author: VON DER HEYDT, District Judge.

text:
    In the Matter of the Complaint of K.S. LINE CORP., as Owner of the M/V SWIBON, for Exoneration From or Limitation of Liability.
    No. A83-477 Civ.
    United States District Court, D. Alaska.
    Sept. 24, 1984.

      Ronald L. Bliss, Bradbury, Bliss & Riordan, Inc., Anchorage, Alaska, for petitioner.
    David R. Millen, Bogle & Gates, John M. Conway, Atkinson, Conway, Bell & Gag-non, Allen McGrath, McGrath & Associates, Donald A. Burr, Burr, Pease & Kurtz, Anchorage, Alaska, for claimants.
   MEMORANDUM AND ORDER

VON DER HEYDT, District Judge.

THIS CAUSE comes before the court on the issue whether the size of the limitation of liability fund should be controlled by United States or Korean law. This court held an initial hearing on the issue October 21, 1983. At that time, petitioner established to the court’s satisfaction that Korean limitation of liability law should control the size of the fund. Nevertheless, because the hearing was held on shortened time, the court granted claimants additional time to submit evidence and brief the issue.

This limitation action arises out of a September 9, 1983 collision between the M/V SWIBON and the M/V PAN NOVA on the high seas in the Bering Sea near Unalaska Island, Alaska. The M/V PAN NOVA sank as a result of the collision, but the M/V SWIBON was able to continue its voyage to the United States and Canada. Both vessels were cargo vessels registered in the Republic of Korea. The M/V SWI-BON is owned by K.S. Line Corp., which has filed this limitation action. Claims have been filed by Pan Korea Shipping Co. and Pan Ocean Bulk Carriers, Ltd., owners of the M/V PAN NOVA, Hyundai Pipe of America, Inc., and Sammi Line Co., Ltd. All parties except Hyundai are Korean corporations.

As noted above, the issue before the court is whether petitioner, K.S. Line, can claim the benefit of Korean law to limit its liability. Korean limitation law is derived from the Brussels convention of 1924 and limits an owner’s liability based on the ship’s tonnage. Under Korean law, petitioner’s liability would be limited to approximately $250,000. If, however, the court finds that the size of the limitation fund is controlled by United States law, based on the value of the vessel, then the limitation amount would be approximately $9,000,000.

Petitioner argues that Korean limitation law is "substantive” and therefore applies in this case. See Black Diamond Steamship Corp. v. Robert Stewart & Sons, Ltd., 336 U.S. 386, 69 S.Ct. 622, 93 L.Ed. 754 (1949) (The NORWALK VICTORY). Alternately, it argues that this court should adopt a conflict of laws approach using the interest analysis relied on by the Supreme Court in Lauritzen v. Larsen, 345 U.S. 571, 73 S.Ct. 921, 97 L.Ed. 1254 (1953). In response, claimants argue that Korean limitation law is procedural and therefore The NORWALK VICTORY mandates that the size of the limitation fund be governed by United States law. In addition, both sides have submitted affidavits of Korean law experts in support of their positions that Korean law is either procedural or substantive.

The Interests Analysis Issue

The Supreme Court in The NORWALK VICTORY held that if the foreign limitation on liability attaches to the right, i.e., is substantive, then if foreign substantive law would otherwise apply, the foreign limitation on liability, being part of that law, would apply as well. It stated:

On this point we agree with the Court of Appeals — and disagree with the District Court — that if, indeed, the Belgian limitation attaches to the right, then nothing in The Titanic, 233 U.S. 718 [34 S.Ct. 754, 58 L.Ed. 1171] stands in the way of observing that limitation. The Court in that case was dealing with “a liability assumed already to exist on other grounds.” Id. at 733 [34 S.Ct. at 756]. But if it is the law of Belgium that the wrong creates no greater liability than that recognized by the Convention of 192), we cannot, without more, regard our own statutes as expanding the right to recover. Any other conclusion would disregard the settled principle that, in the absence of some overriding domestic policy translated into law, the right to recover for a tort depends upon and is measured by the law of the place where the tort occurred.

336 U.S. at 395-96, 69 S.Ct. at 627 (emphasis added).

In adopting this view, the Court nevertheless adhered to the position taken by Justice Holmes in The TITANIC, that the language of the United States’ limitation of liability statute required that it be applied to all limitation actions filed in the United States, whether filed on behalf of foreign or domestic vessels. See Oceanic Steam Navigation Co. v. Mellor (The TITANIC), 233 U.S. 718, 34 S.Ct. 754, 58 L.Ed. 1171 (1913).

To explain further, this court finds that the Court in The NORWALK VICTORY adopted a “two-tier” approach to determining the size of the limitation fund. At the first level, the court must apply the United States’ limitation of liability statute, see 46 U.S.C. §§ 183-85, as required by The TITANIC. This creates the United States fund level as an upper limit on the size of the fund. Although the court in The NOR-WALK VICTORY did not spell out The TITANIC’s continued applicability to all cases, it is implicit in the court’s reasoning.

At the second level, this court must then look to applicable choice of law rules to determine which country’s substantive law should apply to the case before it. If the foreign limitation law is part of the foreign country’s substantive law, then the court, in applying foreign substantive law must apply the limitation on recovery as well. This is the holding of The NOR-WALK VICTORY, stated in the language emphasized above.

Petitioners argue subsequent Supreme Court decisions indicate it has abandoned the procedural/substantive distinction of The NORWALK VICTORY as a basis for choice of law decisions and has adopted an interest, contacts, and expectations approach. See Hellenic Lines Ltd. v. Rhoditis, 398 U.S. 306, 90 S.Ct. 1731, 26 L.Ed.2d 252 (1970); Romero v. International Terminal Operating Co., 358 U.S. 354, 79 S.Ct. 468, 3 L.Ed.2d 368 (1959); Lauritzen v. Larsen, 345 U.S. 571, 73 S.Ct. 921, 97 L.Ed. 1254 (1953). Although they do not address the issue, petitioners appear to argue that the court should rely on interest analysis at the first level, that is, to determine whether the United States statute setting the fund size should be applied at all. The court must reject this argument.

The court finds there is no inherent bar to applying choice of law principles to the statute governing the size of the limitation fund, even though the statute nominally is “procedural.” Nevertheless, where Congress has addressed and decided the choice of law problem, “the court must give effect to its intentions.” Lauritzen, 345 U.S. at 579 n. 7, 73 S.Ct. at 927 n. 7; Romero, 358 U.S. at 382, 79 S.Ct. at 485. The Supreme Court in The TITANIC determined that Congress had addressed the issue, and that Congress had mandated that foreign claimants using United States’ courts be subject to its limitations regarding the size of the fund. 233 U.S. at 732-34, 34 S.Ct. at 755-56; see also Lauritzen, 345 U.S. at 591-92 & n. 27, 73 S.Ct. at 932-33 & n. 27. If there was any doubt that Congress intended the domestic liability limitation to apply to all proceedings in the United States, it was erased when Congress amended the limitations statute in 1936 so that it expressly applied to foreign, as well as domestic, vessels. Id. at 591 n. 26, 73 S.Ct. at 932 n. 26. Therefore, because Congress has addressed the choice of law issue, this court must in all limitation proceedings apply U.S. limitation law, including that part of the statute setting the size of the limitation fund.

Procedure for Deciding Choice of Law Issue

Although this court is precluded from performing a contacts or interest analysis at the first level of law determination, it finds such an analysis is proper at the second level of decision-making, that of determining which foreign substantive law to apply. As noted above, the Supreme Court in The NORWALK VICTORY held that if the foreign limitation “attaches to the right,” this court should apply the limitation as part of that foreign law. 336 U.S. at 395, 69 S.Ct. at 627. The Court, in its analysis then stated that, if the foreign limitation statute was purely procedural, then United States law would apply:

If, on the other hand, the Convention merely provides procedural machinery by which claims otherwise created are brought into concourse and scaled down to their proportionate share of a limited fund, we would respect the equally well settled principle that the forum is not governed by foreign rules of procedure.

Id. at 396, 69 S.Ct. at 627.

Justice Frankfurter further noted, as this court has also discovered, that the line between what is procedural and what is substantive is rarely clear. He suggested, however, that courts should turn to a policy-based conflicts analysis when facing problems in applying the procedural/substantive analysis:

Nor do we mean to imply that these apparently clear-cut alternatives are exhaustive. A limit which attaches not to an individual’s right of recovery but to the aggregate claims arising from a given tort can be said to be “attached to the right” only in a special sense of that phrase, and a rule which operates to cut down the amount recoverable by a claimant cannot be fitted within any but a very broad definition of the term “procedure.” Whether they are in fact considerations of domestic policy which deserve to be measured against application of the lex loci delicti and whether such considerations are as significant where the foreign limitation is lower than our own as where it is higher — these too are questions not now before us in view of the fact that the case is here merely on exceptions to the petition for limitation of liability.

Id. Thus, although the parties seem to assume that an either/or decision or whether foreign law is substantive or procedural is required by The NORWALK VICTORY, this court finds a strict adherence to the procedural/substantive test is not required.

