, these allegations had no bearing on the non-reappointment decision.

In summary, the Court concludes that plaintiff’s alleged fraternization was not a substantial or motivating factor in any disciplinary or discharge decision by defendant. Plaintiff’s suspension with pay was not a disciplinary action, and primarily was a consequence of the harassment allegations. The decision not to renew plaintiff’s contract was made prior to the fraternization and harassment allegations.

Further, plaintiff’s admitted conduct in communicating with work release prisoners while at work was not a constitutionally protected association in the context of this case. The determination of whether or not conduct is constitutionally protected is made by reference to the paradigm balancing test set forth by the Supreme Court in Pickering v. Board of Education, 391 U.S. at 568, 88 S.Ct. at 1734, which stated:

“[T]he theory that public employment which may be denied altogether may be subjected to any conditions, regardless of how unreasonable, has been uniformly rejected.” (citation omitted). At the same time it cannot be gainsaid that the State has interests as an employer in regulating the speech of its employees that differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general. The problem in any case is to arrive at a balance between the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees. (citations omitted).

See, e.g., McMullen v. Carson, 754 F.2d 936, 938-39 (11th Cir.1985); Leonard v. City of Columbus, 705 F.2d 1299, 1303 (11th Cir.1983); Waters v. Chaffin, 684 F.2d at 836; Wilson I, 658 F.2d at 1027.

Social contacts such as the fraternization with which plaintiff was charged are associations which may be protected by the First Amendment under certain circumstances. See Wilson II, 733 F.2d at 1542-44. However, although the Court may not evaluate the content or “social worth” of ideas, Leonard v. City of Columbus, 705 F.2d at 1304; Williams v. Board of Regents of the University System of Georgia, 629 F.2d 993, (5th Cir.1980), cert. denied, 452 U.S. 926, 101 S.Ct. 3063, 69 L.Ed.2d 428 (1981), it is significant that the conduct in question is not of the type which “traditionally [has been] accorded greater protection in our society by virtue of the fact that the [conduct] goes to the heart of our democratic process.” Leonard v. City of Columbus, 705 F.2d at 1304. In fact, “the State’s burden in justifying a particular discharge varies depending upon the nature of the employee’s expression.” Connick v. Myers, 461 U.S. 138, 150, 103 S.Ct. 1684, 1691, 75 L.Ed.2d 708 (1983). A stronger showing of the State’s interests is required where an employee’s speech or conduct involves matters of public concern. Id. at 152, 103 S.Ct. at 1692.

In this ease, plaintiff testified that she spoke to one of the prisoners on casual social and family topics. Thus, the interest of the defendant School Board in effective and efficient fulfillment of its responsibilities to the public need not be as strong as it must be if the conduct or association involved implicates public issues. In fact, however, in this case the School Board had a strong interest in regulating the association in question. Plaintiff’s contact with the prisoners while at the Woodland School violated an official school policy. Although the court must be able to identify an interest apart from compliance with a rule or policy in order for a discharge or disciplinary action to withstand First Amendment scrutiny, Leonard v. City of Columbus, 705 F.2d at 1305, the Supreme Court has accorded some significance to the lack of such an official policy in weighing the governmental interest involved, see Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. at 284, 97 S.Ct. at 574; Connick v. Myers, 461 U.S. at 153, 103 S.Ct. at 1693, and the Eleventh Circuit has recognized the government interest in having employees follow rules or orders. Berry v. Bailey, 726 F.2d 670 (11th Cir.1984), cert. denied, — U.S.-, 105 S.Ct. 2326, 85 L.Ed.2d 844 (1985).

The significant interests supporting the Woodland School policy included compliance with the Sunland policy. The Sunland rule clearly was premised upon concern for the safety of the residents, staff, and tenants; upon assuring that the prisoners did not escape; and upon insuring that staff and tenants focused their attention and care upon the residents rather than the work release prisoners. It is highly significant that plaintiff was attempting to exercise her associational rights on the school premises, see Connick v. Myers, 461 U.S. at 153, 103 S.Ct. at 1693, as distinguished from the off-duty, off-premises dating which was found to be a protected association in Wilson II, 733 F.2d at 1542-44. See Waters v. Chaffin, 684 F.2d at 837 (off-duty, off-premises derogatory comments about a superior to a ‘friend’ held to be protected speech); Littlejohn v. Rose, 768 F.2d at 768 F.2d at 769 (nonrenewal on basis of divorced status violates right to privacy).

