author: SPRIZZO, District Judge:

text:
    Richard B. DANNENBERG, individually and on behalf of others similarly situated, Plaintiff, v. Milton B. DORISON, Richard M. Firestone, Male, Bloom, Bodne, Kuperstein & Eisenberg, a Professional Association, Male, Bodne, Kuperstein & Eisenberg, a Professional Association, Lance E. Eisenberg, Stanley H. Kuperstein, Michael H. Male, Michael D. Bodne, Steven W. Simon, Major Management Corporation, Albert H. Wahl, Amity Financial, a Connecticut limited partnership, Amity Financial Corp., Drake Financial, Inc., Columbo Trust, N.V., Columbus Trust Company, Ltd., Leisure Transportation Inc., Alphanumeric Incorporated, Michael Shore, Mitchell Goldstone, Jeffrey Cohan, Defendants.
    No. 83 Civ. 4396 (JES).
    United States District Court, S.D. New York.
    March 8, 1985.

      Barbara A. Lee, New York City, for plaintiff.
    Lester Schwab Katz & Dwyer, New York City, for defendants Male, Bloom, Bodne, Kuperstein & Eisenberg, a Professional Association; Male, Bodne, Kuperstein & Eisenberg, a Professional Association, Lance E. Eisenberg, Stanley H. Kuperstein, Michael H. Male, Michael D. Bodne and Steven W. Simon, Steven B. Prystowsky, B. Jennifer Jaffee, Stuart W. Axe, Steven B. Getzoff, New York City, of counsel.
    Lawrence Iason, New York City, for defendant Wahl.
    Townsend Rabinowitz Pantaleoni & Valente, New York City, for defendants Leisure Transportation, Inc., Alphanumeric Incorporated, Michael Shore, Mitchell Gold-stone, Jeffrey Cohan and Drake Financial, Inc.; Francis V. Imbornone, New York City, of counsel.
    Rogers Hoge & Hills, New York City, for defendants Dorison, Amity Financial and Amity Financial Corp.; Richard J. Schulman, New York City, of counsel.
   OPINION AND ORDER

SPRIZZO, District Judge:

Plaintiff, Richard B. Dannenberg, sues to recover damages allegedly sustained as a result of his investment in a fraudulent limited partnership tax shelter, Aquarius Associates (“Aquarius”).

The defendants have filed motions to dismiss the amended complaint. Plaintiff has moved for certification that the action may proceed as a class action pursuant to Fed.R.Civ.P. 23. The Court heard oral argument on the motions on January 25, 1985. '

I. FACTS

According to the amended complaint, limited partnership interests in Aquarius were sold pursuant to a private placement offering memorandum dated March 21, 1979, and supplemented May 8 and 18,1979 (“the Offering Memorandum”). See Amended Complaint ¶ 5. The Offering Memorandum was prepared by MBBK & E, along with a tax opinion with respect to the offering. Id. at ¶¶ 48, 52. On May 31, 1979, allegedly in reliance on the Offering Memorandum, plaintiff purchased a one-half “unit” of Aquarius for $50,000 — $12,500 paid by check and $37,500 paid by way of a recourse note to the order of Drake. Id. at ¶ 36. Plaintiff also paid a $500 legal fee to MBBK&E. Id.

Plaintiff alleges that the Offering Memorandum was false and misleading because it failed to disclose, inter alia, the identities of the “principals and promoters” of Aquarius and how they would profit from Aquarius, and because it represented that Aquarius would engage in coal mining operations when in fact Aquarius was never intended to actually engage in coal mining or any other business, had no legitimate business purpose, and therefore did not qualify for the tax advantages presented to investors. E.g., id. at ¶ 38. He further alleges that his interest in Aquarius is worthless. Id. at ¶ 60.

Plaintiff sues for damages pursuant to section 10(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78j(b), Rule 10b-5, 17 C.F.R. § 240.10b-5, section 17(a) of the Securities Act of 1933, 15 U.S.C. § 77q(a), common law fraud, and the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. §§ 1961-1968.

II. DISCUSSION

A. Motions to Dismiss

1. Claims pursuant to sections 10(b) and 17(a), and common law fraud

Defendants Leisure, Alphanumeric, Shore, Goldstone, Cohan, Drake, and Wahl move to dismiss the fraud claims for failure to plead fraud with the requisite particularity as required by Fed.R.Civ.P. 9(b). These same defendants, along with the attorney defendants MBBK & E, MBK & E, Eisenberg, Kuperstein, Male, Bodne, and Simon, also move to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) for failure to plead scienter.

To satisfy Rule 9(b) plaintiff must plead facts from which the Court may reasonably infer fraud as to each defendant. See, e.g., Decker ¶. Massey-Ferguson, Ltd,., 681 F.2d 111, 115 (2d Cir.1982), citing Ernst & Ernst v. Hochfelder, 425 U.S. 185, 192 n. 7, 96 S.Ct. 1375, 1380 n. 7, 47 L.Ed.2d 668 (1976); Crystal v. Foy, 562 F.Supp. 422, 424-25 (S.D.N.Y.1983). Tested by these principles the amended complaint is clearly insufficient with respect to the outsider defendants Drake, Wahl, and the attorney defendants. While plaintiff alleges that Dorison and Firestone, the alleged insiders, promoted about fifty fraudulent tax shelters, no facts are pleaded from which the Court may infer that the outsider defendants knew or deliberately avoided knowing that Aquarius or any of these other tax shelters were fraudulent. Merely multiplying the number of transactions in which a defendant allegedly participated, either by preparing a tax opinion or providing financing or underwriting services, without pleading facts that would permit an inference of knowledge that any one of these other transactions was fraudulent, does not satisfy the requirement of Rule 9(b). See, e.g., Decker, supra, 681 F.2d at 114; Crystal, supra, 562 F.Supp. at 424. Yet that is all that is alleged against these defendants. See, e.g., Amended Complaint ¶¶ 48, 51, 52, 67.

Moreover, plaintiff has not alleged any factual basis upon which the Court could properly infer that these outside defendants owed any fiduciary duty to plaintiff, which would render recklessness a sufficient predicate for an allegation of fraud. See, e.g., ITT, An International Investment Trust v. Cornfeld, 619 F.2d 909, 923-25 (2d Cir.1980); Edwards & Hanly v. Wells Fargo Securities Clearance Corp., 602 F.2d 478, 484-85 (2d Cir.1979), cert. denied, 444 U.S. 1045, 100 S.Ct. 734, 62 L.Ed.2d 731 (1980); Cf. Rolf v. Blyth, Eastman Dillon & Co., 570 F.2d 38, 44 (2d Cir.), cert. denied, 439 U.S. 1039, 99 S.Ct. 642, 58 L.Ed.2d 698 (1978). Therefore, plaintiffs first, second, and fourth claims are dismissed as to these defendants, without prejudice to repleading if during the course of discovery plaintiff acquires sufficient facts against any of them upon which a charge of fraud may properly be predicated.

The situation is different as to defendant Leisure, general partner of Aquarius, defendant Alphanumeric, the controlling person of Leisure, and defendants Shore, Goldstone, and Cohan, who are all insiders of Aquarius. As to these defendants, the Court may reasonably infer, based on their inside knowledge of and participation in the business of Aquarius, that they were aware of the fraudulent nature of the transactions in which Aquarius was involved. Cf. Goldman v. G.C. Belden, Jr., 754 F.2d 1059, 1070 (2d Cir. 1985). Their motions to dismiss plaintiffs fraud claims are therefore denied.

2. Motion to Strike

Defendant Dorison moves pursuant to Fed.R.Civ.P. 12(f) to strike certain allegations of the amended complaint pertaining to other actions and proceedings, arguing they are irrelevant, prejudicial and will unfairly broaden the scope of discovery.

Because the Court finds that these allegations, if true, might be relevant with respect to whether or not Dorison acted fraudulently with respect to Aquarius, the motion to strike is denied. Any problems arising in connection with the scope of discovery as a consequence of the inclusion of these allegations may be presented to and dealt with by the Court at the appropriate time.

3. Motions to Dismiss the RICO Claims

The fifth and sixth claims of the amended complaint allege violations of the civil provisions of RICO. As discussed at oral argument, because the Supreme Court has agreed to review the Second Circuit’s decision in Sedima, S.P.R.L. v. Imrex Company, 741 F.2d 482 (2d Cir.1984), cert. granted, — U.S. —, 105 S.Ct. 901, 83 L.Ed.2d 917 (1985), the Court will not consider the motions to dismiss the RICO claims at this time. The parties shall submit a Stipulation and Order within ten (10) days of the date of this Opinion and Order either (i) severing and suspensing the RICO claims pending the Supreme Court’s ruling in Sedima, or (ii) dismissing the RICO claims without prejudice to reinstating them should that be appropriate in light of the Supreme Court’s ruling in Sedima, assuming of course that defendants agree to a tolling of the statute of limitations from the time of the filing of the complaint until the Supreme Court rules on this issue.

B. Motions for Class Certification

Plaintiff moves pursuant to Fed.R.Civ.P. 23 to have this action certified as a class action and to have plaintiff certified as class representative. Plaintiff defines the proposed class as all persons who purchased limited partnership interests in Aquarius pursuant to the Offering Memorandum, with the exception of any defendants herein.

In order to qualify for class action status, the Court must find that (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the proposed class representative are typical of the claims or defenses of the class, (4) the proposed representative will fairly and adequately protect the interests of the class, (5) common questions of law or fact predominate over individual questions, and (6) a class action is superior to other available methods for the fair and efficient adjudication of the controversy. Fed.R.Civ.P. 23(a) & (b)(3).

Defendants contend that the proposed class fails to satisfy the numerosity requirements of Rule 23(a)(1). Plaintiff concedes that the maximum possible number of class members in the instant action is thirty-three. In fact, it appears that the actual number may be significantly lower. Thus, this is clearly a case in which the numerosity requirements of the Rule are, at best, marginally met. But see Meyer v. Stevenson, Bishop, McCredie, Inc., [1975-76] Fed.Sec.L.Rep. (CCH) ¶ 95,548 (S.D.N.Y. May 11, 1976).

Plaintiff, however, argues that some-courts have stressed that mere numbers should not be dispositive, citing DeMarco v. Edens, 390 F.2d 836, 845 (2d Cir.1968). However, DeMarco involved precisely the reverse of the facts presented here. In that case, the Second Circuit stressed that merely because the numerosity requirements of the Rule were met, it did not follow that the Court should necessarily certify a class action. That case does not stand for the proposition that where the numerosity requirements of the Rule are at best marginally complied with, the Court should certify the class for other reasons.

