author: FLANNERY, District Judge.

text:
    NATIONAL ORGANIZATION FOR WOMEN, et al., Plaintiffs, v. MUTUAL OF OMAHA INSURANCE CO., Defendant.
    Civ. A. No. 84-2879.
    United States District Court, District of Columbia.
    June 14, 1985.

      Burton L. Raimi, Jeffrey L. Braun, Jan G. Zager, Rosenman, Colin, Freund, Lewis and Cohen, Washington, D.C., and Janet Armuth Wolkoff, Emily J. Spitzer, NOW Legal Defense Fund, New York City, for plaintiffs.
    Vincent H. Cohen, Peter W. Tredick, Jean S. Moore, Hogan & Hartson, Washington, D.C., for defendant.
   MEMORANDUM OPINION

FLANNERY, District Judge.

This matter is before the court on the motion of plaintiff National Organization for Women (“NOW”) and the other plaintiffs in this action to remand this case to the District of Columbia Superior Court on the ground that diversity jurisdiction does not lie in this court because the amount in controversy does not exceed $10,000.

I. Background

This is a class action in which the plaintiffs are NOW on behalf of itself and its members, and two named plaintiffs, Kathy Bonk and Vickey Monrean on behalf of themselves and all other women similarly situated. The defendant is Mutual of Omaha Co., Inc. (“Mutual” or “Mutual of Omaha”). “The plaintiff class is composed of all women to whom Mutual of Omaha has in the past sold, offered or advertised for sale, or to whom Mutual of Omaha will in the future sell, offer or advertise for sale ... health insurance policies at prices that are higher than or different from the prices at which the same policies are made available to similarly situated men.” Complaint ¶ 1. Plaintiffs complain that these practices by Mutual of Omaha violate the D.C. Human Rights Act, D.C.Code § 1-2519(a)(1) and (a)(2) (1982). In the complaint, NOW also made a claim alleging that defendant’s acts “have caused NOW to divert resources to combat sex discrimination in insurance.” Complaint II8. For this diversion, NOW seeks compensatory damages in an amount to be determined at trial.

II. Discussion

The central issue in this motion to remand is whether the jurisdictional amount of $10,000 is present in this diversity action. Because this is a class action, two important Supreme Court cases establish the ground rules for the court’s inquiry. In Snyder v. Harris, 394 U.S. 332, 89 S.Ct. 1053, 22 L.Ed.2d 319 (1969), the Supreme Court held that separate and distinct claims in class actions cannot be aggregated for the purpose of meeting the jurisdictional amount requirement of 28 U.S.C. § 1332 (diversity jurisdiction). 394 U.S. at 336, 89 S.Ct. at 1056-57. In Zahn v. International Paper Co., 414 U.S. 291, 94 S.Ct. 505, 38 L.Ed.2d 511 (1973), the Supreme Court further elaborated on Snyder and held that it was not enough in a diversity action that each of the named plaintiffs assert damages in excess of $10,-000 but rather each member of the class has to meet the amount, and maintenance of the action by any member of the class whose separate and distinct claim did not individually satisfy the jurisdictional amount was precluded. 414 U.S. at 293, 94 S.Ct. at 507. Defendant’s arguments are all attempts to avoid the implications of these two Supreme Court cases.

A. Burden of Proof

In this removal action the burden of proof is on the defendant Mutual of Omaha to establish jurisdiction. McNutt v. General Motors Acceptance Corp, 298 U.S. 178, 189, 56 S.Ct. 780, 785, 80 L.Ed. 1135 (1936); see also Gaitor v. Peninsular & Occidental Steamship Co., 287 F.2d 252, 253-54 (5th Cir.1961); Electronic Data Systems Corp. v. Kinder, 360 F.Supp. 1044, 1047 (N.D.Tex.1973), aff'd, 497 F.2d 222 (5th Cir.1974); 1A J. Moore, Moore’s Federal Practice 110.157[6], at 131 (2d ed. 1985). Further, contrary to defendant’s assertion at oral argument, although not discussed in its memoranda, the court is to base its determination on the nature of the action as stated in the complaint and thus is to assume for purposes of this motion that this action will proceed as a class action even though it is not yet certified as one. City of Inglewood v. City of Los Angeles, 451 F.2d 948, 951 (9th Cir.1971); 3B J. Moore, Moore’s Federal Practice H 23.50 (2d ed. 1985) (“In the interim between the commencement of the suit as a class action and the court’s determination as to whether it may be so maintained it should be treated as a class suit”).

Defendant points to the legal certainty test set forth in Saint Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 58 S.Ct. 586, 82 L.Ed. 845 (1938), to support the proposition that “[j]urisdiction will be found to exist unless the Court finds ‘to a legal certainty’ that the matter in controversy cannot exceed the sum or value of $10,000.” Defendant’s Opposition to Plaintiffs’ Motion to Remand at 2. The Saint Paul case, however, did not address the situation in which it is unclear what amount of damages the plaintiff party sought, as is true here with regard to the NOW claim for attorneys’ fees, the NOW claim for compensation for the diversion of resources, and the individual class claims. The Supreme Court in Wilson v. Republic Iron & Steel Co., 257 U.S. 92, 42 S.Ct. 35, 66 L.Ed. 144 (1921) explained the rule in removal actions as follows:

If a removal is effected, the plaintiff may, by a motion to remand ... take issue with the statements in the petition. If he does, the issues so arising must be heard and determined by the District Court ... and at the hearing the petitioning defendant must take and carry the burden of proof, he being the actor in the removal proceeding.

257 U.S. at 97, 42 S.Ct. at 37 (citations omitted). See also Gaitor v. Peninsular & Occidental Steamship Co., 287 F.2d 252, 254, 255 (5th Cir.1961) (defendants below did not make such affirmative showing at the time they sought removal to federal court as is specifically required by Congress with reference to jurisdictional amount____ [T]he key [to removal] is an affirmative showing by he who seeks entry of all the requisite factors of diversity jurisdiction, including amount in controversy ____”). Thus, defendant’s attempt to vest the “legal certainty” phrase of the St. Paul ease with a talismanic quality that prevents remand of cases where there is some doubt as to the amount to be recovered must be rejected.

B. § 1441(c) Removal

Defendant argues that under 28 U.S.C. § 1441(c) the entire case is removable to federal court because NOW’s claim for the diversion of resources to fight insurance discrimination is a separate and independent claim which would be removable if sued upon alone. Section 1441(c) states:

(c) Whenever a separate and independent claim or cause of action, which would be removable if sued upon alone, is joined with one or more otherwise non-removable claims or causes of action, the entire case may be removed and the district court may determine all issues therein, or, in its discretion, may remand all matters not within its original jurisdiction.

The issue of when a claim is “separate and independent” under § 1441(c) is one that has caused no little confusion. Because it is not entirely clear when a claim is “separate and independent” for purposes of § 1441(c), courts are in apparent disagreement over whether an action in which multiple plaintiffs sue a defendant for a single wrong should be considered as consisting of “separate and independent” claims. Because the arguments for the position that these claims should not be considered “separate and independent” are amply set forth in the opinions that ascribe to this view, the court will not rehash those arguments here, but instead notes that it finds them persuasive. The Court of Appeals for the Second Circuit has recently explained:

The leading precedent interpreting § 1441(c) is American Fire and Casualty Co. v. Finn, 341 U.S. 6, 71 S.Ct. 534, 95 L.Ed. 702 (1951).
Finn reads “separate and independent claim or cause of action” as a reference not to the variety of legal theories advanced but to the underlying occurrence or occurrences giving rise to the litigation____ [W]here the underlying occurrence or occurrences are so interwoven or so overlap as to be fairly described as inseparable, removal is not permitted.

Gardner & Florence Call Cowles Foundation v. Empire, Inc., 754 F.2d 478, 481 (2d Cir.1985); see also Strange v. Arkansas-Oklahoma Gas Corp., 534 F.Supp. 138,141 (W.D.Ark.1981) (where plaintiffs allege severe injury by one happening, claims “may be separate, but they are not independent”); Burnett v. Eastman Kodak Co., 433 F.Supp. 514 (E.D.Tenn.1977); Schwartz v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 424 F.Supp. 672, 674 (N.D.Cal.1976) (logic similar to that in Finn “will support the argument that removal is not available when multiple plaintiffs join their claims against a single defendant arising from a common wrong allegedly committed by that defendant”); 1A C. Wright, A. Miller & C. Cooper, Federal Practice & Procedure § 3724, at 387-8 (1985). (“Given the statute’s perceived purpose of restricting the availability of removal, the Supreme Court’s endorsement of a ‘single wrong’ test, and the requirements of most state joinder provisions, it is difficult to imagine how removal could be permitted in the case of multiple plaintiffs suing a single defendant”). But see Stokes v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 523 F.2d 433, 437 (6th Cir.1975) (suit by two account executives against defendant for claims relating to their profit sharing plan removable under § 1441(c) because even though one plaintiffs claim did not reach jurisdictional amount “each makes a separate claim for damages against defendant .., and the claims did not arise from a ‘single wrong’ of the defendant”); Northside Iron & Metal Co. v. Dobson & Johnson, Inc., 480 F.2d 798, 801 (5th Cir.1973); (where each of eight subcontractors had claim that could have been sued upon if sued upon alone case was removable under § 1441(c) where seven of eight were of diverse citizenship and five of eight had claims exceeding jurisdictional amount); 1A J. Moore, Moore’s Federal Practice ¶ 0.163 [4.-5], at 336 (2d ed. 1985) (if plaintiffs “having joined in the action because of a common question of law or fact, are proceeding to enforce rights that are individual to them, then the action involves separate and independent claims for removal purposes”).

