text:
    SOUND OF MARKET STREET, INC. v. CONTINENTAL BANK INTERNATIONAL.
    Civ. A. No. 84-3922.
    United States District Court, E.D. Pennsylvania.
    Dec. 11, 1985.

      Richard M. Meltzer, Philadelphia, Pa., for plaintiff.
    Peter F. Marvin, Philadelphia, Pa., for defendant.
   MEMORANDUM and ORDER

JOSEPH S. LORD, III, Senior District Judge.

Plaintiff alleges that the defendant negligently failed to advise it in a timely manner that a letter of credit had been issued in its behalf, thereby causing plaintiff to lose the benefit of the bargain the letter of credit was meant to facilitate. Defendant has filed a motion for summary judgment claiming that it did not havé a legal obligation to advise plaintiff of the letter of credit in a timely fashion. For the reasons that follow defendant’s motion will be denied.

In May, 1982, plaintiff purchased blank audio cassette tapes from Dalco of Cyprus. Plaintiff then obtained permission from Dalco to return approximately 165,000 tapes for a refund of $125,500, which would be paid through a letter of credit. A letter of credit was issued by the Bank of Cyprus at the request of Dalco with plaintiff as the beneficiary. On August 6, 1982, the defendant received a telex from the Bank of Cyprus instructing it to prepare the letter of credit and to notify plaintiff that the credit had been issued. One of the credit’s terms required shipment of the tapes on or before August 81, 1982. Although the defendant had reviewed and prepared the letter of credit by August 9, 1982, it did not send it to plaintiff until August 18,1982, when it was sent by regular U.S. mail. Plaintiff did not receive the letter of credit until August 25, 1982, when it was too late for plaintiff to comply with the August 31 shipping date. As a result plaintiff was unable to return the tapes, suffering a loss, the extent of which has not yet been determined.

Article V of the Uniform Commercial Code defines an advising bank as a “bank which gives notification of the issuance of a credit by another bank.” 13 Pa.C.S.A. § 5103(a) (1984). Defendant, in this case, was clearly serving as an advising bank. The explicit obligations assumed by an advising bank under the U.C.C. are very limited. Unless otherwise specified, an advising bank does not assume any obligation to honor drafts drawn or demands for payment made under the credit. 13 Pa.C.S.A. § 5107(a). An advising bank, however, does assume an obligation for the accuracy of the information it transmits to the beneficiary of the credit. Id.; H. Harfield, Letters of Credit 10-11 (1981).

Defendant argues that since the information provided to plaintiff about the credit was accurate and since the U.C.C. does not explicitly impose any other obligations on an advising bank, its untimely notification did not violate any legal obligation defendant had toward the plaintiff.

Article V of the U.C.C., however, “deals with some but not all of the rules and concepts of letters of credit as such rules or concepts ... may hereafter develop.” 13 Pa.C.S.A. § 5102(c). Simply because obligations are not explicitly imposed on an advising bank by the Code does not mean that obligations which promote the underlying purposes and policies of the Code may not be imposed when fact patterns unforeseen by the Code’s drafters are brought before the court. See id. at comment 2.

Letters of credit help facilitate transactions between merchants located in different countries who want to avoid legal entanglements with one another as much as possible even if their deal goes sour. A seller who is also the beneficiary of a letter of credit is guaranteed payment by the bank that issued the credit so long as the seller complies with the credit’s terms. If a foreign buyer reneges on the deal or becomes insolvent while the goods are in transit, the seller is still assured of payment without having to sue the buyer in a foreign jurisdiction. Similarly, a buyer need not advance funds to a foreign seller and trust that the goods for which it has already paid will be shipped in a timely and appropriate manner. If the foreign seller does not comply with the terms specified in the letter of credit, the buyer is assured that the bank it hired to issue the credit will not pay the seller.

Accuracy in letter of credit transactions is, therefore, of utmost importance. A letter of credit is a contract between the issuing bank and the beneficiary of the letter of credit that is separate and distinct from the contract between the buyer and the seller that the letter of credit is meant to facilitate. The beneficiary gives the bank the documents called for by the letter and gets paid in return. “ ‘[T]he essential requirements of a letter of credit [, therefore,] must be strictly complied with by the party entitled to draw against the letter of credit, which means that the papers, documents and shipping descriptions must be as stated in the letter.’ ” Marino Industries v. Chase Manhattan Bank, N.A., 686 F.2d 112, 114 (2nd Cir.1982) (citations omitted). Slight deviations between the documents presented and the documents called for in the letter have been held to justify a bank’s refusal to pay the beneficiary. 686 F.2d at 114-15.

A benefieiary/seller, therefore, cannot prudently rely on what a buyer states will be the ■ terms of a letter of credit. As regards the beneficiary, a letter of credit is not established until he receives the letter or an authorized written advice of its issuance. 13 Pa.C.S.A. § 5106(a)(2). If the beneficiary transports the goods before receiving the letter of credit, and its documents do not conform to the letter, it will not collect on the letter. In order to be paid, it will have to sue the buyer of the goods, something the letter of credit device was meant to avoid.

According to the defendant, an advising bank’s only obligation is to be accurate when it notifies the beneficiary that a letter of credit has been issued in its behalf. According to this theory, if an advising bank completely fails to notify the beneficiary that the letter has been issued, it will not be liable. Similarly, if the advising bank holds onto a letter of credit until it expires, it again will not be liable. In neither instance has it transmitted inaccurate information to the beneficiary.

Defendant’s position is obviously untenable. A beneficiary can suffer the same types of harm regardless of whether he gets inaccurate information about the letter of credit, untimely information or no information at all. In any of these hypothetical cases the deal can fall through and the seller must either look to a foreign buyer or to a negligent advising bank for the benefit of its bargain. If advising banks are liable for inaccurate statements regarding letters of credit, they should be liable for untimely statements as well. Cf. General Cable Ceat, S.A. v. Futura Trading, Inc., et al., No. 82 Civ. 1087 (RLC), slip op. (S.D.N.Y. January 17, 1983) (defendant serving as both advising and paying bank liable for negligent mishandling of documents submitted by letter of credit beneficiary).

An appropriate order follows.

ORDER

AND NOW, this 11th day of December, 1985, it is hereby ORDERED that defendant’s motion for summary judgment is DENIED.


source: Caselaw Access Project

author: KANE, District Judge.

license: Public Domain

text:
    Beatrice HENSMAN, Plaintiff, v. ADAMS COUNTY DEPARTMENT OF SOCIAL SERVICES; Board of County Commissioners of Adams County, on its own behalf and on behalf of the Adams County Board of Social Services; Colorado Department of Social Services; and the Colorado State Board of Social Services, Defendants.
    Civ. A. No. 85-K-1955.
    United States District Court, D. Colorado.
    Dec. 12, 1985.

      William E. Benjamin, Boulder, Colo., for plaintiff.
    Richard D. Greengard, Greengard & Senter, Denver, Colo., for Adams Co.
    Cathy S. Harris, Hall & Evans, Kathy Stumm, Asst. Atty. Gen., Denver, Colo., for State of Colorado.
   MEMORANDUM OPINION AND ORDER

KANE, District Judge.

Plaintiff brings this action against defendants based on the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621-34, and the Equal Pay Act, 29 U.S.C. § 206. Plaintiff also asserts pendent state claims including violations of the Colorado age discrimination statute, Colo. Rev.Stat. § 8-2-116, and breach of contract. Defendants move to dismiss plaintiff’s pendent claims. For the following reasons, I grant defendants’ motions.

I

When deciding whether to exercise pendent jurisdiction, I must determine if I have the constitutional power to exercise such jurisdiction. That power exists when there is a substantial federal claim and when both the federal and state claim arise from a common nucleus of operative fact. United Mine Workers of America v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130, 1138, 16 L.Ed.2d 218 (1966). I also must examine the posture in which the nonfederal claim is asserted and the specific statute on which federal jurisdiction is predicated “in order to determine whether ‘Congress in [that statute] has ... expressly or by implication negated’ the exercise of jurisdiction over the particular nonfederal claim.” Owen Equipment & Erection Co. v. Kroger, 437 U.S. 365, 373, 98 S.Ct. 2396, 2402, 57 L.Ed.2d 274 (1978) (quoting Aldinger v. Howard, 427 U.S. 1, 18, 96 S.Ct. 2413, 2422, 49 L.Ed.2d 276 (1976)). Even if I have jurisdiction over a nonfederal claim, I must exercise my discretion in determining whether to accept the claim. I should reject a nonfederal claim: (1) when considerations of judicial economy, convenience and fairness to litigants are not present; (2) when a surer-footed reading of applicable state law can be obtained in state court; (3) when state issues predominate in terms of proof, scope of issues raised, or comprehensiveness of remedies sought; or (4) when divergent legal theories of relief are likely to cause jury confusion. Id. 383 U.S. at 726-27, 86 S.Ct. at 1139.

In Pascoe v. Hoyle Lowdermilk, Inc., 614 F.Supp. 546 (D.Colo.1985), the plaintiffs brought an action based on the ADEA and also asserted pendent state claims. I held that, under the Gibbs test, I had constitutional jurisdiction to hear the state claims. Id. I determined, however, that Congress intended to limit the scope of remedies under the ADEA to those specifically enumerated in the statute. Therefore, Congress impliedly negated the exercise of jurisdiction over the state claims. Id. at 547-48. In addition, I found that the state issues would predominate in terms of comprehensiveness of the remedy sought, and that there was a real likelihood of jury confusion in treating the divergent legal theories of relief. Id. at 548. See also DiRito v. Ideal Basic Industries, Inc., 617 F.Supp. 79, 81 (D.Colo.1985) (Kane, J.); Silver v. St. Luke’s Hospital, Inc., No. 84-M-2046, slip op. at 4 (D.Colo. May 3, 1985) (Matsch, J.); Borumka v. Rocky Mountain Hospital & Medical Service, 599 F.Supp. 857, 860 (D.Colo.1984) (Moore, J.); Ritter v. Colorado Interstate Gas Co., 593 F.Supp. 1279 (D.Colo.1984) (Carrigan, J.); Hannon v. Continental National Bank, 427 F.Supp. 215, 218 (D.Colo.1977) (Finesilver, J.). Accordingly, I decline to exercise jurisdiction over plaintiff’s state claims insofar as they are pendent to her ADEA claim. Thus, I must determine whether to exercise jurisdiction over plaintiffs state claims insofar as they are pendent to her Equal Pay Act claim.

II

Plaintiff seeks numerous remedies under her state claims, including exemplary damages and damages for emotional distress. Congress, however, has expressly limited damages under the Equal Pay Act to back pay, liquidated damages, a reasonable attorney’s fee and costs of the action. 29 U.S.C. § 216(b). Adjudication of plaintiff’s state claims would circumvent the scope of remedies available under the Equal Pay Act. Therefore, Congress has impliedly negated the exercise of jurisdiction over plaintiff’s state claims insofar as they are pendent to her Equal Pay Act claim. See Gerlach v. Michigan Bell Telephone Co., 448 P.Supp. 1168, 1173 (E.D. Mich.1978).

