source: Caselaw Access Project

author: GLASSER, District Judge:

license: Public Domain

text:
    EL GRECO LEATHER PRODUCTS CO., INC. d/b/a Candie’s International, Plaintiff, v. SHOE WORLD, INC., d/b/a Gussini, Defendant.
    No. 83 Civ 5376.
    United States District Court, E.D. New York.
    Dec. 11, 1985.

      J. Joseph Bainton, Steven H. Reisberg, Reboul, MacMurray, Hewitt, Maynard & Kristol, New York City, for plaintiff.
    Edward V. Filardi, Brumbaugh, Graves, Donohue & Raymond, M. Marc Dahan, Dahan & Nowick, New York City, for defendant.
   MEMORANDUM AND ORDER

GLASSER, District Judge:

El Greco Leather Products Co., Inc. (“El Greco”) initiated this action against Shoe World, Inc. (“Shoe World”) in December 1983 alleging, inter alia, trademark infringement and unfair competition. In response, Shoe World alleged counterclaims for defamation, trade defamation and disparagement, tortious interference, unfair competition, prima facie tort and abuse of civil process. After a hearing held on January 10 and January 19, 1984, I denied El Greco’s application for a preliminary injunction restraining Shoe World from using the mark “CANDIE’S” on any goods sold by Shoe World, finding that El Greco had failed to establish the existence of irreparable harm. In a decision dated December 21, 1984, I denied El Greco’s request for a permanent injunction, ruling against its claims on the merits, and finding that the balance of equities did not weigh in its favor. El Greco Leather Products Co. v. Shoe World, Inc., 599 F.Supp. 1380 (E.D.N.Y.1984).

This action is now before me on cross-motions. Shoe World has moved under Fed.R.Civ.P. 11 for an award of attorney’s fees for the costs of defending this entire action. El Greco has responded asserting that it should be awarded fees for the costs of defending against Shoe World’s motion. In addition, El Greco has moved for summary judgment dismissing Shoe World’s claims against it. I will deal with each of these motions in turn.

I. Rule 11 Motions

A. Shoe World’s Motion

This Circuit has recently framed a standard to be used in deciding Rule 11 motions:

[Sjanctions shall be imposed against an attorney and/or his client when it appears that a pleading has been interposed for any improper purpose, or where, after reasonable inquiry, a competent attorney could not form a reasonable belief that the pleading is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification or reversal of existing law.

Eastway Const. Corp. v. City of New York, 762 F.2d 243, 253 (2d Cir.1985) (emphasis in original) (footnote omitted). Shoe World’s motion seeks the imposition of sanctions for each of the wrongs redressable under Rule 11—it attacks both the factual and legal underpinnings of El Greco’s lawsuit, and alleges that the entire lawsuit was instituted “with the specific intent to publicize falsehoods about Shoe World for [El Greco’s] own unfair gain and to harass Shoe World.” Shoe World’s Brief at 2.

A brief review of the history of this litigation, as recounted in my earlier decision, will be helpful in deciding Shoe World’s motions:

[El Greco] filed this action, along with an order to show cause for a temporary restraining order and preliminary injunction, on December 13, 1983. The complaint alleges that [Shoe World] sold shoes which “duplicate shoe styles of [El Greco]” and are “counterfeit.” ...
On December 20, 1983, a temporary restraining order was entered by this Court enjoining [Shoe World] from selling shoes bearing plaintiff’s trademark CANDIE’S. On December 30, 1983, the temporary restraining order was vacated by Judge Platt on a showing that the allegedly infringing shoes had been originally made at plaintiff’s request by one of its Brazilian manufacturers and were not “counterfeit” within the usual meaning attached to that word.

599 F.Supp. at 1389. Notwithstanding Judge Platt’s action, El Greco pressed its request for an injunction:

[El Greco] adheres to the position that these CANDIE’S shoes are “counterfeit” because even if the Brazilian factories could be found to have legitimately applied the mark to the shoes, [El Greco’s] cancellation of the various shoe orders impliedly revoked the manufacturer’s authority to dispose of any of the shoes without removing the CANDIE’S mark. [El Greco] urges that its mark is infringed because it did not authorize the sale of its cancelled goods.

Id. at 1390 (footnote omitted).

On the record developed before me, I concluded “that the goods in controversy are ‘genuine’ CANDIE’S shoes which may have been improperly disposed of by [El Greco’s] Brazilian manufacturers.” Id. Having arrived at this factual conclusion, I then considered and rejected El Greco’s “claims for trademark infringement for the allegedly unauthorized sale of genuine goods.” Id.

In light of this history, Shoe World’s motion is framed somewhat in the alternative, focusing on the source of the goods that were the subject matter of this suit. Shoe World argues that to the extent that El Greco did not know that these goods had originated from its Brazilian manufacturer, it had failed to make the “reasonable inquiry” required by Rule 11. On the other hand, to the extent that El Greco’s president did have information about the source of the allegedly infringing shoes, the allegation in El Greco’s complaint and in its papers in support of a temporary restraining order that these shoes were “counterfeit” was, according to Shoe World, an attempt to foist a fraud on this court and could only have been made with the intent of damaging Shoe World’s reputation.

Despite Shoe World’s arguments, I am not persuaded that this is a case in which Rule 11 sanctions should be imposed. I cannot conclude that El Greco did not make a “reasonable inquiry” before proceeding with this lawsuit. This is not a case in which “there is not the slightest suggestion in any paper before the Court that any inquiry was made to lend some assurance that the allegations of the complaint were well grounded in fact.” Viola Sportswear, Inc. v. Mimun, 574 F.Supp. 619, 621 (E.D.N.Y.1983) (emphasis in original). It is clear that El Greco did make some inquiry; it is also clear that it might have done more. However, Rule 11 does not require courts to make a post hoc assessment of the precise amount of investigation that should have been made prior to the filing of a lawsuit: “Courts must strive to avoid the wisdom of hindsight in determining whether a pleading was valid when signed, and any and all doubts must be resolved in favor of the signer.” Eastway, supra, 762 F.2d at 254.

The weightier charge leveled by Shoe World is that El Greco knew the source of the shoes, yet brought this lawsuit alleging that the shoes were “counterfeit” with the intent to tarnish Shoe World’s reputation. This charge is essentially an argument that, given the facts of this case, this lawsuit is legally baseless— that it should never have been brought in the first place, and that, when El Greco learned the source of the shoes, it should have been discontinued. I admit that I am troubled by El Greco’s use of the word “counterfeit” to describe merchandise whose sale by the manufacturer was unauthorized but which is otherwise genuine. I find this usage to be at best, exaggerated, and at worst, misleading. Nevertheless, I cannot conclude that the underlying legal issue, whether the unauthorized sale of otherwise genuine goods can constitute some form of trademark infringement, is a frivolous one. Although I ruled against El Greco on all of its arguments, an unsuccessful lawsuit is not necessarily a baseless one punishable under Rule 11. Rule 11 has been violated “where it is patently clear that a claim has absolutely no chance of success under the existing precedents, and where no reasonable argument can be advanced to extend, modify or reverse the law as it stands.” Eastway, supra, 762 F.2d at 254. On this basis, Shoe World’s Rule 11 motion is denied.

