author: WOODWARD, Chief Judge.

text:
    UNITED STATES of America, Petitioner, v. ONE HUGHES HELICOPTER, MODEL NO. 269C, SERIAL NO. 690804, REGISTRATION NO. N58324, Its Tools and Appurtenances; One 12 Gauge Browning Semi-Automatic Shotgun; One 1973 Ford Crewcab Pickup, Vehicle Identification No. F25YCS48147, Texas License No. AR-1104, Its Tools and Appurtenances, One Trailer Equipped to Transport Helicopter, Its Tools and Appurtenances, Respondents.
    Civ. A. No. CA-5-82-29.
    United States District Court, N.D. Texas, Lubbock Division.
    July 25, 1984.

      James A. Rolfe, U.S. Atty., Dallas, Tex., Mark D. McBride, Asst. U.S. Atty., Lubbock, Tex., for petitioner.
    Harold H. Pigg, Brock, Morton & Pigg, Lubbock, Tex., for claimant/respondent FDIC, receiver of Sec. Nat. Bank, Lubbock, Tex.
    John L. Shepherd, Seminole, Tex., for claimant/respondent Seminole Spraying Service and James Riley Davis.
   MEMO ORDER

WOODWARD, Chief Judge.

The United States filed a Complaint for Forfeiture against:

1. ONE HUGHES HELICOPTER, MODEL NO. 269C, SERIAL NO. 690804, REGISTRATION NO. N58324, ITS TOOLS AND APPURTENANCES;

2. ONE 12 GAUGE BROWNING SEMI-AUTOMATIC SHOTGUN;

3. ONE 1973 FORD PICKUP, TEXAS LICENSE NO. AR1104, ITS TOOLS AND APPURTENANCES; and

4. ONE TRAILER EQUIPPED TO TRANSPORT HELICOPTER, ITS TOOLS AND APPURTENANCES.

The property was used in violation of the Airborne Hunting Act, 16 U.S.C. § 742j-l. Claims to the property were filed by Security National Bank of Lubbock and Seminole Spraying Service, Inc. The helicopter and its tools had been purchased by Seminole Spraying Service, Inc., by its president, James Riley Davis. Security National Bank financed the purchase, and had a valid purchase money security interest in the helicopter. See Exs. “A”, “B”, and “C” to Security National’s Application for Mitigation of Forfeiture.

On April 12, 1982, Security National filed an Application for Mitigation of Forfeiture, claiming that it had a valid security interest lien in the helicopter and that it had acted in good faith and without knowledge that the helicopter was being used in violation of the laws of the United States. The petition was denied by the Department of Justice on the grounds that the bank “could still proceed to collect its debt from Seminole Spraying Inc., James Riley Davis, its president, or Harley D. Wilke, a guarantor.” Ex. “C” to United States’ Motion for Summary Judgment. Upon request for further review, the Department of Justice again denied the bank’s petition. Ex. “E” to United States’ Motion for Summary Judgment.

On April 12, 1982, Seminole Spraying Service, Inc. filed an Application for Mitigation of Forfeiture, claiming good faith. The application was denied, based on the fact that the president of Seminole Spraying, Inc. was in fact one of the principals convicted for violation of the Airborne Hunting Act. Ex. “I” to United States’ Motion for Summary Judgment.

The United States has filed a Motion for Summary Judgment, asserting that there are no material issues of fact, that the petitions for mitigation were duly considered by the Department of Justice and consequently the district court has no jurisdiction to review the denial of mitigation.

A Brief in Opposition to Petitioner’s Motion for Summary Judgment was filed by the Federal Deposit Insurance Corporation (FDIC), successor in interest to Security National Bank. The FDIC argues that the general rule of forfeiture should not apply to a situation in which FDIC has become the innocent secured creditor because the underlying purposes of the forfeiture statute would not be served.

This court’s jurisdiction to review the Department’s denial of the mitigation petition is sharply limited — if non-existent. 16 U.S.C. § 742j — 1(e) makes aircraft and equipment used in violation of the Airborne Hunting Act subject to forfeiture. § 742j-1(f) provides that the provisions for remission or mitigation of forfeiture under the customs law shall apply to forfeitures under the Airborne Hunting Act. 19 U.S.C. § 1618, a section of the customs laws, states that

Whenever any person interested in any ... vehicle, merchandise, ... seized ... files with the Secretary ... a petition for the remission or mitigation of such ... forfeiture, the Secretary ... if he finds that such ... forfeiture was incurred without willful negligence or without any intention on the part of the petitioner ... to violate the law, or finds the existence of such mitigating circumstances as to justify the remission or mitigation of such ... forfeiture, may remit or mitigate the same upon such terms and conditions as he deems reasonable and just, or order discontinuance of any prosecution relating thereto.

The statute itself provides no right of appeal to the district court. Numerous courts have held that district courts lack jurisdiction to review the decision of the Secretary. United States v. One 1970 Buick Riviera, 463 F.2d 1168, 1170 (5th Cir.1972), cert. denied 409 U.S. 980, 93 S.Ct. 314, 34 L.Ed.2d 244 (1972), citing cases. In the Buick case, the Fifth Circuit went on to note that “Judicial control of the Attorney General’s remission and mitigation function has been exercised only when administrative officials have refused to entertain a mitigation claim ... and the extent of judicial control has been merely to require the officials to exercise jurisdiction over the claim, not to review the final decision on the merits.” Id. See also Devito v. United States, Dept. of Justice, Etc., 520 F.Supp. 127, 129 (E.D.Pa.1981) (“... [19 U.S.C. § 1618], afford the Attorney General Exclusive authority to remit a forfeiture. His discretion must be exercised within the admittedly broad command of the statute. Although the Court may direct him to consider the merits of a petition, it has no jurisdiction to review his exercise of discretion.”).

The Justice Department in this case has clearly performed its statutory duty to consider the bank’s petition for remission or mitigation, and has, within its broad grant of discretion, denied the petitions. This court has no authority to substitute its judgment for that of the Attorney General. A lienholder’s innocence is no defense to a suit for forfeiture. See Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 94 S.Ct. 2080, 40 L.Ed.2d 452 (1974).

The United States’ Motion for Summary Judgment is therefore granted. A judgment will be entered in accordance with this opinion.

      . Security National Bank’s Claim to Property, filed March 30, 1982, only mentions the Hughes helicopter; however the bank’s Application for Mitigation of Forfeiture, filed April 12, 1982, requests that the helicopter, its tools and appurtenances be turned over to the bank.


source: Caselaw Access Project

author: GETZENDANNER, District Judge:

license: Public Domain

text:
    DIVERSIFOODS, INC., Plaintiff, v. DIVERSIFOODS, INC., Defendant.
    No. 84 C 3437.
    United States District Court, N.D. Illinois, E.D.
    July 27, 1984.

      Eugene F. Friedman, Chicago, 111., for plaintiff.
    Seymour Rothstein, George B. Newitt, Allegretti, Newitt, Witcoff & McAndrews, Ltd., Chicago, 111., for defendant.
   MEMORANDUM OPINION AND ORDER

GETZENDANNER, District Judge:

This case is before the court on the plaintiffs motion to recuse. The motion is based on the fact that Judge Getzendanner’s husband, Stanton A. Kessler, is a member of the firm of Mayer, Brown & Platt and the firm, although not of record in this case, presently represents the defendant in other matters, and, prior to the filing of this lawsuit, had some connection with the events underlying this litigation. For the reasons stated, the motion is denied.

On January 27, 1984, plaintiffs counsel, Eugene F. Friedman, wrote a letter to the defendant complaining of the fact that the defendant had begun to use the same corporate name as plaintiffs, “Diversifoods, Inc.” No response was received. On February 27, 1984, another letter was sent, this time to the attention of Charles J. Aver-book, the in-house general counsel of the defendant. Averbook responded and informed Friedman that the matter was being turned over to the defendant’s outside trademark counsel, Allegretti, Newitt, Witcoff & McAndrews. After waiting several weeks, Friedman called the Allegretti firm and spoke to Denis Berntsen. Berntsen indicated that he had the matter but had not yet acted on it. After several more phone calls, Berntsen told Friedman that Percy Angelo of Mayer, Brown & Platt would handle the matter.

Friedman then called Angelo and was told that she had written to him in response to his demand that the defendant cease using the name Diversifoods and that, should he have any further questions, he should contact her. Angelo’s letter of March 21, 1984, stated that because the parties were in different businesses and the defendant did not use its corporate name as a trademark, “we do not agree with your assertion that there is a likelihood of confusion between [the parties].”

On April 20, 1984, Friedman filed the complaint in this action and the case was assigned to Judge Getzendanner. At that time, Friedman knew that Judge Getzendanner formerly had been a partner at Mayer, Brown & Platt, and, apparently anticipating that Mayer, Brown & Platt would be representing the defendant in the litigation, he called Judge Getzendanner’s chambers regarding the court’s recusal policy on Mayer, Brown & Platt matters. Plaintiff’s motion states that Friedman was told “that Judge Getzendanner had the absolute policy of always recusing herself from any case in which her prior law firm had a role.” (Emergency Motion to Recuse at 4).

However, Mayer, Brown & Platt did not appear for the defendant. At the first court appearance on April 27, 1984, George Newitt and Seymour Rothstein of the Allegretti firm appeared for the defendant. Nothing was said by Friedman or the defendant’s lawyers about Mayer, Brown & Platt’s prior connection with the underlying controversy or its present representation of the defendant in any matter.

The plaintiff attempts to portray as mysterious the defendant’s move from the Allegretti firm to Mayer, Brown & Platt, and back to Allegretti. The decisions to employ the various attorneys were made by Aver-book. Averbook has been deposed and his affidavit has been filed. In his affidavit Averbook states that after the lawsuit was filed, he promptly contacted Rothstein and engaged the Allegretti firm to represent the defendant in the litigation. Averbook also states that he employs numerous lawyers in Chicago and other parts of the country to handle matters for the defendant. He hires outside lawyers based on his perception of their skill and experience in a particular kind of matter. Those lawyers, and the matters being handled for the defendant, are described in the affidavit. It clearly appears that Mayer, Brown & Platt is one of many firms presently representing the defendant. At his deposition, Aver-book stated that Mayer, Brown & Platt “represents us generally in general corporate matters.” In his affidavit, Averbook states:

When we have a franchise litigation problem in Chicago, or if I am concerned that a particular lawsuit outside of Chicago may be a case of major corporate implication, I turn to Lee Abrams at Mayer, Brown & Platt. I also call Mr. Abrams on occasion when we have an unusual situation that I am not sure what to do with.

