author: BARRINGTON D. PARKER, District Judge.

text:
    Adah B. SZTAN, Plaintiff, v. SEILERS CORPORATION, et al., Defendants.
    Civ. A. No. 85-0105.
    United States District Court, District of Columbia.
    April 19, 1985.

      Guy R. Pietrovito, Washington, D.C., for plaintiff.
    Peter R. Kolker, Lawrence A. Katz, Zuckerman, Spaeder, Moore, Taylor & Kolker, Washington, D.C., for defendants.
   ORDER OF REMAND

BARRINGTON D. PARKER, District Judge.

This matter comes before the Court on the defendants’ motion for summary judgment and the plaintiff’s opposition thereto. This common law tort action wás removed to this Court from the Superior Court on January 15, 1985. The defendants sought removal on the basis of diversity of citizenship and the allegations of the complaint which stated an amount in controversy exceeding $10,000. Although certain disputed facts make summary judgment on all counts of the complaint inappropriate, it appears to a legal certainty that the plaintiff’s damages claims cannot meet the jurisdictional amount requirement. Accordingly, the Court determines that federal jurisdiction is lacking, and remands this proceeding to the Superior Court of the District of Columbia, in accordance with the provisions of 28 U.S.C. § 1447(c). See Knight v. Hellenic Lines, Ltd., 543 F.Supp. 915, 916-17 (E.D.N.Y.1982).

The plaintiff’s complaint asserts causes of action for assault, false imprisonment, intentional infliction of emotional distress, and demands both compensatory and punitive damages. The plaintiff, Adah Sztan, is a staff dietician at the Washington Hospital Center. Her claims are premised chiefly on two incidents with her supervisors at the hospital, who are named as defendants. Ms. Sztan alleges that when she visited the office of defendant Gail Walsh, Walsh refused to allow her to leave, “leaped from her chair in a hostile and threatening manner, and pushed the door out of plaintiff’s hands ... and block[ed] Plaintiff’s egress from the room.” Complaint at ¶ 15. At her deposition, Ms. Sztan asserted that her liberty was restrained for approximately two minutes, although she later appeared to concede that this restraint lasted for 30 seconds. Dep. at 51-55. She also asserts that another supervisor, defendant Mulligan, followed her into the hospital parking lot when she refused to meet with him to discuss the incident with Ms. Walsh. At her deposition, she conceded that Mr. Mulligan merely walked toward her without making any threatening gestures, apparently because he wanted to talk to her. She also asserts that after these incidents she was treated differently than other employees. Id. at 67-72. Ms. Sztan did not take any time off from work as the result of these incidents, nor did she seek medical or psychiatric treatment. Id. at 9-11, 76.

These facts, as stated by the plaintiff, do not state a claim for the intentional infliction of emotional distress or punitive damages. It is proper for the Court to examine these claims in order to determine whether the jurisdictional amount is satisfied. Kahal v. J. W. Wilson & Associates, Inc., 673 F.2d 547, 548 (D.C.Cir.1982) (per curiam). A claim for intentional infliction of emotional distress must be based on conduct which is “wanton, outrageous in the extreme, or especially calculated to cause serious mental distress.” Shewmaker v. Minchew, 504 F.Supp. 156, 163 (D.D.C.1980), aff'd, 666 F.2d 616 (D.C.Cir.1981) (per curiam). In the same vein, punitive damages are recoverable only if the defendant “act[s] with such conscious and deliberate disregard of the consequences of his actions to others that his conduct is wanton.” Knippen v. Ford Motor Co., 546 F.2d 993, 1002 (D.C.Cir.1976) (citing W. Prosser, Law of Torts, § 2, at 9-10 (1971)). None of the actions of defendants could possibly meet this exacting standard. Thus, counts two and four of the complaint and the claim for punitive damages cannot afford a basis for this Court’s jurisdiction.

Count one, which alleges false imprisonment, and count three, which alleges assault, provide the only remaining basis for relief. Although the Court concludes that these claims are frivolous at best, it cannot conclude as a matter of law that these claims fail to state a cause of action.

The Court does, however, conclude that these claims were improperly removed from Superior Court because it “appear[sj to a legal certainty that the claim is for less than the jurisdictional amount____” St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 288, 58 S.Ct. 586, 590, 82 L.Ed. 845 (1938). The Court is aware that this test is a stringent one. Martin v. Gibson, 723 F.2d 989, 993 (D.C.Cir.1983). Nevertheless, this test is met because the plaintiff could not as a matter of law be awarded damages in excess of $10,000. She did not seek medical attention, and there is no possibility of exemplary damages. Id. at 992 n. 3 (citing James v. Lusby, 499 F.2d 488 (D.C.Cir.1974). Whatever emotional distress she may have suffered cannot inflate her claim to satisfy the jurisdictional amount. Accordingly, it is this 19th day of April, 1985,

ORDERED

That this case is remanded to the Superi- or Court of the District of Columbia. The Clerk of this Court shall deliver a certified copy of this Order to the Clerk of the Superior Court and take all other appropriate steps. Each party shall bear its own costs because nonremovability was not obvious from the face of the complaint. Pack v. Rich Terminal Co., 502 F.Supp. 58, 60 (S.D.Ohio 1980). The defendants may reclaim the surety bond filed in support of their petition for removal. 28 U.S.C. § 1446(d).


source: Caselaw Access Project

author: GIERBOLINI, District Judge.

license: Public Domain

text:
    Lydia ROSADO VAZQUEZ, Plaintiff, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant.
    Civ. No. 83-1373 GG.
    United States District Court, D. Puerto Rico.
    April 23, 1985.

