author: CRABB, Chief Judge.

text:
    Joyce ELBE, Plaintiff, v. The WAUSAU HOSPITAL CENTER, Sandra Roe, Ronald Fought and other Unnamed, Unknown Co-Conspirators, Defendants. Karen HENSCHEL, Plaintiff, v. The WAUSAU HOSPITAL CENTER, Terence O’Rourke, John Olinger, Thomas Killian, Phil Aulwes, Mark Laurent and Peter Menor, Defendant.
    Nos. 84-C-443, 84-C-468.
    United States District Court, W.D. Wisconsin.
    April 22, 1985.

      Michael R. Fox and Terence S. Hawkins, Fox Law Offices, S.C., Madison, Wis., for plaintiffs.
    Peter L. Hessert, Tinkham, Smith, Bliss, Patterson, Richards & Hessert, Wausau, Wis., for defendants.
   CRABB, Chief Judge.

These cases are before the court in a somewhat complicated posture. Defendants have moved to dismiss the complaints for failure to state a claim or for summary judgment. For the most part, defendants raise legal issues concerning whether the facts alleged by plaintiffs fail to state a claim upon which relief can be granted. With respect to plaintiff Henschel’s age discrimination claim, defendants also contend that they are entitled to summary judgment on the undisputed facts. Defendants have submitted matters outside the pleading in support of their motion. With respect to plaintiff Henschel’s age discrimination claim I will consider those factual matters, and thus I will treat defendants’ motion with respect to that claim as a motion for summary judgment. See Rule 12(b) of the Federal Rules of Civil Procedure. With respect to plaintiff Henschel’s other claims and plaintiff Elbe’s claims, I will not consider the factual material presented by defendants and will treat the motions as motions to dismiss for failure to state a claim under Rule 12(b)(6).

Plaintiffs have submitted motions for leave to amend their complaints and have attached proposed amended complaints. In response, defendants have suggested that because the issues raised in their motions are potentially dispositive, I should first rule on their motions before addressing plaintiffs’ motions to amend. However, certain allegations in the amended complaints are relevant to asserted pleading deficiencies in the original complaints. Moreover, many of the legal issues raised by defendants apply with equal force to the original and amended complaints. Defendants do not raise any other arguments in opposition to plaintiffs’ motions for leave to amend the complaints, and under Rule 15(a), leave to amend is to be “freely given when justice so requires.” Therefore, I will grant plaintiffs’ motions for leave to amend the complaints, with certain exceptions that will be noted.

Because several of the legal issues raised by defendants are common to both cases, I will deal with both cases together. I do not express any opinion as to whether these cases should be consolidated for pretrial purposes or at trial.

There is jurisdiction over plaintiffs’ claims under 29 U.S.C. § 626(c) and 28 U.S.C. § 1343. There is also diversity jurisdiction over plaintiff Henschel’s state law claims under 28 U.S.C. § 1332, while plaintiff Elbe alleges pendent jurisdiction over her state law claims.

Accepting the allegations of plaintiffs’ amended complaints as true for the purpose of ruling on defendants’ motions to dismiss, I find the following facts.

FACTS

Plaintiff Elbe was born on December 22, 1940. At all times relevant to this case she was over the age of 40. Plaintiff Elbe has been employed by defendant Wausau Hospital Center since August 22, 1962.

Plaintiff Henschel was employed by defendant Wausau Hospital Center as a radiologic technologist starting in June, 1974 and continuing through March 8, 1982, at which time her employment was terminated by defendant Wausau Hospital Center.

In June, 1981, a full-time registered nurse’s position became available in defendant Wausau Hospital Center’s emergency room. Plaintiff Elbe applied for the position, was qualified for promotion to the position, but did not receive it. The person who received promotion to the position was under the age of 40.

On September 23, 1981, plaintiff Elbe filed a charge with the State of Wisconsin Equal Rights Division, charge no. 81-03887, alleging that defendant Wausau Hospital Center had discriminated against her on the basis of her age by denying her the registered nurse position. This charge was also filed with the United States Equal Employment Opportunity Commission.

In response to plaintiff Elbe’s filing of the age discrimination charge, defendants Fought and Roe formed a conspiracy to discriminate against persons over the age of 40 and to intimidate witnesses in the proceedings on Elbe’s age discrimination charge.

On October 1, 1981, Rosemary Walden, a nurse employed by defendant Wausau Hospital Center, filed a complaint with the Equal Rights Division of the Department of Industry, Labor, and Human Relations against defendant Wausau Hospital Center alleging that she was discriminated against on the basis of her sex and age with regard to a position as a diagnostic radiology technologist.

Defendants O’Rourke, Killian, Aulwes, Olinger, Laurent, and Menor became aware of the complaints of both Elbe and Walden shortly after they were filed with the Equal Rights Division. On or before February 1, 1982, these defendants learned that plaintiff Henschel had been identified as a witness on behalf of Rosemary Walden in connection with Walden’s complaint with the Equal Rights Division. At some time before February 24, 1982, these defendants learned that plaintiff Henschel had been identified as a witness on behalf of plaintiff Elbe in connection with plaintiff Elbe’s age discrimination charge.

In response to the identification of plaintiff Henschel as a witness on behalf of plaintiff Elbe, defendants O’Rourke, Killian, Aulwes, Olinger, Laurent, and Menor formed a conspiracy to intimidate, harass or retaliate against witnesses testifying on behalf of Rosemary Walden and plaintiff Elbe in connection with their discrimination complaints.

Subsequent to the filing of the Elbe and Walden complaints and the initial determination that plaintiff Henschel was a witness for Rosemary Walden, defendant Laurent, with the knowing assistance of the other individual defendants, solicited from other employees information critical of or damaging to plaintiff Henschel with the illegal purpose of using that information to retaliate against her for her participation in Equal Rights Division proceedings and to deter her from rendering further assistance to Walden or Elbe. This solicitation included a series of meetings held between February 24 and March 1, 1982, with former radiologic technology students who had interned or worked in the hospital’s radiology department. In those meetings, defendant Laurent attempted to secure complaints with regard to the work performance of plaintiff Henschel and two other women who had been identified as witnesses for Walden and plaintiff Elbe. Although the students complained about other hospital employees who had not been named as witnesses, no action was taken against these employees.

On or about March 4, 1982, pursuant to the common plan of the conspiracy, defendants Laurent, Killian, and Menor met with plaintiff Henschel and two other women identified as witnesses in the Elbe and Walden cases. The purpose of this meeting was to discuss with the witnesses the criticisms which Laurent had solicited.

In the meeting of March 4, 1982, plaintiff Henschel, alone among the three witnesses, defended her job performance. On March 4, 1982, defendant Laurent met with defendant Olinger and the other individual defendants, at which time he recommended that plaintiff Henschel, but not the other witnesses, be disciplined.

On or about March 8, 1982, plaintiff Henschel was terminated from her employment with the Wausau Hospital Center. Her termination was effected without following the hospital’s written disciplinary procedures, which provided for “step” or “progressive” discipline in all but the most egregious cases of misconduct. The “step” or “progressive” disciplinary policy had been followed in the cases of all male employees subjected to discipline.

Plaintiff Henschel has complied with 29 U.S.C. § 626(d) and 29 U.S.C. § 633(b), which require that a plaintiff must file a notice of intent to sue with the Equal Employment Opportunity Commission and with state equal employment agencies at least sixty days before filing suit and no more than three hundred days after the alleged unlawful practice occurred.'

Pursuant to their conspiracy, on or about September, 1982, defendants Fought, Roe, and the unnamed defendants participated in making a decision to reduce plaintiff Elbe’s working hours in retaliation for her filing of the age discrimination charge.

Subsequent to the reduction in plaintiff Elbe's hours, a position as head nurse of Wausau Hospital Center’s out-patient surgery department opened. Plaintiff Elbe applied for the head nurse position for which she was qualified. Elbe was denied promotion to the head nurse position, and the position was given to a person under the age of 40. Elbe was more qualified than the person who was selected for the position and she met all of the minimum qualifications for that position.

As a result of having been denied the out-patient surgery position, plaintiff Elbe filed an additional charge of discrimination with the State Equal Rights Division, charge no. 83-00773, on April 25, 1983.

Defendants Roe, Fought, and the unnamed defendants became aware of this second discrimination charge soon after it was filed. Pursuant to the common agreement of the conspiracy described above, defendant Roe, plaintiff Elbe’s immediate supervisor, embarked on a campaign of harassment directed to the plaintiff, which harassment took the form of groundless complaints about Elbe’s work performance and supervision far closer, and criticism more exacting than that visited on any of Roe’s other subordinates. As a result of the wrongful acts described above, the plaintiff suffered a loss of wages, a loss of career opportunity, pain and suffering, humiliation, embarrassment, and severe emotional distress. The campaign of harassment described above continues to the present time.

On August 10, 1983, the Equal Rights Division rendered a decision in plaintiff Hensehel’s favor, finding that she had been discharged as a result of retaliatory efforts on the part of defendant Wausau Hospital Center and its employees and that her discharge had been accomplished by discriminating against her on the basis of her sex.