In summary, upon applying the Pickering balance test as explicated in Connors, the Court finds that plaintiff’s association with work release prisoners while on work premises was not protected by the First Amendment. Furthermore, the fraternization allegations were not a substantial or motivating factor in a disciplinary or nonrenewal decision.

CONCLUSION

In order to prevail, plaintiff in this action must show either that she had a liberty or property interest sufficient to entitle her to due process or that she was disciplined or discharged for a constitutionally infirm reason. Plaintiff failed to establish that she had a property interest in her continued government employment, or that defendant’s actions deprived her of a liberty interest. Plaintiff also failed to show that her social contact with work release prisoners while at work was protected by the First Amendment and that her fraternization with work release prisoners was a substantial or motivating factor in a discharge or disciplinary decision. Thus, plaintiff failed to establish a prima facie case showing a deprivation of her First Amendment right of association or her Fourteenth Amendment right to due process.

Accordingly, it is ORDERED that the Clerk shall enter judgment for the defendants. Each party shall bear its own costs.

It is SO ORDERED at Orlando, Florida, this 12th day of December, 1985.


author: GIERBOLINI, District Judge.

text:
    TRANS-ASIATIC OIL LTD., S.A., Plaintiff, v. APEX OIL COMPANY, Defendant.
    Civ. No. 83-0339 GG.
    United States District Court, D. Puerto Rico.
    Dec. 13, 1985.

      Santiago, Pérez, Bermúdez & Bruno, San Juan, P.R., for plaintiff.
    Pedro Santa Sánchez, O’Neill & Borges, Hato Rey, P.R., for Apex Oil.
    Luis A. Lugo, Jr., San Juan, P.R., for P.R. Elec. Power Authority.
   ORDER

GIERBOLINI, District Judge.

This is an action to recover a series of demurrage charges which plaintiff, Trans-Asiatic Oil Limited, S.A. (Trans-Asiatic) claims are due and owing to it by defendant, Apex Oil Company (Apex). Jurisdiction is alleged under Title 28, United States Code, § 1333.

The trial of this case was held on April 30 and May 2, 1985, at which time both parties presented testimonial and documentary evidence. Shortly thereafter, the parties filed post-trial legal memoranda and proposed findings of fact and conclusions of law.

I

After a careful evaluation of all the documentary and testimonial evidence on record, and the briefs filed by both parties, we find the following:

On February 24, 1983, plaintiff Trans-Asiatic, a Panamanian corporation with its principal place of business in Israel, filed a verified complaint against Apex, a partnership established in the State of Missouri with its principal place of business in St. Louis, Missouri.

Pursuant to Rule B of the Supplemental Rules for Certain Adminiralty and Maritime Claims of Federal Rules of Civil Procedure, Trans-Asiatic garnished certain monies owed to Apex by the Puerto Rico Electric Power Authority in order to secure the six claims for demurrage contained in the complaint. The third, fourth, fifth and sixth claims for relief in plaintiff’s verified complaint were settled prior to trial. The remaining claims for relief are pled under alternative theories of recovery. The first claim for relief is based on the Tanker Voyage Charter Party of January 6, 1983, entered into by Telstar Maritime, Inc. of Monrovia (Telstar), a Liberian corporation, with GHR Energy Corporation (GHR) as charterer. The second claim for relief is based on the Bill of Lading of January 14, 1983, for certain Laguna crude oil transported by the vessel SEA ROVER.

On January 6, 1983, Telstar, as registered owner of the SEA ROVER, entered into a voyage charter party with GHR as charterer. Neither Trans-Asiatic nor Apex were parties to the Tanker Voyage Charter Party of January 6, 1983, for the SEA ROVER. The charterer of the vessel SEA ROVER was GHR, pursuant to the Charter Party of January 6, 1983. In the provisions regarding demurrage, the charter party provides that the charterer shall pay demurrage. Under the charter party in question, Telstar was the party entitled to claim demurrage.

Pursuant to the terms of this first charter party, GHR ordered the SEA ROVER to the Port of Puerto Miranda, Venezuela, in order to load a cargo of Laguna crude oil. The loading at this port began on January 12, 1983 and concluded on January 14, 1983. A total of 32 hours 35 minutes laytime accrued to the vessel at the load port, but there was no demurrage.

