author: JAMES HARVEY, District Judge.

text:
    Charlotte BUERO and Robert Buero, Plaintiffs, v. Victor TRIERWEILER, et al., Defendants. William BUERO, Plaintiff, v. Victor TRIERWEILER, et al., Defendants.
    Civ. A. Nos. 77-30002, 77-30004.
    United States District Court, E.D. Michigan, S.D.
    Aug. 29, 1985.
    Samuel W. Barr, Troy, Mich., for Charlotte & Robert Buero.
    Hugh M. Davis, Jr., Detroit, Mich., for William Buero.
    Thomas A. Kulick, Mark E. Blumer, Asst. Attys. Gen., Lansing, Mich., for defendants.
   MEMORANDUM OPINION AND ORDER

JAMES HARVEY, District Judge.

The Court again has before it plaintiffs’ request for attorney fees in the two above captioned civil rights actions. In these actions, the plaintiffs brought suit against four Michigan State Troopers under 42 U.S.C. § 1983 alleging that they had violated various of the plaintiffs’ federal constitutional rights. The plaintiffs also raised pendent state claims. Both the federal constitutional claims under Section 1983 and the pendent state claims were predicated on charges of false arrest, false imprisonment, use of excessive force, illegal search and seizures, malicious prosecution, and intentional infliction of mental distress. The two actions were consolidated and tried to a jury which returned a verdict in favor of the plaintiffs.

As to plaintiff Charlotte Buero, the jury found that the defendants were liable to her only on her pendent state claim for intentional infliction of mental distress. In accordance with that finding, the jury awarded her $50,000.00 in compensatory damages and $20,000.00 in punitive damages. Similarly, as to plaintiff Robert Buero, the jury found in his favor only on the same pendent state claim and awarded him $5,000.00 in compensatory damages and $12,500.00 in punitive damages. The jury found against Charlotte and Robert Buero on each of their federal constitutional claims. Attorney Samuel W. Barr represented both of these plaintiffs.

As to plaintiff William Buero, the jury found that the defendants had violated his federal constitutional rights as raised in his claim under 42 U.S.C. § 1983. Based upon that finding, the jury awarded him $1.00 in nominal damages and $10,000.00 in punitive damages. Plaintiff William Buero was represented by Hugh M. Davis, Jr.

Following entry of the verdict returned by the jury, plaintiffs’ attorneys filed separate motions for attorney fees and costs under 42 U.S.C. § 1988. Attorney Barr sought $39,800.00 in attorney fees and costs while attorney Davis asked the Court to award him $60,955.87 in fees and costs. The defendants vigorously opposed any award of attorney fees to attorney Barr for the reason that they believed that neither Charlotte nor Robert Buero were prevailing parties within the meaning of 42 U.S.C. § 1988. Alternatively, the defendants argued that the attorney fees requested by Charlotte and Robert Buero were excessive. In regard to the attorney fees requested by attorney Davis, the defendants argued that they were clearly excessive.

The Court considered defendants’ objections to the requested attorney fees at length in its opinion dated July 30, 1982. In doing so, the Court rejected defendants’ arguments that neither Charlotte nor Robert Buero was a prevailing party within the meaning of 42 U.S.C. § 1988. In reaching that conclusion, the Court relied heavily upon the Sixth Circuit’s decision in Seals v. Quarterly County Court, 562 F.2d 390 (6th Cir.1977). Based upon its conclusion that Charlotte and Robert Buero were prevailing parties within the meaning of Section 1988, the Court awarded attorney Barr attorney fees and costs in the amount of $28,050.00. Turning to the attorney fees requested by William Buero’s attorney, Mr. Davis, the Court found that many of the hours which served as the basis of his requested fee were clearly excessive, duplicative, and unnecessary. Accordingly, the Court struck thirty three percent of attorney Davis’ out-of-court hours and awarded him attorney fees and costs in the amount of $32,746.25.

Following entry of the Court’s Order, the defendants appealed to the Sixth Circuit 727 F.2d 1108 which remanded the case so that this Court could reconsider the award of attorney fees in light of the Supreme Court’s decision in Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983). Having reconsidered its opinion in light of Hensley and the Supreme Court’s more recent decision in Smith v. Robinson, — U.S. —, 104 S.Ct. 3457, 82 L.Ed.2d 746 (1984), the Court will strike the award of attorney fees to attorney Barr. Succinctly, the Court now believes that the defendants were correct in arguing that plaintiffs Charlotte and Robert Buero are not prevailing parties within the meaning of 42 U.S.C. § 1988.

A proper resolution of the requests for attorney fees in the ease at bar involves not only considerations of how the extent of a plaintiff’s success under Section 1983 impacts on the amount of the award under Section 1988, but also considerations of how the joinder of nonfee pendent state claims impacts on a Section 1988 award. See Smith v. Robinson, supra.

In Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983), the Supreme Court held that

the extent of a plaintiffs success is a crucial factor in determining the proper amount of an award of attorney’s fees under 42 U.S.C. § 1988 [42 U.S.C.S. § 1988]. Where the plaintiff has failed to prevail on a claim that is distinct in all respects from his successful claims, the hours spent on the unsuccessful claim should be excluded in considering the amount of a reasonable fee. Where a lawsuit consists of related claims, a plaintiff who has won substantial relief should not have his attorney’s fee reduced simply because the district court did not adopt each contention raised. But where the plaintiff achieved only limited success, the district court should award only that amount of fees that is reasonable in relation to the results obtained. Hensley, at 440-441, 103 S.Ct. at 1943, 76 L.Ed.2d at 54-55.

Thus, in those cases where a plaintiff has raised several distinct theories and has failed to prevail on each of them and thereby obtains only limited relief, the Court should analyze the request for attorney fees and refrain from awarding fees for those legal services which are unrelated to the theories upon which the plaintiff ultimately prevailed.

Bearing these general principals in mind, the Court believes that it must also consider the importance of the fact that the plaintiffs in the case presently before it alleged not only federal constitutional claims under 42 U.S.C. § 1983, but also nonfee pendent state claims. In this regard, the Court believes that the Supreme Court’s decision in Smith v. Robinson, — U.S. —, 104 S.Ct. 3457, 82 L.Ed.2d 746 (1984), is instructive.

The petitioner in Smith was an eight year old boy who suffered from cerebral palsy and who sued to obtain “free appropriate education.” The petitioner brought suit in federal district court pursuant to both the Education of the Handicapped Act (EHA), 84 Stat. 175 (1975) (codified as amended at 20 U.S.C. §§ 1400 et seq.) (1976), and under 42 U.S.C. § 1983. Having achieved most of the relief sought, the petitioner requested attorney fees under 42 U.S.C. § 1988. The specific question before the Supreme Court was the propriety of such an award.

The petitioner in Smith argued that the Court of Appeals had “simply ignored the guidance of this Court in Maher v. Gagne [448 U.S. 122, 100 S.Ct. 2570, 65 L.Ed.2d 653 (1980) ], supra, that a prevailing party who asserts substantial but unaddressed constitutional claims is entitled to attorney’s fees under 42 U.S.C. § 1988____” Smith, at —, 104 S.Ct. at 3465, 82 L.Ed.2d at 760. The Supreme Court rejected that argument and, in doing so, reaffirmed many principles applicable in the case now in issue. While the Supreme Court ultimately concluded in Smith that, in enacting the EHA, Congress intended to preclude reliance on Section 1983, Id. at —, 104 S.Ct. at 3469, 82 L.Ed.2d at 765, this Court does not believe that that fact alone diminishes the precedential value of Smith in the case at bar.

Initially, the Supreme Court noted in Smith that “if a litigant could obtain fees simply by an incantation of § 1983, fees would become available in almost every case.” Id. at —, 104 S.Ct. at 3465, 82 L.Ed.2d at 759 (footnote omitted). By that language, the Court was clearly indicating that it disapproved of such a view of Sections 1983 and 1988. The Supreme Court went on to note two important observations which are directly relevant to this case. First, the Court noted that

In light of the requirement that a claim for which fees are awarded be reasonably related to the plaintiff’s ultimate success, it is clear that plaintiffs may not rely simply on the fact that substantial fee-generating claims were made during the course of the litigation. Closer examination of the nature of the claims and the relationship between those claims and petitioners’ ultimate success is required.
Id. at —, 104 S.Ct. at 3467, 82 L.Ed.2d at 762.

Shortly thereafter, in a footnote, the Court wrote:

Where it is clear that the claims that provide for attorney’s fees had nothing to do with a plaintiff’s success, Hensley v. Eckerhart, supra, requires that fees not be awarded on the basis of those claims. Id. at — n. 12, 104 S.Ct. at 3468 n. 12, 82 L.Ed.2d at 763, n. 12.

Bearing the principals announced in Hensley, supra, and Smith, supra, closely in mind, and accepting that, factual similarity is an insufficient basis for an award of Section 1988 attorney fees, Smith at —, 104 S.Ct. at 3465, 82 L.Ed.2d at 759, the Court finds that it must strike its earlier award of attorney fees to attorney Barr. Succinctly, the Court believes that neither Charlotte nor Robert Buero is a prevailing party under 42 U.S.C. § 1988 in that the jury found against both of these plaintiffs on their federal constitutional fee-generating claims. Although the jury did find in favor of Charlotte and Robert Buero on their nonfee pendent state claims, the Court finds that this is an insufficient basis for an award of attorney fees. To allow attorneys fees in such a case would be to allow them on the basis of factual similarity alone and to allow attorney fees where it is clear that state law would not otherwise do so.

Having reviewed the Court’s earlier decision in regard to the award of attorney fees to attorney Davis, the Court finds no palpable error. Therefore, the Court will abide by and affirm its earlier award of fees to attorney Davis.