Nor is the Court persuaded by other cases cited by plaintiff where courts have certified relatively small classes because of the impracticability of joining all class members in one action because they lived in widely dispersed geographic locations. Rule 23(a)(1) by its terms requires that the number of potential class members make joinder impracticable, and that is clearly not the case here.

Furthermore, the Court is not convinced that a class action is the most efficient means in which to resolve this case. Since it appears that all of the potential defendants have been sued in this action, any common questions of law or fact determined adversely to these defendants will in all likelihood have collateral estoppel effect against them in any subsequent action brought by another purported class member. Therefore, it is not clear that a class action is necessary to avoid multiple litigation of the same claims.

Defendants also argue that a class action should not be certified because plaintiff’s interests are inconsistent with those of other class members. See Green v. Santa Fe Industries, 82 F.R.D. 688, 690 (S.D.N.Y. 1979). They argue that to succeed in this action plaintiff must argue and prove that Aquarius was a sham, whereas as noted supra at note 6, other class members are contesting the Internal Revenue Service’s determination that the limited partnership lacked a valid business purpose. In fact, a number have requested the assistance of Leisure in this effort. See Affidavit of Michael Goldstone (Dec. 2, 1983). Given this additional factor, the Court sees no reason why it should certify a class in this case. The motion for class action certification is therefore denied.

In view of the denial of plaintiff’s class action motion for the reasons set forth above, the Court need not address the question of whether plaintiff’s counsel can adequately represent the class because she may lack the office and secretarial resources necessary to efficiently and thoroughly manage a class action.

CONCLUSION

For the reasons set forth in this Opinion and Order, it is hereby

ORDERED that:

1. The motions to dismiss the Amended Complaint as to defendants Drake, Wahl, MBBK & E, MBK & E, Eisenberg, Kuperstein, Male, Bodne, and Simon are granted, without prejudice;

2. The motions to dismiss the Amended Complaint as to defendants Leisure, Alphanumeric, Shore, Goldstone, and Cohan are denied;

3. Defendant Dorison’s motion to strike is denied without prejudice;

4. The parties shall submit a Stipulation and Order within ten (10) days of the date hereof, disposing of the third, fifth and sixth claims of the Amended Complaint, in accordance with this Opinion; and

5. Plaintiff’s motion for class action certification is denied.

It is further ORDERED that:

6. All parties shall complete discovery on or before October 30, 1985;

7. A Pre-Trial Order shall be prepared in accordance with the Court’s directions and shall be filed on or before December 16, 1985;

8. If the Pre-Trial Order is not filed on the date hereinbefore set forth, the Court will entertain appropriate applications to dismiss;

9. All parties shall be ready for trial of the above-captioned action on January 2, 1986, and thereafter counsel for all parties shall be prepared to proceed to trial on twenty-four hours notice by the Court; and

10. A Pre-Trial Conference shall be held on November 1, 1985 at 10:00 a.m.

It is SO ORDERED.

      . Defendants are the alleged promoters of Aquarius, Milton B. Dorison and Richard M. Firestone, the general partner of Aquarius, Leisure Transportation Inc. ("Leisure”), Leisure’s parent Alphanumeric Inc. (“Alphanumeric"), Michael Shore, Mitchell Goldstone, and Jeffrey Cohan, officers and directors of Alphanumeric and Leisure, Amity Financial Corp. (“Amity Corp."), a Delaware corporation which subleased coal mining property to Aquarius, Amity Financial, a Connecticut limited partnership of which Amity Corp. is general partner. Major Management Corp., a broker/dealer and underwriter of the offering of Aquarius limited partnership interests, Albert H. Wahl, president and controlling shareholder of Major Management Corp., Drake Financial, Inc. ("Drake”), a Florida corporation which allegedly loaned plaintiff the funds to purchase his Aquarius interests, Columbo Trust, N.V., a Netherland Antilles corporation and parent of Drake, Columbus Trust Company, Ltd., a Bahamian corporation and parent of Columbo Trust, N.V., Male, Bloom, Bodne, Kuperstein & Eisenberg ("MBBK & E"), a law firm, Male, Bodne, Kuperstein & Eisenberg ("MBK & E”), successor law firm to MBBK & E, Lance E. Eisenberg, Stanley H. Kuperstein, Michael H. Male, and Michael D. Bodne, partners of the MBBK & E firm, and Steven W. Simon, an associate of the law firm.
      Defendants Firestone, Major Management Corp., Columbo Trust, N.V., and Columbus Trust Co., Ltd. have all defaulted.

      . While the law firm defendants filed their motions pursuant to Fed.R.Civ.P. 12(b)(6) and 56, the Court has not considered any materials outside the amended complaint, and therefore treats this as a motion to dismiss, and not as a motion for summary judgment.

      . Plaintiff sues defendants MBBK & E, Eisenberg, Kuperstein, Male, Bodne, Leisure, Alphanumeric, Shore, Goldstein, and Wahl as principal violators of sections 10(b) and 17(a)(1), and Rule 10b-5. Leisure, Alphanumeric, Shore, and Goldstone are also sued as aiders and abettors, along with MBK & E, Simon, Drake, and Cohan.

      . The Court notes that while the amended complaint describes Wahl as a broker/dealer, plaintiff does not allege that Wahl was his broker.

      . Defendants Amity and Amity Corp., who are sued as aiders and abettors only, did not file motions to dismiss; however at oral argument their attorney indicated they might want to do so. The amended complaint alleges, inter alia, that Amity, through its general partner Amity Corp., subleased coal mining property to Aquarius for a minimum annual royalty of $2,012,573, without disclosing to investors that Amity Corp. leased that property for only $1,150 per year. See Amended Complaint ¶¶ (a)-(b), 73. This allegation may well provide a sufficient factual basis for inferring aiding and abetting as to the Amity defendants. Therefore, any Rule 9(b) motion by the Amity defendants would in all likelihood be denied.
      A number of other motions by defendants may be dealt with summarily. The attorney defendants move to dismiss pursuant to Rule 12(b)(6) for failure to allege reliance and due diligence by plaintiff. These motions clearly lack merit. Reliance is alleged in paragraph 36 of the amended complaint, and the Second Circuit has made it clear that plaintiff is not required to plead his own due diligence, see, e.g., Mallis v. Bankers Trust, 615 F.2d 68, 79 (2d Cir.1980), cert. denied, 449 U.S. 1123, 101 S.Ct. 938, 67 L.Ed.2d 109 (1981); see also Johnson & Staley, Inc. v. Bushan & Levy, P.C., 527 F.Supp. 1159, 1162 (S.D.N.Y.1981).
      The general partner defendants and Wahl also move to dismiss the claims brought pursuant to section 17(a) on the ground that there is no private right of action under that statute. The Second Circuit has held that a private right of action for fraud does exist under section 17(a). See, e.g., Kirshner v. United States, 603 F.2d 234, 241 (2d Cir.1978), cert. denied, 442 U.S. 909, 99 S.Ct. 2821, 61 L.Ed.2d 274; 444 U.S. 995, 100 S.Ct. 531, 62 L.Ed.2d 426 (1979). Until the Second Circuit holds differently, this Court declines defendants’ invitation to reconsider the Kirshner holding in light of subsequent Supreme Court cases.
      In any event, the Court does not agree that the Kirshner ruling should be extended to allow private actions for negligence pursuant to section 17(a) based upon the Supreme Court holding in SEC v. Aaron, 446 U.S. 680, 100 S.Ct. 1945, 64 L.Ed.2d 611 (1980), which held that in an SEC enforcement action negligence was sufficient to state a claim under section 17(a)(2) and (3). There is a substantial policy distinction between a private action for damages and an enforcement action brought by an agency charged with securing compliance with the securities laws.
      Moreover, the Second Circuit's holding in Kirshner was based on its conclusion that since a private right of action for fraud already existed under section 10(b), it would be pointless to deny a remedy for the same conduct pursuant to section 17(a). See 603 F.2d at 241. This reasoning does not support implying a private right of action for negligent conduct. Indeed, it is implicit in Ernst & Ernst v. Hochfelder, 425 U.S. 185, 96 S.Ct. 1375, 47 L.Ed.2d 668 (1976), that something more than negligence is required for an implied private action for damages which is not subject to the “significant procedural restrictions” which apply to civil actions for negligence expressly created by the securities laws. Id. at 208-10, 96 S.Ct. at 1388-89. Therefore, this Court finds no basis for implying a private right of action pursuant to section 17(a)(2) and (3) for negligent conduct. Plaintiffs negligence claim is therefore dismissed.
      To avoid any prejudice to plaintiff resulting from the dismissal of the negligence claim, the Court will grant plaintiffs request that the dismissal be without prejudice to reinstating that claim should the Second Circuit hold prior to the conclusion of this action that a private action for negligence exists pursuant to section 17(a)(2) or (a)(3). If the claim is reinstated, the Court will consider defendants’ argument that the negligence action was barred at the time the complaint was filed. Defendant’s motion to dismiss the negligence claim based on the statute of limitations is therefore denied without prejudice to it being renewed. The Court will not, however, dismiss the negligence claim at this stage of the litigation in the absence of an agreement by defendants to a tolling of the statute of limitations for the period between the filing of this complaint and such a ruling by the Second Circuit or the conclusion of this action, whichever shall first occur.

      . While there is some disagreement regarding the exact number, it appears that thirty-five persons purchased limited partnership interests in Aquarius. Two of these purchasers, however, are defendants in this action, and plaintiff specifically excludes them from the class. See Amended Complaint ¶ 6(a). Four of the thirty-three apparently are two married couples who each made a joint purchase. See Plaintiffs Reply Memorandum of Law in Support of Motion for Class Action Determination at 5-6. Furthermore, three Aquarius limited partners have instituted their own action for recission in federal district court in Maryland. See id. at 6; Affidavit of Richard J. Schulman ¶ 60 (Nov. 29, 1983). It is reasonable to assume these defendants will opt out of a class action seeking damages. Cf. Affidavit of Francis L. Valente (Dec. 2, 1983). Finally, some of the potential class members are contesting an Internal Revenue Service determination that their investments in Aquarius are not a basis for valid tax deductions. See, e.g., Affidavit of Mitchell Goldstone (Dec. 2, 1983). These purchasers, too, might chose to opt out of this action in which plaintiff will be attempting to prove that Aquarius was, in fact, a sham.


source: Caselaw Access Project

author: HAROLD H. GREENE, District Judge.

license: Public Domain

text:
    Raymond J. MILLER, et al., Plaintiffs, v. UNITED STATES of America, Defendant.
    Civ. A. No. 79-2405.
    United States District Court, District of Columbia.
    March 8, 1985.