As a final preliminary issue, this court finds it is unnecessary to decide whether the Korean limitation statute is considered substantive or procedural under Korean law. See Bournias v. Atlantic Maritime Co. 220 F.2d 152 (2d Cir.1955). The difficulty of such an inquiry becomes apparent when one notes that all parties admit that the distinction is not one commonly used in the Korean legal system. Rather, the test for whether a limitation is procedural is whether it specifically attaches to the right. See The NORWALK VICTORY, 336 U.S. at 395, 69 S.Ct. at 627; Bournias, 220 F.2d at 156-57.

Korean Limitation Law

The Korean legal system is a civil law, not a common law, system. Thus, in Korea both the law creating liability for maritime negligence and limiting this liability are statutory. The relevant law, contained in the Korean Commercial Code, reads as follows:

BOOK V. MARITIME COMMERCE

CHAPTER II. Shipowners

Article 746. (Limited Liability of Shipowners) A shipowner shall be liable in respect of the following matters arising out of a voyage of the ship subject to a limit not exceeding the value of the ship undertaking such voyage and its appurtenances, freight, claims incidental to such ship and freight, and any other accessories to the ship:
1. Damages in respect of losses incurred by a third party due to intentional or negligent fault of the master, seamen, pilots or any other employee of the ship;
2. Damages in respect of losses of goods received for carriage by the master or of other things on board the ship;
4. Damages in respect of losses arising out of negligence in navigation in the course of performing a contract of carriage;
Article 747. (Scope of Liability) With respect to the obligations set forth in items 1 through 5 of the preceding Article, total liability therefor shall not exceed an amount equal to 15,000 Won per ton of carrying capacity of the ship.
CHAPTER VI. Collision of Ships
Article 843. (Ship Collisions to which Provisions Apply) If a collision occurs between ships on the high seas or between a ship navigating on the high seas and a ship navigating in internal waters the provisions of this Chapter shall govern rights to damages for losses arising in respect of such ships and cargo or persons aboard such ships, irrespective of the character of the waters where the collision of ships occurred.
Article 845. (Collision due to Negligence of One Party) If a collision of ships has been caused by the negligence of the crew of one of the ships, the owner of such ship shall be liable to compensate injured parties for damages arising from the collision.
Article 846. (Collision due to Negligence of Both Parties)
(1) If a collision of ships has been caused by negligence of the crews of both ships, the owner of each ship shall be liable for damages in proportion to the relative fault of the respective parties. In the event that the relative degrees of fault cannot be ascertained, the shipowners shall bear liability for damages in equal shares.

The court finds that the provisions of Chapter VI are intended to create liability for ship collisions at high sea. The primary purpose of Chapter II is to implement the Brussels Convention of 1924 and limit shipowner liability. Korean law, however, does not contain the procedural rules needed to implement limitation of liability actions as they are known in this country. In other words, there is not authority for interpleader, for creating a limitation fund, or any other method for creating a forum concursus. Unlike in the United States, in Korea a shipowner seeking to limit liability cannot use limitation offensively, to preclude future claims. It can only be used defensively, to limit damages in a suit against it.

It therefore is immediately evident that the Korean limitation statute is not “procedural” as defined in The NORWALK VICTORY. Given that no procedures are in place, it cannot be said that Chapter II “merely provides procedural machinery by which claims otherwise created are brought into concourse and scaled down to their proportionate share of a limited fund.” See 336 U.S. at 396, 69 S.Ct. at 627.

Given that the Korean limitation is not strictly procedural, the court must next examine whether the limitation “attaches to the right.” The test the court must apply here is whether the limitation is so specifically directed at the liability in question that it can be fairly said that it “accompanies the obligation everywhere.” Davis v. Mills, 194 U.S. 451, 454, 24 S.Ct. 692, 693, 48 L.Ed. 1067 (1904); Bournias, 220 F.2d at 156-57.

The court finds that the Korean limitation or liability statute is sufficiently directed at the right or obligation that it “attaches to the right.” The limitation is contained in Article 747, which explicitly limits shipowner liability for five enumerated obligations listed in Article 746(l)-(5). The claims at question here — losses incurred by third parties due to the vessel’s negligence — are thus directly referenced by the limitation statute. That the limitation is contained in a separate section of the Commercial Code from the sections creating obligations (Chapter VI) does not prevent the limitation from “attaching.” Bournias, 220 F.2d at 155. Therefore, this court must apply Korean limitation law together with other Korean substantive law.

To the extent that questions exist whether the Korean limitation attaches to the right, an examination of choice of law factors similar to those listed in Lauritzen confirms that Korean law is the proper law to apply. First, both vessels involved in the accident flew Korean flags, based their operations in Korea, and were owned and run by Koreans. Thus, the factors of law of the flag, allegiance of the defendant shipowner, and base of operations all point to the application of Korean law. It is also likely that parties contracting with Korean flag ships would expect to be bound by Korean law. Finally, Korea has a significant interest in seeing Korean limitation law applied to Korean ships as part of its interest in protecting the Korean shipping industry.

The interests of the forum are, on the contrary, limited. One claimant is a United States corporation. However, the interests represented in the case remain predominantly Korean, and there is little unfairness in applying to the cargo the law of flag of the carrying vessel.

It is also argued that, because petitioner voluntarily chose the forum to file its limitation action, it is only equitable to apply the forum’s law to it. However, a decree in a limitation proceeding is given merely domestic and not international recognition, and claimants who abstain from filing damage claims in the courts of the United States are free to pursue actions in foreign tribunals. In re Bowoon Sangsa Co., 720 F.2d 595, 599 (9th Cir.1983). Therefore, because petitioner cannot control claimants’ choice of forum, it cannot be said that petitioner’s choice of forum is voluntary. Additionally, applying the Korean limitation will discourage claimants from forum shopping. Perhaps if claimants had believed there was no advantage to filing claims here, this case would be in Korean courts, clearly the optimum forum from the standpoint of judicial economy.

As a final matter, the court finds the absence of Korean procedure for creating a forum consursus does not militate for a different conclusion. It is true that petitioner may, by combining the forum’s procedures for creating a forum consursus with Korea’s limitation law, create a result better than any achievable in Korea. Nevertheless, this fortuitous result would have been of no benefit to petitioner had claimants filed their claims in Korea. Further, even in the absence of implementing regulations in Korea, the Korean limitation statute still represents a policy choice by that country’s legislature that liability should be limited. To ignore that limit would be to mock that policy.

Therefore, for the above stated reasons, this court holds that the size of the limitation fund is controlled by Korean law.

Accordingly, IT IS ORDERED:

(1) THAT the extent to which petitioner can limit its liability is controlled by Korean law;

(2) THAT no change is required in the bond currently filed with this court.

      . The full title is International Convention for the Unification of Certain Rules Relating to the Limitation of Liability of Owners of Sea Going Vessels, signed at Brussels, August 25, 1924.

      . Claimants have requested a hearing on the issue whether Korean law is substantive or procedural. The decision to hold such a hearing is discretionary. Fed.R.Civ.P. 44.1. The court finds that a hearing would not be useful in this case. Both parties have submitted extensive affidavits on the Korean law issue. It will not assist the court to observe the demeanor of law experts or to have cross examination. Therefore, because the cost of a hearing to the court and the parties outweighs its limited benefit, the court will decide the issue on the record before it.

      . Although the quoted language is somewhat obscure, the court can find no other purpose to this language other than to invite lower courts to avoid the problems caused by the procedural/substantive test by relying on policy analysis. See also Greenman, Limitation of Liability: A Critical Analysis of United States Law in an International Setting, 57 Tulane L.Rev. 1139, 1186-92 (1983).

      . See also In the Matter of the Complaint of Bethlehem Steel Corp., 435 F.Supp. 944, 947 (N.D. Ohio 1976), aff'd, 631 F.2d 441 (6th Cir. 1980), cert. denied, 450 U.S. 921, 101 S.Ct. 1370, 67 L.Ed.2d 349 (1981) (using strict procedural/substantive analysis).

      . The Sixth Circuit Court of Appeals in Bethlehem Steel, supra note 4, while primarily relying on the district court's analysis, also examined policy factors in affirming the district court's decision.
      The Supreme Court’s subsequent decision in Romero v. International Operating Co. further supports the proposition a strict either/or analysis is not required. See 358 U.S. at 382, 79 S.Ct. at 485 (holding that interest analysis set forth in Lauritzen is applicable to maritime law generally).

      . All parties agree that Korean substantive law will govern the liability issue at trial.

      . The lack of implementing regulations was apparently caused by an oversight by the Korean Commercial Code Drafting Committee, which assumed that the limitations within the 1924 Brussels Convention were self-executing.

      . Several commentators have suggested alternate factors this court should review in making a limitation of liability choice of law determination. See Greenman, Limitation of Liability: A Critical Analysis of United States Law in an International Setting, 57 Tulane L.Rev. 1139, 1192 & n. 282 (1983); Staring, Limitation Practice and Procedure, 53 Tulane L.Rev. 1134, 1169-72 (1979).

      . See also Staring, supra note 8, at 1172.


source: Caselaw Access Project

author: RAMBO, District Judge.

license: Public Domain

text:
    In re THREE MILE ISLAND LITIGATION.
    Civ. A. No. 79-0432.
    United States District Court, M.D. Pennsylvania.
    Sept. 27, 1984.

      See also, 87 FRD 433.
    David Berger, Philadelphia, Pa., for plaintiff.
   MEMORANDUM

RAMBO, District Judge.