Accordingly, the Court’s earlier decision is hereby modified to the extent that the award of attorney fees to attorney Barr under 42 U.S.C. § 1988 is stricken and the requested fees disallowed. The Court will affirm its earlier award of fees to attorney Davis.

IT IS SO ORDERED.


source: Caselaw Access Project

author: CAHILL, District Judge.

license: Public Domain

text:
    James MOONEY, et al., Plaintiffs, v. Charles BRYMER, et al., Defendants-Third Party Plaintiffs, v. Michael FRIERDICH, Third-Party Defendant.
    No. 84-1272 C (4).
    United States District Court, E.D. Missouri.
    Aug. 29, 1985.
    Theodore D. Dearing, Dearing & Hartzog, Clayton, Mo., for plaintiffs.
    Francis L. Ruppert, Ruppert and Benjamin, Clayton, Mo., for defendant.
   MEMORANDUM AND ORDER

CAHILL, District Judge.

This matter comes before the Court on third-party defendant Michael Frierdich’s motion to dismiss the third-party complaint for lack of personal jurisdiction, and on third-party plaintiff’s request for an oral hearing.

This Court in a memorandum and order dated December 11, 1984, dismissed defendant Frierdich (now third-party defendant Frierdich) from this lawsuit for lack of personal jurisdiction. To date, there has been nothing added to the record that would indicate that third-party defendant Frierdich engaged in any activities within the state of Missouri so as to meet the minimum contacts requirement as set out in Worldwide Volkswagen v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 567, 62 L.Ed.2d 490 (1976), and Scullin Steel v. National Ry. Utilization Corp., 676 F.2d 309, 311 (8th Cir.1982). Thus, the Court still lacks personal jurisdiction over third-party defendant Frierdich, and therefore, his motion to dismiss the third-party complaint will be granted. Accordingly,

IT IS HEREBY ORDERED that third-party defendant Frierdich’s motion to dismiss the third-party complaint is GRANTED.

IT IS FURTHER ORDERED that third-party plaintiffs request for oral argument is DENIED.


author: ALLEY, District Judge.

text:
    PROFESSIONAL ASSETS MANAGEMENT, INC., Plaintiff, v. PENN SQUARE BANK, N.A., et al., Defendants.
    Nos. Civ-82-1357-A, Civ-83-69-A, Civ-83-1583-A, Civ-83-1596-A, Civ-83-3117-A, Civ-84-1663-A, Civ-84-1671-A, Civ-84-1672-A, Civ-84-1678-A, and Civ-84-1612-A.
    United States District Court, W.D. Oklahoma.
    Aug. 30, 1985.
    Stanley W. Levy, Ross Arbiter, Lyle R. Mink & K. Phillip Knierim, Barbara Brown, Mark S. Simonian, Gordon, Weinberg, Zipser, Los Angeles, Cal., Erwin E. Adler, Rogers & Wells, Patricia A. Beaman, Carol B. Sherman, Allan E. Ceran, Los Angeles, Cal., William Doyle, Jones, Givens, Gotcher, Doyle & Bogan, Inc., Tulsa, Okla., Gene A. Castleberry & Robert A. Wiener, Law Offices of Gene A. Castleberry, Oklahoma City, Okla., for plaintiff.

      Stephen P. Friot, Spradling, Alpern, Friot & Gum, Oklahoma City, Okla., John W. Vardaman, Jr. and David D. Aufhauser, John K. Villa, Gerson A. Zweifach, Williams & Connolly, Washington, D.C., Peter B. Bradford, Bradford, Haswell, Jones, Oklahoma City, Okla., Jack G. Bush, Gary R. Underwood, Tulsa, Okla., Murray E. Abowitz, Abowitz & Welch, Oklahoma City, Okla., Robert C. Margo, George F. Short, S. Thomas Adler, Short, Barnes, Wiggins, Margo, Adler & Worten, Oklahoma City, Okla., Richard E. Comfort, Claire E. Barrett, Hall, Estill, Hardwick, Gable, Collingsworth & Nelson, Tulsa, Okla., John C. Snodgrass & David T. Hedges, Jr., Vinson & Elkins, Houston, Tex., James E. Work, Shirk, Work, Robinson & Williams, Oklahoma City, Okla., J. William Conger & James C. Prince, Larry D. Hartzog, Hartzog, Conger & Cason, Oklahoma City, Okla., Earl D. Mills, John M. Perry III, Mills, Whitten, Mills & Mills, Oklahoma City, Okla., Charles C. Green, Turner, Turner, Green & Braun, Oklahoma City, Okla., Richard B. Talley, Talley, Perrine & Smith, Norman, Okla., James W. Bill Berry, James W. Bill Berry & Associates, Oklahoma City, Okla., Harold M. Durall, Oklahoma City, Okla., Reid E. Robison, John N. Hermes, McAfee & Taft, Oklahoma City, Okla., Stephen D. Powell, Kirk & Chaney, Oklahoma City, Okla., John N. Goodman, Oklahoma City, Okla., Burck Bailey, Warren F. Bickford IV, Fellers, Snider, Blankenship, Bailey & Tippens, Oklahoma City, Okla., Charles C. Baker, Oliver S. Howard, Gable & Gotwals, Tulsa, Okla., Noma D. Gurich, Murray E. Abowitz, Abowitz & Welch, Oklahoma City, Okla., Andrew B. Weissman, Wilmer, Cutler & Pickering, Washington, D.C., Judson M. Fink, Oklahoma City, Okla., K. Phillip Knierim, Mark S. Simonian, Wood, Luck-singer & Epstein, Los Angeles, Cal., for defendants.
   ORDER

ALLEY, District Judge.

Background

Plaintiff Professional Assets Management, Inc., has moved to vacate this Court’s Order of November 26,1984, which dismissed the civil RICO claims asserted under 18 U.S.C. § 1962 in PAM’s Second Amended Complaint against defendant Peat, Marwick, Mitchell & Co. The Order of November 26 was based on PAM’s failure to plead a separate racketeering injury. On July 1,1985, in Sedima, SPRL v. Imrex Co., — U.S. —, 105 S.Ct. at 3275, 87 L.Ed.2d 346 (1985), the Supreme Court held that a separate racketeering injury was not an element of civil RICO liability, and that violation of 18 U.S.C. § 1962(c), as alleged by PAM, consists of (1) the conduct, (2) of an enterprise, (3) through a pattern, (4) of racketeering activity. (Sedima, — U.S. at —, 105 S.Ct. at 3285). The Court notes in Sedima that “the questions whether the defendants committed the requisite predicate acts, and whether the commission of those acts fell into a pattern, are not before us.” — U.S. at —, 105 S.Ct. at 3287. This court has not examined the pattern requirement under the faint light Sedima casts on it. (See Rother v. LaRenovista Estates, Inc., No. 83-206-R (W.D.Okl. Aug. 7, 1985) at 2).

Apparently, though not explicitly, PAM advances its motion based on Federal Rule of Civil Procedure 60(b)(5) or (6), which authorizes relief from a judgment when “(5) a prior judgment upon which it is based has been reversed or otherwise vacated, or (6) it is no longer equitable that the judgment should have prospective application; or any other reason justifying relief from the operation of the judgment.” In this Circuit, relief under Rule 60(b) because of a change in precedent is directed to the trial court’s discretion and consideration in equity. Pierce v. Cook & Co., Inc., 518 F.2d 720 (10th Cir.1975); cert. den. 423 U.S. 1079, 96 S.Ct. 866, 47 L.Ed.2d 89 (1976). Peat opposes reinstatement of PAM’s RICO claim on grounds that the allegations fail to establish a “pattern” of racketeering activity.

Discussion

RICO allegations in No. CIV-82-1357 and CIV-84-1663

As a matter of statutory definition (18 U.S.C. § 1961(5)), a “pattern” must be established by “at least two acts of racketeering activity.” “To prove a pattern in a criminal RICO case, the government must establish two or more predicate offenses which are related to the activities of the enterprise.” U.S. v. Zang, 703 F.2d 1186, 1194 (10th Cir.1982), cert. denied, 464 U.S. 828, 104 S.Ct. 103, 78 L.Ed.2d 107 (1983); accord, U.S. v. Weinstein, 762 F.2d 1522 (11th Cir.1985). Moreover, RICO does not apply to every pattern of racketeering activity; the gravamen of a RICO violation “is the conduct of an enterprise through a pattern of racketeering activity.” U.S. v. Phillips, 664 F.2d 971, 1011 (5th Cir.1981), cert. denied, 457 U.S. 1136, 102 S.Ct. 2965, 73 L.Ed.2d 1354 (1982) (emphasis supplied).

Taken as a whole, PAM’s allegations concerning Peat pertain to the accounting firm’s preparation and issuance of the December 31, 1981, audit report on Penn Square Bank. Count 4 of PAM’s second amended complaint asserts that Peat’s engagement and audit report constituted fraud; Count 5 asserts that Peat’s execution of the audit was negligent, and Count 7 incorporates the congeries of prior allegations into the following RICO claim:

82. The aforesaid activities of defendants constituted, and were in furtherance of, schemes and artifices to defraud which were devised or intended to be devised by said defendants. PAM ... alleges that defendants, and each of them, employed the mails and wire or telephonic communications in interstate commerce on more than one occasion in order to execute such schemes or artifices, in violation of 18 U.S.C. sections 1341 and 1343.
83. Said acts of defendants constitute “racketeering activities” under 18 U.S.C. section 1961(1); and at least one such act, with respect to each defendant, occurred within ten years after the commission of a prior such act, so that said defendants are guilty of a ‘pattern of racketeering activity’ under 18 U.S.C. section 1961(5) ...
84. Penn Square Bank, First Penn (Corp, the bank’s holding company), and Peat Marwick are each an ‘enterprise’ under 18 U.S.C. 1961(4), and are each involved in interstate commerce; and all said defendants are ‘persons’ under 18 U.S.C. section 1961(3).
85. Said defendants conducted and participated in the conduct of the aforesaid enterprises’ affairs through a pattern of racketeering activity, in violation of 18 U.S.C. section 1962(c), and said defendants conspired to do so, in violation of 18 U.S.C. section 1962(d).
Second Amended Complaint, para. 82-85, at 60-61 (July 11, 1983).