B. El Greco’s Motion

On the basis of the same principle, El Greco’s motion for Rule 11 sanctions must also be denied. As Shoe World correctly points out, the possibility of a Rule 11 motion was contemplated early on in these proceedings. Although I have just denied that motion, I cannot find that Shoe World has acted in bad faith in bringing this motion, or that the motion itself “was destined to fail.” Eastway, supra, 762 F.2d at 254. Accordingly, El Greco’s motion is denied.

II. El Greco’s Motion for Summary Judgment

El Greco has moved for summary judgment of Shoe World’s six counterclaims claiming that each is deficient as a matter of law. Shoe World’s counterclaims are all in the same vein as its Rule 11 motion. All allege in some fashion that El Greco initiated this lawsuit in bad faith and with the intent of injuring Shoe World. I have ruled adversely on Shoe World’s Rule 11 motion; however, the role of this Court in deciding a motion for summary judgment is a narrow one:

[T]he responsibility of the district judge on a motion for summary judgment is merely to determine whether there are issues to be tried, rather than to try the issues himself via affidavits.

Jaroslawicz v. Seedman, 528 F.2d 727, 731 (2d Cir.1975). Nevertheless, for the reasons set forth below, I find that El Greco’s motion should be granted in full.

A. Defamation

Shoe World’s first counterclaim, and the one most strenuously contested by both parties, is an action for defamation. The focus of Shoe World’s claim is an article published in Footwear News, a trade publication, on December 19, 1983, one week after the filing of the complaint in this action. That article, it is contended, contained “false and derogatory statements to the effect that Shoe World was engaged in counterfeiting and other unfair trade practices, including trademark infringement____” Shoe World’s Answer at 1135. Shoe World contends, and El Greco does not contest, that a copy of the papers in this action was delivered to a reporter for Footwear News by El Greco, and that a spokesman for El Greco, Neil Cole, provided the reporter with further information about El Greco’s charges against Shoe World. Shoe World thus seeks to hold El Greco responsible as the source of the allegedly defamatory information published in the Footwear News article.

El Greco responds that insofar as the statements published in Footwear News convey information about El Greco’s lawsuit against Shoe World, they should be deemed absolutely privileged because of Section 74 of the New York Civil Rights Law. That statute provides, in pertinent part:

A civil action cannot be maintained against any person, firm or corporation for the publication of a fair and true report of any judicial proceeding____

N.Y.Civ.Rights L. § 74 (McKinney’s 1976). On its face, Section 74 would appear to present a complete defense for El Greco, warranting dismissal of this claim. Shoe World, however, offers three reasons why its claim should not be dismissed. First, it argues that this case falls within a judicially-created exception to Section 74. Second, it contends that even if Section 74 does apply generally, the Footwear News article, insofar as it contains information not made explicit in El Greco’s complaint, is not “a fair and true report” subject to protection under the statute. Finally, it suggests that its claim for defamation is not limited solely to the statements published in Footwear News.

The most substantial issue put forth by Shoe World is whether, despite the interdiction of Section 74, this action should be permitted to continue under the exception created in Williams v. Williams, 23 N.Y.2d 592, 298 N.Y.S.2d 473, 246 N.E.2d 333 (1969). In Williams, the New York Court of Appeals upheld against a motion to dismiss, a claim that an action had been instituted “for the sole purpose of republishing the libelous statements set forth in the complaint____” Branca v. Mayesh, 101 A.D.2d 872, 476 N.Y.S.2d 187, 188 (2d Dep’t), aff'd, on opinion below, 63 N.Y.2d 994, 483 N.Y.S.2d 1011, 473 N.E.2d 261 (1984). Shoe World argues that this case fits within the confines of the Williams exception, alleging that “[El Greco] maliciously instituted this lawsuit for the collateral and insidious purposes of falsely label-ling Shoe World as a counterfeiter and communicating that charge to the footwear trade.” Shoe World’s 3(g) Statement at 11 5. While such an allegation would suffice to uphold a claim against a motion to dismiss, this Court must determine, on a motion for summary judgment, whether Shoe World “has alleged facts which, if proven, would fall within the Williams exception to Section 74.” Bridge C.A.T. Scan Associates v. Ohio Nuclear Inc., 608 F.Supp. 1187, 1195 (S.D.N.Y.1985).

Shoe World suggests that there are several facts in dispute that' should prevent this Court from granting summary judgment. For example, it argues that El Greco’s “malice and bad faith” can be inferred from the omission of certain facts from its complaint, e.g., the existence of prior dealings between the parties. Shoe World’s Brief at 14-15; see also Shoe World’s 3(g) Statement at ¶ 6. While these omissions may have skewed El Greco’s presentation of its case, they do not support the inference that “the entire lawsuit was maliciously instituted for the purpose of disseminating defamatory material to the press.” The Savage Is Loose Co. v. United Artists Theatre Circuit, Inc., 413 F.Supp. 555, 561 n. 3 (S.D.N.Y.1976). The same must be said of Shoe World’s argument that the use of the word “counterfeit” was too extreme: “a simple allegation of trademark infringement would have been sufficient.” Shoe World’s Brief at 14. Although I have already stated that this usage was troublesome, see p. 5 supra, I cannot conclude that the Williams exception to an otherwise absolute privilege, see Williams, supra, 23 N.Y.2d at 597-98, 298 N.Y.S.2d at 477-78, 246 N.E.2d at 335-37, was meant to extend to every overzealous but ultimately unsuccessful litigant.

A far more troubling accusation made by Shoe World is that El Greco deliberately delayed the filing of this lawsuit and the attendant publicity of the Footwear News article “to coincide with the National Shoe Show and Volume Retailers Shoe Show held in New York City in December 1983 in order to ensure rapid and widespread dissemination of [El Greco’s] defamatory statements to the footwear trade.” Shoe World’s 3(g) Statement at If 8; see also April 26, 1985 Affidavit of Paul Gussin at ¶¶ 3-7. Such an accusation, if proven, could lead a jury to conclude that this entire lawsuit was a “perversion of judicial proceedings,” Williams, supra, 23 N.Y.2d at 599, 298 N.Y.S.2d at 479, 246 N.E.2d at 337, not within the contemplation of the New York Legislature in enacting Section 74. This accusation, however, is not borne out by the undisputed facts made known to this Court. El Greco’s counsel, attaching contemporaneous documents whose genuineness has not been questioned, has informed the Court that the shoe shows referred to by Shoe World ran from December 3-6 and December 4-7, respectively. May 8, 1985 Affidavit of J. Joseph Bainton at ¶ 3. In view of the fact that this action was not commenced until the 12th of December, and that the Footwear News article did not appear until December 19, Shoe World’s accusation cannot be substantiated and cannot defeat this motion for summary judgment.