      Maria Dolores Rivera, Bayamón, P.R., for plaintiff.
   OPINION AND ORDER

GIERBOLINI, District Judge.

This case originally came before this court seeking judicial review of the Secretary’s decision terminating plaintiff’s Social Security disability benefits. On September 15, 1983, this case was remanded for further administrative action pursuant to the Secretary’s own motion under Section 205(g) of the Social Security Act (the Act), as amended, 42 U.S.C. 405(g). While on remand, the Appeals Council determined that plaintiff continued to be disabled and, accordingly, awarded her disability benefits.

Thereafter, on October 16, 1984, plaintiff’s counsel filed a Motion Requesting Attorney’s Fees. In consideration of this motion, we entered an order requiring counsel to provide us with the proper documentation from the Secretary certifying the amount retained for attorney’s fees. Counsel submitted this information on December 17, 1984.

Defendant, then, filed an objection to petitioner’s motion, contending that an award of attorney’s fees in this case would be inconsistent with Section 206(b) of the Social Security Act, 42 U.S.C. 406(b).

Defendant essentially argues that we are precluded from awarding attorney’s fees under Section 406(b) because we did not render a “judgment” but instead ordered this case to be remanded. A remand, she argues, is not a judgment within the meaning of Section 406(b)(1). Any request for attorney’s fees must, therefore, be submitted to the Secretary and not to this court.

It is clear that only the Secretary and not this court may award attorney’s fees for services rendered solely before the administrative agency. Gardner v. Menendez, 373 F.2d 488 (1st Cir.1967); Morris v. Social Security Administration, 689 F.2d 495 (4th Cir.1982). However, the question is whether Section 406(b) should be construed so narrowly so as to disallow an award of attorney’s fees for services rendered before this court when a case is remanded to the Secretary. We think not.

In Conner v. Gardner, 381 F.2d 497 (4th Cir.1967), the court considered this question in a case where the district court had not entered a judgment specifically awarding benefits to the claimant but had instead remanded it to the Secretary. The Fourth Circuit held that an attorney can be awarded fees for substantial work done before the district court even though the benefits were ultimately awarded at the administrative level. Id. at 500.

In consideration of this, it is our opinion that an attorney is entitled to reasonable compensation for his services performed before this court when he successfully obtains a remand which ultimately leads to an award of benefits for the claimant. See Morris, supra; Conner, supra. If we were to rule otherwise, an attorney would have to risk providing his services before this court gratuitously — presumably against his volition — since a remand would eliminate any entitlement to attorney’s fees. Tantamount to this is the fact that he would not be able to receive compensation for his services from the Secretary since the Secretary, herself, is powerless to award fees for services rendered in a district court. See Gardner, supra. This would inevitably discourage administrative appeals to this court to the possible detriment of poor litigants. Mindful of this, we hold that counsel in this case should be awarded attorney’s fees.

Counsel has requested the approval of fifteen (15) hours at $75.00 an hour, for a total of $1,125.00. From the onset, however, we must delete 8V2 hours for services provided during the administrative proceedings since only the Secretary can assess the value of such services rendered below. See Gardner, supra. Of the remaining 11½ hours, we find that only eight (8) hours are reasonable since this case was remanded immediately after the complaint was filed upon the Secretary’s motion. Our assessment is based on the simple nature of this case and on our knowledge, experience, and familiarity with the rates of attorneys recoverable in these eases. Accordingly, the petition is hereby granted and counsel is hereby awarded fees in the total amount of $600.00.

SO ORDERED.

      . Title 42 of the United States Code, Section 406(b)(1) provides in pertinent part that:
      Whenever a court renders a judgment favorable to a claimant under this subchapter who was represented before the court by an attorney, the court may determine and allow as part of its judgment a reasonable fee for such representation, ... (emphasis provided).

      . This conclusion is clearly supported by Menendez, supra, even though the court does not specifically answer this question.


author: HULL, District Judge.

text:
    FEDERAL DEPOSIT INSURANCE CORPORATION v. Samuel L. HARDIN, et al. v. H. Gene ARTRIP, et al.
    No. CIV-2-84-121.
    United States District Court, E.D. Tennessee, Northeastern Division.
    April 24, 1985.

