author: NICKERSON, District Judge.

text:
    CONSOLIDATED EDISON COMPANY OF NEW YORK, INC., Plaintiff, v. AETNA INSURANCE COMPANY and Mutual Fire, Marine & Inland Insurance Company, Defendants.
    No. 84 C 1140.
    United States District Court, E.D. New York.
    Feb. 8, 1985.

      Ernest J. Williams, New York City (Geraldine O’Donnell, New York City, of counsel), for plaintiff.
    Barry, McTiernan & Moore, New York City (Roger P. McTiernan, Kathryn Deborah Nealon, New York City, of counsel), for defendant Aetna Insurance Company.
    Wilson, Elser, Edelman & Dicker, New York City (Michael D. Glatt, Eileen B. Eglin, Ralph A. Rosella, Jr., New York City, of counsel), for defendant Mutual Fire, Marine & Inland Insurance Company.
   MEMORANDUM AND ORDER

NICKERSON, District Judge.

Plaintiff Consolidated Edison Company of New York, Inc. (Consolidated Edison) brought this action against two insurance companies, Aetna Insurance Company (Aetna) and Mutual Fire, Marine & Inland Insurance Company (Mutual), seeking a declaration that the insurance companies afford coverage for any loss sustained as a result of any judgment in a case in this court entitled Cappellini v. McCabe Powers Body Company in which Consolidated Edison was joined as a third-party defendant. The parties move for summary judgment declaring their rights and obligations.

I

Thomas Cappellini was injured on May 11, 1973 while using a lift manufactured by McCabe Powers Body Company (McCabe) while he was working as an employee of Consolidated Edison. He and his wife brought the action against McCabe which impleaded Consolidated Edison. The jury rendered a verdict of $1,745,870.68 in favor of the Cappellinis and attributed 85% of the fault to Consolidated Edison and 15% to McCabe. The Court of Appeals upheld the amount of the award but ordered a new trial as to the apportionment of liability between Consolidated Edison and McCabe. 713 F.2d 1 (2d Cir.1983). The matter is now pending in this court.

II

At the time of Cappellini’s accident Consolidated Edison had four policies in effect, two issued by Mutual and two by Aetna. One Aetna policy (Aetna Workmen’s Compensation policy) called “Workmen’s Compensation and Employers’ Liability” provides in pertinent part that Aetna will indemnify Consolidated Edison against loss sustained by it on account of (a) compensation and other benefits required of Consolidated Edison by the Workmen’s Compensation Law, and (b) sums which Consolidated Edison becomes legally obligated to pay as damages because of bodily injury caused by accident sustained by a Consolidated Edison employee in the course of his employment, including damages for which Consolidated Edison is liable over by reason of suits by others “to recover damages” obtained from them “because of” the bodily injury to a Consolidated Edison employee. Under this policy Consolidated Edison’s “retention” is $150,000 per accident and the “limit of indemnity” of Aetna is $1,250,000 per accident.

This Aetna Workmen's Compensation policy also contains a provision the effect of which is the chief dispute among the parties. It is Condition 10 and reads as follows:

If the insured carries other valid and collectible insurance, reinsurance or indemnity with any other insurer or rein-surer covering a loss also covered by this contract (other than insurance or reinsurance that is purchased to apply in excess of the sum of the retained limit and the limit of liability hereunder), the insurance afforded by this contract shall apply in excess of and shall not contribute with such other insurance or reinsurance.

One Mutual policy (Mutual Umbrella policy), characterized as “Umbrella Liability Insurance,” provides indemnity for all sums which Consolidated Edison shall be obligated to pay by reason of liability imposed by law for damages, as defined by the term “ultimate net loss”, on account of personal injuries. The term “ultimate net loss” is defined in pertinent part to mean “the total sum which the Insured [Consolidated Edison], or any company as his insurer, becomes obligated to pay by reason of personal injury ... damage claims.” Mutual’s limit of liability is stated as only for the “ultimate net loss” in excess of $500,-000 and then only up to $500,000 per occurrence.

The second Aetna policy (Aetna Excess policy) and the second Mutual policy (Mutual Excess policy) are both in “excess” of the Mutual Umbrella policy and provide for limits of liability of $650,000 for Aetna and $350,000 for Mutual per occurrence part of $1,000,000 per occurrence in excess of the $1,000,000 referred to in the Mutual Umbrella policy.

Ill

Mutual contends that it has no liability under its Umbrella policy for any amounts payable in the Cappellini case by reason of Exclusion (c) of that policy, which provides that it shall not apply

except with respect to liability assumed under contract covered by this policy, to any obligation for which the Insured may be held liable under any Workmen’s Compensation Law.

Mutual says that this language shows an intention to exclude liability incurred where an employer is held liable for damages stemming from injuries to its employees unless such liability arises out of a contract obligation covered by the policy. Mutual deduces this intention from the fact that the policy was negotiated and executed before the decision in Dole v. Dow Chemical Company, 30 N.Y.2d 143, 282 N.E.2d 288, 331 N.Y.S.2d 382 (1972), recognized the right of a third party such as McCabe to obtain contribution from an employer such as Consolidated Edison for damages traceable to injuries to an employee.

The argument is hardly persuasive. Under the policy Mutual agrees to indemnify Consolidated Edison for all sums it “shall be obligated to pay by reason of the liability ... imposed ... by law” for damages “on account of personal injuries.” The Dole case did not recognize a liability “under” the Workmen’s Compensation Law. Certainly that law did not “impose” the liability. Indeed, the opinion notes that actions for indemnity are “very different” from actions that are controlled by the Workmen’s Compensation Law. 30 N.Y.2d at 152, 282 N.E.2d at 294, 331 N.Y.S.2d at 390.

Surely if Mutual had wished to exclude any claims for indemnity or contribution arising out of an injury to an employee Mutual could have found appropriate language to that end. Even broadly read the words do not create an ambiguity, but if they did the New York decisions would resolve it against the insurance company which drafted the policy. Insurance Co. v. Dayton Tool & Die Works, Inc., 57 N.Y.2d 489, 499, 443 N.E.2d 457, 461-62, 457 N.Y. S.2d 209, 213-14 (1982).

The court concludes that Exclusion (c) of the Mutual Umbrella policy is not applicable.

IV

Aetna argues that Condition 10 quoted above of the Workmen’s Compensation policy making it “in excess” of “other insurance” requires that Consolidated Edison’s $500,000 retention and the Mutual Umbrella policy for $500,000 and both the Aetna and Mutual Excess policies be exhausted before the Aetna Workmen’s Compensation policy comes into effect. Aetna reasons that Mutual’s Umbrella policy provides for such “other insurance” and that the “self-insured” retention of $500,000 by Consolidated Edison constitutes part of that “other insurance” as do the two Excess policies.

Mutual and Consolidated Edison contend that Aetna’s Workmen’s Compensation policy is applicable prior to the Mutual Umbrella policy. Their argument is that Consolidated Edison obtained the Aetna Workmen’s Compensation policy specifically to cover payment for those incidents causing injury to employees and obtained the Mutual Umbrella policy to apply to personal injuries not covered by more specific policies, and that the court should give effect to the “intent of the parties,” which was to apply the specific policy first.

Consolidated Edison also argues that in the event that the court applies Condition 10 of Aetna’s Workmen’s Compensation policy to require that Mutual’s Umbrella policy coverage be applied first, Consolidated Edison’s $500,000 retention should not be deemed “other insurance” within the meaning of that condition.

The argument by Mutual and Consolidated Edison that the court should not give effect to Condition 10 presupposes that the asserted specificity of Aetna’s Workmen’s Compensation policy bespeaks an intention by the parties to apply that policy first. It does, of course, apply to a narrower class of personal injuries, namely, those occurring to employees, than does Mutual’s Umbrella policy, covering any personal injuries. In the absence of language purporting to establish priorities among several policies, or where several policies purport to provide only excess coverage, it would perhaps be fair to infer that the more specific one should be exhausted first. See, e.g., Allstate Ins. Co. v. Employers Liability Assurance Corp., 445 F.2d 1278 (5th Cir.1971); Berkeley v. Fireman’s Fund Ins. Co., 407 F.Supp. 960 (W.D.Wash.1975). But to draw that inference in the face of language reciting that the more specific policy is “in excess” of “other insurance” for losses also covered by the policy would be to recast that language to say “other equally specific insurance.”

This court has found no New York decisions that would justify it in taking such liberties with the wording. Indeed, it seems wise, where there is a dispute as to priority between more than one insurance carrier, to give the natural meaning to all the language used in the policies so far as it is possible to do so. The provision of multiple layers of insurance is a complex subject contemplating close attention to the precise wording of documents. The parties who engaged in the negotiations for policies in this case were not unsophisticated. They were aware of the terms of all four of the policies at issue. Presumably they had access to competent counsel qualified to give the matter the attention it deserved. .

The court therefore concludes that Condition 10 of Aetna’s Workmen’s Compensation policy should be read as requiring that the coverage by Mutual under its Umbrella policy be exhausted first.

However, the court sees no merit in Aetna’s contention that Consolidated Edison’s retention of $500,000 under the Mutual Umbrella policy is “other insurance” within the meaning of Condition 10 of the Aetna Workmen’s Compensation policy. The language of that paragraph provides that the insurance afforded by the policy shall be excess to “other valid and collectible insurance, reinsurance or indemnity” carried by the “insured” with “any other insurer or reinsurer” covering the same loss. Consolidated Edison is plainly not both the “insured” and the “insurer”, and certainly is not an “indemnitor” of itself. The “other insurer or reinsurer” can only refer to some entity other than the “insured.”

The policy thus requires Aetna to indemnify Consolidated Edison for the first $500,-000 damages (less the $150,000 retention) for which Consolidated Edison is liable by reason of the suit or claim of McCabe “to recover damages” obtained by the Cappellinis “because of" the “bodily injury” to Cappellini.

V

The Mutual Excess policy and the Aetna Excess policy are both “excess” to Mutual’s Umbrella policy but not to Aetna’s Workmen’s Compensation policy. Thus, Condition 10 of that policy, since it requires first the exhaustion of Mutual’s Umbrella policy, has the same effect with respect to both Excess policies.

In short, the payment priorities will be as follows: first $150,000 by Consolidated Edison, second $350,000 by Aetna under its Workmen’s Compensation policy, third $500,000 by Mutual under its Umbrella policy, fourth $1,000,000 to be shared 65% by Aetna and 35% by Mutual under their Excess policies, and fifth the remaining amounts, if any there be, by Aetna under its Workmen’s Compensation policy not to exceed $750,000.

