author: ROBERT L. CARTER, District Judge.

text:
    CAPANO MUSIC, A DIVISION OF BRITONE, INC., Plaintiff, v. MYERS MUSIC, INC., Defendant, Daniel Waldstein, Intervenor, Mollie Goldstein, Intervenor.
    No. 83 Civ. 8342 (RLC).
    United States District Court, S.D. New York.
    Feb. 5, 1985.

      Robert W. Cinque, P.C., New York City, for plaintiff.
    Burns, Summit, Rovins & Feldesman, New York City, for defendant; Samuel M. Tollen, New York City, of counsel.
    Paul M. Wolsk, New York City, for Daniel Waldstein.
    Silverman & Shulman, P.C., New York City, for Mollie Goldstein; Alan L. Shulman, New York City, of counsel.
   OPINION

ROBERT L. CARTER, District Judge.

This is a suit for declaratory judgment to determine the successor to Max Freedman’s copyright interest in the song, “Rock Around the Clock.” Plaintiff and defendant, as well as intervenors Mollie Goldstein and Daniel Waldstein, have moved for summary judgment.

The following facts are not in dispute: Max Freedman and James Myers (a/k/a Jimmy DeKnight) co-authored the song “Rock Around the Clock.” The song was published with notice of copyright and registered in the United States Copyright Office on March 31, 1953, by and in the name of Myers Music, Inc. (“Myers Music”).

Max Freedman, a resident of Pennsylvania, died on October 8, 1962. He was survived by his widow, Ray Freedman, but left no issue. He left a will, made jointly with Ray Freedman, under which each bequeathed to the survivor “all of [his or her] worldly possessions,” except for specific legacies totalling $2,000. The will was duly admitted to probate on February 13, 1964, and Ray Freedman was appointed administratrix cum testamento annexo (e.t.a.) of Max Freedman’s estate.

On January 9, 1978, Ray Freedman assigned to plaintiff Capano Music (“Capano”) her rights in the copyright of “Rock Around the Clock” for $2,000. She died on December 28, 1980, leaving a will which left all her copyright and royalty rights and interests to Mollie Goldstein, her sister. The will was duly admitted to probate on January 5, 1981. Aaron Baer was appointed executor of Ray Freedman’s estate.

On January 26, 1981, the copyright in the song was renewed by and in the name of James Myers, the surviving co-author.

That same day, Aaron Baer executed and delivered to Capano a document entitled “Addendum.” The “addendum” stated that Baer, as executor of Ray Freedman’s estate, “acknowledge^] approval of the terms and conditions” of the January 9, 1978 assignment of Ray Freedman’s interests in “Rock Around the Clock” to Capano. The document states that Baer was also acting on behalf of Mollie Goldstein, Ray Freedman’s sister and legatee, but Goldstein now contends that her consent to the execution and delivery of the addendum was induced by fraud.

On December 28, 1982, intervenor Daniel Waldstein, a nephew of Max Freedman, assigned his interest in the copyright to Capano. Waldstein claimed ownership of the copyright interest through his deceased mother, Ann Freedman Waldstein, who was Max Freedman’s sister and sole surviving next of kin.

On May 5, 1983, Baer, the executor of Ray Freedman’s estate, was appointed administrator de bonis non cum testamento annexo (d.b.n.c.t.a.) of Max Freedman’s estate. Two days earlier, Baer (apparently in anticipation of the appointment) had executed a document distributing Max Freedman’s interest in the copyright to Mollie Goldstein. He stated that he was doing so as administrator of Max Freedman’s estate, pursuant to the bequest made by Max Freedman to Ray Freedman and the bequest made by Ray Freedman to Goldstein. Then, on July 1, 1983, Goldstein assigned her interest in the song to Myers Music in exchange for a $10,000 payment and a guarantee of at least $156,000 in royalties. In a separate document dated the same day, Baer joined with Goldstein in conveying the copyright interest to Myers Music.

At his deposition on February 23, 1984, Baer was notified that the May 3 purported conveyance to Goldstein preceded his actual appointment as administrator of Max Freedman’s estate. On May 28, 1984, Baer executed a document purporting to confirm and certify the May 3 transfer.

From this set of facts, the parties suggest three paths along which the copyright interest may have traveled. Waldstein argues that upon Ray Freedman’s death, the interest bounced back to Max Freedman’s estate and then proceeded through Ann Freedman Waldstein (Max Freedman’s next of kin) to Waldstein, and then on to Capano. Capano adopts Waldstein’s argument, and argues in the alternative that the interest passed from Max Freedman to Ray Freedman upon the admission to probate of the former’s will, and from Ray Freedman to Capano via either the January 9, 1978 assignment or the January 26, 1981 addendum. Myers Music and Goldstein argue that the interest passed from Max Freedman’s estate to Ray Freedman, from Ray Freedman’s estate to Goldstein, and from Goldstein to Myers Music.

DISCUSSION

Under the Copyright Act of 1976, 17 U.S.C. § 101 et seq., works which obtained statutory copyright before January 1, 1978, and which did not enter the public domain before that date are protected for an initial term of twenty-eight years. During the twenty-eighth year, the copyright may be renewed for a second term of forty-seven years. § 304(a). If the copyright is not renewed, the work passes into the public domain.

In the instant case, “Rock Around the Clock’s” first term of protection lasted from March 31, 1953, to December 31, 1981. Max Freedman had assigned his first term interest to Myers Music, in whose name the song was initially copyrighted. There is no dispute about that. Assignment of an author’s first term interest, however, does not include assignment of the renewal rights. Fred Fisher Music Co. v. M. Witmark and Sons, 318 U.S. 643, 63 S.Ct. 773, 87 L.Ed. 1055 (1943). The only dispute in this case concerns who succeeded to the renewal rights that Max Freedman retained.

None of the parties to this litigation actually attempted to renew the copyright. The work did not enter the public domain, however, because James Myers, Max Freedman’s co-author, renewed on January 26, 1981. This renewal protected not only Myers’ own interests but also the interests of whoever succeeded to Max Freedman’s rights as co-author. Shapiro, Bernstein and Co. v. Jerry Vogel Music Co., 221 F.2d 569 (2d Cir.1955); Edward B. Marks Music Corp. v. Jerry Vogel Music Co., 42 F.Supp. 859, 860 (S.D.N.Y.1942) (Leibell, J.), aff’d, 140 F.2d 266 (2d Cir.1944).

Copyright renewal rights do not pass under the usual rules of testamentary or intestate succession, but rather under the provisions of § 304(a) of the Copyright Act. See Hill and Range Songs, Inc. v. Fred Rose Music, Inc., 570 F.2d 554 (6th Cir.1978). Until the renewal period arrives, the renewal rights are not vested in anyone. The most anyone can claim is a mere expectancy or contingent interest. When the renewal time arrives, the rights vest in one of the four classes of persons listed in § 304(a), according to the circumstances existing at the time of vesting. Miller Music Corp. v. Charles N. Daniels, Inc., 362 U.S. 373, 377-78, 80 S.Ct. 792, 795-96, 4 L.Ed.2d 804 (1960).

Section 304(a) vests the renewal rights in specified designees, in order of priority. Gibran v. Alfred A. Knopf, Inc., 153 F.Supp. 854, 856-57 (S.D.N.Y.1957) (Weinfeld, J.), aff’d sub. nom. Gibran v. National Committee of Gibran, 255 F.2d 121 (2d Cir.), cert. denied, 358 U.S. 828, 79 S.Ct. 47, 3 L.Ed.2d 67 (1958). First, the rights vest in the author if he or she is alive during the renewal period. Second, if the author is not living, the rights vest in the surviving spouse and children. Third, if the author is not survived by a spouse or children, the interests vest in the executor of the author’s will. And, fourth, “in the absence of a will” the rights vest in the author’s next of kin.

In the instant case, the renewal period commenced on January 1, 1981. Before the vesting date, on January 9, 1978, Ray Freedman had assigned her interest to Capano. At that time, however, all Ray Freedman could assign was a contingent interest. Capano purchased the contingent interest, with the risk that the contingency would not occur. Miller Music Co. v. Charles N. Daniels, Inc., supra, 362 U.S. at 377-78, 80 S.Ct. at 795-796. In fact, the contingency did not occur. Ray Freedman died on December 28, 1980, before the renewal rights could vest in her. If the assignor is not living when the renewal rights vest, then those who succeed to the author’s interest under § 304(a) take free of any assignment made by the deceased assignor, and the assignee takes nothing. Id.; Nimmer, supra n. 2, § 9.06[C].

On the vesting day, the renewal interests passed under the provisions of § 304(a). Following that section’s four-step procedure, the renewal rights could not vest, first, in the author, Max Freedman, because he was not alive at the time of vesting. Second, the rights could not vest in Ray Freedman as Max Freedman’s widow because she, too, was not alive when the vesting date arrived. Third, the rights could not vest in the executor or administrator of Max Freedman’s estate, because the administrator was Ray Freedman, and, as noted, she was not living at the time of vesting. Silverman v. Sunshine Pictures Corp., 290 F. 804 (2d Cir.), cert. denied, 262 U.S. 758, 43 S.Ct. 705, 67 L.Ed. 1219 (1923). Consequently, the renewal rights passed, fourth, to whoever was Max Freedman’s next of kin on vesting day.

Myers Music and Goldstein attack the third link in this chain of reasoning, and contend that the interest must have vested in the executor or administrator of Max Freedman’s estate (even though there was none living at the time the interest vested). The interest could not have vested in the next of kin, they argue, because the statute explicitly states that next of kin may take only “in the absence of a will,” and here there indisputably was a will. They concede that there was no executor at the time of vesting, but, they contend, the statute says absence of a will, not absence of an executor.

The Second Circuit faced this issue in Silverman v. Sunrise Pictures Corp., id., and found that there can be an “absence of a will” under the Copyright Act even when the author dies testate. In Silverman, the author died in the first term of her novel’s copyright protection. She left a will, but neither a widower nor children. Her executors distributed her estate and then were fully discharged before the renewal period began. When the renewal period came, the author’s next of kin applied for renewal. The court stated: “We have held, and still think, that the power of applying for copyright which springs into existence after the executor’s discharge must vest somewhere. It cannot vest in the executor, because there is none; it cannot vest in an administrator d.b.n.c.t.a. for reasons pointed out by us before, and similarly it cannot vest in legatees as such. It must therefore vest in the next of kin. It is true that the rights of the next of kin under the statute arise ‘in the absence of a will’; but there is here a complete absence of any will affecting this renewal copyright.” 290 F. at 805 (emphasis in original).