      John K. King, G.W. Morton, Jr., Morton, Lewis, King & Krieg, Knoxville, Tenn., for plaintiff.
    Jerry Laughlin, Greeneville, Tenn., for Hardin.
    J. Paul Coleman, H. Wayne Graves, Johnson City, Tenn., George C. Reid, Laurie B. Gilbert, Phillips, Hinchey & Reid, Atlanta, Ga., for Fidelity Deposit Co. of Maryland.
    David F. Tucker, Jr., Elizabethton, Tenn., for Charles J. Edens, Edens Enterprises, Inc., Edens Sales & Distributing Co., Inc., Interbahn America’s and Coaster’s Unlimited.
    M. Stanley Givens, G. Richard Johnson, Myers, Johnson & Givens, Johnson City, Tenn., for Roadrunner Markets, Inc.
    H. Curtis Williams, Bristol, Tenn., for H. Gene Artrip, Harry C. Williams, Foxglen Assoc., Artrip-Williams and Assoc. Inc., Ar-trip Petroleum, Inc. and Fanny Fickle’s Inc.
    Olen G. Haynes, Hicks, Arnold, Haynes & Sanders, Johnson City, Tenn., for Edgewild Development Corp.
    John S. McLellan, Kingsport, Tenn., for Mack Slaughter.
   MEMORANDUM AND ORDER

HULL, District Judge.

The Federal Deposit Insurance Corporation (FDIC) in its corporate capacity, brings this action under the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1961 et seq., along with certain pendent state claims against Samuel L. Hardin, the former chief executive officer, president and director of the failed Watauga Valley Bank in Elizabethton, Tennessee, seeking to recover for losses the bank allegedly sustained as a result of acts of the defendant Hardin in fraudulently and dishonestly extending certain loans and letters of credit to various third-parties. The FDIC also contends that the losses sustained by the bank as a result of Hardin’s alleged wrongful conduct are covered, in whole or in part, under the terms and conditions of two contracts of insurance issued by Fidelity and Deposit Company of Maryland (F & D). F & D cross-claims against Hardin and sues several third-party defendants seeking to assert alleged subrogation rights and claims for contribution.

This action is presently before the Court on the defendant Hardin’s motion for partial judgment on the pleadings or, in the alternative, for partial summary judgment against the FDIC on the RICO claim. Rule 56, Federal Rules of Civil Procedure.

It is the defendant Hardin’s position that, as a matter of law, a prior criminal conviction of the defendant of the underlying predicate offenses with respect to the acts or conduct relied upon by the plaintiff is a prerequisite to the commencement or maintenance of a private civil action under the provisions of RICO. 18 U.S.C. § 1964(c). It is apparently undisputed that defendant Hardin has not been convicted of any of the underlying predicate offenses with respect to the acts or conduct relied upon by the FDIC in its complaint. Defendant Hardin cites the recent decision by the Second Circuit Court of Appeals in Sedima v. Imrex Company, Inc., 741 F.2d 482 (2nd Cir.1984) (appeal pending) as authority for his position. Defendant F & D, in its brief in support of defendant Hardin’s motion, also urges the Court to “follow the well reasoned opinion of the court in Sedima. ” In the Sedima decision, the Court held that:

In sum, after reviewing the words and structure of the enacted statute [18 U.S.C § 1964 (c) ], its legislative history, and the prior case law interpreting the statute, we find it impossible to believe that in enacting RICO, Congress intended to sweep all ordinary injuries occasioned by the predicate criminal acts within the dragnet of the treble damage remedy provided by section 1964. To bring a private civil action, there must be a “violation,” that is, criminal convictions on the underlying predicate offenses. Of course, a conviction under RICO itself will do, a fortiori. 741 F.2d at 503.

The plaintiff FDIC, on the other hand, contends that this Court is bound by the decision of the Sixth Circuit Court of Appeals in USACO Coal Company v. Carbomin Energy, Inc., 689 F.2d 94 (6th Cir.1982), in which the court stated:

The defendants have not been subjected to any criminal proceedings under RICO for the acts complained of by the plaintiffs. We are of the opinion that 18 U.S.C. § 1964 (c) creates a private right of action for parties injured by conduct that violates 18 U.S.C. § 1962 without any requirement of a prior criminal conviction for that conduct. We are unaware of any decision by a Court of Appeals on the question whether a criminal conviction under 18 U.S.C. § 1963 is a condition precedent to a private civil action under § 1964 (c). United States v. Cappetto, 502 F.2d 1351 (7th Cir.1974), answers in the affirmative the analogous question whether the United States may pursue civil injunctive remedies provided by § 1964 (a) in the absence of a prior criminal conviction.
A number of district courts have specifically rejected the contention that a civil action under § 1964 (c) required a prior conviction under § 1963. State Farm Fire & Cas. Co. v. Estate of Caton, 540 F.Supp. 673, 675 (N.D.Ind.1982); Glusband v. Benjamin, 530 F.Supp. 240, 241 (S.D.N.Y.1981); Heinold Commodities, Inc., v. McCarty, 513 F.Supp. 311, 314 (N.D.Ill.1979); Parnes v. Heinold Commodities, 487 F.Supp. 645, 647 (N.D.Ill.1980); Farmers Bank of State of Del. v. Bell Mtg. Corp., 452 F.Supp. 1278, 1280 (D.Del.1978). We agree with these decisions. We find nothing in the plain language of RICO to suggest that civil liability under § 1964 (c) is limited only to those already convicted or charged with criminal racketeering activity. Section 1964 (c) states that an action for damages may be maintained by any person injured in his business or property by reason of a violation of § 1962. Bennett v. Berg, 685 F.2d 1053 (8th Cir.1982). Section 1962 merely describes acts that are “unlawful” under RICO. Section 1963 provides that violations of § 1962 are criminal, just as § 1964 (c) provides that violations of § 1962 create a private right of action for damages. If Congress had intended to limit liability under § 1964 (c) only to those convicted of or charged with RICO crimes, it would have done so within § 1964 (c) by referring to § 1963 or by otherwise specifically indicating that a conviction under § 1963 is a basis for civil damages. By referring in § 1964 (c) only to the unlawful acts of § 1962, Congress had created a civil remedy that is independent of criminal proceedings under § 1963. We believe that literal reading of RICO is consistent with the approach of United States v. Turkette, 452 U.S. 576, 101 S.Ct. 2524, 69 L.Ed.2d 246 (1981), and the Supreme Court’s recognition in that case that Congress intended that RICO be liberally construed to effectuate its remedial purposes. 689 F.2d at 95 n. 1.