Finally, Shoe World cannot rely on the admissions it purports to have extracted from El Greco’s officers. See Shoe World’s Brief at 13-16. Although El Greco’s President, Charles Cole, stated at his deposition that El Greco intended, in filing the suit, to distance itself from the shoes being offered by Shoe World, he explicitly denied that “the sole purpose of this lawsuit [was] to publicize it in ‘Footwear News.’ ” Cole Dep.Tr. at 42. Moreover, the “admissions” of Mark Aarons, one of El Greco’s lawyers, and Morton Cohen, El Greco’s chief financial officer, run contrary to the showing that Shoe World is required to make. Aarons was asked:

Did you consider possible damage to the reputation of Shoe World by characterizing them as dealing in the sale of counterfeit merchandise prior to filing suit?

He responded:

That wasn’t a characterization. They were selling counterfeit goods. Therefore, it required no analysis.

Aaron’s Dep. at 40-41. Similarly, Cohen was asked:

Did you ever consider the impact on the reputation of Shoe World of filing this suit and labeling them as a counterfeiter or as dealing in counterfeit goods?

He answered:

I never considered that issue. The answer is no.

Cohen Dep.Tr. at 21. While these statements might perhaps be characterized as indicating carelessness or even recklessness on El Greco’s part, they tend to negate, rather than support, the showing of knowing and purposeful bad faith that the Williams standard requires. Thus, they do not support Shoe World’s argument that the application vel non of Williams v. Williams is “a genuine issue for trial.” Fed.R.Civ.P. 56(e).

Shoe World’s second line of argument, that the Footwear News article is not a “fair and true report” within the meaning of Section 74, is also unavailing. The New York Court of Appeals has advised that “[w]hen determining whether an article constitutes a ‘fair and true’ report, the language used therein should not be dissected and analyzed with a lexicographer’s precision.” Holy Spirit Ass’n v. New York Times Co., 49 N.Y.2d 63, 68, 424 N.Y.S.2d 165, 167, 399 N.E.2d 1185, 1187 (1979). There is no dispute that the article is a “substantially accurate” rendering of the allegations of El Greco’s complaint. Holy Spirit, 49 N.Y.2d at 67, 424 N.Y.S.2d at 167, 399 N.E.2d at 1187. Shoe World argues, however, that in addition to providing Footwear News with a copy of the complaint in this action, Neil Cole, then Executive Vice-President of El Greco, “added further allegations not contained in the court papers____” Shoe World’s Brief at 7. Bearing in mind the teaching of Holy Spirit, this Court finds that these further allegations “constitute[ ] background to the misconduct attributed to [Shoe World] in the complaint, Ford v. Levinson, 90 A.D.2d 464, 454 N.Y.S.2d 846, 848 (1st Dep’t 1982), and thus do not remove the article from the protection of Section 74.

Shoe World argues finally that even if the statements in the Footwear News article are deemed privileged under Section 74, its cause of action for defamation should be upheld insofar as it alleges other defamatory statements made by El Greco officers independently of that article. In making its argument, Shoe World relies on its use of the words “and otherwise” in ¶ 34 of its answer. Shoe World’s Brief at 10. El Greco is correct in responding that this argument runs afoul of New York C.P.L.R. 3016(a) (McKinney’s 1974), which requires:

In an action for libel or slander, the particular words complained of shall be set forth in the complaint____

See, e.g., Catterson v. Caso, 472 F.Supp. 833, 840 (E.D.N.Y.1979) (“C.P.L.R. 3016(a) requires the plaintiff in a libel and slander action to set forth the particular words complained of. Plaintiff having failed to do so, his defamation cause of action must be dismissed.”).

Shoe World’s counterclaim for defamation will be dismissed.

B. Trade Defamation and Disparagement

Shoe World’s second counterclaim is based on the same facts as its first counterclaim, Shoe World’s Answer at U 46, adding only that the reputation of Shoe World’s products has been damaged as well. Accordingly, both parties have treated these claims as succeeding or failing together. In view- of the fact that N.Y.Civ.Rights L. § 74 applies equally to defamation and trade libel suits, Bridge C.A.T. Scan, supra, 608 F.Supp. at 1193 n. 15, and in view of my determination as to Shoe World’s first counterclaim, Shoe World's second counterclaim must also be dismissed.

C. Tortious Interference

Shoe World’s third counterclaim is pleaded under the heading, “Tortious Interference.” Apparently believing this counterclaim to allege tortious interference with contractual relations, El Greco’s original moving papers urged dismissal because of Shoe World’s failure to specify the particular contract on which it based its claim. In response, Shoe World has explained that its action is one for tortious interference with business relations, a tort also known as “interference with either economic advantage, prospective advantage ... or pre-contractual relations.” Martin Ice Cream Co. v. Chipwich, Inc., 554 F.Supp. 933, 945 (S.D.N.Y.1983). The elements of this tort are as follows:

[T]he defendant’s interference with business relations existing between the plaintiff and a third party, either with the sole purpose of harming the plaintiff or by means that are “dishonest, unfair or in any other way improper.”

Id., quoting Robbins v. Ogden Corp., 490 F.Supp. 801, 811 (S.D.N.Y.1980).

Even under this theory, however, Shoe World’s complaint, considered along with the affidavits presented to the court in response to this motion for summary judgment, is insufficient. “[Ijnterference with precontractual relations is actionable when a contract would have been entered into had it not been for the conduct of the defendant.” Robbins, supra, 490 F.Supp. at 811. Shoe World’s claim is deficient in failing to identify a particular contract or set of contractual negotiations that are the basis of this action. Moreover, it has failed to offer any facts which, if proved at trial, would show that this contract would have been entered into but for El Greco’s interference. Because Shoe World has not set forth “specific facts showing that there is a genuine issue for trial,” Fed.R.Civ.P. 56(e), its third counterclaim will also be dismissed.

D. Unfair Competition

In arguing that its counterclaim for unfair competition should be upheld, Shoe World cites Diehl & Sons, Inc. v. International Harvester Co., 445 F.Supp. 282 (E.D.N.Y.1978). In Diehl, the court upheld, against a motion to dismiss, “a claim for unfair competition by disparagement, which has been described as a species of the tort of injurious falsehood.” 445 F.Supp. at 291. The court went on to explain that “[t]he gist of the tort ... is the interference with the prospect of sale or some other advantageous relation.” Id., quoting W. Prosser, Torts § 128, at 919-20 (4th ed. 1971) (footnotes omitted). From this description, it appears that this claim is redundant to Shoe World’s second and third counterclaims, cf. Fed.R.Civ.P. 12(f), and must be dismissed for the same reasons. Even if this claim is somehow independent, it is plain that it must be dismissed for its failure to allege special damages “with sufficient particularity.” Diehl, 445 F.Supp. at 292. See p. 17 infra.