Averbook explains in his affidavit that when the defendant received Friedman’s first letter, Averbook thought of the case as a trademark case and talked to George Newitt about it. However, he did not formally employ Newitt. When the second letter from Friedman was received, Aver-book states: “I decided to mention the matter to Lee Abrams at Mayer, Brown & Platt, since, on reflection, I was not sure this was really a trademark case, but rather a ‘corporate name’ case.” When the complaint was received, Averbook concluded that it was a classic trademark case and he decided to employ the Allegretti firm as litigation counsel.

Averbook states that at the time he made the decision, he did not know of Judge Getzendanner’s connection with Mayer, Brown & Platt. The defendant was not a client of Mayer, Brown & Platt when Judge Getzendanner was at the firm. He also notes his prior relationships with the lawyers from the Allegretti firm. George Newitt had represented Chart House, now a division of the defendant, for fifteen years in trademark matters, and, when Averbook was general counsel for STP Corporation, Seymour Rothstein handled STP’s trademark matters. On this record, Aver-book’s decision with respect to counsel had nothing to do with the fact that the case had been assigned to this court.

At the first court appearance in the case on April 27, 1984, the plaintiff presented its motion for temporary restraining order and preliminary injunction to prevent the defendant from using the name “Diversifoods” at a convention in Las Vegas which was to begin May 17, 1984. The court set the hearing for May 16, 1984 and ordered expedited discovery. The court also scheduled a pre-hearing conference in chambers on May 11, 1984. At that conference the court concluded, on the basis of the available facts, the defendant’s adoption of the name “Diversifoods, Inc. — The Restaurant Company,” and the parties’ inability to conclude the necessary discovery before the scheduled hearing, that no hearing on the motion for preliminary injunction was necessary and that the defendant could attend the convention in Las Vegas. It was also agreed that a hearing most probably would never be necessary because once discovery was concluded, the facts very likely would be undisputed and cross-motions for summary judgment would dispose of the case. The parties were instructed to continue the expedited discovery and to file cross-motions for summary judgment as soon as possible.

Neither during the May 11th conference, nor at any prior time, was there any mention to the court of Mayer, Brown & Platt’s prior connection with this controversy and no mention of the fact that Mayer, Brown & Platt at any time represented the defendant. Friedman’s failure to discuss Mayer, Brown & Platt’s role is surprising because, according to his motion, Friedman had been told that Judge Getzendanner’s policy was to recuse in any matter in which Mayer, Brown & Platt “had a role.” Also, Friedman obviously thought that Averbook’s decision to hire the Allegretti firm instead of Mayer, Brown & Platt was important because Friedman had examined Averbook at his deposition on May 4th on his decision to switch law firms after the case was filed. Based on these facts, it would appear that Friedman’s silence was deliberate.

On Monday, May 14, 1984, the first business day following the May 11th conference, Friedman filed a “Notice of Emergency Motion and Emergency Motion to Recuse the Honorable Susan Getzendanner.” The motion was presented on May 14, 1984 to the Emergency Judge who merely entered and continued it before Judge Getzendanner on May 17. (The Judicial Conference was held in Indianapolis May 14-16 and the parties knew Judge Getzendanner planned to attend.) The motion was based solely on Judge Getzendanner’s former partnership relationship with Mayer, Brown & Platt and the firm’s connection with the underlying controversy through Angelo’s letter to Friedman. There was no mention in the motion of Stanton A. Kessler and his marital relationship to Judge Getzendanner.

On May 17, the motion was presented to Judge Getzendanner and the defendant opposed it on the ground that it was filed long after the facts recited in the motion were known to Friedman and just after the court had ruled unfavorably to the plaintiff on the motion for preliminary injunction. Friedman then orally stated that he was now also relying on the fact that Judge Getzendanner was married to a partner at Mayer, Brown & Platt, a fact which he claimed he had discovered on May 15, 1984, when he read the court’s Financial Disclosure Report. The Report had been filed with the Clerk of the Court on May 14, 1984. Friedman stated that prior to reading the Report he did not know that Judge Getzendanner was married to a partner at Mayer, Brown & Platt. Although this claim is doubted by the defendant’s lawyers, because Friedman was at the 1984 Patent Lawyers’ Judicial Dinner at which Judge Getzendanner and Kessler were introduced (in a somewhat funny and memorable way), the court accepts Friedman’s representation that he had no prior knowledge of Kessler’s relationship with Mayer, Brown & Platt.

The parties have now briefed the motion to recuse. The plaintiff begins by stating that the motion “in no way attacks or should receive any interpretation or implication as questioning the honor and integrity of this court.” (Memorandum in Support of Emergency Motion at 1). Instead, the plaintiff asserts that under the facts there is an appearance of impropriety.

Disqualification of the court is governed by 28 U.S.C. § 455, which provides, in pertinent part, as follows:

(a) Any justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.
(b) He shall also disqualify himself in the following circumstances:
(1) Where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding;
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(4) He knows that he, individually or as a fiduciary, or his spouse or minor child residing in his household, has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding;
(5) He or his spouse, or a person within the third degree of relationship to either of them, or the spouse of such person:
(i) Is a party to the proceeding, or an officer, director, or trustee of a party;
(ii) Is acting as a lawyer in the proceeding;
(iii) Is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding;
(iv) Is to the judge’s knowledge likely to be a material witness in the proceeding.

Thus, Judge Getzendanner must disqualify herself in any proceeding in which her impartiality might reasonably be questioned (§ 455(a)), where her spouse is acting as a lawyer in the proceeding (§ 455(b)(5)(h)), or where her spouse has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding (§ 455(b)(4) and (b)(5)(iii)). “Proceeding” is defined as including “pretrial, trial, appellate review, or other stages of litigation.” (§ 455(d)(1)).

Acting as a Lawyer in the Proceeding.

Neither Kessler nor Mayer, Brown & Platt is acting as a lawyer in the proceeding. Kessler personally has done nothing in connection with this litigation or Percy Angelo’s letter to Friedman. Angelo’s letter to Friedman, sent prior to the filing of the complaint, does not constitute acting as a lawyer in the proceeding. The letter was sent before the proceeding began. Mayer, Brown & Platt has had no connection with the proceeding since it was commenced by the plaintiff. The defendant has been represented by other counsel during all phases of this proceeding.

There is a clear Seventh Circuit precedent, not cited by plaintiff in its memorandum in support of its emergency motion to disqualify, that governs the question of whether Kessler or Mayer, Brown & Platt was acting as a lawyer in the proceedings. In Groves & Sons v. International Brotherhood of Teamsters, 581 F.2d 1241 (7th Cir.1978), the court held that recusal was not necessary on the following facts: The judge’s brother was a senior partner in a law firm which was counsel of record for the plaintiffs at the early stages of the proceeding. The law firm withdrew before any substantive actions were taken in the litigation. The court concluded that the law firm was not acting as a lawyer in the proceeding. The judge’s brother had not personally appeared in the litigation and had not actively participated in the litigation, so it was clear that he was not acting as a lawyer in the proceeding. Under Groves, there is no doubt that neither Kessler nor Mayer, Brown & Platt is acting as a lawyer in this proceeding.

None of the cases cited by plaintiff support recusal under § 455(b)(5)(h). In SCA Services, Inc. v. Morgan, 557 F.2d 110 (7th Cir.1977), the judge’s brother’s law firm (same as in Groves) was acting as a lawyer in the proceeding in that the firm was of record for and was representing one of the parties. The court concluded that the judge should recuse himself even though the brother had not personally appeared in the case because the brother’s firm was of record in the case. Here, Mayer, Brown & Platt has not appeared of record and is not acting as a lawyer in the proceeding. In McCuin v. Texas Power & Light Co., 714 F.2d 1255, 1259 (5th Cir.1983), the judge’s relative had not filed a formal appearance in the case but he was actively participating in the discovery proceedings in the case. There the court held that recusal was required because the judge’s relative was acting as a lawyer in the proceedings. Here, neither Kessler nor Mayer, Brown & Platt is actively participating in the litigation.

Financial or other Substantial Interest in the Proceeding or the Defendant.

The Seventh Circuit considered § 455(b)(4) and § 455(b)(5)(iii) in Groves & Sons v. International Brotherhood of Teamsters, supra, in which the judge’s brother’s law firm had withdrawn from representing the plaintiffs in the proceeding. The Court found that neither the brother nor the law firm had any interest whatsoever which could have been substantially affected by the outcome of the proceedings. The Court noted that all financial obligations between the law firm and the plaintiffs had been fully settled prior to judgment; no financial interest was contingent on the outcome of the litigation; and no substantial nonpecuniary interest of the firm, such as good will or firm reputation, was maintained by the firm in the litigation. The Court did not consider the question of whether a law firm’s representation of a client in other matters constituted a financial or other substantial interest in the proceeding or the defendant.

Neither Kessler nor Mayer, Brown & Platt has a financial interest (as that term is defined in § 455(d)(4)) in the subject matter of this litigation (rightful use of the name “Diversifoods”) or in the defendant. That leaves the question of whether Kessler or his law firm has any other interest that could be substantially affected by the outcome of the proceeding. Certainly if the defendant was a material client for Mayer, Brown & Platt, or a material client for Kessler, a judge should consider recusal under this standard. If either of these factors were present, Judge Getzendanner, consistent with her existing policy, would recuse herself in the litigation. However, the plaintiff does not suggest that defendant is a material client of Mayer, Brown & Platt or that Kessler has a material attorney/client relationship with the defendant.