      J. Lincoln Woodard, Washington, D.C., for plaintiffs Raymond Miller, Robert Johnson, Melvin Birch, Louis Brown, and Ezell Hardy.
    Louis Fireison, Mary P. Nyiri, Bethesda, Md., for plaintiffs Wallace Roney, Dwight Jackson, Felton Carmichael, William Penn, Ossie Bennett, Anthony Sprufero, Edward Morris, and Juanita McKoy.
    R. Lawrence Dessem, Judith F. Ledbetter, Theodore C. Hirt, Susan Riley, U.S. Dept, of Justice, Civ. Div., Washington, D.C., for defendant.
   OPINION

HAROLD H. GREENE, District Judge.

This Title VII suit, was originally filed as a class action. However, it became quickly apparent that not only was there no class within the meaning of the applicable rules but that many of the individuals named in the complaint had never heard of the lawsuit and had no intention of participating therein. Additional plaintiffs were dismissed for their failure to comply with such requirements as the filing of timely notice, failure to exhaust administrative remedies, or failure to comply with other jurisdictional prerequisites. Just recently, and again now (see Part IV infra), claims had to be dismissed because particular plaintiffs refused to participate in legitimate discovery.

The lawsuit is now in a procedural posture where, in the context of government motions to dismiss and for summary judgment, the remaining claims must be examined in some detail. It appears that, once again, almost all of plaintiffs’ claims challenged by the government are substantially flawed — procedurally, substantively, or both.

I

The government has moved for summary judgment with respect to the claims of eight of the remaining plaintiffs. That motion will be granted.

29 C.F.R. § 1613.214(a)(i) permits an employee who believes that he has been discriminated against to bring the fact of that discrimination to the attention of the agency’s EEO counselor within thirty days. It is well established that as a general matter a lawsuit alleging such discrimination may be maintained only if the employee has complied with that thirty-day filing requirement. Milton v. Weinberger, 645 F.2d 1070, 1074-77 (D.C.Cir.1981); Miller v. Smith, 584 F.Supp. 149, 151-52 (D.D. C.1984). The reasons for that requirement are obvious. It stems from the “congressional design to vest in the federal agencies and officials engaged in hiring and promoting personnel ‘primary responsibility’ for maintaining nondiscrimination in employment.” Kizas v. Webster, 707 F.2d 524, 544 (D.C.Cir.1983). Moreover, absent a start in the administrative process, there can be no exhaustion of that process — a condition precedent to the filing of a discrimination suit under Title VII. Id. See also Brown v. General Services Administration, 425 U.S. 820, 832, 96 S.Ct. 1961, 1967, 48 L.Ed.2d 402 (1976); Milton v. Weinberger, supra, 645 F.2d at 1074-77; Hoffman v. Boeing, 596 F.2d 683, 685 (5th Cir.1979).

In this case, all the plaintiffs filed substantially identical form complaints with EEOC personnel on November 3, 1976. Yet, with the exception of one plaintiff, Edward Morris, the acts of discrimination of which they complained occurred nowhere near the thirty-day period preceding that date: some of the plaintiffs rely on actions of the Marshal’s Service which occurred years earlier (typically in the early 1970s) or years later (as late as last year). However, none of the plaintiffs filed administrative complaints within the thirty days after these subsequent alleged acts of discrimination occurred; by and large the plaintiffs simply rely on their administrative complaint of November 1976 as the jurisdictional prerequisite for their lawsuit. But that complaint, as noted above, is untimely and entirely insufficient.

Plaintiffs attempt to overcome this infirmity by reliance on the theory of continuing discrimination, arguing that the “[s]trict application of any time limits set forth in the Federal Regulations is not appropriate here as the Plaintiffs have been subjected to a continuing course of discriminatory conduct....” Memorandum of Points and Authorities at 9. See United Air Lines, Inc. v. Evans, 431 U.S. 553, 97 S.Ct. 1885, 52 L.Ed.2d 571 (1977).

II

It is useful at this juncture to analyze the posture of this case. The government has moved for summary judgment, and the question therefore is whether there are genuine issues of material fact which would preclude the granting of that motion. One of the elements of plaintiff’s case is the submission of timely administrative complaints of discrimination, but, as discussed supra, they cannot meet that requirement. The next level of inquiry, therefore, must be whether a systematic pattern of discrimination existed which would excuse the failure to file timely complaints. The existence of such a pattern has also been placed in issue by the government’s motion, and the Court must now inquire whether there is a genuine issue of material fact with respect to the existence, not of individual acts of discrimination, but of systematic, continuing discrimination. It is to that question that the Court now turns.

To establish a continuing violation, a plaintiff must show either (1) a series of related acts, one or more of which falls within the limitations period, or (2) the maintenance of a discriminatory system both before and during the limitations period. Valentino v. United States Postal Service, 674 F.2d 56, 65 (D.C.Cir.1982); B. Schlei & P. Grossman, Employment Discrimination Law at 232 (Supp.1979). Except for Morris; none of the plaintiffs satisfies the first test, and in any event, plaintiffs are not relying upon it as a basis for their claims. Rather, they allege that the U.S. Marshal’s Service maintained a discriminatory system both before and during the limitations period.

Plaintiffs, however, have not identified, through the submission of factual evidence, any specific employment practice or policy of the United States Marshal’s Service relating to promotions, special assignments, education and training programs, or discipline which existed during the limitations period, or which exist today, that are racially discriminatory. Instead, they cite to a number of instances where they did not receive certain benefits and argue that this proves that the Marshal’s Service is engaged in a continuing course of discriminatory conduct.

The record before the Court reveals that each of the promotion decisions which plaintiffs challenge involved merit promotions for which specific application had to be made, and the disciplinary decisions, special assignments, and selections for education and training programs were likewise made on a case-by-case basis and, by their very nature, they were not continuing. These discrete acts do not fit the continuing violation theory, McKenzie v. Sawyer, 684 F.2d 62, 72 (D.C.Cir.1982); Stoller v. Marsh, 682 F.2d 971, 975 (D.C.Cir.1982); Milton v. Weinberger, supra, 645 F.2d at 1076-77; Klapac v. McCormick, 640 F.2d 1361, 1366 (D.C.Cir.1981), especially where, as here, no present violation exists. United Air Lines, Inc. v. Evans, supra, 431 U.S. at 557-58, 97 S.Ct. at 1888-89.

To be sure, the systematic denial of promotions or other systematic discriminatory personnel actions may, in appropriate circumstances, be regarded as the maintenance of a discriminatory system and, on that basis, a plaintiff may sweep into his proof employer activities which would otherwise be untimely. Fisher v. Procter and Gamble Manufacturing Co., 613 F.2d 527, 543 (5th Cir.1980); Allen v. Amalgamated Transit Union Local 788, 554 F.2d 876, 881 (8th Cir.1977). It is also clear, however, that the decision on whether the case is, in fact, one of continuing discrimination, must be made by the Court on a case-by-case basis Delaware State College v. Ricks, 449 U.S. 250, 258 n. 9, 101 S.Ct. 498, 504 n. 9, 66 L.Ed.2d 431 (1980).

With respect to that issue, the Court would uot be justified in relying solely on the plaintiffs’ own conclusory and unsubstantiated assertions; if such assertions constituted the appropriate test, any party could escape the time limits imposed by law simply by making sweeping statements. In a case where a particular plaintiff’s claim of systematic discrimination is not challenged, a court would, of course, be justified in trying that claim on a continuing violation theory. However, in the instant case, defendants have produced a very substantial record consisting of deposition testimony, affidavits, admissions, and uncontradicted statements of material fact which reveal that this ease is not one of systematic discrimination. Compare Catrett v. Johns-Manville Sales Corp., 756 F.2d 181 (D.C.Cir.1985). As noted below, the evidence, viewed in the light most favorable to plaintiffs, consists only of a few isolated prima facie claims of discrimination, all of which occurred long before or long after the filing of plaintiffs’ EEO complaint.

In order to establish a prima facie case, a plaintiff must show, inter alia, (1) that he belongs to the protected group, (2) that he was qualified for the particular personnel benefit {e.g., promotion), (3) that he applied for that benefit (where application was required), and (4) that other employees with similar qualifications who were not part of the protected group were given those benefits at the time they were denied to the plaintiff. Freeman v. Lewis, 675 F.2d 398, 400 (D.C.Cir.1982). The vast majority of plaintiffs’ claims fail to satisfy this test.

Thus, many of the plaintiffs cannot allege facts which would demonstrate that they applied for or were at all qualified for the promotions, training opportunities, or special assignments they were seeking, and others cannot identify any particular white employee or employees who were treated more favorably. Indeed, the beneficiaries of many of the personnel actions of which plaintiffs complain were other black employees, sometimes even other plaintiffs in this lawsuit.

It is also significant, at least in a context where the Court is attempting to discern whether a viable claim of systematic discrimination exists, that many of the supervisors charged with racial discrimination are themselves black. In addition, the EEO Officer of the U.S. Marshal’s Service, the Department of Justice Complaint Adjudication Officer, and Equal Employment Opportunity Commission all found the claims of these plaintiffs to be without merit.

In sum, when the record before the Court is analyzed, what remains of plaintiffs’ charges are: first, generalized, sometimes sweeping allegations of race discrimination without specific factual support' which, when examined in juxtaposition with the precise affidavits and other documents filed by the government, are clearly inadequate to establish genuine issues of material fact; and second, a number of discrete personnel actions that are supported by more specific allegations and which raise genuine factual disputes, but which are far too sporadic and diffuse to permit plaintiffs to escape the time limits of the regulations on a systematic discrimination theory.

Since the claims of the plaintiffs are untimely, the government’s motion for summary judgment will be granted, and the claims of Dwight Jackson, Felton Carmichael, William Penn, Ossie Bennett, Anthony Sprufero, Edward Morris, Juanita McKoy, and Robert Johnson will be dismissed.

Ill

The government has moved for partial summary judgment with respect to those claims of Wallace Roney which arose prior to April 4, 1976. It appears that Roney had filed a number of discrimination complaints against the Marshal’s Service as far back as 1973. The two lawsuits filed in June of that year, Black Deputy United States Marshals Organization v. United States, C.A. No. 1081-73 (D.D.C.), and Roney v. Richardson, C.A. No. 1268-73 (D.D. C.), were dismissed by Judge Corcoran of this Court; a third action filed in December 1973, Roney v. Saxbe, 380 F.Supp. 1191 (D.D.C.1974), was dismissed on jurisdictional grounds on August 5, 1974; and a fourth action Miller v. Saxbe, C.A. No. 74-1604 (D.D.C.), was filed in November 1974. Judge Gesell dismissed Roney’s claim for backpay and promotions on March 7, 1975, on the ground that Judge Corcoran’s decision of August 5, 1974 es-topped Roney from raising any claims against the federal government. Miller v. Saxbe, 396 F.Supp. 1260 (D.D.C.1975). And on February 23, 1976, the parties settled the remaining claims in the Miller v. Saxbe action: Miller was promoted; Roney and Miller were paid $16,000 in attorney’s fees; a committee was established to study the operations of the U.S. Marshal’s Office in the District; the government agreed not to engage in reprisals; and Roney and Miller agreed to withdraw all pending EEO complaints. In his. letter to the EEO Officer of the Marshal’s Service withdrawing his complaints, Roney stated that he understood that “I may not file another complaint at a later time alleging the same issues.”