Myers Music and Goldstein argue that Silverman is no longer good law, or, at least, that it should be limited to its facts. They base this argument on Gibran v. Alfred A. Knopf, Inc., supra, a subsequent copyright succession case in which Silverman was held not to control. The argument is unpersuasive. The question faced by the Gibran court was whether renewal rights could ever vest in an administrator (rather than in an executor). The Gibran district court distinguished Silver-man, where renewal rights were held not to vest in an administrator, on the ground that in Silverman rights could not vest in an administrator only because there was no administrator in office at vesting time. In Gibran, there were administrators in office at vesting time, and, the court held, the renewal rights did vest in them. Thus Gibran did not disturb the Silverman holding that where there is no administrator serving at vesting time the renewal rights vest in the next of kin, and that remains the law in this circuit.

Myers Music and Goldstein also try to distinguish Silverman from the instant case. They argue that in Silverman, had the court found against the next of kin, the work would have entered the public domain and manifest injustice would have resulted. In the instant case, there is no fear that the work will enter the public domain because James Myers renewed the copyright on January 26, 1981. This is a factual distinction that makes no legal difference. There is nothing in Silverman to suggest that the Second Circuit’s interpretation of § 24 of the Copyright Act of 1901 (now § 304(a) of the 1976 Act) is to be limited to cases where there is a threat of the work’s entering the public domain. The statute itself clearly does not call for one reading of § 304(a) when copyright interests have been safely renewed and another reading when the work may enter the public domain. The rule in Silverman therefore controls in this case, and the renewal rights vested in Max Freedman’s next of kin under § 304(a).

But even if Silverman did not control and under § 304(a) the renewal interests vested in the executor of Max Freedman’s estate, the result in this ease would be the same—Max Freedman’s next of kin and not Mollie Goldstein would succeed to the renewal interests. That is because an executor or administrator c.t.a. claims a renewal right not for his own personal benefit but as fiduciary for the benefit of the author’s legatees under the will. Nimmer, supra, § 9.05[B], citing Gibran v. Alfred A. Knopf, Inc., supra. When Baer was named administrator d.b.n. c.t.a. of Max Freedman’s estate, he was not given the power to assign the copyright interest to whomever he chose. He was constrained to act as a fiduciary for the benefit of Max Freedman’s legatees. But Max Freedman named only his wife as legatee. He named no residuary legatees. He certainly did not name Mollie Goldstein; she was a legatee only under Ray Freedman’s will. In the absence of residuary legatees in Max Freedman’s will, the renewal interest passed under the will as if by intestacy, i.e. to Max Freedman’s surviving next of kin. See In Re Estate of Bickert, 447 Pa. 469, 290 A.2d 925 (1972).

The court consequently holds that the renewal interest passed to whoever was Max Freedman’s next of kin at the vesting time. In a summary judgment motion, the court must take care not to presume facts not properly pleaded by the parties. Capano and Waldstein allege that Ann Freedman Waldstein was “Max Freedman’s sister and sole surviving next of kin.” (Capano-Waldstein 3(g) Statement ¶ 11). This statement is deemed to be admitted because it was not controverted by either Myers Music or Goldstein. Local Rule 3(g); Woods v. State of New York, 469 F.Supp. 1127, 1129 n. 2 (S.D.N.Y.) (Weinfeld, J.), aff’d mem., 614 F.2d 1293 (2d Cir.1979). However, Capano and Waldstein have not alleged specifically that Ann Freedman Waldstein was Max Freedman’s sole surviving next of kin at the vesting time. This is not an insignificant omission that the court can overlook: If Ann Freedman Waldstein survived Max Freedman but did not survive until vesting, the renewal rights would not pass to her heirs or assigns. The court therefore can go no further at this juncture than to declare that Max Freedman’s renewal rights in “Rock Around the Clock” passed to whoever was Max Freedman’s next of kin at the time of vesting.

IT IS SO ORDERED.

      . The term ended in December, 1981, rather than March, 1981, pursuant to § 305, which provides that copyright terms under §§ 302 to 304 run to the end of the calendar year in which they would otherwise expire.

      . The law is unsettled as to precisely when the renewal rights vest. There are three possibilities: (1) at the beginning of the twenty-eighth year (in this case, January 1, 1981); (2) at the time the renewal application is actually filed (in this case, January 26, 1981); or (3) at the beginning of the renewal term (in this case, January 1, 1982). See M. Nimmer, Nimmer on Copyright, § 9.05[C]; B. Ringer, “Renewal of Copyright,” Copyright Office Study No. 31, at 185-86. The result is the same in this litigation no matter which possibility is chosen, so the court does not reach the question.

      . Section 304(a) states, in pertinent part:
      [T]he author of [a] work, if still living, or the widow, widower, or children of the author, if the author be not living, or if such author, widow, widower, or children be not living, then the author’s executors, or in the absence of a will, his or her next of kin shall be entitled to a renewal and extension of the copyright...

      . Section 304(a) supersedes whatever effect the January 26, 1981 addendum might have had.

      . Administrators c.t.a. stand in the shoes of executors under the Copyright Act. Gibran v. Alfred A. Knopf, Inc., supra, 153 F.Supp. at 857.

      . The reason "pointed out ... before" that the interest could not vest in the administrator was that there was no administrator in office at the time of vesting. Gibran v. Alfred A. Knopf, Inc., supra, 153 F.Supp. at 859.

      . Capano and Waldstein have also failed to allege formally that Daniel Waldstein succeeded to whatever rights Ann Freedman Waldstein might have inherited.


source: Caselaw Access Project

author: ROSZKOWSKI, District Judge.

license: Public Domain

text:
    UNITED STATES of America v. Rose GIANGROSSO.
    No. 84 CR 79.
    United States District Court, N.D. Illinois, E.D.
    Feb. 6, 1985.
   ORDER

ROSZKOWSKI, District Judge.

Before the court are the defendant’s motion to set bond pending appeal and the government’s motion to set a surrender date. For the reasons set forth herein, the defendant’s motion to set bond pending appeal is denied, and the government’s motion to set a surrender date is granted. Defendant is ordered to surrender to the United States Marshal in Chicago before Noon on February 26, 1985.

I. BACKGROUND

On June 29, 1984, a jury convicted the defendant of violations of the federal narcotic laws. On September 25, 1984, this court sentenced the defendant to eighteen months incarceration. Defendant was ordered to surrender on October 25, 1984.

On October 12, 1984, the President signed into law the Bail Reform Act of 1984. 98 P.L. 473 (1984) Among the provisions of that Act is an amendment restricting the availability of bail pending the outcome of an appeal. On November 8, 1984, defendant presented a motion for the setting of bond pending appeal. This court granted the parties an opportunity to submit briefs concerning the effect of the new Act on the defendant’s request for bond, and stayed the defendant’s reporting date pending the outcome of the various motions.

III. DISCUSSION

A. The Bail Reform Act

Prior to October 12, 1984, Title 18, Section 3148, provided, in relevant part, that a defendant filing a notice of appeal:

... shall be treated in accordance with the provisions of Section 3146 unless the court or judge has reason to believe that no one or more conditions of release will reasonably assure that the person will not flee or pose a danger to any other person or to the community. If such a risk of flight or danger is believed to exist, or if it appears that an appeal is frivolous or taken for delay, the person may be ordered detained, (emphasis added) 18 U.S.C. § 3148 (1982).

Similarly, Section 3146 provided:

Any person charged with an offense, other than an offense punishable by death, shall ... be ordered released pending trial on his personal recognizance or upon the execution of an unsecured appearance bond ... unless the [judicial] officer determines, in the exercise of his discretion, that such a release will not reasonably assure the appearance of the person as required.... (emphasis added) 18 U.S.C. § 1346 (1982).

On October 12, 1984, Title 18, Section 3143(b) was amended to provide that a defendant found guilty and sentenced to a term of imprisonment shall be detained pending the outcome of his or her appeal unless the judicial officer finds:

(1) by clear and convincing evidence that the person is not likely to flee or pose a danger to the safety of any other person or the community if released pursuant to section 3142(b) or (c); and
(2) that the appeal is not for the purpose of delay and raises a substantial question of law or fact likely to result in reversal or an order for a new trial.

If the law in effect prior to October 12, 1984 were held to apply, this court would have little difficulty in finding the defendant is entitled to be released on bond. The defendant has appeared for every scheduled court appearance and there is no reason to believe she poses a danger to any other person or the community. If this court were to apply the new law, however, this court would be forced to decide the defendant is not entitled to release on bail. This court cannot conclude defendant’s appeal is likely to result in reversal or an order for a new trial. Thus, the issue in the present case is whether the old or new bail provisions should apply.

B. Ex Post Facto Clause

Defendant contends the ex post facto clause bars application of the Bail Reform Act in the present case. Federal courts deciding the issue in the present context have reached contrary conclusions. In United States v. Davis, 598 F.Supp. 453 (S.D.N.Y.1984), the court, construing the bail modifications as procedural and not substantive, held the ex post facto clause did not apply. In United States v. Cirrincione, 600 F.Supp. 1436 (N.E.Ill.1985) (Getzendanner, J.) the court, construing the bail modifications as increasing the punishment imposed upon convicted defendants eligible for bond under the prior law, held the ex post facto clause barred the application of the new Act to defendants whose conduct occurred prior to its effective date.

In holding the ex post facto clause does not apply, the court in Davis relied upon Dobbert v. Florida, 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977) and Portley v. Grossman, 444 U.S. 1311, 100 S.Ct. 714, 62 L.Ed.2d 723 (1980) (Rehnquist, Circuit Justice). In Dobbert, the defendant committed a series of murders and other criminal acts at a time when state law provided that a defendant convicted of murder by a jury could not be sentenced to death if the jury’s verdict included a recommendation of mercy. At the time of his trial, however, the state law had been amended to allow the trial judge to disregard the jury’s recommendation. After his trial, the jury recommended mercy, but the trial judge imposed the death penalty. The defendant contended the retrospective application of the amended law violated the ex post facto clause.

The Supreme Court denied the defendant’s ex post facto challenge, holding the amendment was merely procedural. The court held, “[e]v'en though it may work to the disadvantage of a defendant, a procedural change is not ex post facto.” Id., 432 U.S., at 293, 97 S.Ct. at 2298. In determining the statutory change was merely procedural, the court noted:

The new statute simply altered the methods employed in determining whether the death penalty was to be imposed; there was no change in the quantum of punishment attached to the crime. Id. at 293-94, 97 S.Ct. at 2298-99.