E. Prima Facie Tort

Shoe World’s fifth counterclaim is an action for prima facie tort. Prima facie tort has four elements:

(1) intentional infliction of harm,
(2) causing special damages,
(3) without excuse or justification,
(4) by an act or series of acts that would otherwise be lawful.

Curiano v. Suozzi, 63 N.Y.2d 113, 117, 480 N.Y.S.2d 466, 469, 469 N.E.2d 1324, 1327 (1984). In Cutiano, the New York Court of Appeals found plaintiffs’ complaint to be “insufficient to state a cause of action for prima facie tort insofar as it fails to plead special damages.” Id. The same conclusion must be reached with regard to Shoe World’s counterclaim. Shoe World’s complaint alleges damages to its business, reputation and good will “in an amount not less than $42,000,000. Shoe World’s Answer at ¶ 66. However, “[s]pecial damages must be alleged with sufficient particularity to identify actual losses.” Lincoln First Bank of Rochester v. Siegel, 60 A.D.2d 270, 400 N.Y.S.2d 627, 633 (4th Dep’t 1977). As one New York court has stated in dismissing a claim for prima facie tort, “damages pleaded in such round sums without any attempt at itemization, must be deemed allegations of general damages.” Leather Development Corp. v. Dun & Bradstreet, Inc., 15 A.D.2d 761, 224 N.Y.S.2d 513, 514 (1st Dep’t) app. dismissed, 12 N.Y.2d 668, 233 N.Y.S.2d 461, 185 N.E.2d 901 (1962) aff'd, 12 N.Y.2d 909, 237 N.Y.S.2d 1007, 188 N.E.2d 270 (1963).

F. Abuse of Process

Shoe World’s sixth and final counterclaim against El Greco alleges abuse of process. There are three elements to a claim of abuse of process:

(1) regularly issued process, civil or criminal,
(2) an intent to do harm without excuse or justification, and
(3) use of the process in a perverted manner to obtain a collateral objective.

Curiano v. Suozzi, 63 N.Y.2d 113, 116, 480 N.Y.S.2d 466, 468, 469 N.E.2d 1324, 1326 (1984). Shoe World alleges that El Greco wrongfully obtained a temporary restraining order by misleading this Court into believing that Shoe World was counterfeiting El Greco’s shoes. Because of the temporary restraining order, Shoe World argues, it was wrongfully compelled to discontinue its sale of CANDIE’S shoes and suffered harm to its good will and reputation.

Although Shoe World has alleged the first two elements, it has failed to allege “[t]he gist of the action for abuse of process” which is “the improper use of process after it is issued.” Dean v. Kochendorfer, 237 N.Y. 384, 390, 143 N.E. 229 (1924). It is not enough that El Greco acted with malicious intent in seeking or obtaining a TRO: “[a] malicious motive alone ... does not give rise to a cause of action for abuse of process.” Curiano, supra, 63 N.Y.2d at 117, 480 N.Y.S.2d at 468, 469 N.E.2d at 1326. Nor is it sufficient that the TRO, which, while effective, forbade Shoe World from selling CANDIE’S shoes, was subsequently found to be unjustified. This was the very purpose for which the TRO was granted. Under New York law, an action for abuse of process lies only “[wjhere process is manipulated to achieve some collateral advantage, whether it be denominated extortion, blackmail or retribution.” Board of Education v. Farmingdale Classroom Teachers Ass’n, 38 N.Y. 397, 404, 380 N.Y.S.2d 635, 643, 343 N.E.2d 278, 283 (1975). The remedy for damages from a TRO wrongfully obtained but properly implemented lies elsewhere. See N.Y.C.P.L.R. 6315 (McKinney’s 1980); cf. Fed.R.Civ.P. 65(c).

Shoe World argues that it has attributed to El Greco the “collateral objective” of “wrongfully causing false, defamatory, and derogatory statements to be made and to be published about Shoe World.” Shoe World’s Answer at ¶ 33. El Greco responds with some force that this argument is an impermissible attempt to assert a defamation claim otherwise found to be barred. Without reaching this question, it is clear that this allegation still does not set forth a cause of action for abuse of process. As one New York court has put it, “Embarrassment in business resulting to the parties being sued is not beyond the area of legitimate use of process—” Reiner v. Kane, 25 Misc.2d 477, 197 N.Y. S.2d 330, 334 (Sup.Ct.1960). An action for abuse of process must include some element of extortion, an element lacking in Shoe World's complaint. Compare Cardy v. Maxwell, 9 Misc.2d 329, 169 N.Y.S.2d 547, 549-50 (Sup.Ct.1957) (claim for abuse of process upheld on allegations that “defendants inserted in the complaint ... allegations regarding plaintiff which, if published, would expose him to public ridicule and contempt,” that “defendants ... threatened plaintiff with adverse newspaper publicity unless he paid several million dollars to them to withhold further action by them,” and that “defendants caused the ... allegations of the complaint to be given extensive and lurid publicity when plaintiff refused to comply with their demands”).

Finally, it has been held that “to sustain [an action for abuse of process] plaintiff must allege ... actual or special damages.” Board of Education, supra, 38 N.Y.2d at 405, 380 N.Y.S.2d at 644, 343 N.E.2d at 284. As has already been explained, see p. 1045 supra, Shoe World’s allegations in this regard are insufficient. Thus, this counterclaim must be dismissed as well. Conclusion

For the reasons stated above, the Rule 11 motions of Shoe World and El Greco are denied; El Greco’s motion for summary judgment is granted.

      . Shoe World’s motion is also denied insofar as it relies on 15 U.S.C. § 1117 (1982).


author: COHILL, Chief Judge.

text:
    James TOMALLO, Plaintiff, v. Margaret M. HECKLER, Secretary of Health and Human Services, Defendant.
    Civ. A. No. 83-1482.
    United States District Court, W.D. Pennsylvania.
    Dec. 11, 1985.

      Robert N. Peirce, Jr., Pittsburgh, Pa., and Barkan & Neff, Columbus, Ohio, for plaintiff.
    Albert W. Schollaert, Asst. U.S. Atty., Pittsburgh, Pa., and Charlotte Hardnett, Asst. Regional Atty., Health and Human Services, Region III, Philadelphia, Pa., for defendant.
   MEMORANDUM OPINION

COHILL, Chief Judge.

I.

Plaintiff, James Tomallo, brought this action pursuant to 42 U.S.C. § 405(g) seeking judicial review of the Secretary’s final decision denying Plaintiff’s claim for disability benefits. Summary judgment subsequently was entered for Plaintiff and against Defendant.

Presently before the Court is a petition for attorney’s fees pursuant to 42 U.S.C. § 406(b)(1) filed by Plaintiff’s counsel of record, Robert N. Peirce, Jr., on his own behalf and on behalf of the law firm of Barkan & Neff, which served as “of counsel.”

II.