Burnett, supra, is a case which is very similar to the instant one. There, plaintiffs brought a suit alleging wrongful conduct on the part of the defendant in introducing a certain chemical into the Holston River, thus contaminating the city water supply and forcing the closing of a particular business. The complaint consisted of two counts. In the first, the partners of the business sought damages for its closing. The second count was a class action on behalf of the employees for lost wages, etc. Because count II lacked the requisite jurisdictional amount under Zahn and Snyder, supra, the court had to determine whether removal of the first claim was proper under § 1441(c). 433 F.Supp. at 516. It decided that removal was not proper because the plaintiffs were seeking “relief only for a single alleged wrong of the defendant, viz., its causing or permitting the chemical ... to be dumped” into the river. Id. at 517-18.

In this case NOW and the class plaintiffs are suing Mutual of Omaha for the single wrong of selling insurance policies to women at prices different from those charged men. Indeed, it would appear that NOW will only be successful in its diversion of resources claim if in fact class members have been wronged. The court finds that the claims of NOW and the claims of the class members are not separate and independent claims or causes of action for purposes of § 1441(c) removal.

Thus, unless the defendant can show that this is a case in which it is proper to aggregate the claims of the class members, the case will have to be remanded. This is so because there is no conceivable way that the class described by the plaintiffs could be made up entirely — or even substantially — of claims of more than $10,000. First, one of the two named plaintiffs complains of having purchased a “Disability Income Protection” policy from Mutual for a cost of $177.30 per year. The second named plaintiff complains of having purchased a “Catastrophic Protection Plan” at a cost of $1,149.18 per year, and then claims that the same policy would have cost a similarly situated man $691.52 per year. The only evidence as to the value of relief to the individual class members to which defendant points is a fact sheet prepared by NOW when Congress was considering passing a Fair Insurance Practices Act in which NOW declares that a woman would have to pay approximately $11,500 more in lifetime premiums than a man for typical health and disability insurance policies. Yet this is not a class of persons claiming the difference in premiums paid over a lifetime. Further, even if this court were inclined to value the injunctive claim, in the face of monetary damage claims, the plaintiffs correctly point out that the fact sheet on which Mutual of Omaha relies as its only evidence to meet its burden uses rates from other insurance companies, not Mutual of Omaha, and is not discounted to reflect the present value of the injunctive relief.

Perhaps recognizing that the individual plaintiffs did not have damages that met the jurisdictional amount, the defendant raises various other theories to support jurisdiction in this court. The court finds that these, too, are not persuasive and that the case must be remanded.

C. Aggregation of the Individual Claims in this Action

Defendant raises various arguments to support its view that the claims of the class members should be aggregated for purposes of determining the jurisdictional amount. The court notes at the outset that the case law on aggregation is more susceptible to clever manipulation by counsel than it is to reasoned analysis. In addition to engaging in the fine hairsplitting needed to distinguish cases in the area, the court in deciding that the claims in this case cannot be aggregated, is guided by three principles. First, this court is to construe its diversity jurisdiction narrowly. E.g., City of Indianapolis v. Chase National Bank, 314 U.S. 63, 76-77, 62 S.Ct. 15, 20, 86 L.Ed. 47 (1941). Second, as is shown infra, cases that have taken an expansive view of aggregation are most often cases that arose under federal question jurisdiction when that jurisdiction still had an “amount in controversy” component. In those cases, although it is never explicitly discussed, courts may well have been influenced by a desire to provide a federal forum for the vindication of federal rights. There is no similar reason to view aggregation expansively when jurisdiction is based on diversity of citizenship. Finally, although there are exceptions to the rule of Snyder and Zahn, lower courts should be careful not to broaden those exceptions to such an extent that the general rule would be swallowed by the exceptions to it. With these principles in mind, the court proceeds to the arguments for aggregation made by defendant.

1. Aggregation Based on Enforcement of a Single Right

The defendant’s most promising theory and the one most difficult to deal with is that the claims of these class members can be aggregated because they are seeking to “enforce a single title or right.” It relies on the following language from Zahn:

When two or more plaintiffs, having separate and distinct demands, unite for convenience and economy in a single suit, it is essential that the demand of each be of the requisite jurisdictional amount; but when several plaintiffs unite to enforce a single title or right, in which they have a common and undivided interest, it is enough if their interests collectively equal the jurisdictional amount.

414 U.S. at 294, 94 S.Ct. at 508. Cases which allow aggregation under this theory may, for convenience, be called the “common fund” cases. Defendant relies on several cases which have allowed aggregation; those cases, though, contain language which suggests that the case at bar is distinguishable. For example, defendant cites New Jersey Welfare Rights Organization v. Cahill, 483 F.2d 723 (3d Cir.1973). That case arose under federal question jurisdiction and concerned a class action brought on behalf of all welfare recipients in the state of New Jersey. Id. at 725 n. 2. The court allowed aggregation and declared:

When, as here, the adversary of the class has no interest in how the claim is to be distributed among members of the class, none of the class members could bring suit without affecting rights of other class members, and the rights asserted are common to the class rather than individually held, aggregation is allowed.

Id.

While it can be argued that the case at bar literally meets the test laid out in New Jersey Welfare Rights Organization, a closer look at the cases reveals that one factor involved in the resolution of this issue is whether the plaintiffs possess a common interest that belonged exclusively to the group. See Cass Clay, Inc. v. Northwestern Public Service Co., 63 F.R.D. 34, 38 (D.S.D.1974). As the Cass Clay court explained: “In other words, if individual members of the class could not as a matter of law bring suit other than in a representative capacity, then the interests were common and undivided.” Id. The Cass Clay case involved a suit by a group of consumers of electricity to recover money that the utility had promised to pay over to consumers and allegedly did not. The court permitted aggregation. Similarly, in the case relied on by defendant, Berman v. Narragansett Racing Association, 414 F.2d 311 (1st Cir.1969), cert. denied, 396 U.S. 1037, 90 S.Ct. 682, 24 L.Ed.2d 681 (1970), the class in question consisted of licensed owners of horses that had won purses at the defendants’ race tracks. “[T]hq gravamen of the complaint is that for over three decades the defendants had failed to pay to the plaintiff pursewinners certain monies alleged to be theirs under annual purse agreements.” Id. at 312. In Berman, in allowing aggregation the court relied on the fact that “[n]o contractual rights are created between the defendants and individual pursewinners, and plaintiffs make no specific claims for individual payments.” Id. at 315. See also Bass v. Rockefeller, 331 F.Supp. 945, 951 (S.D.N.Y.1971) (allowing aggregation: “[A]s in Berman, the plaintiffs herein make no specific claims for individual payment, and it is seriously doubted if they could; the absence of contractual rights between the parties is a significant factual similarity between the present suit and the one in Berman”), vacated as moot, 464 F.2d 1300 (2d Cir.1971).

Other cases focus on the fact that the plaintiff group is attempting to recover some fund to which it has a right. See, e.g., Dierks v. Thompson, 414 F.2d 453, 456 (1st Cir.1969) (challenge of former employees to a distribution arrangement from a pension fund; “[s]ince plaintiffs ... are seeking to establish a trust fund as distinguished from individual cash claims against the defendants, however, we are satisfied ... that this is a proper class suit”) (citing Berman); National Welfare Rights Organization v. Weinberger, 377 F.Supp. 861, 866 (D.D.C.1974) (Pratt, J.) (jurisdiction invoked under § 1331; “The Court in this case is ... faced with the Government’s administration of a multi-billion dollar trust fund settled by Congress for the benefit of a vast number of individuals”).

The cases in which aggregation has been disallowed resemble more the case at bar. See, e.g., Sigel v. General Development Corp., 59 F.R.D. 577 (M.D.Fla.1973) (class action by purchasers of land against developer seeking specific performance relative to contracts for the purchase of land); Mattingly v. Elias, 325 F.Supp. 1374, 1382 (E.D.Pa.1971), aff'd in part, rev’d in part, 482 F.2d 526 (3d Cir.1973) (class action by tenants against corporate landlord; aggregation disallowed because the “rights of plaintiff tenants appear to arise only from the status of each as individual lessee of a portion of the project premises”) (citation omitted).