In Portley, Judge Rehnquist denied a petition to stay a Ninth Circuit mandate pending the disposition of the petitioner’s request for a writ of certiorari. The petitioner challenged the Federal Parole Commission’s use of its present parole eligibility standards to establish the petitioner’s presumptive reparóle date. The petitioner contended the ex post facto clause required the Parole Commission to calculate his reparóle date on the basis of the standards in effect at the time he was originally sentenced. Quoting Dobbert, Judge Rehnquist summarily disposed of the petitioner’s argument, noting the ex post facto clause:

“... is intended to secure ‘substantial personal rights' from retroactive deprivation and does not ‘limit the legislative control of remedies and modes of procedure which do not affect matters of substance’.”

In holding the ex post facto clause applies, the court in Cirrincione found the denial of bail to defendants who could establish eligibility for post-conviction release under the old but not the new statute amounts to a retroactive enhancement of punishment. 600 F.Supp. at 1440-1441. While the court admitted there was “no change in the ‘quantum’ of punishment”, the court found: (1) that a sentence which commences immediately upon conviction is more severe than a sentence which commences only after appeal because “people generally value the present more than the future,” and (2) that a sentence which commences immediately upon conviction is more severe because it reduces “the possibility that a Rule 35(b) motion for reduction of sentence might be granted.” Id. at 1442-1445. Finally, the court noted that some of the reasons that defendants seek bail pending appeal, hope of reversing a conviction or, as noted previously, hope of increasing the possibility that a Rule 35(b) motion for a reduction of sentence might be granted, are entitled to protection from retroactive impairment. Id., 1444-1445.

In the view of this court, the Davis court was correct in holding the new Act is merely procedural and does not alter the punishment proscribed for the defendant’s offense. Regardless of whether the Cirrincione court was correct in speculating that defendants regard the present commencement of sentences, the possibility that a defendant may be required to immediately commence his or her sentence is not new. Prior law clearly authorized a district judge to require a convicted defendant to begin immediately serving his sentence. Only the procedure for determining whether the defendant’s sentence should be immediately commenced has been altered by the new Act. See Dobbert v. Florida, 432 U.S. 282, 293-94, 97 S.Ct. 2290, 2298-99, 53 L.Ed.2d 344 (1977).

Moreover, the same argument applies with respect to the Cirrincione court’s Rule 35 rationale. Regardless of whether the Cirrincione court was correct in speculating that the immediate commencement of a sentence reduces the possibility that a Rule 35(b) motion for reduction of sentence will be granted, the possibility that a defendant might be required to immediately commence a sentence, consequently decreasing the likelihood of Rule 35(b) relief, is not new. Once again, only the procedures utilized in making that determination have been altered. Id.

Finally, the Cirrincione court’s contention that some of the reasons that defendants seek bail pending appeal are entitled to protection from retroactive impairment is unpersuasive. The ex post facto clause does not bar retrospective impairment of all rights. Moreover, as the Cirrincione court noted, the right to bail pending appeal is not constitutionally guaranteed. 600 F.Supp. at 1444; Iles v. Ellis, 264 F.Supp. 185, 196 (S.D.Ind.1967). Thus, in view of this court’s previous ruling that the subject Act does not amount to a retrospective enhancement of punishment, the retrospeetive impairment of defendant’s other “reasons” for seeking bail pending appeal does not implicate the ex post facto clause.

CONCLUSION

In sum, the instant Act does not increase the quantum of punishment which may be imposed upon a defendant or even create a previously non-existent possibility of immediate imprisonment. Rather, it simply changes the methods employed in determining whether a defendant should immediately begin serving his or her sentence. Thus, defendant’s ex post facto clause challenge must be denied. Defendant is ordered to surrender to the United States Marshal in Chicago before Noon on February 26, 1985.

      . The Supreme Court’s most recent interpretation of the ex post facto clause, Weaver v. Graham, 450 U.S. 24, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981), was not discussed by the Davis court. In Weaver, the petitioner sought to challenge state law changes modifying the manner in which "gain time" credit towards release was given to state inmates. The challenged modifications lowered the amount of time automatically deducted, but provided additional discretionary gain time which could be given as an award by prison officials. The court sustained the petitioner’s statutory challenge, holding the retrospective application of the Act to prisoner's convicted for acts committed before its effective date violated the ex post facto clause. The court rejected the state’s claim that the modifications in the state’s system for determining gain time credit were merely procedural, stating:
      We need not give lengthy consideration to respondent’s claim that the challenged statute ... is merely procedural because it does not alter the punishment prescribed for petitioner’s offense. * * * This contention is incorrect, given the uncontested fact that the new provision reduces the quantity of gain time automatically available, and does not merely alter procedures for allocation. Id. at 36, f.n. 21, 101 S.Ct. at 968, f.n. 21.

      . The Cirrincione court admits that "... countervailing considerations, such as family, income, or the desire to resume a normal life, may cause some criminals to choose punishment now...." 600 F.Supp. at 1445.

      . The Cirrincione court admits that “[a]ny shift in [convicted defendants’] actual ability to obtain a sentence reduction is speculative." 600 F.Supp. at 1443. The contention that defendants’ demonstrating good behavior while released on bond- pending appeal are likely to enhance their chance of obtaining Rule 35(b) relief rests upon the questionable belief that sentencing is solely for the purpose ol rehabilitation. To the extent that a sentence is imposed as a punishment or for the purpose of deterrence, however, demonstrated good behavior would have little impact on a Rule 35(b) petition.


author: CANNELLA, District Judge:

text:
    Gail SHIPPER and Cathy Smith, Plaintiffs, v. AVON PRODUCTS, INC. and Avon Products, Inc. Retirement Plan, Defendants.
    No. 83 Civ. 1453 (JMC).
    United States District Court, S.D. New York.
    Feb. 11, 1985.

      Harold S. Elovich, New York City, for plaintiffs.
    D’Amato & Lynch, New York City (Robert E. Meshel, Timothy P. Butler, New York City, of counsel), for defendant Avon Products, Inc. Retirement Plan.
    Epstein Becker Borsody & Green, P.C., New York City (Gregory K. Hiestand, New York City, of counsel), for defendant Avon Products, Inc.
   MEMORANDUM AND ORDER

CANNELLA, District Judge:

Defendants’ motion for summary judgment is granted. Fed.R.Civ.P. 56(b).

FACTS

Plaintiffs Gail Shipper and Cathy Smith originally brought this action in the Supreme Court of the State of New York. It was removed to this Court on February 24, 1983. The amended complaint, filed in this Court, contains five causes of action based upon violations of the federal statutes governing age discrimination and pension plans, as well as state laws governing wrongful discharge, contract, prima facie tort and fraud. Jurisdiction is premised upon 28 U.S.C. § 1331. On June 3, 1983, Shipper filed another action based upon sex discrimination, 83 Civ. 4204 (JMC) (filed June 3, 1983), which was consolidated with this action. Order, 83 Civ. 1453 (JMC) (S.D.N.Y. June 28, 1983).

Most of the facts of the case are uncontested. Shipper was hired by defendant Avon Products, Inc. [“Avon”] in November 1971. Prior to that, she had not been employed full-time since May 1970. For eight years Shipper progressed along the company hierarchy with regular promotions until by the fall of 1979 she had achieved the position of Director, Project Communications. Her periodic performance appraisals indicate that she did very strong creative work, but had difficulties in her relations to other employees, which increased as her management responsibilities became more demanding. She claims that she had few problems relating to other people and that she was sensitive and flexible, although sometimes opinionated. It is undisputed that she was perceived to have such problems by her superiors and that management made her aware of its concern about her performance as a manager.

In January 1980, Plaintiff Shipper was first informed by her supervisor, D. Brooks Cole that her employment would be terminated. She was then removed from her position as Director, Project Communications and assigned to work on a “beauty book.” According to plaintiff, she then spent the spring discussing with various Avon personnel the possibility of retaining her position or obtaining another position elsewhere in Avon. By letter dated June 16,1980 to James Preston, President of the Avon Division, she stated that she did not “understand why [she] was let go,” and that she still hoped for a reversal, albeit recognizing that such a possibility was “wishful thinking.” On June 27, 1980, she received a letter from J. Alvin Wake-field, Vice President and General Manager of the Avon Home Office Administration, confirming a conversation between Wake-field and Shipper of June 26. This letter states that Shipper’s “last day at Avon” was to be June 30th and describes the severance package. The severance arrangement was to “go into effect on July 1st and [to be paid] on the regular two week pay days until [she found] employment or until the severance period ends,” after 26 weeks of payments. It states: “Our reason for treating your severance in this fashion is to keep you covered with your current benefit package during this period, or until employment is found.” The severance payments were continued until December 31, 1980, although Shipper left Avon on June 30, 1980. Shipper does not dispute that she received these notices. She claims, however, that she continued to discuss reemployment at Avon in another capacity throughout the fall and thus did not consider her employment to have terminated until December 31, 1980.

On August 24, 1981, Shipper filed a charge of sex and age discrimination with the Equal Employment Opportunity Commission [“EEOC”] based upon Avon’s removal of her as Director of Project Communications, denial of pension rights and failure to “bridge” the approximately one and a half years remaining before her pension rights vested. The EEOC dismissed her charge as untimely filed and issued her a right to sue notice.

Shipper was 40 years old when she was fired. She was replaced by a man, aged 41. Her claim of sex discrimination is based upon her calculations of the percentages of women holding high-level management jobs at Avon.

Plaintiff Cathy Smith was hired as a full-time employee of Avon on May 13, 1974. Except for two weeks of free-lance work for Avon, she had been unemployed since December 1973. She worked in numerous positions at Avon during her six years there, the last of which was Creative Manager, Project Communications. Her performance appraisals were consistently very good, with only minor criticisms. On September 30, 1982, she was informed by telephone that she had been fired because her job had been eliminated. According to Smith’s supervisor, Marcia Cantarella, Director, Project Communications, Smith was the weakest of the three managers in the department and thus dismissed when it became necessary to eliminate one of the Creative Manager positions. Smith claims she was not the weakest and that her position was not in fact eliminated, but just renamed. She ceased employment on September 30, 1982, but was given a severance agreement similar to Shipper’s that extended her severance payments until January 19, 1983. Smith was 39 on September 30, 1982. She turned 40 on December 4, 1982. She filed no charge with the EEOC or any state or local fair employment agency.