The plaintiff essentially is arguing that the defendant does not have to be a material client of Mayer, Brown & Platt or of Kessler, but just a client of the firm. It is suggested that law firms are interested in as many clients as they can get, that Mayer, Brown & Platt would like to keep the defendant as a client, and that if the defendant loses this lawsuit, it will take its legal business elsewhere. This argument reads the requirement of a substantial effect out of the statute. If Mayer, Brown & Platt were to lose the defendant as a client — for whatever reason — there could only be a substantial effect on Mayer, Brown & Platt if some substantial pecuniary or nonpecuniary interest of the firm was affected. The loss of a non-material client, by definition, would not affect substantially most law firms. Mayer, Brown & Platt is one of the largest law firms in the country and it has hundreds of clients. Obviously, some of those clients are material. Although the defendant is a large company, Mayer, Brown & Platt is not its only outside lawyer and it is not a material client to the firm. The loss of any client would not adversely affect the firm’s reputation and good will. Many clients have come and gone in the history of all of the major firms in Chicago and the reputation and good will of those firms has not been affected substantially. Accordingly, the loss of the defendant as a client would not affect a substantial pecuniary or nonpecuniary interest of Mayer, Brown & Platt.

Moreover, it is utter speculation — not in accord with common sense — that a negative outcome in this litigation would affect the relationship between Mayer, Brown & Platt and the defendant. Averbook is a sophisticated general counsel of a large company. According to his testimony, he makes decisions regarding employing lawyers throughout the country based on his perception of their strengths and abilities. Obviously, Averbook knows that it would be improper for the court to be influenced by the defendant’s relationship with Mayer, Brown & Platt, and he reasonably could not be expected to be resentful of Mayer, Brown & Platt or think less of Lee Abrams at the firm if the defendant should lose this case. It is not reasonable to conclude, as plaintiff does, that the outcome of the proceeding adversely would affect Mayer, Brown & Platt’s relationship with the defendant.

On the basis of the record, Mayer, Brown & Platt does not have an interest which would be substantially affected by the outcome of this litigation simply as a result of its representation of the defendant in other matters.

Appearance of Impropriety.

To establish the appearance of impropriety, the plaintiff relies on Hoke v. Charlotte-Mecklenburg Hospital Authority, Inc., 550 F.Supp. 1276 (W.D.N.C.1982). In that case the judge disqualified himself under the appearance of impropriety standard because his son had represented the defendant in another court in a separate contract action which had been concluded two years earlier. Even the judge had trouble seeing the problem, and he recused himself under some greater standard than that set forth in the statute. He described his decision as that of a judge “leaning over backwards to avoid the possible appearance of unfairness to others, and to be sure that there is no lack of perceived impartiality in this forum.” 550 F.Supp. at 1277-78. Moreover, the judge was sitting in a small city, Charlotte, North Carolina, and the litigation involved many persons well known to the judge and the litigants. The judge noted that “many of the people who are listed as witnesses for the defendants, or were participants in the actions about which Dr. Hoke complains, are friends or former clients of mine or have provided treatment, including surgery, for me and members of my immediate family.” 550 F.Supp. at 1277. Some might agree that under all of these circumstances there was an appearance of impropriety. Those circumstances are not present in this case.

The plaintiff argues next that the public “may reasonably conclude that the failure [of Mayer, Brown & Platt] to file a formal appearance merely constitutes an artifice to avoid having the judge effect recusation because of ... her connection with a member of the firm.” (Memo in support of Emergency Motion at 6). This argument presumes that it would be improper for a litigant to choose litigation counsel in order to either force or avoid recusation by a particular judge. It is not improper and no appearance of impropriety exists. In Groves, the plaintiff hired new litigation counsel after the case was assigned to Judge Morgan, most likely to avoid the Judge’s recusal. The Court of Appeals did not find any appearance of impropriety in Groves. Groves is strong support for the conclusion that there is no appearance of impropriety in this case.

Timeliness of the Motion.

The defendant complains that the plaintiff’s motion to recuse was made only after the hearing on the motion for preliminary injunction was stricken, in other words, after the plaintiff sustained a loss, and that the plaintiff is merely forum shopping.

At the time the ease was filed, Friedman was aware of the court’s former partnership relationship with Mayer, Brown & Platt and, according to Friedman, he had been told by Judge Getzendanner’s secretary that the court’s policy was to recuse herself in any matter in which Mayer, Brown & Platt “had a role.” Having been told this, Friedman obviously should have raised the Mayer, Brown & Platt relationship at the outset of the case. If he had, the court’s relationship to Kessler would also have been discussed. Very likely, Friedman would not have filed a motion to recuse. Friedman moved to recuse only after his client had lost an important motion, and he originally moved only on the basis of the information he had when the suit was filed, that is the fact that Judge Getzendanner was a former partner of Mayer, Brown & Platt. The new fact, Judge Getzendanner’s marriage to a Mayer, Brown & Platt partner, was learned by Friedman only after the motion to recuse was filed. Thus, the plaintiff’s motivation in moving to recuse the court was the loss of the preliminary injunction motion and not any concern about appearances.

The Court of Appeals in Groves noted the importance of the court making early determinations of recusals under § 455. This court reviews all complaints within a week of filing in order to enter appropriate recusals, and Mayer, Brown & Platt regularly informs the court’s Minute Clerk when any Mayer, Brown & Platt lawyer files an appearance in any pending case so that a recusal may be entered promptly by the court. In cases involving Mayer, Brown & Platt clients which are not known to the court and which are not represented by the firm in the lawsuit, the court must rely on counsel to bring the Mayer, Brown & Platt connection to her attention. In this case the court did not know that the defendant was a Mayer, Brown & Platt client and neither of the parties raised the relationship at an early stage. This is unfortunate.

Convenience to the Court.

The plaintiff’s memorandum in support of its motion to recuse has a section entitled “Convenience to the Court.” It is based on certain statements made by the court when the motion to recuse was presented. Judge Getzendanner expressed concern that if she had to recuse herself in every proceeding involving a Mayer, Brown & Platt client, even when Mayer, Brown & Platt is not of record, she would be out of the judicial business. While that was an overstatement, the effect of such a recusal rule on Judge Getzendanner’s docket would be very substantial. Mayer, Brown & Platt represents many large businesses, educational and financial institutions, public utilities, and governmental entities, which have many matters in this court in which Mayer, Brown & Platt is not of record. When Judge Getzendanner was a partner at that firm, it represented the City of Chicago and the State of Illinois, but certainly it was not of record in every litigation matter involving the State or the City. If that were true today, and it very well may be true, and the recusal rule urged by the plaintiff were in effect, Judge Getzendanner’s docket obviously would be affected substantially by recusals in all litigation involving the City and the State. This is only one example.

It is because of the substantial effect which a broad recusal policy would have on Judge Getzendanner’s calendar that the court has not “leaned over backwards” as did the judge in Hoke v. Charlotte-Mecklenburg Hospital Authority, Inc., supra. But the motion to recuse is denied on the merits, not because the result is more convenient to the court.

ORDER

Accordingly, the plaintiff’s emergency motion to recuse is denied. It is so ordered.

      . Judge Getzendanner was an attorney at Mayer, Brown & Platt during the period 1968 through December 1, 1980, and became a partner in December of 1974. On December 2, 1980, she began serving as a United States District Judge. In February of 1983, she married Stanton A. Kessler, a renowned international tax lawyer at Mayer, Brown & Platt.

      . This is not a complete statement of the court’s policy. The court recuses herself in cases in which Mayer, Brown & Platt is of record, or in which a Mayer, Brown & Platt client is a party, the firm is not of record, but the client is a material client of the firm, of Kessler has a material attorney/client relationship with the client. Judge Getzendanner also recuses herself in matters involving Mayer, Brown & Platt clients where the firm is not of record but where she had a close personal attorney/client relationship with the client while at Mayer, Brown & Platt.

      . This was the first Financial Disclosure Report filed by the court which contained information concerning Kessler since it was the first such Report filed by Judge Getzendanner since her marriage to Kessler.

      . For example, since her marriage to Kessler, Judge Getzendanner has recused herself in matters involving the Continental Illinois National Bank and Trust Company of Chicago as a principal, regardless of whether Mayer, Brown & Platt is acting as a lawyer in the proceeding, because Kessler has a material attorney/client relationship with the Bank and the Bank is a material client of Mayer, Brown & Platt. Prior to her marriage, Judge Getzendanner had a policy of recusing herself in matters involving Continental Bank’s Trust Department, even when Mayer, Brown & Platt was not of record, and she did so because of her close relationship with the Trust Department during her years of practice at Mayer, Brown & Platt. It was as a result of her marriage to a partner at Mayer, Brown & Platt that Judge Getzendanner expanded her recusal policy regarding Mayer, Brown & Platt clients when the firm is not of record in the proceeding.

      . In this case, the defendant's selection of trial counsel had nothing to do with Judge Getzendanner’s relationship with Mayer, Brown & Platt. Averbook was not aware of the relationship when he hired trial counsel. However, if the fact that a litigant chose trial counsel with the intention of preventing a recusal was grounds for a motion to recuse, litigants could then have the right to inquire into the reasons why their opponents selected one law firm over another, in order to test whether grounds for recusal were present. There would be an unbearable intrusion into the attorney/client relationship. The defendant in this case volunteered information on this issue in order to respond to plaintiff’s accusations of impropriety. It was not required.


author: EDWARD C. REED, Jr., District Judge.

text:
    EISENMAN CHEMICAL COMPANY, a Colorado corporation, plaintiff, v. NL INDUSTRIES, INC., a New Jersey corporation; and The 25 Corporation, Inc., a Kansas corporation, defendants; The 25 CORPORATION, INC., a Kansas corporation, [counterclaim filed 5/28/82]; and NL Industries, Inc., a New Jersey corporation, [counterclaim filed 6/3/82]; Counterclaim Plaintiffs, v. EISENMAN CHEMICAL COMPANY, a Colorado corporation, Marvel-Jenkins Ranches, a Nevada co-partnership, The Estate of Louise M. Marvel, Richard T. Marvel, Mary O. Marvel, Thomas J. Marvel, Rosita P. Marvel, John W. Marvel and Wilburta S. Marvel, in their individual capacities, and as partners in Marvel-Jenkins Ranches; Marvel Minerals, a Nevada co-partnership; Marsha M. Grant, Richard J. Marvel, Thomas P. Marvel, Susan M. Barnes, Michael G. Marvel, Sally M. Holman, Joseph C. Marvel, Peter J. Marvel, Amy L. Marvel, Sharon M. Andreasen, John E. Marvel and Michelle M. Slagel, in their individual capacities, in their capacities as Trustees, and in their capacities as partners in Marvel Minerals, Counterclaim Defendants.
    No. CV-R-81-201-ECR.
    United States District Court, D. Nevada.
    July 30, 1984.