Presently pending before this court is a supplemental application for an award of counsel fees on behalf of David Berger, Attorneys at Law (“Berger firm”), in the Three Mile Island Litigation, Civil Action No. 79-0432. The application covers the period from June 16, 1981 to August 24, 1981, a period prior to final approval of the settlement of the Three Mile Island class action suit. That approval was granted September 9, 1981 and became effective on November 9, 1981. On December 8, 1982, the court awarded attorneys’ fees for all services rendered by counsel in the TMI class action litigation prior to the date of final approval, with the exception of services rendered by the Berger firm from June 16, 1981 to August 24,1981 (the date of the hearing on final approval of the settlement). 557 F.Supp. 96.

By explicit directive of the court, the Berger firm was permitted to seek an award of counsel fees for these services. The supplemental application relates solely to services rendered before final approval of the settlement and does not involve any services relative to settlement administration of the economic loss fund or the public health fund.

The supplemental application was duly filed and notice of its filing was published once in each of the following papers: The Patriot News; The Lancaster Intelligencer; The York Daily Record; The Philadelphia Inquirer, and the Lebanon Daily News. As a result of the filing and publication, two objections were filed by the interested public. The objections addressed the hourly rates and the total amount.

The fee requested is $314,492.50. This fee includes a multiplier of 2.0.

The petition has been reviewed thoroughly and, after several inquiries and subsequent clarifications, the court is satisfied that the time expended is not unreasonable and the hourly rates charged are acceptable considering the experience, reputation and ability of the attorneys, the quality of the work and the geographic area of the law practice.

Counsel’s request for a multiplier presents another matter. In support of their request for a multiplier factor, counsel cite the contingency of the final approval, the quality of the work performed and the delay in payment.

The settlement between the parties was entered into on February 17, 1981 and was preliminarily approved by the court on March 5, 1981. Final approval of the settlement was granted on September 9, 1981, following a public hearing on August 24, 1981.

Counsel state that prior to final approval, the following risks existed that could have impeded final settlement approval:

1. rejection by the court resulting from objections by the class members;
2. rejection by the court sua sponte;
3. withdrawal by the defendants under paragraph 19 of the settlement agreement.

The courts have consistently held that an upward adjustment [in a fee is justified only “in the rare case where the fee applicant offers specific evidence to show that the quality of service rendered was superior to that one reasonably should expect in light of the hourly rates charged and that the success was exceptional.” Blum v. Stenson, — U.S.-,-, 104 S.Ct. 1541, 1549, 79 L.Ed.2d 891, 902 (1984). The Third Circuit has recently stated, “An increase based on the quality of work performed rewards counsel for exceptional work in a complex case culminating in an outstanding result.” URSIC v. Bethlehem Mines, 719 F.2d 670, 674 (3d Cir.1983). This court recognized these principles and duly awarded appropriate fees in the initial fee application. However, as the ease progressed, the contingencies diminished to a point where they could be characterized as minimal.

The possibility of this court denying settlement sua sponte was remote. This court encouraged settlement and gave preliminary approval of the terms. The contingency of the defendants withdrawing pursuant to paragraph 19 of the settlement was a factor over which plaintiffs had no control. Paragraph 19 gave defendants the right to withdraw from the settlement based on the number and nature of the exclusions. This court can determine no amount of effort on the part of plaintiffs’ counsel that could have determined this outcome. Furthermore, spot monitoring was initiated to ascertain the reasons for the exclusions. The results of monitoring indicated that most of the people polled were unconcerned and wanted no part of the litigation.

Opposition to the settlement by the class was also remote. All parties opposing the settlement were required to file a written notice of opposition. Counsel knew before the hearing the number and nature of statements in opposition. This court does not believe that the risk, the contingency or the formal result is so exceptional as to warrant a multiplier.

Counsel also seek a multiplier for the quality of the work performed. For the period between June 16,1981 to August 24, 1984, the attorneys’ hourly rates already reflect the high quality of work performed, the skill and experience of each counsel and the final results achieved. “To augment the lodestar on the basis of a ‘quality’ factor, counsel must demonstrate either service or a result of an exceptional nature.” URSIC, supra, at 674. As previously noted, this factor was recognized and rewarded in acknowledging the achievement of the settlement. The final approval presented no undue risk or contingency.

Finally, this court recognizes the substantial delay in receiving payment. However, delay alone is not a factor warranting a multiplier; rather, it is but one of the elements of the “contingent nature of the success” of the case. Lindy Bros. Builders, Inc. v. American Radiator, Inc., 540 F.2d 102, 117 (3d Cir.1976).

An appropriate order will be issued.

ORDER

Upon consideration of the Supplemental Application for Award of Counsel Fees of David Berger, Attorneys at Law, IT IS HEREBY ORDERED that the firm of David Berger, Attorneys at Law, is awarded $157,547.50 in counsel fees for the period June 16, 1981 to August 24, 1981.


author: MENTZ, District Judge.

text:
    GILLETTE TIRE JOBBERS OF LOUISIANA, INC. v. APPLIANCE INDUSTRIES, INC., et al.
    Civ. A. No. 83-2410.
    United States District Court, E.D. Louisiana.
    Sept. 28, 1984.

      Lawrence D. Wiedemann, Wiedemann & Fransen, New Orleans, La., for plaintiff.
    Rutledge C. Clement, Jr., Phelps, Dunbar, Marks, Claverie & Sims, New Orleans, La., for defendant Appliance Industries.
    Fred L. Herman, Herman, Herman & Katz, New Orleans, La., for defendant Jake’s Speed Equipment, Inc.
   MENTZ, District Judge.

The Court entertained oral argument on the defendants, Appliance Industries, Inc.’s, and Jake’s Speed Equipment, Inc.’s, Motions for Summary Judgment on February 8, 1984. At that time, the Court took the motion under submission.

ROBINSON-PATMAN ACT

The plaintiff has failed to allege all of the elements necessary to establish a violation of the Robinson-Patman Act. In order to establish a claim arising under the Robinson-Patman Act, the plaintiff must prove that a seller made two or more sales of commodities at discriminatory prices within the same approximate time period. L & L Oil Co. v. Murphy Oil Co., 674 F.2d 1113, 1120 (5th Cir.1982).

As the plaintiff has never purchased the wheels at a discriminatory price, there can be no “discrimination in price between different purchasers” as required by the act. 15 U.S.C.A. 13 (West, 1973). Plaintiff alleges that, for purposes of the act, an offer to sell at a discriminatory price constitutes a purchase at a discriminatory price.

Support for this argument can be found in American Can Co. v. Bruce’s Juices Inc., 187 F.2d 919, 924 (5th Cir.1951), which held that where the failure to purchase is directly attributable to the defendant’s own discriminatory practices, the plaintiff is not required to purchase the product on discriminatory terms. However, this case creates only a narrow exception tailored to the specific facts of the case. The defendant had refused to sell cheaper Iscans to the plaintiff while continuing to sell them to the plaintiff’s competitor. The plaintiff was relegated to purchasing a more expensive can from the defendant. American Can Co., 187 F.2d at 922. Thus, the plaintiff and the plaintiff’s competitor were both purchasing different cans from the same seller. These cans were held to be of like grade and quality. American Can Co., 187 F.2d at 924.

Although Bruce’s Juices is cited with approval in M.C. Mfg. Co. v. Texas Foundries, Inc., 517 F.2d 1059, 1067, n. 17 (5th Cir.1975), the opinion has been severely criticized and seems to be in direct conflict with the line of cases which hold that a seller has the right to refuse to sell to any prospective customer. See, L & L Oil Co., 674 F.2d at 1120. Further, in order for the plaintiff to show injury, consummated transactions are necessary “so that concrete, nonspeculative price comparisons are available”. Republic Packaging Corp. v. Haveg Industries, Inc., 406 F.Supp. 379, 381 (N.D.Ill.1976).

Therefore, from a policy prospective and a reading of the case law, it would be improper for the Court to expand the exception to the two purchaser requirement to include the present ease. As Appliance has not refused to sell to the plaintiff, the narrow exception to the two-purchaser requirement is not applicable. Appliance’s offer to sell at a discriminatory price will not be deemed to be a sale for purposes of the act, therefore, the plaintiff has failed to establish an essential element of its claim.

The plaintiff also argues that it has a duty to mitigate its damages and, therefore, did not have to purchase at the discriminatory price. The plaintiff is putting the cart before the horse. The plaintiff must first establish an anti-trust violation before a duty to mitigate arises.

Section 1. SHERMAN ACT

The plaintiff has failed to establish a conspiracy to restrain trade. In order to establish a conspiracy, the plaintiff must prove that the manufacturer and the other distributors had “a unity of purpose, or a common design and understanding, or a meeting of minds in an unlawful arrangement”. American Tobacco Co. v. United States, 328 U.S. 781, 810, 66 S.Ct. 1125, 1139, 90 L.Ed. 1575 (1946).

Evidence of distributor complaints followed by termination (or price increases in this case) is not sufficient to permit the inference of a conspiracy. Monsanto Co. v. Spray-Rite Service Corp., — U.S.-, 104 S.Ct. 1464, 1470, 79 L.Ed.2d 775 (1984). “To permit such an inference on the basis of complaints alone would inhibit Management’s exercise of independent judgment and emasculate the terms of the statute.” Monsanto Co., 104 S.Ct. at 1471. Thus, there must be evidence that shows that the manufacturer and the nonterminated distributor were not acting independently. Monsanto Co., 104 S.Ct. at 1471.