On August 12,1983, defendant O’Rourke made a statement to Janine Friend, a reporter for the Wausau Daily Herald, stating in reference to plaintiff Henschel that “We don’t think it is appropriate to have people in our employment who don’t share our concern for patient safety,” said statement being published in an article which appeared in the Wausau Daily Herald. That statement expressed the conclusion that plaintiff Henschel, a health care professional, had no concern for the safety of the patients for whom she was responsible. The statement described above cast plaintiff Henschel in a false and damaging light, and was made with actual malice in that defendant O’Rourke knew that the statement was false, or made the statement with reckless disregard for its truth or falsity.

Prior to filing her amended complaint, plaintiff Henschel served upon the Wausau Daily Herald and defendant O’Rourke a demand for a retraction, which demand has been rejected or ignored.

Plaintiff Elbe filed her original complaint on June 12, 1984. Plaintiff Henschel filed her original complaint on July 31, 1984.

UNDISPUTED FACTS

Based on the proposed findings of fact submitted by defendants in case 84-G-468-C, and not controverted by plaintiff Henschel, I find that the following facts are undisputed.

Plaintiff Henschel filed charges of sex discrimination and retaliation against defendant Wausau Hospital Center with the Wisconsin Equal Rights Division on March 10, 1982, and with the Equal Employment Opportunity Commission on March 9, 1982. Plaintiff Henschel’s discrimination and retaliation charges named only Wausau Hospital Center as a respondent. None of the individual defendants were named as respondents or elsewhere in the charges.

Prior to the commencement of this suit, none of the individual defendants had notice that plaintiff Henschel claimed that their individual conduct was discriminatory or retaliatory. Prior to the commencement of this suit, none of the individual defendants consulted with or retained counsel concerning their individual conduct toward plaintiff Henschel. None of the defendants engaged in conciliation proceedings regarding their individual conduct toward plaintiff Henschel.

OPINION

In her original complaint, plaintiff Elbe raised claims of age discrimination and retaliation, in violation of the Age Discrimination in Employment Act (ADEA), and of tortious interference with contract, against defendant Wausau Hospital Center alone. In her original complaint, plaintiff Henschel raised claims of retaliation for testifying on age discrimination charges, in violation of 29 U.S.C. § 623(d); violations of the Wisconsin Fair Employment Act (WFEA), Wis.Stats. §§ 111.31-111.395; violation of Wis.Stats. § 943.30, a criminal statute prohibiting certain types of threats and extortion; violation of Wis.Stats. § 134.01, prohibiting conspiracies to interfere with business relationships; tortious interference with contract; intentional infliction of emotional distress; and defamation.

In their briefs, plaintiffs concede that they cannot bring a claim for tortious interference with an employment contract against their employer, defendant Wausau Hospital Center. Plaintiff Henschel also concedes that she cannot state a claim for intentional infliction of emotional distress. Plaintiffs do not attempt to raise these claims in their amended complaints. I consider that plaintiffs have abandoned these claims and I will not consider them. I will address the arguments defendants raise with respect to each of plaintiffs’ other claims in turn.

Age Discrimination and Retaliation

Defendants first argue that plaintiff Henschel has failed to allege compliance with jurisdictional prerequisites for bringing age discrimination claims contained in 29 U.S.C. §§ 626(d) and 633(b). Section 626(d) requires that a plaintiff must file a notice of intent to sue with the Equal Employment Opportunity Commission (EEOC) no less than sixty days before filing suit, and no more than 300 days after the alleged acts of discrimination occurred. Section 633(b) provides that when a state has established an agency to hear employment discrimination claims, a plaintiff must also wait until 60 days after proceedings have commenced in the state agency before filing suit.

Plaintiff Henschel’s original complaint alleged only that on August 10, 1983, the Wisconsin Equal Rights Division had ruled in plaintiff’s favor on a sex discrimination and retaliation charge. Complaint ¶ 13. Although one could infer from that allegation that plaintiff Henschel had filed a state charge prior to August 10, 1983, the original complaint was silent as to whether or when plaintiff filed any charge with the EEOC. In response to defendants’ arguments, plaintiff Henschel added to her amended complaint the allegation that

The plaintiff has met all jurisdictional prerequisites for bringing a claim in this court under 29 U.S.C. § 621 et seq., including but not limited to compliance with all state administrative procedures.

Amended Complaint ¶ 39.

Given the liberal pleading policy of the Federal Rules of Civil Procedure, particularly Rule 8, I find that this conclusory allegation is barely sufficient. My conclusion is supported by the fact that defendants acknowledge in their proposed findings of fact that plaintiff Henschel filed a complaint with the EEOC on March 9,1982, and a complaint with the Equal Rights Division on March 10, 1982, thus placing plaintiff easily within the timing requirements of 29 U.S.C. § 626(d).

Defendants next argue that both plaintiffs filed their suit after the applicable statute of limitations had run. Under 29 U.S.C. § 626(e), the statute of limitations contained in 29 U.S.C. § 255 applies to age discrimination claims. That section provides that an action

shall be forever barred unless commenced within two years after the cause of action accrued, except that a cause of action arising out of a willful violation may be commenced within three years after the cause of action accrued; ...

29 U.S.C. § 255(a).

Plaintiff Elbe alleges a number of separate discriminatory and retaliatory acts. She alleges that she was denied a promotion in June, 1981, that her hours were reduced in September, 1982, that she was subsequently denied another promotion, and that she has been subjected to a continuing campaign of retaliatory harassment. Although the complaint is not entirely clear, as I read it, it does not allege any retaliatory acts before September, 1982. Thus, only plaintiffs claim relating to the denial of a promotion in June, 1981 is barred unless it is a claim of a “willful violation.” Plaintiff Henschel’s age discrimination claim is for conduct that took place prior to her discharge on March 8, 1982. Thus, her claim is also barred unless it is a claim of a “willful violation.”

What type of conduct is required for a violation to be considered “willful” under 29 U.S.C. § 255(a) and 29 U.S.C. § 626(b) is open to some question. In Trans World Airlines, Inc. v. Thurston, — U.S.-, 105 S.Ct. 613, 83 L.Ed.2d 523 (1985) the Supreme Court held that liquidated damages are available under 29 U.S.C. § 255(b) and 29 U.S.C. § 626(b), which also require a “willful” violation, only if the employer knew or showed a “reckless disregard” for whether its conduct was prohibited by the ADEA. Id., at---, 105 S.Ct. at 624-625. However, the Court noted that there is a division of opinion among the courts of appeals whether the “willfulness” standard should be the same for limitations purposes and for determining liquidated damages. Id. at-& n. 21, 105 S.Ct. at 625 & n. 21. Even if the “reckless disregard” standard is applied to determine the limitations period, I conclude that plaintiffs have adequately alleged willfulness.

Plaintiff Henschel has alleged that defendants made a conscious decision to solicit adverse information concerning her and then terminate her, in retaliation for her testimony on behalf of Rosemary Walden and plaintiff Elbe. If proven, these allegations would support a finding that defendants consciously and intentionally violated the ADEA. Plaintiff Elbe has alleged that even though she was qualified for promotion to the registered nurse’s position, the position was given to a younger employee, and that plaintiff Elbe did not receive the position. I conclude that at the pleading stage, this sufficiently alleges a willful violation. Of course, the issue whether any violation was willful is primarily a factual issue, and if defendants establish that any violations that occurred more than two years before suit was filed were not willful, plaintiffs may be barred from recovering on such claims. See Hovey v. Lutheran Medical Center, 516 F.Supp. 554, 556 (D.C.N.Y.1981).

The individual defendants in Case 84-C-468-C seek summary judgment on plaintiff Henschel’s claims against them on the ground that they were not named in plaintiff Henschel’s administrative charges. Ordinarily, if a party is not named in an EEOC charge that party may not be sued under Title VII. Eggleston v. Chicago Journeymen Plumbers’ Local Union No. ISO, 657 F.2d 890, 905 (7th Cir.1981), cert. denied, 455 U.S. 1017, 102 S.Ct. 1710, 72 L.Ed.2d 134 (1982). However, if an unnamed party has adequate notice of the charge and an opportunity to participate in conciliation proceedings, it may be sued. Id. The same rule applies under the ADEA. Allen v. Colgate-Palmolive Co., 539 F.Supp. 57, 69 (S.D.N.Y.1981); Quinn v. Bowmar Publishing Co., 445 F.Supp. 780, 785 (D.Md.1978).

The parties agree that the Eggleston standard is controlling, but dispute whether plaintiff Henschel has satisfied it. The individual defendants have submitted affidavits in which they state that they did not have notice that plaintiff Henschel claimed that their individual conduct was discriminatory or retaliatory, and that they were never involved in any conciliation proceedings. The burden of proving notice and an opportunity to conciliate is on the plaintiff, Quinn v. Bowmar Publishing Co., 445 F.Supp. at 785, and similar affidavits have been held to establish lack of notice and opportunity to conciliate. Allen v. Colgate-Palmolive Co., 539 F.Supp. at 69. In response, plaintiff Henschel cites to a finding made by the Wisconsin Labor and Industry Review Commission, on defendant Wausau Hospital Center’s appeal of the Equal Rights Division’s decision, that the individual defendants had notice of Henschel’s participation as a witness on behalf of equal rights complainants. However, the issues whether the individual defendants had notice of Henschel’s conduct, and indeed, whether the individual defendants’ conduct was discriminatory or retaliatory, are totally separate from the issue whether the individual defendants had notice of the charges and an opportunity to conciliate. Based on the undisputed facts, I conclude that the individual defendants did not have such notice. Accordingly, their motion for summary judgment on plaintiff Henschel’s age discrimination claim will be granted.