On or about January 25, 1983, Apex purchased the cargo of Laguna crude oil carried onboard the SEA ROVER from Occidental Crude Sales (Occidental). Pursuant to the agreement between Apex and Occidental the cargo of Laguna crude oil was to be delivered to Apex in Guayanilla, Puerto Rico through deviation of the SEA ROVER.

GHR continued to guarantee payment of freight and due fulfillment of charter party terms and conditions. GHR also agreed to indemnify Telstar for any damages which may have arisen due to the delivery of the cargo to Apex. Charges for freight, deviation or related costs were included in the price charged Apex by Occidental, of $21.99 per barrel. Apex was liable to Occidental for any demurrage resulting from its actions or omissions during discharge in Guayanilla, Puerto Rico.

The second claim asserted by Trans-Asiatic is based on a bill of lading which does not provide for demurrage nor does it incorporate any of the terms of the charter party with respect to demurrage. On or about January 26, 1983, Trans-Asiatic was informed of the bankruptcy of GHR and consequently learned that GHR would not make payment owed on the freight in question. Concurrently, Trans-Asiatic learned that Apex was receiving the cargo of the SEA ROVER; based on this information, Trans-Asiatic gave instructions to the master of the vessel and to its representatives in Guayanilla, Puerto Rico to not allow the SEA ROVER to berth and make delivery of its cargo to Apex until Trans-Asiatic gave its authorization.

Trans-Asiatic informed Apex by telex that payment of freight was to be made “before breaking bulk” and that by virtue of the lien on the cargo there would be no discharge prior to payment of freight deviation and other charges due or to become due under the charter party. Trans-Asiatic required Apex to pay the freight owed by GHR in the amount of $439,297.06 before it would allow the SEA ROVER to discharge its cargo.

On January 27, 1983 Apex paid, under duress, $390,229.06 in freight charges to Trans-Asiatic. From the amount demanded, Apex deducted the sum of $49,038.00 which represented money owed by Trans-Asiatic to GHR for bunker oil supplied to the vessel SILVER LADY. Pursuant to an agreement between GHR and Trans-Asiatic, GHR was entitled to a deduction of $49,038.00 from any payments made to Trans-Asiatic under the Tanker Voyage Charter Party. Thus, when Trans-Asiatic received $390,229.06, it had obtained all the money it was owed by GHR for freight and deviation charges for the SEA ROVER.

Trans-Asiatic then sought payment of the $49,038.00 withheld by Apex and refused to allow the discharge of the cargo until it received the monies in question. Again under duress, Apex paid the additional sum requested on January 31, 1983. Upon receipt of the $49,038 from Apex, Trans-Asiatic received more monies from Apex then it was to have received from GHR, the charterer.

In order to facilitate delivery of the cargo without presentation of a bill of lading, Apex instructed Banque Paribas, the holder of the bill of lading, to issue and deliver to Trans-Asiatic a letter of indemnity on Apex’s behalf which was countersigned by said bank agreeing to indemnify Trans-Asiatic against ... “ALL LOSS, COSTS (INCLUDING COST AS BETWEEN ATTORNEY OR SOLICITOR AND CLIENT) DAMAGES AND EXPENSES, WHICH YOU OR ANY OF YOU MAY SUFFER OR BE PUT TO BY REASON OF THE DELIVERY OF THE SAID GOODS TO US OR TO OUR ORDER.” The letter of indemnity makes no reference to demurrage. The indemnity expired and was cancelled by Banque Paribas upon delivery of the cargo and return of the bill of lading.

The discharge of the SEA ROVER was delayed from the time of tending her Notice of Readiness on January 27, 1983, at 0948 hours until 1735 hours on January 31, 1983, awaiting instructions from Trans-Asiatic to authorize discharge of the cargo. On February 1, 1983 from 1830 hours to February 2, 1983 at 2030 hours, discharge was delayed due to sampling cargo oil and analyzing the sample at shore.

Once the discharge of the cargo commenced, the pumping operation of the vessel SEA ROVER was unduly slow. The ship had a discharge capacity of 27,000 barrels of oil per hour, yet it was only pumping 5,000 barrels per hour. Also, the stripping portion of the discharge, that is, the pumping of the oil at the bottom of the container was very slow. Further delays occurred as a result of the master’s failure to follow instructions concerning discharge from the wing and center tanks and the temperature of the cargo.