Many constituent actions were necessary to prepare the audit report, but it was a single, unified transaction. Viewed in the light most favorable to PAM, the complaint is insufficient.

Although Sedima did not reach the “pattern” issue, the Court addressed the elements of a “pattern” in terms of both numbers and relationships:

“As many commentators have pointed out, the definition of a ‘pattern of racketeering activity’ differs from the other provisions in § 1961 in that it states that a pattern ‘requires at least two. acts of racketeering activity,’ § 1962(5) (emphasis added), not that it ‘means’ two such acts. The implication is that while two acts are necessary, they may not be sufficient. Indeed, in common parlance two of anything do not generally form a ‘pattern. ’ The legislative history supports the view that two isolated acts of racketeering activity do not constitute a pattern. As the Senate Report explained: ‘The target of [RICO] is thus not sporadic activity. The infiltration of legitimate business normally requires more than one “racketeering activity” and the threat of continuing activity to be effective. It is this factor of continuity plus relationship which combines to produce a pattern.’ S.Rep. No. 91-617, p. 158 (1969) (emphasis added).

Sedima, 53 U.S.L.W. at 5038, n. 14.

The recent case of Northern Trust Bank/O’Hare v. Inryco, Inc., 615 F.Supp. 828 (N.D.Ill.1985), applied Sedima’s interpretation of RICO to a kickback scheme including several separate entities, payments and bank accounts. The Inryco court reasoned that “ ‘pattern’ ... connotes a multiplicity of events. Surely the continuity inherent in the term presumes repeated criminal activity, not merely repeated acts to carry out the same criminal activity. It places a real strain on the language to speak of a single fraudulent effort, implemented by several fraudulent acts, as a ‘pattern of racketeering activity.’ (citation).” On this basis, Inryco held that several mailings in furtherance of the ongoing kickback scheme did not establish a RICO “pattern.”

This Court agrees with the court in Inryco that, in light of Sedima, proper emphasis must be placed on “pattern” as an independent component of a RICO claim. Inryco, at 831. The pattern requirement, as one of the elements of a civil RICO claim, must be “strictly adhered to.” Ralston v. Capper, 569 F.Supp. 1575, 1580 (E.D. Mich.1983). PAM’s claim against Peat Marwick is not based on a “pattern”, as that term was elaborated in Sedima and Inryco, but arises simply from one engagement to perform one audit of Penn Square Bank.

The terms of this order extend as well to the motion of Wood Products Credit Union in Cause No. CIV-84-1663-A to reinstate its RICO claim.

Discussion

RICO allegations in Cause No. 84-1612-A

Cause No. 84-1612-A initially was filed by the Receiver of Penn Square against the Bank’s officers, directors and auditors. Peat Marwick was named as a defendant. Peat filed third party complaints against PAM and the credit union plaintiffs in the consolidated cause No. 82-1357-A, as well as against several out-of-state banks that had conducted business with Penn Square. PAM counterclaimed against Peat in the third party action, and the issues between PAM and Peat in No. 84-1612-A resemble those between them in No. 82-1357-A. Therefore, much of the preceding discussion is pertinent to the later action. However, the “enterprise” and “pattern of racketeering activities” alleged in PAM’s 84-1612-A counterclaim differ slightly from its earlier complaint.

The “enterprise” alleged in 84-1612-A is Peat’s “providing certain auditing services to its various clients, including Penn Square Bank.” After identifying the enterprise, the counterclaim treats various financial relationships among Peat, its other customers and Penn Square, and alleges efforts by the Bank directors to salvage or conceal the Bank’s liquidity problems. (There is no allegation that PAM itself conducted business with Peat directly or with Peat’s other clients.) PAM then avers:

“77. In its conduct of and participation in the enterprise commencing no later than December 1981 and thereafter, Peat Marwick engaged in a pattern of rackteering activities in violation of 18 U.S.C. § 1962(c), which included its engagement in a fraudulent device, scheme, and artifice to disseminate false and misleading information regarding the condition of Penn Square Bank in order to further the financial interests of its various clients and the Bank, ... which involved mail and wire fraud indictable under 18 U.S.C. §§ 1341 and 1343.
“78. Said acts of Peat Marwick constitute ‘racketeering activities’ under 18 U.S.C. §.1961(1), ...”

The “pattern” here alleged is Peat’s “scheme ... to disseminate false and misleading information regarding the condition of Penn Square Bank.” Assuming, arguendo, that such a “scheme” existed and that multiple wire or telephone communications were made in its furtherance, it remains apparent that any statements were merely constituents of a single, unified activity. This is not a situation where several distinct torts or crimes are committed over the course of an enterprise; here the court finds only a series of related statements that PAM tries to splinter into the several elements of a civil RICO cause of action.

Just as a series of kickback payments did not amount to a pattern in Inryco, Peat’s sequential representations in furtherance of its alleged “scheme” do not constitute a pattern. The requirements of § 1962(c) are not satisfied through multiplicity in pleading. Count IV of PAM’s counterclaim fails to state a claim for relief.

Conclusion

PAM’s motion to vacate this Court’s order of November 26, 1984, is DENIED. PAM’s RICO claims remain dismissed in Cause No. CIV-82-1357-A, as are Wood Product’s RICO claims in Cause No. CIV-84-1663-A and Count IV of PAM’s counterclaim in Cause No. CIV-84-1612-A.

      . A change in decisional law is not universally recognized as a basis for relief under Rule 60(b)(5). Some circuits hold that Rule 60(b)(5) "does not authorize relief from a judgment on ground that the law applied by the court in making its adjudication has been subsequently overruled or declared erroneous in another proceeding. 7 Moore’s Federal Practice, par. 60.-26(3) at 325.” Lubben v. Selective Service System Local Bd. No. 27, 453 F.2d 645 (1st Cir. 1972). According to this view, Rule 60(b)(5) applies only when the prior judgment has direct res judicata or collateral estoppel implications. Marshall v. Bd. of Education, 575 F.2d 417, 425 (3d Cir.1978); Coalition of Black Leadership v. Cianci, Jr., 570 F.2d 12 (1st Cir.1978); Title v. U.S., 263 F.2d 28 (9th Cir.1959), cert. den. 359 U.S. 989, 79 S.Ct. 1118, 3 L.Ed.2d 978 (1959); Berryhill v. U.S., 199 F.2d 217 (6th Cir. 1952).
      At one time the Tenth Circuit apparently applied this restriction to the grounds for Rule 60(b)(6) motions. In Collins v. City of Wichita, Kansas, 254 F.2d 837 (10th Cir.1958), the court denied relief under the Rule to landowners who had suffered an adverse judgment based on a statutory notice requirement later held unconstitutional by the Supreme Court. The court favored maintaining finality, so "... the fact that a court may have made a mistake in the law when entering judgment, or that there may have been a judicial change in the court’s view of the law after its entry, does not justify setting it aside.” 254 F.2d at 839.
      Later, however, the Tenth Circuit decided Pierce v. Cook & Co., 518 F.2d 720 (10th Cir. 1975), cert. denied 423 U.S. 1079, 96 S.Ct. 866, 47 L.Ed.2d 89 (1976), which granted a 60(b)(6) motion where the state court decision underpinning this Court’s decision in a diversity case was expressly overruled by the Oklahoma Supreme Court. Pierce has been criticized (note, 124 U.Pa.L.Rev. 843 (1976), but it is still the law of this Circuit, and it indicates that a change in relevant decisional law by this nation’s highest tribunal should be taken into account under Rule 60(b). Other courts as well have held that “intervening and supervening Supreme Court decisions can often provide adequate justification” for relief under 60(b)(5) and 60(b)(6) (EEOC v. Baltimore & Ohio Railroad Co., 557 F.Supp. 1112, 1116 (D.Md.1983), although still others have held that a change by the Supreme Court in law applicable to a previously entered judgment does not warrant Rule 60(b) relief. McKnight v. U.S. Steel Corp., 726 F.2d 333, 336 (7th Cir.1984).
      Vacating the November 26th Order does not run afoul of the interest in finality espoused in Collins, where the motion to vacate was based on a Supreme Court opinion in an entirely different case that issued more than a year after final judgment was entered by the district court in Collins. The instant suit has not reached judgment, and this Order concerning a pretrial motion will issue well in advance of trial. The post-judgment time span of several years, which concerned the court in Pierce and would concern this Court as well, is similarly absent. Moreover, the opportunity to revise the court’s earlier decision with a recent and significant Supreme Court decision that is “outcome determinative” of a cause of action serves "substantial justice,” which Pierce also addresses. Fleming v. Gulf Oil Corp., 547 F.2d 908, 913 (10th Cir.1977).