Wisconsin Fair Employment Act

Initially, defendants argued that plaintiff Henschel has no private right of action under the Wisconsin Fair Employment Act (WFEA), but is limited to administrative remedies. Bachand v. Connecticut General Life Insurance Co., 101 Wis.2d 617, 305 N.W.2d 149 (Ct.App.1981). Apparently defendants now concede that there is a private right of action under Yanta v. Montgomery Ward & Co., 66 Wis.2d 53, 224 N.W.2d 389 (1974), but argue that it is limited to recovery of back pay. Of course, that is not in itself grounds for dismissing plaintiffs claim, although I may consider dismissing plaintiff’s WFEA claim if it appears that it is merely duplicative of her age discrimination claim. I agree with the conclusion reached by the court in Shanahan v. WITI-TV, Inc., 565 F.Supp. 219 (E.D.Wis.1982), that despite Bachand, the Supreme Court for the State of Wisconsin has continued to adhere to the view that there is a private right of action under the WFEA. See Kurtz v. City of Waukesha, 91 Wis.2d 103, 280 N.W.2d 757 (1979).

Violation of Criminal Statute

Plaintiff Henschel seeks to raise claims that the individual defendants violated a Wisconsin criminal statute, Wis.Stats. § 943.30. Defendants argue that Wis. Stats. § 943.30 does not confer a private right of action. However, in Judevine v. Benzies-Montanye Fuel & Warehouse Co., 222 Wis. 512, 523, 269 N.W. 295 (1936), the Supreme Court for the State of Wisconsin implied that such an action could be brought. In Judevine, the court held that the plaintiff could not bring an action under the predecessor to Wis.Stats. § 943.30 because he had failed to allege an injury to his business. Id. Thus, the court indicated that plaintiff could have brought the action if injury to business had been alleged. Moreover, the state court has held repeatedly that private parties may bring suit for violations of Wis.Stats. § 134.01, which prohibits conspiracies to accomplish conduct analogous to that prohibited by § 943.-30. See Radue v. Dill, 74 Wis.2d 239, 245, 246 N.W.2d 507 (1976). Accordingly, I conclude that plaintiff has a private right of action under Wis.Stats. § 943.30.

Next, defendants argue that any action under § 943.30 is barred by the applicable statute of limitations. Defendants contend that the applicable statute is Wis.Stats. § 893.93(2)(a), which provides a two year statute of limitations for

An action by a private party upon a statute penalty, or forfeiture when the action is given to the party prosecuting therefor and the state, except when the statute imposing it provides a different limitation.

Plaintiff Henschel contends that the applicable statute is Wis.Stats. § 893.93(l)(a), which provides a six year limitations period for

An action upon a liability created by statute when a different limitation is not created by law.

Precisely which statutory causes of action Wis.Stats. § 893.93(2)(a) covers is open to some dispute. In Yanta v. Montgomery Ward & Co., 66 Wis.2d at 66, 224 N.W.2d 389, the court made clear that it does not apply to all liability created by statute, but only to statutes that specify a penalty or forfeiture for their violation. Two arguments can be raised in favor of the position that plaintiff Henschel’s claim under § 943.30 is an action “upon a statute penalty, or forfeiture.”

The first relies on Hauer v. Bankers Trust New York Corp., 425 F.Supp. 796 (E.D.Wis.1977), and State ex rel. Nordell v. Kinney, 62 Wis.2d 558, 215 N.W.2d 405 (1974). In Nordell, the court held that an action under the Wisconsin antitrust statute, Wis.Stats. § 133.01, is a punitive action because § 133.01 provides for treble damages. Id. at 562, 215 N.W.2d 405. In Hauer, the court held that the Nordell decision applied to actions under both §§ 133.01 and 134.01, and that since treble damage claims are punitive, the two year limitation period of § 893.93(2)(a) must apply. Hauer v. Bankers Trust New York Corp., 425 F.Supp. at 799. Hauer and Nordell were antitrust cases in which violations of both §§ 133.01 and 134.01 were alleged. When a plaintiff brings an antitrust claim for treble damages and alleges violations of §§ 133.01 and 134.01, it is reasonable to treat the entire action as a punitive one and to apply the two year limitation period of Wis.Stats. § 893.-93(2)(a).

However, plaintiff Henschel’s claim under Wis.Stats. § 943.30 is manifestly not a claim of an antitrust violation, and plaintiff does not seek treble damages. There is no indication in § 943.30 or in Judevine that treble damages are available for a violation of § 943.30. Accordingly, I conclude that Hauer does not apply to actions under § 943.30.

It can also be argued that actions under § 943.30 are actions “upon a statute penalty” because the statute contains within itself a reference to statutory criminal penalties. However, an action for damages for violation of a criminal statute is not an action “upon” the criminal penalties contained in the statute. The fact that an action to enforce a penalty may be brought for the same conduct does not alter the character of the civil action for compensatory relief. See R.J. Wilson Co. v. Industrial Commission, 219 Wis. 463, 470, 263 N.W. 204 (1935). Therefore, I conclude that plaintiffs’ claims for actual damages are not actions “upon a statute penalty” and thus are not governed by Wis.Stats. § 893.93(2)(a). Since no other limitation period is “prescribed by law,” I conclude that plaintiff Henschel’s claim under Wis.Stats. § 943.30 is governed by the six year limitation period of Wis.Stats. § 893.93(l)(a). Her claim is not time barred under the six year limitations period, and thus defendants’ motion to dismiss it must be denied.

Conspiracy Claims

In their amended complaints, both plaintiffs raise claims that defendants conspired to violate their civil rights in violation of 42 U.S.C. § 1985(2) and that they conspired to injure plaintiffs in their profession, in violation of Wis.Stats. § 134.-01. In order to state a claim under either statute plaintiffs must allege a conspiracy. That is, plaintiffs must allege that two or more persons or entities combined to commit a violation. See Dombrowski v. Dowling, 459 F.2d 190, 196 (7th Cir.1972); Mendelson v. Blatz Brewing Co., 9 Wis.2d 487, 490, 101 N.W.2d 805 (1960).

Plaintiffs allege that the individual defendants, acting as agents of defendant Wausau Hospital Center, conspired to injure plaintiffs professionally in order to prevent plaintiffs from pursuing or testifying about discrimination claims. Plaintiffs do not allege that the individual defendants acted on their own behalf or outside the course of their corporate duties. It is clear that these allegations fail to state a claim under 42 U.S.C. § 1985(2). The Court of Appeals for the Seventh Circuit adheres to the view that the actions of agents within the scope of their corporate authority are the acts of a single corporate entity rather than of separate persons. Therefore,

if the challenged conduct is essentially a single act of discrimination by a single business entity, the fact that two or more agents participated in the decision or in the act itself will normally not constitute the conspiracy contemplated by this statute.

Dombrowski v. Dowling, 459 F.2d at 196. In the instant case, plaintiffs have alleged “a single act of discrimination by a single business entity.” Therefore, plaintiffs have not stated claims under 42 U.S.C. § 1985(2) in their amended complaints, and it would be futile to permit plaintiffs to amend their complaints to add such claims. Accordingly, I will deny plaintiffs leave to amend their complaints with respect to the § 1985(2) claims. See Verhein v. South Bend Lathe, Inc., 598 F.2d 1061, 1063 (7th Cir.1979).

It is less clear whether an allegation that agents of a corporation have conspired within the course of their corporate duties states a claim under Wis.Stats. § 134.01. An allegation that a single corporate defendant has violated Wis.Stats. § 134.01 does not state a claim. McCluney v. Jos. Schlitz Brewing Co., 489 F.Supp. 24, 26 (E.D.Wis.1980). Plaintiff Henschel argues that in Mendelson v. Blatz Brewing Co., 9 Wis.2d at 487, 101 N.W.2d 805, the court permitted an action by a former manager of a company against two officers of the company for allegedly conspiring to have him discharged. However, in Mendel-son, the plaintiff alleged that the conspiracy was “a scheme of the defendants wholly unrelated to that of promoting the welfare of the corporation.” Id. at 490. Thus, it would appear that the defendants in Mendelson were acting to enrich themselves rather than on behalf of the corporation. In the absence of any explicit holding on the issue, I conclude that the Wisconsin supreme court would adopt the approach taken in Dombrowski, based as it is on the well accepted principles that a corporation cannot conspire with itself and that the acts of an agent are the acts of the corporation. See Cole v. University of Hartford, 391 F.Supp. 888, 891-93 (D.Conn.1975); Nelson Radio & Supply Co. v. Motorola, Inc., 200 F.2d 911, 914 (5th Cir.1952). Therefore, defendants’ motion to dismiss plaintiff Henschel’s § 134.01 claim will be granted, and plaintiff Elbe will be denied leave to amend her complaint to add a claim under § 134.01.