      David R. Hoy, Hoy & Miller, Chartered, Reno, Nev., John C. Miller, Elko, Nev., F. Alan Fletcher, E. Scott Savage and Samuel O. Gaufin of VanCott, Bagley, Cornwall & McCarthy, Salt Lake City, Utah, for plaintiff.
    John E. Marvel, Elko, Nev., for Marvel Group.
    Earl M. Hill, Frank Cassas of Hill, Cassas, deLipkau -& Erwin, Reno, Nev., and Richard L. Bond, Stephen B. Camhi, and James R. Kahn, New York City, for NL Industries, Inc.
    E. Pierre Gezelin, Reno, Nev., and Stephen Alfers, Neil Peck, Gale Miller, David K. Isom, and Gail L. Wurtzler of Davis, Graham & Stubbs, Denver, Colo., for The 25 Corporation.
   MEMORANDUM DECISION AND ORDER

EDWARD C. REED, Jr., District Judge.

NL Industries, Inc. (NL) has moved for a partial summary judgment, as to liability but not as to damages, on its First Counterclaim against Eisenman Chemical Company (Eisenman). That Counterclaim alleges that Eisenman infringed the copyright on NL’s Baroid Phase II Manual, which has been used by NL as a training manual in instructional courses on the application and use of drilling muds. The students pay to take those courses. Allegedly, Eisenman hired away two NL employees who had been instrumental in developing the courses. Those employees then purportedly prepared for Eisenman a Drilling Fluids Training Manual, which was used by Eisenman in conducting for-profit instructional courses on the application and use of drilling muds. The counterclaim contends that Eisenman’s manual consisted primarily of sections copied from NL’s copyrighted manual.

Both sides have presented affidavits, documents, discovery materials, exhibits and memoranda of points and authorities. The Court feels fully advised and in position now to rule on the motion.

Summary judgment is proper when, viewing the evidence and the inferences therefrom in the light most favorable to the opposing party, the movant is clearly entitled to prevail as a matter of law. Gaines v. Haughton, 645 F.2d 761, 769 (9th Cir.1981); Knickerbocker Toy Co., Inc. v. Genie Toys, Inc., 491 F.Supp. 526, 528 (E.D.Mo.1980). It is no longer good law to hold that summary judgment may not be granted when there is even the slightest doubt as to the facts. Beal v. Lindsay, 468 F.2d 287, 291 (2nd Cir.1972). The opposing party must show that it can produce at trial substantial evidence in support of its position; enough evidence merely to raise a suspicion of the existence of a state of facts is not sufficient. Knickerbocker Toy Co., Inc. v. Genie Toys, Inc., supra at 528.

Copyright Infringement

Eisenman has insisted that the Baroid Phase II Manual was first published in 1975. The effective date of NL’s registration of that Manual with the United States Copyright Office was January 8, 1981. For a certificate of registration to constitute prima facie evidence of the validity of the copyright and of the facts stated in the certificate, the registration must have occurred within five years after first publication. 17 U.S.C. § 410(c). However, NL has clearly established that its Baroid Phase II Manual was first published in October 1976. What it had been using in 1975 and until publication of the Baroid Phase II Manual in 1976 was a prior manual (hereinafter referred to as Prior Manual) that dealt with the same subject matter and also was used in instructional courses. The Prior Manual never was copyrighted.

It is Eisenman’s position that both its own manual and the Baroid Phase II Manual independently were based on a manual published earlier by Mager Associates, Inc. One of the NL employees who was hired away by Eisenman, and who helped in the preparation of both parties’ manuals, had used the Mager Associates manual in 1975. The Mager manual utilized a modular system of criterion-referenced instructions, as do the NL and Eisenman manuals. It is apparent, however, that the Mager manual was not devoted to the application and use of drilling muds. If anything was derived from it, it could only have been the idea of using such an instructional system. The module presents the student with specific learning objectives and provides a criterion test by which he may gauge his grasp of the subject matter.

Eisenman also contends that its manual was not based on the Baroid Phase II Manual at all, but that the uncopyrighted Prior Manual was referred to during the preparation of the Eisenman manual. A comparison among the three manuals refutes this contention. First, there are substantial differences between the Prior Manual and the Baroid Phase II Manual. A number of new modules were included in the latter, and some modules used in the former were deleted entirely. Many of the modules found in both manuals were rewritten before being incorporated into the Baroid Phase II Manual. There were significant revisions to the text, as well. The order of presentation was rearranged between manuals, and a new alphanumeric system of designating modules was adopted for the Baroid Phase II Manual.

Second, a side-by-side comparison between the Eisenman manual and the Baroid Phase II Manual reveals copious amounts of copying. Even the same alphanumeric designations are used in both manuals. Format, wording, tables, graphs, drawings and/or sketches found in the Baroid Phase II Manual obviously were copied in the Eisenman Manual for at least forty modules. Among them are C-1, C-C2, M-3B and M-A2, which weren’t even to be found in the Prior Manual. In addition, typographical errors were copied from the Baroid Phase II Manual into the Eisenman manual. In M-OA the title “Round of Numbers” is found in both, although “Round Off Numbers” is the correct title. The word “gauges” is misspelled as “guages” in both versions of M-OA. In M-4A, the word “nongauge” is found as “nonguage” in the two manuals. Finally, there is a marked similarity in the outside resource materials to which the students are referred by both manuals.

The Copyright Act of 1976, 17 U.S.C. §§ 101 et seq., applies to any cause of action arising from “undertakings” commenced January 1, 1978 or later. 17 U.S.C. § 301(b)(2). Infringements are “undertakings.” Mention v. Gessell, 714 F.2d 87, 90 (9th Cir.1983). The Eisenman manual was distributed to students in its drilling mud instructional courses between January 1979 and June 1980. Therefore, federal copyright law, rather than common law or state law, is controlling. See Ibid.; Landsberg v. Scrabble Crossword Game Players, Inc., 736 F.2d 485 (9th Cir.1984).

Anyone who violates any of the five exclusive rights of a copyright owner described in 17 U.S.C. § 106 is an infringer. 17 U.S.C. § 501(a); Sony Corp. v. Universal City Studios, — U.S.-, 104 S.Ct. 774, 784, 78 L.Ed.2d 574 (1984). One of those rights is to prepare derivative works based upon the copyrighted work. Another is reproduction of the copyrighted work.

In order to establish infringement by Eisenman, NL must show that it owns the copyright, that Eisenman had access to the copyrighted Baroid Phase II Manual, and that there is substantial similarity of both the general ideas and the expressions of those ideas as between the Eisenman manual and the copyrighted one. See Lands-berg v. Scrabble Crossword Game Players, Inc., supra at 487-488; Sid & Marty Krofft Television v. McDonald’s Corp., 562 F.2d 1157, 1164 (9th Cir.1977).

NL has provided a certified copy of its certificate of copyright registration for the Baroid Phase II Manual. This is prima facie evidence of the facts stated therein, including ownership and validity. Novelty Textile Mills, Inc. v. Joan Fabrics Corp., 558 F.2d 1090, 1092 n. 1 (2nd Cir. 1977); 17 U.S.C. § 410(c). It also constitutes prima facie evidence of the originality of the copyrighted work. Midway Mfg. Co. v. Bandai-America, Inc., 546 F.Supp. 125, 139 (D.N.J.1982). Although Eisenman has urged that the Baroid Phase II Manual lacks the requisite originality to be copyrightable, it has not shown that it could produce at trial substantial evidence in support of its position. Originality in reference to a copyright work means only that its creator contributed something of his own creation that was not merely trivial. Kamar Intern., Inc. v. Russ Berrie and Co., 657 F.2d 1059, 1061 (9th Cir.1981); Roth Greeting Cards v. United Card Company, 429 F.2d 1106, 1109 (9th Cir. 1970). Changes in the text, format or arrangement will suffice for a newly compiled manual. See Schroeder v. William Morrow & Co., 566 F.2d 3, 6 (7th Cir.1977); United States v. Hamilton, 583 F.2d 448, 451 (9th Cir.1978); 17 U.S.C. § 103. NL has satisfied this requirement.

Access by the alleged infringer must be shown so as to eliminate coincidence or independent effort as an explanation for the likenesses between the two publications. Doran v. Sunset House Distributing Corp., 197 F.Supp. 940, 948 (S.D. Cal.1961), aff'd 304 F.2d 251 (9th Cir.1962). It is uncontroverted that Eisenman had access to the Baroid Phase II Manual before it prepared its own. A company official has acknowledged that it possessed a copy even before it hired the two former NL employees.

Similarity of expression must be established because a copyright protects only the creator’s expression of an idea, and not the idea itself. Landsberg v. Scrabble Crossword Game Players, Inc., supra at 487-488. The copying need not be of every detail so long as the eopy is substantially similar to the copyrighted work. Doran v. Sunset House Distributing Corp., supra at 197 F.Supp. 947. More than half of Eisenman’s manual was copied verbatim or virtually verbatim from NL’s copyrighted Baroid Phase II Manual. The format, the sequence of modules, the charts, tables and graphs, and even the alphanumeric system of designation were copied. Verbatim copying of substantial portions represents unjustifiable appropriation of the expression of an idea; available alternatives exist for expressing ideas. Sid & Marty Krofft Television v. McDonald’s Corp., supra at n. 17. What has happened here amounts to appropriation by Eisenman of NL’s labors. See Bradbury v. Columbia Broadcasting System, Inc., 287 F.2d 478, 485 (9th Cir.1961). Appropriation of another’s labor and skill in order to publish a rival work without expenditure of the time and effort required by independent work constitutes copyright infringement. Schroeder v. William Morrow & Co., supra at 6. Access plus substantial similarity reflects copying. Central Tel. Co. of Va. v. Johnson Pub. Co., 526 F.Supp. 838, 843 (D.Colo.1981); Rexnord, Inc. v. Modern Handling Systems, Inc., 379 F.Supp. 1190, 1194 (D.Del.1974). The similarities between NL’s and Eisenman’s manuals are so extensive and striking as, without more, to justify an inference of copying and improper appropriation. See Knickerbocker Toy Co., Inc. v. Genie Toys Inc., 491 F.Supp. 526, 528 (E.D.Mo.1980). Especially probative of the copying is the appearance of NL’s typographical errors in Eisenman’s manual. See Rexnord, Inc. v. Modern Handling Systems, Inc., supra at 1194; Central Tel. Co. of Va. v. Johnson Pub. Co., supra at 844.