The case of Dougall v. Sugarman, 330 F.Supp. 265 (S.D.N.Y.1971) appears very similar to the instant action. In Dougall a group of aliens challenged on due process and equal protection grounds, a New York law that made non-citizens ineligible for appointment to certain civil service jobs. Id. at 267. Plaintiffs urged that their dismissal from their jobs merely because they were not American citizens violated these constitutional rights. The court ruled that “the claims of the class members being separate and distinct, may not be added together.” Id. Similarly, in Dane v. Southwestern Bell Telephone Co., 352 F.Supp. 257 (W.D.Okla.1972) the court refused to allow aggregation in a suit in which a class composed of various residents of a particular area sued claiming that defendant made false representations to the class concerning the type of telephone service that would be afforded them under a certain plan put into effect by defendant. Id. at 258.

Ultimately the cases do not reveal a distinction that is easy to articulate; some generalizations are possible, however. First, many of the cases that permit aggregation were federal question cases in which the court may have been stretching to find a way to provide a federal forum to vindicate federal rights. E.g., New Jersey Welfare Rights and National Welfare Rights Organization, supra. Second, the cases that allow aggregation often speak of the presence of some fund to which a plaintiff class is seeking access. E.g., Dierks and National Welfare Rights Organization, supra. Finally, they often involve an attempt to enforce a right that belongs to a group. E.g., Berman and Bass, supra. Although the matter is not entirely free from doubt, the court holds that because these elements are missing from the case at bar, this is not a case in which aggregation is permitted. The instant action is a diversity action; each class member could presumably have sued on her own behalf, and damage claims will be individualized.

2. Aggregation based on Cost to Defendant

Defendant next argues that because plaintiffs also seek injunctive relief in this action the court can determine the jurisdictional amount by looking to the cost to the defendant of complying with any equitable relief ordered in this action. Defendant represents by way of affidavit that such cost would exceed $10,000. To support its argument defendant relies on cases of this circuit in which the court allowed the jurisdictional amount to be met by looking to the defendants’ cost of compliance. Smith v. Washington, 593 F.2d 1097, 1099 (D.C. Cir.1978); Committee for GI Rights v. Callaway, 518 F.2d 466, 473 (D.C.Cir.1975); Tatum v. Laird, 444 F.2d 947, 951 (D.C.Cir.1971), rev’d on other grounds, 408 U.S. 1, 92 S.Ct. 2318, 33 L.Ed.2d 154 (1972). As plaintiffs point out, however, in none of these cases was a plaintiff seeking both equitable and money damages. Further, all of these cases arose under the court’s federal question jurisdiction and involved constitutional issues.

Plaintiffs have pointed to cases from other circuits in which courts have explicitly considered whether in a diversity class action in which damages and injunctive relief are sought a court can determine the amount in controversy from the defendant’s viewpoint. Two circuits have held that a court cannot view the damage issue from the viewpoint of the defendant in such cases, reasoning that to do so would be an unwarranted circumvention of the rule laid down in Snyder, supra. Courts that do not permit the defendant’s viewpoint to control argue that viewing the jurisdictional amount issue from the defendant's point of view is simply another way of aggregating claims which is what the Supreme Court disallowed in Snyder. See Snow v. Ford Motor Co., 561 F.2d 787 (9th Cir.1977); Lonnquist v. J.C. Penney Co., 421 F.2d 597 (10th Cir.1970).

The Ninth Circuit Court of Appeals in Snow explained:

We agree that Snyder is controlling. “Total detriment” is basically the same as aggregation. The only reason the injunction is worth more than $10,000 to Ford is that it would affect all of Ford’s future trailer package sales to thousands of other individual consumers. In short, we hold that, where “the equitable relief sought is but a means through which the individual claims may be satisfied, the ban on aggregation [applies] with equal force to the equitable as well as the monetary relief.

561 F.2d at 790. Plaintiffs argue persuasively that to allow the defendant’s view test to be used whenever injunctive relief is sought along with damages in a class action would undermine the holdings of Zahn and Snyder:

To uphold defendant’s position in the present case would allow a plaintiff who has no claim for the requisite compensatory damages merely to request injunctive relief, assign to that request a value measured in terms of defendant’s compliance, and then litigate in the federal courts. If Zahn and Snyder mean anything at all, they stand for the proposition that federal courts should take a strict view in interpreting their diversity jurisdiction. Such an approach precludes the application of the defendant’s view test and it forecloses, in the instant case, defendant’s access to this Court.

Plaintiffs’ Reply at 14-15. This court will not apply the defendant’s view test to this diversity action which seeks both damages and injunctive relief.

3. Aggregation of Attorneys’ Fees

Defendant further seeks to avoid the no aggregation rule by asking the court to focus on the fact that plaintiffs have also requested attorneys’ fees that they argue will be sure to amount to more than $10,-000. Although they cite support for the proposition that attorneys’ fees can be considered as part of the jurisdictional amount, see Clark v. National Travelers Life Insurance Co., 518 F.2d 1167 (6th Cir.1975), they cite to no case in which attorneys’ fees were aggregated in a class action so that the jurisdictional amount could be met.

Plaintiffs, however, point to authority for the proposition that in class actions one cannot aggregate the amount of attorneys’ fees in order to meet the jurisdictional amount. They rely on Goldberg v. CPC International, Inc., 678 F.2d 1365 (9th Cir.1982), cert. denied, 459 U.S. 945, 103 S.Ct. 259, 74 L.Ed.2d 202 (1982), in which the Ninth Circuit addressed this point directly. In Goldberg, as in this case, defendants in a class action removed the case to the federal district court claiming diversity jurisdiction. “Defendants (CPC) alleged that the $10,000.00 amount in controversy requirement of 28 U.S.C. § 1332 was satisfied, despite the small individual claims of the class members, because plaintiffs’ potential attorneys’ fees would exceed that amount.... The issue is whether the jurisdictional amount in controversy is satisfied. We find that it is not.” Id. at 1366-67. In Goldberg the circuit court expressly rejected the view that the attorneys’ fees should be considered as payable only to the named plaintiffs, or that they should be attributed to the class as a whole and treated as a common fund.

The court concluded:

We find that acceptance of either of CPC’s theories would conflict with the policy of Zahn v. International Paper Co. in which the Supreme Court reaffirmed that the “matter in controversy” requirement must be satisfied by each member of "the plaintiff class. Plaintiffs whose claims fall short cannot satisfy the requirement by aggregation of claims. CPC’s theories would seriously undermine and are contrary to the rule expressed by the Supreme Court in Zahn. Thus we conclude that the potential attorneys’ fees do not satisfy the jurisdictional amount and that there is, therefore, no federal jurisdiction.

Id. at 1367.

Because the reasoning of the case is sound, the court finds Goldberg dispositive of this issue and concludes that the amount of requested attorneys’ fees cannot be aggregated for determining the jurisdictional amount.

III. Conclusion

The court concludes that the defendant has not met its burden upon removal of demonstrating that this court can exercise jurisdiction over this action; therefore this case must be remanded to the District of Columbia Superior Court.

      . Zahn expressly dealt with class actions under Rule 23(b)(3). The same reasoning applies here, however, since the central point of Zahn is that all members of a class suing on separate and distinct claims must meet the jurisdictional amount. Plaintiffs in the instant action bring their suit under 23(b)(2) which normally contemplates injunctive relief. The court has not yet certified a class in this action under any of the provisions, but it does appear that an action under 23(b)(2) can also seek monetary relief. See 1 H. Newberg, Newberg on Class Actions § 1145, at 242, § 1355, at 490 (1977 & Supp. 1984) (action for injunctive relief does not automatically guarantee that the amount in controversy will be judged by the aggregate claims of all members).

      . While the court holds that it is proper to treat this as a class action in deciding this motion, the court notes that even were it not to consider this a class action for the purposes of this motion, it still would not attribute all of the damages claimed for the purported class to the named class members only. Rather, the proper approach would be to determine that portion of the total amount claimed which is sought by the named plaintiffs. Using this approach the amount sought here similarly falls below the $10,000 threshold. See Rosenberg v. GWV Travel, Inc., 480 F.Supp. 95, 96 (S.D.N.Y.1979).

      . It is not at all clear to this court that the defendant has met its burden of showing that NOW's claim exceeds the jurisdictional limit. In any event, the court concludes that it is not a "separate and independent” claim for purposes of § 1441(c).

      . One case that has denied aggregation correctly points out that all class actions by their very nature will have questions of law or fact common to all claims. See Sigel v. General Development Corp., 59 F.R.D. 577 (M.D.Fla.1973) (mere fact that there are questions of law or fact common to the class ... sufficient to justify maintenance as a class suit does not necessarily compel corollary conclusion that the individual claims may be aggregated for jurisdictional purposes). Rule 23(b)(2), for example, by its very language requires that "the party opposing the class has acted or refused to act on grounds generally applicable to the class____” Fed.R. Civ.P. 23(b)(2). Yet, all 23(b)(2) class actions are not ones in which aggregation is possible.