Tortious Interference with Contract

Defendants argue that plaintiff Henschel’s claim for tortious interference with contract should be dismissed for several reasons. First, they argue that plaintiff Henschel either had no contract with defendant Wausau Hospital Center, or that she did not have an enforceable contract. These arguments are essentially irrelevant, because plaintiff is not attempting to raise a breach of contract claim. Instead, she seeks to raise a claim that the individual defendants interfered with her employment contract. Wisconsin law is clear that an employee may raise such a claim, even when the employment contract was terminable at will. Mendelson v. Blatz Brewing Co., 9 Wis.2d 487, 101 N.W.2d 805 (1960); Harman v. LaCrosse Tribune, 117 Wis.2d 448, 455, 344 N.W.2d 536 (Ct.App.1984).

Next, defendants argue that in Wisconsin actions for wrongful discharge from employment are narrowly limited under Brockmeyer v. Dun & Bradstreet, 113 Wis.2d 561, 335 N.W.2d 834 (1983). Again, however, this argument is irrelevant because plaintiff is not raising a wrongful discharge claim. Whether defendant Wausau Hospital Center was entitled to discharge Henschel is a separate issue from whether the individual defendants wrongfully interfered with plaintiff’s employment.

Third, defendants argue that an action for interference with contract must be brought against a third party who has interfered with the contract between the contracting parties. Since the individual defendants were agents of defendant Wausau Hospital Center, they argue that no third party was present. However, Wisconsin law recognizes an action brought by an employee against the officers and directors of a corporation for tortious interference with an employment contract. Lorenz v. Dreske, 62 Wis.2d 273, 286-87, 214 N.W.2d 753 (1974). The officers or directors will not be liable if they acted in good faith for the best interests of the corporation. Whether this conditional privilege applies is a factual issue not to be decided on a motion to dismiss. Id.

Defendants next argue that the interference with contract claim is barred by the two year statute of limitations for intentional torts to the person, Wis.Stats. § 893.57. Plaintiff argues that a six year statute of limitations, either Wis.Stats. § 893.43, governing actions “upon” contracts, or Wis.Stats. § 893.53, governing actions for injuries to the rights of another, “not arising on contract,” should apply. The issue of which section should apply is not clear. Wrongful interference with a contract is not really an “intentional tort to the person” covered by Wis.Stats. § 893.57. Nor is plaintiffs action, as plaintiff has pointed out, an action “upon” a contract. In Segall v. Hurwitz, 114 Wis.2d 471, 487-88, 339 N.W.2d 333, a Wisconsin court of appeals held that Wis.Stats. § 893.53 applies to interference with contract claims. In the absence of any clear indication that another statute of limitations would be preferable, I will follow the Segall decision. Under Wis.Stats. § 893.53 plaintiffs claim is not time barred.

Finally, defendants argue that permitting a state claim for interference with contract would interfere with the WFEA and the ADEA. The first argument relies on the holding in Bachand v. Connecticut General Life Insurance Co., 101 Wis.2d at 624-26, 305 N.W.2d 149, that administrative remedies under the WFEA are the exclusive state remedy for employment discrimination in Wisconsin. The correctness of the holding in Bachand is open to question. See Shanahan v. WITI-TV, Inc., 565 F.Supp. at 222. Even Bachand would not appear to prohibit a separate action for damages for interference with contract, although related to a WFEA claim. Nothing in the federal ADEA appears to prohibit a parallel state claim.

Defamation

Defendants have moved to dismiss plaintiff Henschel’s defamation claim on the ground that she failed to comply with Wis.Stats. § 895.05(2). Section 895.05(2) requires that before commencing a civil defamation action based on allegedly libelous material published in a newspaper or periodical, the plaintiff must demand a retraction from the offending party. The requirement applies to nonmedia as well as media defendants. Hucko v. Jos. Schlitz Brewing Co., 100 Wis.2d 372, 302 N.W.2d 68 (Ct.App.1981). In her amended complaint, plaintiff alleges that she has now demanded a retraction, and that her demand has been rejected. Therefore, defendants’ motion to dismiss will be denied.

Punitive Damages

Defendants argue that plaintiffs’ claims for punitive damages should be dismissed. Defendants argue that plaintiffs have failed to allege that defendants’ conduct was so outrageous that plaintiffs should be entitled to an award of punitive damages. Pleadings are to be construed so as to do substantial justice to the parties, and a claim for punitive damages should be dismissed only if it is clear that the complaint fails to allege facts sufficient to state a claim for punitive damages. Wangen v. Ford Motor Co., 97 Wis.2d 260, 308-09, 294 N.W.2d 437 (1980). I find that plaintiff has alleged facts sufficient to state a claim for punitive damages under this standard.

Plaintiffs concede that punitive damages are not available under the ADEA or WFEA. Since plaintiff Elbe’s only remaining claims are under the ADEA, her punitive damage claim will be dismissed.

ORDER

IT IS ORDERED that plaintiffs’ motions for leave to file amended complaints are GRANTED, with the exception of the following claims: 1) plaintiffs’ claims for conspiracy to obstruct justice under 42 U.S.C. § 1985(2); and 2) plaintiff Elbe’s claim for conspiracy to injure plaintiff Elbe in her profession under Wis.Stats. § 134.01. With respect to those claims, plaintiffs’ motions for leave to file amended complaints are DENIED.

IT IS FURTHER ORDERED that defendants’ motions to dismiss plaintiff Henschel’s claim under Wis.Stats. § 134.01 and plaintiff Elbe’s claim for punitive damages are GRANTED. In all other respects, defendants’ motions to dismiss are DENIED.

IT IS FURTHER ORDERED that the individual defendants’ motions for summary judgment on plaintiff Henschel’s age discrimination claim is GRANTED. In all other respects, defendants’ motions for summary judgment are DENIED.

      . Plaintiff Henschel has been given an adequate opportunity, including an extension of time, in which to present factual material in opposition to the motion.

      . This is not expressly alleged in the original or amended complaint, but is clearly implied.

      . I find it difficult to discern any reason why plaintiff Henschel did not allege these simple facts, especially after defendants raised the issue in their motion to dismiss. Plaintiffs obscure pleadings conjure up issues where none should have existed, and force me to rely on the liberal policy of the rules. However, there are limits to that liberality, and plaintiff has come perilously close to those limits.

      . Plaintiff Henschel has failed to submit a proposed finding of fact to this effect. However, that failure is immaterial.

      . Wis.Stats. § 134.01 prohibits persons from conspiring
      for the purpose of wilfully or maliciously injuring another in his reputation, trade, business or profession by any means whatever, or for the purpose of maliciously compelling another to do or perform any act against his will____
      Wis.Stats. § 943.30 provides that any person who
      threatens or commits any injury to the person, property, business, profession, calling or trade ... of another, with intent ... to compel the person so threatened to do any act against the person’s will or omit to do any lawful act, is guilty of a Class D felony.


source: Caselaw Access Project

author: RAMSEY, District Judge.

license: Public Domain

text:
    SHAARE TEFILA CONGREGATION, et al., Plaintiffs, v. John William COBB, et al., Defendants.
    Civ. A. No. R-84-880.
    United States District Court, D. Maryland.
    April 22, 1985.

      Joseph M. Hassett, Patricia A. Brannan, Daniel S. Cohen, Steven P. Hollman, Hogan & Hartson, Bethesda, Md., Paul Nolan, Baltimore, Md., for plaintiff.
    Jewish Advocacy Center, Irwin N. Shappell, Washington, D.C., of counsel.
    Robert B. Barnhouse, Deborah T. Garren, Piper & Marbury, Baltimore, Md., for defendant Remer.
   MEMORANDUM AND ORDER

RAMSEY, District Judge.

The Shaare Tefila Congregation, individually and on behalf of its members, instituted this civil action against eight defendants for alleged violations of federal and state law arising from defendants’ desecration of plaintiffs’ synagogue. Plaintiffs base their claims on federal civil rights statutes 42 U.S.C. §§ 1981, 1982 and 1985(3), and on Maryland common law of trespass, nuisance and intentional infliction of emotional distress.

Presently pending before the Court is defendant Michael David Remer’s motion to dismiss the complaint pursuant to Fed.R. Civ.P. 12(b)(1) and (6). Plaintiffs filed a response in opposition to the motion and defendant has replied thereto. Oral argument is unnecessary and the Court rules pursuant to Local Rule 6 (D.Md.1984).

The grant of a motion to dismiss pursuant to Rule 12(b)(6) is appropriate only when it appears beyond doubt that plaintiffs can prove no set of facts in support of their claims which would entitle them to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957). In ruling upon the pending motions to dismiss, the Court must view the complaint in the light most favorable to plaintiffs and resolve every doubt in their behalf. See Wright and Miller, Federal Practice and Procedure: Civil § 1357 (1969) and cases cited therein. The plaintiffs’ allegations are to be taken as true for the purposes of ruling upon the motion. See id. and cases cited therein. See also Jenkins v. McKeithen, 395 U.S. 411, 421-22, 89 S.Ct. 1843, 1848-49, 23 L.Ed.2d 404 (1969). Moreover, any inference that may reasonably be drawn or construed from plaintiffs’ complaint shall be considered together with the allegations of fact. Murray v. City of Milford, Connecticut, 380 F.2d 468, 470 (2d Cir.1967); L.S. Good & Co. v. H. Daroff & Sons, Inc., 263 F.Supp. 635, 644 (N.D.W.Va.1967).

A motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(1) raises the question of whether a court has subject matter jurisdiction over a proceeding. In ruling upon this motion, the complaint will be construed broadly and liberally, in conformity with Federal Rule of Civil Procedure 8(f). See, e.g., Bachowski v. Brennan, 502 F.2d 79, 83 n. 4 (3d Cir.1974), rev’d on other grounds sub nom., Dunlop v. Bachowski, 421 U.S. 560, 95 S.Ct. 1851, 44 L.Ed.2d 377 (1975); Duffield v. Memorial Hospital Ass’n of Charleston, 361 F.Supp. 398, 400 (S.D.W.Va.1973), aff'd on other grounds sub nom., Duffield v. Charleston Area Medical Center, 503 F.2d 512 (4th Cir.1974). See generally Wright & Miller, Federal Practice and Procedure: Civil § 1350 (1969) and cases cited therein. Where the complaint’s jurisdictional allegations are complete, uncontradicted, and sufficient, the Court ordinarily must overule a motion directed only at the language of the complaint. See, e.g., Seaboard Finance Co. v. Martin, 244 F.2d 329 (5th Cir.1957). However, the pleading will be read as a whole, with any relevant specific allegations found in the body of the complaint taking precedence over the formal jurisdictional allegation therein, and all uncontroverted factual allegations will be accepted as true. See, e.g., Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); Gibbs v. Buck, 307 U.S. 66, 59 S.Ct. 725, 83 L.Ed. 1111 (1939). The plaintiff ordinarily bears the burden of proof on a Rule 12(b)(1) motion. See, e.g., Thomson v. Gaskill, 315 U.S. 442, 62 S.Ct. 673, 86 L.Ed. 951 (1942); Gibbs v. Buck, 307 U.S. 66, 59 S.Ct. 725, 83 L.Ed. 1111 (1939); McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 56 S.Ct. 780, 80 L.Ed. 1135 (1936). Where the complaint’s invocation of subject matter jurisdiction is based on a federal question, the plaintiff need only show that he has alleged a claim under federal law and that the claim is not frivolous. See, e.g., Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962); Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939 (1946). The Court must weigh the merits of what is presented in a Rule 12(b)(1) motion. See Peterson Systems, Inc. v. Morgan, 224 F.Supp. 957 (W.D.Pa.1963).

Count I: 42 U.S.C. § 1981

The first count of the complaint alleges that the desecration of plaintiffs’ synagogue deprived the congregation of the full and equal benefit of laws for the security of persons and property under 42 U.S.C. § 1981. That statute provides in pertinent part as follows:

All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens ...

Plaintiffs further allege in Count I that the defendants’ conduct was “motivated by racial prejudice in that the defendants perceive plaintiffs as racially distinct because they are Jews ...”

Defendant raises two arguments in support of dismissal of Count I. First, he contends that despite the allegations of racial animus in the pleadings, the essence of plaintiffs’ claim is religious rather than racial discrimination, and as such it is not cognizable under § 1981. Second, defendant contends that state action is a required element of any claim under the full and equal benefit clause of the statute; because state action has not been alleged here dismissal is appropriate. The Court finds dismissal appropriate on the ground of state action, and therefore does not reach defendant’s first argument for the purposes of Count I.

Plaintiffs do not assert that any state action is involved in the instant case. Rather, they contend that state action is not required for a claim under the full and equal benefits clause, relying on Jones v. Alfred H. Mayer Co., 392 U.S. 409, 88 S.Ct. 2186, 20 L.Ed.2d 1189 (1968). The Supreme Court held in Jones that 42 U.S.C. § 1982 was intended to prohibit private acts of discrimination which violate property rights. Plaintiffs argue that the same principles relied upon in Jones have been and should in this instance be applied to the full and equal benefits clause of § 1981.

The Jones holding has been applied to interpret the contract clause of § 1981 as prohibiting private acts of discrimination. Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 95 S.Ct. 1716, 44 L.Ed.2d 295 (1975); Runyon v. McCrary, 427 U.S. 160, 96 S.Ct. 2586, 49 L.Ed.2d 415 (1976). Some courts have indeed extended the holding even further to find, as plaintiffs’ urge here, that the full and equal benefit clause of § 1981 also prohibits private acts of discrimination. See, e.g., Central Presbyterian Church v. Black Liberation Front, 303 F.Supp. 894, 901 (E.D.Mo.1969). This is by no means a universal interpretation, however. Other courts have noted a distinction between the contract and full and equal benefit clauses of § 1981, finding the concept of state action to be implicit in the latter:

The words ‘full and equal benefit of all laws and proceedings for the security of persons and property’ ... suggests a concern with relations between the individual and the state, not between two individuals. The state, not the individual, is the sole source of law, and it is only the state acting through its agents, not the private individual, which is capable of denying to blacks the full and equal benefit of the law. Thus, while private discrimination may be implicated by the contract clause of section 1981, the concept of state action is implicit in the equal benefit clause.

Mahone v. Waddle, 564 F.2d 1018, 1029 (3rd Cir.1977), cert. denied, 438 U.S. 904, 98 S.Ct. 3122, 57 L.Ed.2d 1147 (1978).

The Third Circuit’s interpretation of the full and equal benefits clause in Ma-hone was recently adopted by the U.S. District Court for the Eastern District of Virginia. In Eggleston v. Prince Edward Volunteer Rescue Squad, Inc., 569 F.Supp. 1344 (E.D.Va.1988), aff'd, 742 F.2d 1448 (4th Cir.1984), the court granted summary judgment against the plaintiff’s § 1981 action based on expulsion from a private rescue squad, finding no basis for a claim under the contract clause and no state action to support a claim under the full and equal benefit clause. 569 F.Supp. at 1353. This Court is in full agreement with the reasoning expressed in Mahone and adopted in Eggleston which distinguishes between the contract and equal benefit clauses for the purposes of state action. In the instant case there does not exist, nor do plaintiffs assert, any basis for a claim under the contract clause. Nor does there exist, and plaintiffs again do not assert, state action to support a claim under the full and equal benefit clause. Dismissal is accordingly proper as to Count I of the complaint.

Count II: 42 U.S.C. § 1982

The second count of the complaint alleges that defendants’ desecration of the synagogue deprived plaintiffs of the right to hold real and personal property in violation of 42 U.S.C. § 1982. That statute provides as follows:

All citizens of the United States shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property.

Plaintiffs again specifically allege in this Count that the defendants’ conduct was “motivated by racial prejudice in that defendants perceive plaintiffs as racially distinct because they are Jews.”

Defendants argue in support of dismissal of Count II that despite the “pleading artifice” by which plaintiffs attempt to assert race discrimination as the basis for their claim, the claim is nevertheless one of religious discrimination to which § 1982 does not apply. Plaintiffs argue in response that by specifically alleging that defendants’ acts were motivated by racial animus they have in fact stated a claim for race discrimination cognizable under § 1982.

42 U.S.C. § 1982, along with § 1981, had its origin in the first section of the Civil Rights Act of 1866. Tillman v. WheatonHaven Recreation Association, 410 U.S. 431, 439, 93 S.Ct. 1090, 1094, 35 L.Ed.2d 403 (1973). That Act was intended to protect a “limited category of rights, specifically defined in terms of racial equality.” Georgia v. Rachel, 384 U.S. 780, 791, 86 S.Ct. 1783, 1789, 16 L.Ed.2d 925 (1966). Not surprisingly, then, § 1982 has been held to apply solely to racial rather than to other types of discrimination. Jones v. Alfred H. Mayer Co,, supra, 392 U.S., at 413, 88 S.Ct. at 2189 (1968). Moreover, the Supreme Court has specifically noted that the statute does not address itself to discrimination based on religion. Id.

Plaintiffs in defending their cause of action under § 1982 do not argue for a broad interpretation of the statute such as would protect against discrimination based on religion. Nor do they ask for judicial recognition of a Jewish racial identity in order that the statute be applicable here. Rather, plaintiffs argue that race discrimination for the purposes of § 1982 should be determined by the subjective perceptions of the discriminator: whatever the reality may be, because it is alleged that the defendants in this case perceive Jews to be a separate race and were motivated by racial animus, a viable cause of action exists.