VI

The foregoing assumes that Consolidated Edison is entitled to the coverage under all the policies concerned. Mutual contends that Consolidated Edison should be denied coverage under the Mutual policies for its failure to cooperate adequately with Mutual and for its bad faith in failing to settle the Cappellini case within the $500,000 retention by Consolidated Edison specified in the Mutual Umbrella policy.

The court determines that Consolidated Edison did not act in bad faith by failing to settle. Nothing in the Mutual Umbrella policy required Consolidated Edison to pay the first $500,000 from its own pocket before reimbursement of the next $500,000 was required under that policy. The language defining “ultimate net loss” is quite to the contrary. As the court has indicated, Consolidated Edison will be required to pay only the first $150,000 of the initial $500,000. No one would have supposed the case could have been settled for $150,000.

The contention that Consolidated Edison did not cooperate cannot be resolved on these papers. Mutual makes allegations that Consolidated Edison denied Mutual access to its files. Perhaps Mutual can make a sufficient showing at a hearing to meet the heavy burden placed on an insurer to show the willful and avowed obstruction required by the New York decisions. See, e.g., Thrasher v. United States Liability Ins. Co., 19 N.Y.2d 159, 168-69, 225 N.E.2d 503, 508, 278 N.Y.S.2d 793, 800 (1967) and cases cited. Based on the facts stated in the affidavits the court is skeptical as to whether Mutual can meet that burden but cannot say, based on the decisions of the Court of Appeals for the Second Circuit, that Mutual should not have an opportunity to try.

VII

Summary judgment is denied on the issue of whether Consolidated Edison failed to cooperate to the' degree that it should be denied coverage under the Mutual policies. The rights of the parties, on the assumption that Consolidated Edison is entitled to coverage under all the policies concerned, are declared as set forth above.

So ordered.


source: Caselaw Access Project

author: DiCARLO, Judge.

license: Public Domain

text:
    COMPUTIME, INC., Plaintiff, v. The UNITED STATES, Defendant.
    Court No. 83-4-00596.
    United States Court of International Trade.
    Nov. 6, 1984.
    Soller, Singer & Horn, Margaret H. Sachter, New York City, for plaintiff.
    Richard K. Willard, Acting Asst. Atty. Gen., Joseph I. Liebman, Atty. in Charge, Intern. Trade Field Office, Washington, D.C., Jerry P. Wiskin, New York City, for defendant.
   Memorandum Opinion and Order

DiCARLO, Judge.

Plaintiff made three entries of electronic liquid crystal display watches in November, 1981, and January, 1982. Some of the watches had plastic cases and plastic watch bands and the remainder had metal cases and metal watch bands.

The watches were classified under item 715.05, Tariff Schedules of the United States (TSUS). Item 715.05 carries no assessment itself, but rather requires assessment of “rates applicable to the [watch] cases, plus ... the rates applicable to the movements____” Thus, the “watch movements” were classified under item 716.183, TSUS, and the “watch cases” under item 720.28, TSUS, at various rates of duty depending on the date of entry. The metal watch bands were classified as “watch bracelets” under item 740.34, TSUS, ht 29.8 percent (1981) and 27.1 percent (1982) ad valorem, and the plastic watch bands were classified as “articles not specially provided for, of rubber or plastic ... Other” under item A774.559, TSUS, duty free. The entries were liquidated in January and April, 1982.

Protests were timely filed on January 5 and June 24, 1982, and read in pertinent part:

1) We wish to protest the classification of the watch modules under 716.18 of the TSUSA.
2) We feel the proper classification is 688.45 of the TSUSA.
3) We wish to refer to Customs Court No. 80-10-01666 which is supportive of our claim.

Customs decided these protests on June 11 and 29, 1982, and reclassified both the “watch modules” and the “watch cases” under item 688.45, TSUS, as “electrical articles ... not specially provided for ... Other” at 5.1 percent (1981) or 4.9 percent (1982) ad valorem. The entries were reliquidated in July, 1982.

On September 8, 1982, plaintiff filed the protests at issue. These protests read in pertinent part:

Watch bands imported as an integral part of Electronic LCD watches.
We hereby protest the classification of the watchbands imported as an integral part of LCD Electronic watches under TSUS #740.350. Since we believe this should be considered an entirety part of Electronic Items under TSUS # 688.455. In support of this claim we refer you to C.D. 4810 and the decision by the U.S. Customs court on March 25, 1982.

Customs denied these protests October 26, 1982.

On April 22, 1983, plaintiff filed a summons in this Court under 28 U.S.C. § 1581(a) and section 514 of the Tariff Act of 1930, as amended, 19 U.S.C. § 1514 (1982), challenging the denial of the September, 1982 protests. Plaintiff filed its complaint March 27, 1984.

Defendant has moved to dismiss the action for lack of jurisdiction, contending that plaintiffs protests of the classification of the “watch modules” in January and June, 1982, did not challenge the classification of the watch bands and classification of the watch bands became final 90 days after liquidation under subsections 514(a) and (c). Plaintiff claims that its January and June, 1982 protests did challenge the classification of the watch bands.

Regardless of whether plaintiffs January and June, 1982 protests of the classification of the “watch modules” challenged the classification of the metal watch bands, the September, 1982 protests were invalid and the Court does not have jurisdiction to consider their denial by Customs.

If, as plaintiff asserts, the protests of the “watch modules” contested the classification of the metal watch bands, then plaintiffs remedy was to file an action in this Court within 180 days of notice of the denials, 28 U.S.C. § 2636(a), i.e. January 12 and 29, 1983, not file another set of protests, as plaintiff did in September, 1982. Section 514(c)(1) states that “[o]nly one protest may be filed for each entry of merchandise, except that where the entry covers merchandise of different categories, a separate protest may be filed for each category.” See F.W. Woolworth Co. v. United States, 26 CCPA 157, C.A.D. 10 (1938); Ataka America, Inc. v. United States, 79 Cust.Ct. 135, C.D. 4724 (1977).

If, as defendant asserts, the earlier protests did not contest the classification of the metal watch bands, the protests now before the Court are invalid since section 514(d) prohibits the protest of a question outside the scope of the reliquidation. Plaintiffs argument that it protested the classification of the metal watch bands in its January and June, 1982 protests concedes that such protests could have been made when the entries were originally liquidated. If plaintiff could have made such protests at that time, it was required to make them.

“[Ijssues which could have been raised at the time an entry was originally liquidated are not opened up for protest by reason of a reliquidation which fails to disturb the collector’s previous determination in respect thereto.” Pistorino & Co. v. United States, 71 Cust.Ct. 166, 167, C.D. 4491 (1973); see F. W. Woolworth Co. v. United States, 26 CCPA 157, C.A.D. 10 (1938).

Classification of the watch bands becomes final under subsections 514(a) and (c) where the plaintiff fails to protest the classification within 90 days of liquidation.

This Court has jurisdiction under 28 U.S.C. § 1581(a) only if the plaintiff filed a valid protest under section 514. Lowa, Ltd. v. United States, 5 CIT —, 561 F.Supp. 441 (1983), aff'd, 724 F.2d 121 (Fed. Cir.1984); Audiovox Corp. v. United States, 8 CIT —, 598 F.Supp. 387 (1984). As the September, 1982 protests were invalid, the Court does not have jurisdiction to consider their denial by Customs.

IT IS HEREBY ORDERED that defendant’s motion to dismiss is granted.

      . Texas Instruments, Inc. v. United States, 1 CIT 236, 518 F.Supp. 1341 (1981), aff'd, 69 CCPA 136, 673 F.2d 1375 (1982) held that electronic "watch modules" and the “plastic cases into which the solid state electronic modules ... are fitted and retained,” 1 CIT at 238, 518 F.Supp. at 1342, are properly classified under item 688.45, TSUS. There was no consideration of the “watch modules”, “watch cases”, and watch bands as entireties.

      . Texas Instruments, Inc. v. United States, 82 Cust.Ct. 272, 475 F.Supp. 1183 (1979) aff’d 67 CCPA 59, C.A.D. 1244, 620 F.2d 269 (1980), held that integrated circuits used in solid state electronic watches are properly classified as transistors and other related electronic crystal components rather than as subassemblies for watch movements.

      . This apparently refers to Texas Instruments, Inc. v. United States, 1 CIT 236, 518 F.Supp. 1341 (1981), aff’d, 69 CCPA 136, 673 F.2d 1375 (1982), affirmed in the Court of Customs and Patent Appeals on that date.


author: RE, Chief Judge:

text:
    OAK LAMINATES DIVISION OF OAK MATERIALS GROUP, Plaintiff, v. The UNITED STATES, Defendant.
    Court No. 81-8-01084.
    United States Court of International Trade.
    Dec. 5, 1984.

      Barnes, Richardson & Colburn, New York City (David O. Elliott and Richard Haroian, New York City), for plaintiff.
    Richard K. Willard, Acting Asst. Atty. Gen., Washington, D.C., Joseph I. Liebman, Attorney in Charge, International Trade Field Office, Commercial Litigation Branch, New York City (Deborah E. Rand, Washington, D.C.), for defendant.
   RE, Chief Judge:

Pursuant to Rule 59(a) of the rules of this Court, plaintiff has moved for a rehearing, or, in the alternative, for the opening of the judgment in Oak Laminates v. United States, 8 CIT —, Slip Op. 84-105 (Sept. 25, 1984), to take additional testimony.

In Oak Laminates, the imported merchandise consisted of two types of copper clad laminates: “(1) FR4, comprised of eight plies of woven fiberglass fabric impregnated by epoxy resin, and (2) Oak 910, comprised of three plies of non-woven fiberglass fabric, and impregnated by epoxy resin.” 8 CIT —, Slip Op. at 2. The copper clad laminates were classified by Customs as “articles not specially provided for, of rubber or plastics ... other,” under item 774.55 of the tariff schedules of the United States (TSUS), and assessed with duty at the rate of 8.5% ad valorem. Plaintiff contended that the merchandise was properly classifiable under item 770.05, TSUS, as “articles not specially provided for wholly or almost wholly of reinforced or laminated plastics,” duty-free under the Generalized System of Preferences (emphasis added).

After trial, and upon due deliberation and consideration of the testimony, exhibits and briefs submitted by the parties, this Court held that, since both the copper foil and the plastic core were “equally essential,” the imported merchandise was not made “wholly or almost wholly of plastic,” and that it was properly classified.