      . The section of the D.C. Human Rights law on which the suit is based prohibits discrimination based on, inter alia, the sex of any "individual,” and speaks of the denial to "any person" of the full and equal enjoyment of goods, services, etc. D.C.Code Ann. § 1-2519 (1981 & Supp.1984). Further, in their Superior Court complaint plaintiffs based jurisdiction on D.C.Code Ann. § l-2556(a) which provides a private right of action to “any person claiming to be aggrieved by an unlawful discriminatory practice____" Thus, it would appear that this suit presents individual claims.
      In Defendant’s Supplemental Exhibits in Support of Its Opposition to Plaintiffs’ Motion to Remand defendant argues that somehow the fact that NOW is bringing this suit as part of some coordinated strategy should affect a determination that this is a suit to protect a "common and undivided interest.” They cite no case to support this proposition — and their argument amounts to little more than saying that anytime people can get together to plan a class suit the nonaggregation rule of Snyder and Zahn can be avoided. The court will not read the aggregation cases to create such a broad exception.
      Finally, the court notes that defendant relies on this court’s opinion in Honey v. George Hyman Construction Co., 63 F.R.D. 443, 449 (D.D. C.1974). That case on its facts is not helpful. There the court held that an insurer and partial subrogee were found to share a common and undivided interest with an insured. In that opinion this court cited the same language in Snyder that is relevant in this case concerning cases in which several plaintiffs unite to enforce a single title or right, and declared:
      Deceptively clear on its face, this rule has caused a host of problems for those courts compelled to apply it and has resulted in conflicting, if not contradictory, decisions. This state of affairs has led one court to note that "difficult it is to draw a general rule or a rationale from the decisions other than the broad rules stated above. Language to support either conclusion in a case such as the present one can be found.” Dixon v. Northwestern National Bank, 276 F.Supp. 96, 100 (D.Minn.1967).
      63 F.R.D. at 449.


source: Caselaw Access Project

author: CLIFFORD SCOTT GREEN, District Judge.

license: Public Domain

text:
    POLO FASHIONS, INC. v. The HAVERFORD CORPORATION, et al.
    Civ. A. No. 84-2937.
    United States District Court, E.D. Pennsylvania.
    June 17, 1985.
    Marc Sonnenfield, Philadelphia, Pa., for plaintiff.
    George C. Brady, III, Conshohocken, Pa., for defendants.
   MEMORANDUM

CLIFFORD SCOTT GREEN, District Judge.

Plaintiff, Polo Fashions Inc. has brought suit against defendants for the amount owing on an unconditional promissory note executed in plaintiff’s favor by corporate defendant, The Haverford Corporation (“THC”). The note was guaranteed by individual defendants Joseph Egan, III and Kenneth Smith. Now ripe for this court’s consideration is plaintiff’s motion for summary judgment pursuant to Fed.R.Civ.P. 56. Plaintiff also moves this court to enter final judgment on its claim pursuant to Fed.R.Civ.P. 54(b). For the reasons set forth below, plaintiff’s motions will be granted.

Under the terms of the note, THC was obligated to pay plaintiff $92,395.21 in twenty-four monthly installments, each such payment to become due the first day of each month commencing October 1, 1983. The first six monthly installments were to be in the amount of $3,000 each; the next seventeen installments were to be in the amount of $4,000 each; and, the balance was to be paid on September 1, 1985. In the event of default, the note provided for acceleration of any and all amounts due and payable, together with reasonable attorneys’ fees incurred in enforcing payment thereof.

Under Rule 56, summary judgment may not be granted unless it can be shown that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Poller v. Columbia Broadcasting System, 368 U.S. 464, 467, 82 S.Ct. 486, 488, 7 L.Ed.2d 458 (1962); Teamsters Pension Trust Fund v. Philadelphia Fruit Exchange, 603 F.Supp. 877, 879 (E.D.Pa.1985). In this case, it is undisputed that THC is in default of its obligations under the note. In the answer to plaintiff’s complaint, defendants admit this fact. Thus, there is no dispute as to the material facts. Consequently, the only question remaining is whether plaintiff is entitled to judgment as a matter of law.

Defendants have asserted a counterclaim against plaintiff for tortious interference with contract. They attempt to use this counterclaim to shield themselves from liability under the note. In support of this position, they claim that THC defaulted on the note because of plaintiff’s tortious interference with a contract that THC had with one of its suppliers. More specifically, they claim that but for plaintiff’s interference, the default would not have occurred. The record before this court, however, clearly demonstrates that plaintiff’s claim and defendants’ counterclaim arise from separate and unrelated transactions or occurrences.

Defendants have admitted that THC failed to make the monthly payments due under the note on February 1, 1984 and March 1, 1984. Thus, THC was admittedly in default in early February, 1984. Taking the allegations set forth in defendants’ counterclaim as true, plaintiff’s tortious interference with a contract between THC and another entity, not a party to this action, did not occur until sometime after March 16, 1984. See Defendants’ answer at ¶¶ 21-26. Thus, any alleged tortious interference could not have caused the precedent default. Defendants have not pointed to any circumstances which would excuse their performance under the note. Thus, plaintiff is entitled to judgment on its complaint as a matter of law. Accordingly, its Rule 56 motion will be granted.

I turn now to plaintiff’s motion for entry of final judgment pursuant to Rule 54(b). That rule provides in pertinent part:

When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross claim, or third party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment.

Fed.R.Civ.P. 54(b). The above quoted language has been interpreted by the Supreme Court three times. See Curtiss-Wright Corp. v. General Electric Co., 446 U.S. 1, 100 S.Ct. 1460, 64 L.Ed.2d 1 (1980); Cold Metal Process Co. v. United Engineering & Foundry Co., 351 U.S. 445, 76 S.Ct. 904, 100 L.Ed. 1311 (1956); Sears, Roebuck & Co. v. Mackey, 351 U.S. 427, 76 S.Ct. 895, 100 L.Ed. 1297 (1956). In the most recent of these cases, Curtiss-Wright Corp. v. General Electric Co., supra, Chief Justice Burger, writing for an unanimous court, reversed the Third Circuit’s refusal to affirm the entry of judgment on one of the plaintiff’s claims until all claims had been adjudicated. The court held that the Third Circuit’s interpretation of Rule 54(b) to allow the entry of judgment for one of multiple claims only in the “infrequent harsh case” was too restrictive. 446 U.S. at 9-10, 100 S.Ct. at 1465-1466. It was also noted that the mere existence of a non-frivolous counterclaim did not render a Rule 54(b) judgment inappropriate.

As recognized by Chief Judge Luongo in a post Curtiss-Wright Rule 54(b) case, “[t]he significant factor [in CurtissWright ] was whether the counterclaim and the claim on which judgment was sought were interrelated or severable. The correct approach was for the district court to determine if there was any just cause for delay in entering judgment.” Jefferson Ward Stores v. Doody Co., 102 F.R.D. 257, 259 (E.D.Pa.1984).

The Supreme Court held that the district court’s evaluation of the situation in Curtiss-Wright had been reasonable. As also noted by Chief Judge Luongo, the CurtissWright district court had concluded that: “the claims involved were separate and not interrelated; there was no chance that appellate review of the issue would be required twice; the issue could not be mooted by further developments in the case; both parties were financially sound; and, therefore entry of judgment was appropriate.” Id.

In the instant case, as in Curtiss-Wright, the claims involved are easily severable. Thus, there is no chance of double appellate review of the same issue. Similarly, the issue on which judgment is to be entered, whether defendants have defaulted on their obligations under the note, will not be mooted by further developments in this case. Moreover, neither plaintiff nor defendants have questioned the financial vitality of any party to this action. Accordingly, I find that there is no just reason for delay in entering judgment for plaintiff against defendants.

      . While admitting default in their answer, the defendants also denied liability for the default in their counterclaim. After conference with counsel at which these points were addressed, this court gave defendants fifteen days in which to submit affidavits containing the factual basis for their denial of liability. See Ness v. Marshall, 660 F.2d 517, 519 (3d Cir.1982) (“an adverse party may not rest upon the mere allegations or denials of his pleadings”) (quoting Fed. R.Civ.P. 56(e)). No affidavits were submitted within the prescribed time.


author: STECKLER, District Judge.

text:
    Michael A. RICHCREEK v. George GRECU, et al.
    Nos. IP 84-710-C, IP 84-779-C and IP 84-1686-C.
    United States District Court, S.D. Indiana, Indianapolis Division.
    June 17, 1985.

      Michael A. Richcreek, pro se.
    Peter Sklarew, Trial Atty., Tax Div., Dept, of Justice, Washington, D.C., Charles Goodloe, Asst. U.S. Atty., Indianapolis, Ind., for federal defendants.
    Richard M. Knoth of Locke, Reynolds, Boyd & Weisell, Indianapolis, Ind., for non-federal defendants.
   STECKLER, District Judge.

This matter is before the Court on defendants’ motions to dismiss and motions for costs and attorney fees in these three related cases. Defendants also have moved for a permanent injunction in Cause No. IP 84-1686-C. Plaintiff has failed to respond.