The Court is unwilling to adopt an interpretation which relies so entirely on the idiosyncracies of individual defendants in civil rights cases. As defendant notes, such an approach would have the practical effect of extending § 1981 and § 1982 to apply to any group, however defined, merely by virtue of alleging that an individual defendant perceived the group as racially inferior, however irrational that perception might be. Moreover, the suggested approach is at odds with the language of decisions in this district concerning the scope of § 1981, which is clearly applicable to § 1982 as well. In Martinez v. Hazel-ton Research Animals, 430 F.Supp. 186 (D.Md.1977), Judge Murray in deciding whether a discrimination claim by a Hispanic stated a proper cause of action under § 1981 specifically noted that some Hispanic individuals “may suffer discrimination closely akin to that experienced by members of the black race,” but found that the plaintiff had not “sufficiently alleged racial background of the plaintiff in order to support an allegation of racial discrimination” under the statute. Id. at 187-88. Clearly it was the “racial background of the plaintiff” rather than the racial perceptions of the defendant, that the court found determinative. Judge Miller in Lopez v. Sears, Roebuck and Co., 493 F.Supp. 801 (D.Md.1980) adopted the above language from Martinez but found that in his case the plaintiff had “clearly stated that the alleged discrimination is based both on nationality (Hispanic) and race (brown).” 493 F.Supp. at 807. Again, it is, to use Judge Murray’s term, the “racial background” of the plaintiff (“race (brown)”) that was found to support a cause of action under the statute. Applying this principle to the instant case, the Court finds that plaintiffs’ allegation that defendants perceive them as racially distinct fails to establish a cause of action under § 1982.

The Court is sympathetic to plaintiffs’ outrage and sorrow over the desecration of their place of worship, and recognizes the history of discrimination against Jews which is so eloquently described in plaintiffs’ brief. Nevertheless, as plaintiffs themselves affirm, Jews do not constitute a distinct or recognizable “race” and are not commonly identified as such. Distorted beliefs of certain deviant groups to the contrary, the Court holds that discrimination against Jews is not race discrimination within the meaning of the statutes in question. See Budinsky v. Coming Glass Works, 425 F.Supp. 786, 789 (W.D.Pa.1977) (persons of Slavic, Italian or Jewish origin “are not so commonly identified as ‘races’ nor so frequently subject to that ‘racial’ discrimination which is the specific and ex-elusive target of § 1981”); Wald v. International Brotherhood of Teamsters, 24 FEP Cases 616, 619 (C.D.Ca.1980) “[T]he weight of authority supports the view that claims of discrimination against Jews do not state claims under § 1981”). But see Marlowe v. Fisher Body Division, 11 FEP Cases 1357 (C.D.Mich.1975) (in certain contexts discrimination against Jewish persons could be the equivalent of race discrimination under § 1981).

Count III: 42 U.S.C. § 1985(3):

The third count of the complaint alleges that in violation of 42 U.S.C. § 1985(3) the defendants conspired to deprive plaintiffs of equal protection of the laws or of equal privileges and immunities under the laws, including but not limited to the right to travel, the right to assemble and worship, and rights protected by 42 U.S.C. § 1981 and § 1982, Maryland criminal laws against destruction of property and Maryland common law against trespass, nuisance and intentional infliction of emotional distress. In view of the Court’s dismissal of Counts I and II, the claim of conspiracy to deprive plaintiffs of rights under 42 U.S.C. § 1981 and § 1982 must also be dismissed. In addition, plaintiffs no longer assert the right to assemble and worship as an element of Count III, apparently conceding that a claim under § 1985(3) as applied to First Amendment rights fails in the absence of state action. United Brotherhood of Carpenters and Joiners of America, Local 610 v. Scott, 463 U.S. 825, 103 S.Ct. 3352, 77 L.Ed.2d 1049 (1983). The Court will accordingly consider plaintiffs’ § 1985 claim only as it applies to the federal right to travel and the various state rights plaintiff has asserted.

Right to Travel:

Nowhere in the complaint do plaintiffs make specific factual allegations that defendants interfered with their right to travel. Plaintiffs argue, however, that from their allegations as to the location of the synagogue and its members, the conduct of the defendants and the effect of that conduct on plaintiffs the finder of fact could conclude that the purpose and effect of the conspiracy was infringement of interstate travel. The Court finds this argument much too attenuated to support a cause of action under § 1985(3).

Certainly plaintiffs’ conclusory allegation in Count III that defendants conspired for the purpose of depriving plaintiffs of their federal constitutional right to travel is insufficient to state a cause of action under § 1985. Greene v. JHU, 469 F.Supp. 187, 198 (D.Md.1979). Nor does the sum of the other allegations specified by plaintiffs support such a claim. The Court finds this case to be easily distinguished from Griffin v. Breckenridge, 403 U.S. 88, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1971), upon which plaintiffs rely. In Griffin the Supreme Court reversed an order dismissing a § 1985 complaint, on the ground that under the allegations presented it was open to the plaintiffs to prove at trial that defendants conspired to deprive them of their right to travel. The complaint in Griffin specifically alleged that plaintiffs were traveling upon federal, state and local highways in and about several counties, one of which was located on a state border; that defendants conspired to block plaintiffs’ passage on those public highways and that pursuant to the conspiracy defendants in fact drove into the path of plaintiffs’ vehicle and physically blocked its passage. In the instant case, by contrast, plaintiffs fail to allege any actual interference with their right to travel. Nor is there any support in the pleadings for the inference that defendants conspired to interfere with this right. Plaintiffs’ claim under § 1985(3) is accordingly dismissed insofar as it concerns plaintiffs’ right to travel.

Rights Under Maryland Law:

Plaintiffs argue that state as well as federal rights are protected under § 1985(3), citing Life Insurance Co. of North America v. Reichardt, 591 F.2d 499 (9th Cir.1979). The Court is persuaded, however, that the statute is properly interpreted to reach only federal constitutional and statutory rights. Subsequent to the Ninth Circuit’s holding in Reichardt the Supreme Court described § 1985(3) as “providing a civil cause action when some otherwise defined federal right ... is breached by a conspiracy ...”. Great American Federal Savings and Loan v. Novotny, 442 U.S. 366, 376, 99 S.Ct. 2345, 2351, 60 L.Ed.2d 957 (1979) (emphasis added). The limitation of § 1985(3) to rights guaranteed by federal law or the Constitution has been clearly asserted by the Fourth Circuit as well. McNutt v. Duke Precision Dental and Orthodontic Labs, Inc., 698 F.2d 676, 680 (4th Cir.1983). Accordingly, the claim under § 1985(3) must be dismissed insofar as it concerns the various state rights asserted.

Plaintiffs have failed to state a cause of action on any of the purported bases under § 1985(3). Count III of the complaint must accordingly be dismissed.

Counts IV-VI: State Law Claims

The remaining counts of the complaint allege violations of Maryland statutory and common law. Given the Court’s dismissal of all federal claims, the pendent state claims must also be dismissed. United Mine Workers v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 1139, 16 L.Ed.2d 218 (1966).

Although the motion to dismiss was filed on behalf of only one defendant it is obvious from the rulings contained herein that dismissal is appropriate as to the entire casé against all defendants. Accordingly, for the reasons stated herein, it is this 22nd day of April, 1985, by the United States District Court for the District of Maryland,

ORDERED:

1. That defendant Remer’s motion to dismiss is GRANTED; and,

2. That the action is DISMISSED as to all defendants; and,

3. That the Clerk of the Court shall mail copies of this Memorandum and Order to all counsel of record.

      . Plaintiffs in their opposition submit materials outside the pleadings (affidavits and deposition transcripts) and thereby subject the motion to treatment as one for summary judgment. Fed. R.Civ.P. 12(b). Given that extra-pleading materials are inappropriate in a motion based, as this one is in part, on Rule 12(b)(1), and finding that the materials submitted will not facilitate the disposition of this action, the Court elects to exclude the materials and consider the motion as one for dismissal. See Wright & Miller, Federal Practice and Procedure: Civil § 1366 (1969).

      . Defendant raises a similar argument concerning the true nature of plaintiffs’ claim in relation to Count II of the complaint. See infra.


author: EDELSTEIN, District Judge:

text:
    The ORE & CHEMICAL CORPORATION, Petitioner, v. STINNES INTEROIL, INC. and Sergeant Oil & Gas Co., Inc., Respondents.
    No. 84 Civ. 6553 (DNE).
    United States District Court, S.D. New York.
    April 22, 1985.

      Milgrim, Thomajan Jacobs & Lee, P.C., New York City, David P. Langlois, New York City, of counsel, for petitioner.
    Parker, Auspitz, Neesemann & Delehanty, P.C., New York City, Jack C. Auspitz and Martin S. Himeles, Jr., New York City, of counsel, for respondent Stinnes Interoil, Inc.
    Healy & Baillie, New York City, Raymond A. Connell, New York City, of counsel, for respondent Sergeant Oil & Gas Co., Inc.
   OPINION AND ORDER

EDELSTEIN, District Judge:

The Ore & Chemical Corporation (“OCC”) has petitioned this court to compel consolidated arbitration and to appoint arbitrators. Petitioners contend that this court has jurisdiction over the petition, pursuant to 9 U.S.C. § 4 and this court’s diversity jurisdiction, 28 U.S.C. § 1332. Respondents Stinnes Interoil, Inc. (“Stinnes”) and Sergeant Oil & Gas Co., Inc. (“SOG”) contend that the petition should be dismissed because the court lacks the power to compel consolidated arbitration under 9 U.S.C. § 4, and that, in any event, consolidation is not warranted in this case. Because the court agrees with respondents, the petition to compel consolidated arbitration is denied.