The government argues in its present motion that, both on grounds of res judicata and on the basis of the settlement, the Court lacks jurisdiction to consider Roney’s claims arising prior to April 4, 1976. That argument is well taken.

It is clear — and Roney does not dispute — that the discrimination claims he seeks to raise in this case were dismissed on jurisdictional grounds by Judges Corcoran and Gesell in the earlier cases. Those dismissals although not “on the merits” for res judicata purposes, are conclusive as a “direct estoppel” on the jurisdictional issues actually decided. See IB Moore’s Federal Practice ¶ 0.405[5] at 231-33; Miller v. Saxbe, 396 F.Supp. 1260, 1261-62 (D.D.C.1975).

Additionally, Roney is barred by the February 23, 1976 settlement agreement in which he undertook, for substantial consideration, not to raise the events covered by this action in subsequent administrative or judicial claims. Plaintiff contests the efficacy of that settlement on two bases. First, he argues that the pre-1976 matters should be considered on a continuing violation theory. That argument is unavailable, however, both because the settlement contains no such limitation and because, for the reasons discussed in Part II supra, that theory is unavailable under the circumstances of this case.

Second, Roney relies on representations made by the government in the Court of Appeals, which that court noted in its affirmance, to the effect that the government “will not oppose presentation [in this action] of any facts or circumstances that might have been raised in a reopened proceeding.” No facts or circumstances involving claims against the government and relating back prior to April 1976 could have been raised in that reopened proceeding for such claims had been dismissed in March 1975, eleven months before the settlement. The reopened proceeding, and the Court of Appeals reference thereto, related entirely to allegations of discrimination and retaliation occurring after the settlement, which the Court of Appeals assumed would be considered by this Court. Such allegations will, of course, be considered as part of this action.

Accordingly, the government’s motion for partial summary judgment with respect to the claims of Wallace Roney will be granted.

IV

The government has moved to dismiss the claims of three plaintiffs — Miller, Brown, and Hardy — for failure to comply with legitimate discovery. Another plaintiff, Melvin Birch, who had previously failed to comply with the government’s discovery requests, has now filed a motion for the appointment of counsel or, in the alternative, for voluntary dismissal of his claims. These will now be considered.

1. Raymond J. Miller

As the Court noted in its Memorandum of February 5,1985, Miller refused on several occasions to provide deposition testimony. Indeed, at a status call on November 16, 1984, the Court stated that if Miller (and other plaintiffs) did not appear for the depositions then again being scheduled, it would entertain a renewed motion to dismiss as a sanction for not showing up for the depositions. Tr. at 9. Nevertheless, Miller again failed to appear for his deposition on November 27, 1984. When the government filed its second motion to dismiss, the Court attempted, once again, to save Miller’s lawsuit, stating that, in view of some confusion regarding Miller’s attempt to secure new counsel, it would not dismiss his action. The Court, however, also made it clear that Miller’s deposition was finally to take place immediately. An agreement was reached between counsel to conduct that deposition on February 12. However, once again, Miller did not show up. The only explanation that he has provided is that he “acted out of frustration in deciding not to attend a deposition for the Government on February 12, 1985” because he “thought it was a fruitless and useless act” since he was without financial means to hire another lawyer. Affidavit at 3-4. Given Miller’s flagrant record of failure to comply with legitimate discovery, that is not a valid excuse. Accordingly, the government’s motion to dismiss Miller’s claim will be granted, and his action will be dismissed with prejudice.

2. Melvin Birch

Much of what is related above with respect to Raymond J. Miller applies also to Melvin Birch. Like Miller, Birch has failed and refused to attend various scheduled depositions, despite admonitions from the Court to comply with the discovery rules applicable to all litigants. However, it seems that, unlike Miller, Birch appeared for his deposition in February of 1985 — at least the government has not stated that he did not. In view of that circumstance, the Court will grant Birch’s motion for voluntary dismissal, and it will do so without prejudice.

3. Louis Brown and Ezell Hardy

These two plaintiffs have failed to provide deposition testimony as required both by the Rules and by an order of Magistrate Burnett. On November 29, 1984, the government moved to dismiss on this basis, but the Court held the motion in abeyance, noting that it would be a financial hardship for these plaintiffs to travel from California to the District of Columbia for depositions. The government, in renewing its motion, argues that Brown and Hardy are not merely recalcitrant but are also acting in bad faith since Hardy is still employed by the Marshal’s Service at an annual salary of over $29,000 and Brown, who is no longer employed by the Marshal’s Service, is still pursuing other litigation against the Marshal’s Service in the District with private counsel, even though he is proceeding pro se in this case. The government also notes that if, as the Court contemplated, the depositions of these plaintiffs were taken in California, it would require travel to that State by government counsel as well as counsel for the other plaintiffs — an unwarranted imposition upon all these individuals.

Trial in this case is set for March 25, 1985, and pretrial for March 14, 1985. Under Local Rule 1-15(c) and a Memorandum and Order of January 30, 1985, plaintiff Brown and Hardy, who are proceeding pro se, are required to appear for that pretrial conference. Thus, unless they are to forfeit their right to proceed further with this litigation, they will have to be in the District of Columbia in any event on March 14. The Court realizes that the pretrial is only a week and one-half from the trial date, and that therefore the government may not have fully adequate time within which to take the depositions of these defendants and to make full use thereof for purposes of any additional motions or for trial. Nevertheless, it does seem, on balance, that the claims of plaintiffs Brown and Hardy should not be dismissed because they failed to travel to Washington, D.C., twice during a relatively short period of time.

Accordingly, the Court will once again deny the government’s motion to dismiss, with the expectation, however, that Brown and Hardy will make themselves available for depositions on March 14, 1985, or prior thereto, at a time and place in the District of Columbia specified by government counsel. Should these plaintiffs fail to comply with that requirement, the Court will grant a renewed government motion to dismiss.

An order in accordance with these rulings is being issued contemporaneously herewith.

ORDER

For the reasons stated in a Memorandum filed this date, it is this 8th day of March, 1985

ORDERED that the defendant’s motion for summary judgment as to plaintiffs Dwight Jackson, Felton Carmichael, William Penn, Ossie Bennett, Anthony Sprufero, Edward Morris, Juanita McKoy, and Robert Johnson be and it is hereby granted; and it is further

ORDERED that the actions of Dwight Jackson, Felton Carmichael, William Penn, Ossie Bennett, Anthony Sprufero, Edward Morris, Juanita McKoy, and Robert Johnson be and they are hereby dismissed with prejudice; and it is further

ORDERED that the defendant’s motion for partial summary judgment concerning the claims of plaintiff Wallace Roney arising prior to April 4, 1976, be and it is hereby granted; and it is further

ORDERED that the claims of plaintiff Wallace Roney arising prior to April 4, 1976, be and they are hereby dismissed with prejudice; and it is further

ORDERED that the defendant’s motion to dismiss plaintiff Raymond Miller for his refusal to provide deposition testimony be and it is hereby granted; and it is further

ORDERED that the action of plaintiff Raymond Miller be and it is hereby dismissed with prejudice; and it is further

ORDERED that the motion of plaintiff Melvin Birch for voluntary dismissal be and it is hereby granted; and it is further

ORDERED that the action of Melvin Birch be and it is hereby dismissed without prejudice; and it is further

ORDERED that the defendant’s motion to dismiss plaintiffs Louis Brown and Ezell Hardy be and it is hereby denied without prejudice to a renewed motion to dismiss if the above-named plaintiffs do not make themselves available for depositions on March 14, 1985, or prior thereto, at a time and place in the District of Columbia specified by government counsel.

      . Section 717 of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-16.

      . Fed.R.Civ.P. 23(a).

      . See Order of October 31, 1980, denying plaintiffs’ motion for class certification at 3. See also Court’s orders of September 3, 1981, September 20, 1984 (granting counsel’s motion for leave to withdraw as counsel for various plaintiffs because they did not communicate with counsel), and orders of September 2, 1983, November 19, 1984, and December 21, 1984 (dismissing the claims of many of these same plaintiffs for failure to prosecute).

      . See Order of September 3, 1981, and Memorandum and Order of MarcK 19, 1984.

      . See Memorandum Order dated February 5, 1985, dismissing the action of plaintiff Starlord Pickett.

      . Dwight Jackson, Felton Carmichael, William Penn, Ossie Bennett, Anthony Sprufero, Edward Morris, Juanita McKoy, and Robert Johnson.

      . This must be done within thirty days of the alleged discriminatory activity or, if a personnel action is involved, within thirty days of its effective date.

      . In addition to filing these form complaints, plaintiffs Juanita McKoy and Dwight Jackson also filed individual complaints on June 25, 1976, and August 11, 1976, respectively. Felton Carmichael and William Penn also filed separate informal complaints with the Marshal’s Service EEO Office, but both plaintiffs withdrew their informal charges on February 12, 1976.

      . Morris is the one exception; but while denial of one of his promotions occurred within the thirty-day period, the dozens of other discriminatory actions of which he complains took place long before or long after the time he filed his administrative complaint. In any event, Morris has failed to allege any facts to establish a timely prima facie claim of racial discrimination or retaliation in connection with promotions, education, training, discipline, or special assignments. See also, note 24, infra.

      . For the reasons explained more fully below, this is not a case of continuing discrimination. Thus, the incidents of alleged discrimination occurring after the filing of the plaintiffs’ EEO complaint cannot be considered so closely related to their earlier claims that further agency action would have been redundant. See Brown v. Puget Sound Electrical Apprenticeship and Training Trust, 732 F.2d 726, 730 (9th Cir.1984).

      . Thus, plaintiffs have not challenged, as racially discriminatory, the rating or ranking procedure used by the United States Marshal’s Service to determine the "best qualified" applicants for the position in question.