After careful consideration, the Court agrees with the position of the FDIC. Until the Supreme Court accepts the Sedima rationale, or the Sixth Circuit adopts it, the Sixth Circuit’s opinion in US ACO provides the precedential guidance applicable to the present motion.

Accordingly, it is ORDERED that the defendant Hardin’s motion for partial judgment on the pleadings or, in the alternative, for partial summary judgment is hereby DENIED.

      . Any person injured in his business or property by reason of a violation of section 1962 of this chapter may sue therefor in any appropriate United States district court and shall recover threefold the damages he sustains and the costs of the suit, including a reasonable attorney’s fee. 18 U.S.C. § 1964 (c).

      . In support of his motion, defendant Hardin submitted the affidavit of Samuel L. Hardin stating that he had never been convicted of a violation of any criminal offense pertaining to any of the alleged conduct described in plaintiff’s complaint. The FDIC did not submit any opposing affidavits or allegations.


author: FISH, District Judge.

text:
    INTERFIRST BANK DALLAS, N.A., Plaintiff, v. PUROLATOR COURIER CORPORATION, Defendant.
    Civ. A. No. CA 3-84-2217-G.
    United States District Court, N.D. Texas, Dallas Division.
    April 25, 1985.
    Ernest E. Figari, Jr., Thomas A. Graves, Johnson & Swanson, Dallas, Tex., for plaintiff.
    Samuel T. Wyrick, III, Robert A. Ponton, Jr., Haythe & Curley, Raleigh, N.C., for defendant.
    Eugene Jericho, Dallas, Tex., for Air Canada.
    Toby L. Gerber, Rande K. Herrell, Berman, Fichtner & Mitchell, Dallas, Tex., and Neil I. Levy, Melrod, Redman & Bartlan, Washington, D.C., for Sally Leasing Co.
   MEMORANDUM ORDER

FISH, District Judge.

The court has considered the motion for injunction in interpleader filed by the defendant and third party plaintiff Purolator Courier Corporation (“Purolator”), as well as the responses filed by the plaintiff Inter-first Bank Dallas, N.A. (“Interfirst”) and third party defendant Sally Leasing Company (“Sally”). After reviewing the pleadings on file herein, the court has concluded that this is not a proper action in inter-pleader.

Factual Summary

The motion seeks an order directing Purolator to deposit with the court an aircraft engine, number 657 233 D (“the engine”), and enjoining all parties from instituting any action against Purolator relating to the controversy surrounding the engine. From a review of the pleadings, it appears that the salient facts and claims are as follows:

(1) Purolator acquired the engine, subject to certain liens, by bill of sale from The Aviation Group, Inc. (“TAG”), which had originally purchased the engine from Sally. TAG also assigned to Purolator its rights in the Aircraft Purchase Agreement (“the purchase agreement”) between TAG and Sally;

(2) as a result of certain liens on the engine, the purchase agreement required Sally to place $375,000 in an escrow account for payment to Purolator in the event that Purolator’s use of the engine was hampered in any material way during the escrow period;

(3) Interfirst acquired a security interest in the engine at some point prior to the sale of the engine by Sally to TAG;

(4) since the commercial obligations under which Interfirst acquired its security interest are in default, Interfirst alleges it is entitled to foreclose on the engine by virtue of such default;

(5) Interfirst made demand upon Purolator to release possession of the engine to Interfirst, but Purolator has not done so;

(6) Sally directed Purolator to retain possession of the engine;

(7) Purolator claims that it is precluded from maintaining and using the engine in its business because of the possibility of Interfirst’s success in this action. It has therefore notified Sally that Purolator’s use of the engine was materially hampered by Interfirst’s claim for possession, entitling Purolator to the amount in the escrow fund;

(8) Sally filed an answer to the third party complaint as well as to plaintiff’s complaint asserting that:

(a) Interfirst’s lien is invalid;
(b) good and marketable title to the engine was conveyed to Sally prior to the time Interfirst acquired its lien by assignment from a previous owner of the engine;
(c) Interfirst’s interest is subordinate to Purolator’s interest;
(d) Interfirst is estopped from asserting any interest in the engine because it accepted the benefits of a substituted engine;
(e) if Interfirst is entitled to foreclose on the engine, Interfirst should reimburse Sally for funds Sally expended in overhauling the engine; and finally
(f) Purolator breached the terms of the purchase agreement (in some unspecified manner), thereby excusing Sally’s performance thereunder.