      . In reaching this conclusion, the court does not decide whether the association among the defendants here constituted an "enterprise” (see, U.S. v. Turkette, 452 U.S. 576, 583, 101 S.Ct. 2524, 2528-29, 69 L.Ed.2d 246 (1981); U.S. v. Weinstein, 762 F.2d at 1537; Anno. 52 A.L.R. Fed. 818 (1981). Turkette defined an "enterprise” as a "group associated together for a common purpose of engaging in a course of conduct,” and held that the existence of an enterprise is established by "evidence of an ongoing organization, formal or informal, and by evidence that the various associates function as a continuing unit. The latter is proved by evidence of the requisite number of acts of racketeering committed by the participants in the enterprise.” 452 U.S. at 583, 101 S.Ct. at 2528-29; Joseph v. Algemene Bank Nederland NV., 592 F.Supp. 141, 146 (W.D.Pa.1984). Nor does the court express an opinion as to whether there was a sufficient nexus between the alleged racketeering activity and the "enterprise,” to establish that the enterprise was "conducted” through a pattern of racketeering, within the meaning of Sedima and Zang. See U.S. v. Provenzano, 688 F.2d 194, 200 (3d Cir.1982); cert. denied, 459 U.S. 1071, 103 S.Ct. 492, 74 L.Ed.2d 634; U.S. v. Scotto, 641 F.2d 47, 54 (2d Cir.1980), cert. denied, 452 U.S. 961, 101 S.Ct. 3109, 69 L.Ed.2d 971 (1981) (if predicate racketeering acts unrelated to enterprise, no RICO liability attaches). It is also unnecessary to address the issue of relatedness among the predicate acts, an issue which has elicited conflicting decisions. Some courts require that the racketeering acts "must have been connected with each other by some common scheme, plan or motive so as to constitute a pattern and not simply a series of disconnected acts." (Inryco, discussing U.S. v. Starnes, 644 F.2d 673 (7th Cir.1981), cert denied, 454 U.S. 826, 102 S.Ct. 116, 70 L.Ed.2d 101 (1981). Others take the position that the predicate acts "need not be related to each other but must be releated to the affairs of the enterprise.” U.S. v. Phillips, supra, U.S. v. Weisman, 624 F.2d 1118, 1122-23, (2d Cir.1980), cert. denied, 449 U.S. 871, 101 S.Ct. 209, 66 L.Ed.2d 91 (1980).


author: NANGLE, Chief Judge.

text:
    Mario P. COMERIO, Plaintiff, v. BEATRICE FOODS COMPANY, Defendant.
    No. 84-1474C(1).
    United States District Court, E.D. Missouri, E.D.
    Sept. 3, 1985.

      James J. Sauter, St. Louis, Mo., for plaintiff.
    Anthony J. Sestrie, St. Louis, Mo., for defendant.
   MEMORANDUM

NANGLE, Chief Judge.

Mario P. Comerio brought this action under Mo.Rev.Stat. § 290.140 (1978) after leaving employment with Imperial Oil and Grease Company, a- division of Beatrice Companies, Inc. during the period of plaintiff’s employment. In Count I of his complaint, he claimed that though he requested of his employer a service letter to which he is entitled by Missouri statute, he received no service letter from his former employer. In Count II, Comerio alleged that his employer breached the employment contract by relieving him of his obligations under a restrictive covenant in a dilatory fashion. After a trial on these issues, a jury found for plaintiff on the service letter cause of action, awarding him $1.00 actual damages and $14,700.00 punitive damages, and against him on the contract count. Defendant moved for a judgment notwithstanding the verdict or, in the alternative, for a new trial on the service letter count. Plaintiff moved for a new trial on the contract count. This Court will consider these matters in turn and set forth the facts relevant to each motion as necessary.

I.

Defendant’s motion for judgment notwithstanding the verdict has two bases: (1) the plaintiff failed to comply with the requirement of the service letter statute; (2) the plaintiff’s evidence did not show the requisite malice to submit the issue of punitive damages to the jury.

When ruling on a motion for judgment notwithstanding the verdict, this Court must (a) consider the evidence in the light most favorable to the prevailing party, (b) assume that the jury resolved all conflicts of evidence in favor of that party, (c) assume as true all facts which that party’s evidence tended to prove, (d) give that party the benefit of all favorable inferences which may reasonably be drawn from proved facts, and (e) deny the motion if in light of the above reasonable jurors could differ as to the conclusions that could be drawn from the evidence. McGee v. South Pemiscot School Dist. R-V, 712 F.2d 339, 343 (8th Cir.1983). Though verbal formulations of the standard may vary, a federal court asks essentially whether there is evidence upon which the jury could properly find for the party against whom the motion is directed. 9 C. Wright & A. Miller, Federal Practice and Procedure § 2524 (1971).

In arguing that plaintiff failed to comply with the service letter statute, defendant reargues a point decided against defendant in an earlier Order and Memorandum of this Court. Mario P. Comerio v. Beatrice Foods Company, 595 F.Supp. 918 (E.D.Mo.1984) (order denying defendant’s motion to dismiss). Nothing during the trial of this case or in defendant’s arguments on this motion convinces this Court that plaintiff failed to comply adequately with the service letter statute. Thus, defendant’s motion for judgment n.o.v. is denied to the extent it relies upon plaintiff’s failure to comply with the statute.

As defendant also contends, the issue of punitive damages should not have been submitted to the jury because the plaintiff failed to show the requisite malice. At trial, plaintiff presented defendant’s failure to respond to his request letter as the only-evidence of malice. Therefore, the issue to be decided on this motion for judgment n.o.v. is whether defendant’s failure to respond to plaintiff’s request for a service letter is sufficient evidence of malice to sustain a jury verdict on punitive damages. This Court holds that it is not.

Missouri courts handle service letter cases with some frequency and their decisions are instructive on the issue of punitive damages. In a Missouri service letter case, before a jury may award punitive damages, the plaintiff must show actual or legal malice on the part of the defendant. See Schmidt v. Central Hardware Company, 516 S.W.2d 556, 560 (Mo.Ct. App.1974); Booth v. Quality Dairy Company, 393 S.W.2d 845, 851 (Mo.Ct.App. 1965). The record in this case does not support actual malice; therefore, plaintiff may rely only on legal malice, which exists where a wrongful act is intentionally done without just cause or excuse. 516 S.W.2d at 560. A party may defend against a finding of legal malice by demonstrating lack of knowledge of the service letter statute. Id. In permitting a jury instruction on lack of knowledge as a defense under the service letter statute, the Missouri Court of Appeals noted, as follows:

The party must know that the act is wrongful and must do it intentionally without just cause or excuse. If he acts in good faith and in the honest belief that his act is lawful, he is not liable for punitive damages even though he may be mistaken as to the legality of his act.

393 S.W.2d at 851 (quoting Hall v. St. Louis-San Francisco R. Company, 224 Mo.App. 431, 28 S.W.2d 687, 691 (1930)). More recently, the Missouri Supreme Court affirmed this standard in Stark v. American Bakeries Company, 647 S.W.2d 119, 123 (Mo. banc 1983), where the court held that to be assessed punitive damages, a defendant must not only have intended to perform the act but must have known it was wrongful when performed. Thus, in Missouri courts, lack of knowledge of the requirements of the service letter statute constitutes a defense to a finding of malice.

Generally, Missouri courts require a finding that the defendant knew of his legal obligation in order to award punitive damages. E.g., Pollock v. Brown, 569 S.W.2d 724, 733 (Mo. banc 1978). This requirement implies that evidence of defendant’s knowledge of and disregard for the service letter statute be present on the record. In the absence of such evidence, a plaintiff has not presented a submissible case on the issue of punitive damages. As plaintiff argues, punitive damages can be submitted to the jury and the jury can find legal malice merely upon the failure of the employer to respond to a service letter request. To support his argument, plaintiff cites two cases: Schmidt v. Central Hardward Company, 516 S.W.2d at 560; Wuerderman v. J.O. Lively Const. Company, 602 S.W.2d 215 (Mo.Ct.App.1980).

In Schmidt, the Missouri Court of Appeals permitted an award of punitive damages where the defendant failed to respond to plaintiff’s service letter request. However, the court also noted that evidence of actual malice was present in the record. 516 S.W.2d at 560. Thus, Schmidt does not support plaintiff’s conclusion that mere failure to respond constitutes evidence sufficient to grant punitive damages.

In Wuerderman, the Missouri Court of Appeals affirmed a jury award of punitive damages in a service letter case in which the defendant argued, first, that there was no evidence that it knew a failure to respond was wrongful and, second, that testimony as to lack of knowledge established good faith. The court responded, as follows:

Defendant has committed the common error of assuming that because its witness testified ... [that defendant did not supply the letter because it was unaware of the statute], the jury was bound by its evidence. Of course the jury was not bound and could accept or reject such evidence as it saw fit.

602 S.W.2d at 222 (quoting Bubke v. Allied Building Credits, 380 S.W.2d 516, 522 (Mo. Ct.App.1964)). Accordingly, the court concluded that mere failure to respond was sufficient evidence to support the submission of punitive damages. However, an examination of the facts reveals other evidence from which the jury could have inferred legal malice. For example, plaintiff was terminated without explanation, plaintiff cited the service letter statute in his request letter, and defendant consulted with a local attorney after receiving the request. Thus, while the court wrote broadly on the requirements for submission of punitive damages, the facts of the case reveal evidence of knowledge not present in the instant case.

Similarly, in a recent service letter case the Eighth Circuit upheld a jury award of punitive damages. Easley v. Empire, Inc., 757 F.2d 923 (8th Cir.1985). In addition to defendant’s failure twice to issue a service letter, the court cited evidence of defendant’s knowledge that a response letter was required and defendant’s pretextual reasons for its failure to issue a service letter as evidence sufficient to support a finding of legal malice. Again, the record in the instant case reveals no such evidence.