Both plaintiffs were members of the Employees’ Retirement Plan of Avon [the “Plan”], which has been duly qualified by the Secretary of the Treasury pursuant to the Internal Revenue Code. See 26 U.S.C. § 401(a). The Plan provides that an employee’s rights to pension benefits shall only vest after ten years of service at Avon. Because neither Smith nor Shipper had fulfilled the ten-year requirement before termination, neither received any pension benefits. Additionally, the Plan explicitly states that it “shall not be construed as conferring any legal rights upon any Employee nor shall it interfere with the right of the Employer to discharge any Employee.”

No employee handbook or manual from the relevant time period has been produced that contains language promising not to dismiss employees for lack of good cause or any other limitations upon the employer’s right to discharge an employee. Although plaintiffs’ Memorandum of Law in Opposition to this motion asserts that “during the pre-employment interview period, both plaintiffs were assured that they would not be discharged without just cause or reason,” neither plaintiff has ever asserted such to be the case. Nor is there any evidence that such statements were made to the plaintiffs. In fact, both plaintiffs have made statements to the contrary.

DISCUSSION

A motion for summary judgment may only be granted if no. genuine issue of material fact remains to be tried. Granite Computer Leasing Corp. v. The Travelers Indem. Co., 751 F.2d 543 at 545 (2d Cir.1984); Katz v. Goodyear Tire & Rubber Co., 737 F.2d 238, 244-45 (2d Cir.1984). Moreover, the Court must draw all reasonable inferences against the moving party, United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962) (per curiam); Schwabenbauer v. Board of Educ., 667 F.2d 305, 313 (2d Cir.1981), who retains the burden of proving that no material factual issue remains, Quinn v. Syracuse Model Neighborhood Corp., 613 F.2d 438, 444 (2d Cir.1980). Nonetheless, the party opposing the motion must present more than a mere conclusory allegation; some facts must be suggested that support the contentions. See Markowitz v. Republic Nat’l Bank, 651 F.2d 825, 828 (2d Cir.1981); Applegate v. Top Assocs., 425 F.2d 92, 96 (2d Cir.1970).

Age and Sex Discrimination

Defendants first argue that plaintiffs’ claims under the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621, et seq. [“ADEA”], and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. [“Title VII”], are barred for lack of jurisdiction. Defendants contend that Shipper’s claim is barred for failure to timely file charges with the EEOC and that Smith’s is barred because she never filed an EEOC charge at all.

Smith’s claim is easily disposed of. She does not dispute that she failed to file charges with the EEOC. Nor does she dispute that such charges are a prerequisite to suit in federal court. The statute, on its face, requires that a civil suit not be filed until sixty days “after a charge alleging unlawful discrimination has been filed with the [EEOC].” 29 U.S.C. § 626(d). Plaintiff’s counsel has cited no cases, and this Court has been unable to find any, that suggest that a civil action may be commenced prior to the filing of the charge with the EEOC. On the contrary, not only must such a charge be filed but it must be filed within specific time limits. See 29 U.S.C. § 626(d)(1), (2). Accordingly, Smith’s claim based upon age discrimination is dismissed.

Shipper’s charge to the EEOC was filed on August 24, 1981 and dismissed as untimely filed. The relevant statutes require that a charge be filed within “300 days after the alleged unlawful practice occurred.” 29 U.S.C. § 626(d)(1); 42 U.S.C. § 2000e-5(e). The issue in this case is when the “unlawful practice” occurred.

Because plaintiff Shipper was maintained on the books of Avon as an inactive employee and received pay in the form of salary and benefits until December 31, 1980, Shipper maintains that she was fired on that date and thus her EEOC claim was timely filed in August 1981. Shipper claims that even though she was no longer actually working, there were ongoing negotiations “for a continuation of employment” until December 1980. Defendants argue that she was notified of the company’s intent to fire her as early as January 1980 and at the latest by the end of June 1980, when she physically left the Avon premises and was placed under a severance pay agreement.

The Supreme Court has ruled that the statute of limitations for employment discrimination actions begins to run when the plaintiff is notified of the allegedly discriminatory act. See Delaware State College v. Ricks, 449 U.S. 250, 101 S.Ct. 498, 66 L.Ed.2d 431 (1980). Thus, if plaintiff was given clear notice of a decision to terminate her employment, then the fact that a period of severance pay may have continued beyond that time does not extend the statute of limitations. See id. at 257, 101 S.Ct. at 503; Cameron v. United States Trust Co., 754 F.2d 109 (2d Cir.1985); Lyda v. American Broadcasting Cos., 34 Fair Empl.Prac.Cas. (BNA) 1151 (S.D.N.Y.1984); EEOC v. Home Ins. Co., 553 F.Supp. 704 (S.D.N.Y.1982); Pfister v. Allied Corp., 539 F.Supp. 224 (S.D.N.Y.1982).

Although an ambiguously worded letter may not constitute adequate notice of termination, see Verschuuren v. Equitable Life Assur. Soc., 554 F.Supp. 1188 (S.D.N.Y.1983), the severance agreement described in Wakefield’s June 27 letter makes it absolutely clear that Shipper had been terminated and that all further payments were in the nature of severance. Any efforts made by the company after this date can only be interpreted as raising the possibility that she might be rehired. The Supreme Court held in Ricks that “collateral review of an employment decision, does not toll the running of the limitations periods.” 449 U.S. at 261, 101 S.Ct. at 506. Avon’s effort to find plaintiff a new job within the company after the signing of a severance agreement is, at best, such a collateral proceeding. Accordingly, Shipper’s sex and age discrimination claims are dismissed.

Pension Rights

Plaintiffs allege that defendants violated the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1001, et seq. [“ERISA”], by means of a “premeditated, deliberate, and wrongful plan to systematically terminate Avon employees approaching the tenth anniversary of their employment, so as to avoid an obligation to pay accrued pension benefits.” Under ERISA, an employee may recover if he can prove that he was discharged “for the purpose of interfering with the attainment of any right to which [the employee] may become entitled under the [pension] plan.” 29 U.S.C. § 1140. A plaintiff raising this claim is necessarily faced with a difficult burden. Under New York law, an employer may fire a noncontraet employee at will. Yet ERISA places a restricting factor on that freedom by providing that the motivating factor in firing an employee may not be to milk an employee for as long as possible and then fire him just in time to avoid vesting of pension benefits. See Titsch v. Reliance Group, Inc., 548 F.Supp. 983, 985 (S.D.N.Y.1982). Thus the employee is left the very difficult task of proving that he was fired at least partly to avoid the vesting of his pension benefits.

Although a motion for summary judgment will ordinarily not be granted when intent is at issue, plaintiff must assert some facts “to support the claim that the state of mind existed.” Markowitz v. Republic Nat’l Bank, 651 F.2d 825, 828 (2d Cir.1981). Here, as in Titsch, the plaintiffs have failed to meet this burden. They have presented no evidence, nor even alleged any specific facts, that would suggest that avoidance of pension benefits was a motivating factor. Moreover, they have not even made any specific allegations that would suggest that Avon had a “premeditated plan” to deprive employees of their pension benefits. The most they have come up with, after the close of discovery, is that they could call witnesses that would support their assertions. They have not indicated who the witnesses are or what they would testify to. Similarly, they claim that others have had pension rights “bridged”, but have not raised any evidence to contradict Avon’s claim that only one high level employee has ever had his pension rights “bridged”. To allow allegations such as these to defeat a motion for summary judgment would erase any distinction between a motion to dismiss under Fed.R.Civ.P. 12(b)(6) and a summary judgment motion under Fed.R.Civ.P. 56. See Applegate v. Top Assocs., Inc., 425 F.2d 92, 96 (2d Cir.1970). For these reasons, plaintiffs’ ERISA claims are dismissed.

Wrongful Discharge

Having granted summary judgment on all plaintiffs’ federal claims, the state claims must be dismissed for lack of jurisdiction. See United Mine Workers v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 1139, 16 L.Ed.2d 218 (1966); Kavit v. A.L. Stamm & Co., 491 F.2d 1176 (2d Cir.1974) (after dismissal of federal claims, state law claims must be dismissed absent special circumstances). Because the parties have already expended considerable time in discovery, the Court does not rest its decision solely on this ground. Instead, it turns briefly to the substantive issues.

The Court finds that plaintiffs’ claims sounding in fraud, prima facie tort, breach of contract and any state law claims with respect to pension rights that may be hidden in the pleadings are all variations on the tort of wrongful discharge. As such they are no more than inartful attempts to dodge the broad and explicit ruling of the New York Court of Appeals in Murphy v. American Home Products Corp., 58 N.Y.2d 293, 448 N.E.2d 86, 461 N.Y.S.2d 232 (1983). In strong language, the court held in Murphy that no tort for wrongful discharge exists in New York and that the court was unwilling to create one in the absence of a legislative mandate. Id. 301-02, 448 N.E.2d at 89-90, 461 N.Y.S.2d at 235-36. See Donovan v. UMIC, Inc., 580 F.Supp. 1455, 1466-67 (S.D.N.Y.1984).

Plaintiffs’ argument that defendants’ actions violated a strong state policy governing pension plans fails both because the Court has found that no pension rights were violated and because the provision of the New York State Constitution that plaintiffs cite, Art. V, § 7, applies only to state administered pension funds, not private ones.

Plaintiffs’ fraud claim is apparently derived from the premise that Avon deliberately misled plaintiffs into coming to work for Avon in the belief that they would only be fired for just cause. There is no evidence that defendants made any such statements prior to plaintiffs’ acceptances of employment. Moreover, this claim and the claim for breach of contract are barred by Murphy because they do not fit into the narrow exception created by Weiner v. McGraw-Hill, Inc., 57 N.Y.2d 458, 443 N.E.2d 441, 457 N.Y.S.2d 193 (1982) (employee’s manual shown to plaintiff prior to hiring and containing explicit statements restricting conditions of termination sufficient to create implied contract). See Murphy, 58 N.Y.2d at 305, 448 N.E.2d at 91, 461 N.Y.S.2d at 237. Defendants have presented overwhelming evidence that no company manual exists from which an implied contract to fire only for good cause could be inferred. Plaintiffs have produced no evidence to contradict this claim. Nor has either plaintiff alleged that she ever saw such a manual. See Sprott v. Avon Products, Inc., 81 Civ. 2589 (RO) (S.D.N.Y. Oct. 11, 1984) (finding Avon not to have created any implied or express contract of employment).