By the present motion, plaintiff seeks to have the court amend what it terms a “finding of fact,” and direct the entry of a new judgment. Specifically, plaintiff contends that “the Court made a clearly erroneous finding of fact” when it stated that “the testimony clearly showed that unclad laminates have a different core than copper clad laminates.” 8 CIT —, Slip Op. at 14.

The court has carefully reviewed plaintiff’s petition, and holds that plaintiff has not satisfied the requirements for the granting of a rehearing, and that the opening of the judgment to take additional testimony is not necessary.

Plaintiff’s request to have the court reconsider its prior holding in Oak Laminates is, in essence, a second attempt to have the court consider and evaluate the evidence and testimony presented at trial. As stated by the defendant in its opposition to plaintiff’s motion for rehearing and amendment of judgment:

This is the classic “battle of the experts” situation. Plaintiff’s dissatisfaction with the court’s acceptance of one expert’s opinion over another’s does not render the court’s ultimate conclusion based on such opinion erroneous and does not present the circumstances which merit the granting of a rehearing.

In its judicial opinion in this case the court stated that “the defendant did not merely rely on the statutory presumption of correctness that prevails in customs classification cases. It introduced persuasive expert testimony to refute the testimony of plaintiff’s witnesses, and to prove that the merchandise was properly classified by Customs.” 8 CIT —, Slip Op. at 6 (citations omitted).

In support of its assertions of error in this motion plaintiff relies upon and quotes from the testimony of Dr. Konicek, Vice President of Research and Product Engineering at plaintiff’s company, Oak Materials Group. In his testimony, Dr. Konicek traced the evolution of electric circuit technology, and concluded by stating that, “since the laminate core [of the imported merchandise] contains all the components, and provides all the insulating properties of circuit boards, the laminate core is the es-8 CIT —, sential element of the article; Slip Op. at 5.

Plaintiffs assessment of the testimony is clearly refuted by the testimony of Dr. Jablonski, one of defendant’s experts. As stated in the court’s opinion, “the testimony of Dr. Jablonski and Dr. Bucci [the defendant’s experts] clearly refuted plaintiff’s contention that it is the plastic laminate core which is the indispensable or essential element of the imported merchandise.” 8 CIT —, Slip Op. at 14. Indeed, the court also stated that it placed “greater reliance upon the testimony of the defendant’s experts ... [who] exhibited full mastery of the subject, and presented clear and convincing testimony as to the importance of the copper foil in the imported merchandise.” 8 CIT —, Slip Op. at 14.

It is well-established that whether a motion for rehearing shall be granted or denied lies within the sound discretion of the court. See Reynolds Trading Corp. v. United States, 61 CCPA 57, 59, C.A.D. 1120, 496 F.2d 1228, 1230 (1974); Commonwealth Oil Refining Co. v. United States, 60 CCPA 162, 166, C.A.D. 1105, 480 F.2d 1352, 1355 (1973). See also 6A J. Moore, MOORE’S FEDERAL PRACTICE § 59.-05[5] (2d ed. 1976). In addition, Rule 59(a) of the Rules of this Court provides that, in an action tried without a jury, a rehearing may be granted “for any of the reasons for which rehearings have heretofore been granted in suits of equity in the courts of the United States____”

The appropriate grounds for the granting of a rehearing were set out in W.J. Byrnes & Co. v. United States, 68 Cust.Ct. 358, C.R.D. 72-5 (1972), in which the court stated that:

A rehearing may be proper when there has been some error or irregularity in the trial, a serious evidentiary flaw, a discovery of important new evidence which was not available, even to the diligent party, at the time of trial, or an occurrence at trial in the nature of an accident or unpredictable surprise or unavoidable mistake which severely impaired a party’s ability to adequately present its case. In short, a rehearing is a method of rectifying a significant flaw in the conduct of the original proceeding.

Id. at 358.

Plaintiff has failed to demonstrate any of the grounds which would justify the granting of the motion. Specifically, plaintiff’s motion for a rehearing is based upon its allegations that the court made a misstatement which it terms a clearly erroneous finding of fact. Since there is a substantial basis in the record for the statement of the court, plaintiff cannot be successful under the “clearly erroneous” standard. See Thompson Tank & Manufacturing Co. v. Thompson, 693 F.2d 991, 993 (9th Cir. 1982); Beaver v. United States, 350 F.2d 4, 11 (9th Cir.1965), cert. denied, 383 U.S. 937, 86 S.Ct. 1067, 15 L.Ed.2d 854 (1966). See also USCIT R. 52(a).

The plaintiff’s allegation of factual error, in addition to being insufficient as a basis for the granting of a rehearing, is without merit.

The imported articles in this case were copper clad laminates, and not unclad laminates which utilize, for the purpose of adding copper after importation, either a semi-additive or fully-additive process. The question presented, therefore, was whether the imported merchandise consisted of “articles not specially provided for, of rubber or plastics ... other,” or plastics or sheets “wholly or almost wholly of reinforced or laminated plastics.”

To determine whether the imported merchandise was “wholly or almost wholly of” plastic, the court examined General Headnote 9(f)(iii) and stated that, in order for the claimed provision to be sustained, plaintiff would have to establish that the plastic core imparted the “essential character” to the imported articles. In reviewing the evidence, the court expressly rejected plaintiff’s contention that the plastic core imparted the “essential character” to the copper clad laminate. The court quoted from the testimony of Dr. Jablonski that the laminate was a “composite structure,” and concluded that the record left no doubt that the “copper clad laminate” is a composite article, composed of a plastic laminate core and copper foil. Hence, the court found that, “even though the plastic core was an essential component of the imported article, the copper foil is also equally essential,” 8 CIT —, Slip Op. at 16 (emphasis in original), and concluded:

The court finds no merit in plaintiffs argument that the plastic core is the essential element of the article. The imported merchandise, therefore, is not classifiable as plates or sheets “almost wholly of reinforced or laminated plastics,” admissible duty-free under the Generalized System of Preferences.

8 CIT —, Slip Op. 16.

By this motion for rehearing, plaintiff contends that “the Court made a clearly erroneous finding of fact inconsistent with the record” when it stated that “the testimony clearly showed that unclad laminates have a different core than copper clad laminates.” 8 CIT —, Slip Op. at 14. Plaintiff further contends that this “incorrect conclusion” was the sole basis upon which the court distinguished Larry B. Watson Co. a/c Decoration Products Co. v. United States, 64 Cust.Ct. 343, C.D. 4001 (1970), which plaintiff alleges is controlling and, therefore, compels judgment in its favor.

Although the case was tried by experienced counsel who ably presented the contentions of the parties, certain findings and statements in the judicial opinion of the court, in part, depended upon the testimony of expert witnesses. Plaintiffs quarrel with a statement of the court is based upon its evaluation of the testimony of Dr. Konicek, one of its witnesses, whose testimony is quoted in plaintiffs motion papers. Based upon the testimony of its witnesses, plaintiff asserts that the court “overlooked an uncontradicted fact.”

The court’s statement that the laminate cores were different is based upon the credible and persuasive testimony of Dr. Jablonski that:

In my mind, if we look at just the additive, where they add the powder in the core, I don’t think there is any debate that those two cores, the FR-4 core without a powder or the FR-4 core with a powder — that they would definitely be different when we either transfer the laminate or solution coat, the adhesive, onto what we would call the FR-4 core, you know, does that now become a new core or is it an old core with something on it?
In my mind, that resulting composite of that we would say is FR-4 core, plus the adhesive on it, and that would be a new core, and it would be called a core. That core is not the same as an FR-4 core.

Therefore, the basis for the court’s statement was the explanation of Dr. Jablonski, one of defendant’s experts, that the core of an unclad laminate must contain additional ingredients in order for it to receive copper. The core of the imported merchandise, however, needs only to be combined with copper foil to form a composite article known as a copper clad laminate.

Even if it were to be assumed that plaintiff is correct in its allegation that “at least one unclad laminate [core] ... is identical to the core of [a] ... copper clad laminate,” the alleged error is not germane to the court’s holding. Plaintiff misconceives the basis for the court’s decision. The crux of the case was whether the plastic core imparted the “essential character” to the imported article, and not whether the cores of unclad laminates and copper clad laminates are similar or different.

The court has carefully considered the arguments made by plaintiff prior to its decision in Oak Laminates, as well as those made on this motion. The court, nevertheless, concludes that plaintiff has failed to rebut the clear and convincing testimony of Dr. Jablonski and Dr. Bucci as to the importance of the copper foil, and its conductive function, to the imported merchandise. As stated in the decision of the court, the record “leaves no doubt that ‘copper clad laminate’ is a composite article, properly described as composed of a plastic laminate core and copper foil.” 8 CIT —, Slip Op. at 16.

In view of the foregoing, the court reiterates its view that plaintiff relied too heavily upon merchandise not in question, and reaffirms its holding that, since the evidence clearly established that the plastic core and copper foil are “equally essential,” the imported merchandise is not “wholly or almost wholly of plastic.” Hence, the imported merchandise was properly classified as “articles not specially provided for, of rubber or plastics ... other,” under item 770.05 of the tariff schedules.

For the foregoing reasons, it is the determination of the court that plaintiff has not satisfied the requirements for the granting of a rehearing. Since the court adheres to its earlier findings of fact and conclusions of law in this case, plaintiffs motion requesting a rehearing, or, in the alternative, the opening of the judgment to take additional testimony, is denied.


author: PER CURIAM.

text:
    In re UNION CARBIDE CORPORATION GAS PLANT DISASTER AT BHOPAL, INDIA IN DECEMBER, 1984.
    MDL No. 626.
    Judicial Panel on Multidistrict Litigation.
    Feb. 6, 1985.
    Before ANDREW A. CAFFREY, Chairman, ROBERT H. SCHNACKE, FRED DAUGHERTY, SAM C. POINTER, JR., S. HUGH DILLIN, MILTON POLLACK and LOUIS H. POLLAK, Judges of the Panel.

       Judge Sam C. Pointer, Jr. took no part in the decision of this matter.

   TRANSFER ORDER

PER CURIAM.

This litigation presently consists of eighteen actions pending in seven districts as follows:

Southern District of New York 6 actions
Southern District of West Virginia 4 actions
District of Connecticut 4 actions
Eastern District of Pennsylvania 1 action
Eastern District of New York 1 action
Northern District of Illinois 1 action
Southern District of Florida 1 action

Before the Panel is a motion, pursuant to 28 U.S.C. § 1407, by plaintiffs in one West Virginia action and one Connecticut action to centralize the actions in this litigation in the Southern District of West Virginia, or in the alternative the Eastern District of New York, for coordinated or consolidated pretrial proceedings. All responding parties agree on the propriety of Section 1407 centralization. The only dispute concerns selection of the transferee district. Each of the seven districts wherein these eighteen actions are pending has been suggested by various parties as an appropriate transferee forum.