Even if I have jurisdiction over plaintiff’s state claims, in the exercise of discretion I refuse to hear such claims insofar as they are pendent to her Equal Pay Act claim. I find that: (1) a surer-footed reading of the applicable state law can be obtained in state court; (2) the state issues would predominate in terms of comprehensiveness of remedies sought; and (3) there is a real likelihood of jury confusion in treating the divergent legal theories of relief. These findings far outweigh any considerations of judicial economy, convenience and fairness to litigants which might favor trial of the claims together.

For the above reasons, defendants’ motions to dismiss plaintiff’s pendent state claims are granted. This action will proceed only on plaintiffs claims under the ADEA and the Equal Pay Act.

IT IS THEREFORE ORDERED that plaintiff’s third and fourth claims for relief are dismissed without prejudice.

      . In DiRito v. Ideal Basic Industries, Inc., 617 F.Supp. 79, the plaintiffs state claims included violations of the Colorado age discrimination statute, Colo.Rev.Stat. § 8-2-116. In Pascoe v. Hoyle Lowdermilk, Inc., 614 F.Supp. 546, the plaintiffs’ state claims included breach of contract.

      . 29 U.S.C. § 216(b) provides:
      "Any employer who violates the provisions of section 206 or section 207 of this title shall be liable to the employee or employees affected in the amount of their unpaid minimum wages, or their unpaid overtime compensation, as the case may be, and in an additional equal amount as liquidated damages____ The court in such action shall, in addition to any judgment awarded to the plaintiff or plaintiffs, allow a reasonable attorney’s fee to be paid by the defendant, and costs of the action."


author: SACHS, District Judge.

text:
    UNITED STATES of America, Plaintiff, v. James N. ROSIER and Janice Rosier, Defendants.
    No. 85-06003-01/02-CR-SJ-6.
    United States District Court, W.D. Missouri, St. Joseph Division.
    Dec. 17, 1985.

      Anita L. Mortimer, Asst. U.S. Atty., Kansas City, Mo., for plaintiff.
    C. Brooks Wood, Roger M. Phillips, Jackson, Dillard, Brouillette, Weisenfels, Phillips & Wood, P.C., Kansas City, Mo., for defendant James N. Rosier.
    Thomas M. Bradshaw, Hoskins, King, McGannon, Hahn & Hurwitz, Kansas City, Mo., for defendant Janice Rosier.
   MEMORANDUM AND ORDER

SACHS, District Judge.

Defendants have just obtained a one month’s continuance in the trial of this tax prosecution. They also seek scheduling of the trial in St. Joseph, contending generally that would be more convenient for them and the witnesses and would not impede the prompt administration of justice. For reasons stated, the motion will be denied.

Defendants’ counsel have their offices in Kansas City and are perhaps unaware of the policy of the court in not scheduling jury trials in the St. Joseph division between Thanksgiving and the last week of March. Unpredictable weather conditions endanger the empanelling and use of juries from the 18 county area, which includes many rural roads. Rule 18 of the Federal Rules of Criminal Procedure was amended in 1979 for speedy trial purposes. Accommodation may be made to regular judicial practices, such as holding court in one of the divisions “only one week per month.” United States v. Lawson, 670 F.2d 923, 926 (10th Cir.1982). A fortiorari, unpredictable weather conditions would justify the scheduling of a criminal trial at a place more likely to be convenient to a jury or panel of veniremen.

Even if a summertime trial were in prospect, there is authority in this circuit permitting trial scheduling at the station where the judge normally sits and where court personnel reside. United States v. Thiel, 619 F.2d 778, 781 (8th Cir.), cert. denied, 449 U.S. 856, 101 S.Ct. 152, 66 L.Ed.2d 70 (1980). While it has been held in the Second Circuit to be an abuse of discretion to schedule a criminal trial for the sole convenience of the judge (United States v. Fernandez, 480 F.2d 726 (2d Cir.1973)), the Fernandez case itself notes that consideration should be given to the location of the office of defense counsel, the headquarters of the United States Attorney, and “the headquarters of the court.” 480 F.2d at 730. This last phrase seemingly refers to the residence of court personnel such as courtroom deputies, reporters and marshals, and the expense to the Government and inconvenience of unnecessary travel.

Although some cases indicate that the considerations explicitly set forth in Rule 18 are exclusive (United States v. Burns, 662 F.2d 1378, 1381 (11th Cir.1981)), Fernandez, Thiel and other authorities suggest that judicial discretion may take into account numerous factors appearing in the particular case. United States v. Afflerbach, 754 F.2d 866, 869 (10th Cir.1985); United States v. Raineri, 670 F.2d 702, 706 (7th Cir.), cert. denied, 459 U.S. 1035, 103 S.Ct. 446, 74 L.Ed.2d 601 (1982); United States v. Gurney, 393 F.Supp. 688, 705-07 (M.D.Fla.1974). My reading of the Rule is that the trial judge has broad discretion to “fix the place of trial within the district” but is simply cautioned to give “due regard” for the convenience of defendants and witnesses, as well as the “prompt administration of justice.”

Judicial notice is taken of the fact that Mound City, the residence of defendants, has direct interstate highway access to Kansas City, and the cost to defendants of motel space in Kansas City (if they do not choose to commute) would be considerably less than the cost of the additional hourly fees incurred if Kansas City counsel were to try this case in St. Joseph.

While the court reserves discretion in other similar criminal prosecutions, the controlling matter at this time is getting this case disposed of before April.

The motion for trial in St. Joseph is therefore DENIED.

      . The undesirable aspect of removing a judge from his home station, and from the processing of his docket, is itself apparently a proper consideration, at least in this circuit. See also United States v. Truglio, 731 F.2d 1123, 1130 (4th Cir.), cert. denied,—U.S.-, 105 S.Ct. 197, 83 L.Ed.2d 130 (1984).

      . Retention of counsel from St. Joseph and areas above that city is an important factor in scheduling the situs of civil trials. Johnson v. Burlington Northern, Inc., 480 F.Supp. 259 (W.D. Mo.1979).


author: WEXLER, District Judge.

text:
    Edwin MUNSELL and Elsie Munsell, Plaintiffs, v. La BRASSERIE MOLSON Du QUEBEC LIMITEE, d/b/a Molson Breweries and Jean Rouleau, Defendants.
    No. CV 84-4674.
    United States District Court, E.D. New York.
    Dec. 17, 1985.

      DiLorenzo & Weber by William E. Weber, Hauppauge, N.Y., for plaintiffs.
    D’Amato & Lynch by Elizabeth P. Shay, New York City, for defendants.
   MEMORANDUM AND ORDER

WEXLER, District Judge.

Plaintiffs now move for alteration or amendment of the Court’s judgment of October 8, 1985 in this case. Rule 59(e), Fed. R.Civ.P. In that earlier decision the Court dismissed the action as to defendant Jean Rouleau for lack of personal jurisdiction, Rule 12(b)(2), Fed.R.Civ.P., and dismissed the remaining action for forum non conveniens, without prejudice to re-commencement of the action in the appropriate forum. Munsell v. La Brasserie Molson du Quebec, Ltd., 618 F.Supp. 1383 (E.D.N.Y.1985). The Court found that the proper forum is Quebec, Canada. Plaintiffs Edwin and Elsie Munsell now ask for alteration of the judgment. Defendant La Brasserie Molson du Quebec (La Brasserie) opposes and asks for costs and expenses with respect to this motion.

To recapitulate the relevant facts, on November 14, 1983 Mr. Rouleau allegedly ran over Mr. Munsell’s right foot and ankle with a hilo lift vehicle on the premises of La Brasserie in Montreal, Quebec, Canada. Mr. Munsell was at La Brasserie picking up a load of Molson beer in his capacity as a truckdriver with Clare Rose, Inc. In December 1984 Mr. and Mrs. Munsell commenced the instant lawsuit for personal injury. Defendants moved to dismiss.

Plaintiffs ask that the Court amend or alter its judgment either by vacating the order to dismiss for forum non conveniens or conditioning dismissal on defendant La Brasserie’s consent to waive the statute of limitations in a Quebec action. Defendant responds by agreeing “that if service made by plaintiffs upon Jean Rouleau on December 13, 1984 and upon La Brasserie on December 13, 1984 was properly effectuated, and the filing of the Complaint in the Eastern District on December 3, 1984 was timely under the applicable Canadian or Quebec law, then defendants will not contest this service or raise a statute of limitations defense in the Canadian action” (Defendants’ Affidavit in Opposition ¶ 9).

I.

Plaintiffs raise several grounds for reversal of the Court’s application of forum non conveniens. Plaintiffs begin by declaring that they did not anticipate that the Court would entertain the forum non conveniens issue in a pre-answer motion and therefore did not address it fully (Affirmation of William Weber, Esq. 1110). The defendants raised the issue in a laudably timely manner. Motions to dismiss based on the pleadings or on procedural matters should be made as soon as they become apparent and not presented in a piecemeal fashion. That the plaintiffs decided the Court would not entertain the forum non conveniens issue was presumptuous. The issue was raised and the burden was on plaintiffs to either address it fully or ask that the Court defer decision. In any event, the Court is satisfied that it researched the law thoroughly and had sufficient facts from the pleadings and affidavits submitted to make a sound decision.

Plaintiffs question the Court’s decision that public interest factors balance against trial of the case in this forum. They argue that “certainly an American juror is qualified and competent to understand Canadian negligence law which upon information and belief must be extremely similar to American negligence law ...” (Weber Affirmation 1125). This ignores the underlying principles of the public interest analysis of Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508-09, 67 S.Ct. 839, 843, 91 L.Ed. 1055 (1947). It is not a question of whether the jurors can understand and apply Canadian law. It is a question of whether it is appropriate to ask members of a community with little or no interest or connection with the controversy, and some distance from the scene of the events, to decide the case. Of equal importance is the fact that this Court has no knowledge of Canadian law, and, in spite of a modest law library and a Westlaw and Lexis terminal, no access to any statutory compilations and case reporters of Canadian law. Piper Aircraft Co. v. Reyno, 454 U.S. 235, 260-62, 102 S.Ct. 252, 268, 70 L.Ed.2d 419 (1981). The Court does not take judicial notice of the law of other nations, it must be pleaded and proved by counsel. Walton v. Arabian American Oil Company, 233 F.2d 541 (2d Cir.1956). This is not a happy prospect when counsel for plaintiffs can do no better than to declare that on “information and belief” Canadian law “must be extremely similar to American negligence law ...” (Weber Affirmation ¶ 25). The Court would suspect that Quebec, with its French heritage, might have a legal system that incorporates elements of the Napoleonic code or Roman civil law. In short, there is nothing in plaintiffs’ argument that prompts the Court to alter its conclusion that public interest factors weigh against the appropriateness of this forum.

II.