The Court first notes that plaintiff has filed an appeal of the Court’s order granting a preliminary injunction in Cause No. IP 84-1686-C. However, the interlocutory appeal does not deprive this Court of jurisdiction and therefore, the Court can rule on defendants’ pending motions. Thomas v. Board of Ed., Granville Cent. Sch. Dist., 607 F.2d 1043, 1047 n. 7 (2d Cir.1979), cert. denied, 444 U.S. 1081, 100 S.Ct. 1034, 62 L.Ed.2d 765 (1980); United States v. City of Chicago, 534 F.2d 708, 711 (7th Cir.1976).

Plaintiff has filed four very similar lawsuits. In IP 84-710-C plaintiff is suing two Delco payroll administrators for withholding federal and state income taxes and Social Security taxes from plaintiff’s wages. Cause Number IP 84-779-C is against the same Delco employees and adds Internal Revenue Service (IRS) em-ployees as defendants. Plaintiff challenges the tax assessment and levy made against plaintiff by the IRS. In IP 84-1187-C plaintiff named the same defendants and repeated many of the same allegations but added the attorneys who had appeared in the other case, including government attorneys, and added the Honorable James E. Noland. On August 20, 1984, the Honorable Sarah Evans Barker dismissed that cause (IP 84-1187-C) sua sponte. She also called plaintiff’s attention to Rule 11 and the possibility of sanctions if plaintiff filed another frivolous suit.

On December 26, 1984, plaintiff filed IP 84-1686-C against many of the same defendants and added Magistrate Endsley and Judge Barker as defendants. Judge Noland was not named. In this complaint plaintiff states he is suing defendants in their private capacities for violating his constitutional rights and invokes 18 U.S.C. § 242 and 42 U.S.C. § 1983. He alleges that defendants have conspired to deprive him of his constitutional rights, including his right to a jury trial, by entering appearances, moving to dismiss the actions, and, as to Magistrate Endsley and Judge Barker, by ruling against plaintiff. He also accuses Judge Barker of sedition and treason, alleging that she has violated her oath of office. Plaintiff seeks damages of $5,314,510.12 from each defendant.

On March 1, 1985, after a hearing at which plaintiff failed to appear, the Court granted defendants’ motion for a preliminary injunction. Plaintiff is currently enjoined from seeking, without prior leave of Court, the intervention of any court in any proceeding, either directly or indirectly, against any persons, including the judge and court personnel, who have or are participating in this lawsuit.

I. Cause Numbers IP 84-710-C and IP 84-779-C.

a. Nonfederal defendants.

Plaintiff is suing defendants Grecu and Blakesley for withholding federal income tax, FICA tax, and Indiana state income tax from plaintiff’s salary and is suing these same two defendants plus defendant Keller for withholding monies pursuant to a Notice of Levy from the Internal Revenue Service. Plaintiff contends that he has been deprived of his property without due process of law. He alleges that the Internal Revenue Code is not law and that the IRS has no authority to levy against his wages because he is exempt from 26 U.S.C. §§ 3401(c) and 6331(a).

Having considered the nonfederal defendants’ motions in these two actions, the Court finds that plaintiff’s arguments are frivolous and without any legal basis and that defendants’ motions should be granted.

Plaintiff attempts to bring these causes under 18 U.S.C. § 241 and 242 and 42 U.S.C. § 1983. In IP 84-779-C he also has asserted that all defendants have violated 42 U.S.C. § 1985. Neither 18 U.S.C. § 241 nor 242 create a civil cause of action. Ivey v. Bodfish, 54 A.F.T.R.2d 84-5709 (N.D.Ind.1984); United States v. City of Philadelphia, 482 F.Supp. 1248, 1260-61 (E.D.Pa.1979), aff'd, 644 F.2d 187 (1980). Thus, plaintiff cannot state a cognizable claim under these statutes. Nor can plaintiff state a claim under 42 U.S.C. § 1985(3). To state a claim under § 1985(3) a plaintiff must allege some racial or class based animus on the part of defendants, and plaintiff has failed to do so. See Askew v. Bloemker, 548 F.2d 673, 678 (7th Cir.1976).

Section 1983 applies only to actions taken under color of state law; it does not govern federal tax collection procedures. See Edgar v. Inland Steel Co., 744 F.2d 1276, 1278 (7th Cir.1984); Stonecipher v. Bray, 653 F.2d 398, 401, 403 (9th Cir.1981), cert. denied, 454 U.S. 1145, 102 S.Ct. 1006, 71 L.Ed.2d 297 (1982). Therefore, the non-federal defendants cannot be liable under § 1983 unless they were acting under color of state law regarding state income tax. The Court need not address that issue, however, because the nonfederal defendants are exempt from liability to a taxpayer under both state and federal tax laws.

Congress has the power, under the Sixteenth Amendment, to collect income taxes. Baird v. C.I.R., 256 F.2d 918 (7th Cir.1958), aff'd, 360 U.S. 446, 79 S.Ct. 1270, 3 L.Ed.2d 1360 (1959). The constitutionality of the Social Security tax is also well established. Steward Machine Company v. Davis, 301 U.S. 548, 57 S.Ct. 883, 81 L.Ed. 1279 (1937); Helvering v. Davis, 301 U.S. 619, 57 S.Ct. 904, 81 L.Ed. 1307 (1937). The power to impose these taxes also includes prescribing the time and manner of how the taxes are to be collected and paid. Jacobs v. Gromatsky, 494 F.2d 513 (5th Cir.), cert. denied, 419 U.S. 868, 95 S.Ct. 126, 42 L.Ed.2d 107 (1974).

Congress established the withholding procedures for collection of federal income tax in 26 U.S.C. § 3402. Section 3402(a) requires that “every employer making payment of wages shall deduct and withhold upon such wages a tax determined in accordance with the tables prescribed by the secretary.” Under 26 U.S.C. § 3102(a), employers are required to withhold FICA tax also. Employers are not liable to the taxpayer for any amounts withheld. 26 U.S.C. § 3403. Thus, the actions of the defendants in withholding the plaintiffs federal taxes were lawful and in accordance with congressional mandate. Similarly, 26 U.S.C. § 6331 authorizes the collection of any person’s tax liability by levy on all property, and 26 U.S.C. § 6332 relieves any one honoring the levy from liability to the taxpayer. Therefore, the nonfederal defendants are not liable to plaintiff for honoring the IRS Notice of Levy.

Indiana law also requires employers to withhold state income tax from employees’ wages and exempts employers from any liability for doing so. Ind.Code § 6-3-4-8. Plaintiff has not set forth any specific facts from which the Court could even infer that this statute violates either the State or Federal Constitution. See G.M. Leasing Corp. v. United States, 429 U.S. 338, 352 n. 18, 97 S.Ct. 619, 628 n. 18, 50 L.Ed.2d 530 (1977). Therefore, this claim must also be dismissed.

b. Federal defendants.

Plaintiff has named numerous employees of the IRS as defendants in Cause Number IP 84-779-C. He alleges that they failed to advise him of his collection rights, committed mail fraud, violated his rights to due process, equal protection, and a jury trial, used administrative processes to develop a criminal case against him, and violated 42 U.S.C. § 1983. However, a review of the complaint and attached exhibits reveals that plaintiff’s real basis for the action is his contention that wages are not subject to federal income tax and that the IRS has erroneously assessed and collected a penalty from him for filing false W-4 statements. Therefore, the Court will not address the numerous allegations plaintiff has made.

Although plaintiff has named numerous IRS employees as defendants in their individual capacity, he has not alleged any facts from which the Court can infer that any of the federal defendants acted outside the scope of his or her official duties. It is also clear that any relief granted would expend itself on the public treasury or interfere with the public administration of the tax system. Therefore, the action is really against the United States. See Clark v. United States, 691 F.2d 837, 839-40 (7th Cir.1982); Richey v. Stewart, et al., 54 A.F.T.R.2d 84-5239 (S.D.Ind.1984).

It is well established that the United States may be sued only if it has consented to such suit by statute. United States v. Testan, 424 U.S. 392, 399, 96 S.Ct. 948, 953, 47 L.Ed.2d 114 (1976); Clark, 691 F.2d at 839. Although sovereign immunity has been waived under 28 U.S.C. § 1346(a)(1), in order to allow a taxpayer to contest any internal revenue tax alleged to have been erroneously assessed or collected, the taxpayer must first have filed a claim for refund with the Secretary. 26 U.S.C. § 7422(a) Plaintiff has not alleged the filing of any such claim. Noncompliance with the statutory prerequisite deprives the Court of jurisdiction. Hampton v. United States, 206 Cl.Ct. 422, 513 F.2d 1234 (Ct.Cl.), cert. denied, 423 U.S. 837, 96 S.Ct. 65, 46 L.Ed.2d 56 (1975).

Plaintiff may not bring his claim under the Federal Tort Claims Act, 28 U.S.C. § 2671 either, because he has not alleged filing an administrative claim. Best Bearings Co. v. United States, 463 F.2d 1177, 1179 (7th Cir.1972). Additionally, this Act does not apply to claims relating to the assessment or collection of any tax. 28 U.S.C. § 2680(c).