42 U.S.C. § 406(b)(1) provides in pertinent part that:

Whenever a court renders a judgment favorable to a claimant under this sub-chapter who was represented before the Court by an attorney, the court may determine and allow as part of its judgment a reasonable fee for such representation, not in excess of 25 percent of the total of the past-due benefits to which the claimant is entitled by reason of such judgment____

In general, those standards and procedures set forth in Lindy Bros. Builders, Inc. of Philadelphia v. American Radiator & Standard Sanitary Corp., 487 F.2d 161 (3d Cir.1973) (Lindy I), Lindy Bros. Builders, Inc. of Philadelphia v. American Radiator & Standard Sanitary Corp., 540 F.2d 102 (3d Cir.1976) (en banc) (Lindy II), and their progeny govern the award of attorney’s fees in social security disability cases in this circuit. Kovach v. Heckler, 613 F.Supp. 84 (W.D.Pa.1985).

Under those standards, the Court first must determine how many hours were reasonably spent, by whom, and in what manner. Lindy I, 487 F.2d at 167. Next, the Court must determine the reasonable hourly value of those services. Such determinations must be made for each attorney and for every category of activity. Different categories of activity might require different hourly rates. Id.

The district court can approve counsel’s requests for fees only for services performed in the trial or appellate courts; it cannot award fees for services performed at the administrative level before the Secretary. Guido v. Schweiker, 775 F.2d 107 (3d Cir.1985). A separate application must be made to the Secretary for services performed in the administrative phase. Id. However, the aggregate of the fees awarded by the district court and by the Secretary may not exceed the statutory maximum of 25% of the claimant’s past-due benefits. Campbell v. Heckler, 603 F.Supp. 1388, 1390 (M.D.Pa.1985); Kemp v. Schweiker, 587 F.Supp. 778 (W.D. Pa.1984); Oroshnik v. Schweiker, 569 F.Supp. 399, 400 (D.N.J.1983).

Hours claimed for preparation of fee petitions pursuant to § 406(b)(1) do not benefit the claimant, whose recovery is being reduced by the fee award, and therefore cannot be compensated. See Snizaski v. Heckler, 602 F.Supp. 1119 (W.D.Pa.1985) (Snizaski I).

The fee applicant has the burden of producing evidence supporting the hours worked and rates claimed, Hensley v. Eckerhart, 461 U.S. 424, 433, 437, 103 S.Ct. 1933, 1939, 1942, 76 L.Ed.2d 40 (1983); M.S.R. Imports, Inc. v. R.E. Greenspan Co., Inc., 574 F.Supp. 31, 33 (1983), as well as the burden of persuasion, see In re Fine Paper Antitrust Litigation, 751 F.2d 562, 585 (3d Cir.1984). See also Kovach v. Heckler, 613 F.Supp. at 86. He must establish the fact that the time was indeed expended and that it was necessary to achieve the results obtained. See Hensley v. Eckerhart, 461 U.S. at 440-41, 103 S.Ct. at 1943-44 (Burger, C.J. concurring).

The product of the number of hours reasonably expended and the reasonable hourly rate of compensation yields what is known as the “lodestar,” the presumed reasonable fee. Blum v. Stenson, 465 U.S. 886, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984).

Once it has determined the lodestar, the Court must take two other factors into consideration before making a final determination of the attorney’s fee award. It must determine the contingent nature of success—that is, the probability of success, viewed at the time of filing the suit, and the quality of the work performed by counsel and then, if necessary, adjust the lodestar accordingly by means of an appropriate multiplier. Lindy I, 487 F.2d at 168-69; Lindy II, 540 F.2d at 116-18. The contingency factor involves an assessment of the legal and financial burdens assumed by Plaintiff and his counsel in pursuing the action. See Lindy II, 540 F.2d at 117. Contingency of success can properly justify a lodestar increase but not a decrease. Delaware Valley Citizens’ Council for Clean Air v. Pennsylvania, 762 F.2d 272 (3d Cir.1985); Institutionalized Juveniles v. Sec. of Pub. Wei, 758 F.2d 897, 922 (3d Cir.1985); Hall v. Borough of Roselle, 747 F.2d 838, 842-43 (3d Cir.1984). See Hughes v. Repko, 578 F.2d 483, 488 (3d Cir.1978) (contingency factors may not be used to decrease the amount of the final fee award).

Unlike the contingency factor, the quality factor can be used to reduce the lodestar figure as well as increase it. Lindy II, 540 F.2d at 118. The test for determining when a quality multiplier is appropriate is whether the lawyer discharged his professional burden with a degree of skill above or below that expected of lawyers of the caliber reflected in the hourly rate charged. Id. An upward adjustment is appropriate only in the rare case where the fee applicant offers specific evidence to show that the quality of service rendered was superior to that which one reasonably should expect in light of the hourly rates charged and that the success was "exceptional.” Blum v. Stenson, 104 S.Ct. at 1549.

The court must have a factual basis for its fee determination. Cunningham v. City of McKeesport, 753 F.2d 262, 267 (3d Cir.1985). Because the fee applicant is seeking money payment, the factual basis should be in the form of sworn averments. See 8 ATTORNEY FEE AWARDS REP. (HB&J) No. 3 at 4 (June 1985). See also Hensley v. Eckerhart, 461 U.S. at 433, 103 S.Ct. at 1939 (The party seeking an award of fees should submit evidence supporting the hours worked and rates claimed); Raneo Industrial Products Corp. v. Dunlap, 776 F.2d 1135, 1140 (3d Cir.1985) (There must be some indication of record as to the reasonableness of the claimed attorney’s fee); Allen v. Heckler, 588 F.Supp. 1247, 1250, 1251 (W.D.N.Y. 1984). The fee applicant will meet his burden of proceeding by submitting an application accompanied by sufficiently detailed verified supporting documentation. National Association of Concerned Veterans v. Secretary of Defense, 675 F.2d 1319, 1337 (D.C.Cir.1982) (Tamm, J. concurring). The burden of proceeding then shifts to the party opposing the fee award to submit equally specific countervailing evidence as to why the applicant’s request should be reduced or denied. National Association of Concerned Veterans v. Secretary of Defense, 675 F.2d at 1337-38. See also Cunningham v. City of McKeesport, 753 F.2d at 267.

In statutory fee cases, the court may not disregard uncontested affidavits filed by a fee applicant after the opposing party has been afforded the opportunity to raise a material fact issue. Id. However, in social security disability cases where attorney’s fees are sought pursuant to 42 U.S.C. § 406(b)(1), as in fund-in-court cases, the court has an independent duty to scrutinize the fee petition because of the potential for conflicts of interest between the attorney seeking compensation and his client. Bailey v. Heckler, 621 F.Supp. 521, 523 (W.D.Pa.1985); Kovach v. Heckler, 613 F.Supp. at 86; Snizaski v. Heckler, 610 F.Supp. 529, 531 (W.D.Pa.1985) (Snizaski II). Even so, the court cannot, on its own, without a record basis, reject lodestar hours as unreasonable, except as to those hours of which the court has personal knowledge. Cunningham v. City of McKeesport, 753 F.2d at 267.

III.