Finally, plaintiffs’ prima facie tort claim must fail because “there is no allegation that [their] discharge was without economic or social justification.” Murphy, 58 N.Y.2d at 303-04, 443 N.E.2d at 445-46, 461 N.Y.S.2d at 236-37. The court in Murphy refused to allow the prima facie tort to circumvent “the unavailability of a tort claim for wrongful discharge.” Id. at 304; 443 N.E.2d at 446; 461 N.Y.S.2d at 237.

CONCLUSION

In accordance with the foregoing, defendants’ motion for summary judgment is granted.

SO ORDERED.

      . Amended Verified Complaint, 83 Civ. 1453 (JMC) (filed July 6, 1983) ["Amended Complaint”].

      . See Memorandum of Law in Support of defendant Avon Products, Inc.’s Motion for Summary Judgment, Exhs. D-I (filed June 11, 1984) ["Avon Memorandum”].

      . See Affidavit of Gail Shipper, (filed July 20, 1984) ["Shipper Affidavit”].

      . Compare, e.g., Memorandum from Brooks Cole dated September 20, 1977, Avon Memorandum, Exh. J with Letter to Cole from Gail Shipper, id., Exh. K. See also Deposition of Gail Shipper at 54, 97-100, 142, (dated March 3, 1983) ["Shipper Transcript”].

      . Shipper Transcript at 171; Deposition of Marcia Worthing at 24 (dated July 19, 1984).

        . Shipper Transcript at 166.

      . Avon Memorandum, Exh. M.

      . Id., Exh. N.

      . Id.

      . Shipper Transcript at 188.

      . Avon Memorandum, Exh. P.

      . Id., Exh. Q.

      . Shipper Affidavit, Exh. A.

      . Avon Memorandum, Exhs. T-V.

      . Affidavit of Cathy Smith (filed July 20, 1984).

      . Avon Memorandum, Exh. W.

      . See Affidavit of Marcia J. Worthing, Exh. A (filed June 11, 1984).

      . See id., Exh. G; Employment Retirement Plan of Avon Products, Inc. of August 10, 1979 at § 9(2).

      . Memorandum of Law in Opposition to Defendants’ Motions for Summary Judgment at 41 (filed July 20, 1984).

      . Shipper Affidavit at ¶ 15.

      . The Court finds plaintiffs’ arguments that the statute of limitations should be tolled to be frivolous and without any basis in fact or law. See Electrical Workers v. Robbins & Moyers, Inc., 429 U.S. 229, 97 S.Ct. 441, 50 L.Ed.2d 427 (1976) (equitable tolling appropriate only when defendant has actively misled plaintiff); Smith v. American President Lines, Ltd., 571 F.2d 102, 110-11 (2d Cir. 1978).
      Additionally, the Court notes, without deciding, that neither plaintiff has alleged facts that would present a prima facie case of age discrimination. See Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 254, 101 S.Ct. 1089, 1094, 67 L.Ed.2d 207 (1981). Plaintiffs have not even attempted to rebut defendants’ very persuasive arguments on the substantive issues.

      . Amended Complaint at ¶ 21.

      . Plaintiffs would apparently have this Court overrule the New York Court of Appeals and to that end provide an extensive discussion of the history of the "at will” doctrine.
      Under Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), however, this Court is governed by the rulings of the state courts in deciding substantive issues of state law. Moreover, the Court notes that almost all of plaintiffs’ discussion of this matter, Plaintiffs’ Memorandum at 32-36, was lifted verbatim from Judge Platt’s opinion in Savodnik v. Korvettes, Inc., 488 F.Supp. 822, 824-26 (E.D.N.Y.1980), which was decided before Murphy v. Home Products.


author: SHADUR, District Judge.

text:
    INTAMIN, INC., Plaintiff, v. FIGLEY-WRIGHT CONTRACTORS, INC., et al., Defendants. FIGLEY-WRIGHT CONTRACTORS, INC., Third Party Plaintiffs, v. CURTIS D. SUMMERS, INC., et al., Third Party Defendants.
    No. 83 C 9387.
    United States District Court, N.D. Illinois, E.D.
    Feb. 12, 1985.

      See also 595 F.Supp. 1348 and 595 F.Supp. 1350.

      Thomas Tobin, Michael J. Wagner, Andrew J. Boling, Baker & McKenzie, Chicago, Ill., for defendants Figley-Wright Contractors.
    D. Patterson Gloor, Mary K. Finley, Cassiday, Schade & Gloor, Chicago, Ill., for third party defendants Curtis D. Summers, Inc.
   MEMORANDUM OPINION AND ORDER

SHADUR, District Judge.

Intamin, Inc. (“Intamin”) has filed what is now a six-count Amended Complaint (the “Complaint”) against Figley-Wright Contractors, Inc. (“Figley-Wright”) and related parties, charging defendants’ breach of contract, breach of express and implied warranties, breach of contractual indemnity and negligence—all arising out of the construction of a roller coaster at Marriott’s Great America Theme Park (“Great America”) in Gurnee, Illinois. FigleyWright has in turn filed a two-count Third Party Complaint (the “F-W Complaint”) against Curtis D. Summers, Inc. (“Summers”), seeking recovery via contribution and contractual indemnity. Summers now moves to dismiss the F-W Complaint under Fed.R.Civ.P. (“Rule”) 12(b)(6). For the reasons stated in this memorandum opinion and order, the motion is granted in part and denied in part.

Background

On June 2, 1980 Intamin contracted with Marriott Corporation (“Marriott”) to provide a roller coaster for Marriott at Great America (Complaint Ex. A). Intamin in turn contracted with Summers to provide all professional engineering design services (Complaint Ex. C, Art. 2) and with FigleyWright to construct the roller coaster (Complaint Ex. B, Art. 2). No contractual relationship existed between Figley-Wright and Summers.

After the roller coaster had been constructed and put into operation, Marriott discovered design and construction defects and required Intamin to make repairs under the warranty terms of the Marriott-Intamin contract. Intamin in turn sought compensation from Summers and FigleyWright. On July 10, 1984 Intamin entered into a settlement agreement with Summers by which Intamin released all present and future claims against Summers in-return for the payment of $203,820.49 (Mo. Dismiss Ex. C). In the meantime, Intamin and Figley-Wright continue to do battle here. Now Figley-Wright seeks contribution and indemnity from Summers for any liability of Figley-Wright to Intamin as determined in this action.

Contribution

Section 302(a) of the Illinois Contribution Among Joint Tortfeasors Act (the “Act,” Ill.Rev.Stat. ch. 70, ¶¶1 301-305) provides:

Except as otherwise provided in this Act, where 2 or more persons are subject to liability in tort arising out of the same injury to person or property, or the same wrongful death, there is a right of contribution among them, even though judgment has not been entered against any or all of them.

Thus the Act expressly requires each party to the contribution action to be “subject to liability in tort” to the injured party. Figley-Wright’s claim fails to meet that threshold requirement as to itself—and very possibly as to Summers as well.

1. Summers’ Potential Tort Liability To Intamin

There is serious doubt whether Summers is liable in tort to Intamin. Summers argues it is not so liable because Moorman Manufacturing Co. v. National Tank Co., 91 Ill.2d 69, 86, 61 Ill.Dec. 746, 753, 435 N.E.2d 443, 450 (1982) prohibits recovery in tort for purely economic losses that result from a breach of contract. Figley-Wright counters with Ferentchak v. Village of Frankfort, 121 Ill.App.3d 599, 76 Ill.Dec. 950, 459 N.E.2d 1085 (3d Dist.1984) and Rosos Litho Supply Corp. v. Hansen, 123 Ill.App.3d 290, 78 Ill.Dec. 447, 462 N.E.2d 566 (1st Dist.1984), which it contends create a general exception to Moorman for architects and engineers such as Summers.

Ferentchak does not stand for that proposition. It permitted tort recovery against an architect for economic losses where (and because) plaintiff had no recourse to contract remedies. 121 Ill.App.3d at 607-08, 76 Ill.Dec. at 956-57, 459 N.E.2d at 1091-92. Rosos Litho, although it contains more sweeping language than Ferentchak, also involved a situation in which no contract remedies comparable to those in a negligence action were available against the architect. 123 Ill.App.3d at 295-96, 78 Ill.Dec. at 452-53, 462 N.E.2d at 571-72.

In contrast to the plaintiffs in Ferentchak and Rosos Litho, Intamin was specifically entitled to invoke contract remedies against Summers, and the scope of those remedies appears no narrower than those available in a tort action. That renders the Appellate Court limitations on Moorman questionable in terms of their applicability here. And if Moorman applies in undiluted form here, it precludes Intamin’s tort recovery against Summers.

2. Figley-Wright’s Potential Tort Liability To Intamin

But the just-completed discussion is really academic, for in any event Intamin has no tort cause of action against Figley-Wright. Figley-Wright apparently believes (F-W Mem. 2) Intamin’s mere assertion of its Count VI negligence claim against Figley-Wright is sufficient to render the latter a joint-tortfeasor with Summers for purposes of the Act. But the Act expressly requires that each party be “subject to liability in tort,” not just accused of one.

On that score, Moorman flatly dictates Figley-Wright’s nonliability in tort to Intamin. Nor has Figley-Wright identified any exception to Moorman to change that result. Indeed, Ferentchak, 121 Ill.App.3d at 605-07, 76 Ill.Dec. at 955-56, 459 N.E.2d at 1090-91 specifically applied Moorman and Redarowicz v. Ohlendorf, 92 Ill.2d 171, 65 Ill.Dec. 411, 441 N.E.2d 324 (1982) (following Moorman) to reject a cause of action against a contractor (akin to Figley-Wright) while upholding one against the architect.

One final point should be made. Figley-Wright cannot simply lie down and play dead to Count VI, failing to contest its negligence claim in order to pass liability by way of contribution to Summers. That could not be tolerated.

3.. Intamin’s Settlement With Summers

Under the Act the absence of joint tortfeasors is fatal to the contribution claim. However, in light of the parties’ extensive briefing on the effect of the Intamin-Summers settlement (and because of the possibility mentioned in n. 4), some brief comments on that issue are appropriate.

Act § 302(c) permits one tortfeasor to enter into a “good faith” settlement with the injured party. Act § 302(d) says the tortfeasor who enters into such a settlement “is discharged from all liability for any contribution to any other tortfeasor.” Summers contends its settlement with Intamin thus insulates it from liability for contribution to Figley-Wright.