None of the other statutes plaintiff has cited waive the government’s sovereign immunity. Nor has plaintiff alleged any specific facts from which the Court can infer any constitutional violations. Therefore, plaintiffs claims against the federal defendants should be dismissed.

IP 84-1686-C

This cause of action names some of the same defendants in the prior actions and adds the attorneys appearing for the defendants in the other causes of action. Plaintiff alleges that these defendants, along with Judge Barker and Magistrate Endsley, are conspiring to deprive him of his constitutional rights. Apparently he believes they have deprived him of his right to a jury trial and access to the Court by entering appearances and, as to Judge Barker, by dismissing Cause Number IP 84-1187-C. None of the statutes that plaintiff has cited are applicable and on its face, plaintiff's complaint fails to state a claim.

Plaintiff has not alleged any facts which would support a claim for constitutional violations. Plaintiffs one specific allegation that he was deprived of his right to a jury trial is insufficient to state a cause of action. The granting of a motion to dismiss or motion for summary judgment does not violate the Seventh Amendment right to a jury trial. Itel Capitol Corp. v. Cups Coal Co., Inc., 707 F.2d 1253 (11th Cir.1983); United States v. Stangland, 242 F.2d 843 (7th Cir.1957). Therefore, defendants’ motions to dismiss should be granted. This ruling makes plaintiff's Notice and Demand by Plaintiff for Grand Jury and Common Law Jury moot. Plaintiff’s motion for default is DENIED.

Motion for Permanent Injunction

All defendants have requested a permanent injunction enjoining plaintiff from filing, without leave of court, any suit or legal proceeding against any persons concerning their administration or enforcement of the Internal Revenue laws or against any persons concerning their participation in any legal proceedings filed by plaintiff. Defendants contend that dismissal of these actions and assessment of sanctions is an inadequate remedy because plaintiff can file additional lawsuits. Defendants also point to the drain on government and judicial resources that frivolous, vexatious lawsuits create and the harassment of individual defendants such lawsuits cause.

The Court agrees with defendants. It is well established that a court can enjoin a person from filing frivolous and vexatious lawsuits. Pavilonis v. King, 626 F.2d 1075, 1078 n. 7 (1st Cir.1980), cert. denied, 449 U.S. 829, 101 S.Ct. 96, 66 L.Ed.2d 34 (1980); Lacks v. Fahmi, 623 F.2d 254, 257 (2d Cir.1980); Gordon v. United States Dept. of Justice, 558 F.2d 618 (1st Cir.1977); Quimby v. Porter, 79-1 U.S.T.C. ¶ 9317 (N.D.Tex.1978). Plaintiff’s history of filing frivolous lawsuits against his employer and its agents, against the IRS and its employees and agents, and against any other persons who happen to act contrary to plaintiff’s wishes, including suits against judicial officers and federal judges, justifies the issuance of a permanent injunction.

Plaintiff’s repetitive vexatious filings are a drain on the public treasury and the Court’s time, and deprives legitimate litigants of the speedy disposition of their cases. Plaintiff’s rambling pleadings charge defendants with treason and sedition and other criminal offenses. However, when given the opportunity to appear in court and argue his case, plaintiff failed to appear. It is obvious that plaintiff’s purpose in filing these suits is to harass his employer, the IRS, and the judicial system. Therefore, defendants’ motion for a permanent injunction is GRANTED.

Motion for Sanctions

All defendants also have moved for sanctions including costs and attorney fees. An award of attorney fees is appropriate when a party has “acted in bad faith, vexatiously, wantonly, or for oppressive reasons.” Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 258-59, 95 S.Ct. 1612, 1622-23, 44 L.Ed.2d 141 (1975). Sanctions, including attorney fees, are allowed under Fed.R.Civ.P. 11 for pleadings not grounded in fact and warranted by law and that are brought to harass others. Plaintiffs repetitive filing of frivolous lawsuits falls within these categories.

Plaintiffs arguments regarding the Internal Revenue laws and his exemption from them are clearly without merit and contrary to existing case law. Recently the Court of Appeals for the Seventh Circuit has approved the imposition of fees on persons filing meritless claims in order to protest the tax laws and has warned litigants about pursuing these claims. Edgar v. Inland Steel Co., 744 F.2d at 1278; Granzow v. Commission, 739 F.2d 265, 269-70 (7th Cir.1984). Judge Barker also warned plaintiff that sanctions would be imposed if he continued to file frivolous lawsuits. An award of attorney fees is justified.

By reason of the foregoing IT IS ORDERED that plaintiffs motion for default in IP 84-1686 is DENIED and defendants’ motions to dismiss IP 84-710-C, IP 84-779-C, and IP 84-1686-C are GRANTED. Plaintiff’s actions are DISMISSED.

IT IS ORDERED that defendants be awarded reasonable attorney fees and the costs of all three actions. Defendants should submit a bill of costs and an affidavit on attorney fees within ten (10) days from the date of this order.

IT IS FURTHER ORDERED that defendants’ motion for a permanent injunction is GRANTED.

Permanent Injunction

IT IS THEREFORE ORDERED that Michael A. Richcreek is permanently enjoined from seeking, without specific prior leave of this Court, the intervention of any court, federal or state, in any proceeding directly or indirectly against De'lco Electronics or its employees, or the United States of America, or the Internal Revenue Service, or any of its officers or employees, the effect or purpose of which is to launch a general attack on the investigation, assessment, or collection of federal income taxes by the Internal Revenue Service, its agents or employees, based on claims of alleged unconstitutionality of the tax laws or which in any manner seeks declaratory or injunctive relief with regard to the assessment or collection of federal or state income taxes. Lawsuits and other legal proceedings barred by this injunction specifically include any where a material allegation or necessary premise is that the Internal Revenue Code, or any part of it, violates the United States Constitution, or that the actions complained of are performed by an officer or employee of the Internal Revenue Service, by a federal or private attorney, by a member of the Tax Division of the Justice Department, by a United States Marshal, by a Federal Judge, or other judicial officer, or by Delco Electronics or its agents and employees. This injunction also includes any lawsuits or other legal proceedings against the attorneys who have appeared or may appear on behalf of defendants in these causes or any others brought by Michael A. Richcreek, and any against the undersigned judge or any other officer or employee of this Court, or against the United States Marshal or Deputy, involving any aspect of the participation of such persons in Court-related matters.

IT IS FURTHER ORDERED that this permanent injunction shall remain in effect until lifted by order of this Court or until the end of five (5) years.

IT IS FURTHER ORDERED that if Michael A. Richcreek submits to the Clerk of this Court any document prohibited by this injunction while the same remains in effect, or any document which the Clerk believes may possibly be prohibited by this injunction, the Clerk is directed to refer forthwith such document to a Judge of this Court for a determination as to whether a violation of this injunction has occurred and for such further proceedings as may then appear just and necessary, including dismissal of any action brought or denial of any motion made sua sponte and issuance of an order directing Michael A. Richcreek, or any person acting in participation or concert with him, to show cause why they should not be held in contempt of court. If any document violative of this injunction is inadvertently accepted by the Clerk and a summons to the defendant(s) issued, such defendants) may also call to the Court’s attention the possibility of a violation of this injunction, for such further proceedings as may appear just and necessary, including dismissal or denial sua sponte and contempt proceedings.

IT IS FURTHER ORDERED that the Clerk of the Court is directed to certify a copy of this order and cause the same to be personally served by the United States Marshal upon the plaintiff, Michael A. Richcreek.


author: McLAUGHLIN, District Judge.

text:
    Minnie CARLTON, Plaintiff, v. INTERFAITH MEDICAL CENTER, Defendant.
    No. 83 CV 1485.
    United States District Court, E.D. New York.
    June 18, 1985.

      Charles E. Morrison, New York City, for plaintiff.
    Guggenheimer & Untermyer, David H. Diamond and Richard A. Covin, New York City, for defendant.
   MEMORANDUM AND ORDER

McLAUGHLIN, District Judge.

Plaintiff, a former employee of defendant Interfaith Medical Center (“Interfaith”), brings this action for damages and injunctive relief arising from the conditions of her former employment and from her ultimate discharge. Plaintiff alleges violations of the Equal Pay Act, 29 U.S.C. § 206; the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 626; Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e-5; and 42 U.S.C. § 1981. In addition, plaintiff contends that her lay-off was in breach of an alleged employment agreement and of an implied covenant of good faith. Finally, plaintiff alleges that Interfaith fraudulently induced her to continue working at the hospital and that she relied on that inducement to her detriment.

Defendant moves for summary judgment. Fed.R.Civ.P. 56. For the reasons set forth below, defendant’s motion is granted in part and denied in part.

Facts

Plaintiff, a fifty-nine year old black female, was employed by Jewish Hospital and Medical Center of Brooklyn (“JHMCB”) from October 9, 1969 until December 31, 1982. From 1969 until 1974, plaintiff worked as a registrar in the outpatient area of the accounting department. From 1974 until her discharge, plaintiff held the title of Supervisor-OPD Registration. Interfaith contends, however, that plaintiff did not perform supervisory work.