Legal Analysis

Purolator’s motion for an injunction in interpleader is brought pursuant to 28 U.S.C. § 1335 which provides in relevant part:

(a) The district courts shall have original jurisdiction of any civil action of inter-pleader or in the nature of interpleader filed by any ... corporation ... having in ... its custody or possession money or property of the value of $500 or more ... if
(1) Two or more adverse claimants, of diverse citizenship as defined in section 1332 of this title, are claiming or may claim to be entitled to such money or property ... and if
(2) the plaintiff has deposited such money or property ... into the registry of the court____

The burden is on the party seeking interpleader to establish that an inter-pleader action is justified. Dunbar v. United States, 502 F.2d 506, 511 (5th Cir.1974). The party holding the subject property must demonstrate that he is or may be exposed to double or multiple liability with respect to the property he holds because of adverse claims. See Lummis v. White, 629 F.2d 397, 399 (5th Cir.1980), rev’d on other grounds sub nom. Cory v. White, 457 U.S. 85, 102 S.Ct. 2325, 72 L.Ed.2d 694 (1982); Dunbar, 502 F.2d at 511 (citing General Electric Credit Corporation v. Grubbs, 447 F.2d 286, 288-89 (5th Cir.1971), rev’d on other grounds, 405 U.S. 699, 92 S.Ct. 1344, 31 L.Ed.2d 612 (1972)).

Adversity is demonstrated where the risk of double payment on a single liability exists or where the claims exceed the movant’s liability limits. Grubbs, 447 F.2d at 289. See, e.g., Fulton v. Kaiser Steel Corporation, 397 F.2d 580 (5th Cir.1968); Travelers Indemnity Company v. Greyhound Lines, Inc., 377 F.2d 325 (5th Cir.), cert. denied, 389 U.S. 832, 88 S.Ct. 101, 19 L.Ed.2d 91 (1967).

Although the interpleader statute must be liberally construed, Lummis, 629 F.2d at 399 n. 6, the movant is, nevertheless, not entitled to an interpleader action unless he can establish the existence of one of the above alternatives. See Grubbs, 447 F.2d at 289. Initially, this case may seem appropriate as an interpleader action; upon closer analysis, however, it becomes clear that the requisite adversity does not exist.

Purolator is being subjected to different directives concerning its current use of the engine, but these conflicting instructions do not constitute two or more adverse claims to the engine. Although Interfirst is asserting claims against Purolator with respect to the engine, Sally’s claims against Purolator concern only the proper disposition of the escrow fund as a result of Interfirst’s claim against Purolator.

Thus, even if Purolator were required to turn over possession of the engine to Inter-first, it would not be subject to the claims of Sally with respect to Purolator’s rights to the engine or the proceeds from its sale. On the contrary, Sally has expressly admitted that Purolator has title to the engine. Sally’s claims against Purolator are grounded solely upon the purchase contract and Purolator’s assertion of a right to the money in the escrow account, which was evidently created to protect Purolator from claims such as the one asserted by Inter-first.

In view of these circumstances, it is apparent that Sally is not claiming an interest in the engine adverse to Purolator’s; it quite naturally follows that Purolator is not being threatened with double liability in connection with the engine. Instead, Sally is seeking an adjudication of entitlement to the money in the escrow account, a piece of property entirely separate from the engine. Compare, Savage v. First National Bank and Trust Company of Tulsa, 413 F.Supp. 447, 452 (N.D.Okla.1976).

Conclusion

For all the reasons discussed above, the court concludes that Purolator has not demonstrated the existence of two or more adverse claimants to the engine to entitle it to an interpleader action. Consequently, an injunction in interpleader is not proper. Purolator’s motion for injunction in inter-pleader is, therefore, DENIED.

SO ORDERED.

      . Purolator claims that Sally has stated that it would consider Purolator’s release of the engine as a forfeiture of the escrow fund, but no evidence that Sally made such a contention has been offered.

      . Alternatively, Sally seeks relief against Inter-first, through the assertion of Purolator’s right to ownership and possession of the engine.


author: MYRON H. THOMPSON, District Judge.

text:
    ORVAL SHEPPARD REAL ESTATE COMPANY, INC., Plaintiff, v. VALINDA FREED & ASSOCIATES, INC., etc., et al., Defendants, v. Orval H. SHEPPARD, Third-Party Defendant.
    Civ. A. No. 82-088-S.
    United States District Court, M.D. Alabama, S.D.
    April 25, 1985.