Protests concerning the vessel’s failure to maintain the temperature of the cargo and for having an excess of free water in the cargo tanks were communicated to the master.

Based on the foregoing, we must find that once the vessel proceeded to berth, there were certain delays in the discharge which cannot be attributed to Apex. Moreover, there is no evidence that Trans-Asiatic suffered any damages as a result of the delay in the unloading of the vessel SEA ROVER. The SEA ROVER’s voyage to Guayanilla, Puerto Rico was its last commercial voyage, and upon completion of this voyage, the SEA ROVER was sold by its owner, Telstar. Therefore, the delay did not interfere with any subsequent obligations.

II

As to the law applicable to these facts, we conclude that a charter party is a contract between the owner of a vessel and the charterer of that vessel and any such charter party is subject to all the rules and requirements of contract law. Great Circle Lines, Ltd. v. Matheson & Co., Ltd., 681 F.2d 121 (2d Cir.1982); G. Gilmore & C. Black, The Law of Admiralty, § 4-1 at 195 (2d ed. 1975). As in contract law, a charter party can be enforced by the party entitled thereto under the contract against the party who appears to be bound under such contract.

Demurrage is the sum which is fixed by the contract of carriage, or which is allowed, as remuneration to the owner of a ship for the detention of the vessel beyond the number of days allowed by the charter party for loading and unloading. Black’s Law Dictionary, p. 389 (5th ed. 1979).

In order to be entitled to collect demurrage, the carrier’s right to demur-rage must clearly appear in the contract of carriage although it can be implied. Gulf Puerto Rico Lines, Inc. v. Associated Food Co., Inc., 366 F.Supp. 631 (D.C.P.R. 1973). Assuming arguendo that a legitimate claim for demurrage exists, the party entitled to bring such a claim would be Telstar Maritime, Inc. as the registered owner of the SEA ROVER.

Apex, as purchaser of the cargo on a delivered basis from Occidental, was neither charterer, sub-charterer nor assignee of the charterer for the vessel and the voyage in question. It had no rights or obligations pursuant to the Charter Party of January 6, 1983; therefore, no demur-rage can be claimed against Apex under its terms.

Trans-Asiatic is not entitled to claim demurrage against Apex under the Bill of Lading of January 14, 1983. Liability for the demurrage is “impose[d] upon a person receiving cargo, when the bills of lading provide that the consignee and his assigns shall pay freight or demurrage (which is extended freight).” Matter of Commonwealth Oil Refining Co., Inc., 734 F.2d 1079, 1081, n. 2 quoting The Lake Galera, 60 F.2d 876 at 879 (2d Cir.1932).

However, the bill of lading here does not make reference to either Trans-Asiatic or Apex, nor does it expressly provide for the payment of demurrage or expressly incorporate the provisions of the charter party regarding demurrage.

Notwithstanding the existence of a demurrage clause, such penalty can only be claimed if the shipowner can demonstrate that he has suffered actual damage as a result of the charterer’s delay. Benedict on Admiralty, Vol. 2B, § 31 (1985). Demurrage will only be allowed when profits have actually been or may be reasonably supposed to have been lost and the actual loss is proven. Skou v. United States, 478 F.2d 343, 345 (5th Cir.1973); DAmico v. Mediterranean Pacific Line, Ltd., 1975 A.M.C. 98 (N.D.Cal.1974). In the instant case, plaintiff failed to prove that it suffered any losses or damages as a result of the delays of the SEA ROVER. In fact, it was clearly established that there was no loss of profit, since the SEA ROVER had no further commercial voyages after it departed from Guayanilla, Puerto Rico and it was sold by the owner in March of 1983.

Moreover, Trans-Asiatic cannot claim demurrage for delays which resulted from its own actions and/or the actions of the master of the vessel. Thus, we conclude that plaintiff has failed to demonstrate that it is entitled to claim demurrage against Apex under either the Tanker Voyage Charter Party or the Bill of Lading.

Wherefore, in view of the above, it is ordered that the verified complaint be and is hereby dismissed with costs.

The clerk shall enter judgment accordingly.

SO ORDERED.


author: JAMES McGIRR KELLY, District Judge.

text:
    Antonio PALOMBA, et al. v. Marvin I. BARISH, et al.
    Civ. A. No. 85-1278.
    United States District Court, E.D. Pennsylvania.
    Dec. 13, 1985.