In the present case, there is no evidence that excludes the possibility that Alliance and the nonterminated distributors were acting independently. Alliance did not threaten to lower the plaintiff’s discount if plaintiff did not maintain a certain price as in Monsanto Co., 104 S.Ct. at 1471. Appliance’s call to plaintiff stating that plaintiff had created an upheaval in the market place is only evidence of the other dealer’s complaints. The Court in Monsanto Co., 104 S.Ct. at 1470 stated that complaints about price cutters “arise in the normal course of business and do not indicate illegal concerted action”. The allegation that Alliance said it would “handle the problem” is ambiguous and inadmissible as hearsay testimony.

Plaintiff’s only admissible evidence indicating a conspiracy is the complaints of other distributors, followed by a reduction in its discount rate. As a matter of law, this is insufficient to establish a conspiracy. Monsanto Co., 104 S.Ct. at 1420.

Section 2. SHERMAN ACT CLAIM

The plaintiff has failed to allege an attempt to monopolize or a monopoly in the relevant product market. As a matter of law, the plaintiff’s argument that the relevant market is Alliance wheels is wrong. See Domed Stadium Hotel, Inc. v. Holiday Inns, Inc., 732 F.2d 480 (5th Cir.1984). (Absent exceptional market conditions, one brand in a market of competing brands cannot constitute a relevant product market.) The relevant market is the market for wheels, and Appliance clearly does not have a monopoly in this market. (See Thrash Deposition, pp. 218-219.)

Obviously, a company has a natural monopoly in its own product, however, “this monopoly does not contravene the antitrust laws.” Sports Center, Inc. v. Riddell, Inc., 673 F.2d 786, 791 (5th Cir.1982). “A reduction in intrabrand competition is not pernicious as long as there exists inter-brand competition, which acts as a significant check on the exploitation of intrabrand market powers because of the ability of consumers to substitute a different brand of the same product. Aladdin Oil Co. v. Texaco, Inc., 603 F.2d 1107, 1117 (5th Cir. 1979), quoting Daniels v. All Steel Equipment, Inc., 590 F.2d 111, 113 (5th Cir.1979), quoting Continental T.V., Inc. v. GTE Sylvania, Inc., 433 U.S. 36, 53 n. 19, 97 S.Ct. 2549, 2559 n. 19, 53 L.Ed.2d 568 (1977).

In evaluating whether other brands can act as a substitute for a particular brand, the court in J.T. Gibbons, Inc. v. Crawford Fitting Co., 704 F.2d 787, 796 (5th Cir. 1983), considered the competitive nature of the industry, the fact that the brands performed the same functions and the similarity of the price of the different brands. The fact that the defendant’s product was not compatible with its competitor’s had no significance. J.T. Gibbons, Inc., 704 F.2d at 796.

In the present case, it is clear that other wheels can act as a substitute for Appliance wheels. The plaintiff admits that it can get wheels from a company which carries a “reputable product” at a similar price as the Appliance wheels. (See Thrash deposition, p. 63, pp. 132-133.) Plaintiff further admits that there is little difference in the quality among different brands of wheels.. (See Thrash deposition, p. 63.) The plaintiff argues that Appliance wheels are unique and therefore not reasonably interchangeable. This conclusion is refuted by the plaintiff’s admission that another wheel manufacturer had been able to satisfy its needs. (See Thrash deposition, p. 62.) The fact that Appliance wheels are unique or higher in quality is not relevant as long as the brands are reasonably interchangeable. J.T. Gibbons, 704 F.2d at 796.

The motion of the defendants, Appliance Industries and Jake’s Speed Equipment, Inc., for summary judgment will be granted. As the defendant, Southeastern Wheels, Inc., has not filed a motion for summary judgment, the court is not authorized by Fed.R.Civ.P. 56 to sua sponte order summary judgment. Capital Films Corp. v. Charles Fries Productions, Inc., 628 F.2d 387 (5th Cir.1980). Therefore, final judgment in the ease will not be entered until after the plaintiff’s claim against Southeastern Wheels, Inc. has been litigated.

Accordingly,

IT IS ORDERED that the defendants’ motion for summary judgment is GRANTED.

      . See Hansen, Robinson-Patman Law: A Review and Analysis, 51 Fordham L.Rev. 1115, 1125— 1126 n. 79 (1983).


author: HOLDEN, Senior District Judge.

text:
    Joanne S. VALENTE v. MOORE BUSINESS FORMS, INC.
    Civ. No. 81-364.
    United States District Court, D. Vermont.
    Oct. 4, 1984.

      Joanne S. Valente, pro se.
    Leonard P. Wing, Jr., Ryan, Smith & Carbine, Ltd., Rutland, Vt., and Laurence B. Oppenheimer, Cohen, Swados, Wright, Hanifin, Bradford & Brett, Buffalo, N.Y., for defendant.
   MEMORANDUM OF DECISION

HOLDEN, Senior District Judge.

Introduction

By oral motion made in open court on July 30, 1984, the defendant in this employment discrimination action, Moore Business Forms, Inc. (“Moore”), moved for an order of dismissal or, in the alternative, for summary judgment. In support of its motion, defendant filed a memorandum of facts and law, together with extensive exhibits including four affidavits. This action by the plaintiff, Joanne S. Valente, arises under Title VII of the Civil Rights Act of 1964 (“Title VII”) charging employment discrimination. Counsel assigned to represent the plaintiff later withdrew with her consent and the court’s approval. On July 30,1984, the plaintiff, appearing in her own behalf, presented oral argument in opposition to the written and oral submission advanced by the defendant.

A brief statement of the uncontroverted facts and procedural background of the case is necessary to focus on the questions presented.

Factual Background

Plaintiff was hired by Moore on August 26, 1976 as a “Clerk III” assigned to the Personnel Department. She began work at Moore’s Rutland, Vermont plant on September 13, 1976. Her duties included secretarial and clerical responsibilities in support of the defendant’s personnel supervisors, then Ada E. Burg (referred to as “Greta” Burg) and her successor Robert Gaiko.

In addition to performing a wide range of clerical functions, plaintiff counselled employees about health and dental care plans, and processed Workman’s Compensation claims. The plaintiff received favorable performance evaluations at this position. In performing her duties, plaintiff was provided an open section of the general office area of the Moore plant in Rut-land, Vermont.

Plaintiff was required to undergo a physical examination upon her initial hiring by Moore. Her health history includes her statement that she had no “working disabilities.” However, she did indicate that she had “allergic rhinitis”, which is congestion of the mucous membrane of the nose. The ailment was not a disability as far as plaintiff’s work was concerned. Plaintiff was aware of her affliction at the time of hiring and that she would be required to work in a factory area where dust was present. The complainant later reaffirmed that she suffered from no medical disability or physical handicap by her response to a Moore plant-wide survey taken in June 1980.

Personnel Supervisor

When the position of personnel supervisor was first established in the Rutland plant in 1976, it was staffed by a person who had an established work history with Moore including considerable experience in personnel-related functions. The position became available in early 1978. The vacancy was not posted for bidding at the time because Moore’s posting and bidding procedures then in effect did not apply to a supervisory position at this level.

In proceeding to fill the position in 1978, the Moore plant manager made an initial selection of three leading candidates. One of this group was female. The selection of prime candidates was based upon:

an established successful work history with Moore, preferably in the Rutland plant; possession of a broad knowledge of plant operations, both administrative and production, preferably with personnel related and supervisory experience and a demonstrated ability to establish and maintain relationships with plant management.

Defendant’s Answers to Plaintiff’s Interrogatories, filed July 16, 1982, at 6.

Four additional employees, including plaintiff, also indicated an interest in the position. Plaintiff had been with Moore only one-and-one-half years when, in February or March 1978, she expressed her interest in being promoted to this position. Moore did not consider plaintiff to be qualified for the personnel supervisor position due to her limited knowledge and experience in the Rutland plant. The three prime candidates all had records of long service in Moore’s Rutland plant.

The candidate ultimately selected to fill this position was Robert S. Gaiko. According to the Vermont Attorney General Office which originally investigated plaintiff’s charge of employment discrimination, Mr. Gaiko was chosen because he had

a successful, lengthy work history in the Rutland plant (16 years); a good knowledge of all plant operations; and a demonstrated ability to establish and maintain good working relationships with plant management.

Letter dated July 21, 1981 to Joanne Valente from the State of Vermont Office of Attorney General, at 2.

Mr. Gaiko had been employed in the Rut-land plant since 1962. His initial experience included several production and maintenance positions. He later was promoted to Supervisor in the Press Area and to Supervisor of Plant Staff Services. In his sixteen years of service in the Rutland plant, Mr. Gaiko had developed a superior reputation. This, coupled with his knowledge of and experience with plant operations, rendered him fully qualified for the personnel supervisor position. Plaintiff was informed that she was not selected because she lacked production experience.

Order and Pricing Clerk I

In August 1978, plaintiff made a formal application to be considered for a position of Order and Pricing Clerk I. Plaintiff was one of eighteen employees who applied. The position was filled by an employee who had five years longer experience with Moore than did plaintiff. Plaintiff did not raise her failure to gain this promotion as an issue in her administrative charge.