Petitioner has failed to meet his burden. Although he has submitted to the court documentation in support of his claim, those materials are not verified and thus cannot be considered as evidence of the reasonableness of the requested fee.

Accordingly, petitioner will be granted leave to amend its application for attorney’s fees, supporting it with facts presented by affidavit or by declaration under penalty of penury.


author: MENTZ, District Judge.

text:
    Angela MARTINEZ v. Richard REED, et al.
    Civ. A. No. 85-3310.
    United States District Court, E.D. Louisiana.
    Dec. 11, 1985.

      Ruben J. Bailey, New Orleans Legal Assistance Corp., Marrero, La., Mark A. Moreau, New Orleans Legal Assistance Corp., New Orleans, La., Ellis B. Murov, McGlinchey, Stafford, Mintz, Cellini & Lang, New Orleans, La., for plaintiff.
    Terrence L. Hauver, Sessions, Fishman, Rosenson, Boisfontaine, Nathan & Winn, New Orleans, La., for defendants.
   MEMORANDUM OPINION

MENTZ, District Judge.

On Tuesday, October 15, 1985, this matter came before the Court pursuant to 28 U.S.C. 1738A, which is the federal act giving full faith and credit to certain child determination decrees that have been made in accordance with that act. This statute was enacted in 1980, and therefore is applicable to this action.

This child custody dispute arises between Angela Martinez, a foreign national and citizen of Mexico, and Richard and Patricia Reed, residents of Opelika, Alabama, each claiming the right of custody of Ms. Martinez’s male child. The child, an American citizen by birth, is referred to by his natural mother as “Maieo Lopez Martinez” and by his custodial parents as “Richard Clayton Reed.” The “Reeds” claim they entered into an agreement with Ms. Martinez to adopt her unborn child and that on April 23, 1984, they took physical custody of the new born child and returned to their home in Opelika, Lee County, Alabama. Angela Martinez now claims she never intended to give up her child for adoption and it was never made clear to her that that was the agreement into which she had entered.

The Reeds instituted a temporary custody proceeding in Alabama on June 15,1984. On November 19, 1984, the Alabama court awarded the Reeds temporary custody of the child. On October 19, 1984, the plaintiff filed a writ for habeas corpus in the Twenty-fourth Judicial District Court of the Parish of Jefferson, Louisiana, which was transferred to Civil District Court of the Parish of Orleans, Louisiana. After a hearing on the merits, the Louisiana Court on March 12, 1985, ordered the child be returned to his natural mother.

Conflicting custody decrees have been handed down by the State of Alabama and the State of Louisiana in reference to Maieo Lopez Martinez. This Court’s purpose is to determine which state made its custody determination consistently with the provisions of 28 U.S.C. § 1738A, commonly referred to as the Federal Parental Kidnapping Prevention Act. This district court has federal question subject matter jurisdiction over plaintiff’s claim brought under the Federal Parental Kidnapping Prevention Act. See Heartfield v. Heartfield, 749 F.2d 1138 (5th Cir.1985) (District Court had federal question jurisdiction to enforce compliance with provisions of the PKPA where courts of two states asserted jurisdiction over a custody determination).

At the inception of the October 1985 hearing, the Court had indicated to counsel that it would consider the testimony and exhibits adduced in Alabama’s hearing and the testimony and exhibits adduced in the Louisiana hearing. The Court also requested certain witnesses to testify for the purpose of finding out what was the intention of Ms. Martinez in executing the two written acts in anticipation of adoption and the posture of the parties during that period of time. After considering the memoranda, pleadings, exhibits, the two state court records, the live testimony, and the documents submitted in this matter and based on the record and the law, the Court rendered oral reasons in open court on October 17, 1985 ruling that the Louisiana court had made its custody determination consistently with the Parental Kidnapping Prevention Act, 28 U.S.C. § 1738A but that the Alabama Court had not made its custody determination consistently with said Act. This opinion provides written reasons supporting this Court’s October 1985 ruling. To the extent that overlap exists between them, the Court’s findings and conclusions are to be treated interchangeably.

FINDINGS OF FACT

I.

Upon consideration of the testimony of Mrs. Rosario Lopez of Chicago, Dona Marie Martin of Marrero, the social worker, Mrs. Nasralla, the Reeds’ attorney, Mrs. Zoe Smith Wong, and Doctor Sarano of New Orleans, it appears that Ms. Martinez’ expressed intention was to leave Chicago and come to New Orleans in April of 1984 to have her unborn baby adopted in a good home.

II.

The Court finds that the two written documents executed April 5, 1984, (the letter signed by Angela Martinez authorizing West Jefferson Hospital to release Ms. Martinez’s child to Ms. Wong, the attorney representing the adopting parents) and April 23, 1984, (the document signed by Ms. Martinez granting sole custody to the Reeds in anticipation of adopting the new born child) were signed by Mrs. Martinez with her full consent and of her own free will and accord.

III.

The child in question was born at West Jefferson Hospital on April 21, 1984. It is apparent that between the baby’s birth and May 11, 1984, Ms. Martinez changed her intention for some reason when she refused to sign the act of voluntary surrender. On May 11, 1985, Attorney Kathy Lampart was acting as her advisor.

IV.

It was known by all parties that the act of voluntary surrender under the Louisiana adoption act could not be legally signed for at least five days after the birth of the child. Louisiana Revised Statutes, Title 9, Section 422.7. Some of these persons also were aware that the mother could change her mind during the 30-day period following the execution of the act of voluntary surrender and thereby reclaim the child. R.S. 9:422.10.

V.

The judgment rendered by the Civil District Court of the Parish of Orleans in Louisiana puts much emphasis on the fact that the Notarial Act of April 23, 1984, does not comply with the formal act of surrender as established by Louisiana Revised Statutes 9:422 et seq. However, this act of April 23, 1984 was not and could not have been intended as anything more than a custody agreement upon which the Alabama Court relied in issuing its decree.

VI.

The Court is of the opinion that Ms. Martinez has a basic knowledge of the English language, even though she has been depicted as knowing only Spanish. As a matter of fact, she answered one of the judge’s questions before her interpreter translated it for her. It is hardly possible that she could have lived in the United States of America for five years without learning some basic English, considering the easy accessibility to television, radio and other media by the public.

VII.

The Court finds that Angela Martinez’ testimony was impeached by a series of witnesses, as named in paragraph one of this opinion, and in particular by Mary Martin’s testimony in which Mrs. Martin demonstrated for the Court how she translated these instruments from English to Spanish line by line to Ms. Martinez. The natural mother’s statements that she understood the first document to be an agreement providing for the care of her children in the event that she died, and that the second document was only to provide shots for the baby, lack factual basis.

VIII.

The Court finds that the Alabama law relative to the Alabama Uniform Child Custody Jurisdiction Act codified at Alabama Code § 30-3-20 et seq. and the Louisiana Uniform Child Custody Jurisdiction Act codified at LSA R.S. 13:1700 et seq. are substantially the same.

IX.