Plaintiffs next present arguments going to the private interests analysis of Gilbert. First counsel for plaintiffs insists that “the only treating physicians and expert medical witnesses are in the State of New York” and Canadian physicians rendered no medical treatment (Weber Affirmation ¶ 22). If Mr. Munsell was seen by medical personnel in Canada, their testimony is important evidence. If counsel means to imply that Mr. Munsell drove his truck back to New York or otherwise was able to travel without first receiving treatment, this suggests that the original injury was perhaps not so very serious, or that it was aggravated by Mr. Munsell’s refusal of immediate treatment or the demands and delay of travel. The Court does not wish to speculate in this vein, but counsel insists on facially conflicting facts. Counsel’s allegations aside, it remains that the initial medical assessment, including any diagnoses, x-rays, and examination, are vital to the case.

More troubling is counsel’s other assertion that “there were other drivers from New York distributors who witnessed the accident ...” (Weber Affirmation ¶ 21). This is in brazen contradiction to counsel’s Affirmation in Opposition to Motion to Dismiss of March 13, 1985, where counsel declared “11. Other than the Defendant, Jean Rouleau, there are no other witnesses to the accident.” These New York citizen eyewitnesses are not alleged to be newly discovered, they are not named, and their number is unspecified. The Court is not certain that counsel is dealing with the Court in a forthright and candid manner, and reminds counsel of Rule 11, Fed.R. Civ.P. The Court also reminds counsel that under the 1983 amendment, the Court can impose sanctions against an attorney or party who violates Rule 11. In any event, the vague and conflicting allegations as to the existence of New York witnesses are not fully credible and are not sufficient ground for altering the Court’s decision on the private interest factors.

Plaintiffs next address the issue of enforceability of judgment. This argument merely repeats the largely speculative assertions made in the first motion that Mart-let, La Brasserie, and Molson are pretty much one and the same thing and a judgment by this Court against La Brasserie can be executed against Martlet. By the same token, plaintiffs argue that La Brasserie is unquestionably subject to personal jurisdiction in this forum. The Court remains as before: unconvinced.

In addition, plaintiffs appear to have concluded that this Court can and will secure Mr. Rouleau’s appearance. The Court will endeavor to make its position pellucidly clear. Mr. Rouleau is not made a party to this action by virtue of his employment by La Brasserie. Path Instruments International Corp. v. Asahi Optical Co., 312 F.Supp. 805, 810 (S.D.N.Y.1970). Jurisdiction over the individual, like the individual’s liability, must be established separately from that of the corporate entity. Moreover, the Court’s subpoena power does not extend to Canada. Assertion of personal jurisdiction over a nonresident involves traditional notions of fair play and substantial justice. International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 99 L.Ed. 95 (1945). In light of that principle and the fact that the Court is powerless to compel Mr. Rouleau’s appearance, it is unwise for plaintiffs to presume that the Court will cajole or command La Brasserie to produce Mr. Rouleau at trial. That plaintiffs commenced this action in a forum that cannot reach Mr. Rouleau is a mistake that neither the Court nor the remaining defendant is obligated to remedy.

The Court concludes that plaintiffs have presented no facts or legal theories that that merit alteration of its private interests analysis under Gilbert and the resulting dismissal for forum non conveniens. It remains that Mr. Rouleau cannot be made a party to this action, that enforcement of a judgment from this Court is uncertain, that jurisdiction over La Brasserie is uncertain, that the inconvenience and expense for transporting witnesses is about evenly balanced between this and a Quebec forum. The Court continues to believe that Quebec is a better forum for adjudication of the plaintiffs’ claims.

III.

Plaintiffs next ask that the dismissal be conditioned on a waiver of the statute of limitations defense. The New York statute of limitations in a tort action for personal injuries is three years. New York CPLR § 214(5) (McKinney 1972). Plaintiffs allege that the applicable Canadian statute of limitations for bodily injury is one year, and cite the Civil Code of Lower Canada §§ 2262, 2261.2 and 1040. The Court has no means at hand to authenticate or verify the statutory provisions other than the Martindale-Hubbell Law Directory law digest volume, which also indicates that the one year statute of limitations applies. VII Martindale-Hubbell Law Directory Quebec Law Digest 17 (1983). Thus, it is reasonably certain that plaintiffs would be subject to a one year statute of limitations in a Quebec court. It is clear that plaintiffs’ December 3, 1984 commencement of this action falls several weeks beyond the Quebec time bar. It is clear that defendant is not waiving the defense voluntarily.

If this action were to proceed in this forum, the Munsells, as residents of New York, could avail themselves of the state’s three year statute of limitations. New York CPLR § 202 (McKinney 1972). The United States Supreme Court in Piper Aircraft Co. v. Reyno declared that the possibility that the law of the more appropriate forum is less favorable to plaintiff should not outweigh the heavy inconvenience imposed on defendant by trial in the chosen forum. 454 U.S. at 249-50, 102 S.Ct. at 262-63. Nevertheless, it is within the Court’s discretion to weigh the unfavorability of the other forum’s law, particularly where it might deprive plaintiffs of any remedy at all. Id. at 254, 102 S.Ct. at 265. And it is within the Court’s discretion to condition dismissal on waiver of the statute of limitations. See id. at 242, 102 S.Ct. at 259; Bailey v. Dolphin International, Inc., 697 F.2d 1268, 1279-80 (5th Cir.1983).

Accordingly, the Court grants plaintiffs’ motion to alter or amend the judgment insofar as the Court conditions dismissal on defendant La Brasserie waiving the applicable Canadian statute of limitations. If defendant does not indicate its consent to so waive within thirty days, the Court will re-open the case, vacating the judgment of dismissal.

The Court believes that the Quebec, Canada forum is by far the better forum for trial for both parties. Nevertheless, the Court has subject matter jurisdiction here, and under the circumstances dismissal for forum non conveniens would work substantial injustice. For the most part, the law should not be about procedural battles, it should be about resolution on the merits of a case. While the statute of limitations serves the interests of justice by laying stale cases to rest, the difference between Canada’s one year limit and New York’s three year limit is not a matter of the substantial merits of the case.

IV.

Plaintiffs motion pursuant to Rule 59(e), Fed.R.Civ.P., is hereby granted and the Court’s earlier judgment is amended to condition dismissal of the action against La Brasserie on defendant’s consent to waive the applicable statute of limitations in a Quebec, Canada forum. This does not alter the judgment as to defendant Rouleau. Defendant has thirty days in which to indicate whether it will consent to waive the applicable statute of limitations.

SO ORDERED.


author: GUNN, District Judge.

text:
    Carla M. GRECO, Plaintiff, v. ABC TRANSNATIONAL CORPORATION d/b/a Air Freight Company, et al., Defendants.
    No. 84-2332C(6).
    United States District Court, E.D. Missouri, E.D.
    Dec. 18, 1985.

      Michael S. Geigerman, Clayton, Mo., for plaintiff.
    Joseph H. Mueller, John A. Michener, Michael Swafford, St. Louis, Mo., for defendants.
   MEMORANDUM

GUNN, District Judge.

Plaintiff brought this action to recover for injuries she sustained when she allegedly fell from a ramp while working on a loading dock allegedly owned and operated by defendant Air-a-Way Express (Air-aWay). Plaintiff amended her complaint in July 1985 to add Pilot Air Freight (Pilot) as a defendant, alleging an agency relationship between Pilot and Air-a-Way. Pilot asserts that the relationship that existed between the parties defendant at the time of the accident was that of employer/independent contractor and moves for summary judgment on the ground that it cannot be held liable for the negligence of Air-aWay on a theory of respondeat superior. Because the Court finds that plaintiff has failed to support its allegations of agency with any evidence tending to create a genuine factual issue for trial, Rule 56, Fed.R. Civ.P., the Court concludes as a matter of law that Air-a-Way acted as an independent contractor. Since, therefore, no recovery may be had against Pilot for the alleged negligence of Air-a-Way, the Court sustains defendant’s motion for summary judgment.

At the outset, the Court notes “that summary judgment is an extreme remedy, not to be employed unless the movant has established his right to a judgment with such clarity as to leave no room for controversy and that the other party is not entitled to recover under any discernible circumstances. Ozark Milling Co. v. Allied Mills, Inc., 480 F.2d 1014 (8th Cir.1973) and cases therein cited.” Steele v. Armour & Co., 583 F.2d 393 (8th Cir.1978), citing Lyons v. Board of Ed. of Charleston, 523 F.2d 340, 347 (8th Cir.1975). The Court also notes “its salutory purpose in avoiding a useless, expensive, and time consuming trial where there is no genuine, material fact to be tried.” Id.

Defendant Pilot is a Pennsylvania corporation engaged in the freight forwarding business. Pilot arranges for the shipment of freight at the request of consignors to locations throughout the United States for ultimate delivery to consignees. In furtherance of this business, Pilot has contracted for the services of Air-a-Way, which makes ultimate delivery of shipments forwarded by Pilot, among others, to consignees in the St. Louis area.

Missouri law, which controls in this diversity action, distinguishes between a servant/agent and an independent contractor. See generally Corder v. Morgan Roofing Co., 350 Mo. 382, 166 S.W.2d 455 (1942). An independent contractor “is a person who contracts with another to do something for him, but who is not controlled by the other nor subject to the other’s right to control with respect to his physical conduct in the performance of the undertaking.” Id. 166 S.W.2d at 457, citing RestAgency § 239. Where a party acts as an independent contractor in undertaking the act giving rise to the injury alleged, liability of the other contracting party cannot flow from a theory of respondeat superior. Corder, supra, 166 S.W.2d at 457.

The determination whether a individual acts as an agent or an independent contractor in a particular employment context turns on a factual evaluation focusing on the level of control by the alleged principal over the activity of the purported agent. Factors to be considered in making this evaluation are set forth in the Second Restatement of Agency, § 220, and include

1) the extent of control exercised by the master;
2) whether the employer of the workman supplies the instrumentalities, tools and places of work for the persons doing the work;
3) the method of payment for the work; and
4) whether the work is part of the regular business of the employer.

In the instant case, it appears to the Court that defendant Pilot contracted with Air-a-Way as an independent business enterprise to make deliveries of shipments forwarded by Pilot to the St. Louis area. The affidavit of William Colbert, vice president of Pilot, submitted to the Court in support of defendant’s motion, avers that no representative of Pilot ever visited or inspected the premises of Air-a-Way prior to the time of the accident giving rise to this suit. The affidavit further attests that Pilot never controlled the business of Air-aWay, did not supply the instrumentalities or place of work for the enterprise, and exercised no supervisory control over the employees of Air-a-Way. Finally, Mr. Colbert’s affidavit asserts that Air-a-Way billed Pilot on a weight-per-delivery basis. See affidavit of William Colbert, attached to defendant’s motion for summary judgment.