On the basis of the papers filed and the hearing held, the Panel finds that these e:ghteen actions involve common questions of fact and that centralization under Section 1407 in the Southern District of New York will best serve the convenience of the parties and witnesses and promote the just and efficient conduct of the litigation. The actions share numerous factual questions concerning the December 3, 1984 disaster at the Union Carbide methyl isocyanate plant in Bhopal, India. Allegedly over 2,000 people were killed and many thousands more were injured when toxic methyl isocyanate gas was released from the plant. Centralization under Section 1407 is thus necessary in order to eliminate duplicative discovery, prevent inconsistent pretrial rulings, and conserve the resources of the parties, their counsel and the judiciary.

Although none of the seven forums suggested by the parties could be characterized as the nexus of this litigation involving a foreign disaster, on balance we are persuaded that the Southern District of New York is the appropriate transferee forum. We note that Union Carbide is a New York corporation and that relevant witnesses and documents may be located at its corporate headquarters in nearby Danbury, Connecticut. We also note that the Southern District of New York has more pending actions than any other district and is, according to the preponderance of the parties’ representations to the Panel, relatively more convenient for many parties, including plaintiffs and defendant Union Carbide, and witnesses.

IT IS THEREFORE ORDERED that, pursuant to 28 U.S.C. § 1407, the actions listed on the following Schedule A and pending in districts other than the Southern District of New York be, and the same hereby are, transferred to the Southern District of New York and, with the consent of that court, assigned to the Honorable John F. Keenan for coordinated or consolidated pretrial proceedings with the actions pending in that district and listed on Schedule A.

Schedule A

MDL-626 — In re Union Carbide Corp. Gas Plant Disaster at Bhopal, India, in December, 1984

Northern District of Illinois

Deepa Bhargawa, et al. v. Union Carbide Corp., C.A. No. 84-010603

Southern District of West Virginia

Mrs. Sheela Bai Dawani, et al. v. Union Carbide Corp., C.A. No. 84-2479

A.K. Pandia Shri, et al. v. Union Carbide Corp., C.A. No. CA-84-2482

Kanta Bai Sahoo, et al. v. Union Carbide Corp., C.A. No. 2:85-0063

Abdul Rauf, et al. v. Union Carbide Corp., C.A. No. 2:85-0071

Southern District of New York

Sudhir Parhauk, et al. v. Union Carbide Corp., C.A. NO. 84 Civ. 9202

Sona Bhai, et al. v. Union Carbide Corp., C.A. No. 84 Civ. 8873.

Dasarath Namdev Savarker, et al. v. Union Carbide Corp., C.A. No. 85 Civ. 0089

Asit Kumar Sarkar, et al. v. Union Carbide Corp., C.A. No. 84 Civ. 9342

Padmaker Krisha Rao Gavankar, et al. v. Union Carbide Corp., C.A. No. 85 Civ. 0307

Sabir Husain, etc. v. Union Carbide Corp., C.A. No. 85 Civ. 0447

Eastern District of New York

Shakir Ali, et al. v. Union Carbide Corp., C.A. No. BA-84-4942

Southern District of Florida

Asha Devi Saxena, etc. v. Union Carbide Corp., C.A. No. 85-0129

Eastern District of Pennsylvania

Rashid Mia, et al. v. Union Carbide Corp., C.A. No. CA-84-6291

District of Connecticut

Rafiqullah Khan, et al. v. Union Carbide Corp., C.A. No. B-85-27-WWE

Lakhan Singh, et al. v. Union Carbide Corp., C.A. No. B-84-812-EBB

Amar Singh Mahavir, et al. v. Union Carbide Corp., C.A. No. N-85-05-EBB

Oliver Wilson, et al. v. Union Carbide Corp., C.A. No. B-84-792-WWE

      . The motion before the Panel, as originally filed on December 21, 1984, pertained to four actions: two actions in the Southern District of West Virginia and one action each in the District of Connecticut and Northern District of Illinois. Subsequently, movants amended their motion to include additional actions and several plaintiffs made motions to centralize these actions and numerous other actions in one of seven proposed transferee districts. Movants’ amendment as well as the additional motions were filed too late to be included in the hearing held by the Panel on January 24, 1985. The other fourteen actions are included in the matter before us because all parties to those actions have stated in writing their respective positions on the present motion and participated in oral argument at the Panel’s January 24th hearing. In addition, the Panel has been advised of several recently filed related actions. These actions will be treated as potential tag-along actions. See Rules 9 and 10, R.P.J.P.M.L., 89 F.R.D. 273, 278-80 (1981).


author: FRANK A. KAUFMAN, Chief Judge.

text:
    UNITED STATES of America v. Y
    Cr. No. SEALED.
    United States District Court, D. Maryland.
    Sept. 9, 1983.
    J. Frederick Motz, U.S. Atty., and Robert N. McDonald, Asst. U.S. Atty., Baltimore, Md., for the U.S.
   FRANK A. KAUFMAN, Chief Judge.

Defendant Y was convicted on May 11, 1979, of one count of Conspiracy and two counts of Interstate Transportation of Forged Securities, after he entered guilty pleas in connection with those charges. On July 5, 1979, this Court sentenced defendant Y to five years confinement on each count, the said three sentences to run consecutively, but suspended service of all but six months and placed the defendant on probation for five years. Defendant Y was ordered, as a special condition of probation, to make restitution in the amount of $17,-923.27. On June 2, 1982, the Probation Officer of this Court to whom supervision of defendant Y had been assigned, petitioned this Court to issue a warrant for defendant Y’s arrest, advising this Court that defendant Y had violated his probation by failing, inter alia, to pay restitution and to meet as directed with his probation officer. On June 24, 1982, this Court issued a warrant for defendant Y’s arrest. Since that date, the U.S. Marshal’s Service has been attempting to find and arrest defendant Y. Until this date, those efforts have not been successful. Recently, the Office of the U.S. Attorney for this district has filed a motion for an Order to be issued by this Court pursuant to the All Writs Act, 28 U.S.C. § 1651, directing the Chesapeake and Potomac Telephone Company of Maryland to provide toll record information with respect to the business and home telephone numbers of defendant Y’s father. Both of those numbers service locations within the State of Maryland. The supporting affidavits of the Deputy U.S. Marshal, performing duties in connection with the attempts of the Marshal’s Service to locate defendant Y, state that the said telephone toll records are sought to establish the location from which defendant Y has made collect calls, and that information concerning such location will aid the Marshal’s Service to locate defendant Y and to execute the Court’s aforementioned arrest warrant. The said government motion is supported by an affidavit from the said Deputy U.S. Marshal which reveals the name of the person who has provided information to him to the effect that defendant Y is regularly in contact with his father by telephone. The information is precise and specific and would appear reliable.

The government, in a memorandum supporting its said motion, asks this Court to reconsider its decision in United States v. Walters, 558 F.Supp. 726 (D.Md.1980). In Walters, the government sought, in the alternative, pursuant to Federal Criminal Rule 17(c), the All Writs Act, and Federal Criminal Rule 41(b), an Order from this Court requiring two telephone companies, in the far West, which were not doing business in Maryland, to produce telephone records of the mother of the defendant and of a former employer of the defendant in order to aid the government to execute an arrest warrant for the defendant who had been indicted but not arrested or apprehended, for Wilful Failure to File Income Tax Returns pursuant to 26 U.S.C. § 7203 and 18 U.S.C. § 2. In its opinion in Walters, 558 F.Supp. at 730, supra, this Court noted that there was no allegation in that case, that defendant had used the telephone for the purpose of committing the income tax offenses. Additionally, this Court afforded to the government in Walters the opportunity (a) to show probable cause to believe that defendant had used or was using the telephone in furtherance of any federal offense such as 18 U.S.C. § 1073 and (b) thus to show that the government should be permitted to obtain the relief sought by it under Federal Criminal Rule 41(b)(3). The government did not, after the Court filed its aforecited opinion in Walters, avail itself of that opportunity. In the within case, the government has filed an affidavit which would appear to establish probable cause to believe that defendant has used and is using interstate telephone communications in furtherance of an offense under 18 U.S.C. § 1073(1), namely, to avoid prosecution for violation of the conditions of probation under an Order of this Court. It is additionally to be noted that in this ease, as opposed to the situation in Walters, see 558 F.Supp. at 730-31, the property in question, namely, the telephone records, is located within the District of Maryland. Accordingly, the requirements of Federal Criminal Rule 41(a) and of Federal Criminal Rule 41(b)(3) would appear met. That latter rule authorizes the issuance of a search or seizure warrant for “property designed or intended for use or which is or has been used as the means of committing a criminal offense”.

Under the circumstances, while this Court declines to change any of the views set forth by it in United States v. Walters, supra, and while this Court will not grant the motion of the government to direct the Chesapeake and Potomac Telephone Company of Maryland to provide the toll record information sought in the within case pursuant to the All Writs Act, it will, if the government submits an Order in appropriate form, grant the said relief pursuant to Federal Criminal Rule 41(a) and (b)(3).


text:
    UNITED STATES of America v. X
    Crim. No. (SEALED).
    United States District Court, D. Maryland.
    Sept. 18, 1984.

      J. Frederick Motz, U.S. Atty., Robert N. McDonald, and John G. Douglass, Asst. U.S. Attys., Baltimore, Md., for the U.S.
   MEMORANDUM

FRANK A. KAUFMAN, Chief Judge.

This case involves the Government’s motions for Orders directing the Chesapeake and Potomac Telephone Company of Maryland and a telephone company operating in a second state to provide toll records of two subscribers relating to certain limited, specified time periods. The Government seeks such records pursuant to the All Writs Act, 28 U.S.C. § 1651(a) in order to locate defendant X and to execute a warrant for the arrest of defendant X previously issued by a judge of this Court. Specifically, the Government contends that the toll records will be of critical importance in locating defendant X, and that without such records, the grand jury’s indictment and this Court’s arrest warrant may be “futile exercises.” (See Government Memorandum at 1.) In support of its motions, the Government has filed an affidavit of a Special Agent of the Federal Bureau of Investigation (FBI) in which that agent has averred that defendant X was indicted by a grand jury of this Court on four (4) charges of violation of federal law, and was later arrested in a state other than Maryland and other than the state in which the out-of-state telephone company operates. Thereafter, defendant X was arraigned in the court located in that other state, released on bond, and subsequently disappeared. The Agent, in his affidavit, has stated that efforts to locate defendant X, both in Maryland and in the other state in which he was last seen, have proved unsuccessful. Accordingly, the Agent seeks the toll records of the telephone numbers listed to a close relative of defendant X who lives in Maryland, and to a close relative of defendant X who resides in a state in which the out-of-state telephone company operates, asserting that fugitives often maintain telephone contact with close relatives, and that the toll records may “disclose locations where [defendant X] is presently or recently has been residing.” (Affidavit of the Agent, ¶ 13 at 3.)