Figley-Wright claims the settlement was not entered into in good faith because it lacked consideration, arguing:

1. Intamin had no present claim against Summers because the statute of limitations had run.
2. Although denominated a “settlement,” the agreement was a sham because Intamin and Summers were insured by the same company.

Those arguments will be dealt with in turn.

(a) Statute of Limitations. Ill.Rev.Stat. ch. 110, 1113-214 establishes a limitations period of two years from the date Intamin “knew or should reasonably have known” of the defects constituting a breach of its contract with Summers. On the current pleading motion, of course, this Court cannot determine when Intamin knew or should have known of the defects.

For that purpose, although there is apparently no Illinois case on point, the burden would seem to be on Figley-Wright to show a lack of good faith. Fisher v. Superior Court, 103 Cal.App.3d 434, 447-49, 163 Cal.Rptr. 47, 56-57 (1980). And neither LeMaster v. Amsted Industries, Inc., 110 Ill.App.3d 729, 66 Ill.Dec. 454, 442 N.E.2d 1367 (5th Dist.1982) nor Ballweg v. City of Springfield, 130 Ill.App.3d 241, 84 Ill.Dec. 941, 473 N.E.2d 342 (4th Dist.1984) is on point, for in each instance the settled claim was “entirely without foundation” when the parties entered into their settlement agreement (in LeMaster because of a statutory bar against suit; in Ballweg because the limitations period had concededly run). That conclusively demonstrated the absence of consideration.

In that respect Figley-Wright has mischaracterized the real issue. Because the legal question is that of consideration or the lack of it, the issue is not whether in hindsight (as the result of a judicial determination about what Intamin “should reasonably have known”) the statute of limitations had lapsed by the settlement date. Instead it would be enough if at the time of settlement Summers believed in good faith it was vulnerable to a claim by Intamin. That is consideration enough to support a settlement. In the best contract-law tradition under which courts do not measure the adequacy of consideration, this Court may not second-guess Summers as to whether the possibility of Intamin’s recovery was great enough to justify the size of the settlement payment.

Summers also has another string to its bow. It urges even if there were arguably no consideration for settling the current dispute, it nevertheless received consideration in being released from potential future claims under the 25-year warranty clause of Paragraph I.B.7 of the Marriott-Intamin contract. For current purposes that possibility need not be fully explored, but at least on the surface it appears such a release would independently be sufficient consideration to establish- a good faith settlement.

(b) Bona Fides. Whatever the validity of the settlement on the grounds already discussed, Figley-Wright attacks its bona fides because Intamin and Summers are insured by the same company. That raises the possibility the claimed settlement has no real-world significance, involving nothing more than a transfer from one insurance-company pocket rather than another. Summers represents (First Supp.Mem. 7-8) it paid a $15,000 deductible to its insurer as a result of the settlement. Again the full implications of the subject are inappropriate for determination now, given the non-viability of the contribution claim in all events. No ruling on the issue is therefore implied by this opinion.

Contractual Indemnification

Count II of the F-W Complaint seeks contractual indemnification from Summers for any liability of Figley-Wright to Intamin. That claim is based on Article 6 of the “Design Agreement” between Intamin and Summers (F-W Complaint Ex. B):

The Engineer [Summers] shall be responsible for and shall indemnify and save harmless Intamin, Marriott Corporation, and all other contractors and subcontractors of Intamin for all damage to life and property arising out of the negligent conduct of the Engineer, its subcontractors, agents or employees in connection with the services rendered by Engineer under this Agreement. The Engineer’s indemnity shall not be limited to the amount of insurance coverage required to be maintained pursuant to Article 7 of this Agreement.

Summers challenges Count II as seeking to hold Summers liable for Figley-Wright’s negligence. Summers correctly points out such a reading of Article 6 would violate both:

1. Ill.Rev.Stat. ch. 29, ¶ 61, which invalidates contractual indemnification of a party against his or her own negligence; and
2. the rule of construction that a contractual indemnification provision will not be construed as indemnifying a party against his or her own negligence absent very clear language to that effect. Davis v. Marathon Oil Co., 64 Ill.2d 380, 396-97, 1 Ill.Dec. 93, 100-101, 356 N.E.2d 93, 100-101 (1976) and cases there cited.

That however is really a straw-man. Figley-Wright itself acknowledges Article 6 cannot validly be construed to embrace indemnification for its own negligence. And this opinion has already held Figley-Wright cannot be held liable to Intamin on negligence grounds anyway. Accordingly F-W Complaint Count II withstands dismissal to the extent (if any) Figley-Wright is adjudicated liable to Intamin (but not for its own negligence, whatever the rubric under which liability is established proves to be) and such liability is adjudicated to have been occasioned by Summers’ negligence.

Conclusion

Figley-Wright has stated a potential claim against Summers in indemnity but not contribution. F-W Complaint Count I (but not Count II) is dismissed. Summers is ordered to answer Count II on or before February 19, 1985.

      . Before amendment the Complaint included all the claims identified in the text except one for negligence. On November 13, 1984 an Amended Complaint was filed, adding Count VI sounding in negligence.

      . Citations to the Act will simply take the form "Act employing the paragraph numbering in Chapter 70 rather than the Act’s internal numbering. Though the disparity between the use of "§" and ’¶” appears anomalous, that is the product of Smith-Hurd’s recent shift from the former to the latter designation. When the Illinois General Assembly enacts legislation, it continues to use “§” and not "¶.”

      . Neither litigant has discussed the choice-of-law question, simply assuming Illinois law applies. In this diversity action this Court looks to the Illinois choice-of-law rule, which in tort cases applies a "most significant contacts” approach. Ingersoll v. Klein, 46 Ill.2d 42, 262 N.E.2d 593 (1970). That indeed points to Illinois as the source of the substantive rules of decision here.

      . Thus in an odd way Figley-Wright has a disincentive to advance the normal resistance of a litigant against being sued. Nonetheless this Court will consider the future assertion by either Intamin or Figley-Wright (or both) of grounds to support the latter's tort liability to the former. That might justify the reassertion of a contribution claim—if Summers were also held subject to liability in tort to Intamin.

      . Figley-Wright tries to shift the burden to Summers by arguing the plaintiff has the burden of specifically alleging time of discovery where the statute of limitations is in issue. (Second Supp. Mem. 6-7). But that burden would fall on Intamin, not Summers, and it would apply only in an action between Intamin and Summers.

      . Ill.Rev.Stat. ch. 110, ¶ 13-214(d) expends the two-year limitation period in case of a longer contractual undertaking. Summers could have been liable in indemnity as to Marriott’s claim against Intamin asserted within the much longer period defined by the Marriott-Intamin contract.

      . No doubt those determinations will best be made through a special verdict under Rule 49(a) or special interrogatories under Rule 49(b).

      . It is obviously premature to comment on the possible effect of the Intamin-Summers settlement on any Summers liability under F-W Complaint Count II (for example, on whether Intamin might have to restore Summers, out of the settlement payment, for any amount Summers may become obligated to pay FigleyWright).


author: SAND, District Judge.

text:
    Khalil AYUOB, d/b/a Commercial Textile Center, Plaintiff, v. AMERICAN GUARANTEE AND LIABILITY INSURANCE COMPANY, Defendant. Mounir KARIM, Plaintiff, v. CONTINENTAL INSURANCE COMPANY, Defendant. Ali NASSER and Mohamed Nasser, d/b/a Wonderway Textile Center, Plaintiffs, v. AMERICAN GUARANTEE AND LIABILITY INSURANCE COMPANY, Defendant. FARDOUN & EZZEDDINE CORP., Plaintiff, v. CONTINENTAL INSURANCE COMPANY, Defendant. Imad FARHAT a/k/a Wissam Farhat, d/b/a Wissam Farhat Store, Plaintiff, v. CONTINENTAL INSURANCE COMPANY, Defendant.
    Nos. 84 CIV 5514 (LBS), 84 CIV 5516 (LBS), 84 CIV 5517 (LBS), 84 CIV 5519 (LBS) and 84 CIV 5591 (LBS).
    United States District Court, S.D. New York.
    Feb. 15, 1985.

      Weg & Myers, P.C., New York City, for plaintiffs; Ira M. Myers, New York City, of counsel.
    Salon, Marrow, Dyckman & Trager, New York City, for all defendants; Leslie Trager, New York City, of counsel.
   OPINION

SAND, District Judge.

These five actions were brought by plaintiff-insureds to recover on insurance policies issued by defendants on property located in Liberia. Prior to the commencement of these actions, defendants served plaintiffs with notices to examine pursuant to a standard provision found in each policy which reads:

“The insureds, as often as may be reasonably required, shall exhibit to any person designated by this Company all that remains of any property herein described, and submit to examinations under oath by any person named by this Company, and subscribe the same; and, as often as may be reasonably required, shall produce for an examination all books of account, bills, invoices and other vouchers or certified copies thereof if the originals be lost, at such reasonable time and place as may be designated by this Company or its representative, and shall permit extracts and copies thereof to be made.”

Plaintiffs failed to comply with this request and defendants move for summary judgment pursuant to F.R.Civ.P. 56 on the grounds that such failure constitutes a material breach of the policy. Azeem v. Colonial Assurance Co., 62 N.Y.2d 951, 479 N.Y.S.2d 216, 468 N.E.2d 54 (1984); Lentini Bros. Moving & Storage Co. v. N.Y. Property Ins. Underwriting Ass’n, 53 N.Y.2d 835, 440 N.Y.S.2d 174, 422 N.E.2d 819 (1981).

New York law, which governs these actions, indeed strictly enforces an insurer’s right to conduct such examinations and summary judgment is granted by both state and federal courts where the insured’s failure to comply is not adequately explained or excused. Bulzomi v. N.Y. Central Mutual Fire Ins. Co., 92 A.D.2d 878, 459 N.Y.S.2d 861 (2d Dept.1983); Do-Re Knit, Inc. v. National Union Fire Ins. Co., 491 F.Supp. 1334 (E.D.N.Y.1980).

Plaintiffs seek to escape this strict rule of New York law by offering a variety of excuses and explanations for their noncompliance. We first discuss these issues on their merits and then proceed to deal with the more troublesome question whether plaintiffs’ failure to comply was “willful” and “unexcused.”