While Rule 56 will not permit “trial by affidavit” in place of a full trial on the merits where material facts are in dispute, Marion County Co-op Assn. v. Carnation Co., 114 F.Supp. 58 (W.D.Ark.1953), aff'd, 214 F.2d 557 (8th Cir.1954); 10A Wright & Miller Federal Practice & Procedure § 2738, the Court in ruling on a motion for summary judgment may appropriately consider affidavits tending to establish that no genuine factual controversy is present in the case. Id. Defendant Air-aWay has admitted the facts averred in Mr. Colbert’s affidavit. See response of defendant Air-a-Way to request for admissions of defendant Pilot, attached to defendant’s motion for summary judgment. The Court recognizes that “[generally, the relationship of principal-agent or employer-employee is a question of fact to be determined by the jury when, from the evidence adduced on the question, there may be a fair difference of opinion as to the existence of the relationship.” Smoot v. Marks, 564 S.W.2d 231, 236 (Mo.App.1978). The relationship becomes a question of law only “... where the material facts from which it is to be inferred are not in dispute and only one reasonable conclusion can be drawn therefrom.” Id. This Court concludes that the undisputed facts in this case establish the relationship between Pilot and Air-a-Way as that of employer/independent contractor as a matter of law.

The sole evidence plaintiff has presented to the Court in opposition to defendant’s motion is the deposition testimony of Walter Deichmann, husband of the president of Air-a-Way and an employee of that company. In his deposition Mr. Deichmann asserted, “We handled for Pilot Air Freight because we are their agent. We are their agent here in St. Louis.” See Walter Deichmann deposition, p. 45. While the sworn testimony of an agent may be competent evidence to establish his agency, see Cameron Mutual Insurance Co. of Missouri v. Bouse, 635 S.W.2d 488, 491 (Mo.App.1982); Southwestern Bell Telephone Co. v. Roussin, 534 S.W.2d 273 (Mo. App.1976), the Court does not deem Mr. Deichmann’s testimony adequate to rebut the substantial evidence submitted by defendant establishing facts contradictory to a finding of agency. The Court has no evidence before it suggesting that Mr. Deichmann has the authority to speak for Air-a-Way, and in view of the corporation’s admissions, the Court finds that plaintiff has failed to proffer sufficient evidence to raise a genuine factual issue with respect to the business relationship between Pilot and Air-a-Way. See Steele, supra at 397.

Plaintiff having failed to offer evidence sufficient to create a factual issue requiring resolution at trial, this Court holds that defendant is entitled to judgment as a matter of law.

      . Plaintiff has also directed the Court to a number of cases establishing the liability of a common carrier for the safe delivery of goods or passengers when part of a journey is contracted out to another company. The Court finds these cases inapposite to the instant action, which involves allegations of personal injury suffered at the place of business of a contracting company and does not make claims for damage or injury in transit.


author: FUSTE, District Judge.

text:
    UNITED STATES of America, Plaintiff, v. Jose E. PANZARDI-ALVAREZ, a/k/a “Polo”; Gloria Nieves-Baez; Hector Arnaldo Reyes Andujar; Nestor Manuel Cancel Hernandez; Angel Alberto Rosario Hernandez, a/k/a “Galo”; Jose Del Valle Soledad, Defendants.
    Crim. No. 85-493 (JAF).
    United States District Court, D. Puerto Rico.
    Dec. 6, 1985.
    Peter John Porrata, Old San Juan, Puerto Rico, for defendant.
    Lydia Lizarribar, Asst. U.S. Atty., San Juan, Puerto Rico, for the United States.
   EXPANDED ORDER AND OPINION

FUSTE, District Judge.

The controversy before us deals with the constitutional validity of Rule 204.2 of the Local Rules of the United States District Court for the District of Puerto Rico. Attorney Charles G. White has been granted the privilege to appear pro hac vice in a criminal trial pending before this Court. Now, Mr. White requests a second grant of appearance as non-resident attorney to legally represent defendant José E. PanzardiAlvarez, who stands accused of conspiracy to murder a witness involved in two criminal cases pending before this Court. Attorney White alleges that our local Rule 204.2, as it reads, is in contravention to the Sixth Amendment of the Constitution of the United States, as it denies defendant the services of his counsel of choice.

Local Rules for the District of Puerto Rico

Said Rule 204.2 was enacted under the duty of all Federal Courts to structure and control practice and procedure of participants before it as required by 28 U.S.C. §§ 2071 and 1654. Such enacting function is integral to the character of the judicial system itself. Triplett v. Azordegan, 421 F.Supp. 998, 1001 (D.C.Iowa 1976). It has been recognized that the right to control admission to practice before the Federal Courts in Puerto Rico is inherent in the United States District Court for the District of Puerto Rico. In re Berkan, 92 F.R.D. 382 (D.C.P.R.1981).

The power of the Court to regulate said appearances and procedures rests in broad discretion. We recognize that the discretion given is not absolute nor unqualified. It must have as frame of guidance the Constitution of the United States and the applicable Federal laws. Sanders v. Russell, 401 F.2d 241 (5th Cir.1968); U.S. v. Dinitz, 538 F.2d 1214 (5th Cir.1976).

Rule 204.2 recognizes in this jurisdiction the privilege of a non-resident attorney to request permission to appear pro hac vice subject to procedural requirements. One of these requirements, and the one in question here, is that the attorney who requests such appearance is limited to only one in the applicable calendar year.

Petitioner claims that said impediment is in violation of the defendant’s right to elect counsel of his own choice, guaranteed under the Sixth Amendment. We now hold that such standpoint is not meritorious.

The cases cited by petitioner in support of his petition are highly distinguishable from the case at issue. In Sanders, supra, the case arose in the context of the 1960’s Civil Right’s movement toward achieving racial equality and the court highly emphasized the fact that the state forum was reluctant to see these cases. The court stated:

It is no overstatement that in Mississippi and the South generally negroes with civil rights’ claims or defenses have often found securing representation difficult.

Sanders v. Russell, 401 F.2d at 247.

Under the particular circumstances of the Sanders case — the fact that they could not find legal representation in the local forum — the court held that “it is imperative that [the] local rule not be applied.”

The other relevant case cited by petitioner is also based on the 1960’s Civil Rights’ movement and the adverse state forum of Mississippi. Leften v. City of Hattiesburg, Mississippi, 333 F.2d 280, 285 (5th Cir.1964). Requiring that in order not to deprive defendants of counsel assistance, the court did not apply the local rules.

The Sixth Amendment does grant a defendant the absolute right to be fairly and adequately represented by legal counsel in criminal proceedings against him. We recognize that this right is absolute. There are, however, some limits to the constitutional right to be heard through a counsel of one’s choice that is not from the local forum. U.S. v. Dinitz, 538 F.2d 1214, 1219 (5th Cir.1976). Moreover, the practice of allowing an out-of-state lawyer the privilege of appearing upon motion pro hac vice has not been recognized as a right “granted either by statute or the constitution”. Leis v. Flynt, 439 U.S. 438, 99 S.Ct. 698, 58 L.Ed.2d 717 (1979). In other words, what the Sixth Amendment guarantees is the right for effective assistance of counsel, Ross v. Moffit, 417 U.S. 600, 94 S.Ct. 2437, 41 L.Ed.2d 341 (1974); U.S. v. Dinitz, 538 F.2d 1214; Leis v. Flynt, 439 U.S. 438, 99 S.Ct. 698, 58 L.Ed.2d 717 (1979), not a right of defendants to impose upon the court the admission under all circumstances of a nonresident attorney pro hac vice. This power rests within the discretion of the court. Leis v. Flynt, supra.

Conclusion

The United States District Court of Puerto Rico has set clear standards and requirements under which a non-resident attorney may request the privilege of appearing pro hac vice. These are objective and non-arbitrary criteria that must be complied with. We recognize that under the circumstances of the present case, there are no facts which justify waiving the “onee-in-a-year appearance” requirement. The “fact” that Charles G. White is a lawyer in good standing in Florida does not carry with it the right to practice law anywhere else. See In re Michael Rappapoint, Petitioner, 558 F.2d 87 (2nd Cir.1977). We recognize defendant’s right to counsel under the Sixth Amendment, and we do not intend to alter or interfere with such right, but on the other hand, the right to counsel cannot be manipulated so as to interfere with the fair administration of justice. In re Michael Rappapoint, supra; In the Matter of Julian J. Roberts, 682 F.2d 105 (3rd Cir.1982). As stated in Ross v. Reda, 510 F.2d 1172 (6th Cir.1975),

This guarantee [Sixth Amendment] does not grant the unconditional right to representation in a state court by a particular out-of-state attorney.

Defendant Panzardi-Alvarez has available the presence of other competent counsel in this forum. He should seek their assistance.

This expanded order supports our Order of December 4, 1985 denying Mr. White’s admission pro hac vice.

IT IS SO ORDERED.

      . This case dealt with a removal petition, which was denied by the District Court based on the fact that the lawyer who requested it was not a member of the Bar of the Southern District of Mississippi.

      . Fact that has not been proven to this Court, since his petition to appear pro hac vice lacked a certificate of good standing.


author: HUYETT, District Judge.

text:
    UNITED STATES of America v. John D. JONES, a/k/a Jack Jones.
    Crim. A. No. 82-366.
    United States District Court, E.D. Pennsylvania.
    March 31, 1983.
    JoAnne A. Epps, Asst. U.S. Atty., Philadelphia, Pa., for plaintiff.
    Wallace C. Worth, Jr., Allentown, Pa., for defendant.
   MEMORANDUM

HUYETT, District Judge.

In this criminal matter, defendant John D. Jones a/k/a Jack Jones has been charged with violations of 18 U.S.C. §§ 2315 and 2313. The government alleges that the defendant has received motor vehicles stolen from interstate commerce and that he has sold goods stolen from interstate commerce. Jones is also charged with mail fraud, in violation of 18 U.S.C. § 1314.

The defendant retained the firm of Wallace C. Worth, Jr. to represent him. Before me is the government’s motion to disqualify Worth from representing or participating in the representation of the defendant because Worth previously represented a key government witness, Henry Krotzer. I held a hearing and issued my order and decree granting the government’s motion. This memorandum constitutes my findings of fact conclusions of law, and statement of my reasons for ruling as I did.

Henry Krotzer testified at the hearing. I found him to be a credible witness. He was candid and answered the questions of counsel in an open and forthright manner.

Henry Krotzer and John Jones had known each other for a period of twenty years. Jones operated Jones’ Truck Sales, where he employed Krotzer from approximately 1978 until 1982. Jones bought and sold used tractor trailer and truck parts. Krotzers’ employment related to this operation. Krotzer left Jones’ employ after the events described below.

On September 28, 1982, Krotzer was arrested on state charges, which included receiving stolen property, unauthorized use of a motor vehicle, conspiracy and falsification of an identification number. Jones was named in the state charges as a co-conspirator. Following his arrest, Krotzer voluntarily agreed to provide information to the FBI concerning Jones. Jones was indicted by a federal grand jury on the present federal charges on November 9, 1982. One vehicle, an International Harvester tractor, identification number D4227HHA10108, forms the basis for one of the three state charges against Krotzer and counts 3 and 4 of the federal indictment against Jones.