In other substantive areas of law, Missouri courts hold fast to lack of knowledge as a defense to an award of punitive damages. Moon v. Tower Grove Bank & Trust Company, 691 S.W.2d 399 (Mo.Ct. App.1985) (garnishment); Ozark Wood Industries v. First National Bank of Doniphan, 625 S.W.2d 651, 654 (Mo.Ct.App. 1981) (wrongful acquisition of personal property); Young v. Mercantile Trust Co. National Assoc., 552 S.W.2d 247, 250 (Mo. Ct.App.1977) (conversion). Moreover, Missouri courts consider the sufficiency of the evidence to permit a jury to award punitive damages a question of law within the reasoned discretion of the trial court. Moon, 691 S.W.2d 399; Deck and Decker Personnel Consultants, Ltd. v. Thomas, 623 S.W.2d 90, 92 (Mo.Ct.App.1981); Fordyce v. Montgomery, 424 S.W.2d 746, 751 (Mo. Ct.App.1968). A submissible case must rest upon substantial evidence, that is, evidence which, if true, has probative force upon the issues and from which the trier of fact can reasonably decide the case. Neil v. Mayer, 426 S.W.2d 711, 715 (Mo.Ct.App. 1968). Presumably, in the absence of such evidence the court should not uphold a jury award of punitive damages.

In the instant case, plaintiff argues that Missouri courts have carved out an exception for service letter cases from the usual legal malice rules. The exception would permit submission without evidence other than a lack of response to a request for a service letter. Arguably, this exception is justified by the remedial nature of the statute. However, the cases cited by plaintiff contained facts not present in this case upon which the jury could have found malice. Therefore, given plaintiff’s failure to demonstrate defendant’s knowledge of the statute and to present evidence of malice, this Court holds that plaintiff did not present a submissible case and grants defendant’s motion for judgment notwithstanding the verdict with regard to punitive damages.

In considering defendant’s motion for a new trial, this Court has greater discretion than in considering the above motion and may weigh the sufficiency of the evidence. See infra Part II. Applying the above analysis, this Court finds sufficient evidence of plaintiff’s compliance with the requirements of the service letter statute and denies defendant’s motion for a new trial on this ground. Having granted defendant’s motion for a judgment notwithstanding the verdict on punitive damages, defendant’s motion for a new trial on that issue is moot.

II.

Plaintiff moves for a new trial on Count II of plaintiff’s complaint, the breach of contract claim, on the ground that the verdict is against the weight of the evidence. In a diversity case, the question of whether a new trial is to be granted is a federal procedural question to be decided by reference to federal law, specifically Fed.R.Civ.P. 59. Pitts v. Electro-Static Finishing, Inc., 607 F.2d 799, 802 (8th Cir. 1979). The decision whether to grant a motion for a new trial is confined to the discretion of the trial court. Allied Chemical Corp. v. Daiflon, Inc., 449 U.S. 33, 36, 101 S.Ct. 188, 190, 66 L.Ed.2d 193 (1980). Generally, new trials are granted only if the record presents prejudicial error or substantial justice has not been done. Kehm v. Proctor & Gamble Company, 580 F.Supp. 890, 896 (D.C.Ia.1982); Seven Provinces Ins. Co., Ltd. v. Commerce & Industry Ins. Co., 65 F.R.D. 674, 688 (N.D. Mo.1975); 11 C. Wright & A. Miller, Federal Practice & Procedure § 2808, at 32 (1973). Though the court may weigh the evidence, disbelieve witnesses, and grant a new trial, even where there is substantial evidence to sustain the verdict, the court may not simply substitute its judgment for that of the jury. McGee, 712 F.2d at 344. The standard is a vague one and can probably not be formulated more precisely than to say that when after giving full respect to the jury’s findings, the judge is left with the definite and firm conviction that the jury has erred, the motion should be granted. Ryan By Ryan v. McDonough Power Equipment, Inc., 734 F.2d 385, 387 (8th Cir.1984); 11 C. Wright & A. Miller, Federal Practice & Procedure § 2806 (1973). Though no precise standard presents itself, courts commonly grant a new trial on the ground that the verdict was against the weight of the evidence. See, 11 C. Wright & A. Miller, Federal Practice & Procedure § 2806 (1973). Of course, the burden of demonstrating error lays upon the moving party. Hansen v. Barrett, 186 F.Supp. 527, 532 (D.C.Minn.1960). After a review of the evidence presented at this trial, this Court concludes that plaintiff failed to carry its burden.

As plaintiff alleged, defendant breached a restrictive covenant in plaintiff’s contract of employment. By the terms of the covenant, plaintiff agreed not to compete with his employer during the term of the contract and for at most two years afterward. Plaintiff agreed to use his best efforts to obtain employment which would not compete with his former employer. As the covenant further provided, if plaintiff was unable to obtain employment with equal compensation, defendant would either release plaintiff from the covenant or compensate plaintiff for the difference between compensation in a competitive position and compensation in a non-competitive position. To prevail on this count, plaintiff would have been required to show an exercise of his best efforts and the difference between competitive and non-competitive salaries, the latter requiring evidence that each salary was actually available to plaintiff. Though plaintiff presented evidence of a higher salary in a competitive position, the parties disagree as to the certainty with which plaintiff would actually receive the salary. In arguing this motion, plaintiff merely reiterates this dispute and fails to convince the Court that prejudicial error has entered the record or that substantial justice has not been done.

As plaintiff also argues, damage resulted from delay by defendant to exercise its option under the restrictive covénant. The covenant may fairly be read to require defendant to exercise the option within a reasonable time. Mario P. Comerio v. Beatrice Foods Company, 595 F.Supp. 918 (E.D.Mo.1984) (order denying defendant’s motion to dismiss). Whether the company acted reasonably under the contract is an issue for the jury, who could and did conclude that the company exercised its option within a reasonable time and that no damage resulted from delay. Plaintiff points to no prejudice or error in this regard. Therefore, this Court denies plaintiff’s motion for a new trial.

      . Because Federal and Missouri standards for granting judgment n.o.v. are the same, this Court need not choose between them. This decision follows the practice of the Eighth Circuit which has declined to reach the issue of whether to apply federal or state law when judging the sufficiency of the evidence for a submissible case. Easley v. Empire, Inc., 757 F.2d 923 (8th Cir.1985); Crues v. KFC Corp., 729 F.2d 1145 (8th Cir.1984); Compare, 712 F.2d at 343 (federal standard) with Dockery v. Mannisi, 636 S.W.2d 372 (Mo.Ct.App.1982) (state standard).


author: BUA, District Judge.

text:
    UNITED NATIONAL RECORDS, INC., on behalf of itself and all others similarly situated, Plaintiffs, v. MCA, INC., et al., Defendants.
    No. 82 C 7589.
    United States District Court, N.D. Illinois, E.D.
    Sept. 3, 1985.
    Granvil I. Specks, Specks & Goldberg, James B. Sloan, Sloan & Associates, P.C., Michael J. Freed, Much, Shelist, Freed, Denenberg, Ament & Eiger, Gary L. Specks, Altheimer & Gray, Chicago, Ill., on behalf of plaintiffs.
    Robert W. Bergstrom, Ronald W. Teeple, John L. Leonard, Bergstrom, Davis & Teeple, Chicago, Ill., on behalf of defendants United Artists Corp.
   MEMORANDUM ORDER

BUA, District Judge.

Before the Court is defendant United Artists Corporation’s motion for summary judgment. Also pending are cross motions for Rule 11 sanctions. For the reasons stated below, United Artists Corporation’s motion for summary judgment is granted and all Rule 11 motions are denied.

On November 9, 1984, the Court denied certain defendants’ motion for partial summary judgment on the statute of limitations issue. United National Records, Inc. v. MCA, Inc., 609 F.Supp. 33 (N.D.Ill. 1984). The Court held that plaintiffs had raised questions of fact as to whether the applicable four-year statute of limitations barred any pre-December 13, 1978 claims. Since the Court’s November 9 Order, all defendants, with the exception of United Artists Corporation, have entered into settlement agreements with the plaintiff class. Those settlements total 26.2 million dollars, excluding interest.

Defendant United Artists Corporation (“UAC”) had presented a separate motion for summary judgment, arguing, in addition to the statute of limitations defense, that as the former parent corporation of a record and tape producer, it was not liable for any alleged antitrust violations of its former subsidiary. The Court, on November 9, 1984, entered and continued UAC’s motion pursuant to Fed.R.Civ.P. 56(f) pending the completion of discovery. Plaintiffs have now completed discovery on that issue and UAC’s motion for summary judgment has been renewed and is now before the Court.

Notwithstanding UAC’s suggestion to the contrary, plaintiffs, as the nonmoving parties on this motion, do not bear the burden of establishing a question of fact in order to avoid summary judgment. Summary judgment for a defendant under Rule 56 is appropriate “only if the pleadings, depositions, and affidavits fail to disclose a genuine issue of material fact.” Gracyalny v. Westinghouse Electric Co., 723 F.2d 1311, 1316 (7th Cir.1983). In deciding the motion, the Court must “resolve all doubts against the party seeking summary judgment.” Id. Applying this standard, the following facts are assumed to be true for purposes of this motion.

I. FACTS

A. UAC’s Motion for Summary Judgment

Plaintiffs’ amended complaint charges that since January 1, 1971, defendants conspired to fix, maintain and stabilize the price of records and tapes in violation of § 1 of the Sherman Act, 15 U.S.C. § 1. UAC, a California corporation and distributor of motion picture films, has never been a producer of phonograph records or tapes. In November of 1968, however, UAC acquired 100 percent of the outstanding stock of Liberty Records, Inc., a California corporation engaged in the record business. Following UAC’s acquisition of Liberty’s stock, Liberty’s name was changed to Liberty/UA, Inc. In February of 1971, Liberty/UA, Inc. changed its name to United Artists Records, Inc. In September of 1974, United Artists Records, Inc. changed its name to United Artists Music and Records Group, Inc. Throughout this opinion, these wholly-owned subsidiaries of UAC will be referred collectively as “UAR”. UAC sold the stock of UAR in May of 1978. Throughout the November 1968 to May 1978 period, UAC owned 100 percent of the stock of UAR.