FACTUAL BACKGROUND

For the purposes of this motion, the facts as stated in the petition and in plaintiff’s supporting papers are taken as true. OCC is a trader of commodities, including petroleum products. On January 15, 1984, OCC purchased 220,000 barrels of gas oil, plus/minus ten per cent buyer’s option, from SOG. The contract provided for delivery at Trinidad during the period February 5 through 10 (the “lifting period”) and that OCC was to nominate a vessel to receive the gas oil. The initial OCC-SOG sales agreement did not contain an arbitration clause.

On January 20, 1984, OCC entered into a contract, through a broker, with Stinnes for the sale of the 220,000 barrels of gas oil for delivery during the same “lifting period.” The contract was confirmed by a telex from the broker, which provided: “Laws of the State of New York to govern with arbitration in New York.” Stinnes also agreed to provide a vessel to load the gas oil, the Tanja Jacobs.

Stinnes’s vessel arrived on February 11, 1985, outside the lifting period. OCC contends that SOG did not make the oil available at this point. Stinnes, taking the position that OCC had breached the contract because it could not produce the contractual amount of the gas oil, sold the cargo for account of OCC in a fallen market, obtaining $1.2 million less than OCC was to have received under the contract. OCC contends that either Stinnes or SOG is liable to it for $1.2 million. If OCC did not breach the OCC-Stinnes contract, then Stinnes is liable to it. If, on the other hand, there was a breach of the OCC-Stinnes contract, OCC contends that SOG is liable to it, because any breach was caused by SOG’s failure to make the gas oil available as it was obligated to do under the SOG-OCC contract.

In the weeks following the lifting period, SOG negotiated with OCC for payment under the original sales agreement. On March 5, 1985, the parties entered into an agreement which provided, inter alia, “Laws of the State of New York to Apply with Arbitration in New York.”

OCC made demands for arbitration under the two contracts. Both Stinnes and SOG have agreed to arbitrate in New York, but they will not agree to consolidated arbitration.

DISCUSSION

OCC contends that the court should consolidate arbitration because common issues of law and fact between the three parties “predominate” in this action and that OCC would be prejudiced by having to arbitrate separately with SOG and Stinnes, in that it would be subject to the risk of inconsistent verdicts. The Federal Arbitration Act, 9 U.S.C. § 4, provides in pertinent part:

A party aggrieved by the alleged failure, neglect or refusal or another to arbitrate under a written agreement for arbitration may petition any United States district court ... for an order directing that such arbitration proceed in the manner provided for in such agreement____ The court shall hear the parties, and upon being satisfied that the making of the agreement for arbitration or the failure to comply therewith is not in issue, the court shall make an order directing the parties to proceed to arbitration in accordance with the terms of the agreement.

In Compania Espanola de Pet, S.A. v. Nereus Shipping, S.A., 527 F.2d 966 (2d Cir.1975), cert. denied, 426 U.S. 936, 96 S.Ct. 2650, 49 L.Ed.2d 387 (1976), the Court of Appeals for the Second Circuit held that “the liberal purposes of the Federal Arbitration Act clearly require that this act be interpreted so as to permit and even to encourage consolidation of arbitration proceedings in proper cases.” Id. at 936, 96 S.Ct. at 2650. Since the Nereus decision, courts in this circuit “have frequently ordered consolidated arbitration proceedings when the ‘interests of justice’ so require either because the issues in dispute are substantially the same and/or because a substantial right might be prejudiced if separate arbitration proceedings are conducted.” Matter of Czamikow-Rionda Co., Inc., 512 F.Supp. 1308, 1309 (S.D.N.Y.1981) .

Respondents urge this court to reject Nereus on the ground that it is no longer good law. The general rule is that a federal district court is bound by the rule of the circuit. United States v. Posner, 549 F.Supp. 475, 476-77 n. 1 (S.D.N.Y.1982) ; Bolf v. Berklich, 401 F.Supp. 74, 76 (D.Minn.1975). A district court, however, should not rely on older precedents that have been rejected in later decisions. C.D.R. Enterprises, Ltd. v. Board of Educ. of City of New York, 412 F.Supp. 1164, 1170 (S.D.N.Y.1976), aff'd, sub nom., Lefkowitz v. C.D.R. Enterprises, Ltd., 429 U.S. 1031, 97 S.Ct. 721, 50 L.Ed.2d 742 (1977). The Nereus decision has been rejected by a district court and Court of Appeals for the Ninth Circuit, Weyerhaeuser Co. v. Western Seas Shipping Co., 568 F.Supp. 1220 (N.D.Cal.1983), aff'd, 743 F.2d 635 (9th Cir.), cert. denied, — U.S.-, 105 S.Ct. 544, 83 L.Ed.2d 431 (1984), and is contrary to recent Supreme Court pronouncements on the scope of the Federal Arbitration Act, see, e.g., Dean Witter Reynolds Inc. v. Byrd, — U.S.-, 105 S.Ct. 1238, 84 L.Ed.2d 158 (1985). Accordingly, this court opines that if the Court of Appeals for the Second Circuit were to reconsider the issue, it would overrule Nereus, and hold that a district court does not have the power under 9 U.S.C. § 4 to compel consolidated arbitration, where the parties did not provide for consolidated arbitration in the arbitration agreement.

The starting point in any case involving the construction of a statute is the language of the statute. See Byrd, supra, — U.S. at-, 105 S.Ct. at 1241. Section four of the act, by its terms, does not empower the court to compel consolidated arbitration. It only authorizes the district court to order the parties to arbitrate “in the manner provided for in [the arbitration] agreement.” As the court stated in Weyerhaeuser, supra, “[t]his provision comports with the statute’s underlying premise that arbitration is a creature of contract, and that ‘[a]n agreement to arbitrate before a specified tribunal is, in effect, a specialized kind of forum-selection clause that posits not only the situs of suit but also the procedure to be used in resolving the dispute.’ ” Weyerhaeuser, supra, 743 F.2d at 637 (quoting Scherk v. Alberto-Culver Co., 417 U.S. 506, 519, 94 S.Ct. 2449, 2457, 41 L.Ed.2d 270 (1974)). Thus, when the parties themselves have not placed a provision for consolidated arbitration into their arbitration agreement, 9 U.S.C. § 4 does not provide any authority for a court order compelling consolidated arbitration.

Petitioner contends that separate arbitrations exposes OCC to the risk of inconsistent awards, and that consolidated proceedings would be more expeditious. Assuming, arguendo, that this is so, the court, nevertheless, does not have the authority to compel consolidated arbitration, absent a provision for consolidation in the contract. In Byrd, supra, the Supreme Court “rejected] the suggestion that the overriding goal of the Arbitration Act was to promote the expeditious resolution of claims.” — U.S. at-, 105 S.Ct. at 1242. The Court in Byrd held that the Arbitration Act requires district courts to compel arbitration of pendent arbitrable claims, even when the result would be the possibly inefficient maintenance of separate proceedings in different forums. See also Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1, 20, 103 S.Ct. 927, 939, 74 L.Ed.2d 765 (1983) (affirming an order requiring enforcement of an arbitration agreement, even though the arbitration would result in bifurcated proceedings, “because the relevant federal law requires piecemeal resolution when necessary to give effect to an arbitration agreement”) (emphasis in original). The Court stated that “passage of the Act was motivated, first and foremost, by a congressional desire to enforce agreements into which parties had entered, and we must not overlook this principal objective when construing the statute, or allow the fortuitous impact of the Act on efficient dispute resolution to overshadow the underlying motivation.” Byrd, supra, — U.S. at-, 105 S.Ct. at 1242. Thus, the Second Circuit’s reliance in Nereus on the “liberal- purposes” of the Arbitration Act was misplaced. 9 U.S.C. § 2 “is a congressional declaration of a liberal policy favoring arbitration agreements,” Moses, supra, 460 U.S. at 24, 103 S.Ct. at 941, not of reforming them.

The court in Nereus also relied on Rules 81(a)(3) and 42(a) of the Federal Rules of Civil Procedure, as support for the statutory authority of federal courts to order consolidated arbitration, when the arbitration agreement does not provide for consolidated arbitration. Nereus, supra, 527 F.2d at 975; accord Robinson v. Warner, 370 F.Supp. 828, 829-31 (D.R.I.1974). Rule 81(a)(3) provides that in “proceedings under Title 9, U.S.C., relating to arbitration, ... [the Federal Rules of Civil Procedure] apply only to the extent that matters of procedure are not provided for in those statutes.” Rule 42(a) provides for consolidation of actions, “when actions involving a common question of law or fact are pending before the court, ...” These rules, however, do not provide sufficient basis for a court, in effect, to reform the parties’ contracts and force them to arbitrate their disputes in a manner not provided for in the arbitration agreements. See Weyerhaeuser, supra, 568 F.Supp. at 1222 (“agreement to arbitrate only certain disputes or only in a certain manner represents a contractual allocation of risk that the Court may not disturb absent the kind of showing necessary for reformation of an ordinary contract.”).