Worth’s representation of Krotzer preceded Krotzer’s arrest in September. In June, 1982, pursuant to a state search warrant, Krotzer’s trucks were searched and impounded by Pennsylvania State Police. Krotzer discussed the matter with Jones, his employer. Jones told Krotzer that if the Pennsylvania State Police were to arrest him as a result of the search, he should call Worth and Jones immediately. This was the second time that Jones arranged to have Worth represent Krotzer in matters relating to Krotzer’s business activities with Jones.

The first time that Worth was hired by Jones to represent Krotzer involved the repossession of a truck which Jones told Krotzer he would attempt to get returned to him. To effect this return, Jones told Krotzer he had retained Wallace Worth, who had represented Jones on several prior occasions over a two-year period. As he was instructed by Jones, Krotzer went to Worth’s office to sign papers in blank in connection with Worth’s efforts to have the truck returned. He did not speak to Worth on that occasion.

Upon his arrest on September 28, 1982, Krotzer asked his wife to call Jones and have Jones contact Worth, as was prearranged. When Krotzer arrived at the police station, he received a call from Worth, who advised him to remain silent. Krotzer was released on his own recognizance.

After his release, Krotzer went to discuss the matter with Jones. According to Krotzer, Jones instructed him not to tell anyone what he knew about the allegations contained in the state complaint, or of Jones alleged involvement in the events stated in the charges. Following their conversation, Jones took Krotzer to the office of Worth.

Present at the meeting were Wallace Worth, Diane Dixon, Esquire, Worth’s associate, Krotzer and Jones. Worth asked Krotzer whether he knew anything about the charges against him. Krotzer responded that he knew about the Lincoln automobile mentioned in one of the complaints. According to Krotzer, as he began to explain, he was interrupted by a “dirty look” from Jones, which reminded him of Jones’ alleged prior warning not to admit knowledge of the events to anyone. Worth continued to question Jones and Krotzer about various cars, trucks and parts mentioned in the complaint. Jones answered Worth’s questions regarding the items, explaining how he and Krotzer acquired them, and Krotzer agreed with Jones’ explanations. Although he now states that he believed Jones was not being truthful in his responses, Krotzer states that he did not object because of Jones’ warning not to reveal to anyone his knowledge of the alleged events.

As the meeting ended, Worth agreed to represent Krotzer at the preliminary hearing on the charges. Jones agreed to pay Worth for all of Krotzer’s legal expenses. Jones and Jones’ wife accompanied Krotzer to the first hearing, on two of the three state charges, held on October 6, 1982 before Magistrate James Stahl. Worth was also present. Krotzer believed Worth was acting as his attorney and would represent his interest. At the hearing testimony was given by several witnesses. Some of the witnesses’ testimony incriminated Jones, as well as Krotzer, in the alleged activities. Throughout the hearing Worth acted as if he were representing the interests of both Jones and Krotzer. He vigorously cross-examined the witnesses about Jones. Although Jones was not a defendant at the hearing, Worth objected when some testimony was elicited regarding Jones.

Prior to the second preliminary hearing, which was held on November 19, 1982, Krotzer went to the Lehigh County Public Defenders’ office to seek another attorney because he felt he could not trust either Jones or Worth. Krotzer stated that he had overheard a telephone conversation by Jones regarding truck parts in which Jones told the caller he had acquired the parts from Henry Krotzer. Krotzer believed Jones was trying to place the blame for a stolen motor on him, by saying he purchased it from Krotzer, when this was not in fact true. Additionally, Krotzer stated that he had become uneasy because of the statements that Jones made to Worth at the meeting on September 29, 1982 about Krotzer’s involvement in the activities underlying the state charges. Krotzer stated that he believed that Worth could not defend both of them. Krotzer feared that because Jones was paying Worth, and Worth had represented Jones in other matters, Worth would represent Jones more diligently than he would represent Krotzer.

Worth attempted to contact Krotzer to prepare for the second preliminary hearing on November 19, 1982, however, he did not speak to Krotzer prior to that hearing. Krotzer arrived at the hearing with two attorneys from the Public Defenders’ office. At the hearing, Krotzer told Worth that he no longer wanted Worth to represent him.

On November 9, 1982, the federal grand jury returned the present indictment against John Jones.

The government contends that the continued representation of Jones by Worth would be improper because of an actual or apparent conflict of interest. It asserts that Worth may be forced to reveal a confidential communication by Krotzer in his representation of Jones because Worth represented Krotzer in a criminal matter closely related to the federal charges now pending against Jones. The government further asserts that Worth’s former relationship with Krotzer will make it impossible for him to represent Jones with the independence of judgment required by the sixth amendment.

The defendant argues that no conflict of interest is present because no confidential communication took place ever between Worth and Krotzer. The defendant also contends that Jones’ presence in Worth’s office during the meeting between Krotzer and Worth precludes such a finding.

Conversations between a client and his attorney are not privileged where there is a non-essential third-party present. Johnson v. United States, 542 F.2d 941, 942 (5th Cir.1976), cert. denied, 430 U.S. 934, 97 S.Ct. 1559, 51 L.Ed.2d 780 (1977); C. McCormick Evidence § 91, at 188 (2d ed. 1972). It does not follow from this rule of law, however, that the presence of a third-party necessarily vitiates the attorney-client privilege. For example, the presence of employees of the attorney does not destroy the confidentiality of the conversation. See United States v. United Shoe Machinery Corp., 89 F.Supp. 357, 358 (D.Mass.1950). Similarly, when two persons accused of a joint criminal undertaking meet with an attorney representing both, the presence of one client should not affect the other client’s right to confidentiality. Accordingly, individuals who are alleged to have been involved together in criminal activity must be able to seek legal advice and speak freely with counsel without fear that their disclosures will be used against them in subsequent proceedings.

Jones’ presence at the meeting with Krotzer and Worth on September 29, 1982 does not destroy the confidential nature of the meeting and the information disclosed to Worth. Krotzer and Jones each believed that the other was an essential party to this meeting because the subject of the meeting related to their joint activity. Jones and Krotzer had known each other for many years. Krotzer worked for Jones at Jones’ Truck Sales for several years prior to his arrest. The allegations in the state complaint related to Krotzer’s and Jones’ business activities. Although he had not been arrested on state charges at that time, Jones was named as a co-conspirator in the state charges filed against Krotzer. It is apparent that Jones and Krotzer believed themselves to be implicated together in the events. The present federal indictment of Jones refers to one of the same vehicles which formed the basis of the state charges against Krotzer. Additionally, Jones stated that he had an interest in two of the trucks impounded as a result of Krotzer’s arrest. The circumstances of the first preliminary hearing also demonstrate that all parties believed that Jones and Krotzer were implicated together, and were presenting one defense. Jones accompanied Krotzer to the state preliminary hearing, at which Worth acted as if both Krotzer and Jones were his clients. By his cross-examination of the witnesses he not only protected Krotzer’s interests, but Worth also challenged testimony which appeared to implicate Jones.

Additionally, Jones and Krotzer each understood that Worth was representing both of them. Krotzer knew Worth was Jones’ attorney. Jones had arranged for Worth to represent Krotzer. Jones advised Krotzer what to do if he was arrested and how to handle his defense. Krotzer believed that Worth was his attorney and would protect his interests. He also expected that the disclosures made would not be revealed to anyone not present at the meeting. I conclude that a confidential relationship existed between Worth and Krotzer.

The defendant also contends that Krotzer disclosed no confidential information to Worth. Upon Worth’s initial questions to Krotzer at the meeting on September 29, 1982, Krotzer told Worth that he had knowledge of the allegations contained in the complaint regarding one of the automobiles, a white Lincoln. Following this statement, Krotzer permitted Jones to respond to Worth’s questions and communicated to Worth his assent to Jones’ responses. This conduct by Krotzer constitutes confidential communications to Worth.

In United States v. Flanagan, 679 F.2d 1072 (3d Cir.1982), cert. granted, 459 U.S. 1101, 103 S.Ct. 721, 74 L.Ed.2d 948 January 10, 1983, our court of appeals held that where an actual conflict of interest is very likely to materialize, disqualification of defense counsel is an appropriate measure. Id. at 1076. While Flanagan involved the joint representation of co-defendants by one firm, I believe that the facts of this case are analogous to those in Flanagan. In this case Worth has, in effect, represented two persons allegedly involved in a joint undertaking which has resulted in criminal charges. Even though Jones had not been formally charged by the state, he was named as a co-conspirator throughout the state charges against Krotzer. Those state charges are very closely related to the federal charges now pending against Jones.

I am gravely concerned that a conflict of interest is very likely to arise in this case, either at trial or before trial during plea bargaining, because of Worth’s representation of Krotzer. Because a conflict is very likely to materialize during these proceedings, Worth must be disqualified as Jones’ attorney. The fact that Krotzer subsequently retained other counsel does not preclude Worth’s disqualification. A serious potential for conflict is still present. See United States v. Garafola, 428 F.Supp. 620, 622-23 (D.N.J.1977), aff'd sub nom. United States v. Dolan, 570 F.2d 1177 (3d Cir.1978). The government has stated that it intends to call Krotzer as a government witness at trial. Because of his employment by Jones, his alleged involvement in the events and his knowledge of the items contained in the charges, Krotzer will be an important government witness in its trial against Jones. It appears to me that Worth cannot effectively cross-examine Krotzer in light of their prior confidential relationship. Mr. Worth cannot ask Krotzer questions on cross-examination regarding any of the confidential disclosures he made during Krotzer’s meeting with Jones and Worth on September 28, 1982 without touching upon matters protected by the attorney-client privilege. As his testimony at the hearing demonstrated, Krotzer is likely to testify to facts different from those related to Worth by Krotzer and Jones at the meeting on September 28, 1982. While Krotzer now states that he believed the information provided by Jones at the meeting to be false, he did not tell Worth this. Krotzer now explains that his failure to disagree with Jones was based upon alleged prior warnings from Jones and a threatening look by Jones at the meeting. Worth would be faced with a former client testifying to facts inconsistent with those disclosed to him in a confidential communication. Worth would be tempted to use the prior inconsistent statements made by Krotzer when he assented to Jones statements at the meeting to impeach Krotzer, in an effort to zealously defend Jones. It is also possible that Worth, aware of his obligation to his former client, would overcompensate and be less than zealous in his cross-examination of Krotzer thereby denying Jones his sixth amendment right to effective assistance of counsel. See, United States v. Garafola, 428 F.Supp. 620 (D.N.J.1977), aff'd sub nom. United States v. Dolan, 570 F.2d 1177 (3d Cir.1978).

Despite Jones’ present desire to have Worth represent him at this criminal trial, Jones, if convicted, may later become dissatisfied with Worth’s representation and move for a new trial, alleging he was denied effective assistance of counsel. If Worth were permitted to continue as Jones’ counsel, any plea agreement reached with the government might also be vulnerable to a subsequent attack by Jones on the same grounds. Jones could challenge any such agreement on the ground that it was the result of possible pressure on Jones or Worth to plead guilty rather than go to trial, at which a conflict of interest would crystallize.