In considering the Government’s motions, this Court does not write on a clean slate as it has twice previously entertained similar motions. Indeed, in United States v. Walters, 558 F.Supp. 726, 728-30 (D.Md. 1980), this Court denied a virtually identical motion propounded by the Government, in which the Government sought to obtain telephone toll records of Pacific Northwest Bell and Mountain Bell in order to locate and apprehend a defendant pursuant to a valid arrest warrant. In declining to grant the Government’s motion in Walters, this Court concluded that an Order for production of toll records under the All Writs Act may issue only where there exists probable cause to support the issuance of a search warrant for the records pursuant to Federal Criminal Rule 41, and wrote:

In the [U.S. v.] New York Telephone [Co.] case [434 U.S. 159, 98 S.Ct. 364, 54 L.Ed.2d 376 (1977)], there was probable cause to believe that the telephone lines in question were being used for a criminal purpose, as part and parcel of the gambling operation. Accordingly, the District Court had power to authorize the installation of the pen registers under Rule 41(b)(3) which covers the issuance of a warrant to “search for and seize any ... (3) property designed or intended for use or which is or has been used as the means of committing a criminal offense.” Only after concluding that the District Court was empowered to issue the pen register order under Rule 41 did the Supreme Court uphold the lower court’s power to order the telephone company to provide assistance in implementing the Order, under the All Writs Act.
In the within case, by contrast, there is no allegation that [the] defendant has used the telephone for the purpose of committing the offenses for which he has been indicted — wilful failure to file income tax returns. Accordingly, unless the government can, pursuant to some criminal statute such as 18 U.S.C. § 1073 (Flight to Avoid Prosecution or Giving Testimony), show probable cause to believe that defendant used or is using the phones in furtherance of a federal offense, such as flight to avoid apprehension, it does not appear that this Court has the authority under Rule 41(b)(3) to order the production of the telephone records in question.

Id. at 730.

Several years later, in United States v. Y, 601 F.Supp. 1038 (D.Md.1984), the Government sought toll records from the Chesapeake and Potomac Telephone Company of Maryland under the All Writs Act in order to locate a fugitive and effectuate an arrest warrant. In that case, the Government urged this Court to reconsider its earlier Walters decision, contending that a probable cause finding under Federal Criminal Rule 41(b) was not a prerequisite to an Order under the All Writs Act. This Court declined so to do, and held instead that the toll records would be ordered produced pursuant to Federal Criminal Rule 41(a) & (b)(3), as the property in question, namely, the toll records, were in that instance located entirely within the District of Maryland, and that there was probable cause to believe that the defendant was using the telephone in violation of federal law to evade apprehension. Thus, this Court could and did order the records produced under its Rule 41 power and did not need to reach the issue of whether such records could also be ordered produced under the All Writs Act.

In the pending case, the Government again urges this Court to reconsider its Walters opinion and notes that while a Rule 41 Order may be appropriate with regard to the records of the Chesapeake and Potomac Telephone Company, such an Order cannot issue in connection with the telephone company operating in a state other than Maryland, as those telephone records aré located outside the District of Maryland.

Recently, this Court, acting pursuant to Federal Criminal Rule 41, has directed the Chesapeake and Potomac Telephone Company of Maryland to supply the Government with the toll records of the Maryland subscriber which the Government sought-herein and at the same time has directed Chesapeake and Potomac Telephone Company not to disclose the existence of such Order to the subscriber fot ninety days. Further, in this case, this Court has also recently entered an Order pursuant to the All Writs Act, directing the above-referenced out-of-state telephone company to supply certain toll records of the subscriber in that state, and to withhold disclosure of the existence of such Order to the subscriber for ninety days. In issuing that Order pursuant to the All Writs Act, this Court, upon reconsideration, has concluded that while the result reached in Walters may well have been correct, the reasoning set forth therein, insofar as it relates to the All Writs Act, is not.

The All Writs Act, 28 U.S.C. § 1651(a), originally enacted as part of § 14 of the Judiciary Act of 1789, provides:

The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.

In United States v. New York Telephone Co., 434 U.S. 159, 172, 98 S.Ct. 364, 372, 54 L.Ed.2d 376 (1977), Justice White wrote that a federal court may issue an Order under the All Writs Act where “necessary or appropriate to effectuate and prevent the frustration of orders it has previously issued in its exercise of jurisdiction otherwise obtained.” In New York Telephone Co., the All Writs Order was necessary to prevent frustration of a Rule 41 pen register Order. However, other Orders, such as an arrest warrant, may also serve as the predicate for an All Writs Act Order. “The All Writs Act, read with the New York Telephone gloss, permits the district court, in aid of a valid warrant, to order a third party to provide nonburdensome technical assistance to law enforcement officers.” Plum Creek Lumber Co. v. Hutton, 608 F.2d 1283, 1289 (9th Cir. 1979).

In Smith v. Maryland, 442 U.S. 735, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979), Justice Blackmun, for a five to three majority, held that the Government need not obtain a search warrant before installing a pen register because a person does not have a legitimate Fourth Amendment expectation of privacy in the phone numbers he has dialed. In so concluding, Justice Blackmun wrote:

We doubt that people in general entertain any actual expectation of privacy in the numbers they dial. All telephone users realize that they must ‘convey’ phone numbers to the telephone company, since it is through telephone company switching equipment that their calls are completed. All subscribers realize, moreover, that the phone company has facilities for making permanent records of the numbers they dial, for they see a list of their long distance (toll) calls on their monthly bills.

Id. at 742, 99 S.Ct. at 2581.

The Justice ended his opinion as follows:

We therefore conclude that petitioner in all probability entertained no actual expectation of privacy in the phone numbers he dialed, and that, even if he did, his expectation was not ‘legitimate.’ The installation and use of a pen register, consequently, was not a ‘search,’ and no warrant was required.

Id. at 745, 99 S.Ct. at 2583.

In United States v. Doe, 537 F.Supp. 838 (E.D.N.Y.1982), Judge Nicker-son concluded that a telephone “subscriber has no legitimate expectation of privacy in the telephone company’s record of her toll calls”; that the Government “need only show facts indicating that the order requested is ‘appropriate to effectuate’ the bench warrant”; and that such a showing is made by the Government when information is appropriately presented to the Court, indicating that “the subscriber has substantial ties to and is likely to maintain telephone contact with the fugitive and [that] the records are for a period after the fugitive disappeared.” Id. at 840. This Court finds Judge Nickerson’s reasoning fully persuasive. Here, as in the case before Judge Nickerson, an Order pursuant to the All Writs Act is “necessary and appropriate,” in the light of the Special Agent’s statements that defendant X has disappeared; that efforts to locate him have been unsuccessful; that it is likely the defendant maintains telephone contact with his close relatives; and that it is likely the requested toll records will provide information concerning defendant’s current whereabouts, thereby preventing frustration of this Court’s earlier-issued arrest warrant. Further, the Order directing the out-of-state telephone company to provide the Government with telephone toll records of the subscriber for the limited period involved will not be “unduly burdensome,” as such records are seemingly readily available and are maintained in the ordinary course of business. In fact, in this case, neither telephone company objected to providing the records; rather, each telephone company stated that it would await a Court Order before providing the records to the FBI. In this case, the Government has made a showing of need and appropriateness. That is all that the Government is required to do. It need not show probable cause that the telephone line in question was being used in furtherance of. a criminal offense, because as Smith teaches, there is no privacy interest of the Maryland subscriber or the out-of-state subscriber in the respective toll records. See also Doe, supra at 840. Therefore, no Fourth Amendment rights, as such, are implicated, and all that the Government must do is to meet the All Writs Act’s standards of appropriateness and need discussed by Judge Nickerson in the case before him. Accordingly, this Court has concluded that its reasoning in Walters was and is erroneous.

      . In Walters, the Government did not submit any information under oath pertaining to defendant Walters, his disappearance, and the need for telephone toll records in order to effectuate his arrest. See Walters, supra at 727 n. 1.


author: BRIMMER, Chief Judge.

text:
    Anthony TORRES, Plaintiff, v. Beverly GRUNKMEYER, and Russ Donley, in their official and individual capacities Defendants.
    No. C84-0046-B.
    United States District Court, D. Wyoming.
    Feb. 1, 1985.
    See also, D.C., 586 F.Supp. 796.

      Stephen L. Pevar, American Civil Liberties Union, Denver, Colo., Richard Wolf, Cheyenne, Wyo., for plaintiff.
    John R. Hursh and Holly Brown, Central Wyoming Law Associates, P.C., Riverton, Wyo., for defendants.
   ORDER ON MOTIONS

BRIMMER, Chief Judge.

The above-entitled matter came before the Court pursuant to several motions made by both parties to this case. Defendants, at the close of plaintiff’s case, moved for a directed verdict, dismissing the plaintiff’s cause of action upon the grounds:

(1) that there was no evidence of wilful and wanton misconduct to justify plaintiff’s claim for punitive damages;

(2) that there was no evidence before the Court that the plaintiff suffered any injury;

(3) that the defendants at all times were acting in their official capacity and therefore have absolute legislative immunity; and

(4) that this is an action against the State of Wyoming, which is prohibited by the Eleventh Amendment, and that the State of Wyoming is an indispensable party thereto.

At the end of defendants’ case, plaintiff moved for a directed verdict on the issue of qualified immunity, and the question of whether or not political affiliation was actually considered by the defendants.

The Court orally granted the defendants’ motion with respect to the claims for punitive damages, reserved ruling upon the motion to dismiss on the grounds of insufficient evidence, denied the motions based on absolute immunity and the Eleventh Amendment and reserved ruling on plaintiff’s motions. The Court, having now reviewed the pleadings and the evidence offered, and being fully advised in the premises, FINDS and ORDERS as follows:

The main factual issue in question in this matter is quite straightforward. The jury must decide whether defendants considered plaintiff’s political affiliation, or lack thereof, in deciding not to hire him as a janitor for the Wyoming House of Representatives. Defendants contend that they are entitled to a directed verdict on this issue because plaintiff failed to produce sufficient evidence. The Court disagrees. Plaintiff testified that defendants led him to believe that if he failed to register as a Republican, he would not be hired, and that when he got angry and refused, defendants decided not to hire him. Defendants claim that plaintiff’s political affiliation was not considered but rather that he was not hired because of his belligerent attitude. This is clearly an issue of fact for the jury, and a directed verdict on this matter would be inappropriate. For the same reasons, plaintiff’s motion for a directed verdict on this question of fact was also denied.