Job Title Upgrade

On September 4, 1979, plaintiff became • Personnel Secretary as a result of an upgrading of her job title.

Purchasing Agent

In March 1980, plaintiff made a formal application to be considered for a position as Purchasing Agent. Plaintiff was one of twenty-two applicants, six of whom were female. She was selected for an interview, which resulted in a favorable appraisal. Plaintiffs ratings, based on her conduct during the interview, were as follows:

Personality - Self-Assured
Poise - Confident
Disposition - Amiable
Assurance - Self-Confident
Volubility - Wordy
Self-Expression - Good
Tact - Very Tactful
Aggressiveness - Slightly Too Aggressive
Overall Evaluation of
Conduct Favorable

One of the interviewers added:

Joanne lacked technical expertise and had somewhat limited service in relation to some other candidates. Her interview was impressive (she was among the top five candidates), but her limited Moore experience was outweighed by more experienced candidates.

Of the five finalists, two were female. The candidate selected had nearly ten years of service with Moore, including relevant experience in the Order Department. Plaintiff had no experience in this department and had less than four years of service with the company.

After March 1980, plaintiff continued in her position as Personnel Secretary and made no further applications- for any other position with Moore. She performed her work in an open area in the office section of the plant, as she had since she began with Moore. In July 1980, plaintiff, at her own instance, was moved into a small office' near the production area of the plant. In the following December, plaintiff complained to her supervisor, Mr. Gaiko, of a dust problem in her new office.

Immediately after having been advised of plaintiffs symptoms, Moore inspected the ventilation system and authorized certain alterations to ensure that the air flow to plaintiffs office did not come from the production area of the plant. Against this, the plaintiff asserts that during this time, Mr. Gaiko told her that hers was the only office that received air directly from the factory area of the plant. Letter dated May 5, 1981 from plaintiff to Robert Appel, Civil Rights Investigator, Vt. Attorney General’s Office (plaintiff’s exhibit 1 received during July 30, 1984 hearing).

Plaintiff concedes that after Moore made these changes to the air flow system, “things were better.” After these changes, Mr. Gaiko approved plaintiff’s request for overtime pay for an after-hours office cleaning on the evening of December 21, 1980. These combined efforts apparently relieved plaintiff’s problems; at least she made no further complaints during the ensuing four weeks.

On or about January 26, 1981, a steam humidifier became operational in the office areas of the plant. On January 28, plaintiff complained to Mr. Gaiko about the humidifier. He informed her that he would ask that the Maintenance Department inspect it. According to plaintiff, later that day, Gaiko told her that nothing could be done about the humidifier and that she would have to live with it. Defendant’s response to the Attorney General’s investigation indicates that Gaiko told plaintiff that the Maintenance Department was still attempting to work the bugs out of the humidification system.

On January 28,1981, plaintiff voluntarily terminated her employment with defendant without prior notice.

Procedural History

On or about February 12, 1981, plaintiff filed a charge of employment discrimination (“administrative charge”) against Moore with the Civil Rights Division of the Vermont Attorney General’s Office. Plaintiff claimed that she had been discriminated against in that Moore refused to make reasonable accommodations for her “medically acknowledged allergy to dust” (physical handicap) while it made such accommodations for male employees. Plaintiff also claimed that her applications for two promotions, to personnel supervisor and to purchasing agent, were not given serious consideration.

Moore denied the charges and stated that: 1) it made reasonable efforts to alleviate the problems causing plaintiff’s discomfort, 2) plaintiff’s bid on the posted position of Purchasing Agent was given the same consideration as were all other applications received, and 3) plaintiff did not possess sufficient qualifications to be considered for personnel supervisor when she applied for the position.

By letter dated July 21, 1981, the Attorney General’s Office notified plaintiff that its investigation revealed that the evidence did not support her complaint or a finding by that agency that Moore had unlawfully discriminated against her.

Plaintiff’s charge was also filed with the Equal Employment Opportunity Commission (“EEOC”). By letter dated August 17, 1981, the EEOC’s Deputy District Director notified plaintiff that there was not reasonable cause to believe that the charge was true. The letter further informed plaintiff that if she desired to pursue the matter further, she had ninety (90) days from the date she received the letter in which to file a private action in Federal District Court.

Plaintiff first contacted the court concerning her intention to sue on or about October 13, 1981. By letter dated October 15, 1981, the Clerk’s Office informed Joanne Valente that she needed to file a complaint in order to bring an action in federal court. By letter of November 24, 1981 to the clerk, plaintiff sought an extension beyond November 27, 1981 in which to file her complaint. In this letter, she indicated that she had been experiencing difficulty in securing counsel to assist her in drafting her federal court complaint.

On December 1, 1981, plaintiff filed combined motions to proceed in forma pauper-is and appointment of legal counsel, along with a handwritten complaint. The complaint named three defendants: the EEOC, the State of Vermont Office of Attorney General, and Moore Business Forms, Inc. Plaintiff alleged that the administrative agencies named failed to conduct thorough investigations and ignored certain documentary evidence. Plaintiff charged that Moore violated fair employment practices and that employment discrimination was prevalent throughout Moore’s Rutland plant.

On the issue of damages, plaintiff referred to mental anguish, drastically reduced income, and a “jeopardized” reputation. Plaintiff sought one million dollars in damages from each defendant and demanded trial by jury.

By order of the court filed December 30, 1981, the court granted plaintiffs motion to proceed in forma pauperis and appointed counsel pursuant to 42 U.S.C. § 2000e-5(f)(1). Mark Butterfield, Esq. accepted the pro bono appointment and filed a new complaint with the court on February 19, 1982. This complaint named Moore as the sole defendant. Jurisdiction was founded on Title VII of the Civil Rights Act of 1964. The second complaint, contained three counts, which may be summarized as follows:

Count I: Sex Discrimination. This claim is brought under Title VII of the Civil Rights Act of 1964
Count II: Handicap Discrimination. This claim is a pendent state law claim under 21 V.S.A. § 498
Count III: Breach of Conciliation Agreement. Plaintiff alleges that Moore breached a conciliation agreement entered into between the EEOC, Moore, and certain Moore employees, not including plaintiff.

Plaintiff seeks injunctive relief, reinstatement, back pay and other financial compensation or restitution, and attorney’s fees. No jury demand was made in the second complaint.

A summons was issued for the first time on February 19, 1982 and was returned to the court served on February 24, 1982. The court approved a stipulated enlargement of time for the defendant to appear and answer. Defendant’s answer was filed April 13, 1982 and responded exclusively to the second complaint written by Attorney Butterfield.

Extensive discovery had been completed in March 1984 when the plaintiff informed the court that she was “seeking another attorney, possibly myself.” Relations between plaintiff and assigned counsel had became strained to the point of irreconcilable differences which assigned counsel felt compelled his withdrawal from the case. Because plaintiff supported this motion and expressed her desire to proceed pro se, the court granted the motion to withdraw by order filed April 27, 1984.

Discussion

Disposition of defendant’s motion to dismiss or for summary judgment is complicated at the outset by the appointment and subsequent withdrawal of the representation of assigned counsel. Plaintiff actively sought court-appointed representation and willingly accepted the services of Attorney Butterfield acting in her behalf. In this situation, the plaintiff is bound by the direction and actions which her court-appointed counsel took in proceeding to bring her employment discrimination claim to trial. Link v. Wabash Railroad Co., 370 U.S. 626, 633-34, 82 S.Ct. 1386, 1390-91, 8 L.Ed.2d 734 (1962).

The court had considerable discretion in its decision whether to appoint counsel for Joanne Valente. That decision is subject to review only for abuse of discretion. Jenkins v. Chemical Bank, 721 F.2d 876, 879 (2d Cir.1983). Upon consideration of the merits of Joanne Valente’s complaint, the court named Mark Butterfield, Esq. as Joanne Valente’s attorney and he accepted the appointment on a pro bono basis. From the court’s vantage point, Attorney Butterfield competently and diligently represented the plaintiff until withdrawal became the mutually desired solution to resolve irreconcilable differences over the handling of plaintiff’s case. Plaintiff dismissed her court-appointed counsel after defendant’s present motion was filed. It is unclear what involvement, if any, appointed counsel had in assisting plaintiff with her response to defendant’s motion.

Turning to the issues raised by plaintiff at oral argument, it is well established that an amended complaint ordinarily supersedes the original complaint. Washer v. Bullitt County, 110 U.S. 558, 562, 4 S.Ct. 249, 250, 28 L.Ed. 249 (1884); International Controls Corp. v. Vesco, 556 F.2d 665, 668 (2d Cir.1977) (Oakes, J.), cert. denied, 434 U.S. 1014, 98 S.Ct. 730, 54 L.Ed.2d 758 (1978). Since defendant was never served with plaintiff’s original complaint, the first complaint is without legal effect for purposes of naming the parties to the action. The second complaint named only Moore as a party defendant, and the action can proceed only against the defendant named in the amended complaint.

The court now turns to the validity of the defendant’s motion to dismiss or for summary judgment. The Federal Rules of Civil Procedure provide that

[Of, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.

Fed.R.Civ.P. 12(b).