My decision does not abrogate Jones’ sixth amendment rights. While the sixth amendment grants a criminal defendant the unqualified right to assistance of counsel, it does not provide him with an absolute right to the counsel of his choice. Davis v. Stamler, 650 F.2d 477 (3d Cir. 1981). A criminal defendant’s right to be represented by the counsel of his choice must be balanced against the public’s interest in a fair criminal proceeding, free from future attacks. See United States v. Flanagan, 527 F.Supp. 902, 906 (E.D.Pa.1981), aff'd, 679 F.2d 1072 (3d Cir.1982), cert. granted, 459 U.S. 1101, 103 S.Ct. 721, 74 L.Ed.2d 948 (1983). This is not a case in which the nature of the conflict is highly speculative. I have carefully considered the circumstances of this case and find that an actual conflict of interest is very likely to arise before the end of the defendant’s trial. The sixth amendment guarantees all criminal defendants “the assistance of counsel for his defense.” Such assistance must be “untrammeled and unimpaired.” Glosser v. United States, 315 U.S. 60, 70, 62 S.Ct. 457, 465, 86 L.Ed. 680 (1942). If Worth continued to represent the defendant, it is likely that a conflict of interest would arise during the trial proceedings, and therefore the defendant would not receive independent assistance of counsel as required by the sixth amendment.

For the reasons stated above, I concluded that Worth’s continued representation of Jones is very likely to lead to an actual conflict of interest in this case. Worth must, therefore, be disqualified from representing the defendant. Accordingly, I granted the government’s motion.


text:
    Basil E. BECKELHIMER, et ux., Plaintiffs, v. UNITED STATES of America, et al., Defendants.
    Civ. A. No. 3:84-1169.
    United States District Court, M.D. Tennessee, Nashville Division.
    Jan. 31, 1985.
    Finding and Direction March 12, 1985.
    Basil E. and Joe Ann Beckelhimer, pro se.
    Paul M. Predmore, Washington, D.C. and Joe Brown, U.S. Atty., Nashville, Tenn., for defendants.
   MEMORANDUM OPINION, FINDINGS AND ORDERS

NEESE, Senior District Judge, Sitting by Designation and Assignment.

This is another pro se civil action challenging the assessment by the Internal Revenue Service (IRS) of a $500 civil-penalty against the plaintiffs for filing a “frivolous” tax-return. 28 U.S.C. §§ 1340, 1346(a); 26 U.S.C. §§ 6703(c), 7422(a). The event which triggered such action on the part of the IRS was the filing by the plaintiffs of an “Amended U.S. Individual Income Tax Return” (Form 1040X) on which they sought to reduce their federal income-tax liability for the calendar year 1980 by decreasing substantially the amount they had reported as taxable-income on their original return for that year. In support of their amended return and claim for a refund, the plaintiffs resurrected the long-defunct argument that wages (or salary) (that is, monetary compensation received in return for personal services rendered) did not constitute “income” and therefore was not subject to the federal income-tax.

This Court has ruled that wages and salary are taxable-income; that any contention to the contrary is patently frivolous; that any document which purports to be a federal income-tax return (or an amended return) and which attempts to reduce one’s tax-liability by excluding wages or salary from taxable-income, on the ground that they do not constitute taxable-income, is frivolous within the meaning of 26 U.S.C. § 6702(a); and that where one has filed such a document with the IRS, the assessment of the $500 civil-penalty mandated by § 6702(a), supra, is proper. Hill v. United States, 599 F.Supp. 118 (D.C.Tenn.1984). The Court also forewarned other litigants who might persist in claiming that wages or salary are not taxable-income that they risk being assessed with a reasonable attorney’s fee in favor of the United States because “ * * * it is highly unlikely that any similar lawsuit could be maintained in anything other than bad faith.” Ib., 599 F.Supp. at 122.

For the reasons set forth in Hill v. United States, supra, the Court concludes that the plaintiffs herein have failed to state a claim upon which relief can be granted. Accordingly, the motion of the defendant for a dismissal of this action, Rule 12(b)(6), F.R.Civ.P., hereby is

GRANTED, and this action hereby is

DISMISSED for the failure of the plaintiffs to state a claim upon which relief can be granted.

Additionally, the Court FINDS that this action was frivolous and was maintained by the plaintiffs in bad-faith. Thus, the United States is entitled to recover, as a part of its costs herein, a reasonable attorney’s fee and related expenses under 28 U.S.C. § 2412(a) and the bad-faith exception to the American rule, generally denying such recovery in the absence of a contractual or statutory provision therefor. See Reed v. United States, 581 F.Supp. 718, 720-721 (D.C.Col.1984); Lovell v. United States, 579 F.Supp. 1047,1049 (D.C.Wis.1984); Tibbetts v. Secretary of the Treasury, 577 F.Supp. 911, 915[6] (D.C.N.C.1984); Collorafi v. United States, 579 F.Supp. 506, 507[2] (D.C.N.Y.1983); cf. Perkins v. Commissioner of Internal Revenue, 746 F.2d 1187, 1188-1189[4] (6th Cir.1984).

Counsel for the defendant will file forthwith his declaration under penalty of perjury, see 28 U.S.C. § 1746, itemizing the number of hours he expended in representing his client in this proceeding, the approximate hourly-rate at which the United States has compensated (or will compensate) him for such representation, and any expenses incurred in such representation. The plaintiffs will be allowed 5 days after such filing'in which to submit any desired response. Entry of a final judgment will await the Court’s determination of the amount of allowable attorney’s fee.

FINDING AND DIRECTION

The Court hereby FINDS that $114.99 constitutes a reasonable attorney’s fee and related expenses by the United States of America in its defense of this action. Accordingly, judgment will be entered by the clerk, dismissing this action for the failure of the plaintiffs to state a claim upon which relief can be granted herein and awarding the defendant its costs of action, including $114.99 in reasonable attorney’s fees and related expenses. Rule 58(1), F.R.Civ.P.

      . The Internal Revenue Service is not a proper party defendant herein and, as to such defendant, this action hereby is DISMISSED sua sponte for the failure of the plaintiffs to state a claim upon which relief can be granted. 26 U.S.C. § 7422(f); Myers v. Davis, 467 F.Supp. 8, 9 n. 2[2] (D.C.Tenn. 1978).

        . “Unless expressly prohibited by statute, a court may award reasonable fees and expenses of attorneys, in addition to the costs which may be awarded pursuant to subsection (a), to the prevailing party in any civil action brought by or against the United States or any agency and any official of the United States acting in his or her official capacity in any court having jurisdiction of such action. * * * ” 28 U.S.C. § 2412(b).


author: FRYE, District Judge.

text:
    Stephanie E. FORSBERG, individually and on behalf of all similarly situated persons, Plaintiff, v. PACIFIC NORTHWEST BELL TELEPHONE CO., a Washington corporation, Defendant.
    Civ. No. 84-1401-FR.
    United States District Court, D. Oregon.
    March 29, 1985.

      Dan O’Leary, Robert K. Udziela, Pozzi, Wilson, Atchison, O’Leary & Conboy, Henry Kantor, Delo, Kantor & Stamm, Portland, Or., for plaintiff.
    Lester V. Smith, Jr., Kenneth E. Jernstedt, David H. Wilson, Jr., Corbett Gordon, Bullard, Korshoj, Smith & Jernstedt, P.C., Portland, Or., for defendant.
   OPINION AND ORDER

FRYE, District Judge.

This is an action on behalf of an alleged class of approximately 300 employees and former employees of the defendant, Pacific Northwest Bell Telephone Co. (PNB), in the position of “Maintenance Administrator” (MA). The complaint alleges sex discrimination in wage rates and retaliatory acts after administrative discrimination complaints were filed. Violations of Title VII, the Federal Equal Pay Act, the Oregon Fair Employment Practices Act, the Oregon Equal Pay Act, and an Oregon wage claim statute are asserted.

The allegations of pay discrimination are as follows:

Plaintiff is employed by defendant as a maintenance administrator. The primary work done by maintenance administrators was previously done by an employee group that was predominantly male, who bore the title “test desk technician,” until about March 7, 1983, when the work was transferred to maintenance administrators.
Plaintiff and other maintenance administrators have requested that defendant pay them compensation equal to that previously paid to the predominantly male group of test desk technicians, and defendant has refused, thus committing an unlawful employment practice ...

Plaintiff’s Complaint, Paragraphs 15 and 17.

The matters before the court are defendant’s motion to join additional parties and motion to dismiss.

MOTION TO JOIN PARTIES

PNB moves the court pursuant to Fed.R. Civ.P. 19, 20, and 21 for an order requiring joinder of the Communication Workers of America and Communication Workers of America, Locals 9201, 9204, 9206, and 9208 (CWA) as parties defendant.

PNB contends that the wage rates of MAs alleged to be discriminatory were negotiated and agreed to by the CWA and fixed by the wage schedule in the collective bargaining agreements between the CWA and PNB. PNB argues that joinder of the CWA is mandatory under Fed.R.Civ.P. 19 because (1) if the alleged pay discrimination is proved, these unions may be liable to plaintiff and the class she seeks to represent for that discrimination; and (2) the relief plaintiff seeks conflicts with the collective bargaining agreement to which the CWA is a party, and if relief is granted it will necessarily affect the terms of the CWA contract.

Plaintiff opposes the proposed joinder on the grounds that she has no complaint against the CWA for negotiating wage rates and classifications for the MAs and the Test Desk Technicians (TDT). Plaintiff says she has no quarrel with the fact that these two classifications exist, but complains of the transfer of work from the higher paid, predominantly male group, to the lower paid predominantly female group, after the fact of the collective bar- gaming. Plaintiff argues that PNB fails to allege that the CWA had anything to do with the transfer of the job task from TDTs to MAs, or had a role in populating the job classifications with predominantly female personnel. Plaintiff submits no affidavit to support her position that the transfer of job tasks occurred after the collective bargaining.

PNB submits afidavits of its staff consultant in the Employee Relations Department stating that the MA title was created in 1980 for a new job operating newly developed and newly installed computerized equipment. The CWA negotiated a wage rate for MAs in the 1980 contract and in the 1983 contract. Before the agreement on the 1980 contract, PNB staff states, CWA was informed in detail of the nature and content of the work of the new MA classification and was informed that the new classification would be filled by the promotion of G-5 clerks — a position known to be predominantly female. Knowing these facts, the affiant declares, the CWA negotiated and agreed to a clerical wage schedule for MAs at the G-8 level (a pay increase for G-5 clerks promoted to the MA positions). The staff consultant’s affidavit is supported by the affidavits of two additional PNB employees attesting to personal knowledge of the facts as presented.

During the 1980 bargaining, the affiant further states, the CWA and PNB formed a Technology Change Committee (TCC) with three members from the company and three members from the CWA which met 21 times prior to 1984 to oversee problems and recommend solutions in the area of technological change. This committee addressed issues of technological change that resulted in this lawsuit.