In addition to owning 100 percent of UAR’s stock, several UAC directors and officers held positions as directors or officers of UAR between 1971 and 1977. See Plaintiff’s Exhibit 13. For example, for a short period in 1971, the President of both UAR and UAC was David Picker. In April of 1971, Michael Stewart replaced Picker as President of UAR. During the period 1971-1975, Stewart served both as President of UAR and Vice President of UAC. In 1975, L.J. Bos, a Senior Vice President of UAC and member of UAC’s Executive Committee, became UAC liaison officer for UAC with responsibility for the operations of UAR. Bos, however, did not have direct authority over UAR personnel, but rather worked through Stewart, the President of UAR at the time. In November of 1975, Bos replaced Stewart as President and Chairman of the Board of UAR. Also during the 1971 to 1977 period, UAC made cash advances to UAR in the forms of interest- and noninterest-bearing notes. As of December 31, 1977, UAC advances to UAR totaled nearly $40 million. For a brief period in 1969, UAR’s payroll was paid by UAC out of UAC’s New York office.

UAR kept its own books and records throughout the 1971-1978 period. UAR financial statements from 1972 to 1978 show that its assets, liabilities, capital structure, expenses, and payroll were kept separate from UAC. Although a UAR branch office was located in UAC's headquarters in New York City, UAC’s executive offices were located at an office in Los Angeles.

Regarding UAR’s alleged involvement in the price fixing conspiracy, plaintiffs have uncovered evidence which suggests that UDC, a distribution company for UAR, acted as a vehicle for exchanging pricing information between UAR and its competitors. At one point in August of 1972, distribution agreements between UAR, MGM, and Polydor contained a built-in mechanism for the preannouncement exchange of pricing information. On September 25, 1972, a meeting took place between representatives of UAR, Polydor, and MGM in which an understanding on pricing was reached among those present. Michael Stewart, President of UAR and Vice President of UAC, attended that meeting.

In 1978, UAC sold the stock of UAR to M & R Music Corporation. In connection with the stock sale, UAC received repayment of its advances made to UAR between 1971 and 1978. On February 5, 1979, Capital Industries-EMI, Inc. acquired UAR from M & R Music Corporation. There is no evidence in the record to suggest that UAR was ever undercapitalized or otherwise not financially responsible for its debts and liabilities either while UAR was a wholly-owned subsidiary of UAC or after UAR was sold to M & R Music Corporation.

II. DISCUSSION

At the time of this Court’s November 9, 1984 opinion, Steven v. Roscoe Turner Aeronautical Corp., 324 F.2d 157, 160 (7th Cir.1963), was controlling precedent in this Circuit on the issue of a parent corporation’s liability for the wrongs of its wholly-owned subsidiary. The Seventh Circuit had applied the Roscoe Turner test to various cases which involved piercing the corporate veil. See, e.g., In re Palmer Trading Post, 695 F.2d 1012 (7th Cir.1982) (bankruptcy); C M Corp. v. Oberer Development Co., 631 F.2d 536 (7th Cir.1980) (diversity suit alleging breach of contract); Allegheny Airlines, Inc. v. United States, 504 F.2d 104 (7th Cir.1974) (Federal Tort Claims Act suit). Following these precedents, this Court relied upon the Roscoe Turner test in its November 9 opinion to determine whether UAC could be held liable for UAR’s conduct.

Since that opinion, however, the Seventh Circuit has held that a district court must look to state law, and not the Roscoe Turner test, when determining whether a corporate veil should be pierced. Van Dorn Co. v. Future Chemical & Oil Corp., 753 F.2d 565, 570-71 (7th Cir.1985). In Van Dorn, the court held that Illinois law, not federal law, provided the appropriate test for piercing the corporate veil of an Illinois corporation.

In this case, UAC is a California corporation and, under Van Dorn, California law must be utilized to supply the appropriate standards. Under California law, a parent corporation is not liable for the wrongful acts of its subsidiary simply because it is a wholly-owned subsidiary. Institute of Veterinary Pathology, Inc. v. California Health Laboratories, Inc., 116 Cal.App.3d 111, 172 Cal.Rptr. 74, 77 (1981); Walker v. Signal Companies, Inc., 84 Cal.App.3d 982, 149 Cal.Rptr. 119, 129 (1978); Northern Natural Gas Co. v. Superior Court, 64 Cal.App.3d 983, 134 Cal.Rptr. 850, 855 (1976). As the Fifth Circuit has stated:

California [law] demands that the corporate identity be preserved unless exceptional circumstances are shown to exist. Thus, under California law, in order to hold a parent corporation liable for the acts of its subsidiary, it is not enough that observance of the separate corporate identities would be unjust or inequitable. As a condition of liability, it must also be shown that there is such a unity of interest and ownership that the individuality of the subsidiary as a distinct entity has ceased.

United States v. Dean Van Lines, Inc., 531 F.2d 289, 291 (5th Cir.1976). See also Fuls v. Shastina Properties, Inc., 448 F.Supp. 983, 989 (N.D.Calif.1978) (applying California law).

Liability may be imposed upon the parent corporation for acts of its subsidiary “only where the parent controls the subsidiary to such a degree as to render the latter the mere instrumentality of the former.” Veterinary Pathology, supra, 172 Cal.Rptr. at 77. In such a case, California law requires the court to “ignore the existence of a corporate entity used to cut off either causes of action against or defenses by another corporate entity.” Id. at 77-78 (quoting 1A Ballantine & Sterling, California Corporate Laws (4th ed. 1980) § 296.02, pp. 14-32.1-14-33). In order to sustain a motion for summary judgment, a parent corporation must demonstrate that there is no genuine issue of material fact concerning two issues. First, whether such a unity of interest in ownership exists between the parent and subsidiary “so as to dissolve the separate corporate personalities of the parent and the subsidiary, relegating the latter to the status of merely an instrumentality, agency, conduit, or adjunct of the former.” Id. Second, whether “an inequitable result will occur if the conduct is treated as that of the subsidiary alone.” Id. In this case, UAC has demonstrated that no genuine issue of fact exists as to either issue. UAR and UAC clearly maintained separate corporate personalities, and holding UAR solely responsible for its conduct will not cause an inequitable result in this case.

In Veterinary Pathology, the parent corporation owned 100 percent of the subsidiary’s stock, both entities had interlocking directors and officers, the subsidiary’s books were maintained by the parent, the subsidiary’s financial statements were contained in the parent’s annual reports, and the parent transferred substantial assets to its subsidiary. Veterinary Pathology, supra, 72 Cal.Rptr. at 78. Despite these activities, however, the court held that the parent was not liable for the conduct of its subsidiary because the evidence failed to “set forth any direct evidence of [the parent corporation’s] manipulative control of its subsidiaries which would require imposition of liability.” Id. The court held that the evidence was insufficient “without direct evidence of specific manipulative conduct to warrant the piercing of the corporate veil.” Id. Similarly, in United States v. Dean Van Lines, Inc., 531 F.2d 289 (5th Cir.1976), the court, construing California law, held that even where the parent corporation unjustly benefits from the wrongdoing of its subsidiary, without more, the corporate veil of the parent will not be pierced. Id. at 291.

In this case, there is no “direct evidence of specific manipulative conduct” on the part of UAC. The formal legal requirements of UAR and UAC were strictly observed. Separate records were maintained for both corporations. Minutes of UAR board meetings were scrupulously maintained. The headquarters of UAC and UAR were in New York and California, respectively, and there is no evidence to suggest that UAR conducted business solely for the exclusive benefit of UAC. Both corporations were engaged in entirely different businesses and their separate corporate personalities were maintained. In fact, the evidence in this record falls far short of the evidence submitted to the court in Veterinary Pathology, where the court refused to pierce the parent’s corporate veil.

Additionally, UAC engaged in no conduct which would render the result of this case inequitable. See Veterinary Pathology, supra, 172 Cal.Rptr. at 77. UAR was not inadequately financed or stripped to its corporate shell so as to render it impossible for UAR to fulfill its obligations or liabilities. Neither is there anything in the record to suggest that UAR could not be held accountable for its own alleged antitrust violations. UAR, when sold by UAC, was apparently a financially responsible, ongoing business. Although by the time plaintiffs discovered their antitrust injuries UAR was merged into another corporation, that corporation was available for suit and, in fact, was sued in this litigation. In any event, UAC cannot be held responsible for the conduct of a former subsidiary merely because the subsidiary is not available for suit years later. Although the equitable tolling doctrine suspends the statute of limitations, that doctrine does not insure that proper defendants will remain in business until discovery of the cause of action. UAR, in fact, continued to exist as a part of the Capital companies and was merged into Capital Records, Inc. on April 1, 1981. Plaintiffs have failed to demonstrate that an inequitable result will occur if UAR (now merged into Capital) is required to defend its own conduct.

Plaintiffs’ remaining arguments are without merit. The fact that then UAC Vice President Michael Stewart attended a meeting on September 25, 1972, in which record prices were discussed fails to raise a genuine issue of fact on whether UAC directly participated in the price fixing conspiracy. In fact, Stewart’s uncontradicted testimony establishes that he had no conversations with record companies regarding record and tape pricing or other conditions of sale. Finally, plaintiff’s reliance upon Copperweld Corp. v. Independence Tube Corp., — U.S. —, 104 S.Ct. 2731, 81 L.Ed.2d 628 (1985) is misplaced. Copperweld held that a parent corporation and its wholly-owned subsidiary are incapable of conspiring in violation of § 1 of the Sherman Act. The Copperweld decision, however, did not overrule state corporate law which provides for limited liability of a parent corporation. In fact, the Court noted that separate incorporation of a parent and subsidiary often serves legitimate business and legal interests. Id., at —, 104 S.Ct. at 2742, 81 L.Ed.2d at 644. One such legitimate interest is undoubtedly the limited liability a parent corporation enjoys under state law.