The Uniform Child Custody Jurisdiction Act (“UGCJA”) cross annotation shows that said Act has been adopted by both Alabama and Louisiana.

X.

Although Angela Martinez did not probably realize it, she may have been in a better legal position had she signed the formal act of surrender on May 11, 1984, thus guaranteeing her thirty days to change her mind.

XI.

The Court takes judicial notice that many mothers who choose to give their natural child up for adoption often do change their mind and decide to reclaim their child. Since the Louisiana law would allow Ms. Martinez to change her mind within thirty days after the execution of an act of formal surrender, the Court finds that she has the right to change her mind during the period prior to the execution of the act of surrender. The Court further notes that no contention has been made in this particular action as to any possible unfitness of Angela Martinez.

XII.

The Alabama welfare report of August 28, 1984, made in connection with the juvenile court proceedings before the Honorable James Noel Baker of Alabama indicates that the Reed family have all of the facilities to provide this child with a fine upbringing. They have demonstrated in many ways their love for this child. The most traumatic part of this whole matter will be if the baby is removed from the Reed household. No matter what the ultimate outcome of this custody dispute is, “Richard Clayton Reed”, will undoubtedly be the “big loser” in this whole process.

XIII.

It has been suggested that Ms. Martinez has been victimized by the very people who pretended to befriend her; however, the testimony adduced indicates that more than likely, the opposite is true. Moreover, Angela Martinez has had expended for her benefit, and for the benefit of the baby, the life savings of a fine couple whose only fault was their desire to have a child.

XIV.

This case has been full of emotionalism and the Court is well aware of the concern that both parties have for this particular child. However, the Court is required to decide a legal question and must pass upon this matter based upon the existing law.

CONCLUSIONS OF LAW

I.

The legal issue the Court is faced with is whether Alabama properly exercised jurisdiction consistently with the provisions of 28 U.S.C. Section 1738A, which gives full faith and credit to custody determinations made in accordance with that act.

II.

The Parental Kidnapping Prevention Act was enacted to prevent jurisdictional conflict and competition over child custody and to deter parents or other contestants from “abducting” or removing a child for the purpose of obtaining custody awards. See Peterson v. Peterson, 464 A.2d 202 (Me.1983).

III.

No condition of wrongdoing is necessary to invoke the provisions of 28 U.S.C. § 1738A. Patricia R. v. Andrew W, 121 Misc.2d 103, 467 N.Y.S.2d 322 (N.Y.Fam.Ct.1983).

IV.

Both the states of Alabama and Louisiana have almost identical statutes in relation to the Uniform Child Custody Jurisdiction Act and the federal act. Moreover, the PKPA and the UCCJA govern interstate child custody disputes. Ex parte Blanton, 463 So.2d 162, 164 (Ala.1985); Applegate v. Gant, 460 So.2d 1293, 1294 (Ala.Civ.App.1984); Ex parte Lee, 445 So.2d 287, 291 (Ala.Civ.App.1983). To the extent that the Federal Parental Kidnapping Prevention Act differs from the UCCJA, the difference must be determined in favor of the federal version, for it prevails in the event of conflict between federal and state statutes. Ex parte Blanton, supra; Applegate v. Gant, supra; Ex parte Lee, 445 So.2d at 290, 291. In other words, if either state’s statutes are inconsistent with the federal act, federal law is considered supreme and questions of jurisdiction arising in interstate child custody matters must be decided by reference to the PKPA. Ex parte Blanton, 463 So.2d at 164; Ex parte Lee, 445 So.2d at 291. Therefore, in this regard, the Court has studied in depth the language of 28 U.S.C. § 1738A.

V.

The federal act states in pertinent part in Section (c) that, “A child custody determination made by a court of a state is consistent with the provisions of this section only if,

(1) The court has jurisdiction; and
(2) That one of the following conditions is met:
(A) Such state (i) is the home state of the child on the date of the commencement of the proceeding or, (ii) had been the child’s home state within six months before the date of the commencement of the proceeding and the child is absent from such state because of his removal or retention by a contestant or for other reasons and a contestant continues to live in such state.”

(emphasis added). There are additional sections or conditions, (B), (C), and (D), of the statute which the Court finds not to be applicable to the present fact situation.

VI.

The federal statute defines the term, “home state” to mean

the state in which immediately proceeding the time involved, the child lived with parents, a parent, or a person acting as parent for at least six consecutive months, and in the case of a child less than six months old, the state in which the child lived from birth with any such persons. Periods of temporary absence of any such persons are counted as part of the six months or other period.

28 U.S.C. § 1788A(b)(4)

VII.

The child was born in Louisiana on April 21, 1984, and, two days later, was removed by Mr. and Mrs. Reed to the state of Alabama. Whether Ms. Martinez knowingly gave consent to the Reeds to remove the child for custody purposes is actually immaterial in relation to applying the federal act. The Court, however, does realize that the removal, the factual details of the intent behind the removal and whether said intent was made in bad faith would be material from the standpoint of the Alabama court. The legal issue present before this Court is whether the Alabama court exercised jurisdiction over the child consistently with the provisions of the federal act.

VIII.

The Court finds that the Alabama court did have jurisdiction over the child in June of 1984. A.L. § 12-15-30. Alabama has an obligation to protect and care for children who are present in the state without a guardian. Alabama appointed a guardian ad litem, and then held a hearing to determine who should take care of the child at that time. The Alabama court awarded the Reeds’ temporary custody of the child in order that he would have proper shelter and medical care until this conflict could be resolved. A simple reading of 28 U.S.C. 1738A(b)(3) shows that, regardless of whether the Alabama court’s decree was temporary or final, it was a custody determination within the meaning of the PKPA because it was “ ‘an order of a court providing for custody’ of a child.” Ex parte Blanton, 463 So.2d 162, 165 (Ala. 1985), citing E.E.B. v. D.A., 89 N.J. 595, 605, 446 A.2d 871, 876 (1982), cert. denied, 459 U.S. 1210, 103 S.Ct. 1203, 75 L.Ed.2d 445 (1983). Thus, the Alabama court meets the first requirement—that of jurisdiction. However, the mere filing of an action is not an event giving Alabama absolute and interminable jurisdiction. Ex parte Blanton, 463 So.2d at 165; Peterson v. Peterson, 464 A.2d at 205.

It is interesting to note that at the end of the Alabama hearing, on page 141 of the transcript, one of the last things Judge Baker said was, “So we will wait on Louisiana.” Also, in a letter from Judge Baker dated August 1, 1984, addressed to Mr. Ruben Bailey, the plaintiff’s attorney, Baker states that, “This Court is well aware of the fact that it is only a custodian of this child pending whatever decision is made by the Louisiana Court.” Having found the Alabama court to have jurisdiction, the Court must now determine whether Alabama also meets the “home state” condition previously explained.

IX.