      . Plaintiffs do assert that the past promotion policies of the Marshal’s Service could, and in fact were, manipulated to discrimination against black applicants. In support of this claim, plaintiffs cite to a 1973 investigative report of the Complaint Adjudication Officer and a subsequent Report issued by the Taft Committee which criticized the promotion panel system previously in effect as racially insensitive. These reports further found that some of the panel’s promotion decisions reflected "favoritism" and a “buddy system.” However, this promotion panel system was replaced effective August 2, 1976 — almost four months before plaintiffs filed their administrative complaint. Plaintiffs have not challenged the promotion practices and procedures currently in place. See note 11, supra. Thus, even assuming arguendo, that the past promotion panel system was discriminatory, plaintiffs cannot use the continuing violation theory to resurrect claims about discriminatory conduct concluded in the past.. McKenzie v. Sawyer, 684 F.2d 62, 72 (D.C.Cir. 1982).

      . Under plaintiffs’ theory, the mere fact that they, as black deputies, were denied certain promotions, special assignments, and educational and training opportunities, is sufficient to state a prima facie case of race discrimination. That is not the law.

      . Affidavits of Kenneth C. Holecko (Personnel Officer, United States Marshal’s Service) and Donna Mitchell (Special Assignment Coordinator of the Marshal’s Service from 1971 to 1978).

      . The Court is mindful of its duty, in the context of a motion for summary judgment, to construe all evidence and to resolve all inferences that can be drawn therefrom in favor of plaintiffs. Plaintiffs, however, continue in the main to rely upon sweeping and conclusory allegations of discrimination, and they have largely failed to allege specific names, dates, or underlying facts to establish timely prima facie claims. Thus, summary judgment is appropriate.
      The alternative, to await testimony at trial, would involve an enormous waste of judicial and other resources since the various plaintiffs are each alleging a very large number of discrete acts of discrimination the vast majority of which lack legal validity and which, for the reasons discussed below, therefore cannot be regarded as constituting components of a systematic discrimination scheme.

      . At trial, plaintiffs would have the burden of proving a prima facie case of discrimination by a preponderance of the evidence. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 1093-94, 67 L.Ed.2d 207 (1981). If plaintiffs are unable to allege specific facts in opposition to defendants’ motion for summary judgment, which would show that they could present a prima fade case, summary judgment must be granted. Minor v. Lakeview Hospital, 434 F.Supp. 633, 635 (E.D. Wis.1977), aff’d, 582 F.2d 1284 (7th Cir.1978).

      . E.g., promotion claims of Dwight Jackson.

      . E.g., promotion and training claims of Dwight Jackson; training claims of Felton Carmichael; discipline claim of Robert Johnson; non-conversion claim to permanent status of Juanita McKoy.

      . See, e.g., the promotion claim of Penn; one of Sprufero’s training claims; the special assignment claims of Johnson.

      . See, e.g., the promotion claims of Carmichael; the special assignment claim of Bennett.

      . See, e.g., the training claim of Penn. Although that circumstance is not in itself fatal to plaintiffs’ claims, it does not enhance the overall credibility of their systematic discrimination theory.

      . To be sure, the proceedings before the Court are de novo. However, the singular unanimity of the various equal employment opportunity bodies lends credence to the Court’s conclusion that invocation of the systematic discrimination exception to the time limits is inappropriate. This conclusion is not undermined by a May 1973 order of a Complaint Adjudication Officer or by the January 1977 report of the so-called Taft Committee. See note 12, supra. As for the former, it is outdated by the corrective measures which that Officer himself found in March and May 1975; the latter focused more generally on the operations of the District of Columbia Marshal’s Service Office and its promotion and assignment practices, and it concluded that the "EEO program has been effective on the merits of the issues and cases it has considered” (Report, p. 37).

      . Typical is Felton Carmichael’s claim that he applied for five promotions — one in 1974 and four in 1978. However, at his deposition, plaintiff testified that he could not "recall at this time" whether he applied for any promotions other than one for a criminal investigator position in August 1984, and he produced no documents to support his claim although he had been directed to produce at the deposition all documents on which he intended to rely at trial. The files of the Marshal’s Service show no record of any applications other than the one made in August 1984. The Court notes that of the 32 deputies who received such criminal investigator promotions in 1984, twenty-seven are black and four of these 27 are plaintiffs in this lawsuit.
      Similarly, while Carmichael testified that several white deputies received training, he could not state that any of these deputies received the specific type of training that he was eligible to receive.

      . The claim of Edward Morris with respect to merit promotion 78-18 was timely; however, an uncontradicted affidavit of Kenneth C. Holecko states that he did not make the best qualified list for that promotion, and that he was therefore ineligible to receive it.

      . Judge Corcoran granted plaintiffs motion for voluntary dismissal of the first action because of the similarity between it and C.A. 1268-73. The latter action was subsequently dismissed due to Roney's failure to exhaust his administrative remedies.

      . Roney failed to bring the action within thirty days after the final agency action was issued on his 1972 and 1973 administrative complaints.

      . April 4, 1976 is thirty days before Roney filed his initial complaint with an EEO counselor after February 12, 1976 — the date on which he agreed to withdraw, with prejudice, all of his pending EEO complaints against the Marshal’s Service.

      . Miller v. Civiletti, 652 F.2d 196 (D.C.Cir.1981). This appeal was from the decision by Judge Gesell denying Roney’s motion to reinstate and. amend the 1974 complaint in Miller v. Saxbe.

      . This explanation is contained in an affidavit attached to a Motion for Court-appointed Counsel or in the Alternative for Voluntary Dismissal. A separate motion, filed February 25, 1985, requested an extension of time in which to answer the government’s motion to dismiss until after the Court had ruled on plaintiffs own motion. Even though the Court did not grant the motion for an extension, plaintiff has failed to file his opposition to the government's motion to dismiss. In any event, the substance of any such opposition is plainly included in his own motion and the affidavit attached thereto, and the Court has fully considered the explanations proferred therein.

      . This, of course, moots and disposes of plaintiffs own Motion for a Voluntary Dismissal or for the Appointment of Counsel.

      . There is no basis for Birch’s request for the appointment of counsel. Birch has failed to cooperate with counsel in the past and, as indicated, he has completely failed to comply with the Federal Rules regarding discovery. Moreover, as an employee of the U.S. Marshal’s Service, this plaintiff earns an annual salary of $21,982.00. The motion for the appointment of counsel will accordingly be denied.

      . There had been a previous motion to dismiss for failure to comply with discovery, filed on November 15, 1984.

      . Louis Brown v. Department of Justice, U.S. Marshal’s Service, No. 85-0513 (Fed.Cir.).


author: BILLINGS, District Judge.

text:
    Helen HORTON v. TOWN OF BENNINGTON.
    Civ. No. 84-47.
    United States District Court, D. Vermont.
    March 8, 1985.
    Jane A. Adams, Bennington, Vt., for plaintiff.
    Bennett Evans Greene, Milton, Vt., for defendant.
   OPINION AND ORDER

BILLINGS, District Judge.

INTRODUCTION

Plaintiff brings this action pursuant to Title VII of the Civil Rights Acts of 1964. 42 U.S.C. § 2000e et seq. on account of discrimination with respect to compensation in employment on the basis of plaintiff’s sex.

On November 10, 1983, the Notice of Right to Sue was issued by the Civil Rights Division of the Department of Justice (plaintiff’s exhibit 46).

FACTS

The defendant, a municipal corporation located in the County of Bennington, State of Vermont, employed the plaintiff on January 2,1979, as a bookkeeper in the municipal office at a salary of $3.50 per hour. At that time her duties were primarily to help the then Town Manager with the budget, and to aid in the preparation of reports for the state and federal governments for the years 1977 and 1978. At the same time Michael Zinna was Town Accountant, (See defendant’s exhibit C), and had been for approximately two years. After Town Meeting, 1979, there being dissatisfaction with the performance of both the Town Manager and Town Accountant, the Town Accountant and Town Manager resigned and thereupon Edward Lamb, a former Town Manager, was employed as temporary Town Manager while the Selectmen advertised and searched for a permanent manager.

On March 26, 1979, the former Town Accountant finally left the office and the plaintiff, after talking with the Selectmen, was designated as bookkeeper, and was asked to oversee the accounting department, which consisted of two other women. Plaintiff did not wish the job as Town Accountant, but having knowledge that the books were far behind in entries, she agreed to help out for a period of three weeks. As of April, 1979, Mr. Lamb became Acting Town Manager, no one having been hired as permanent Town Manager, and, no one having been hired as Town Accountant, plaintiff agreed to continue in her present job, and the new Town Manager decided to maintain the status quo and not to hire a Town Accountant.

On April 3, 1979, the temporary Town Manager indicated to the Selectmen that a Town Accountant should be replaced, but in the meantime designated the Town Treasurer to oversee the accounting office. (Plaintiff’s exhibit 14.) As of April 8, 1979, plaintiff’s salary was increased to $4.50 per hour. Her duties at that time consisted of keeping the books, making journal entries and preparing monthly summaries for the Town Manager and Selectmen, but did not consist of any analysis of the accounts or making recommendations in connection therewith.

Although the temporary Town Manager advertised for a position of permanent Town Manager in May or June, 1979, he only received a few responses and he interviewed two individuals. None had the qualifications and it was then decided not to hire a Town Accountant, so the plaintiff continued as bookkeeper. At that time plaintiff didn’t request to be named Town Accountant, or request the salary of the former Town Accountant. The Town Manager, by memoranda, advised all persons in the Town office that plaintiff was the nominal person in charge of the accounting department (Defendant’s exhibit F). Mr. Lamb felt plaintiff was doing a competent job as bookkeeper, and on his recommendation her salary, as of July 1, 1979, was raised to $5.00 per hour.

As of September 1, 1979, Robert Mattison became permanent Town Manager. He decided not “to shake the tree”, so continued plaintiff as bookkeeper and secured accounting services from the accounting firm that was normally employed to audit the Town’s books. The Town Manager continued plaintiff’s employment as head bookkeeper, but in recognition of her performance, and without changing the duties to which she was assigned, recommended to the Selectmen to confer upon her the title of Town Accountant, and to either pay her a salary of $12,500 per annum, or at the rate of $6.00 per hour. As of November 27, 1979, plaintiff was appointed Town Accountant at a salary of $12,500 per annum (plaintiff’s exhibits 27 and 42).

Subsequent thereto, plaintiff on several occasions inquired of the Town Manager why she was not receiving the same salary as the prior Town Accountant. The Town Manager based plaintiff’s salary on her prior experience, only as a bookkeéper, the accounting now being done by the Certified Public Accountants, plaintiffs personality problems with others in the accounting department, particularly one individual, the fact that plaintiff was not qualified to give analysis or other work generally performed by an accountant, and the fact that she was unable to do so because of her abilities.