B. Rule 11 Motions

Both UAC and plaintiffs have filed motions against each other’s counsel for purported Rule 11 violations. UAC complains of the filing of a later lawsuit (now dismissed but consolidated in plaintiff’s amended complaint) by plaintiffs’ attorneys and plaintiffs complain of misstatements in UAC’s memorandum in support of its motion for summary judgment. Both motions are denied.

Throughout this litigation, the Court has had the unfortunately rare privilege of working with extremely competent and experienced antitrust attorneys. The quality of representation on behalf of all parties has been excellent. The plaintiff class, settling defendants and UAC have been fortunate to have retained such legal talent. The Court has reviewed the alleged Rule 11 infractions, and views the conduct as merely further examples of the excellent and aggressive representation that has been typical in this case. Accordingly, all Rule 11 motions are denied.

III. CONCLUSION

United Artists Corporation’s motion for summary judgment is granted. Judgment is entered in favor of United Artists and against plaintiffs on plaintiffs’ amended complaint. United Artists Corporation’s and plaintiff’s motions for Rule 11 sanctions are denied.

IT IS SO ORDERED.

      . Broken down by individual defendants, the settlements are as follows: CBS, Inc., $4,250,-000; MCA, Inc., MCA Records, Inc. and MCA Distributing Corp, $1,700,000; Capital Industries-EMI, Inc. and Capital Records, Inc., $2,750,000; Polygram Corp. and Polygram Records, Inc., $3,500,000; RCA Corp., $4,900,-000; American Broadcasting Companies, Inc., ABC Record & Tape Sales Corporation, and ABC Records, Inc., $550,000; Warner Communications, Inc., Warner Bros. Records, Inc., WarnerElektra-Atlantic Corp., and Atlantic Recording Corp., $8,550,000 ($50,000 cash, $5,000,000 note, and $3,500,000 in future advertising certificates).

      . Although UAC’s motion was directed against plaintiffs’ original complaint, the Court has granted plaintiffs leave to file their first Unified and Consolidated Complaint, and will now consider UAC’s motion as directed against that amended complaint. Accordingly, given the result of this motion, UAC’s motion to strike and dismiss the amended complaint is moot and need not be considered by the Court.

      . The fact that UAC may have agreed with M & R Music to pay for UAR’s pre-1978 liabilities is a contractual matter between the parties and is irrelevant in determining the issue here.

      . In finding that UAR should be charged with its own alleged violations of the antitrust laws, the Court need not consider the issue of whether the Capital settlement agreement bars any further recovery for UAR’s past conduct. At first glance, however, it would appear that plaintiffs have already recovered that money (or should have) when they settled with Capital.


author: EDWARD WEINFELD, District Judge.

text:
    Donald J. TRUMP, Plaintiff, v. CHICAGO TRIBUNE COMPANY and Paul Gapp, Defendants.
    No. 84 Civ. 6873 (EW).
    United States District Court, S.D. New York.
    Sept. 3, 1985.
    David Berger, New York City, for plaintiff.
    Lawrence Gunnels, Chicago, Ill., Berner & Berner, P.C., New York City (Thomas R. Berner, New York City, of counsel), for defendants.
   OPINION

EDWARD WEINFELD, District Judge.

Plaintiff Donald Trump, a New York real estate developer, brings this libel action against the Chicago Tribune Company (“Tribune”) and Paul Gapp, an employee of the Tribune whose byline describes him as the Tribune’s “architecture critic.” Plaintiff’s complaint seeks damages based upon statements contained in an article appearing under the heading of “Design” in the Sunday Tribune Magazine of August 12, 1984, in which Gapp discussed Trump’s plan to construct the tallest building in the world, a 150-story tower, on a landfill site at the southeast end of Manhattan island. Plaintiff’s complaint alleges that Gapp’s criticism of the proposed venture, which was accompanied by a Tribune artist’s illustration depicting a building which plaintiff calls “an atrocious, ugly monstrosity” damaged plaintiff’s reputation as a developer conscious of aesthetic values and “torpedoed” plaintiff’s plans. Defendant moves for dismissal of the complaint under Fed.R. Civ.P. 12(b)(6).

The article published by the Tribune and written by Gapp began with the sentence: “The only remotely appealing aspect of Donald Trump’s proposed 150-story Manhattan skyscraper, announced several days ago, is that it would not be done in the Fence Post Style of the 1970s.” The following paragraph declared that “the world’s tallest tower would be one of the silliest things anyone could inflict on New York or any other city.” The piece went on to describe Trump Tower, another development by plaintiff, as a “skyscraper offering condos, office space and a kitschy shopping atrium of blinding flamboyance.” Gapp described Trump’s proposal for the 1,940-foot building as “Guiness Book of World Records architecture,” and characterized as “eyewash” Trump’s statement that the new building would architecturally “balance” the two World Trade Center towers on the west side of lower Manhattan.

Plaintiff maintains that these comments were false and defamatory, and alleges in particular that he has chosen no architect and has no plan for his proposed building. He claims that the Tribune article falsely implies that plaintiff has plans for the building and that Gapp had reviewed them and found them aesthetically displeasing. Plaintiff also asserts a claim based upon remarks by Gapp published in the Wall Street Journal in its Real Estate column of August 29, 1984. Gapp told the Journal’s reporter that Trump’s proposal was “aesthetically lousy,” and that the central part of his own city, Chicago, “has already been loused up by giant-ism.”

Defendants, on the other hand, argue that the contents of the Gapp article are entitled to complete immunity under the First Amendment protection of expressions of opinion.

Expressions of “one’s opinion of another, however unreasonable or vituperative, since they cannot be subjected to the test of truth or falsity, cannot be held libelous and thus are entitled to absolute immunity from liability under the First Amendment.” Opinion may be expressed through “rhetorical hyperbole” and “vigorous epithets,” even in the most pejorative terms, but when the criticism takes the form of accusations of criminal or unethical conduct, or derogation of professional integrity in terms subject to factual verification, the borderline between fact and opinion has been crossed. Whether a statement constitutes fact or opinion is a question of law, and is thus appropriate for resolution on a motion to dismiss.

After a careful review of the record, this court has no doubt that the statements contained in the Tribune article are expressions of opinion. The very presentation of the article in the Sunday Tribune Magazine section, under the heading of the “Design” column, with a byline identifying the author as the Tribune’s “Architecture Critic,” informs the reader that the article embodies commentary by a Tribune columnist, and is not a news story reporting factual material. From the first sentence, which describes the “only remotely appealing aspect” of the Trump project, the prose is cast in subjective terms; the very words Trump objects to, which refer to the proposal as “one of the silliest things anyone could inflict on New York” and describe the asserted aesthetic balance between the proposed tower and the World Trade Center as “eyewash,” convey to the reader the highly personal and subjective nature of the judgments expressed. It must be clear to any reader that in the realm of architecture, as in all aesthetic matters, what is “appealing” to one viewer may be appalling to another. There are many who would disagree with Mr. Gapp’s view, also expressed in the Tribune piece, that the World Trade Centers “still stand as two of the most desolately ugly buildings in New York,” but there is no way that the Court could instruct a jury on the process of evaluating whether the statement is true or false as a matter of fact.

The conclusion that the Tribune article embodies opinion rather than fact is also compelled upon examination of those statements classified as opinion in previous court decisions. The Supreme Court has held that describing a real estate developer’s negotiating position as “blackmail” was a statement of opinion, as was the charge that workers refusing to join a union had “rotten principles,” and “lacked character.” Statements by a public official that a board game satirizing the system of public assistance for the poor was “ugly and damaging” and “by its insensitivity and shoddiness [did] a discredit to those associated with its manufacturing and marketing” were protected as opinion by our Court of Appeals, as was a statement calling an author and lecturer a “fellow traveler” of “fascists” and the “radical right.” Similarly, this Court has held that it was a protected expression of opinion to call “immoral” a lawyer’s decision to exercise his right of election against the will of his deceased wife. The New York courts have held that calling a Judge incompetent, accusing a former director of the State Lottery of “gypping” and “systematically cheating” the public, and describing a teacher who had received pay to which he was not entitled while on sick leave as a “no-show” are all expressions of opinion which cannot be the predicate for a defamation action. These eases present claims far more compelling than that advanced by plaintiff here, and each has been found to involve expressions of opinion entitled to full First Amendment protection.

Plaintiff asserts that even if the Tribune article expresses opinion, it is still not entitled to constitutional protection unless the facts supporting the opinion are set forth. Placing principal reliance upon the decision by our Court of Appeals in Hotchner v. Castillo-Puche, plaintiff alleges that the article incorrectly implies that defendants had knowledge of facts, unknown to the general public, which substantiate the opinions expressed, that these facts are false, and that the opinions therefore lose their protected character.

Plaintiff correctly characterizes the holdings in Silsdorf and Hotchner, but their application to the record before the court does not yield plaintiffs conclusion. The facts supporting Mr. Gapp’s “speculation” are fully set forth in the article; indeed, the closing section of the article begins with the sentence: “Yet, while this sort of speculation is amusing, it is necessary to add a few hard facts.” The matter which follows, concerning the economic constraints on developers seeking to build particularly tall buildings and relying in part on “statistics provided by Trump,” is not disputed by the plaintiff. Other facts set forth in the article concerning the Trump proposal include the information that no architect had been selected and no specific design for the building agreed upon, along with the paragraph:

In a recent interview, the real estate tycoon said he proposes to build his 1,940-foot building on landfill along the edge of the East River near the southern tip of Manhattan. It would cost $1 billion and house offices on its lower levels, a hotel in the middle and luxury apartments on top.