Defendants further assert that the State of Wyoming is the true party in interest in this matter, and therefore that the case is barred by the Eleventh Amendment. Per Order of this Court, dated April 17, 1984, a motion to dismiss based on these grounds was denied. The Court stands by this Order in denying further motions based on the Eleventh Amendment, but would add one further comment. The State of Wyoming was not sued, and the Attorney General of Wyoming did not defend this case. The fact that the Management Council of the Wyoming Legislature has now voted to indemnify defendants, should they be found liable, does not bring the state into this case. The Management Council does not bind the whole Legislature, which can vote against the matter, or even vote for it and then decide otherwise during the next session. Thus, Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974), is not applicable. The State of Wyoming is not legally bound to pay any judgment in this case, defendants are. Therefore, the Eleventh Amendment is not a factor in this matter.

Defendants also contend that they are entitled to absolute legislative immunity. The Court has serious doubts that defendant Grunkmeyer, as a part-time hiring clerk, would ever be entitled to absolute immunity. See e.g. Eslinger v. Thomas, 476 F.2d 225 (4th Cir.1973). However, since the Court has concluded that neither defendant is entitled to absolute immunity, it is not necessary to decide that issue.

It has long been recognized that legislators are entitled to absolute immunity for any acts conducted within the traditional sphere of legislative activities. See e.g. Tenney v. Brandhove, 341 U.S. 367, 71 S.Ct. 783, 95 L.Ed. 1019 (1951). State legislators are entitled to the same legislative immunity as that enjoyed by their federal counterparts. See Supreme Court of Va. v. Consumers Union, 446 U.S. 719, 732, 100 S.Ct. 1967, 1974, 64 L.Ed.2d 641 (1980). Thus, in deciding whether an activity is within the sphere of legislative activity, it is necessary to look to the guidelines promulgated by the United States Supreme Court. Before proceeding to the legal issue, however, it is necessary to discuss the factual allegations. Plaintiff alleges that defendant Grunkemeyer, upon orders from defendant Donley, Speaker of the Wyoming House of Representatives, refused to hire him as a janitor because he was not a member of the majority party. We are not faced here with a House Resolution favoring the hiring of Republicans; rather, the Speaker adopted a policy of patronage hiring based on the customs and traditions of Wyoming politics. Since the current Speaker has changed this policy, it seems clear that the patronage orders came not from the Wyoming House, but rather from defendant Donley himself.

Assuming, arguendo, that plaintiffs version of the facts is correct, the question arises whether, despite a claim of constitutional violation, defendants are nevertheless immune from liability for a possible violation of plaintiffs rights as defined in Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976); and Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980). The concept of legislative immunity arises from Article I, Section 6 of the United States Constitution, which, in discussing the privileges of Senators and Representatives, states:

and for any Speech or Debate in either House, they shall not be questioned in any other Place.

The Supreme Court has construed the Speech and Debate Clause to protect conduct such as committee proceedings and investigations, and extended coverage to Congressional aides, “(b)ut the Clause has not been extended beyond the legislative sphere.” Gravel v. United States, 408 U.S. 606, 624, 92 S.Ct. 2614, 2626, 33 L.Ed.2d 583 (1972).

As the Supreme Court made clear in Gravel:

Legislative acts are not all-encompassing. The heart of the Clause is speech or debate in either House. Insofar as the Clause is construed to reach other matters, they must be an integral part of the deliberative and communicative processes by which Members participate in committee and House proceedings with respect to the consideration and passage or rejection of proposed legislation or with respect to other matters which the Constitution places within the jurisdiction of either House. Id. at 625 [92 S.Ct. at 2627],

The Court is hard-pressed to believe that the hiring of janitors fits within this definition of legislative activity. Hiring and firing is a purely administrative, not legislative function. We agree with the Court in Bush v. Orleans Parish School Board, 188 F.Supp. 916, 922 (E.D.La.1960), aff'd per curiam, 365 U.S. 569, 81 S.Ct. 754, 5 L.Ed.2d 806 (1961), that when a legislator “seeks to act as executor of (his) own laws, then, quite obviously, (he) is no longer legislating and is no more immune from process than the administrative officials (he) supersedes.” Defendant Donley, with the assistance of defendant Grunkemeyer, is accused of attempting to execute a patronage policy. If this accusation is valid, then defendants are not entitled to absolute immunity for performing this administrative function.

Furthermore, to grant absolute immunity for the exercising of such administrative functions, would extend the protection of the Speech and Debate Clause into an area already foreclosed by the Court in such cases as Kilbourn v. Thompson, 103 U.S. (13 Otto) 168, 26 L.Ed. 377 (1880); Dombrowski v. Eastland, 387 U.S. 82, 87 S.Ct. 1425, 18 L.Ed.2d 577 (1967); and Powell v. McCormack, 395 U.S. 486, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969). In these cases the Court held that the fact that the Congress had authorized unconstitutional acts, afforded no protection for those who had carried out the acts. As the Court stated in Gravel, “(u)nlawful conduct of this kind the Speech or Debate Clause simply did not immunize.” 408 U.S. at 620, 92 S.Ct. at 2624. Thus, if defendants Donley and Grunkemeyer executed an unconstitutional patronage program, they are not entitled to immunity for that execution. Such acts are not essential to the legislative process, and therefore not protected by legislative immunity. Gravel at 621, 92 S.Ct. at 2625. The Court would further note that if such actions were entitled to legislative immunity, legislators and their staffs would be free to violate clearly established rights and privileges with impunity, something the Speech and Debate Clause was never meant to authorize.

Defendants also contend that as public officials they are entitled to a qualified, good faith immunity. A public official who acts in good faith is only liable for violating a party’s civil rights “if he knew or reasonably should have known that the action he took within his sphere of official responsibility would violate the constitutional rights of the [plaintiff].” Wood v. Strickland, 420 U.S. 308, 322, 95 S.Ct. 992, 1000, 43 L.Ed.2d 214 (1975). Defendants allege that they had not heard of the Supreme Court decisions which declared many forms of patronage unconstitutional, and instead were only aware that patronage is an old, established custom in Wyoming. Thus, defendants contend that since they did not realize that patronage was unconstitutional, and further since they relied in good faith on Wyoming policies and customs, that they are entitled to good faith immunity.

The Court declines to give such broad instruction to the jury. In Elrod v. Burns, 427 U.S. 347, 359, 96 S.Ct. 2673, 2682, 49 L.Ed.2d 547 (1976), the Supreme Court said that “(p)atronage practice falls squarely within the prohibitions of Keyishian and Perry." Four years later in Branti v. Finkel, 445 U.S. 507, 520, 100 S.Ct. 1287, 1295, 63 L.Ed.2d 574 (1980), the Supreme Court cited with favor the language of the district court, which raised the “propriety of political considerations entering into the selection (process)”, and set down the following test:

(T)he question is whether the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved. Id. at 518, [100 S.Ct. at 1294] (emphasis added).

Thus, unless defendants can prove that they were honestly convinced that party affiliation is an appropriate qualification for janitor, they should have known that questioning applicants for janitor about party registration would violate the constitutional rights of the applicants. Although defendants claim they had never heard of Elrod and Branti, absent extraordinary circumstances, this is no excuse. As the Supreme Court said in Harlow v. Fitzgerald, 457 U.S. 800, 818-819, 102 S.Ct. 2727, 2739, 73 L.Ed.2d 1396 (1982):

If the law was clearly established, the immunity defense ordinarily should fail, since a reasonably competent public official should know the law governing his conduct.

The Court concludes that the law was clear. Hiring or firing of janitors based on party affiliation is a practice clearly within the strictures placed on patronage by the Supreme Court as early as 1976, eight years before plaintiff applied for the job in question.

Plaintiff seeks a directed verdict on the qualified immunity question. The Court denied this motion so the jury can decide whether the facts of the case involved extraordinary circumstances that might excuse defendants' ignorance of the law. Harlow at 819, 102 S.Ct. at 2739. Nevertheless, the Court is convinced that defendants’ requested good faith instructions are much too broad, and thus crafted jury instructions 14, 16, and 17 (copies attached to Order), based on a close reading of Elrod, Branti, and Harlow. The Court is convinced that these instructions, and not the ones submitted by the parties, contain a correct statement of the law of qualified immunity. Only if defendants meet these standards can they sustain a good faith defense.

Therefore, for the reasons set forth above, it is

ORDERED that defendants’ motions to dismiss or for a directed verdict, and requests for specific jury instructions be, and the same hereby are, denied. It is further

ORDERED that plaintiff’s motions for a directed verdict be, and the same hereby are, denied.

JURY INSTRUCTION NO. 14

You are instructed that under the federal laws in existence at the time of the events that are the subject matter of this action, the First Amendment to the United States Constitution prohibited, and still prohibits, the consideration of the political affiliation of an applicant for public employment, unless the job applied for is one for which party affiliation is an appropriate requirement for the effective performance of that job. Such federal, Constitutional, laws are the supreme law of the land, and of course, supersede any inconsistent state laws, statutes or policies.

In deciding whether the job of janitor is such a position, you may consider whether it is a policy-making position. A policy-making position is one in which the employee’s responsibilities are not well defined, and have a broad scope. In determining whether a position involved policy-making, you should consider whether the employee acts as an adviser or formulates plans for the implementation of broad goals.

If you find that defendants did consider plaintiff’s party affiliation, or the lack thereof, then you must decide whether defendants, by a preponderance of the evidence, have demonstrated that party affiliation is an appropriate requirement for the effective performance of a janitor for the Wyoming House of Representatives.

JURY INSTRUCTION NO. 16

Everyone is required to know what the law is and to act according to the law. Thus, a reasonably competent public official is presumed to know the law governing his or her conduct. If someone engages in an activity which violates the law, that person is responsible for his actions whether he intended to violate the law or not.

In order to find in favor of the plaintiff in the case, it is not necessary to find that the defendants had the specific intent to violate his constitutional rights.

JURY INSTRUCTION NO. 17

Ordinarily, if an official reasonably believed that he or she was acting within the law, and acted in good faith on the basis of this belief, then his or her reasonable belief and good faith action would constitute a defense to a claim for a civil rights violation.