On July 1, 1980, at the time all other town employees received raises, plaintiff's salary was raised to $14,650, without a change in duties. The plaintiff discussed her salary with the Town Manager, and again stated that she should have the same salary as the prior Town Accountant — Zinna. The Town Manager indicated that maybe she would get the salary raise by the end of December, 1980. In early December, 1980, plaintiff advised that she would resign effective December 31, 1980. Although due to the fact that at that time there was no one to take her place, she made an agreement with the Town Manager to stay on part time, still continuing with her same duties at an agreed salary of $80 per week (plaintiffs exhibit 43). The salary was set by agreement in consideration of not jeopardizing and losing plaintiffs social security benefits. Plaintiff continued to work part time until May 6, 1981.

At the time of her formal termination in December, 1980, she received compensation for 58V4 hours comp, time, four weeks vacation time, accumulated sick leave, and two full weeks pay for the weeks of December 27, 1980 and January 3, 1981 (she having worked full time during those two weeks), minus deductions for old age benefit, federal and state withholding, and Christmas Club, so that she received a net payment of $2,605.27, despite the fact that the Town had no policy to pay salaried employees comp, time, sick leave or vacation time.

In April, 1981, the Town hired a Town Accountant with many years of experience and training in accounting, (defendant’s exhibit D) at a salary of $15,000. Plaintiff again contacted the Town Manager and was upset that the newly hired Town Accountant was receiving a salary more than she was paid. The Town Manager discussed this matter with her and pointed out that the new employee’s training and experience were more than plaintiff’s; in that plaintiff’s training and experience consisted mainly of secretarial and bookkeeping positions. The only credible evidence as to the salary disparity in employment, based on an inference of gender discrimination, is the fact that the prior Town Accountant, and the successor Town Accountant, received a higher level of salary than plaintiff, although the credible evidence clearly shows that the duties performed and required by the prior Town Accountant and the successor Town Accountant were completely different than those undertaken by plaintiff.

DISCUSSION

To prove her claim of sex-based wage discrimination, plaintiff must prove a prima facie case of disparate treatment by the preponderance of the evidence. Spaulding v. University of Washington, 740 F.2d 686 (9th Cir.) cert. denied, — U.S. —, 105 S.Ct. 511, 83 L.Ed.2d 401 (1984). The burden of production then shifts to the defendant to articulate some legitimate, non-discriminatory reason for the pay' disparity. Finally, should the defendant carry this burden, the plaintiff must then have an opportunity to prove, by a preponderance of the evidence, that the legitimate reasons offered by the defendant were not its real reasons, but were a pretext for discrimination. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981); McCluney v. Joseph Schlitz Brewing Company, 728 F.2d 924 (7th Cir.1984). The ultimate burden of persuading the trier of fact that defendant intentionally discriminated against plaintiff, remains at all times with the plaintiff. Burdine, supra, at 253, 101 S.Ct. at 1093.

The disparity of salary between males and females alone is insufficient to establish sex based wage discrimination. Spaulding, supra, at 700. Discriminatory intent may not be inferred from existence of wage differences between jobs that are only similar, the comparability of duties and job description can be relevant to determine if one can infer discriminatory animus in a disparative wage case, but plaintiff must still prove intent to discriminate. Spaulding v. University of Washington, supra, at 700-701. In disparative treatment cases, direct or circumstantial proof of discriminatory motive is proper. International Brotherhood of Teamsters v. United States, 431 U.S. 324, 335 n. 15, 97 S.Ct. 1843, 1854 n. 15, 52 L.Ed.2d 396 (1977). Evidence of substantially equal work is relevant in making this determination. Each case, in order to support an inference that plaintiff was discriminated against, depends on its own facts. Spaulding v. University of Washington, supra, at 700. Peters v. Lieuallen, 693 F.2d 966, 969 (9th Cir.1982).

Here the credible evidence shows that although the title of Town Accountant was conferred upon the plaintiff, her duties were that of a bookkeeper, as contrasted to the duties of her predecessor or successor, and that her salary scale was based on the duties assigned, and her ability. There is no credible evidence that there was wage discrimination based on sex. Plaintiff has merely shown the disparative salaries between herself and her predecessor and successor, and this is insufficient as a matter of law. Plaintiff has failed in her burden of proof. Judgment entered for the defendant.

SO ORDERED.


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

text:
    Ellis Khalil Bechari SANDERS, Jr., Petitioner, v. Vernon HOUSEWRIGHT, et al., Respondents.
    No. CV-R-83-171-ECR.
    United States District Court, D. Nevada.
    March 8, 1985.

      Ellis Khalil Bechari Sanders, in pro per.
    D. Brian McKay, Atty. Gen., Carson .City, Nev., for respondents.
   ORDER

EDWARD C. REED, Jr., District Judge.

Ellis Sanders, Jr., petitions this Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In support of his petition, Sanders alleges that the trial court erred in (1) denying his motion in limine to suppress the nature of his prior convictions and also in (2) refusing to sustain his objection to the prosecutor’s closing remarks, to admonish the jury and to grant his motion for a mistrial.

Sanders was tried by jury and convicted in state court on March 21, 1979, of robbery, use of a deadly weapon in the commission of a crime and possession of a. firearm by an ex-felon. He appealed his conviction to the Nevada Supreme Court on the above two grounds and on April 9, 1980, the conviction was affirmed on the merits as to both. Sanders v. State, 96 Nev. 341, 609 P.2d 324 (1980). Thus, Sanders has exhausted his state court remedies. Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). See also Hall v. Sumner, 682 F.2d 786 (9th Cir.1982).

Sanders has requested an evidentiary hearing in this matter but, upon examination of the record, this Court finds that one is not warranted. The Supreme Court has identified six circumstances in which a federal habeas petitioner has a right to an evidentiary hearing. Townsend v. Sain, 372 U.S. 293, 313, 83 S.Ct. 745, 757, 9 L.Ed.2d 770 (1963). They are: (1) the merits of the factual dispute were not resolved in the state hearing; (2) the state factual determination is not supported by the record as a whole; (3) the fact-finding procedure employed by the state was not adequate to afford a full and fair hearing; (4) there is a substantial allegation of newly discovered evidence; (5) the material facts were not adequately developed at the state court hearing; or (6) for any reason it appears that the state trier of fact did not afford the habeas applicant a full and fair fact hearing. Sanders has failed to establish that any one of the above circumstances exists in the present .case and a careful review of the record demonstrates that an evidentiary hearing is not warranted.

Sanders argues that the trial court abused its discretion in denying his motion in limine to exclude from the jury evidence of the nature of his prior convictions. Since he did not take the stand, Sanders claims that the nature of the prior convictions for attempted robbery and rape could not be admitted to impeach him under NRS 50.095 and was too prejudicial when he was being tried in the present case for robbery.

A careful review of the record shows that evidence of the nature of Sanders’ two prior convictions was not offered for impeachment purposes, nor to show intent, motive, knowledge or identity. It was offered solely for the purpose of proving that he was an ex-felon, an element of one of the crimes charged. Sanders had offered to stipulate to this fact and moved to exclude the details. The trial court denied his motion, in part on procedural grounds of lack of notice, and exemplified copies of the previous judgments of conviction against Sanders were entered into evidence.

In reviewing the denial of Sanders’ motion, the Nevada Supreme Court made several observations pertinent here. On the one hand, the court found that the prosecutor is not required to stipulate to any elements of the crime charged if the stipulation would impair the effectiveness of the prosecutor’s case. Sanders v. State, supra 96 Nev. at 343, 609 P.2d 324, citing People v. Morrison, 67 Cal.App.3d 425, 136 Cal.Rptr. 650, 652 (1977). On the other hand, the rule does not apply in the present case, the Nevada court said, where such stipulation would not have impaired the prosecutor’s case. Furthermore, where the prior convictions are substantially similar to the crime charged, there is the danger that the jury will view them as proof that the defendant had a propensity to commit this type of crime. Therefore, where the defendant proposes to stipulate to the fact that he is an ex-felon, the trial court should avoid both jury confusion and undue prejudice to the defendant by accepting the offered stipulation. However, assuming the admission of the prior convictions was improper, the Nevada Supreme Court found it did not warrant reversal. In this case, the evidence showing Sanders to be the perpetrator of the crimes charged was substantial. He was identified by the victim in court, he was found in a car with the same license plates as one reported at the scene of the crime, and a revolver and other indicia of the crimes were found with him. His conviction, therefore, was affirmed.

When a federal habeas petitioner merely challenges the correctness of a state court’s evidentiary ruling, as in the instant case, he alleges no deprivation of his federal constitutional rights. Gutierrez v. Griggs, 695 F.2d 1195, 1197 (9th Cir.1983). Contentions relating to the admissibility of evidence are matters of state law and generally do not give rise to allegations of error of constitutional proportion. Maggitt v. Wyrick, 533 F.2d 383, 385 (8th Cir.1976), cert. denied, 429 U.S. 898, 97 S.Ct. 264, 50 L.Ed.2d 183 (1976). Ordinarily, collateral review such as habeas corpus, is not the proper remedy in correcting errors in trial procedure. “It is only where the trial errors or irregularities infringe upon a specific constitutional protection or are so prejudicial as to amount to a denial of due process that a justiciable federal issue is presented in a habeas corpus proceeding. (Citations omitted.)” Id. On the same issue, the Fifth Circuit has noted that a federal habeas court does not sit as a “super state supreme court” reviewing state law proceedings and a “mere violation of evidentiary rules by the state trial court does not in itself invoke habeas relief.” Cronnon v. State of Ala., 587 F.2d 246, 250 (5th Cir.1979), cert. denied, 440 U.S. 974, 99 S.Ct. 1542, 59 L.Ed.2d 792 (1979). See also Thomas v. Cardwell, 626 F.2d 1375, 1386 (9th Cir.1980) cert. denied, 449 U.S. 1089, 101 S.Ct. 881, 66 L.Ed.2d 816 (1981) (trial judge’s classification of witness as hostile, permitting leading questions, was a matter of state evidentiary law committed to trial court’s discretion); Crisafi v. Oliver, 396 F.2d 293, 294-295 (9th Cir. 1968), cert. denied, 393 U.S. 889, 89 S.Ct. 208, 21 L.Ed.2d 167 (1968) (state trial court’s evidentiary rulings may not be raised in federal habeas proceeding where there is no question of federally significant external event.) Thus, where Sanders merely claims error in state court evidentiary rulings, he does not allege a federal constitutional question necessary for this Court to consider habeas relief.