Expert opinion is not required to establish the substantial similarity of expression — the test is the reaction of the ordinary reasonable person. Sid & Marty Krofft Television v. McDonald’s Corp., 562 F.2d 1157, 1164 (9th Cir.1977); Kamar Intern., Inc. v. Russ Berrie and Co., supra at 1063. An ordinary observer would recognize that a substantial portion of Eisenman’s manual was taken from the Baroid Phase II Manual; this is the test for infringement. See Bradbury v. Columbia Broadcasting System, Inc., supra at 485; Doran v. Sunset House Distributing Corp., supra at 197 F.Supp. 947.

Statute of Limitations

NL’s First Counterclaim was filed June 5, 1982. 17 U.S.C. § 507(b) provides that no civil action shall be maintained “unless it is commenced within three years after the claim accrued.” Since Eisenman’s infringing manual was distributed from January 1979 until June 1980, Eisenman urges that the Counterclaim is barred by the statute of limitations.

The Sixth Circuit agrees in part with Eisenman. In Hoste v. Radio Corp. of America, 654 F.2d 11 (6th Cir.1981) it was held that, where the complaint had been filed on March 9, 1978, all claims for damages which had accrued prior to March 9, 1975, were barred. The weight of authority, however, holds that the period of limitation begins to run on the date of the last act of infringement. See United States v. Shabazz, 724 F.2d 1536, 1540 (11th Cir.1984). The discussion found in Taylor v. Meirick, 712 F.2d 1112, 1118-1119 (7th Cir.1983) is quite persuasive. It observes that copyright infringement is a continuing wrong, and the statute of limitations does not begin to run in such a case until the wrong is over and done with. Were it otherwise, a complainant would have to bring successive suits. Because legal proceedings must be commenced within three years of the last unlawful act, the litigation is not really concerned with claims relating to the distant past. In the instant action, the last act of ingringement occurred in June 1980 and the First Counterclaim was brought less than three years later. It is not barred by the statute of limitations.

Laches

Eisenman contends that the doctrine of laches is applicable here. It points out that NL must have been aware that its two employees had been hired away by Eisenman, therefore it should have been particularly observant of Eisenman’s drilling mud instructional courses thereafter.

An older Ninth Circuit case has indicated that laches should not bar a suit against a deliberate infringer. Universal Pictures Co. v. Harold Lloyd Corporation, 162 F.2d 354, 372 (9th Cir.1947). Since the great bulk of copyright infringement is deliberate, laches would all but be ruled out as an affirmative defense. Other parts of the Universal Pictures opinion do indicate that the doctrine of laches is viable, however. On page 372 it finds reasonable the rule that a copyright owner may not deliberately delay his prosecution until the infringer’s exploitation has become successful, thereby building up the measure of damages. The rule is recognized in virtually all jurisdictions.

The party raising the defense of laches is required to show that the complaining party did not assert its rights diligently and that the lack of diligence resulted in prejudice to the defending party. Lottie Joplin Thomas Trust v. Crown Publishers, 592 F.2d 651, 655 (2nd Cir. 1978); Hoste v. Radio Corp. of America, supra at 12.

As to lack of diligence, the Universal Pictures opinion, at page 372, suggests that “the delay of action by the copyright owner must be of such a character as to justify a belief on the part of the infringer that there is assurance of an immunity from a claim of liability.” There is no indication of such circumstances in the instant action. In fact, Eisenman ceased distribution of its offending manual in June 1980.

The element of prejudice is treated with clarity in Lemelson v. Carolina Enterprises, Inc., 541 F.Supp. 645, 657 (S.D. N.Y.1982). Factors relevant to.the issue include the death or unavailability of important witnesses, the dulling of memories through the passage of time, the loss of relevant records, and continuing investments and outlays by the alleged infringer in connection with the operation of its business. None of these considerations demonstrate prejudice to Eisenman in the light of the facts of this case.

Additional Discovery

Eisenman has requested that this motion for partial summary judgment not be decided against it without first allowing it more time to pursue discovery that might develop facts to support its opposition. It notes that the primary thrust of this lawsuit lies in the field of antitrust. Concentration on discovery as to antitrust issues and time expended on a parallel State court action have limited its pursuit of discovery as to the copyright infringement counterclaim, is the argument.

In response, NL emphasizes that its First Counterclaim was filed and served early in June 1982. Also, Eisenman served NL on October 8, 1982, with thirty-nine interrogatory questions concerning that Counterclaim. NL’s response was served on Eisenman November 24, 1982. That response included identification of NL employees and former employees who might possess knowledge of facts pertinent to the copyright infringement claim. Also, on April 14, 1983, NL served interrogatories on Eisenman which included some fifteen questions requesting facts that support Eisenman’s affirmative defenses to the First Counterclaim. In other words, Eisenman has long been on notice that the copyright infringement claim was not being left to lie dormant.

Eisenman has not specified any particular facts that further discovery should uncover that would enable it to raise genuine issues of material fact in connection with the instant motion for partial summary judgment. Any such facts have not been shown to have been inaccessible to it. The request that Eisenman be allowed further time must be denied. See Securities & Exchg. Com’n v. Spence & Green, 612 F.2d 896, 901 (5th Cir.1980); Schneider v. McKesson & Robbins, Inc., 254 F.2d 827, 831 (2nd Cir.1958); Jason v. Fonda, 526 F.Supp. 774, 775 (C.D.Cal. 1981), aff'd 698 F.2d 966 (9th Cir.1982).

Summary Judgment

Summary judgment is appropriate in a copyright infringement case where the two publications are before the court. Midway Mfg. Co. v. Bandai-America, Inc., 546 F.Supp. 125, 141 (D.N.J.1982). Nevertheless, where, as here, the opposing party has denied copying, summary judgment should be granted the claimant only where the similarities between the two works are so striking or so overwhelming and pervasive as to preclude independent creation. Id. at n. 11; Knickerbocker Toy Co., Inc. v. Genie Toys, Inc., 491 F.Supp. 526, 529 (E.D.Mo.1980). Put another way, summary judgment is proper if reasonable minds could not differ as to the presence or absence of substantial similarity of expression. See v. Durang, 711 F.2d 141, 143 (9th Cir.1983). Then the question may be decided as a matter of law. Jason v. Fonda, supra at 526 F.Supp. 777.

NL’s showing of Eisenman’s access, knowledge, extensive duplication of content and common typographical errors leaves no room for any inference other than that Eisenman copied from the Baroid Phase II Manual. See Rexnord, Inc. v. Modern Handling Systems, Inc., 379 F.Supp. 1190, 1195 (D.Del.1974). There is no genuine issue of material fact as to the liability of Eisenman to NL for the copyright infringement alleged in NL’s First Counterclaim.

IT IS, THEREFORE, HEREBY ORDERED that the “Motion by Defendant and Counterclaim Plaintiff NL Industries, Inc. for Summary Judgment as to Liability on NL’s First Counterclaim” as against Plaintiff and Counterclaim Defendant Eisenman Chemical Company be, and the same hereby is, GRANTED.

IT IS FURTHER ORDERED that the issue of the amount of damages therefor shall be determined by the trier of fact after trial of that issue.

      . C-1, C-A1, C-B1, C-A2, C-C2, E-1, E-2, E-AO, E-AOA, E-A1, E-BO, E-BOA, G-2, G-2A, G-A2, G-A2A, L-O, L-1, L-1C, L-1D, L-1E, L-AO, LA1B, L-C3, M-O, M-OA, M-1, M-1A, M-2, M-3, M-3A, M-3B, M-4, M-4A, M-A2, M-A4, M-B3, M-B4, M-C3 and M-C4.


author: HASTINGS, District Judge.

text:
    Toney THOMAS, Plaintiff, v. FLORIDA POWER & LIGHT COMPANY, Defendant.
    No. 82-6722-Civ-ALH.
    United States District Court, S.D. Florida, Miami Division.
    July 31, 1984.

      Toney Thomas, pro se.
    James Bramnick, Miami, Fla., for defendant.
   FINAL SUMMARY JUDGMENT

HASTINGS, District Judge.

THIS CAUSE has come before the Court on Defendant’s Motion for Summary Judgment. This suit is an individual disparate treatment action brought for declaratory judgment, injunctive relief, back pay, and reinstatement to employment, under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., for alleged employment discrimination based upon race leading to Plaintiff’s discharge from the employ of the Defendant.

According to the allegations of the Complaint, Plaintiff was harassed and ultimately discharged because of his race. Plaintiff also alleges that he was denied due process of law.

Defendant has moved for a summary judgment, claiming that Plaintiff failed to file his charge of discrimination with the Florida Commission on Human Relations and the Equal Employment Opportunity Commission in timely fashion, and that such timely filing is a necessary condition precedent to bringing an action under Title VII of the Civil Rights Act. Both Plaintiff, acting pro se, and Defendant have submitted memoranda of law in support of their positions on this issue.

The Plaintiff, TONEY THOMAS, is a Black citizen of the United States and a resident of the State of Florida. The Defendant, FLORIDA POWER & LIGHT COMPANY, is a Florida corporation, engaged in the business of generating and distributing electricity throughout the State of Florida; at all times relevant to this action, the Defendant (hereinafter “FPL”) has employed more than fourteen persons.

Plaintiff THOMAS was employed by Defendant FPL for four months in 1980. On July 14, 1980, Plaintiff was hired by FPL as a Helper at Defendant's Wingate Service Center in Fort Lauderdale, and on September 20, 1980, Plaintiff was accepted for the position of Apprentice Lineman at Defendant’s Boca Raton Service Center. On November 21, 1980, TONEY THOMAS was discharged by FPL. When discharged, Plaintiff was still within the six month probationary status that all of Defendant’s bargaining unit employees must undergo at the beginning of their employment with FPL.