Further, before agreement on the 1983 contract all MA positions had been filled by promotion of the G-5 clerks, and the computer system which MAs used was in full operation. Knowing these facts — that is, the nature of the MA position work and the sexual composition of the workforce represented — CWA agreed to continue the wage schedule which is now attacked in this action. PNB contends that the CWA must now bear its share of liability, having agreed to the provisions of the contracts that are now attacked as discriminatory.

In the action before the court, a labor union can be joined with the employer for the purpose of sharing liability for discriminatory acts. See e.g., Stevenson v. International Paper Co., 14 F.E.P. 1279, 1294 (W.D.La.1977), and Myers v. Gilman Paper Corp., 14 F.E.P. 218, 225-227 (5th Cir.1977), or be joined with the employer to avoid leaving the employer subject to a substantial risk that the judgment will be inconsistent with the employer’s obligations under the collective bargaining agreement. See e.g. Hodgson v. School Bd., 56 F.R.D. 393, 394 (W.D.Penn.1972), and NOW, St. Paul Chapter v. 3M Co., 73 F.R.D. 467 (D.Minn.1977).

There is no disagreement that the wage rates alleged by plaintiff to be discriminatory were negotiated and agreed to by the CWA in the collective bargaining agreements with PNB. Plaintiff’s allegation that the job duty transfers from TDTs to MAs was after the fact of the collective bargaining agreement and entirely without the knowledge and acquiescence of the CWA is not supported by any fact.

Under these circumstances, the court finds that it is proper to join the CWA and the named locals as defendants under Fed. R.Civ.P. 19 in order to establish any potential liability of the unions as well as to avoid the possibility of inconsistent obligations of PNB.

DEFENDANT’S MOTION AGAINST THE COMPLAINT

Plaintiff asserts five claims for relief under the following statutes: (1) Title VII of the Civil Rights Act of 1964, (2) the Federal Equal Pay Act, (3) Oregon’s Fair Employment Practices Act, (4) Oregon’s Equal Pay Act, and (5) an Oregon wage claim statute. PNB’s motion seeks an order dismissing each of these claims, or, in the alternative, striking portions of them. The court will discuss each of the asserted grounds for relief in turn.

1. Title VII

PNB moves to dismiss plaintiffs claim under Title VII of the Civil Rights Act of 1964 on the grounds that plaintiff has failed to allege that the pay differences between the TDT positions and the MA positions are based on sex discrimination, or that the MA positions are equal or substantially equal to the TDT positions. Defendant asserts that the sketchy and incomplete allegations fail to state a claim under Title VII and provide no basis for determining whether plaintiff seeks to recover under a theory of “comparable worth,” a disparate impact model, or intentional discrimination based upon sex.

Plaintiff contends that she does not need to plead more than her assertions that she is female; that the work of the TDTs had previously been done by a classification of employees predominantly male; that the primary work done by TDTs was transferred to the MA positions which were predominantly held by women; and that the wages of the MA positions were approximately $100 per week less than the wages of the TDT positions. Plaintiff contends that these allegations are sufficient to allege that the positions are substantially equal and that the resultant pay differences are based upon sex and nothing else.

Plaintiff must allege either substantial equality of the TDT and the MA positions or intentional discrimination on the basis of sex in order to state a claim under Title VII. Plaintiff claims to fulfill the requirement of alleging intentional discrimination based upon an allegation of wilfull action in paragraph 21 of her complaint, which states:

Defendant’s violation of Title VII was wilful, justifying an award of punitive damages in the amount of no less than $100,000 to plaintiff and each class member.

This allegation is not sufficient. Even if plaintiff’s Title VII claim is not dismissed for failure to state a claim, the allegation in Paragraph 21 will be dismissed. Punitive damages are not recoverable in a Title VII case. Shah v. Mt. Zion Hospital & Medical Ctr., 642 F.2d 268, 272 (9th Cir.1981). Plaintiff has not alleged intentional discrimination sufficiently to state a disparate treatment cause of action under Title VII.

The allegation of “substantial equality” of the MA and TDT positions presents a more difficult issue. If plaintiff bases her Title VII action “only on a comparison of work performed, [she] would have to show substantial equality.” Spaulding v. Univ. of Washington, 740 F.2d 686, 700 (9th Cir.1984). A court “will not ... infer intent [to discriminate] merely from the existence of wage differences in jobs that are only similar.” Id. Therefore, the court must determine whether plaintiff’s allegations sufficiently state that the positions at issue are substantially equal. Plaintiff alleges that:

The primary work done by maintenance administrators was previously done by an employee group that was predominantly male, who bore the title “test desk technicians,” until March 7, 1983, when the work was transferred to maintenance administrators.

While the burden of establishing a prima facie case under Title VII is not onerous, the sole allegation that the “primary work” done by one position was transferred to another position is not sufficient. The nature of the TDT position is not disclosed in this allegation. Any additional responsibilities are left open for speculation. Any adjustments in the work transferred are left open for speculation. If plaintiff’s claim is that these positions are equal or substantially equal, she must plead that claim and the facts upon which it rests.

Defendant’s motion to dismiss plaintiff's first claim for relief (Title VII) is granted. Plaintiff is granted leave to amend.

PNB moves for partial summary judgment dismissing plaintiff’s claims of retaliation under plaintiff’s Title VII claim. Plaintiff alleges:

On or about November 1, 1983, plaintiff and many other class members filed timely employment discrimination claims against defendant based upon the facts alleged in this complaint with the Equal Employment Opportunity Commission (EEOC) and the Civil Rights Division of the Bureau of Labor and Industries (BLI) of the State of Oregon. Since November 1, 1983, defendant has engaged in retaliatory conduct against the class in reaction to the filing of the employment claims by attempting to coerce class members and their union to withdraw labor grievances and by classifying class members as “surplus” employees, thus subject to lay-off.

PNB claims that these retaliation claims should be dismissed because plaintiff has failed to exhaust her administrative remedies and because plaintiff has failed to allege that she has suffered retaliation. Exhaustion of Administrative Remedies

PNB contends that these retaliation claims should be dismissed because plaintiff does not allege that these or any other retaliation charges were submitted to the Civil Rights Division of the Oregon Bureau of Labor and Industries or the Equal Employment Opportunity Commission (EEOC). Plaintiff responds stating that new claims need not be filed because the allegations are related to the original charge and occurred during the pendency of the charge before the EEOC.

When an employee seeks judicial relief for incidents not listed in his original charge, a federal court may assume jurisdiction over the new claims if they are “like or reasonably related to the allegations of the EEOC charge.” Oubichon v. Northern American Rockwell Corp., 482 F.2d 569, 571 (9th Cir.1973). If closely related incidents occur after a charge has been filed, additional investigative efforts would be redundant. Brown v. Puget Sound Elec. App. & Train. Trust, 732 F.2d 726, 730 (9th Cir.1984). “ ‘To require a second “filing” by the aggrieved party ... would serve no purpose other than the creation of an additional procedural technicality.’ ” Ramirez v. National Distillers & Chemical Corp., 586 F.2d 1315, 1320 (9th Cir.1978), citing Love v. Pullman Co., 404 U.S. 522, 526, 92 S.Ct. 616, 619, 30 L.Ed.2d 679 (1972).

The court finds that it would not be redundant to require the plaintiff to present her claims of retaliation- through the proper administrative channels before presenting them to this court. Allegations of retaliation, although stemming from the filing of the original complaint, involve different actions of the employer. The failure to present these issues administratively subverts the procedures and policies of Title VII. The court will dismiss the allegations of retaliation with leave to plaintiff to amend after the administrative processes have been properly followed.

Plaintiffs Allegations of Retaliation

PNB moves to dismiss plaintiff’s retaliation allegations on the grounds that there is no specific allegation of retaliation against the plaintiff. Plaintiff responds by stating that the complaint alleges that PNB attempted to coerce the union, of which she is a member, to withdraw its grievance, stating an allegation of retaliation specific to her interests.

The United States Supreme Court has repeatedly held that “a class representative must be part of the class and ‘possess the same interest and suffer the same injury’ as the class members.” General Telephone Co. of Southwest v. Falcon, 457 U.S. 147, 156, 102 S.Ct. 2364, 2370, 72 L.Ed.2d 740 (1982), quoting East Texas Motor Freight System, Inc. v. Rodriguez, 431 U.S. 395, 403, 97 S.Ct. 1891, 1896, 52 L.Ed.2d 453 (1977) (quoting Schlesinger v. Reservists Committee to Stop the War, 418 U.S. 208, 216, 94 S.Ct. 2925, 2929, 41 L.Ed.2d 706 (1974). This requirement properly protects the class members from representation by one who does not share their injury and cannot properly present their case.

Plaintiff’s complaint asserts three types of retaliatory conduct by the defendant: (1) attempts to coerce class members to withdraw labor grievances, (2) attempts to coerce the union to withdraw labor grievances, and (3) classifying class members as “surplus” employees, thus subject to layoff. Plaintiff does not state that she was one of the class members allegedly coerced to withdraw labor grievances or reclassified as “surplus.”

The court finds that plaintiff as a member of the union may represent the class members in the allegation that PNB attempted to coerce the union to withdraw its labor grievance. The court finds that plaintiff may not represent class members alleged to be personally coerced to withdraw grievances or classified “surplus” without an allegation that she herself has suffered the same injury. Because plaintiff has failed to allege these injuries, the claims of coercion of individual class members and classification as “surplus” are dismissed.

Front Pay

PNB moves to dismiss the allegation in Paragraph 20 of the complaint which states, “Class members who are no longer employed by defendant are entitled to appropriate damages for ‘front pay.’ ”

PNB claims that there is no basis in law for this claim and asks it be stricken. Plaintiff argues that the allegation is proper because “front pay” can be awarded for loss of future pay to a successful Title VII plaintiff who would be entitled to reinstatement, but is not required to return to a hostile or otherwise unsuitable work environment. Plaintiff maintains that any ruling on this issue would be premature in that the merits of the case have not been determined.

While plaintiff’s legal point is correct, plaintiff and class members in this case have neither asked the court for any relief in the nature of reinstatement nor alleged any improper discharge, and, as a consequence, cannot be entitled to front pay. Plaintiff’s claim for front pay is dismissed.

Punitive Damages

Punitive damages are not recoverable in a Title VII case. Shah v. Mt. Zion Hospital & Medical Ctr., 642 F.2d 268, 272 (9th Cir.1981). Plaintiff’s claim for punitive damages is dismissed.

Jury Demand

Plaintiff’s demand for jury trial under the Title VII action is dismissed. Shah v. Mt. Zion Hospital & Medical Ctr., 642 F.2d at 272.

EQUAL PAY ACT

Because the court has ruled that plaintiff’s complaint fails to properly allege that the MA and the TDT positions are equal or substantially equal, plaintiff’s second claim for relief under the Equal Pay Act is dismissed with leave to amend.