      Sidney J. Smolinsky, Philadelphia, Pa., for plaintiffs.
    Elizabeth McKenna, Philadelphia, Pa., for defendant, Marvin I. Barish.
    H. Robert Fiebaeh, Philadelphia, Pa., for defendant, Robert C. Daniels.
    Joseph Frontino, Philadelphia, Pa., for defendants, Avram G. Adler, Arnold Levin, Howard J. Creskoff and Marvin J. Levin, Ind. & t/a Adler, Barish, Daniels, Levin, Creskoff.
   MEMORANDUM AND ORDER

JAMES McGIRR KELLY, District Judge.

Presently before this court is defendant,' Robert C. Daniels’ motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Defendant Daniels has submitted for my consideration of the motion to dismiss, affidavits of his counsel, Neil Witkes and his own affidavit. Daniels seeks to invoke that portion of Rule 12(b)(6) which mandates conversion of a motion to dismiss to a summary judgment where (1) a party submits material outside the pleading for the court’s consideration, and (2) the court considers such material in making its decision.

Plaintiffs, a group of seamen, were allegedly injured while the vessel they were on was in navigable waters of the Atlantic Ocean. Plaintiffs engaged the defendant law firm of Adler, Barish, Daniels, Levin & Creskoff (Adler-Barish) to represent them in their action against the ship for damages. Defendant, Marvin Barish, a partner of Adler-Barish was the attorney who handled plaintiffs’ claims.

The court which was presiding over the plaintiffs’ action against the ship dismissed certain of the plaintiffs’ claims (hereinafter “dismissed plaintiffs”) because dismissed plaintiffs were not produced for deposition and medical examination and plaintiffs’ expert witness medical reports were not furnished for the steamship company as required by an order entered and agreed to by counsel. The remaining plaintiffs’ claims (hereinafter “limited plaintiffs”) were allowed to proceed to trial as to damages, but a key expert witness was prohibited from testifying on behalf of the limited plaintiffs due to the alleged failure of defendant, Marvin Barish to make the expert witnesses reports available to the steamship company’s counsel.

Plaintiffs here allege they suffered injury due to the alleged malpractice of defendant attorneys who had represented them in their claim against the steamship company.

In Count I of the complaint the dismissed plaintiffs assert that because of the negligence of the defendants in the preparation and handling of their claims, they were prejudiced and lost the right to recover damages against the steamship company.

In Count II of the complaint the limited plaintiffs assert that because of the negligence of the defendants they were injured because they were deprived of putting into evidence material and testimony which would have benefited them in their attempt to establish damages.

Count III of the complaint asserts a claim on behalf of all plaintiffs for punitive damages against the defendants for “continual and flagrant disregard of agreed upon scheduling orders”. Complaint ¶ 41.

I have jurisdiction over plaintiffs’ action because of diversity of the parties. Accordingly, I must apply Pennsylvania state law. Pennsylvania law is clear that the negligence of one partner acting in the ordinary course of the business of the partnership will be imputed upon the non-acting partners, making the non-acting partners jointly and severally liable for the negligence. Pa.C.Stat.Ann. Title 59 § 325 & § 327 (Purdon Supp.1985).

Defendant Daniels has contended that he was forced out of Adler-Barish, thus dissolving the partnership two years prior to the time of the purported negligence which give rise to plaintiffs’ claims. While plaintiffs have alleged negligence on behalf of all defendant attorneys, they assert that defendant Marvin Barish was the firm’s representative which they dealt with.

A party who has prior dealings with a partnership and without knowledge of a subsequent dissolution of the partnership, and continues to deal with a partner can hold liable the former partners of the dissolved partnerhip. Pa.Stat.Ann. Title 59 § 357.

Thus, a party who is not given notice of dissolution, but continues to transact business with a “partner” can hold liable the former partnership. It should be noted at this juncture that “even after dissolution, a partnership is not terminated but continues to exist until the winding up of partnership affairs is completed and the authority remains to act for the partnership in winding up partnership affairs and complete transactions begun but not yet finished at the time of dissolution.” North Star Coal v. Eddy, 442 Pa. 583, 586, 277 A.2d 154, 156, (1971). The dissolution of a partnership will not relieve an individual partner of a duty under a contract entered into before the partnership was dissolved. Stewart v. Angle, 315 Pa. 135, 139, 172 A. 898, 899, (1934); Cope v. Warner, 13 Serg. & Rawle, 411, 415 (1825). Thus, I find the fact that Daniels’ withdrawal from AdlerBarish two years prior to the purported negligent act is of little moment to whether or not Daniels can be held liable for the malpractice of his former partners.