On August 20, 1981, the Plaintiff filed a charge of discrimination against Defendant FPL with the Florida Commission on Human Relations. The Equal Employment Opportunity Commission (“EEOC”) originally received the charge of discrimination on August 26, 1981. Then, on September 14, 1981, the Florida Commission on Human Relations completed its consideration of the charge, and referred the complaint to EEOC. On or about August 11, 1982, EEOC issued a determination finding no reasonable cause to believe that Plaintiffs charges were true.

The Court finds that the date TONEY THOMAS was discharged by FPL, November 21, 1980, is the date that the alleged unlawful practice occurred, and that Plaintiff knew or reasonably should have known that the act challenged as discriminatory occurred on that date. The parties have stipulated and the Court further finds that TONEY THOMAS did not file his discrimination charge against the Defendant with the Florida Commission on Human Relations until August 20, 1981, or 272 days after the date that the alleged unlawful practice occurred, and that EEOC did not receive the complaint until August 26, 1981, or 278 days after the date of the act challenged as discriminatory. Finally, the parties have also stipulated and the Court finds that the Florida Commission on Human Relations completed its consideration of the discrimination charge on September 14, 1981, or 297 days after the date of Plaintiffs discharge. Since there is no genuine issue as to any of the foregoing material facts, the Court concludes that this cause is ripe for decision on the legal issue in Defendant’s Motion for Summary Judgment of whether Plaintiff filed a timely claim with EEOC.

It is well established that the filing of a timely charge of race discrimination with EEOC is a condition precedent to maintaining a lawsuit under Title VII of the Civil Rights Act of 1964, and Plaintiff bears the burden of proving that a challenged condition precedent has been satisfied. Jackson v. Seaboard Coast Line Railroad Company, 678 F.2d 992 (11th Cir.1982). Title 42, United States Code, Section 2000e-5(e), which sets the specific time limitations on filing a complaint, provides in pertinent part that:

A charge under this section shall be filed within one hundred eighty days after the alleged unlawful employment practice occurred ... except that in a case of an unlawful employment practice with respect to which the person aggrieved has initially instituted proceedings with a State or local agency with authority to grant or seek relief from such practice ..., such charge shall be filed by or on behalf of the person aggrieved within three hundred days after the alleged unlawful employment practice occurred ...

Thus, while Title VII requires a claimant to file a charge with EEOC within 180 days of the act challenged as discriminatory, a limited exception is provided for in a State with a fair employment practices agency when the claimant has initially instituted a proceeding with such agency, in which case the individual would have up to 300 days to file the charge with EEOC. These time limitations begin to run from the date that the claimant knew or reasonably should have known that the alleged unlawful employment practice occurred. Stafford v. Muscogee County Board of Education, 688 F.2d 1383 (11th Cir.1982).

The State of Florida, with its Florida Commission on Human Relations, is such a state with an agency that has authority to grant relief from unlawful employment practices. Plaintiff initially instituted proceedings with this agency on August 20, 1981, some 272 days after he knew or reasonably should have known that the alleged discriminatory act occurred. According to the statutory provision cited above, TONEY THOMAS should therefore have had up to 300 days to file his charge with EEOC. Since EEOC received the claim within 278 days of the 300-day statutory period, it would appear, at first glance, that Plaintiff THOMAS had filed a timely charge of race discrimination with EEOC.

Defendant’s argument does not end at that juncture however. Defendant strongly asserts that where a claimant fails to file a timely charge with the state agency, the extended 300-day filing period under Title VII simply does not apply. Since Florida law requires an aggrieved individual to file a claim with the Florida Commission on Human Relations within 180 days of the alleged violation, Section 23.167(10) of the Florida Statutes, and Plaintiff did not file his charge with that agency until the 272nd day, Defendant argues that TONEY THOMAS was not entitled to take advantage of the extended 300-day filing period for filing charges with EEOC.

Plaintiff, acting as his own attorney, responds by referring the Court to Mohasco Corporation v. Silver, 447 U.S. 807, 100 S.Ct. 2486, 65 L.Ed.2d 532 (1980). In Mohasco, a religious discrimination in employment case, the Supreme Court discussed at length the meaning of the time limitations on filing Title VII claims in states with fair employment practices agencies, which the Supreme Court referred to as “deferral States”. In two controversial footnotes, Justice Stevens examines at length the very legal issue with which this Court is faced:

“Under the Moore decision (Moore v. Sunbeam Corporation, 459 F.2d 811 (7th Cir.1972)), which we adopt today, a complainant in a deferral State having a fair employment practices agency over one year old need only file his charge within 240 days of the alleged discriminatory employment practice in order to insure that his federal rights will be preserved. If a complainant files later than that (but not more than 300 days after the practice complained of), his right to seek relief under Title VII will nonetheless be preserved if the State happens to complete its consideration of the charge prior to the end of the 300-day period....”

Mohasco, 100 S.Ct. at 2491, Footnote 16. A literal interpretation of this language would appear to support Plaintiff's contention that since he filed his claim later than 240 days after his discharge, his right to maintain this Title VII action would be preserved if the State of Florida completed its consideration of such claim before the end of the 300-day period. And since the Florida Commission on Human Relations did complete its review and did forward the charge to EEOC on September 14, 1981, a date prior to the end of the 300-day period, Plaintiff urges that his discrimination charge should be considered timely filed with EEOC. Further support for this interpretation is found in Justice Stevens’ other footnote in the Mohasco decision which treats the issue of the extension of time for filing where an aggrieved person has initially instituted proceedings with the State agency:

“This language has been construed to require that the filing with the state agency be made within 180 days. Olson v. Rembrandt Printing Co., see n. 16, supra [511 F.2d 1228 (8th Cir.1975)]. Although that construction is consistent with the general rule announced at the beginning of § 706(e), and is supported by one Congressman’s understanding of the procedures at the time of the 1972 amendment to that section, see 1972 Leg. Hist.1863 (remarks of Rep. Dent), Congress included no express requirement that state proceedings be initiated by any specific date in the portion of the subsection that relates to time limitations in deferral States. Further, there are contemporaneous indications in the legislative history, which, while not authoritative, contradict Representative Dent’s views. [Citations omitted.]
In any event, we do not believe that a court should read in a time limitation provision that Congress has not seen fit to include, see Occidental Life Ins. Co. v. EEOC, 432 U.S. 355, 97 S.Ct. 2447, 53 L.Ed.2d 402, at least when dealing with ‘a statutory scheme in which laymen, unassisted by trained lawyers initiate the process.’
Love v. Pullman Co., 404 U.S. 522, 527, 92 S.Ct. 616, 619, 30 L.Ed.2d 679. In contrast to the construction of the statute we adopt today, the Olson approach, urged upon us by petitioner and amici, is not compelled by the plain meaning of the statutory language.”

Mohasco, 100 S.Ct. at 2492, Footnote 19. In a Reply to Plaintiff’s Memorandum, Defendant FPL argues that Plaintiff’s reliance on the Supreme Court decision in Mohasco is misplaced, because in Mohasco the claimant initiated proceedings with the state agency within the state limitations period and the Court was not required to decide whether a claimant’s failure to file a timely complaint with the state agency would preclude the applicability of the extended 300-day filing period under Title VII. In Lowell v. Glidden-Durkee, Div. of SCM Corp., 529 F.Supp. 17 (N.D.Ill.1981), District Judge Getzendanner found that although a literal reading of the cited language in Mohasco supported the contention that all claimants in deferral States could use the extended filing period, regardless of any compliance with state filing periods, this was not the result that the Supreme Court intended:

“To rule in plaintiff’s favor would be to rule that any plaintiff in a deferral state becomes entitled to the extended filing period simply by filing a charge with the state agency, even though that charge is without any significance because it is time barred. Such a result flies in the face of the purpose behind the extended filing period, which is to allow state agencies the initial opportunity to consider and resolve employment discrimination charges.
8}« # Sfc
Mohasco carves out an exception to the 180-day limitation period: where the state filing period exceeds 180 days, plaintiffs do get extra time in which to bring charges. This, however, is in furtherance of the purpose behind the deferral provision — to give state agencies the first chance to deal with employment discrimination. Where a plaintiff has precluded state review by failing to file timely state charges, and where the state gives such plaintiff at least 180 days to initiate state proceedings, there is no justification for allowing the plaintiff an extended filing period.”

Lowell at 25-26. Despite the logic of such analysis, there is obviously a difference of opinion when it comes to interpreting Mohasco. As Judge Getzendanner points out, at least three other circuits have ruled, based on the language in Mohasco, that the extended filing period applies to all claimants in deferral States, regardless of whether they file their charges with the state agencies in timely fashion. Ciccone v. Textron, Inc., 651 F.2d 1 (1st Cir.1981), cert. denied, 452 U.S. 917, 101 S.Ct. 3052, 69 L.Ed.2d 420 (1981); Ewald v. Great Atlantic & Pacific Tea Co., 644 F.2d 884 (6th Cir.1981); Davis v. Calgon Corp., 627 F.2d 674 (3d Cir.1980). The Eleventh Circuit and the Fifth Circuit have not yet spoken on this precise legal issue.

Despite the wording of 42 U.S.C. § 2000e-5(e) and the footnotes in Mohasco and despite the fact that the First, Third, and Sixth Circuits have all interpreted Mohasco to allow the extended filing period to apply to all claimants in deferral States regardless of whether their charges are timely filed, this Court finds itself compelled to agree with the logic of the Lowell opinion and interprets Mohasco to mean that claimants in deferral States with state filing periods exceeding 180 days are entitled to extended periods for filing with EEOC in order to give the state agencies the first opportunity to resolve the employment discrimination charges. However, in deferral States with state filing periods of 180 days or less, it would be illogical to grant claimants an extended filing period with EEOC where their claims were not timely filed with the State, just because they initially instituted proceedings with the appropriate state agency before filing with EEOC. Requiring such claimants to file first with a state agency which could grant them no relief because their complaints were not timely would be a meaningless gesture. This Court concludes and holds that in order for a claimant to be-entitled to the extended filing period of 300 days in a deferral State like Florida, such claimant must institute proceedings with the state agency within the state filing period. In Florida, the filing period is 180 days. TONEY THOMAS did not file his charge for 272 days. Applying the Court’s holding to these facts, Plaintiff was not entitled to the extended 300-day filing period and his complaint was not, therefore, timely filed with EEOC.