      Coleman Yarbrough and John T. Alley, Jones, Murray, Stewart & Yarbrough, Montgomery, Ala., for plaintiff.
    Kenneth T. Fuller & Joe Cassady, Cassady, Fuller & Marsh, Enterprise, Ala., for Valinda Freed & Associates, Valinda Freed, Faye Watts, Fireside Realty, Sarah H. Stoutamire, Sadie C. Trail, Realty One, Inc., Rita Proctor.
    Joe S. Pittman & Stafford Pittman, Pittman & Whittaker, Enterprise, Ala., for William H. Jenkins.
    J.E. Sawyer, Jr., Rowe, Rowe & Sawyer, Enterprise, Ala., for Town & Country Real Estate, Jerry Austin, Ross R. Cotter, Jr. and Mamie Myers.
   MEMORANDUM OPINION

MYRON H. THOMPSON, District Judge.

This is a private antitrust lawsuit seeking treble damages and involving several major real estate agencies in Enterprise, Alabama. It is premised on sections one and two of the Sherman Act, 15 U.S.C.A. §§ 1, 2, and section four of the Clayton Act, 15 U.S.C.A. § 15(a). The plaintiff, Orval Sheppard Real Estate Company, Inc. (“Sheppard Real Estate”) of Enterprise, has charged the defendants, several other local real estate agencies and their agents, with a boycott conspiracy; and one of the defendant agencies and its agent have filed a counterclaim and a third-party claim charging Sheppard Real Estate and its former owner with conspiracy to fix prices and attempted monopolization.

Based upon the evidence received during a nonjury trial, the court finds that all claims are without merit.

I.

In the late 1970’s and early 1980’s, Sheppard Real Estate was one of approximately twelve active real estate agencies selling used homes in Enterprise, Alabama. The practice in the community at the time was that an agency would agree to “list” a used home — that is, show and attempt to sell the home — in return for a commission payment of a set percentage of the selling price of the home, should the agency sell the home.

In January 1981, in an effort to increase sales in a deteriorating real estate market, Sheppard Real Estate adopted a new policy of charging a flat commission fee of $1995, irrespective of the selling price of the property. It expected that the lower fee to homeowners would result in substantially more listings and thus greater profits for the agency. Previously, it had followed the community practice of charging homeowners a commission rate generally between 5 and 6% of the sales price of the property.

At that time, most major agencies in Enterprise participated in “cobroking” arrangements with each other. Each arrangement was based upon an informal and unwritten agreement between two agencies that allowed one of the agencies to show and sell the homes listed by the other, with the two agencies splitting the sales commission, according to a previously agreed upon division, for any home sold under the arrangement. These agreements increased an agency’s chances of selling a home.

Sheppard Real Estate intended to continue to cobroke under the flat fee. It offered to pay $1000 of its flat fee commission to any competing agency that sold a home listed with Sheppard; and, in return, it expected to receive only $1000 for any competing agency’s home sold by Sheppard Real Estate, even though the competing agency charged its traditional commission of 5 to 6%.

Almost immediately upon learning of the new flat fee, several other major agencies declined to cobroke with Sheppard Real Estate because of the fee. These agencies were Valinda Freed & Associates, Inc., Fireside Realty, Inc., Realty One, Inc., Town & Country Real Estate, Inc., and Bill Jenkins and Associates.

Later, agents employed by two of the five defendant agencies — William H. Jenkins, Sr., the owner of Bill Jenkins & Associates, and Sarah Stoutamire, the president of Fireside Realty, Inc. — attempted to convince one or two other agencies in Enterprise not to eobroke with Sheppard Real Estate. They were unsuccessful. Except for these efforts, there is no evidence that any of the agents of the five defendant agencies attempted to influence other agencies, or each other.

Sheppard Real Estate’s listings rose dramatically after it adopted the flat fee system. However, when the other major agencies refused to cobroke, Sheppard Real Estate was unable to sell its listed homes as expected and its listings fell just as dramatically. The owner of Sheppard Real Estate eventually sold the agency to others, who immediately abandoned the flat fee and returned to the previous 5 to 6% commission rate.

Sheppard Real Estate has now brought this lawsuit against the following agencies and their agents: Valinda Freed & Associates, Inc. and agent Valinda K. Freed; Fireside Realty, Inc. and agents Sarah H. Stoutamire, and Sadie C. Trail; Realty One, Inc. and agent Rita Proctor; Town & Country Real Estate, Inc. and agents Jerry Austin, Ross R. Cotter, Jr., and William Marvin Cotter; and Bill Jenkins & Associates and agent William H. Jenkins, Sr. The lawsuit charges that these defendants entered into a conspiracy not to cobroke with Sheppard, in violation of federal antitrust laws.

Two of the defendants, Bill Jenkins & Associates and its agent, William H. Jenkins, Sr., have filed a counterclaim against Sheppard Real Estate and a third-party claim against its former owner, Orval H. Sheppard, charging that Sheppard Real Estate and its franchisee engaged in price fixing and attempted monopolization, in violation of the antitrust laws. The evidence reflected that Sheppard Real Estate’s franchisee, located in Daleville, Alabama, adopted the flat fee shortly after Sheppard Real Estate did.

II.