1. Plaintiffs submitted to preliminary interviews in Liberia prior to the filing of proofs of loss. They claim that these interviews either satisfied their examination obligations or constituted sufficient partial performance so that an unconditional dismissal of their complaints is not warranted. But these interviews were sketchy and not the type of thorough examination, after filing of a proof of loss, to which the insurer is entitled. Moreover, the policy explicitly gives the insurer the right to conduct more than one examination. As for plaintiffs’ contentions that the preliminary interview entitled them to come within the scope of Pogo Holding Corp. v. N. Y. Property Ins. Co., 73 A.D.2d 605, 422 N.Y.S.2d 123 (2d Dept.1979) and thus avoid an unconditional dismissal by now submitting to an examination, two observations are appropriate. First, the continued validity of Pogo is dubious in the light of Lentini. Second, in any event the extent of partial performance in Pogo far exceeds that of plaintiffs in this action.

2. Plaintiffs urge that the defendants had already determined to deny liability prior to the requested examinations and thereby waived their right to conduct the examinations. Beckley v. Otsego County Farmers Co-Op., 3 A.D.2d 190, 159 N.Y.S.2d 270 (3d Dept.1957). Plaintiffs, having been granted leave to conduct and, in fact, having conducted considerable discovery on this point, have failed to present a material issue of fact on this question. The evidence discloses that it was not until plaintiffs failed to appear for the scheduled examinations that defendants disclaimed liability as to these plaintiffs. Plaintiffs claim that the defendants’ institution of proceedings with respect to certain similarly situated insureds shortly after those claimants in fact appeared for examinations was a sufficient indication that defendants would reject all such claims. Plaintiffs were not entitled to rely on any such reasoning to defeat the terms of the policy. Thus, plaintiffs’ allegations that they believed that the insurance companies intended to deny their claims do not present a factual issue which warrants denial of summary judgment. Do-Re Knit, Inc. v. National Union Fire Ins. Co., supra.

3. Those plaintiffs who were insured by Continental allege that they did not receive a copy of the policy jacket which contains the examination provision. This contention is without merit. The policy, together with its jacket, was delivered to the insureds’ broker, who for these purposes serves as plaintiffs’ agent. Thus, plaintiffs were legally on notice of the requirement of the policy. Moreover, having received notice to appear for the examination, they cannot disclaim an obligation to comply on the grounds of a lack of awareness of this requirement.

4. Equally spurious is plaintiffs’ claim that the notice to be examined was untimely and therefore invalid. The alleged delay of approximately one month after filing of the proof of loss in requesting the examination is adequately explained by the defendants based on logistical considerations and would in any event not negate the defendants’ right to examine. Far greater delays have been held not to constitute a waiver of this right. Lentini Bros. Moving & Storage Co. v. N.Y. Property Ins. Underwriting Ins. Assn., supra.

5. Plaintiffs contend that New York was not a reasonable place to hold the examination since the situs of the loss, as well as the plaintiffs’ residence and place of business, was in Monrovia, Liberia. The authority cited for this contention, however, is extremely old and clearly not controlling in this case. For example, Pierce v. Globe & Rutgers Fire Ins. Co., 107 Wash. 501, 182 P. 586 (1919), a case cited once in the last 55 years, held that the proper place to hold an examination was the place where the loss occurred when the contract was silent as to where the examination should take place. These policies, in contrast, explicitly state that the insured shall appear at such reasonable time and place as may be designated by the insurer. Surely, Monrovia, Liberia, is not the only reasonable location at which these examinations could have been held. Indeed, as defendants urge, local conditions in Liberia, including lack of facilities and political unrest, provide further reason why its suitability as a location for the examinations was questionable.

We hold as to those plaintiffs who actually came to New York, or agreed to come, for whatever purposes after the alleged loss, that New York was not an unreasonable site for the examination. We deal infra with the one plaintiff, Hasan Ezzeddine, who neither came, nor agreed to come, to New York.

6. The remaining question which gives us greatest pause is whether under all of the circumstances of these cases, the plaintiffs had sufficient basis for believing in good faith that there was no obligation to submit to an examination, so that one could not characterize their conduct as “unexcused and willful refusal to comply.” Lentini, supra, 53 N.Y.2d at 837, 440 N.Y.S.2d at 175, 422 N.E.2d at 820. If plaintiffs in good faith failed to comply, either because of the circumstances noted above- or because they relied on alleged communications with defendants seeking adjournments or other relief, the New York courts would grant summary judgment conditionally, giving plaintiffs an opportunity now to submit to examination. Catalogue Service of Westchester, Inc. v. Insurance Co. of North America, 74 A.D.2d 837, 425 N.Y.S.2d 635 (2d Dept.1980). If the non-compliance is unexcused or willful, the dismissal is unconditional. Lentini, Azeem, supra.

We conclude that the totality of circumstances present here warrant the conclusion that plaintiffs’ failure to submit to examination was not such an unexplained flaunting of the policy provisions as to warrant an unconditional dismissal. We note that in Azeem, the New York State Court of Appeals emphasized the dilatory tactics of plaintiff’s counsel and the lack of any excuse for non-appearance after two previously scheduled examinations had been adjourned. In Lentini, plaintiff failed to comply with a demand to file a proof of loss as well as to submit to examination.

Here it appears that four of the five plaintiffs either came, or agreed to come to New York. The single attorney who represents all five plaintiffs alleges that some of them did not submit to examination because the claims of two similarly situated claimants who did submit to such examinations were rejected and the insurer instituted proceedings against them shortly after the examination. Although we have rejected this reasoning as a grounds for holding that the insured is not entitled to conduct examinations, we do not find the plaintiffs’ claims to be so frivolous as to warrant an absolute dismissal of an insurance claim, on grounds other than the merits of the claim, because the advice received by claimants from their attorney was erroneous, especially where no prejudice to the insurers has been shown. Moreover, it appears that some plaintiffs allegedly communicated with defendants seeking adjournment or other relief. Although defendants deny receipt of certain telexes on which some plaintiffs rely and the sending of such telexes is supported only by affidavits, we cannot resolve the factual disputes created by conflicting affidavits on a motion for summary judgment. The relevance of these alleged communications here is simply that plaintiffs assert that they were not entirely ignoring the insurers’ demands.

We find that there was not present here such “wilfull” and “unexcused” disregard of the obligations to submit to examination as would warrant the draconian remedy of absolute dismissal under Azeem and Lentini.

We dismiss the five complaints subject to the rights of all five claimants to file a new action on the following terms and conditions:

1) As to the plaintiffs who found it possible to come to New York but did not submit to examination (i.e., all plaintiffs except Hasan Ezzeddine), they are to tender themselves for examination by their insurers in New York within a reasonable time from the date hereof. If their insurers reject such tender or do not in fact conduct such examination within a reasonable time, they may commence a new action which will be consolidated with the other related cases pending before this Court.

2) As to Hasan Ezzeddine, he is to tender himself for examination in New York as well. On the present record, this would seem to be the preferred site for this examination being, among other things, the place where he has commenced suit and where his attorney is located. We reserve to this plaintiff, however, the right to demonstrate the infeasibility of his coming to New York and to suggest some other place, other than Liberia, having suitable facilities where he may be examined.

We reserve to defendants the right, after termination of these cases on the merits, to seek reimbursement for their costs and expenses in connection with this motion and express no opinion as to the validity of any such claim.

Settle order containing specific dates for the events set forth above.

      . Plaintiffs contend that unconditional dismissal occurs only when the statute of limitations would bar a new action. We do not find this to be the reasoning of the cases.


text:
    LETTER-RITE, INC., an Illinois Corporation, Plaintiff, v. COMPUTER TALK, INC., et al., Defendants.
    No. 84 C 7076.
    United States District Court, N.D. Illinois, E.D.
    Feb. 15, 1985.

      Frank J. Petrie, Lewis John Craft, Assoc., Villa Park, Ill., for plaintiff.
    Mark G. Krum, Stephen M. Murray, Lord Bissell & Brook, Chicago, Ill., for defendants.
   MEMORANDUM OPINION AND ORDER

SHADUR, District Judge.

Letter-Rite, Inc. (“Letter-Rite”) brings this diversity action against Computer Talk, Inc. (“Computer Talk”) for breach of contract. Computer Talk has moved under 28 U.S.C. § 1404(a) (“Section 1404(a)”) to transfer this action to the United States District Court for the District of Colorado. For the reasons stated in this memorandum opinion and order, Computer Talk’s motion is granted.

FACTS

Letter-Rite—a small, closely-held Illinois corporation—specializes in the production of business stationery. Early in 1980 Letter-Rite approached Computer Talk—a small, closely-held Colorado corporation— about the possible purchase of a computer-operated stenciling machine. Six months of negotiations followed, culminating in a June 30, 1980 Agreement (the “Agreement”) under which Computer Talk was to develop, construct and install such a stenciling machine for Letter-Rite.

Under the Agreement Letter-Rite, at its own expense, was to send a representative to the Computer Talk factory in Colorado to observe the performance of the stenciling machine (when completed) over a two-week period of around-the-clock operation. Assuming the machine performed satisfactorily, Letter-Rite was to accept it and to take delivery F.O.B. the Computer Talk factory. Letter-Rite was then to arrange shipment of the machine to its destination in Illinois, at which point Computer Talk would arrange for proper installation. Final acceptance by Letter-Rite would follow upon satisfactory installation. Half the purchase price was due on or before acceptance at the Computer Talk factory, and the other half was to be paid in ten monthly installments beginning the month after acceptance by Letter-Rite in Colorado.

Initially the Agreement called for delivery within six to eight months after the June 30, 1980 execution date. On April 25, 1981 the parties signed a modification agreement providing (among other things) (1) that failure to adhere to the original timetable would constitute no breach of the Agreement and (2) for a procedure for setting a new production schedule. It is not clear from the parties’ submissions whether such a schedule was set—or what it might have been. In any case Computer Talk has yet to offer a finished product for acceptance and delivery, though it claims work on the product is substantially complete.

Section 1404(a) Principles

Section 1404(a) provides:

For the convenience of the parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought.

Section 1404(a) principles are related (but not identical) to those governing forum non conveniens motions, as set out in Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508, 67 S.Ct. 839, 843, 91 L.Ed. 1055 (1947). But at least one important difference between the two doctrines is relevant here. As characterized in Gulf Oil, forum non conveniens gives great weight to the plaintiffs choice of forum (id.):

[U]nless the balance is strongly in favor of the defendant, the plaintiffs choice of forum should rarely be disturbed.