On January 1, 1983, Interfaith, a New York not-for-profit corporation, commenced operations of an acute health care facility on the former site of JHMCB, which had filed a petition under Chapter 11 of the Bankruptcy Act, 11 U.S.C. § 701 et seq. All JHMCB employees initially were retained by Interfaith to insure continuity of patient care. As a condition to approving the establishment and operation of Interfaith, however, the State of New York mandated a substantial reduction in the number of patient beds and employees. Accordingly, significant lay-offs took place at Interfaith in early 1983. Plaintiff was among the several hundred employees, including 33 non-union , non-professional employees, laid off.

Plaintiff contends that on February 5, 1983, she was advised by her supervisor, Ms. Porter, that no staff member’s job would be in jeopardy as a result of the merger. Ms. Porter, a black female, states in her affidavit that she cannot recall making such a representation. In any event, plaintiff was advised on or about February 7, 1983 that she would be laid off effective February 18, 1983.

Discussion

Equal Pay Act

29 U.S.C. § 206(d) states that:

No employer ... shall discriminate ... on the basis of sex by paying wages to employees ... at a rate less than the rate at which he pays wages to employees of the opposite sex ... for equal work____

Plaintiff bears the burden of proving equality of work. Strecker v. Grand Forks County Social Service Board, 640 F.2d 96, 99-100 (8th Cir.1980). The relevant inquiry is “whether the performance of the jobs requires substantially equal skill, effort and responsibility under similar working conditions.” Orahood v. Board of Trustees, et al., 645 F.2d 651, 654 (8th Cir.1981).

Plaintiff claims that she was paid less than a male supervisor who performs an allegedly comparable function in the in-patient accounting department. Interfaith contends, however, that a supervisor of in-patient accounting deals with more paper work and supervises more employees than does his out-patient counterpart, and, thus, that the two jobs are not equal.

“[0]n a motion for summary judgment the Court cannot try issues of fact; it can only determine whether there are issues to be tried.” Heyman v. Commerce and Industry Insurance Company, 524 F.2d 1317, 1319-20 (2d Cir.1975). Clearly, material questions of fact exist as to (a) whether plaintiff did, in fact, perform supervisory duties, and (b) whether the supervisory positions in the in-patient and out-patient departments involve equal skill, effort and responsibility performed under similar working conditions. Accordingly, defendant’s motion for summary judgment on the Equal Pay Act claim is denied.

Discriminatory Discharge

Plaintiff alleges that her lay-off constitutes age, sex and race discrimination, in violation of the ADEA, Title VII, and 42 U.S.C. § 1981. The Supreme Court has set forth the controlling legal standards regarding the burden of proof in such cases:

First, the plaintiff has the burden of proving by a preponderance of the evidence a prima facie case of discrimination. Second, if the plaintiff succeeds in proving the prima facie case, the burden shifts to the defendant “to articulate some legitimate, nondiscriminatory reason for the employee’s rejection.” ... Third, should the defendant carry this burden, the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination.

Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 252-58, 101 S.Ct. 1089, 1093, 67 L.Ed.2d 207 (1981) (quoting McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973)).

Even assuming that plaintiff has made out a prima facie case of discrimination, she has adduced no evidence whatsoever to demonstrate that Interfaith’s proffered reasons for her discharge are pretextual.

Interfaith asserts, initially, that plaintiff’s lay-off was part of a massive reduction in force which was mandated by the State of New York as a condition to certifying Interfaith’s operation. This fact cannot be disputed, and indeed, is substantiated by a newsletter article attached to plaintiff’s responsive papers. See Plaintiff’s Ex. # 4. Of course, the mere existence of a reduction in force scenario does not remove defendant’s actions from the scrutiny of this Court, since the method defendant chooses to carry out that force reduction could be discriminatory. See Hagelthorn v. Kennecott Corp., 710 F.2d 76, 81 (2d Cir.1983). When faced with such a scenario, however, the courts have placed greater emphasis on the requirement that plaintiff prove intent to discriminate. See Williams v. General Motors, Corp., 656 F.2d 120, 128 (5th Cir.1981); Coburn v. Pan American World Airways, Inc., 711 F.2d 339, 343 (D.C.Cir.), cert. denied, — U.S. -, 104 S.Ct. 488, 78 L.Ed.2d 683 (1983).

Interfaith provides a legitimate non-discriminatory business reason for laying off plaintiff Carlton. The affidavits submitted by Interfaith reflect that to achieve the mandated force reductions, a business decision was made to reorganize the out-patient accounting department. The plan was to eliminate the two intermediate supervisory positions held by plaintiff and another female and to create, instead, a new position of assistant manager. That position, which entails an expanded range of duties, was filled by a black female who was transferred from the in-patient accounting area where her position also had been eliminated.

Plaintiff’s former supervisor, Valerie Porter, a black female, indicated that she recommended plaintiff’s lay off, in part, because she concluded that plaintiff was not performing supervisory work. Clearly, it is the perception of the decision-maker, and not that of plaintiff herself, which is relevant. Smith v. Flax, 618 F.2d 1062, 1067 (4th Cir.1980). Moreover, Porter states in her affidavit that neither race, sex nor age was a factor in her recommendation.

Inasmuch as Interfaith has articulated a legitimate, non-discriminatory reason for plaintiff's discharge, plaintiff, to survive a motion for summary judgment, must “prove the existence of factual issues demonstrating that the stated reasons were merely a pretext for discrimination.” Meiri v. Dacon, 759 F.2d 989, 997 (2d Cir.1985). Mere conclusory allegations of discrimination will not suffice. Zahorik v. Cornell University, 729 F.2d 85, 94 (2d Cir.1984).

Plaintiff asserts that direct and circumstantial evidence exists in the form of “memorandums, notices, letters and statistics” tending to show that age was a factor in Interfaith’s decision to discharge her. Insofar as the memoranda, notices and letters are concerned, plaintiff fails to provide details as to what documents she is referring to and how they indicate that age is a factor. Clearly, the documents she has submitted fail to provide the slightest hint that either age, race or sex was a factor in Interfaith’s decision.

Moreover, plaintiff admits that no one in a supervisory capacity at Interfaith ever made any disparaging remarks about her race, sex or age; nor did anyone indicate that her lay-off was because of her race, sex or age.

Plaintiff relies primarily upon statistical evidence. Although it is clearly proper for a plaintiff to rely on statistical evidence in proving pretext, McClain v. Mack Trucks, Inc., 532 F.Supp. 486, 489 (E.D.Pa.1982), aff'd, 707 F.2d 1393 (3d Cir.1983), the mere existence of such evidence does not preclude summary judgment, Kahn v. Pepsi Cola Bottling Group, 547 F.Supp. 736, 739 (E.D.N.Y.1982). As the Second Circuit has noted, “[w]here, as here, the statistical evidence ... leads to an indisputable result, the judge is justified in taking the evaluation of the statistics away from the jury.” Getter v. Markham, 635 F.2d 1027, 1034 (2d Cir.1980).

The statistical evidence in this case reveals that while 57% of the 33 non-union, non-professional employees laid off by Interfaith in 1983 were forty years of age or older, 58% of those retained were over forty. Likewise, while 66% of those laid off were black, 61% of those retained are black. Approximately 45% of those laid off were black females, with an equal percentage of black females retained.

Accordingly, plaintiff has simply failed to put forth any evidence which supports her claim that Interfaith’s reduction in force had a disparate impact upon members of her class. See Getter, 635 F.2d at 1032. Likewise, the record is devoid of evidence indicating that Interfaith acted with the discriminatory motive necessary to establish a claim of disparate treatment. Teamsters v. United States, 431 U.S. 324, 335 n. 15, 97 S.Ct. 1843, n. 15, 52 L.Ed.2d 396 (1977). Indeed, the lack of proof or admission of intentional discrimination is dispositive of plaintiff’s § 1982 claim. Firefighters Local Union No. 1784 v. Stotts, - U.S.-, 104 S.Ct. 2576, 2590 n. 16, 81 L.Ed.2d 483 (1984); General Building Contractors Association v. Pennsylvania, 458 U.S. 375, 383, 102 S.Ct. 3141, 3146, 73 L.Ed.2d 835 (1982).

In short, there simply is nothing in the record to indicate that either age, sex or race was a determinative factor in plaintiff’s lay off. Hagelthorn, 710 F.2d at 86.

As the Second Circuit recently has stated:

To allow a party to defeat a motion for summary judgment by offering purely conclusory allegations of discrimination absent any concrete particulars, would necessitate a trial in all Title VII cases. Given the ease with which these suits may be brought and the energy and expense required to defend such actions, we believe the trial judge properly [may grant] summary judgment.

Meiri v. Dacon, 759 F.2d at 998.

Accordingly, defendant’s motion for summary judgment on plaintiff’s ADEA, Title VII and § 1981 claims is granted.