Sheppard Real Estate charges the defendants with violating section one of the Sherman Act, 15 U.S.C.A. § 1, and seeks treble damages under section four of the Clayton Act, 15 U.S.C.A. § 15(a).

A.

To recover under these antitrust provisions, a plaintiff must establish three elements. The plaintiff must show that the defendant, in violation of section one of the Sherman Act, (1) entered into “a contract, combination ..., or conspiracy,” which was (2) “in restraint of trade or commerce,” 15 U.S.C.A. § 1; and the plaintiff must further show (3) that it was damaged by the violation, thereby entitling it to treble damages under section four of the Clayton Act.

As to the first element, section one of the Sherman Act does not prohibit independent business decisions and actions. A real estate agency generally has a right to refuse to cobroke with a competing agency for reasons sufficient to itself, including because it thinks the other agency is acting unfairly in trying to undermine its trade, provided its refusal stems from independent decision and not from some agreement, tacit or expressed. Monsanto Co. v. Spray-Rite Service Corporation, — U.S. -, -, 104 S.Ct. 1464, 1469, 79 L.Ed.2d 775 (1984); Theatre Enterprises v. Paramount Film Distributing Corporation, 346 U.S. 537, 541, 74 S.Ct. 257, 259-60, 98 L.Ed. 273 (1954). Section one requires some agreement, express or implied, between two or more persons. Monsanto Co., supra.

As to the second element, section one of the Sherman Act does not prohibit all agreements that restrain trade or commerce. The section is understood to prohibit only those that impose an “unreasonable restraint,” N.C.A.A. v. Board of Regents of the University of Oklahoma, — U.S. -, -, 104 S.Ct. 2948, 2959, 82 L.Ed.2d 70 (1984). However, certain agreements, including concerted refusals to deal and group boycotts of the type alleged here, have generally long been held to be per se unreasonable and always illegal. E.g., United States v. General Motors Corporation, 384 U.S. 127, 145-46, 86 S.Ct. 1321, 1330-31, 16 L.Ed.2d 415 (1966); Klor’s, Inc. v. Broadway-Hale Stores, Inc., 359 U.S. 207, 212, 79 S.Ct. 705, 709, 3 L.Ed.2d 741 (1959).

Finally, as to the third element, section four of the Clayton Act requires that a plaintiff who has demonstrated a Sherman Act violation also prove an injury to its business from the violation and some indication of the amount of damage done. Construction Aggregate Transport, Inc. v. Florida Rock Industries, Inc., 710 F.2d 752, 782 (11th Cir.1983). “The plaintiff must introduce substantial probative facts demonstrating that some damage flowed from the unlawful conspiracy.” Id.

B.

Admittedly, Sheppard Real Estate has shown parallel conduct by the defendants. All the defendants refused to co-broke with Sheppard Real Estate after it went to a flat fee. However, parallelism by itself does not establish an agreement or, phrased differently, constitute a Sherman Act offense. Theatre Enterprises, 346 U.S. at 541, 74 S.Ct. at 259-60; Aviation Specialties, Inc. v. United Technologies Corporation, 568 F.2d 1186, 1192 (5th Cir.1978). Rather, parallel conduct is a factor “to be weighed, and generally to be weighed heavily.” Morton Salt Company v. United States, 235 F.2d 573, 577 (10th Cir.1956). There must be parallelism accompanied by some other fact to support a finding of an agreement necessary to establish a violation of section one of the Sherman Act. Theatre Enterprises, 346 U.S. at 541, 74 S.Ct. at 259-60.

This “some other fact” may take many forms. See P. Areeda, Antitrust Analysis ¶ 325 (3d ed. 1981). In Aviation Specialties, Inc., the former Fifth Circuit observed that the following scenario could support a section one violation: “significant probative evidence ... that the defendants engaged in (1) consciously parallel action, (2) which was contrary to their economic self-interest so as not to amount to a good faith business judgment.” 568 F.2d at 1192.

Here, the court finds that the defendant agencies decided to refuse to cobroke with Sheppard Real Estate without consulting one another. They acted immediately, almost without time to consult one another and engage in a concerted plan. This conclusion is supported by evidence that these agencies acted in their economic self-interest. They were deeply concerned that their participation would simply assist Sheppard Real Estate in taking over the local market and driving them out of business. The evidence also reflects that some of the agencies reasonably believed that the flat fee was economically not feasible in the area, in particular if adopted by several major agencies. Sheppard Real Estate has, at most, shown only parallel conduct by the defendant agencies. There is no evidence, direct or circumstantial, linking the agencies' conduct into an agreement, express or implied. Sheppard Real Estate has therefore failed to establish that the defendants’ refusal to cobroke constituted a violation of section one of the Sherman Act.

However, the evidence does reflect that, after the defendant agencies independently decided not to cobroke with Sheppard Real Estate, agents of two of these agencies attempted to influence one or two other agencies to follow suit. These two agents were defendants William H. Jenkins, Sr. and Sarah Stoutamire.