An action of malpractice by an attorney can generally be based upon either tort or contract theory. Goggin, Attorney Negligence ... A Suit Within a Suit, 60 W.Va. L.Rev. 225 (1958). The action brought by plaintiffs here appears to rest upon tort theory for recovery. Generally a tort by one partner occurring subsequent to dissolution of a partnership cannot be imputed upon the former partners, unless the party who committed the tort was winding up the partnership affairs or completing partnership business. A partner who has not, inter alia, wrongfully dissolved the partnership has the right to wind up the partnership affairs. Pa.Stat.Ann. Title 59 § 359. Because no pleadings or material submitted to the court have expressed that defendant Barish wrongfully dissolved the partnership, I must assume that Barish had a right to wind up certain former AdlerBarish commitments.

Defendant Daniels has submitted an affidavit of his counsel, Neil Witkes, to support his position that plaintiffs had actual knowledge of the Adler-Barish firm being dissolved, since Daniels’ withdrawal from Adler-Barish. Witkes avers that certain correspondence of various plaintiffs which were addressed to the successor firm of Adler-Barish establishes that these plaintiffs had knowledge of the expulsion or absence of defendant Daniels from the firm. It may be permissible, but not advisable, for an attorney to present his own affidavit for a motion for a summary judgment. Crockett v. Johns-Manville Corp., No. 81-1268 (E.D.Pa., October 11, 1984). However, here the more serious problems arise because of possible hearsay and authentication questions of the documents Witkes has submitted as well as inferences such writings convey. Indeed, the fact that plaintiffs addressed letters to a succeeding firm of Adler-Barish does not dispose of all questions of fact as to whether or not the plaintiffs had knowledge that Daniels was no longer with the law firm which represented them. The letters do not preclude an issue of fact in dispute. Because I find in consideration of the letters, an issue of fact still present, I need not rule (except for Carlos Giacomino’s discharge of counsel letter — see Footnote 11) as to whether the letters should be excluded because they were not properly authenticated or may contain hearsay. Daniels has submitted an affidavit averring that he was expelled from the partnership and was denied access to the client files to which he could have obtained address information of clients so that notice of his leaving AdlerBarish could be made. Conversely, other partners of the former Adler-Barish firm who are defendants in this action have submitted affidavits averring that Daniels withdrew on his own accord and was not forced out of Adler-Barish; additionally, other defendants aver that Daniels was not prohibited from accessing client files. Thus, I cannot rule as to the absence of a factual dispute concerning Daniels leaving the Adler-Barish firm. Moreover, the fact that Daniels’ former partners allegedly wrongfully denied him access to the client files does not release Daniels from his duties to plaintiffs.

Additionally, Daniels argues that to require him to personally contact his former law firm’s clients and inform the clients of his resignation or expulsion from the firm would transverse the holding of the Pennsylvania Supreme Court in Adler, Barish, Daniels, Levin & Creskoffv. Epstein, 482 Pa. 416, 393 A.2d 1175 (1978). I find that the matter before the Pennsylvania Supreme Court in Epstein is sufficiently distinguishable from the dilemna facing defendant Daniels; thus the holding’s prohibition would not affect Daniels’ duties to notify clients of his former firm.

Daniels submission of affidavits has not precluded a genuine issue of fact concerning, inter alia, whether or not plaintiffs had knowledge of the dissolution of AdlerBarish or that Barish was not charged with winding up Adler-Barish’s affairs. Accordingly, I must deny defendant Daniels’ motion for summary judgment as to Counts I and II of plaintiffs’ complaint.

Last, I turn to defendant Daniels’ assertion that the punitive damages claim, Count III of plaintiffs’ complaint is improper because defendant Daniels avers in his affidavit that he was not a partner of Barish when the purported negligence occurred. However, as stated earlier the fact that a partnership dissolves does not terminate affairs that were current at the time of dissolution; termination of liability occurs once the current matters (at time of dissolution) are resolved or wound up. See also Dean Witter Reynolds, Inc. v. Genteel, 346 Pa.Super. 336, 499 A.2d 637 (1985) (Pennsylvania permits vicarious application of punitive damages). Moreover, the very fact that Barish was permitted to wind up affairs for the former partnership may in itself be a reckless act. Accordingly, defendant Daniels’ motion for summary judgment as to Count III must be denied.