To raise his allegation to one of constitutional proportions, Sanders’ would have had to assert a violation of state evidentiary rules so “material in the sense of a crucial, critical, highly significant factor” as to result in a denial of fundamental fairness to him. Cronnon v. State of Ala., 587 F.2d at 250. There has been no such allegation in the present case and a review of the record convinces this Court that the admission of his prior convictions, with no subsequent reference to them, did not deny Sanders fundamental fairness at trial.

Sanders further alleges that the trial court committed error in refusing to sustain his objection to the prosecutor’s closing remarks, to admonish the jury and to grant a mistrial. Sanders claims that the prosecutor improperly attempted to shift the burden of proof to the defendant in the prosecutor’s argument. At close of trial, the prosecutor argued that the fact that certain items were missing from the evidence (the stolen money and the mask), and that certain people did not come forth to testify (alleged accomplices and/or alibi witnesses), did not mean that the defendant was not the robber. This argument, while imprudent, did not really attempt to shift the burden to Sanders. In fact, the prosecutor clearly indicated to the jury that the burden was the state’s:

“Well, ladies and gentlemen, I’m not suggesting that Mr. Henry, on behalf of Ellis Sanders, Jr., had any burden to do anything. He was right. The defense doesn’t have to present any evidence. The burden is completely on the State of Nevada.” (Record at 135).

A careful review of the record convinces this Court that there was no improper attempt to shift the burden to the defendant in the prosecutor’s closing remarks, and that the trial court was within its discretion in overruling defendant’s objections and denying a mistrial on this issue.

Furthermore, even if the prosecutor’s remarks were improper, this Court holds that Sanders was not thereby unduly prejudiced. The cases teach that, in the absence of evidence that the remarks rendered the jury incapable of fairly considering the relevant facts or reaching an impartial verdict, any error committed by the trial court in allowing the remarks to be heard, was harmless. United States v. Ezzell, 644 F.2d at 1305-1306 (9th Cir.1981) and cases cited therein. In addition, improper jury arguments by the prosecution do not justify federal habeas relief unless they are “so prejudicial that they render the trial fundamentally unfair” (citation omitted). Cronnon v. State of Ala., 587 F.2d at 251. In deciding whether fundamental unfairness exists, the prosecution’s remarks to the jury must be viewed in context of the entire trial. Id. In the present case, Sanders suffered no such fundamental unfairness.

Finally, Sanders asks for default judgment under Fed.R.Civ.P. 55(a) and 56(a). This Court finds the motion to be without merit and hereby denies it. See Bermudez v. Reed, 733 F.2d 18, 21-22 (2nd Cir.1984), cert. denied, — U.S. —, 105 S.Ct. 232, 83 L.Ed.2d 161 (1984), rev’g Bermudez v. Reed, 570 F.Supp. 290 (S.D.N.Y.1983) on which petitioner relies.

For the above reasons, Sanders’ petition for habeas corpus on any of the grounds stated is without merit.

IT IS, THEREFORE, HEREBY ORDERED that the petition for habeas corpus is DENIED.


text:
    Peter E. GALLI and Karen Hunter, Plaintiffs, v. TRAVELHOST, INC., Defendant.
    No. CV-R-84-419-ECR.
    United States District Court, D. Nevada.
    March 8, 1985.

      Paul D. Elcano, Reno, Nev., for plaintiffs.
    Phillip W. Bartlett, Reno, Nev., for defendant.
   ORDER

EDWARD C. REED, Jr., District Judge.

Defendant, Travelhost, Inc., moves this Court for change of venue pursuant to 28 U.S.C. §§ 1404(a) and 1406(a). In support of its motion, Travelhost argues that transfer is proper in this ease on the basis of a contractual venue selection agreement between the parties and alternatively on the basis of the parties’ convenience. Plaintiffs, Peter Galli and Karen Hunter, oppose the motion for transfer. They argue that the forum selection clause should not be enforced against them and that it would be inconvenient and unreasonable to transfer this case to Texas. This Court agrees with plaintiffs and, therefore, the motion to transfer is denied.

Facts

Plaintiffs originally filed their complaint in this case in the Washoe County District Court, Nevada, on August 17, 1984. Defendant removed the action to this Court pursuant to 28 U.S.C. § 1441. The complaint alleges in the first cause of action intentional misrepresentation and in the second cause of action negligent misrepresentation.

Plaintiffs are residents of Nevada. Defendant is a Texas corporation with its principal place of business in Dallas County, Texas. ' Defendant does business throughout the country. The incidents which gave rise to this lawsuit took place in Reno, Nevada. Plaintiffs and defendant entered into contract negotiations for plaintiffs to distribute and have printed Travel-host Magazine. Travelhost Magazine is printed by defendant with advertising to be obtained by the distributor. The magazine is then placed free of charge in motel rooms. Plaintiffs were to be responsible for distribution in the Boise, Idaho, area. In essence, plaintiffs bought a franchise to be the sole distributor of Travelhost Magazine in that area for a sum of $45,000.

Analysis

Federal procedure provides that “[f]or the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought.” 28 U.S.C. § 1404(a). Consistent with this, a decision to transfer is committed to the sound discretion of the trial court. See Commodity Futures Trading Com’n v. Savage, 611 F.2d 270, 279 (9th Cir.1979).

The relevant factors for consideration whether to transfer a case are: the convenience of the parties and witnesses, the relative ease of access to sources of proof, the availability of process to compel the presence of unwilling witnesses, the practical problems indicating that the case can be tried more expeditiously and inexpensively elsewhere, and the interests of justice. See Gulf Oil Corporation v. Gilbert, 330 U.S. 501, 508-509, 67 S.Ct. 839, 843, 91 L.Ed. 1055 (1947).

The burden is on defendant in this case to establish that there should be a change of venue. It is not enough, without more, to merely shift the inconvenience from one party to another. See Van Dusen v. Barrack, 376 U.S. 612, 645-646, 84 S.Ct. 805, 823-824, 11 L.Ed.2d 945 (1964).

If the plaintiffs were forced to travel to Texas with the several witnesses that are listed in Peter Galli’s affidavit accompanying the opposition to the motion of transfer, plaintiffs would be seriously inconvenienced. Coupled with the additional cost of litigation outside their home state, it may force plaintiffs to decide that the cost of bringing the lawsuit no longer supports its feasibility. It cannot be said that Texas is the more convenient forum for plaintiffs.

Further, in evaluating a § 1404(a) motion, the citizen plaintiffs choice of a proper forum is entitled to “paramount consideration,” and the moving party must show that a balancing of interests weighs heavily in favor of transfer. See Piper Aircraft Co. v. Reyno, 454 U.S. 235, 255, 102 S.Ct. 252, 265, 70 L.Ed.2d 419 (1981). Defendant in this case has not met its burden. First, defendant actively seeks out and does business nationally. The contract at issue in this case was negotiated, signed, and executed in Reno, Nevada. Also, defendant fails to positively identify any witnesses which would potentially be beyond the jurisdiction of this Court. The simple assertion that the necessary witnesses probably reside in a certain forum does not justify granting a § 1404(a) motion. This Court finds that the defendant has not met the burden of establishing that the transferee forum is more appropriate for this action.

Accordingly, the motion to transfer based upon 28 U.S.C. § 1404(a) is denied.

In this case analysis does not stop, however, with a finding that transfer is inappropriate under § 1404(a). As defendant asserts, there is a forum selection clause at issue in this case.

A copy of the contract is attached to defendant’s motion as Exhibit A. The agreement is a three-page document entitled “APPLICATION FOR DISTRIBUTORSHIP AND AGREEMENT.” There are blanks for the date, names of the parties, their addresses, number of copies per week of the publication, designated area for distribution, amount the distributor is paying defendant, and three additional paragraphs added on to the form contract. All of the above mentioned was initialled by the three signatories to the contract, Peter Galli, Karen Hunter, and Robert E. Thomas. The remaining paragraphs are not initialled. The venue selection paragraph is found at paragraph 18 of the 23 paragraph document. That paragraph of the contract reads:

“18. This Agreement is to be governed by and construed according to the laws of the State of Texas and venue for all purposes shall be in the State of Texas.”

Although there is no allegation of fraud in connection with this particular clause in the contract, this lawsuit is predicated upon claims of misrepresentation and fraud as to the entire negotiations. This Court makes no intimation as to the merits of this case; however it does find that a prepared standard contract by a corporation which willingly and intentionally availed itself of these Nevada plaintiffs should be weighed with great care by this Court.

Analysis of the validity of the forum-selection clause must begin with The Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 92 S.Ct. 1907, 32 L.Ed.2d 513 (1972). That case concerned a contract between Zapata, an American corporation based in Texas, and Unterweser, a German corporation, for Unterweser to tow a Zapata oil rig from Louisiana to a point in the Adriatic Sea off Ravenna, Italy. The contract provided that “[a]ny dispute arising must be treated before the London Court of Justice”. Id. at 2, 92 S.Ct. at 190. The rig was damaged while in the Gulf of Mexico, and Zapata instituted suit in a district court in Florida. The Fifth Circuit affirmed the district court’s denial of a motion by Unterweser to dismiss. The Supreme Court reversed. Repudiating earlier decisions adverse to forum-selection clauses, the Court held that there were compelling factors in that case why such a clause, “unaffected by fraud, undue influence, or overweening bargaining power ... should be given full effect.” Id. at 12-13, 92 S.Ct. at 1914. Among these factors was the extraordinary nature of the transaction in that case, involving as it did the towing of a drilling barge from the Louisiana coast to the Adriatic Sea. The forum-selection clause also had the effect of providing a neutral, specified forum for the adjudication of disputes, thereby eliminating any uncertainties. The Court further stated:

“There is strong evidence that the forum clause was a vital part of the agreement, and it would be unrealistic to think that the parties did not conduct their negotiations including fixing the monetary terms, with the consequences of the forum clause figuring prominently in their calculations.”

Id. at 14, 92 S.Ct. at 1915 (footnotes omitted).

None of the factors mentioned by the Supreme Court are present in this case. This transaction is not extraordinary, nor is there any intimation that the parties need to ensure a neutral forum for the adjudication of the disputes between them. This Court should constitute a neutral forum, no different from the district court in Texas.

There is no indication on the face of the contract that the forum selection clause was freely bargained for between the parties. Nor was the Court presented with any evidence that the parties engaged in any specific bargaining over the clause.

Further, defendant did not provide competent evidence to support the argument that the clause was a “most-significant” part of the contract. At the time the contract in issue was negotiated and signed, the president of Travelhost was Robert E. Thomas. However, the affidavit submitted in support of the argument is by the current president of Travelhost, James E. Buerger. Mr. Buerger states in paragraph 4, page 2, that the “venue selection” paragraph has always been considered to be a “most-significant part of [Travelhost’s] entire Distributorship Agreement arrangement.” The Court has difficulty according much weight to this self-serving statement. Mr. Buerger was not a party to the contract, nor was he president of Travelhost at the time of the contract. It is the finding of this Court that the forum-selection clause is in the contract for the convenience of the defendant, and for no other reason.