If such an official claiming to have so acted, claims extraordinary circumstances, and further can prove, by a preponderance of the evidence, that because of these extraordinary circumstances he or she neither knew, nor should have known, the relevant Constitutional standard, only then may you sustain such a good faith defense.

You are further instructed that the Court is not aware of any provision in the Wyoming Constitution or in the Wyoming statutes which permits or authorizes the employment of non-policy-making legislative staff members upon a partisan political basis.


author: CALEB M. WRIGHT, Senior District Judge.

text:
    HIDEOUT RECORDS AND DISTRIBUTORS, et al., Plaintiffs, v. EL JAY DEE, INC., et al., Defendants. ANGEL WING MUSIC, et al., Plaintiffs, v. EL JAY DEE, INC., et al., Defendants.
    Civ. A. Nos. 81-177 CMW, 81-428 CMW.
    United States District Court, D. Delaware.
    March 19, 1984.

      Jane R. Roth, Richards, Layton & Finger, Wilmington, Del., for plaintiffs.
    Phillip J. Collins, Wilmington, Del., for defendants.
   MEMORANDUM OPINION

CALEB M. WRIGHT, Senior District Judge.

This is a consolidated action for copyright infringement arising under the United States Copyright Act, 17 U.S.C. §§ 101 et seq., in which plaintiffs seek an injunction prohibiting further infringing performances of the musical compositions in question, statutory damages in an amount ranging between $250 and $10,000 for each infringement, and costs, including reasonable attorneys’ fees. Presently before the Court is plaintiffs’ motion for default judgment or, in the alternative, for summary judgment. For the reasons discussed below, the Court grants plaintiffs’ motion for summary judgment.

FACTS

Plaintiffs own the copyrights to seven popular songs which they claim were infringed by the unauthorized public performances of the songs on the nights of February 20-21, 1981 and August 9-10, 1981 at defendants’ establishment, the Red Lantern Inn in New Castle, Delaware. Each of the plaintiffs is a music publisher and a member of the American Society of Composers, Authors, and Publishers (hereinafter “ASCAP”), and each of the plaintiffs has granted ASCAP a non-exclusive right to license non-dramatic public performances of their copyrighted musical compositions. Defendants are the proprietors of the Red Lantern Inn, an establishment providing live entertainment in New Castle, Delaware. Defendant El Jay Dee, Inc. owns and operates the Red Lantern Inn, with defendant Frank Nelkin, Jr. acting as President, and defendant Hiawanna Nelkin acting as Vice-President and Secretary.

The basis for plaintiffs’ motion for default judgment is the failure of defendant Hiawanna Nelkin to appear for one of her noticed depositions. This deposition was scheduled to occur on December 20, 1982. See Appendix B to Plaintiffs’ Opening Brief (Dkt. No. 47). Mrs. Nelkin contends that she was never given notice that a deposition had been scheduled for December 20, 1982 and that her failure to appear was not wilful but rather due to circumstances beyond her control. See Exhibit B to Defendants’ Answering Brief (Dkt. No. 51). Plaintiffs contend that Mrs. Nelkin failed to appear even though she was repeatedly notified of it by her attorney. The plaintiffs conclude that her failure to appear constitutes a wilful disregard of her obligations sufficient to justify entry of default judgment. See Appendix A to Plaintiffs’ Reply Brief and Plaintiffs’ Reply Brief at 3-5 (Dkt. No. 57).

As an alternative to entry of default judgment, plaintiffs seek entry of summary judgment, alleging that they have offered uncontradicted proof of both copyright ownership and infringing performance. Plaintiffs have submitted copies of copyright registration certificates and other documents to prove ownership and defendants do not dispute that plaintiffs are the owners of the copyrights to the musical compositions at issue in this litigation. See Affidavit of Anne Sullivan and accompanying Exhibits (Dkt. No. 48). However, defendants do dispute plaintiffs’ affirmative proof of infringing performance, alleging that there are material issues of fact concerning whether the songs in issue were actually performed at the Red Lantern Inn on the nights in question. See Defendants’ Answering Brief at 3-4 (Dkt. No. 51).

Plaintiffs have submitted the affidavits of four individuals as proof that the songs in issue were performed at the Red Lantern Inn on the nights of February 20-21, 1981 and August 9-10, 1981. The affidavits of Donald Hood and Raymond Verna state that the band playing at the Red Lantern Inn on the evening of February 20-21, 1981 performed five songs at issue in this litigation, titled “Betty Lou’s Getting Out Tonight”, “Tulsa Time”, “Fooled Around And Fell In Love”, “Roadhouse Blues”, and “Jailhouse Rock”. (Dkt. Nos. 44, 59, 61). The affidavits of Steven Shore and Michael Suchodolski state that the band playing at the Red Lantern Inn on the evening of August 9-10, 1981 performed three songs at issue in this litigation, titled “She Believes In Me (a/k/a While She Lays)”, “Blue Eyes Crying In The Rain”, and “Tulsa Time”. (Dkt. Nos. 58, 60).

Defendants have submitted no affidavits to refute the affidavits of Shore and Suchodolski on the issue of performance of the three songs at issue on the night of August 9-10, 1981. Defendants have, however, submitted one affidavit that they allege refutes the affidavits of Hood and Verna on the issue of performance of the five songs at issue on the night of February 20-21, 1981. That affidavit, filed by Mrs. Nelkin, states in pertinent part:

4. Although I had advertised that the band, Sheer Panic, would appear that night, Sheer Panic was not able to attend the Red Lantern Inn on February 20-21, 1981. As their replacement, my calendar shows and I remember that, the band Southwind performed on that night. The statement that Sheer Panic appeared at the Red Lantern Inn on February 20-21, 1981 in the notes attached to the affidavit of David Hood, dated May 27, 1983, is not correct. I do not keep notes of every song bands played at the Red Lantern Inn, but I do not recall hearing South-wind play any of the five songs that Donald Hood says in his affidavit and notes that Southwind played. As I recall, Southwind did not play the kind of music represented by the five (5) songs in Donald Hood’s affidavit. I have tried to locate Southwind or its members or agent but have been unsuccessful. Southwind disbanded long ago. I have examined and read Donald Hood’s affidavit.

See Exhibit B to Defendants’ Answering Brief (Dkt. No. 51). Defendants conclude that Mrs. Nelkin’s affidavit is sufficient to raise a genuine issue of fact precluding summary judgment.

Defendants raise two other matters relevant to plaintiffs’ motion for summary judgment. First, defendants contend that summary judgment against the individual defendants is inappropriate since they are shielded from personal liability by 8 Del. C. § 325. See Defendants’ Answering Brief at 3-4 (Dkt. No. 51). Second, defendants contend that, while they had no ASCAP license at the time of the alleged performances, their failure to renew the license and pay the license fees was based on their attorney’s advice that ASCAP’s licensing scheme violated the antitrust laws. See Exhibit B to Defendants’ Answering Brief (Dkt. No. 51). Defendants conclude that plaintiffs’ claims for injunctive relief, statutory damages, costs and reasonable attorneys’ fees should be denied.

DISCUSSION

The Court finds that plaintiffs are entitled to summary judgment and grants plaintiffs’ request for injunctive relief, statutory damages, costs and reasonable attorneys’ fees. In so holding, the Court concludes that there are no genuine issues of material fact remaining to be tried and that defendants’ other contentions relating to plaintiffs’ motion for summary judgment are without merit.

In order to prove that their copyrights have been infringed, plaintiffs bear the burden of demonstrating five elements:

1. the originality and authorship of the songs allegedly infringed;
2. . compliance with the formalities of the Copyright Act;
3. that plaintiffs are proprietors of the copyrights;
4. that the songs were performed as alleged; and
5. that such performance was without proper authorization.

See, e.g., Broadcast Music, Inc. v. Moor-Law, Inc., 484 F.Supp. 357, 362 (D.Del. 1980). In this case, there is no genuine issue of material fact relating to plaintiffs’ evidence of originality and authorship, compliance with the statutory formalities, and ownership of the works allegedly infringed. Plaintiffs have filed copies of the copyright registration certificates and copies of all relevant assignments relating to the seven songs at issue here. See Affidavit of Anne Sullivan and accompanying exhibits (Dkt. No. 48). These documents constitute prima facie evidence of the first three elements required to be established by plaintiffs, see Broadcast Music, Inc. v. Moor-Law, Inc., supra, at 362-63, and defendants do not dispute plaintiffs’ contentions relating to these elements.

Defendants, however, do dispute plaintiffs’ contentions relating to the last two elements required to be proved in a claim for copyright infringement. Apparently, defendants contend that their reliance on their attorney’s erroneous advice that ASCAP’s licensing scheme violated the antitrust laws justified their failure to renew the license and pay the license fees. The Court finds that this contention is meritless. In the absence of permission from the copyright owner, performances of protected musical compositions are infringements of copyright. This is so even if defendants’ failure to renew the license and pay the license fees was based on their attorney’s mistaken advice as to the legal consequences of their actions and even if defendants believed in good faith that they were not infringing plaintiffs’ copyrights. See, e.g., Universal City Studios v. Sony Corp. of America, 659 F.2d 963, 975 (9th Cir.1981), rev’d on other grounds, 464 U.S. 417, 104 S.Ct. 774, 78 L.Ed.2d 574 (1984) (“a defendant’s mistake as to the legal consequences of his actions does not constitute an excuse for infringement”); Pye v. Mitchell, 574 F.2d 476, 481 (9th Cir.1978) (even if defendant believes in good faith that he is not infringing plaintiff’s copyright, he may be found liable). Therefore, defendants’ contentions relating to their failure to renew their license prior to the time of the alleged infringing performances provide no excuse for their failure to obtain proper authorization and cannot prevent the entry of summary judgment if the alleged infringing performances occurred.

Moreover, if the alleged infringing performances occurred, defendants’ contentions that the individual defendants are shielded from personal liability by 8 Del.C. § 325 cannot prevent the entry of summary judgment. 8 Del.C. § 325 provides:

(a) When the officers, directors, or stockholders of any corporation shall be liable by the provisions of this chapter to pay the debts of the corporation, or any part thereof, any person to whom they are liable may have an action, at law or in equity, against any 1 or more of them, and the complaint shall state the claim against the corporation, and the ground on which plaintiff expects to charge the defendants personally.
(b) No suit shall be brought against any officer, director, or stockholder for any debt of a corporation of which he is an officer, director, or stockholder, until judgment be obtained therefor against the corporation and execution thereon returned unsatisfied.