Rule 81(a)(3), by its express terms, does not apply when matters of procedure are provided for in the Arbitration Act. Under 9 U.S.C. § 4, the court is empowered “only [to] determine whether a written arbitration agreement exists, and if it does, to enforce it ‘in accordance with its terms.’ ” Weyerhaeuser, supra, 743 F.2d at 637. Thus, 9 U.S.C. § 4 precludes the use of the Federal Rules in a manner that would alter the terms of the arbitration agreements. The court could only compel consolidated arbitration if the arbitration agreements provided for consolidation. See id. (“only issue properly before [the district court] is whether [petitioner and respondents] are parties to a written agreement providing for consolidated arbitration.”). In this case, SOG only has consented to arbitration with OCC and Stinnes only has consented to arbitration with OCC. Both SOG and Stinnes contend that they were not aware of the other’s involvement in the transaction. As the middleman, OCC could have required both Stinnes and SOG to consent to consolidated arbitration. It did not do so. See Egyptian Co. For Maritime Transfer v. Hamlet Shipping Co., Inc., 1982 A.M.C. 874, 877 (S.D.N.Y.1981) (although court recognized that consolidated proceedings would be costly to petitioners and could result in inconsistent findings, and that a consolidated proceeding would be cheaper and fairer for all concerned, court refused to consolidate arbitrations, because petitioners “were in the best position to have avoided this situation,” and should have “negotiated for the arbitration panels that it seeks this Court to compel when it initially entered into these contracts.”). This court is powerless to force the parties to arbitrate other than in the manner provided in the arbitration agreements.

Moreover, it is well established that “[w]hen contracting parties stipulate that disputes will be submitted to arbitration, they relinquish the right to certain procedural niceties which are normally associated with a formal trial.” Burton v. Bush, 614 F.2d 389, 390 (4th Cir.1980). One of those “procedural niceties” is Rule 42(a)’s provision for consolidation of related actions. Indeed, Rule 42(a) by its express terms only applies to “actions pending before the court.” For the court to consolidate cases, the actions to be consolidated must both be pending before the court for all purposes. Pan Am. World Airways, Inc. v. U.S. Dist. Ct., 523 F.2d 1073, 1080 (9th Cir.1975); In re Penn Central Commercial Paper Litig., 62 F.R.D. 341, 344 (S.D.N.Y.1974), aff'd without opinion, sub nom., Shulman v. Goldman, Sachs & Co., 515 F.2d 505 (2d Cir.1975). The “actions” which petitioners seek to consolidate are the arbitrations, which are not now “pending before the court.” Accordingly, Rule 42(a) does not provide authority for the court to order consolidation of the arbitration proceedings.

Even if this court had the power to compel consolidated arbitration, it may refuse to do so in the exercise of its discretion. Procedural matters such as this are best suited for resolution by the arbitrator. Local 469 International Brotherhood of Teamsters v. Hess Oil & Chem. Corp., 226 F.Supp. 452, 455-56 (D.N.J.1964); see Stewart M. Muller Constr. Co., Inc. v. Clement Ferdinand & Co.-, 36 A.D.2d 814, 320 N.Y.S.2d 277 (N.Y.App.1971). The issue as to whether these arbitrations should be arbitrated together involves an analysis, not only of the transaction, but of custom and usage in the industry. Petitioner contends that common questions of law “predominate” in this case. Respondents SOG and Stinnes, on the other hand, each contend that their disputes with OCC each contain legal and factual issues that are not applicable to the other. For example, Stinnes contends that OCC’s claims against it are barred by OCC’s waiver of the delivery date in the contract and OCC’s failure to provide adequate assurances of performance under Section 2-609 of the Uniform Commercial Code. Stinnes also contends that these issues are not applicable to SOG. OCC contends that it passed to Stinnes the assurances received from SOG. It is more efficient to let the arbitrators, the ones who will be deciding the merits of the matter, decide how the issues are to be adjudicated. See John Wiley & Sons v. Livingston, 376 U.S. 543, 557, 84 S.Ct. 909, 918, 11 L.Ed.2d 898 (1964) (“Once it is determined, ... that the parties are obligated to submit the subject matter óf a dispute to arbitration, ‘procedural’ questions which grow out of the dispute and bear on its final disposition should be left to the arbitrator.”).

This case is distinguishable from other cases in which courts have consolidated arbitration, in that the arbitration clauses do not reflect an intent to agree to consolidation. The arbitration clauses were silent as to an arbitration panel. Cf. Farr Man Suplicy, Inc. v. Van Ekris & Stoett, Inc., 101 A.D.2d 756, 475 N.Y.S.2d 73, 74 (N.Y.App.1984) (both contracts contained a provision for arbitration between the Green Coffee Association). Moreover, the arbitration clause did not provide for arbitration of all disputes arising out of the purchase and sale of the gas oil. Cf. Nereus, supra, 527 F.2d at 970 (contract provided that “[a]ny and all differences and disputes of whatsoever nature arising out of this Charter shall be put to arbitration ...”). The court cannot infer from these arbitration clauses an intent to consent to consolidated arbitration.

Petitioner has submitted a list of consolidated arbitrations conducted under the auspices of the Society of Maritime Arbitrators, Inc. in New York. Exhibit 6 to Affidavit of David P. Langlois, April 8, 1984. Based on this list, petitioner contends that “consolidation is so common and expected that commercial parties impliedly consent by force of controlling law when they adopt arbitration and New York law in their contracts.” Langlois Affidavit at 1112. This argument proves too much. If consolidated arbitration is so common and expected, in the industry, then the industry’s participants should make consolidation provisions standard in their arbitration clauses. Under 9 U.S.C. § 4, arbitration cannot be compelled based on implied, or even oral consent, but only on the basis of a written agreement. Garnac Grain Co., Inc. v. Nimpex Int’l, Inc., 249 F.Supp. 986 (S.D.N.Y.1964). Moreover, there is no person better suited to determine whether consolidated arbitration is “common and expected” in the industry, or warranted in this case, than an arbitrator familiar with industry practice.

OCC also requests the court to order arbitration before the American Arbitration Association (“AAA”) and to direct appointment of neutral arbitrators through the AAA. Respondents contend that the issue of appointment of arbitrators is premature until the court rules on the issue of consolidation. Respondents request the court to give the parties an opportunity to reach agreement on the issue of appointment of arbitrators after the court decides the consolidation issue. Accordingly, the parties are given until May 13, 1985 to reach agreement on the issue of appointment of arbitrators. If no agreement has been reached at that point, the court will reconsider the exercise of its authority, pursuant to 9 U.S.C. § 5, to appoint arbitrators.

CONCLUSION

The petition to compel consolidated arbitration and to appoint arbitrators is denied. The parties are hereby given until May 13, 1985, to reach agreement on the selection of arbitrators.

SO ORDERED.

      . Petitioner has not submitted any direct evidence to refute these contentions. By affidavit submitted November 8, 1984, on behalf of OCC, petitioner’s attorney contends that "these statements are untrue by omission. Each party knew that OCC was a trader of commodities and neither a user nor a producer of gas oil. By necessity, the gas oil had to come from another party and had to be sold to another. This cannot be surprising to either Stinnes or [SOG].”

      . Respondent SOG has submitted evidence which shows that OCC attempted to insert a provision for consolidated arbitration into the agreement, but SOG would not allow it. By telex dated March 1, 1984, OCC stated that it would pay SOG approximately $6.5 million for the gasoil, on the condition that SOG "agrees in writing to the following:
      -arbitration in New York, NY pursuant to the laws of the State of New York. -a consolidated arbitration if ordered by a New York judge.”
      The final arbitration agreement did not provide for consolidated arbitration, but only "laws of the State of New York to apply to arbitration in New York.” OCC does not dispute this evidence but contends that jt is irrelevant. Indeed, OCC has conceded that it was SOG’s intent not to have consolidated arbitration. Affidavit of David P. Langlois at ¶ 8 ("[SOG’s] attempts to put in language excluding consolidation were specifically rejected.”) (emphasis in original).

      . If two arbitration proceedings are completed and separate actions are brought in federal court to confirm the arbitration awards, these confirmation proceedings would be "actions pending before the court," and thus could be consolidated under Rule 42(a), provided the court found common issues of law or fact.

      . Arbitrators have a broad range of procedural powers, aside from ordering consolidation, to effectuate the fair and efficient resolution of arbitrable disputes. Arbitrators, for example, may grant continuances and order split hearings. The court should not deprive the arbitrators of this discretion.
      Pursuant to Rule 81(a)(3), some courts have allowed the regulation of discovery during the arbitration proceedings by the Federal Rules. However, this is only permitted "upon a showing of a true necessity because of an exceptional situation." Penn Tanker Co. of Del. v. C.H.Z. Rolimpex, Warszawa, 199 F.Supp. 716, 718 (S.D.N.Y.1961). Petitioners have not convinced the court of any necessity for the application of Rule 42(a) in this case. They have only asserted that it would be more convenient to have the arbitrations consolidated.

      . Under New York State law, state courts have the power to consolidate arbitrations. Sullivan County v. Edward L. Nezelek, Inc., 42 N.Y.2d 123, 397 N.Y.S.2d 371, 366 N.E.2d 72 (1977). However, New York law does not apply. It is well settled that The Federal Arbitration Act and the federal cases construing it control enforcement of arbitration agreements, even where, as here, the agreement contains a New York choice of law provision. Masthead Mac Drilling Corp. v. Fleck, 549 F.Supp. 854, 856 (S.D.N.Y.1982). Thus, petitioner’s discussion of New York law on pages ten through twelve of its reply memorandum is inapposite.