The Court having reviewed the record in this cause, having carefully considered the memoranda submitted by the parties and the applicable law, having determined that Plaintiff has not carried his burden of proving that the challenged condition precedent has been satisfied, and being otherwise fully advised in these matters, it is hereby

ORDERED AND ADJUDGED that Defendant’s Motion for Summary Judgment is GRANTED. Final Summary Judgment is hereby GRANTED in favor of Defendant FPL, as Plaintiff’s claim with EEOC was not timely filed.


author: KEVIN THOMAS DUFFY, District Judge.

text:
    PARNASS INTERNATIONAL TRADE & OIL CORP. and Sakson Ltd., Plaintiffs, v. SEA-LAND SERVICE, INC., Defendant.
    No. 82 Civ. 3307 (KTD).
    United States District Court, S.D. New York.
    Aug. 10, 1984.

      Burlingham, Underwood & Lord, New York City, for plaintiffs; Alfred E. Yudes, Jr., New York City, of counsel.
    Haight, Gardner, Poor & Havens, New York City, for defendant; Chester D. Hooper, Claudia D. Baker, New York City, of counsel.
   OPINION

KEVIN THOMAS DUFFY, District Judge.

Plaintiffs Parnass International Trade and Oil Corporation (“Parnass”) and their marketing arm Sakson Ltd. (“Sakson”) brought this action for breach of contract against the ocean carrier Sea-Land Service, Inc. (“Sea-Land”). Plaintiffs assert that Sea-Land substantially deviated from the contract within the meaning of the Carriage of Goods by Sea Act (“COGSA”) 46 U.S.C. § 1304(4), rendering the carrier liable for damages allegedly incurred due to delay in the delivery of plaintiffs’ goods. I held a two-day bench trial in this case on June 18, 1984. The following shall constitute my findings of fact and conclusions of law.

I.

Plaintiff Parnass operates in the Greek market as a seller of raw materials. For the past seven years, it has been involved in trading polyethylene. Parnass would arrange for the purchase of polyethylene on the international market and then resell the product to customers in the Greek market. As part of its trading activities in 1980, Parnass orally contracted to sell to certain of its Greek customers a quantity of polyethylene. Accordingly, it purchased 180,226 kilograms of bagged polyethylene from Cities Service Export, Inc. (“Cities Service”).

For several years previous to this occasion, Parnass had been using defendant Sea-Land as its ocean carrier for shipment of plaintiffs’ raw materials’ purchases. Parnass would contact defendant’s exclusive agent in Greece, George Callitisis Successors S.A. (“Callitisis”), and arrange for the shipment through Callitisis’ salesman Nicholas Theoharis. On this occasion, Parnass arranged for Cities Service to deliver nine containers loaded with polyethylene to Sea-Land at Houston on June 16,1980. Six of the nine containers sailed from Houston on June 17, 1980, onboard the Sea-Land vessel S.S. S/L Venture pursuant to bill of lading 961-536305. The remaining three containers sailed from Houston on June 23, 1980, on board the S.S. S/L Producer pursuant to bill of lading 961-536359. These bills of lading were issued on Sea-Land’s short form which incorporated the long form by reference and which provided that the port of loading was Houston and the port of discharge was Pireaus, Greece.

The two ships did not carry the cargo directly from Houston to Pireaus, but rather, carried the cargo in accordance with Sea-Land’s relay system. Sea-Land, as apparently with several large container ocean carriers, uses a relay system in which the first vessel is the line-haul vessel or the mother ship. This line-haul vessel carries the cargo transocean to a major relay point. At the relay point the cargo of the line-haul vessel is discharged to other smaller vessels, commonly labeled feeder vessels. These feeder vessels then carry the cargo to the discharge destination or to a second relay port and another feeder vessel.

In the instant case, plaintiffs’ cargo was carried by the line-haul vessels Venture and Producer, from Houston to the first relay point, Rotterdam, Netherlands. The Venture arrived in Rotterdam on July 2, 1980, and the Producer arrived on July 6, 1980. The cargo was thereafter discharged from the line-haul vessels and loaded onto a feeder vessel the S.S. S/L Pioneer which left Rotterdam on July 11, 1980, and arrived in Algeciras, Spain on July 15, 1980. The cargo was again offloaded in Algeciras, and loaded aboard the feeder vessel the Panarea. This vessel did not finally take plaintiffs’ goods to Greece until July 31, 1980, arriving in Pireaus on August 4, 1980. Much of the delay apparently resulted from port congestion in Pireaus due to a strike.

Plaintiff claims that it expected to receive its cargo on July 16, 1980, thirty days after delivery of the cargo to Sea-Land at Houston. It based its expectations, in part on Sea-Land’s schedule which indicated an approximate thirty-day shipping time from Houston to Pireaus, on estimates plaintiff asserts were given by Sea-Land’s Pireaus agent, and on previous experience in which shipments had taken less than thirty days. Plaintiff, in fact, contends that defendant’s Greek agent guaranteed delivery within thirty days.

According to plaintiff as a result of Sea-Land’s failure to deliver the cargo within thirty days, all twelve of plaintiff’s buyers cancelled their polyethylene orders. Apparently August is the major vacation month in Greece. Plaintiff asserts that it was thus unable to negotiate a sale of the polyethylene until September 1980, at which time the price of polyethylene had dropped approximately 20 percent. In addition, plaintiff contends that as a result of its failure to fulfill its contracts to supply polyethylene in July, it lost credibility in the market and was forced to withdraw completely. Plaintiff claims damages for the drop in polyethylene prices between August 16 and September 4, 1980, and seeks, in addition, a lump-sum payment for its loss of the entire polyethylene market.

I reject plaintiff’s claims for two reasons: first, I find that defendant did not deviate from the contract of carriage; and even if Sea-Land did deviate, the deviation was reasonable.

II.

COGSA provides that if a “deviation is for the purpose of loading or unloading cargo or passengers it shall, prima facie, be regarded as unreasonable.” 46 U.S.C. § 1304(4). As part of its relay system, defendant twice off-loaded plaintiff’s cargo and changed ships at ports unspecified in the bills of lading. In total, the cargo remained at these two other ports for twenty-five to twenty-eight days. If plaintiffs establish that defendant’s actions constituted an unreasonable deviation, the defendant would be liable for all damages plaintiffs suffered. “The carrier becomes, in relation to the shipper, an insurer of the shipper’s goods.” Calmaquip Engineering West Hemisphere Corp. v. West Coast Carriers Ltd., 650 F.2d 633, 638 (5th Cir. 1981). I find, however, that Sea-Land’s relay system does not constitute a deviation from the contract of carriage for three reasons.

First, I note that the long form bills of lading specifically provided for the possibility of carriage on several vessels. Although the short form bills of lading were used by Sea-Land for plaintiff’s cargo, the short forms expressly incorporated the terms and conditions of the long forms. Plaintiffs assert that the short form cannot incorporate terms from the long form which differ materially from COGSA and which are not clearly stated on the face of the short form bill of lading. Although the carrier may not use such a device to impermissibly limit its liability, see Encyclopaedia Britannica v. S.S. Hong Kong Producer, 422 F.2d 7, 14 (2d Cir.1969), cert. denied, 397 U.S. 964, 90 S.Ct. 998, 25 L.Ed.2d 255 (1970), Sea-Land certainly could reasonably expect that the shipper’s awareness of a long form bill of lading also gave it at least constructive knowledge of the existence of defendant’s relay system therein described. The transfer of plaintiff’s goods from one ship to another, moreover, did not increase the risk of damage because the polyethylene was non-perishable, well packaged, and the goods not inherently susceptible to damage.

Second, I note that plaintiff had dealt with Sea-Land on previous occasions in which Sea-Land had utilized its relay system. Sea-Land has been relaying cargo for at least the past nineteen years. Defendants’ Greek agents credibly stated that Pamass was made aware of Sea-Land’s relay system. Sea-Land produced substantial literature and advertising concerning its relay system. Given plaintiff’s prior contractual undertakings with defendant in which the relay system was used as well as the widespread dissemination of information concerning the system, plaintiff acquiesced, waived, and/ or agreed to the use of such a system in its contract of carriage on this occasion.

A third and final reason for concluding that there was no deviation from the contract concerns trade usage. While such a finding is not necessary to my holding, I note that defendant provided credible evidence suggesting that use of the relay system constituted a custom of the trade. A majority of the ocean going carriers apparently use such a relay system. This system permits the efficient shipment of cargo to various widespread destinations. If the line-haul vessel called at all ports for which they carried the cargo, the cargo obviously destined for later points would take a far longer time to reach their destination. This system permits the cargo to reach their destinations quickly and all approximately in the same period of time. Plaintiffs claim that they have been involved in worldwide trade of raw material for over twenty-seven years. Nevertheless, it contends that it was not aware of the use of the relay system by any carriers. This contention strains credibility too far. Accordingly, I find that no deviation within the meaning of section 1304(4) occurred in the instant case. See General Electric Company International Sales Division v. S.S. Nancy Lykes, 706 F.2d 80 (2d Cir. 1983), cert. denied, — U.S.-, 104 S.Ct. 157, 78 L.Ed.2d 145 (1983).

Furthermore, even if I were to find that defendant’s relay system constituted a deviation, I could not find it unreasonable. Despite plaintiffs’ contrary assertion, I do not find that defendant’s Greek agent promised a specific delivery date. Transoceanic shipping involves far too many risks for me to believe that an experienced agent would make such a promise. A short delay of eighteen days is not in and of itself unreasonable. It is just such a potential for strikes and port congestion which prohibits carriers from making hard and fast promises such as the one plaintiff contends existed here. Moreover, a relay system operates to efficiently deliver plaintiff's goods, and as implemented here, did not constitute unreasonable delay.