Plaintiff testified at his deposition that in July 1984, before the publication of the article in question, he was interviewed by a reporter at the New York Times, and at that interview conveyed to the reporter all the information set out in the paragraph quoted above. Thus, it was plaintiffs own statements, conveyed to the press through an interview plaintiff himself arranged, which formed the factual basis of the opinions expressed in the defendants’ article. Upon the totality of the record presented, the Court finds that the article set out in full the facts on which the opinions expressed were predicated, and further finds that the truth of those facts is not in dispute, the bulk of the factual material having been provided by the plaintiff.

Plaintiff nonetheless contends that the illustration and caption accompanying the article, which depict a 150-story building drawn to scale against the skyline of lower Manhattan, falsely imply that defendants had access to plaintiff’s plan for the building, and he further contends that the building depicted does not accurately portray his plans.

Even if the Court were to accept plaintiff’s invitation to take the illustration and caption out of the context of the article as a whole, plaintiffs claim with respect to the illustration must fail. The caption identifies the illustration as the “artist’s conception of Donald Trump’s proposed 150-story skyscraper,” and thus makes clear that the illustration, like the article it accompanies, is opinion, not a factual report. In addition, plaintiff’s claim with respect to the illustration depends upon his contention that the illustration is not in keeping with his proposal, which he says calls for a “tapered” building on a developed site which would include several smaller buildings and extensive landscaping. At the same time, plaintiff is equally vehement in declaring that he has no plans, and has not even engaged an architect. Thus, plaintiff contends on the one hand that certain details of the project, as for example that he intends a “tapered” building, were misrepresented by the Tribune; on the other hand, he objects to the artist’s rendering in the Tribune illustration on the ground that he has no architect and has not yet made any plans. Plaintiff cannot have it both ways.

Moreover, the root of plaintiff’s objection to the illustration, and the essence of his allegation that it has a defamatory meaning, is that he finds the building depicted to be “an atrocious, ugly monstrosity.” This is, of course, precisely the same sort of individual, subjective aesthetic opinion which defendant Gapp expressed in the article. Plaintiff’s negative opinion of the building depicted in the illustration is no more subject to factual proof than are the negative opinions of plaintiff’s proposal expressed by defendant Gapp in the article itself. Plaintiff chose to give publicity to his proposal, particularly in granting an interview to a representative of the New York Times. He finds aesthetically unpleasing the terms in which that publicity was interpreted by the defendants here. As this Court has previously said,

Men in public life, whether they be judges, legislators, [or] executives ... must accept as an incident of their service harsh criticism, ofttimes unfair and unjustified—at times false and defamatory—and this is particularly so when their activities or performance may be the subject of differing attitudes and stir deep controversy.

Plaintiff, having sought publicity for his proposal, finds that defendants do not like his proposed structure. He, on the other hand, does not like their conception any better. The words of the Latin proverb are particularly appropriate here: De gustibus non est disputandum, there is no disputing about tastes. The complaint is dismissed.

So ordered.

      . Chicago Tribune, Aug. 12, 1984, § 13, page 8, col. 1.

      . McManus v. Doubleday & Co., 513 F.Supp. 1383, 1385 (S.D.N.Y.1981). See Gertz v. Robert Welch, Inc., 418 U.S. 323, 339, 94 S.Ct. 2997, 3006, 41 L.Ed.2d 789 (1974); Davis v. Ross, 754 F.2d 80 (2d Cir.1985); Hotchner v. Castillo-Puche, 551 F.2d 910, 913 (2d Cir.), cert. denied, 434 U.S. 834, 98 S.Ct. 120, 54 L.Ed.2d 95 (1977).

      . Letter Carriers v. Austin, 418 U.S. 264, 284, 94 S.Ct. 2770, 2781, 41 L.Ed.2d 745 (1974); Greenbelt Pub. Assn. v. Bresler, 398 U.S. 6, 14, 90 S.Ct. 1537, 1541, 26 L.Ed.2d 6 (1970).

      . See Cianci v. New Times Pub. Co., 639 F.2d 54, 63-64 (2d Cir.1980); Silsdorf v. Levine, 59 N.Y.2d 8, 462 N.Y.S.2d 822, 449 N.E.2d 716, cert. denied, 464 U.S. 831, 104 S.Ct. 109, 78 L.Ed.2d 111 (1983); Rinaldi v. Holt, Rinehart & Winston, Inc., 42 N.Y.2d 369, 382, 397 N.Y.S.2d 943, 951, 366 N.E.2d 1299, cert. denied, 434 U.S. 969, 98 S.Ct. 514, 54 L.Ed.2d 456 (1977); Edwards v. National Audubon Soc., Inc., 556 F.2d 113, 121— 22 (2d Cir.), cert. denied, 434 U.S. 1002, 98 S.Ct. 647 (1977).

      . See Letter Carriers v. Austin, 418 U.S. 264, 282, 94 S.Ct. 2770, 2780, 41 L.Ed.2d 745 (1974); Greenbelt Pub. Assn. v. Bresler, 398 U.S. 6, 11, 90 S.Ct. 1537, 1540, 26 L.Ed.2d 6 (1970); Hotchner, 551 F.2d at 913; Buckley v. Littell, 539 F.2d 882, 888 (2d Cir.1976), cert. denied, 429 U.S. 1062, 97 S.Ct. 786, 50 L.Ed.2d 777 (1977); Held v. Pokorny, 583 F.Supp. 1038 (S.D.N.Y.1984); Rinaldi v. Holt, Rinehart & Winston, Inc., 42 N.Y.2d 369, 381, 397 N.Y.S.2d 943, 950, 366 N.E.2d 1299,
        cert. denied, 434 U.S. 969, 98 S.Ct. 514, 54 L.Ed.2d 456 (1977).

      . Thus, for example, the Eiffel Tower, one of the most widely recognized and admired structures in the world, was criticized by Guy De Maupassant as
      an unavoidable and tormenting nightmare ... this tall skinny pyramid of iron ladders, this giant and disgraceful skeleton with a base that seems made to support a formidable monument of cyclops and which aborts into the thick, ridiculous profile of a factory chimney.

        See J. Harris, The Tallest Tower: Eiffel and the Belle Epoque 21 (1975). De Maupassant joined a letter signed by 46 other French artists calling the Tower a "useless and monstrous” “horror.” Id.

      . Chicago Tribune, Aug. 12, 1984, § 13, page 8 col. 2.

      . Greenbelt Pub. Assn. v. Bresler, 398 U.S. 6, 14, 90 S.Ct. 1537, 1541, 26 L.Ed.2d 6 (1970).

      . Letter Carriers v. Austin, 418 U.S. 264, 284, 94 S.Ct. 2770, 2781, 41 L.Ed.2d 745 (1974).

      . Hammerhead Enters., Inc. v. Brezenoff, 707 F.2d 33 (2d Cir.), cert. denied, 464 U.S. 892, 104 S.Ct. 237, 78 L.Ed.2d 228 (1983).

      . Buckley v. Littell, 539 F.2d 882, 893-95 (2d Cir.1976), cert. denied, 429 U.S. 1062, 97 S.Ct. 786, 50 L.Ed.2d 777 (1977).

      . Held v. Pokorny, 583 F.Supp. 1038 (S.D.N.Y. 1984).

      . The parties in this case have assumed that New York law would apply. Plaintiff is a citizen of New York, the subject of the article was transactions taking place in New York, and New York is the place in which plaintiff claims the damage arising from the publication occurred. Thus, despite the fact that the article was conceived, edited and published in Illinois, the parties’ assumption as to choice of law is correct. See Machleder v. Diaz, 538 F.Supp. 1364 (S.D.N. Y.1982).

      . Rinaldi v. Holt, Rinehart & Winston, Inc., 42 N.Y.2d 369, 380-81, 397 N.Y.S.2d 943, 950-51, 366 N.E.2d 1299, cert. denied, 434 U.S. 969, 98 S.Ct. 514, 54 L.Ed.2d 456 (1977); Bruno v. New York News, 89 A.D.2d 260, 456 N.Y.S.2d 837 (2d Dept.1982); DeLuca v. New York News, 109 Misc.2d 341, 438 N.Y.S.2d 199 (Sup.Ct.1981).

      . Silsdorf v. Levine, 59 N.Y.2d 8, 13, 462 N.Y. S.2d 822, 825, 449 N.E.2d 716, cert denied, 464 U.S. 831, 104 S.Ct. 109, 78 L.Ed.2d 111 (1983).

      . 551 F.2d 910, 913 (2d Cir.), cert. denied, 434 U.S. 834, 98 S.Ct. 120, 54 L.Ed.2d 95 (1977).

      . Chicago Tribune, Aug. 12, 1984, § 13, page 8 col. 4.

      . Chicago Tribune, Aug. 12, 1984, § 13, page 8 col. 1.

      . Transcript of Deposition of Donald J. Trump, Jan. 29, 1985, at 9-15.

      . Chicago Tribune, Aug. 12, 1984, § 13, page 8, caption (emphasis added).

      . The building portrayed by the Tribune artist is in three distinct horizontal segments, set back in a step arrangement, placed on a site which lacks smaller surrounding buildings or visible landscaping. The Tribune explains that the step arrangement is in keeping with the statements made by Trump in the New York Times interview, in which he told the Times reporter that the building would contain offices in its lower part, a hotel in its middle section, and luxury apartments at the top. Transcript of Deposition of Donald J. Trump, Jan. 29, 1985, at 11-12.

      . Complaint, para. 12.

      . Adey v. United Action for Animals, Inc., 361 F.Supp. 457 (S.D.N.Y.1973), aff’d, 493 F.2d 1397 (2d Cir.), cert. denied, 419 U.S. 842, 95 S.Ct. 74, 42 L.Ed.2d 70 (1974).

      . See B. Evans, Dictionary of Quotations 679 (1968).