The material submitted in support of the defendant’s motion is properly before the court and will be considered in passing on the pending motion for summary disposition. Additionally, these supporting documents are properly presented on a Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction. 5 C. Wright & A. Miller, Federal Practice and Procedure § 1350, at 549-550 (1969); Exchange National Bank of Chicago v. Touche Ross & Co., 544 F.2d 1126, 1130-1131 (2d Cir.1976) (Friendly, J.) (district court could consider factual statements in plaintiff’s affidavits on . a 12(b)(1) motion).

A party moving for summary judgment has the burden of demonstrating the absence of genuine issues of material fact. Fed.R.Civ.P. 56(c); Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970); Project Release, et al. v. Prevost, et al., 722 F.2d 960, 968 (2d Cir.1983). Ambiguities and inferences to be drawn from the facts must be viewed in a light most favorable to the party opposing the summary judgment. Adickes v. S.H. Kress & Co., supra, 398 U.S. at 158-159, 90 S.Ct. at 1608-1609; Project Release, et al. v. Prevost, et al., supra, 722 F.2d at 968. For purposes of dismissal, the allegations in the complaint must be accepted as true. Cooper v. Pate, 378 U.S. 546, 84 S.Ct. 1733, 12 L.Ed.2d 1030 (1964) (per curiam); Cameron v. Fogarty, 705 F.2d 676, 678 (2d Cir.1983) (Oakes, J.).

Moreover, the court recognizes that plaintiff’s complaint must be read with the generosity required in pro se civil rights actions. Haines v. Kerner, 404 U.S. 519, 520-521, 92 S.Ct. 594, 595-596, 30 L.Ed.2d 652 (1972) (per curiam); Cameron v. Fogarty, supra, 705 F.2d at 678; Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir.), cert. denied, 414 U.S. 1033, 94 S.Ct. 462, 38 L.Ed.2d 324 (1973).

Dismissal of Count I

Title VII of the Civil Rights Act places primary responsibility for disposing of employment discrimination complaints with the EEOC in order to encourage informal conciliation of employment discrimination claims and to foster voluntary compliance with the statutes. See Johnson v. Al Tech Specialties Steel Corp., 731 F.2d 143, 144 (2d Cir.1984) (stressing Congressional emphasis on administrative dispute resolution to minimize judicial burden under Title VII). In order to invoke the jurisdiction of the'court, an aggrieved employee must ex-haust the available administrative remedies. 42 U.S.C. § 2000e-5. It is now well established that a prerequisite to the maintenance of Title VII claims in federal court is the timely filing of an administrative charge of unlawful discrimination with the EEOC. United Air Lines, Inc. v. Evans, 431 U.S. 553, 555 n. 4, 97 S.Ct. 1885, 1887 n. 4, 52 L.Ed.2d 571 (1977); Alexander v. Gardner-Denver Co., 415 U.S. 36, 47, 94 5. Ct. 1011, 1019, 39 L.Ed.2d 147 (1974).

These preliminary steps are essential components of Title VII’s statutory scheme, which is designed to correct discrimination through administrative conciliation if possible, rather than by formal court action. While preliminary requirements for a Title VII action are to be interpreted in a nontechnical fashion, Love v. Pullman Co., 404 U.S. 522, 527, 92 S.Ct. 616, 619, 30 L.Ed.2d 679 (1972), the aggrieved employee is not permitted to bypass the administrative process, Ostapowicz v. Johnson Bronze Co., 541 F.2d 394, 398 (3rd Cir. 1976), cert. denied, 429 U.S. 1041, 97 S.Ct. 741, 50 L.Ed.2d 753 reh’g denied, 430 U.S. 911, 97 S.Ct. 1187, 51 L.Ed.2d 589 (1977).

In the present case, the applicable time period under Title VII required that Joanne Valente file her EEOC charge within 300 days of the alleged unlawful employment practice. 42 U.S.C. § 2000e-5(e). Plaintiff’s EEOC charge was dated February 12, 1981 and must be deemed to have been received by the EEOC on or about that time.

Since Vermont is a “deferral state” within the meaning of Title VII, the EEOC was required to defer for 60 days to the state agency, designated as the Civil Rights Division of the Vermont Attorney General’s Office. Thus, by operation of law, Joanne Valente’s EEOC complaint is considered to have been filed on or about April 13, 1981. Mohasco Corp. v. Silver, 447 U.S. 807, 814 n. 16, 100 S.Ct. 2486, 2491 n. 16, 65 L.Ed.2d 532 (1980) (complainant in deferral state must file his charge within 240 days of the alleged discriminatory employment practice in order to insure that his federal rights will be preserved); Lyda v. American Broadcasting Companies, Inc., 587 F.Supp. 670, 671 (S.D.N.Y.1984) (although plaintiff’s charge was submitted to EEOC on October 20, 1981, it could not be deemed to have been filed with that agency until December 19, 1981); Schlei & Grossman, Employment Discrimination Law at 941, 986, 1038 (2d ed. 1983).

Accordingly, only the alleged unlawful employment practices which occurred within the 300 days preceding April 13, 1981 (or June 17,1980 to April 13, 1981) could be presented in plaintiff’s EEOC charge. Plaintiff’s charge to the EEOC, however, complains of her failure to secure desired promotions in 1978 and in late March 1980. The subject of these charges occurred before the starting date of the applicable 300-day administrative filing period. Since these events took place before the opening date of her available proof, they are precluded from the court’s consideration. The fact that the EEOC processed the charge anyway and issued plaintiff a Notice of Right to Sue is not dispositive on the timeliness issue. See Goldman v. Sears Roebuck & Co., 607 F.2d 1014, 1017 (1st Cir.1979), cert. denied, 445 U.S. 929, 100 S.Ct. 1317, 63 L.Ed.2d 762 (1980).

Scope of Federal Court Complaint

Paragraph 6 of plaintiffs complaint asserts a broad-based attack on Moore’s personnel policies and practices relative to advancement opportunities for women. The matters presented to the EEOC did not include the broad-based allegation of discrimination of women at Moore. Nor did the EEOC receive a charge of “continuing” sex discrimination as to this plaintiff. The events investigated in the administrative tribunal, as evidenced through the determinations issued, were limited to the specific instances of discrimination advanced by Joanne Valente in her administrative charge. Since these allegations exceed the scope of plaintiff’s EEOC charge and were not considered in the actual EEOC investigation, these particular charges cannot be considered.

The federal courts may exercise jurisdiction over matters “reasonably related” or claims that “could reasonably have been expected to grow out of” claims in the EEOC charge. Almendral v. New York State Office of Mental Health, et al., 743 F.2d 963, at 967 (2d Cir.1984); Kirkland v. Buffalo Board of Education, 622 F.2d 1066, 1068 (2d Cir.1980) (per curiam). On the classwide-type challenge, federal courts generally have rejected such allegations when plaintiffs have failed to raise them below and the EEOC did not conduct an expansive investigation. See, e.g., Hebert v. Monsanto Co., 682 F.2d 1111, 1115-1116 (5th Cir.1982); EEOC v. East Hills Ford Sales, Inc., 445 F.Supp. 985 (W.D.Pa.1978); EEOC v. National Cash Register Co., 405 F.Supp. 562 (N.D.Ga.1975).

Under Title VII, a plaintiff may not raise in Court a basis of discrimination which was not included in her administrative complaint.

Miller v. Smith, 584 F.Supp. 149, 154 (D.D.C.1984) (Greene, J.) (emphasis in original).

Since the continuing violation allegations were not advanced in the plaintiff’s administrative charge, they are deemed to be waived in the proceedings before this court. Even if the court were to consider the merits of a continuing violation claim, there is no showing of “a series of related acts, one or more of which falls within the limitations period, or the maintenance of a discriminatory system both before and during the [limitations] period.” This is required for plaintiff to prevail on such a claim. See Valentino v. United States Postal Service, 674 F.2d 56, 65 (D.C.Cir.1982) (Ginsburg, J.).

The U.S. Supreme Court has cautioned that a complainant under Title VII may not circumvent the statute’s stringent time limits merely by characterizing a completed act of discrimination as a “continuing violation”. Delaware State College v. Ricks, 449 U.S. 250, 257, 101 S.Ct. 498, 503, 66 L.Ed.2d 431 (1980); Jones v. City of Somerville, 735 F.2d 5, 8 (1st Cir.1984); Valentino v. United States Postal Service, supra, 674 F.2d at 65.

Tolling

It is now settled that

filing a timely charge of discrimination with the EEOC is not a jurisdictional prerequisite to suit in federal court, but a requirement that, like a statute of limitations, is subject to waiver, estoppel and equitable tolling. The structure of Title VII, the congressional policy underlying it, and the reasoning of our cases all lead to this conclusion.

Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393, 102 S.Ct. 1127, 1132, 71 L.Ed.2d 234 (1982).

The record at hand is barren of equitable considerations sufficient to enlarge the prescribed time limits. Compare Shockley v. Vermont State Colleges, Civil No. 83-289, Memorandum of Decision (D.Vt. August 21, 1984) (Holden, J.) (denying defendant’s summary judgment motion in Title VII action due to presence of equitable tolling considerations). There are no factors presented of sufficient substance to revive the facts which led to the denial of the plaintiff’s advancement in 1978 and prevented her selection as purchasing agent in March 1980. These episodes in the plaintiff’s employment history at Moore are beyond recapture in this proceeding.