In American Cyanamid Company v. Booth S.S. Co., 99 F.Supp. 232 (S.D.N.Y. 1951), the court held that a deviation which involved calling at ports out of their geographical order to take advantage of spring tides, thereby speeding delivery times for the cargo overall, but which happened to delay the delivery of plaintiff’s cargo was a reasonable deviation. The court described the test of reasonableness as “what departure from the contract voyage might a prudent person controlling the voyage at the time make and maintain, having in mind all the relevant circumstances existing at the time, including the terms of the contract and the interests of all parties concerned, without obligation to consider the interest of any one as conclusive.” Id. at 237. Similarly, an examination of all of the relevant circumstances here, demonstrates that defendant’s relay system was a reasonable method of delivering plaintiff’s cargo in as expedient and efficient a manner as possible.

In sum, plaintiff has not established that the defendant unreasonably deviated from their contract of carriage. As such, the complaint is dismissed.

SO ORDERED.

      . Sea-Land’s long form bill of lading paragraph 4 provided:
      It is specifically agreed, without any limitation of the foregoing, that all goods, containers, trailers, or vans may be transferred, transshipped, and carried on several vessels en route in the port of shipment to the port of destination and such transfer, transshipment or change in vessel shall not constitute a deviation; and such transfers and transshipments on various vessels is contemplated, and anticipated by the shipper and owner of the goods.

      . Defendant's knowledgeable witness credibly stated that to service Houston to Pireaus would probably take longer under a non-relay delivery system because the bulk of the cargo for numerous reasons would be delivered to the Northern and Western European ports first.

      . Defendant requests attorney’s fees. Defendant has not established that plaintiffs’ action was either brought in bad faith or in violation of Fed.R.Civ.P. 11 and hence, there are no grounds upon which to grant it attorney’s fees. Accordingly, its request for such fees is denied.


author: ASPEN, District Judge:

text:
    MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY, a Massachusetts corporation, Plaintiff, v. Helen LEBERIS, Defendant.
    No. 83 C 2618.
    United States District Court, N.D. Illinois, E.D.
    Aug. 15, 1984.
    J. Robert Geiman, Peterson, Ross, Schloerb & Seidel, Chicago, 111., for plaintiff.

      Felicia Dwyer, Chicago, 111., for defendant.
   MEMORANDUM OPINION AND ORDER

ASPEN, District Judge:

Plaintiff Massachusetts Mutual Life Insurance Company (“Mass. Mutual”) has brought this action against Helen Leberis, wife and beneficiary of the decedent Constantine Leberis (“Leberis”), for breach of an insurance contract. Jurisdiction is asserted pursuant to 28 U.S.C. § 1332. Presently before the Court is Mass. Mutual’s motion for summary judgment. For reasons set forth below, Mass. Mutual’s motion is denied.

Facts

On approximately May 16, 1981, Leberis applied to Mass. Mutual for a $50,000 whole life insurance policy on his life in conjunction with Mass. Mutual’s Policyholder Opportunity Program (“POP”), under which certain policyholders were allowed to apply for additional insurance without a medical examination. Leberis’ application was made through Irwin G. Winer (“Winer”), who had acted as Leberis’ insurance broker for approximately 12 years. Questions on the application which asked whether the applicant had been advised of or treated for any illnesses during the prior year, in this case between May 16, 1980 and May 16, 1981, were answered negatively, and Leberis signed the application below a certification that all statements made in the application were true. Mass. Mutual subsequently issued a policy to Leberis which contained a provision allowing Mass. Mutual to contest the validity of the policy for material misrepresentations in the application for two years following its issuance.

Following Leberis’ death in June 1982, which fell within the two-year contestability period, Mass. Mutual initiated a routine investigation of Leberis’ medical history. As part of its investigation, Mass. Mutual obtained Leberis’ medical records from two Chicago-area hospitals. The subpoenaed records showed that Leberis had been hospitalized three times for heart disease during the year prior to his application for insurance.

Mass. Mutual asserts that Leberis misrepresented his medical history of heart disease, thereby materially affecting the risk assumed by the company. As a result, according to Mass. Mutual, the insurance policy is void, and Mass. Mutual is not liable to Helen Leberis for the proceeds of the policy.

In motions for summary judgment, the burden falls upon the moving party to clearly establish that there is no genuine issue of any material fact relevant to a judgment in its favor. Cedillo v. International Association of Bridge and Structural Iron Workers, Local Union No. 1, 603 F.2d 7, 10 (7th Cir.1979). The non-moving party is entitled to have any doubts resolved in his or her favor, Moutoux v. Gulling Auto Electric, 295 F.2d 573, 576 (7th Cir.1961), and should receive the benefit of reasonable inferences which can be made from underlying facts contained in the materials submitted. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962).

In the case before us, the defendant claims that there are a number of factual questions that must be resolved. While most of her allegations are conclusory, the questions of Winer’s status, that is, whether he was acting as an insurance broker or as an agent for Mass. Mutual is an unresolved material factual issue.

Mass. Mutual claims that Winer, who merely recorded Leberis’ answers to the

questions on the application, did not possess any factual knowledge of Leberis’ heart disease and hospitalization. Mass.

’ Mutual further asserts that, even if he was aware of Leberis’ medical history, Winer’s knowledge could not be imputed to the company because Winer was acting as Leberis’ insurance broker in procuring the application. The defendant, on the other hand, insists that Winer was .a friend of Leberis and was aware of Leberis’ illness and hospitalization. The defendant alleges that this knowledge must be imputed to Mass. Mutual because Winer was the agent of that company.

Both views are supported to some degree by Winer’s own testimony. Winer testified that he was an insurance broker and, as such, was licensed to do business with any insurance company in Illinois. Winer also testified, however, that he had a subagent’s agreement with Mass. Mutual.

It is generally accepted in insurance law that an agent represents a particular insurer, while a broker represents the insured. See, e.g., Roby v. Decatur Steel Erectors, Inc., 59 Ill.App.3d 720, 725, 17 Ill.Dec. 71, 75, 375 N.E.2d 1355, 1359 (4th Dist.1978). See also Ill.Ann.Stat. ch. 73, § 1065.37. The knowledge of an agent or subagent can be imputed to the insurer. Lauhoff v. Automobile Ins. Co. of Hartford, Conn., 56 F.Supp. 493, 499 (E.D.I11. 1944) [citing Insurance Co. of North America v. Thornton, 130 Ala. 222, 30 So. 614 (1901); 1 Cooley on Insurance at 475 (2d ed.), Restatement of Agency §§ 79-80]. However, either a broker or an agent may act in the opposite capacity and represent the other party in a transaction. National Premium Budget Plan Corp. v. LaSalle Casualty Co., 81 Ill.App.2d 466, 225 N.E.2d 400 (1967). Whether a person is acting as an insurance agent or a broker in a particular situation is determined by his action and other factors such as who called him into action, who controls his movements and whose interest he represents. Browder v. Hanley Dawson Cadillac, 62 Ill.App.3d 623, 629, 20 Ill.Dec. 138, 142-143, 379 N.E.2d 1206, 1210-11 (1978) [citing TriCity Transp. Co. of Bituminous Casualty Corp., 311 Ill.App. 610, 37 N.E.2d 441 (1941), and Moore v. Commercial Cas. Ins. Co., 350 Ill.App. 328, 112 N.E.2d 626 (1953) ].

In the case before us, Winer had clearly acted as a broker for Leberis prior to the taking of the application in question. As noted above, however, he has also testified that he has a subagent’s relationship with Mass. Mutual. For this reason, it is necessary to determine in which capacity Winer was acting at the time he procurred Leberis’ application on May 16, 1981. If it is found that Winer was acting as a broker, the extent of Winer’s knowledge need not be addressed. If, on the other hand, it is determined that Winer was acting as Mass. Mutual’s subagent, the extent of Winer’s knowledge also becomes a material question of fact.

Accordingly, because these questions of fact exist, Mass. Mutual’s motion for summary judgment must be denied. It is so ordered.

      . The relevant portion of the application asks:
      37. Is there now, or within the last year has he/she had, any known indication of, or been told by any physician, psychologist or other practitioner of the healing arts that he/she had any illness, sickness, injury or impairment of health? 38. Within the last year has he/she had advice from or attendance or treatment by any physician, psychologist or other practitioner of the healing arts?

      . The relevant portion of the application stated:
      We rely on all statements made by or for the Insured in the application. Legally, these statements are considered to be representations and not warranties. We can contest the validity of this policy for any material misrepresentation of a fact. To do so, however, the misrepresentation must have been made in the application and a copy of the application must have been attached to this policy when issued.
      We must bring any legal action to contest the validity of this policy within two years from its Issue Date. After that we cannot contest its validity, except for failure to pay premiums.

      . Medical records prepared in the regular course of business are admissible as evidence under Federal Rule of Evidence 803(6) which states
      The following are not excluded by the hearsay 'rule, even though the declarant is available as a witness:
      * * * * * *
      (6) Records of regularly conducted activity. A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term “business" as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.

      . Under Illinois law, which controls in this case, Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), heart disease is considered a material factor in assessing the risks assumed by an insurance company. See, e.g., Metropolitan Life Ins. Co. v. Moravec, 214 Ill. 186, 188, 73 N.E. 415, 416 (1905); Alperin v. National Home Life Assurance Co., 32 Ill.App.3d 261, 263, 336 N.E.2d 365, 367-68 (1975).

      . Winer's deposition states at page 15;
      Q How many different companies do you work for or do you sell insurance to people for?
      A As a broker, I am licensed to represent any kind licensed in Illinois. At random, I may do business with one or the other, depending upon the nature of the business that I have to do. There are companies that I can specifically give one class of business to and companies that will specifically take another class of business. So, I have to use discretion as to which company I will give business to.

      . Winer’s deposition states at page 10:
      [W]hat is your relationship with Mr. Schneider?
      A He has a general agency agreement with the insurance company [Mass. Mutual], and I have a subagent’s agreement with the insurance company____
      A He [Mr. Schneider] represents Mass. Mutual as their general agent, and his function is to run an office for the purpose of processing business from other agents such as myself.
      Weiner’s deposition later states:
      Q When did you become a subagent or get a subagency contract? Have you always had one of those with Massachusetts Mutual?
      A Approximately since 1959.
      Weiner deposition at page 18.