Under Section 1404(a), though, the plaintiffs right to choose his forum does not weigh so heavily in the balance. Norwood v. Kirkpatrick, 349 U.S. 29, 32, 75 S.Ct. 544, 546, 99 L.Ed. 789 (1955) taught Section 1404(a) was not meant simply to codify the old doctrine:

[W]e believe that Congress, by the term “for the convenience of parties and witnesses, in the interest of justice,” intended to permit courts to grant transfers upon a lesser showing of inconvenience. This is not to say that the plaintiffs choice of forum is not to be considered, but only that the discretion to be exercised is broader.

Under Section 1404(a) plaintiffs choice of forum is not an overriding consideration, but rather one of many factors to be considered. See Rockwell International Corp. v. Eltra Corp., 538 F.Supp. 700, 702 (N.D.Ill.1982).

This opinion therefore turns to an evaluation of the facts in light of Section 1404(a)’s specific terms. Of course the parties concede this lawsuit “might have been brought” in the Colorado District Court. Venue there is proper both because all defendants reside in Colorado (28 U.S.C. § 1391(a)) and because Computer Talk is licensed to do business in Colorado and plainly transacts business there (28 U.S.C. § 1391(c)). Accordingly disposition of Computer Talk’s motion turns on a consideration of the substantive Section 1404(a) criteria: convenience of the parties and witnesses, in the interest of justice.

1. Convenience of the Parties

Each side’s forum is really inconvenient for the other. Letter-Rite and Computer Talk are both small corporations—Letter-Rite employs 28 people, Computer Talk only 10—whose day-to-day operations are very much in the charge of their respective presidents, Russell Brewer and William Barnes. Brewer has stated on behalf of Letter-Rite (R. Brewer Aff. ¶ 10):

My extended absence from Letter-Rite to testify, should this case be transferred to Colorado, would cause substantial loss of business to Letter-Rite and financial hardship.

Barnes, on behalf of Computer Talk, has predicted very similar consequences for that corporation if the lawsuit is tried in Illinois (W. Barnes Aff. If 15):

[M]y absence from Computer Talk in order to testify at trial in this litigation would result in a substantial inconvenience to and hardship on Computer Talk.

In addition neither Letter-Rite nor Computer Talk maintains an office outside its home state, and neither has any real business contacts in the home state of its opponent. Even the negotiations leading up to the Agreement, and the discussions since then, reflect no strong leaning toward either Illinois or Colorado. Most communications have been by telephone and mail, or during the course of brief visits by one party to the other’s home state. Perhaps the only balance-tipping factor is the fact that the Agreement itself placed the primary burden of travel on Letter-Rite. As this opinion has already said, a Letter-Rite representative was required to travel to Colorado to accept the stenciling machine, and any training of Letter-Rite personnel in the use of the machine was to take place there.

But even if those matters could be viewed as implying Letter-Rite was less inconvenienced than Computer Talk by out-of-state dealing, they do not alone tip the balance in Computer Talk’s favor. Even after Norwood, the plaintiff’s choice of forum remains a relevant consideration—one perhaps sufficient here to balance (though certainly not to outweigh) any evidence favoring Computer Talk’s position.

2. Convenience of the Witnesses

Because the interests of the principal witnesses—Barneses and Russell and Sue Brewer (“Brewers”)—so significantly overlap those of Letter-Rite and Computer Talk, the “convenience of witnesses” analysis is close to that in the preceding section. Wherever this ease is tried, either Russell Brewer or William Barnes will be inconvenienced. And as the earlier discussion suggests, neither would suffer less inconvenience than the other. Each man is the president of a small ‘ closely-held corporation in which he holds the dominant (or with his wife the entire) interest, and each claims his presence is necessary to oversee day-to-day operations. To the extent either’s absence impairs the functioning of his company, the consequences of the impairment are likely to fall principally on him.

As for Sue Brewer and Tamsin Barnes, the competing interests are not quite as evenly balanced. Each woman serves as corporate secretary-treasurer, though it is not clear how actively either participates in day-to-day operations. Tamsin Barnes expressly says she does not “participate in the business of Computer Talk, Inc.” (T. Barnes Aff. ¶ 4), while Sue Brewer provides no description of the duties attending on her corporate office. Both of course would suffer the general inconvenience of having to travel some distance from home to testify. That would plainly be a heavy burden on Tamsin Barnes, because she is principally employed by a company unrelated to Computer Talk. It is less clear whether Sue Brewer’s daily affairs—whatever they may be—merit like deference.

Moreover, as Computer Talk argues, Sue Brewer is not as necessary a witness as Tamsin Barnes. This Court has been provided nothing to indicate how Sue Brewer was involved in the events giving rise to the dispute between Letter-Rite and Computer Talk. She does not appear to have participated in negotiation of the Agreement or to have dealt with Computer Talk in any other way than through her husband. By contrast, Tamsin Barnes was present at many of the meetings leading up to and following the execution of the Agreement. Accordingly her inconvenience should weigh more heavily in the balance than Sue Brewer's.

3. Interest of Justice

In sum, then, the aggregate impact of the first two factors favors Computer Talk to some extent. Nonetheless their weighting alone does not clearly override the concept that a transfer will not be ordered “if the result is merely to shift the inconvenience from one party to another.” 15 Wright, Miller & Cooper, Federal Practice & Procedure: Civil § 3848, at 246.

Consequently the disposition of Computer Talk’s motion turns upon the “interest of justice”—a grab-bag of sorts that has come largely to encompass the factors enumerated in Gulf Oil (see n. 3). Associated Mills, Inc. v. Rush-Hampton Industries, 588 F.Supp. 1164, 1167 (N.D.Ill.1984). When those factors are taken into account the Section 1404(a) balance tips decidedly toward Computer Talk.

First, the Agreement was to be performed substantially in Colorado. While Computer Talk had an obligation to install the completed stenciling machine in Illinois, Letter-Rite was first to accept and take delivery of the equipment in Colorado. In addition Letter-Rite was responsible for shipping the completed product to its installation point. Certainly all the aspects of performance primarily at issue in this lawsuit were to take place in Colorado:

1. Both the machine itself and any documentation detailing the progress of its development and manufacture are located there.
2. So too are any Computer Talk employees whose testimony may be relevant to the question of Computer Talk’s efforts to meet its obligations under the Agreement.
3. Because Letter-Rite claims Computer Talk lacked the capacity to perform as contemplated by the Agreement, an examination of its production facilities in Colorado may well be appropriate.

Second, even were defendants’ motion denied, this Court would appear obligated to resolve the dispute under Colorado law. Under Klaxon Corp. v. Stentor Electric Manufacturing Co., 313 U.S. 487, 496, 61 S.Ct. 1020, 1021, 85 L.Ed. 1477 (1941), Illinois conflict-of-law rules apply here. Illinois has traditionally looked primarily to the law of the place of performance in contract cases, but more recently there has been some evidence of movement toward a “most significant contacts” approach, akin to the approach adopted for torts cases in Ingersoll v. Klein, 46 Ill.2d 42, 48, 262 N.E.2d 593, 596 (1970). See Overseas Development Disc Corp. v. Sangamo Construction Co., 686 F.2d 498, 510 n. 43 (7th Cir.1982); WICO Corp. v. Willis Industries, 567 F.Supp. 352, 355 n. 4 (N.D.Ill.1983). Under either the older rule or some version of a more flexible bent, Colorado law should provide the rule of decision. And under Van Dusen v. Barrack, 376 U.S. 612, 639, 84 S.Ct. 805, 820, 11 L.Ed.2d 945 (1964), the transferee court “must be obligated to apply the state law that would have been applied if there had been no change of venue.” Under such circumstances, Gulf Oil, 330 U.S. at 509, 67 S.Ct. at 843, teaches it makes sense to hold the trial “in a forum that is at home with the state law that must govern the case.”

Finally, a comparison of the dockets for the District of Colorado and the Northern District of Illinois indicates the propriety of transfer. Judges in this District have a heavier average caseload than their Colorado counterparts. More importantly, this District has consistently ranked in the top three of all District Courts nationally in terms of weighted case filings per judge (and was third nationally in that respect for the twelve months ended June 30, 1984). Statistics as to “average time from filing to disposition” are always misleading, because they deal with all types of case dispositions. More significant in real-world terms are percentages of cases over three years old, and there too this District ranks behind its Colorado counterpart. Measured in terms of docket congestion and prospects for an earlier trial, the District of Colorado is. clearly the preferable forum.

Conclusion

While the convenience of the parties and witnesses favors transfer only marginally, the relevant considerations under the “interest of justice” heading weigh heavily in favor of transfer. Computer Talk’s Section 1404(a) motion is therefore granted. This action is transferred to the United States District Court for the District of Colorado.

      . Letter-Rite’s Complaint also charges William and Tamsin Barnes ("Barneses") misrepresented Computer Talk’s ability to perform its contract obligations. On October 15, 1984 all defendants moved alternatively (1) to dismiss this action for lack of jurisdiction under Fed.R.Civ.P. 12(b)(2) or (2) for transfer under Section 1404(a). On November 27 this Court concluded it lacked personal jurisdiction over Barneses. It remains then to decide the Section 1404(a) question as to Computer Talk.

      . Among other things, the Agreement also provided Computer Talk would train Letter-Rite personnel to use the equipment. That training was also to take place at Computer Talk’s Colorado factory, and Letter-Rite was responsible for its employees’ travel and living expenses.

      . Gulf Oil there enumerated a number of relevant factors:
      1. the relative ease of access to sources of proof;
      2. the amenability of unwilling witnesses to service of process;
      3. the cost of attendance at trial of willing witnesses;
      4. the relation of the community in which the courts and jurors are required to serve to the occurrence at issue in the litigation;
      5. the accessibility of premises involved in the litigation;
      6. the relative congestion of the court dockets and prospects for earlier trial; and
      7. in a diversity case, the relative familiarity of the courts with the state law supplying the applicable rules of decision.

      . Piper Aircraft Co. v. Reyno, 454 U.S. 235, 253, 102 S.Ct. 252, 264, 70 L.Ed.2d 419 (1981) more recently reconfirmed that Norwood distinction.

      . In an odd way the inconvenience to each party of litigating on the other’s home ground may favor transfer. Letter-Rite’s inability to sue Barneses here might force a separate lawsuit against the individuals in Colorado so that all the issues between the parties could be resolved. In that case, retaining this suit here would create inconvenience for Computer Talk, by having to defend here, with no correlative benefit for Letter-Rite (because it would have to litigate away from home anyway).

      . While the cost of transporting documents to Illinois may not be substantial, that evidence is plainly more accessible to a Colorado forum than to one sitting in Chicago.

      . All factual information in this paragraph has been drawn from Federal Court Management Statistics 1984, at 71, 109.