Courts have taken a uniformly narrow view of equitable exceptions to Title VII limitations periods. Earnhardt v. Commonwealth of Puerto Rico, 691 F.2d 69, 71 (1st Cir.1982). This is not a case where defendant has actively misled plaintiff respecting the cause of action, or an employment decision. See Smith v. American President Lines, Ltd., 571 F.2d 102, 109 (2d Cir.1978); Earnhardt v. Commonwealth of Puerto Rico, supra, 691 F.2d at 71-72. Nor is it a case where a plaintiff has raised the precise statutory claim in issue but has mistakenly done so in the wrong forum. Smith v. American President Lines, Ltd., supra, 571 F.2d at 109.

In the absence of recognized equitable considerations, the starting point of the plaintiff’s proof cannot reach back to claims that arose before June 17, 1980. Jones v. City of Somerville, supra, 785 F.2d at 8. This result follows as a direct consequence of the record presented. On the strength of the undisputed facts which are unattended by equitable tolling considerations, the defendant is entitled to judgment as a matter of law on the federal claim within the intendment of Rule 56(c) of the Federal Rules of Civil Procedure.

Dismissal of Counts II and III

When dominant federal claims are dismissed, there is little, if any, jurisdictional basis to retain pendent state claims in the federal forum. United Mine Workers v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 1139, 16 L.Ed.2d 218 (1966). Since the federal claims have been dismissed pri- or to trial, the state claims should also be dismissed without reaching their merits. Id.; see McLearn v. Cowen & Co., 660 F.2d 845, 848 (2d Cir.1981).

It should also be noted that the district court in Vermont recently dismissed pendent state law claims from a Title VII lawsuit on the premise that Congress has impliedly negated the exercise of pendent jurisdiction under Title VIL Mongeon v. Shellcraft Industries, Inc., 590 F.Supp. 956 (D.Vt.1984) (Coffrin, C.J.).

The entry of judgment for the defendant is in keeping with recent teachings of the United States Supreme Court. In Baldwin County Welcome Center v. Brown, — U.S. -, 104 S.Ct. 1723, 80 L.Ed.2d 196 (1984) (per curiam), reh’g denied, — U.S. -, 104 S.Ct. 2691, 81 L.Ed.2d 885 (1984), the Supreme Court upheld the dismissal of a pro se Title VII complaint for failure to file the federal court action within ninety days of receipt of the EEOC right-to-sue letter. In its conclusion, the Court made it clear that

[procedural requirements established by Congress for gaining access to the federal courts are not to be disregarded by courts out of a vague sympathy for particular litigants. As we stated in Mohasco Corp. v. Silver, 447 U.S. 807, 826 [100 S.Ct. 2486, 2497, 65 L.Ed.2d 532] (1980), ‘[I]n the long run, experience teaches that strict adherence to the procedural requirements specified by the legislature is the best guarantee of evenhanded administration of the law.’

Id., — U.S. at -, 104 S.Ct. at 1726.

The clerk is directed to enter an order dismissing plaintiff’s complaint.

It is SO ORDERED.

      . The court finds that the federal court action commenced on October 13, 1981 despite the fact that the first entry on the docket was not made until November 24, 1981.

      . Title VII of the Civil Rights Act of 1964 does not provide the court with any funds to pay the court-appointed attorney, who must depend for compensation upon representing a “prevailing party" under 42 U.S.C. § 2000e-5(k). See Bradshaw v. U.S. District Court for the Southern District of California, 742 F.2d 515-16 (9th Cir. 1984); Schlei & Grossman, Employment Discrimination Law at 947 n. 118 (2d ed. 1983).

      . Title VII proscribes discriminatory practices by an aggrieved employee’s "employer", as defined in 42 U.S.C. § 2000e(b). See 42 U.S.C. § 2000e-2. The administrative agencies named in plaintiff s original handwritten complaint could not be named as defendants pursuant to the jurisdiction of Title VII. See generally, Schlei & Grossman, supra, at 995-1005.

      . Vermont is a deferral state within the framework of Title VII, 42 U.S.C. § 2000e-5(e), due to its enactment of the Vermont Fair Employment Practices Act, 21 V.S.A. § 495 etseq.. See Schlei & Grossman, supra, at 941.

      . A timetable of events illustrates the untimeliness of plaintiffs administrative charge.
      Date Event
      1978 Failure to gain promotions to Order and Pricing Clerk I and Personnel Supervisor
      March 27, 1980 Final action taken rejecting plaintiffs application for Purchasing Agent position
      Date Event
      June 17, 1980 300-day filing period begins to run
      January 28, 1981 Plaintiff leaves Moore
      February 12, 1981 Administrative charge filed; 60-day deferral period begins to run
      April 13, 1981 Charge filed with EEOC by operation of law (end of 60-day deferral period and end of 300-day period)
      August 27, 1981 EEOC issues Notice of Right to Sue
      October 13, 1981 Federal court action commenced by the plaintiffs letter to the court


author: DIANA E. MURPHY, District Judge.

text:
    SCIENTIFIC COMPUTERS, INC., a Minnesota corporation, Plaintiff, v. EDUDATA CORPORATION, a Delaware corporation, and Craig-Hallum, Inc., a Minnesota corporation, Defendants.
    Civ. No. 4-84-980.
    United States District Court, D. Minnesota, Fourth Division.
    Oct. 4, 1984.

      James Altman, Dorsey & Whitney, Minneapolis, Minn., for plaintiff.
    Robert Sheran, and Thomas E. Glennon, Lindquist & Vennum, Minneapolis, Minn., for defendants.
   MEMORANDUM OPINION AND ORDER

DIANA E. MURPHY, District Judge.

This case arises from a tender offer commenced by Edudata Corporation (Edudata), a Delaware corporation, on September 20, 1984, for all outstanding shares of the common stock of Scientific Computers, Inc. (SCI), a Minnesota corporation. On September 25, 1984, SCI brought this suit in state court against defendants Edudata and Craig-Hallum, Inc. (Craig-Hallum), a Minnesota brokerage corporation, alleging violations of the Minnesota Corporate Take-Overs Act, Minn.Stat. Ch. 80B, and the Minnesota Business Corporation Act, Minn.Stat. Ch. 302A. On September 26, 1984 Judge Irving Iverson issued a temporary restraining order enjoining Edudata and Craig-Hallum from, among other things, proceeding with, causing or aiding and abetting the tender offer by Edudata to purchase shares of SCI from residents of Minnesota. That same day, Edudata filed a verified petition for removal of the state court action to this court, pursuant to 28 U.S.C. § 1441. Jurisdiction is alleged under 28 U.S.C. § 1332. This matter is now before the court upon SCI’s motion to remand.

Edudata and SCI have also filed companion cases in this court. On September 28, 1984, this court issued an order denying Edudata’s motion for a temporary restraining order to enjoin SCI and certain state officials from taking actions under Minnesota law in connection with its tender offer and granting SCI’s motions for a temporary restraining order suspending Edudata’s tender offer pending further hearing and for expedited discovery. A hearing on competing motions for a preliminary injunction was set for October 17, 1984.

SCI argues that Edudata has no right to remove under 28 U.S.C. § 1441(a) because there is incomplete diversity of citizenship since Craig-Hallum is a Minnesota corporation. Thus, it argues there is no original jurisdiction and the case must be remanded under 28 U.S.C. § 1447(c).

Edudata claims, however, that SCI’s joinjider of Craig-Hallum is a sham, calculated to defeat federal diversity jurisdiction. Edudata contends that the circumstances of the joinder illustrate that SCI does not intend to obtain a judgment against both Edudata and Craig-Hallum. Specifically, Edudata argues that if it were necessary to enjoin the dissemination of tender offer materials by broker-dealers or market makers, then all should have been joined. It notes that SCI could have enforced the state restraining order simply by serving notice on the broker-dealers, and that no allegations were made against broker-dealers in the federal court suit that SCI began only twenty-four hours later.

Edudata also submitted affidavits of George Bonniwell and Richard C. Heimerl of Craig-Hallum to show that the joinder was not bona fide. These affidavits indicate that William Payne of the Dorsey & Whitney law firm, upon informing CraigHallum of the suit, told Bonniwell that Craig-Hallum was the “lucky one” and that other brokerage firms were not included because of potential conflicts of interest with SCI’s counsel. Bonniwell affidavit at 2. When Heimerl asked why Craig-Hallum was being singled out, Payne did not respond, but then stated that any inconvenience to it would be slight. Heimerl affidavit at p. 2.

Edudata notes that Payne did not suggest in these conversations that SCI believed that Craig-Hallum had any relationship with Edudata, that Craig-Hallum had been contacted by Edudata about distributing tender offer materials, or that CraigHallum was in the process of distributing Edudata tender offer materials. Id. Further, Payne was informed that Craig-Hallum would abide by any injunction against Edudata whether it was joined or not. Bonniwell affidavit at 2. Finally, the affidavits state that Payne did not inquire as to who would act as Craig-Hallum’s counsel and that no complaint had been received by Craig-Hallum as of October 2, 1984.