In conclusion, since defendant Daniels as well as other defendants in this action have submitted various affidavits and exhibits for my consideration, I will convert the instant motion to dismiss to one for summary judgment. Because the affidavits have not narrowed any genuine issue of fact, the summary judgment motion must be denied.

      . Rule 12(b)(6) of the Federal Rules of Civil Procedure states in pertinent part:
      If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.

      . Plaintiffs, Antonio Palomba, Giuseppi Santangelo, Giuseppi Alotta, Ramon Martinez, Heber Cabrera Sosa, Hugo Arzuga, Raul G. LaTorre, Daniel O. Barboza, Carlos Alberto Giacomino, Rodolfo C. Aquirre, Heber Wilson Cabrera, Almaro Carratu, Leonico Carrasco.

      . Plaintiffs, Vincenzo Abate, Moisés Walter Carrasco, Mario Aresmondi and Omar Lemes.

      . It is alleged that the shipping company had acknowledged liability giving rise to the alleged injuries.

      . Section 325 states in pertinent part:
      Where, by any wrongful act or omission of any partner acting in the ordinary course of the business of the partnership, ... loss or injury is caused to any person, not being a partner in the partnership, or any penalty is incurred, the partnership is liable therefor to the same extent as the partner so acting or omitting to act.
      Section 327 states in pertinent part:
      All partners are liable:
      (1) Jointly and severally, for everything chargeable to the partnership under section 325 (relating to wrongful act of partner)____

      . Without actual or constructive knowledge.

      . Section 357 states specifically in part:
      Power of partner to bind partnership to third persons
      (a) General rule. — After dissolution a partner can bind the partnership, except as provided in subsection (c):
      (I) By any act appropriate for winding up partnership affairs, or completing transactions unfinished at dissolution.
      (2) By any transaction which would bind the partnership if dissolution had not taken place, if the other party to the transaction:
      ******
      (ii) though he had not so extended credit, had nevertheless known of the partnership prior to the dissolution, had having no knowledge or notice of dissolution, and the fact of dissolution had not been advertised in a newspaper of general circulation in the place (or in each place, if more than one,) at which the partnership business was regularly carried on, and in the legal periodical, if any, designated by rule of court in such place or places for the publication of legal notices.
      ******
      (c) Restrictions on post dissolution authority of partner. — The partnership is in no case bound by any act of a partner after dissolution:
      ******
      (3) where the partner has no authority to wind up partnership affairs, except by a transaction with one who:
      ******
      (ii) had not extended credit to the partnership prior to dissolution, and, having no knowledge or notice of his want of authority, and the fact of his want of authority has not been advertised in the manner provided for advertising the fact of dissolution in subsection (a)(2)(ii).

      . Section 359 states:
      Unless otherwise agreed the partners who have not wrongfully dissolved the partnership, or the legal representative of the last surviving partner, not bankrupt, has the right to wind up the partnership affairs; except that any partner, his legal representative, or his assignee, upon cause shown, may obtain winding up by the court.

      . It appears from the complaint that Barish continued to be the attorney who represented plaintiffs as against the steamship company.

      . Including power of attorney forms signed by the various plaintiffs.

      . In Exhibit "A” of Witkes’ affidavit he has submitted a letter which appears to be a discharge of counsel from Carlos Giacomino. If this letter was to be established as authentic, it may release Daniels from any liability to Giacomino; however, Witkes merely avers that he received it from defendant Barish’s file. This alone does not authenticate this writing. Because the letter has not been shown to be authentic, I cannot consider it on a summary judgment motion. Fed.R.Civ.P. 56(e).

      . The law firm originally engaged was Adler, Barish, Daniels, Levin & Creskoff, the succeeding law firm was Adler, Barish, Levin & Creskoff. The fact that a person's name does not appear in the firm’s name does not necessarily mean that the person is not a partner with the firm. Additionally, I note that the new firm’s name may be confusingly similar to the first firm’s name so that the plaintiffs were not aware of Daniels’ absence.