This statute is plainly irrelevant since this is a copyright infringement action and not a suit against an officer, director or stockholder for the debts of a corporation. In cases of copyright infringement, an individual defendant’s personal liability depends, inter alia, on whether he or she is the dominant influence in a corporation and has the capacity to control the acts of the corporation. If so, then he or she is jointly liable with the corporation for copyright infringement. See Shapiro, Bernstein & Co. v. H.L. Green Co., 316 F.2d 304, 307-09 (2d Cir.1963); Milene Music, Inc. v. Gotauco, 551 F.Supp. 1288, 1295 (D.R.I.1982); Boz Scaggs Music, et al. v. KND Corp., 491 F.Supp. 908, 914 (D.Conn.1980); Warner Bros., Inc., et al. v. O’Keefe, 468 F.Supp. 16, 20 (S.D.Iowa 1978). In this case, the individual defendants admit that they are the President and Vice President/Secretary of the corporate defendant and that they had “primary responsibility for the control, management, operation and maintenance of affairs of said corporation.” See Answer ¶ 5 (Dkt. No. 5). Therefore, the Court holds that they are jointly liable with the corporate defendant for any alleged infringements that occurred.

Thus, the only issue that could preclude summary judgment in this case is the issue of whether any alleged infringing performances occurred. However, Mrs. Nelkin’s affidavit, which is the only affidavit relied on by defendants to dispute plaintiffs’ proof of infringing performance, does not contradict or refute plaintiffs’ evidence on this issue. As numerous courts have held, if the facts stated in the affidavits of the moving party are not contradicted by facts stated in the affidavits of the party opposing the motion for summary judgment, they should be accepted as true. See, e.g., Morrison v. Walker, 404 F.2d 1046, 1048-49 (9th Cir.1968); Anthony v. White, 376 F.Supp. 567, 574 (D.Del.1974). In this case, Mrs. Nelkin’s affidavit simply states that she cannot remember hearing the band that performed on the night of February 20-21, 1981 play any of the five songs that the affidavit of Donald Hood says were performed. It also states that she recalls that the band that performed on the night of February 20-21, 1981 did not play the kind of music represented by the five songs in Hood’s affidavit. See Exhibit B to Defendants’ Answering Brief (Dkt. No. 51). These allegations are not sufficient to contradict or refute the affidavits of Donald Hood and Raymond Verna.

First, Mrs. Nelkin’s statement that she cannot remember hearing the songs played does not place in dispute the statements of Hood and Verna that the songs were in fact played since an affiant’s failure to remember an event is not a specific denial that the event occurred. See, e.g., Lemelson v. The Bendix Corp., et al., C.A. No. 82-308, Slip Op. at 3, fn. 2 (D.Del., January 23, 1984). Second, Mrs. Nelkin’s statement that, as she recalls, the band performing on the night of February 20-21, 1981 did not play the kind of music represented by the five songs in Hood’s affidavit does not raise a triable issue since conclusory statements, general denials and factual allegations not based on personal knowledge are insufficient to avoid summary judgment. See Olympic Junior, Inc. v. David Crystal, Inc., 463 F.2d 1141, 1146 (3d Cir.1972). Finally, Mrs. Nelkin’s statements do not raise a triable issue of fact since they are essentially addressed to the issues of what band played that night and not to the critical issue of whether the five songs in issue were performed. Thus, the Court finds that there is no genuine issue of material fact regarding the infringing performance of the five songs played on the night of February 20-21, 1981.

The Court also finds that there is no genuine issue of material fact regarding the infringing performance of the three songs played on the night of August 9-10, 1981. Defendants have offered no evidence, by affidavit or otherwise, to refute the affidavits of Steven Shore and Michael Suchodolski (Dkt. Nos. 58, 60). These affidavits establish the performance of “She Believes In Me (a/k/a While She Lays)”, “Blue Eyes Crying In The Rain”, and “Tulsa Time” at the Red Lantern Inn on the night of August 9-10, 1981. Defendants have had over one month to submit counteraffidavits and have not done so. Therefore, the Court finds that summary judgment is appropriate since plaintiffs have affirmatively established the five elements required to find liability for copyright infringement and defendants have raised no genuine issues of material fact concerning plaintiffs' evidence.

Having prevailed on their motion for summary judgment, plaintiffs may be entitled to injunctive relief, statutory damages, costs and reasonable attorneys’ fees. See 17 U.S.C. § 502(a) (court may “grant temporary and final injunctions on such terms as it may deem reasonable to prevent or restrain infringement of copyright.”); 17 U.S.C. § 504(c) (plaintiffs may elect to recover statutory damages in lieu of actual damages and profits; statutory damages to range, in the court's discretion, from $250 to $10,000, and up to $50,000 if infringement is wilful); 17 U.S.C. § 505 (court, in its discretion, may award attorneys’ fees and costs to the prevailing party). In this case, plaintiffs have elected to recover statutory damages and have suggested that $1000 for each of the eight infringing performances is an appropriate amount of statutory damages. See Plaintiffs’ Opening Brief at 15 (Dkt. No. 47). Defendants suggest that, if they are liable, only the stautory minimum of $250 should be awarded.

In determining statutory damages under 17 U.S.C. § 504(c)(1), courts have wide discretion to set damages within the statutory limits and awards of damages for more than the statutory minimum are frequent. See, e.g., Milene Music, Inc. v. Gotauco, 551 F.Supp. 1288 (D.R.I.1982) ($625 per infringement plus costs and attorneys’ fees); Broadcast Music, Inc. v. Tadych, 203 U.S.P.Q. 506 (E.D.Wis.1979) ($1,000 per infringement); Jerry DeNicola, Inc. v. Genesco, Pakula & Co., 188 U.S. P.Q. 306 (S.D.N.Y.1975) ($5,000 per infringement). Two factors often considered by courts in determining an amount appropriate to vindicate statutory policy are the award's deterrent value and the wilful nature of defendants’ infringement. See, e.g., Milene Music, Inc. v. Gotauco, supra, at 1296-97. In this case, the evidence shows that defendants have deliberately violated the copyright laws for a substantial period of time despite ASCAP’s persistent attempts to induce defendants to acquire and maintain a license and despite a previous loss in copyright litigation. See Affidavit of William Fielder (Dkt. No. 45). Since the evidence indicates that defendants deliberately violated the copyright laws, and since defendants’ previous defeat in a copyright infringement action has not deterred them from further violations of the law, the Court finds that an award of $500 for each of the eight infringing performances is appropriate.

In addition, the Court will issue an injunction prohibiting defendants from any further unlawful infringements of the musical compositions at issue in this litigation and will award plaintiffs costs and reasonable attorneys’ fees. See, e.g., Milene Music, Inc. v. Gotauco, supra, at 1297-98 (costs routinely awarded to victor in copyright cases and attorneys’ fees particularly appropriate in case of deliberate infringement). Defendants will be given an opportunity to dispute the reasonableness of the fee award requested by plaintiffs’ counsel.

An Order will be entered consistent with this Opinion.

      . The songs are titled: "Betty Lou’s Getting Out Tonight”, "Tulsa Time”, "Fooled Around And Fell In Love”, "Roadhouse Blues”, "Jailhouse Rock”, “She Believes In Me (a/k/a While She Lays)”, and "Blues Eyes Crying In The Rain”.

      . ASCAP is a performing rights licensing organization which, on behalf of its members, licenses thousands of radio and television stations, restaurants, nightclubs, hotels, taverns and other establishments whose owners desire to perform publicly copyrighted musical compositions in the ASCAP repertory.

      . Defendants Frank and Hiawanna Nelkin have admitted that they had "primary responsibility for the control, operation and maintenance of the affairs of [El Jay Dee, Inc.]", and that "the acts hereinafter complained of were done with their active assistance, cooperation, acquiescence and procurement.” See Complaint ¶ 5 (Dkt. No. 1); Answer ¶ 5 (Dkt. No. 5).

      . Mrs. Nelkin’s deposition had been noticed on six prior occasions. See Appendix C to Plaintiffs’ Opening Brief (Dkt. No. 47). These six prior occasions on which Mrs. Nelkin failed to appear are not in issue since these depositions were put over by agreement of counsel. See Plaintiffs’ Opening Brief at 3 (Dkt. No. 47). Her failure to appear at the first six depositions was apparently due to her poor health. See Exhibits A and B to Defendant's Answering Brief (Dkt. No. 51).

      . ASCAP has, since May 1970, attempted to secure a license agreement with the owners of the Red Lantern Inn. When ASCAP’s attempts proved unsuccessful, they sued and obtained a judgment for infringements of their copyrighted musical compositions which occurred in 1977 and 1978. See Milene Music, Inc., et al. v. El Jay Dee, Inc., C.A. 78-167 (D.Del.) and Swallow Turn Music, et al. v. El Jay Dee, Inc., C.A. No. 78-553 (D.Del.). This judgment was satisfied in February, 1981. In the course of the litigation, defendants entered into a license agreement for the Red Lantern Inn commencing on April 1, 1979. This agreement was terminated on January 11, 1981 for default in payment of fees. See Affidavit of William Fielder (Dkt. No. 45).

      . Since this is a summary judgment motion, the Court has resolved any doubt as to the existence of genuine issues Of material fact against the moving party and has resolved the reasonable inferences from the facts in favor of the party against whom judgment may be entered. See, e.g., Hollinger v. Wagner Mining Equipment Co., 667 F.2d 402, 405 (3d Cir.1981). The Court finds it unnecessary to address plaintiffs’ claim that a default judgment should be entered since the Court finds that there are no genuine issues of material fact precluding summary judgment.

      . Mrs. Nelkin’s affidavit provides the Court with no basis for concluding that she had personal knowledge of the kind of music typically played by the band that performed on the night of February 20-21, 1981. See, e.g., Doza v. American National Ins. Co., 314 F.2d 230, 232 (8th Cir.1963) (affidavit must not only be made on the personal knowledge of affiant, but must show that the affiant possesses the knowledge asserted). Nor does it specifically deny that the five songs were played. It simply states a general conclusion about the type of music that this particular band typically played. Therefore, the Court cannot conclude that the affidavit has succeeded in setting forth "specific facts showing that there is a genuine issue for trial.” Fed. R.Civ.P. 56(e).

      . The Nelkin affidavit states that the group “Southwind" played that night; the original Hood affidavit stated that the group "Sheer Panic” performed. See Affidavit of Donald Hood (Dkt. No. 44). Hood’s supplemental affidavit states that regardless of the identity of the band, the five songs were in fact played. See Affidavit of Donald Hood (Dkt. No.. 61).