Although the Supreme Court in Zapata did refer to forum selection clauses as prima facie evidence, it must not be assumed that prima facie validity means, in all but the most unconscionable cases, certain enforcement. The Zapata decision leaves to the courts a certain power to consider mitigating factors, and though plaintiffs bear a heavy burden of persuasion, this Court should give fair hearing to them when they claim needed mitigation. This Court reads Zapata to mean in its effect, that a forum selection clause appearing in a contract should not be regarded with quite the same reverence as is typically given to contractual clauses.

A forum selection clause does not oust this Court’s jurisdiction. There will always be open to either party the opportunity to present whatever evidence will move a court in the particular circumstances not to decline to exercise its undoubted jurisdiction. See LFC Lessors, Inc., v. Pacific Sewer Maintenance Corp., 739 F.2d 4, 6 (1st Cir.1984) (quoting Central Contracting Co. v. Maryland Casualty Co., 367 F.2d 341, 345 (3d Cir.1966)). This Court’s subject matter jurisdiction is properly based on diversity of citizenship. Venue is proper in the district of Nevada under 28 U.S.C. § 1391(a).

IT IS, THEREFORE, HEREBY ORDERED that the motion for change of venue is DENIED.


author: JOSEPH H. YOUNG, District Judge.

text:
    Ronald SINE and Larry Danner v. LOCAL 992 INTERNATIONAL BROTHERHOOD OF TEAMSTERS.
    Civ. No. Y-78-2315.
    United States District Court, D. Maryland.
    March 8, 1985.

      Harry Goldman, Jr., Baltimore, Md., for plaintiffs.
    Hugh J. Beins, and Jonathan G. Axelrod, Washington, D.C., and Patrick B. Shaw, Bethesda, Md., for defendant.
   MEMORANDUM

JOSEPH H. YOUNG, District Judge.

This case, or its predecessor, has been floating around and up and down to and from the Court of Appeals for more than a decade. Plaintiffs originally received a jury award of $25,000 in a suit brought against Local 992, International Brotherhood of Teamsters (“Union”) and Mitchell Transport, Inc. (“Mitchell”).

Plaintiffs, driver employees of Mitchell, an interstate motor carrier, alleged that Mitchell in violation of the collective bargaining agreement, denied them proper seniority positions for dispatch purposes. They also contended that the Union breached its duty of fair representation by not properly or adequately advancing their arguments against Mitchell. Following several appeals interspersed with several grievances, this case is now down to the bare bone, leaving only the Union as a defendant with several narrow issues. Undaunted, plaintiffs seek to resuscitate their claims against Mitchell and seek - partial summary judgment. Ever ready for a good fight, Union also seeks partial summary judgment.

With undaunted optimism, the Court again tackles these three motions, ever hopeful that there must be an end to litigation, even for the plaintiffs, Union and Mitchell.

I. Plaintiffs’ Motion for Relief from Judgment

Plaintiffs have moved pursuant to Rule 60(b)(5) and Rule 60(b)(6) to reinstate Mitchell as a defendant. Mitchell was dismissed on the basis that the statute of limitations had run, and the Fourth Circuit affirmed relying on United Parcel Service, Inc. v. Mitchell, 451 U.S. 56, 101 S.Ct. 1559, 67 L.Ed.2d 732. Subsequently, however, the Supreme Court decided the case of DelCostello v. Teamsters, 462 U.S. 151, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983), applying a longer statute of limitations. Because of this intervening change in the law, plaintiffs ask for relief from the judgment dismissing Mitchell.

Rule 60(b)(5) does not apply to this situation. That rule provides for relief from judgment when a prior judgment upon which it is based has been reversed or otherwise vacated. It does not authorize relief from a judgment on the ground that the law applied by the court in making its adjudication has been subsequently overruled or declared erroneous in another and unrelated proceeding. Moore, Federal Practice II 60.26[3], p. 60-248. The rule has been held to be limited to those cases in which the present judgment is based on a prior judgment in the sense of res judicata or collateral estoppel. Marshall v. Board of Education, 575 F.2d 417, 424 (3d Cir. 1978). “Reliance on a judgment in an unrelated case ... does not make the original judgment vulnerable within the ‘prior judgment’ clause of subsection 5 [of Rule 60(b)].”

Plaintiffs also argue that relief may be given under Rule 60(b)(6), which applies when there are other reasons justifying relief. Simply stated there are no such reasons. Moore, supra, notes, see ¶ 60.-27[1], p. 60-270, “that [a]fter a decision On appeal, a party may not ordinarily reopen a judgment under clause (6) to litigate a matter that either was or could have been litigated prior to or on the appeal.” Plaintiffs here litigated this issue all the way to the Supreme Court, and even after the change in the law, presented it to the Fourth Circuit, which denied rehearing.

The plaintiffs’ motion for relief from judgment must be denied.

II. Plaintiffs’ Motion for Partial Summary Judgment

Plaintiffs, in seeking partial summary judgment on the issue of breach of contract, ask for findings and conclusions, and binding jury instructions, to the effect that Mitchell breached the applicable labor agreement underlying their grievance action. The motion is based on the judgment on a jury verdict that Mitchell had violated the terms of the Collective Bargaining Agreement with respect to seniority for layoff purposes. The open issues in this case, after years of litigation, concern only the company’s breach of that agreement for dispatch purposes.

It is true that a jury found, and the Fourth Circuit affirmed, that Mitchell had violated the terms of its Collective Bargaining Agreement in laying off Sine and Danner, and that Sine and Danner had not waived that breach by signing a letter of agreement concerning their seniority. The Fourth Circuit found that “there is a firm basis for a finding by the jury that Sine and Danner were not adequately informed of their rights, and hence, under accepted principles of contract law, did not waive those rights.” However, that first action concerned seniority for layoff purposes, while the present action is concerned with seniority for dispatch purposes. Plaintiffs contend that the Local should be collaterally estopped from litigating the question of breach of contract by that prior judgment. However, as the Fourth Circuit noted in Sine v. Local 992, 730 F.2d 964 (4th Cir. 1984), the requisite identity of issues between this issue and the issue earlier decided is lacking and therefore collateral estoppel should not apply. As the court noted, “it would be possible for the company to breach the agreement .by applying improper seniority for layoff purposes without making the same mistake concerning dispatch,” since company seniority applied for layoff purposes and terminal seniority governed dispatch. That reasoning applies here because it is still the same case that the Fourth Circuit dealt with, just a little later in time.

Plaintiffs also argue that Local 992 has conceded that the Collective Bargaining Agreement required the right to seniority for dispatch purposes by signing a Consent Decree in this Court on December 3, 1975. In that Decree, the Local agreed to observe company seniority for dispatch purposes. Mitchell was not a party to that Decree; thus, that Decree cannot establish that Mitchell breached its collective bargaining agreement with the plaintiffs.

Plaintiffs also assert that the breach of contract by Mitchell and the Local is “clear and undeniable,” and refer to documents (the “famous Burkhardt Memorandum” construing Decision # 839, and the Decision itself, which provided that the plaintiffs had the right to remain at Union Bridge and that those forced to transfer could exercise floating seniority) which supposedly make it clear that there was a breach of contract with respect to seniority for dispatch purposes. It may be redundant to suggest that nothing in this case is clear and undeniable. The question of seniority for dispatch purposes is still very much at issue in the documents that plaintiffs rely upon, which although indicating that the plaintiffs could stay at Union Bridge, do not finally resolve the seniority issue. The language in Decision # 839 indicating the Company and the Union had worked out a compromise in violation of the earlier union decision does not resolve anything, and the rest of the decision held unequivocally that the plaintiffs had waived any rights they may have had by signing the later agreement.

Plaintiffs have not presented any “clear and undeniable” evidence of a breach of contract by Mitchell with respect to seniority for dispatch purposes and the motion for partial summary judgment must be denied.

III. Defendants’ Motion for Summary Judgment

As noted above, plaintiffs now claim that Union breached its duty to represent them fairly in an arbitration proceeding to determine the validity of their grievances concerning seniority. Union now seeks summary judgment, alleging that the plaintiffs’ claims are totally without merit.

A similar, motion was granted on another go-around, holding that the plaintiffs’ claims were “totally groundless” and “totally discredited in plaintiffs’ own words.” The Fourth Circuit reversed, holding that the Court did not “undertake a critical review of the relevant facts so as to give support to [its] conclusory findings,” Sine v. Local 992 International Brotherhood of Teamsters, 644 F.2d 997, 1004 (4th Cir. 1981).

Burned once, the Court finds summary judgment now inappropriate. Although some of plaintiffs’ claims are “totally groundless,” there are allegations concerning the adequacy of the Union lawyer’s representation of them that must be resolved by the trier of fact. Plaintiffs allege that the Union breached its duty of fair representation because the Union attorney failed to familiarize himself with the facts and relevant arguments he needed to adequately represent the plaintiffs in arbitration proceedings. Specifically, plaintiffs allege that the attorney, Thomas Kohn, so failed to understand his own case that he agreed to represent two other Union members with a similar grievance before the Arbitrator, without realizing the inherent conflict between those members and plaintiffs. The other two members were high seniority transfers, while plaintiffs were low seniority transfers, and the contracts and other documents relating to the grievance applied differently to them than to plaintiffs. It is possible that plaintiffs were prejudiced by their attorney’s action in allowing them to be bound by any decision with respect to the other members. Plaintiffs also allege that the attorney failed to familiarize himself with the proceedings which had occurred before this Court and the Fourth Circuit, and that he failed to address critical issues on which the arbitrator’s decision relied.

Defendant has not done much to negate these contentions. Instead, it has tried to play down the importance of the attorney’s various actions, arguing, for example, that the failure to introduce a single piece of evidence is not enough to cause the entire arbitration proceeding to be valid. Defendant argues that other alleged “mistakes” were merely decisions of strategy and tactics not amounting to any arbitrary, discriminatory or bad faith action.

Plaintiffs do not allege isolated examples of tactical decisions. They allege, with the support of the depositions of Kohn and others, that there was an entire course of conduct “so unreasonable and arbitrary as to constitute a violation of the duty of fair representation,” see Griffin v. United Auto Workers, 469 F.2d 181, 183 (4th Cir. 1972). If the plaintiffs can prove their allegations, it is possible they could recover for a violation of the Union’s duty. Without commenting further on the merits of plaintiffs’ allegations, summary judgment is again inappropriate and the motion must be denied.