In the event the complaint is amended, the court will address PNB’s further motions as to the Equal Pay Act claim.

Allegation of Establishment

PNB moves to dismiss plaintiff’s Equal Pay Act claim on the grounds that plaintiff in her complaint fails to make an allegation that any TDT is employed in the same establishment where plaintiff is employed or where any other MA is employed.

The Equal Pay Act provides:
No employer ... shall discriminate, within any establishment in which such employees are employed, between employees on the basis of sex by paying wages to employees in such establishment at a ráte that is less than the rate which he pays wages to employees of the opposite sex in such establishment for equal work____ 29 U.S.C. § 206(d)(1), emphasis added.

EEOC regulations define “establishment” as follows:

Each physically separate place of business is ordinarily considered a separate establishment. For example, where a manufacturer operates at separate locations a plant for production of its goods, a warehouse for storage and distribution, several stores from which its products are sold, and a central office for the enterprise, each physically separate place of business is a separate establishment. 29 C.F.R. § 800.108

PNB contends that plaintiff’s failure to allege pay discrimination within any single establishment is fatal to her Equal Pay Act claim and requires dismissal. Plaintiff, citing cases from other jurisdictions, argues that it may be appropriate in certain cases to apply the Equal Pay Act to operations at different physical locations.

This court recognizes that a claim under the Equal Pay Act is generally subject to the “single establishment” limitation defined in 29 C.F.R. § 800.108 and discussed in Bartelt v. Berlitz School of Languages of America, 698 F.2d 1003, 1005-1007 (9th Cir.1983). Equal Pay Act claims must ordinarily be presented and proven within a single establishment. However, the definition of “establishment” contained in the EEOC regulations is not without reservation. The definition states that “each physically separate place of business is ordinarily considered a separate establishment.” 29 C.F.R. § 800.108. While the court will not permit this definition to defeat the spirit and purpose of the Equal Pay Act, the limitation is applicable where special circumstances are not presented. Plaintiff in this action has failed to allege any special circumstances which would obviate the single establishment limitation. This issue should be addressed if plaintiff repleads the Equal Pay Act claim.

Retaliation Allegations

29 U.S.C. § 215(a)(3) makes it unlawful:

To discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this chapter, or has testified or is about to testify in any such proceeding, or has served or is about to serve on an industry committee;

PNB moves to dismiss plaintiff’s claims of retaliation under the Equal Pay Act on the grounds that plaintiff has not engaged in any activity protected by the statute.

To the extent that plaintiff alleges retaliation against herself or against herself through pressure on her union for claims of unequal pay despite equal work instituted by plaintiff or caused to be instituted by plaintiff’s union, her claims are proper. All further allegations are dismissed.

Front Pay

Plaintiff’s claim for front pay is dismissed for the reasons stated in the Title VII claim.

Punitive Damages

PNB moves the court to dismiss plaintiff’s claims for punitive damages under the Equal Pay Act on the grounds that punitive damages are not recoverable under the Act. PNB relies upon the case of Thornberry v. Delta Airlines, 27 F.E.P. 1203, 1205 (N.D.Cal.1976), aff'd on other grounds, 461 U.S. 952, 103 S.Ct. 2421, 77 L.Ed.2d 1311 (1983). Plaintiff contends that Thornberry is not dispositive because plaintiff in Thornberry conceded the issue of punitive damages and the Ninth Circuit has not specifically ruled upon the issue.

While plaintiff is correct in noting that the plaintiff in Thornberry conceded the issue of punitive damages, the court in accepting the concession stated that “[T]he statutory remedy is the sole remedy available to employees for enforcement of rights under the Fair Labor Standards Act.” 27 F.E.P. at 1205. This court, as the court in Thornberry, finds no authority to support plaintiff’s claim for punitive damages under the Equal Pay Act.

Plaintiff’s claim for punitive damages under the Equal Pay Act is dismissed.

Jury Demand

PNB moves the court to strike plaintiff’s jury demand insofar as it relates to her claim for liquidated damages, relying upon the case of McClanahan v. Matthews, 440 F.2d 320, 322 (6th Cir.1971). In McClanahan, the court found an award of liquidated damages was in the sound discretion of the court under the Portal to Portal Act where provisions of the Fair Labor Standards Act (FLSA) were applied.

The court finds that plaintiffs claims for liquidated damages should be tried to the court for the reasons set out by the court in Altman v. Stevens Fashion Fabrics, 441 F.Supp. 1318, 1323 (N.D.Cal.1977).

Class Allegations

PNB moves the court to strike plaintiffs class allegations under her Equal Pay Act claim on the grounds that no class action may be maintained under the Equal Pay Act. PNB asserts that a plaintiff suing under the FLSA may only represent those employees who have filed consents to join the action, as provided in 29 U.S.C. § 216(b), which provides:

An action to recover the liability prescribed in either of the preceding sentences may be maintained ... by any one or more employees for and in behalf of himself or themselves and other employees similarly situated.

In Kinney Shoe Co. v. Vorhes, 564 F.2d 859 (9th Cir.1977), the court explained the difference between an action under § 216(b) and Fed.R.Civ.P. 23.

At the outset, it should be emphasized that this class action is being prosecuted under § 216(b), and not under Rule 23. Under § 216(b), a member of the class who is not named in the complaint is not a party unless he affirmatively “opts in” by filing a written consent-to-join with the court. 29 U.S.C. §§ 216(b) & 256. No member of the class is either bound by the class action adjudication or barred from filing an individual claim within the limitation period unless he opts to become a party, [citation omitted] This is in contrast to a Rule 23 class action, where, in general, a member of the class once certified is a party to the action unless he affirmatively “opts out”____

564 F.2d at 862.

PNB’s motion to strike the class allegations is denied. Plaintiff is entitled to plead the action on behalf of those similarly situated as provided in section 216(b). These allegations do not convert the action under the Equal Pay Act into a Rule 23 class action case. Only those who affirmatively “opt in” by filing a consent-to-join will be entitled to share in any liability plaintiff may establish under the Equal Pay Act.

STATE LAW CLAIMS

Plaintiff asserts three pendent state claims under (1) the Oregon Fair Employment Practices Act, ORS 659.030; (2) the Oregon Equal Pay Act, ORS 652.220; and (3) the Oregon Wage Claim Statute, ORS 652.355.

PNB urges this court to decline to assert pendent jurisdiction over plaintiffs state law claims. PNB contends that these claims raise numerous unsettled questions of state law which the court should exercise its discretion to decline to address. In addition, PNB asserts that the state Equal Pay Act claim will create confusion over the issue of class action.

Plaintiff urges the court to address the issues presented by the state law claims. Plaintiff asserts that this court should not be concerned that it will somehow interfere with the state court’s interpretation of these statutes because “in all likelihood” the statutes will be interpreted to parallel the federal statutes and remedies.

Pendent jurisdiction is a doctrine of discretion, not of plaintiff’s right. United Mine Workers v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 1139, 16 L.Ed.2d 218 (1966). Pendent jurisdiction is not appropriate when (1) the state claims present questions of state law that are more appropriately decided by state courts, (2) the state claims predominate in terms of proof, scope of issues or comprehensiveness of remedy, or (3) litigation of the state claims is likely to create jury confusion. 383 U.S. at 726-27, 86 S.Ct. at 1139.

Oregon Equal Pay Act, ORS 652.220, Fourth Claim for Relief

The court finds that the Oregon Equal Pay Act raises numerous issues of first impression more appropriately settled in the state courts. The statutory language is significantly different from the Federal Equal Pay Act language in 29 U.S.C. § 206(d)(1). Because the state statute has not been interpreted to any significant degree, plaintiff’s claim would force this court to rule on issues of state statutory interpretation for the first time. The court declines plaintiff’s invitation to assume that the state act was intended to parallel the federal act.

In addition to statutory interpretation, if the court were to assume pendent jurisdiction, it would have to interpret the Oregon legislature’s intention as to the scope of damages, i.e., punitive damages, as well as the right to a jury trial. These issues are better settled by the Oregon state courts. This court declines to exercise pendent jurisdiction over the claim.

Oregon Wage Claim Statute, ORS 652.355, Fifth Claim for Relief

The court finds that this claim asserted by the plaintiff raises issues of statutory construction more appropriately resolved by the state courts. In order to determine whether plaintiff states a claim for relief under this statute, this court has to decide whether the legislature intended to afford a private right of action under this statute as well as whether this statute was intended to include pay discrimination complaints under the Equal Pay Act, which contains its own retaliation provision. The court declines to decide these issues before the Oregon state courts have had the opportunity to address them.

Oregon Fair Employment Practices Act, ORS 659.030, Third Claim

The court finds that it is appropriate to assert jurisdiction over plaintiff’s claims under the Oregon Fair Employment Practices Act. Several state court cases have resolved many of the issues of statutory interpretation, procedural rights and remedies available under this Act. See, e.g. Holien v. Sears, Roebuck and Co., 298 Or. 76, 689 P.2d 1292 (1984) and Vaughn v. Pacific Northwest Bell Telephone, 289 Or. 73, 611 P.2d 281 (1980). Should plaintiff decide to pursue her other state claims in the Oregon state courts, this claim can be dismissed and joined in that action.

Because the court has ruled that plaintiff has failed to allege intentional discrimination because of sex or discrimination in substantially equal positions because of sex, defendant’s motion to dismiss plaintiff’s claims under the Oregon Fair Employment Practices Act is granted with leave to amend.

In the event that plaintiff amends this claim, the court will address PNB’s further objections. Plaintiff’s jury demand and plea for punitive damages are not cognizable under this statute. Holien v. Sears, Roebuck & Co., 298 Or. at 95, 689 P.2d 1292. Plaintiff’s allegations of front pay recovery are dismissed for the reasons stated earlier in this opinion.

PNB moves this court to limit plaintiff’s allegations of retaliation to actions occurring subsequent to November 16, 1983. Plaintiff’s complaint alleges retaliatory conduct occurring “since November 1, 1983,” the date on which plaintiff and other class members first filed charges of pay discrimination with the EEOC and the State of Oregon Bureau of Labor. It is not clear whether this controversy over 15 days involves any specific complaint or incident of retaliation. The court reserves any ruling on this' issue until the facts are adequately before it.

IT IS HEREBY ORDERED:

1. Defendant’s motion to dismiss plaintiff’s first claim for relief for failure to state a claim is GRANTED with leave to amend.

2. Defendant’s motion to dismiss plaintiff’s second claim for relief for failure to state a claim is GRANTED with leave to amend.

3. Defendant’s motion to dismiss plaintiff’s third claim for relief for failure to state a claim is GRANTED with leave to amend.

4. Defendant’s motion to dismiss plaintiff’s fourth claim for relief for lack of pendent jurisdiction is GRANTED.

5. Defendant’s motion to dismiss plaintiff’s fifth claim for relief for lack of pendent jurisdiction is GRANTED.

6. Defendant’s motion to join parties is GRANTED.