SCI claims that it needed to join a broker-dealer to obtain complete relief since some of the tender offer materials had already been distributed, that joining all broker-dealers would have been too cumbersome, and that Craig-Hallum was chosen because it is a client of the law firm of Lindquist & Vennum. SCI also argues that the issuance of a restraining order by Judge Iverson against Edudata and CraigHallum supports its position that joinder was legitimate. It made no attempt to refute the facts asserted in the affidavits supplied by Edudata in opposition to the motion to remand.

The court has carefully reviewed the parties’ positions and finds that the motion for remand should be denied. It is well established that a resident defendant who is joined to defeat federal jurisdiction should be disregarded in determining the existence of diversity jurisdiction. Leonard v. St. Joseph Lead Co., 75 F.2d 390 (8th Cir.1935). Joinder is a sham if the plaintiff has no real intention to obtain a joint judgment. Bolstad v. Central Surety & Insurance Corp., 168 F.2d 927, 929 (8th Cir.1948); Harrelson v. Missouri Pacific Transport Co., 87 F.2d 176 (8th Cir. 1936); Marquette National Bank v. First National Bank, 422 F.Supp. 1346 (D.Minn. 1976). To determine removability, where specific allegations of fraudulent joinder have been made, a court may pierce the pleadings and consider the entire record. Dodd v. Fawcett Publications, Inc., 329 F.2d 82 (10th Cir.1964).

The record before the court suggests that Craig-Hallum was singled out to avoid federal diversity jurisdiction rather than to obtain full relief or a needed judgment. SCI did not need to join Craig-Hallum to obtain a complete remedy since, pursuant to Fed.R.Civ.P. 65(d), injunctive relief could have been enforced against broker-dealers merely by sending notice of the court’s order. Moreover, the fact that SCI did not join any broker-dealers in its federal action is telling. Most damaging to SCI’s claim of bona fide joinder, however, were the unrefuted facts of the submitted affidavits illustrating the nature of the notice given to Craig-Hallum of its inclusion in the suit. These facts suggest that Craig-Hallum was a straw defendant set up for plaintiff’s convenience since Craig-Hallum was indistinguishable from other broker-dealers or market makers and had no financial stake in the tender offer or any relationship to Edudata. Finally, since the issue of improper joinder was not raised at the state hearing for a restraining order, Judge Iverson had no occasion to determine that issue.

Because of the determination that CraigHallum was joined in the state action to defeat this court’s jurisdiction, the action is properly removable. It is unnecessary to discuss the other issues raised by the parties.

ORDER

Accordingly, based upon all the files, records, and proceedings herein,

IT IS HEREBY ORDERED that the motion of Scientific Computers, Inc. to remand pursuant to 28 U.S.C. § 1447(c) is denied.

      . 28 U.S.C. § 1441(a) provides in pertinent part: [A]ny civil action brought in a state court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or defendants, to the district court of the United States.
      28 U.S.C. § 1447(c) provides:
      If at any time before final judgment it appears that the case was removed improvidently and without jurisdiction, the district court shall remand the case, and may order the payment of just costs.


author: THEIS, District Judge.

text:
    Homer W. DOUGHTY, Plaintiff, v. Margaret HECKLER, Secretary of Health and Human Services, Defendant.
    Civ. A. No. 83-1407.
    United States District Court, D. Kansas.
    Oct. 5, 1984.

      Dennis L. Phelps, Wichita, Kan., for plaintiff.
    Stephen Lester, Asst. U.S. Atty., Wichita, Kan., for defendant.
   MEMORANDUM AND ORDER

THEIS, District Judge.

This case is an appeal pursuant to 42 U.S.C. § 405(g) of a denial of Social Security disability benefits by Margaret M. Heckler, Secretary of Health and Human Services [the Secretary]. This case is currently before the Court on the motion of the Secretary to affirm the decision of the Secretary and on the cross-motion of Doughty for summary judgment. For the reasons that follow, the decision of the Secretary shall be reversed and this case remanded to the Secretary for further proceedings in accord with this memorandum and order.

Doughty filed an application for disability benefits under 42 U.S.C. § 423. This application was denied and the denial upheld after reconsideration by the Social Security Administration. On June 28, 1982, a hearing before an administrative law judge [ALJ] was held at Doughty’s request, at which Doughty appeared with counsel and testified along with his wife. On November 23, 1982, the ALJ rendered a decision finding that Doughty was not suffering from a disability and therefore was not entitled to disability benefits. The Appeals Council affirmed the decision of the ALJ on February 23, 1983. The decision of the ALJ thus stands as the final decision of the Secretary.

This Court is quite familiar with the standards to be applied when reviewing a decision of the Secretary. The standard of review in this case is established by 42 U.S.C. § 405(g), which provides that “the finding of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive.” Substantial evidence is that evidence which a reasonable mind might accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 402, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971). It is not the duty of this Court to reweigh the evidence. Garrett v. Califano, 460 F.Supp. 888, 890 (D.Kan.1978); Manigan v. Califano, 453 F.Supp. 1080, 1086 (D.Kan. 1978). Substantial evidence, however, must be more than a mere scintilla. Perales, 402 U.S. at 401, 91 S.Ct. at 1427. This Court cannot affirm the Secretary’s decision by isolating a few facts and calling them “substantial evidence.” Cline v. Califano, No. 78-4166 (D.Kan., unpublished, August 31, 1979). It is this Court’s duty to scrutinize the entire record to determine whether the Secretary’s conclusions are rational. Keef v. Weinberger, 404 F.Supp. 1193, 1196 (D.Kan.1975); Mitchell v. Weinberger, 404 F.Supp. 1213, 1215 (D.Kan. 1975). In applying these standards, the Court must keep in mind that the purpose of the Social Security Act is to ameliorate some of the rigors of life for those who are disabled or impoverished. Dvorak v. Celebrezze, 345 F.2d 894 (10th Cir.1965).

In this case, the ALJ determined that Doughty was not disabled through application of the medical-vocational guidelines found at 20 C.F.R. Subpart P, Appendix 2 [the grid]. The AU determined that Doughty retained the physical capacity to perform sedentary work and therefore, based upon Rules 201.18-20, a decision of not disabled was indicated.

However, the AU’s application of the grid in this instance is inappropriate. The grid may be used only when the claimant suffers solely from exertional limitations. Nicks v. Schweiker, 696 F.2d 633, 636 (8th Cir.1983); Gagnon v. Secretary of Health and Human Services, 666 F.2d 662, 665 (1st Cir.1981); Barker v. Schweiker, No. 82-1264 (D.Kan., unpublished, April 14, 1983). When a claimant also suffers from non-exertional limitations, the ALJ must determine whether those non-exertional limitations prevent the claimant from performing the work to which he is restricted by his exertional limitations. 20 C.F.R. Subpart P, Appendix 2, § 200.-00(e)(2).

In this case, there was substantial evidence of several non-exertional limitations endured by Doughty. The AU recognized that Doughty had episodes of chest pain, although discounting Doughty’s claims of their severity and duration. See Tr. 14-15. Dr. R.L. Sifford, who examined Doughty for the Social Security Administration, described this chest pain as “not exertional.” Tr. 145.

Doughty also suffered residual effects from a cerebrovascular accident or stroke that occurred in 1981. This stroke resulted in mild organic brain syndrome caused by a marked restriction in the cerebral arteries. See Tr. 124. This disorder was evidenced by several limitations of Doughty’s mental processes. After his stroke, Doughty suffered from a speech stutter. Tr. 126. Doughty also suffers from a short-term memory loss. Tr. 154. He and his wife testified that he often would begin a task and forget in the middle of it what he was doing. Tr. 42-43, 45-46, 53-56, 59. A psychiatric consultant for the Social Security Administration, Dr. Fred deWit, noted that Doughty had somewhat impaired judgment and was beginning to show paranoid preoccupations. He also stated that Doughty mislabeled a triangle as a rectangle. He further noted that Doughty suffered from anxiety and concluded “[i]t is questionable as to whether he can stand the stress and pressures of a daily job.” Tr. 154. Doughty also complains of headaches but these complaints were dismissed by the AU because there were no signs of “severe, unrelenting headaches.” Tr. 15.

Obviously Doughty suffered from several non-exertional limitations of varying degrees of severity. His organic brain syndrome may not have been quite severe enough to constitute a disability in and of itself. See 20 C.F.R. Subpart P, Appendix 1, § 12.02. However, it clearly was a limitation on his ability to work. Doughty offered as evidence at his hearing a report from a vocational expert, Dr. John A. Allen, who stated that it was unlikely that Doughty could ever obtain significant gainful employment because of the combined effects of his exertional and non-exertional limitations. Tr. 166-67. The Secretary offered no evidence to the contrary. Yet, in the face of this evidence, the AU found that Doughty “has no nonexertional limitation which seriously limits his ability to perform sustained sedentary type work functions.” Tr. 17, 1110. This finding is wholly unsupported by substantial evidence. It is therefore necessary to reverse the decision of the Secretary and remand the case to the Secretary for further action. On remand, the AU should give greater consideration to the severity and effect of Doughty’s several non-exertional limitations and their impact upon his ability to obtain employment of even a sedentary nature.

IT IS THEREFORE ORDERED that the motion by the Secretary to affirm the decision of the Secretary is hereby denied.

IT IS FURTHER ORDERED that the motion by Doughty for summary judgment is hereby granted, the decision of the Secretary is hereby reversed, and this case is remanded to the Secretary for further proceedings in accord with this memorandum and order.