The actions of Jenkins and Stoutamire violated section one of the Sherman Act. Their conduct, first, constituted an agreement between two persons, and, second, if successful would have amounted to a group boycott, a per se unreasonable restraint here. However, Sheppard Real Estate may not recover against Jenkins and Stoutamire. Jenkins and Stoutamire were unsuccessful. Sheppard Real Estate has therefore suffered no damages as a result of the illegal actions of these two defendants.

III.

The counterclaim and third-party claim filed by defendants Bill Jenkins & Associates and its agent, William H. Jenkins, Sr., charge Sheppard Real Estate and its former owner with conspiring to fix prices, in violation of section one of the Sherman Act. Treble damages are sought under section four of the Clayton Act. The charge is meritless.

As already stated, these two defendants allege that Sheppard Real Estate and its franchisee conspired to fix prices at a flat fee of $1995. First, there is no evidence, direct or circumstantial, that Sheppard Real Estate and its franchisee engaged in anything other than parallel behavior. The franchisee was free under the franchise agreement to set its own commission rate; and the evidence reflects that the franchisee independently adopted the flat fee because it, like Sheppard Real Estate, believed the fee to be economically sound. But second and most importantly, there is no evidence of damages to the defendants flowing from any alleged price fixing.

These two defendants also charge that Sheppard Real Estate and its former owner attempted to monopolize in violation of section two of the Sherman Act, 15 U.S.C.A. § 2, and they seek treble damages under section four of the Clayton Act. This charge is also meritless.

Section two of the Sherman Act prohibits monopolization and attempts to monopolize. A violation of section two does not require concerted action. National Independent Theatre Exhibitors, Inc. v. Charter Financial Group, Inc., 747 F.2d 1396, 1402 (11th Cir.1984). Rather, wholly unilateral conduct, “when accompanied by the intent to monopolize and the requisite degree of market power, may constitute a violation of section 2.” Id. See also Aviation Specialties, Inc., 568 F.2d at 1192. Here, assuming that Sheppard Real Estate and its former owner intended to dominate a market, the court must nevertheless conclude from the evidence that the agency “plainly lacked sufficient market power to present a dangerous probability of success.” National Independent Theatre Exhibitors, Inc., 747 F.2d at 1402. Furthermore, the defendants have failed to demonstrate any damages flowing from the alleged attempt to monopolize.

IV.

In conclusion, the court holds that all charges of antitrust violations are without merit. An appropriate judgment will be entered.

      . Over the years, the plaintiff has been known by several names. For simplicity, the court has referred to the plaintiff throughout this opinion by only the name given in the style of this case.

      . Sheppard Real Estate actually offered two versions of its flat fee to homeowners:
      (A) A "FLAT FEE” in the amount of $1,995.00, irrespective of whether the property is sold by the agent, a co-broking agency, the owner(s), or any other party or parties.
      (B) A "FLAT FEE" in the amount of $1,995.00 to be paid in the event the property is sold by the agent or owner(s) — OR—in the event that the property is sold by an agency other than Holly Realty Company, Inc./Flat Fee Brokerage on a co-broking basis. Even in this event the owner(s) shall agree to pay as a sales commission a "FLAT FEE” of $1,000.00 plus an amount equal to 2½% of the contract sales price of the property.
      No homeowner selected the second alternative. Therefore, the first alternative is in effect the only one relevant here.

      . One or two of these agencies refused to co-broke with Sheppard Real Estate for reasons other than its flat fee. Before Sheppard Real Estate even went to the flat fee, they had either already ceased cobroking with the agency or intended to do so. The flat fee was an additional reason not to cobroke with Sheppard Real Estate.

      . The jurisdictional requirement for the Sherman Act is that the "plaintiff show (1) that the local activity has a (2) substantial effect on (3) interstate commerce.” Shahawy v. Harrison, 755 F.2d 1432, 1436 (11th Cir.1985). This requirement has been met here. Enterprise’s economic center is a military installation. A large number, over 50%, of the used home sales by the plaintiff and the defendants involve persons from other states. Also, many if not most of the homes are federally financed and insured.

      . The court would emphasize that concerted refusals to deal and group boycotts are per se unreasonable in general. Most recently, the Supreme Court has emphasized that "there is often no bright line separating per se from Rule of Reason analysis. Per se rules may require considerable inquiry into market conditions before the evidence justifies a presumption of anticompetitive conduct.” N.C.A.A., — U.S. at - n. 26, 104 S.Ct. at 2962 n. 26. See also Jefferson Parish Hospital District No. 2 v. Hyde, — U.S. -, 104 S.Ct. 1551, 80 L.Ed.2d 2 (1984); P. Areeda, Antitrust Analysis ¶ 370 (3d ed. 1981) ("there may be restraints with some boycott characteristics that are not or should not be automatically unlawful”).
      Here, the conduct alleged is clearly per se unreasonable.

      . The evidence further reflects that agencies in Enterprise frequently refused to cobroke with each other for business as well as personal reasons. It was not unusual for one agency to break off relations with another. See supra note 3.

      . The parties differ as to whether the appropriate market should be Enterprise or Enterprise and Daleville. The result would be the same irrespective of the market chosen.

      . Those asserting antitrust violations have also rested their claims on Alabama law. They have not shown how Alabama law would dictate a different result.