State Law Claims

Plaintiff asserts various state law claims in connection with her discharge, including breach of employment contract, breach of an implied covenant of good faith, fraud, detrimental reliance and tortious wrongful discharge. For the reasons set forth below, defendant is granted summary judgment on these claims.

Clearly, summary judgment must be granted as a matter of law on plaintiff’s claims of breach of implied covenant of good faith and tortious wrongful discharge, since both theories of recovery specifically have been rejected by the New York Court of Appeals. Murphy v. American Home Products Corp., 58 N.Y.2d 293, 297, 304-05, 461 N.Y.S.2d 232, 233, 237, 448 N.E.2d 86, 87, 91 (1983). Cf. Boniuk v. New York Medical College, 535 F.Supp. 1353, 1355 (S.D.N.Y.), aff'd, 714 F.2d 111 (2d Cir.1982).

Nor can plaintiff succeed on her claim of breach of employment contract. Plaintiff acknowledged at her deposition that she had no written employment contract, and that no one in a position of authority ever promised her anything regarding the length of her employment. Nonetheless, plaintiff contends that certain statements allegedly made by her supervisor, together with a December 16, 1982 newsletter distributed to employees, created a contract of employment. I am not persuaded.

The newsletter article, after acknowledging Interfaith’s obligation to reduce the work-force, refers to a statement by the State Health Commissioner that “the state would attempt to provide every hospital worker who lost his/her job through the merger with the same level hospital job.” Plaintiff’s Ex. 4 (emphasis added). This statement, attributed to a state official, can hardly form the basis of a claim against Interfaith.

Thus, plaintiff’s claim rests solely upon the statements attributed to her supervisor, Ms. Porter. Plaintiff alleges that Ms. Porter told the employees at a meeting held two or three days before plaintiff learned of her lay-off that their jobs would not be affected by the merger. Clearly, a question of fact exists as to whether this statement was made. Defendant argues, however, that assuming arguendo that the statement was made, it is nonetheless entitled to summary judgment. I agree.

As the New York Court of Appeals recently has stated:

[A]bsent a constitutionally impermissible purpose, a statutory proscription, or an express limitation in the individual contract of employment, an employer’s right at any time to terminate an employment at will remains unimpaired.

Murphy v. American Home Products Corp., 58 N.Y.2d at 305, 461 N.Y.S.2d at 237, 448 N.E.2d at 91.

Of course, an express limitation on an employer’s right to discharge an at-will employee must be given effect. See Weiner v. McGraw-Hill, Inc., 57 N.Y.2d 458, 460, 457 N.Y.S.2d 193, 194, 443 N.E.2d 441, 442 (1982). In Weiner, the Court of Appeals held that the plaintiff, although not employed for a fixed term, had pleaded a good cause of action for breach of employment contract where he was “discharged without the ‘just and sufficient cause’ or the rehabilitative efforts specified in the employer’s personnel handbook and allegedly promised at the time he accepted the employment.” Id. at 460, 457 N.Y.S.2d at 194, 443 N.E.2d at 442. The New York courts, however, have refused to extend the Weiner decision beyond the facts of that case. See, e.g., O’Donnell v. Westchester Community Service Council, Inc., 96 A.D.2d 885, 466 N.Y.S.2d 41, 42 (2d Dep’t 1983); Utas v. Power Authority of the State of New York, 96 A.D.2d 940, 940-41, 466 N.Y.S.2d 390, 391 (2d Dep’t 1983).

The Weiner case is clearly distinguishable from this case, since (a) plaintiff was not induced to take her job at Interfaith because of Porter’s alleged representation, (b) the representation was not incorporated into an employment application, (c) plaintiff produces no support for her allegations that she rejected other offers of employment in reliance on the representation and (d) the representation was not contained in an employee handbook. See Utas, 96 A.D. at 940-41, 466 N.Y.S.2d at 381. Clearly, plaintiff cannot succeed on her breach of contract claim since there was no employment agreement to be breached. Accordingly, summary judgment is entered for the defendant.

Likewise, plaintiff has failed to demonstrate a question of fact as to the detrimental reliance necessary to form a claim of promissory estoppel. Plaintiff alleges that she continued to work at Interfaith and did not look for work elsewhere because she believed Porter when she said that plaintiff’s employment at Interfaith was secure. Plaintiff provides absolutely no details to support her bald allegation that she relied to her detriment on Porter’s statement allegedly uttered a mere two-three days before plaintiff was notified of her lay-off. To the contrary, plaintiff testified at a deposition that she did not turn down any job offers on the basis of Porter’s statement, Deposition at 55, and that she does not know if she would have looked for other employment during the two-day period if the statement had not been made, id. at 51.

I am reminded of the Second Circuit’s frequent admonition that “[a] party opposing a motion for summary judgment simply cannot make a secret of his evidence until the trial for in doing so he risks the possibility that there will be no trial.” Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir.1985). Plaintiff offers no indication that evidence exists that would permit a reasonable inference that she detrimentally relied on Porter’s statements. Accordingly, defendant is granted summary judgment on the claim of detrimental reliance.

Finally, the absence of evidence of detrimental reliance is also fatal to plaintiff’s claim of fraud. Galvez v. Local 804 Welfare Trust Fund, 543 F.Supp. 316, 318 (E.D.N.Y.1982); Cable v. Hechler, 532 F.Supp. 239, 244 (E.D.N.Y.), aff'd, 685 F.2d 423 (2d Cir.1981). Moreover, “an essential element of an action for fraud or deceit is a representation as to a past or present fact, not [as is the case here] as to what will be done in the future.” Galvez, 543 F.Supp. at 318.

Conclusion

Defendant’s motion for summary judgment on the Equal Pay Act claims is denied. In all other respects, defendant’s motion for summary judgment is granted.

SO ORDERED.

      . Plaintiff has not been represented by a union since 1974.

      . Defendant also argues that it is liable, if at all, only for Equal Pay Act violations occurring on or after January 1, 1983, the date of the merger. The presence of this issue also precludes summary judgment, however, since "the test for successor liability is fact specific and must be conducted 'in light of the facts of each case....'" In re National Airlines, Inc., 700 F.2d 695, 698 (11th Cir.1983) (quotation omitted). The factors to be considered include (1) whether Interfaith had notice of the violations, (2) whether the predecessor hospital is in a position to provide relief, (3) whether there exists a substantial continuity of business, (4) whether the supervisory personnel is substantially the same, and (5) whether the same jobs exist under substantially the same working conditions. See E.E.O.C. v. Sage Realty Corp., 507 F.Supp. 599, 612 n. 20 (S.D.N.Y.1981).

      . Defendant also has provided evidence that plaintiff received several less than satisfactory performance evaluations in 1980-81. Plaintiffs 1982 evaluation reflects significant improvement. It is unclear whether plaintiffs supervisor considered the 1980-81 evaluations in making her recommendation that plaintiff be laid off.

      . In addition to the statistics referred to above, plaintiff has submitted several pages of a computer printout which she allegedly received from the EEOC. See Plaintiff's Exhibit 5. Plaintiff claims that the data obtained from the EEOC differs from the statistics provided by defendant, thus, creating a question of fact. Plaintiff offers no explanation, however, as to what this raw data represents and/or how it contradicts defendant’s statistics. Absent such analysis, plaintiffs data lacks real meaning and need not be considered on this motion. Kahn v. Pepsi Cola Bottling Group, 547 F.Supp. 736, 739 n. 1 (E.D.N.Y.1982).
      In any event, defendant’s statistics were set forth fully in its Statement of Material Facts Not In Dispute. Thus, these statistics are "deemed to be admitted unless controverted by the statement required to be served by the opposing party." Local Rule 3(g). Defendant’s statistics are not controverted by plaintiff's Rule 3(g) statement; indeed, plaintiffs statement merely consists of five conclusions of law. Accordingly, defendant’s statistics are deemed admitted.

      . Significantly, the Second Circuit recently has noted:
      The summary judgment rule would be rendered sterile ... if the mere incantation of intent or state of mind would operate as a talisman to defeat an otherwise valid motion. Indeed, the salutary purposes of summary judgment — avoiding protracted, expensive and harassing trials — apply no less to discrimination cases than to commercial or other areas of litigation.

        Meiri v. Dacon, 759 F.2d at 998.

      . Although plaintiff complains of inadequate discovery, plaintiff had ample opportunity to complete discovery before the May 18, 1984 cut-off date. Inasmuch as plaintiff makes no showing of good cause for her failure to complete discovery within the allotted time, her claim of inadequate discovery will not be considered on this motion. Cf. Zahorik v. Cornell University, 729 F.2d 85, 91 (2d Cir.1984).

      . Under New York law, the five elements of a fraud claim are misrepresentation, knowledge of falsity, intent to deceive, reliance and damages. Mallis v. Bankers Trust Co., 615 F.2d 68, 80 (2d Cir.1980); Freschi v. Grand Coal Venture, 551 F.Supp. 1220, 1230 (S.D.N.Y.1982).