In the case of Ex Parte Sullivan, 407 So.2d 559 (Ala.1981), the Alabama court held that adoption is purely statutory and was unknown to the common law. 407 So.2d 562-63. The courts of Alabama have always required strict adherance to statutory requirements in adoption proceedings. The Sullivan court, citing Davis v. Turner, 337 So.2d 355, 360-61 (Ala.Civ.App. 1976), writ denied, 337 So.2d 362 (Ala.1976), stated that “Because the exercise of sovereign power involved in adoption curtails the fundamental rights of the natural parent, the adoption statutes must be closely adhered to.” 407 So.2d at 563. Louisiana has also clearly spoken on this issue. Adoption statutes, being in derogation of natural rights of the legitimate parent of a child, must be strictly construed and persons proceeding thereunder must strictly comply with it. Roy v. Speer, 249 La. 1034, 192 So.2d 554 (1966). The strict adherence to statutory requirements is applicable to the present acts which are being reviewed.

X.

A reasonable construction of 28 U.S.C. § 1738A clearly indicates that the state of Alabama could not be classified as the home state because the child had been brought to Alabama for the purpose of gaining permanent custody of the child. 28 U.S.C. § 1738A(c)(2)(A)(ii) clearly states that a child’s “home state” is not destroyed by the fact that he or she is removed by a contestant to another state. Even periods of temporary absence of any child are counted as part of the period required for home state status to attach. 28 U.S.C. 1738A(b)(4). Although the June 1984 proceeding in Alabama was filed first, before the natural mother filed her suit in Louisiana on October 19, 1984, the Alabama court’s child custody determination was not made consistently with the provisions of the federal act and, thus, the Reed’s priority in filing their action does not outrank the natural mother’s suit in Louisiana. See Mitchell v. Mitchell, 437 So.2d 122, 126 (Ala.Civ.App.1982).

XI.

The Court finds the natural mother’s suit was filed within six months of the child’s birth in Louisiana. Thus, Louisiana’s “home status” cannot be destroyed by the Reeds’ removal of the child for custody purposes.

XII.

The child was born in Louisiana, the mother, a contestant in this action, still resides here in Louisiana, the voluntary surrender documents were signed here in Louisiana, and it appears that the intention of all parties was that the proposed adoption of Maico Lopez Martinez was to take place here in Louisiana. Further, even if the voluntary surrender act had been properly signed under Louisiana law, the natural mother would have the right to revoke her consent with thirty days of signing. See R.S. 9:422.10. Finally, the Reeds could not and cannot adopt the child in Alabama, as that state requires that a party notify the State Welfare and Pension Department before a child is brought into the state when an adoption of such a non-resident child is intended. The Reeds did not do this. Therefore, their right to adopt the child in Alabama was foreclosed. Thus, only Louisiana can be classified as the “home state”.

XIII.

The Court finds that the Louisiana court has subject matter jurisdiction pursuant to Louisiana Revised Statute 13:1702(A)(1) and is the “home state” pursuant to 28 U.S.C. § 1738A. Therefore, the Louisiana Court exercised jurisdiction consistently with the provisions of the federal act.

CONCLUSION

A strict construction of 28 U.S.C. § 1738A requires the Court to find that the Alabama court did not make its child custody determination consistently with the provisions of the federal act since it does not meet the “home state” condition and thus cannot be allowed to proceed. Since Louisiana has appropriate jurisdiction and is the “home state” under the federal act, only the Alabama juvenile court proceeding shall be stayed and the Louisiana proceeding shall be allowed to continue in its final determination of which contestant should ultimately have custody of the child. Louisiana has exercised jurisdiction consistently with the federal act and the stay as to Louisiana shall be lifted and the state appeal filed by the Reeds shall be allowed to proceed.

ON RECONSIDERATION

On November 27, 1985, the Court heard oral argument on defendants’ motion for new trial and for stay of execution. Defendants’ motion for new trial was DENIED. Counsel for defendants argued that he had not been given an adequate opportunity to brief the legal issue whether neither Alabama nor Louisiana qualified as the “home state”, thereby requiring the Court to consider the alternative jurisdictional tests set forth in 28 U.S.C. § 1738A(c)(2), (B), (C) or (D). The Court ordered the parties to file briefs on this issue by December 6, 1985 at which time the Court would reconsider this issue.

The defendants argued that neither Alabama nor Louisiana could qualify as the “home state” and thus, the Court would be required to consider the next alternative jurisdictional test, 28 U.S.C. § 1738A(c)(2), (B),—the “best interest/substantial connection” test. After careful review of the memoranda submitted by the defendants and plaintiff, the law, the statute and the above reasons, the Court finds that its original ruling of October 17, 1985 is proper and correct. Moreover, the Supreme Court of Alabama in Davis v. Turner, 337 So.2d 362 (1976) held that the “child’s best interest, as a matter of law, lies with its mother absent a finding that the mother is unfit to have custody of her child.” See also Chandler v. Whatley, 238 Ala. 206, 189 So. 751 (1939). No contention has been made in this particular action as to any possible unfitness of the natural mother.

In addition, pursuant to a strict construction of the federal act, Louisiana is the “home state”. The federal act is very rigid, permits the exercise of little or no judicial discretion and seeks to give more certainty to the assumption of jurisdiction by courts in interstate child custody conflicts. Ex parte Lee, 445 So.2d 287, 290 (Ala.Civ.App.1983). Since the definition of “home state” is fixed by 28 U.S.C. § 1738A, this Court lacks jurisdiction to change it. The temporary stay order entered by this Court on November 21, 1985 prohibiting plaintiff from executing this Court’s November 6, 1985 judgment is hereby lifted.

IT IS SO ORDERED.

      . The child’s father is not married to Ms. Martinez and has not made a claim or an appearance.

      . Angela Martinez was referring to her forthcoming child to be born and her daughter, Brenda.

      . After providing for the hospital and medical expenses of Ms. Martinez, as well as the entire expense for the baby for a year and a half, Ms. Martinez may have to recognize this obligation and make restitution in the event that the state court finally decrees that she is entitled to custody.

      . However, as previously acknowledged, the federal law, 28 U.S.C. § 1738A, supersedes state law in determining which state has issued a custody decree consistently with § 1738A when conflicting decrees exist. Ex parte Blanton, 463 So.2d at 164.


author: BUA, District Judge.

text:
    Sally FISCHER, Executor of the Estate of William Hawley, deceased, Plaintiff, v. NORTHWEST AIRLINES, INC., a corporation, Defendant.
    No. 85 C 8432.
    United States District Court, N.D. Illinois, E.D.
    Dec. 12, 1985.
    Robert B. Patterson, Drumke & Patterson, Ltd., Chicago, 111., for plaintiff.
    Robert J. Verrando, James F. Murphy, Conklin & Adler, Ltd., Chicago, 111., for defendant.
   MEMORANDUM ORDER

BUA, District Judge.

Before this Court is defendant Northwest Airlines’ (Northwest) motion to dismiss. Northwest moves to dismiss the complaint for its failure to state a claim upon which relief can be granted pursuant to Federal Rule 12(b)(6). Plaintiff Fischer, executor of the estate of William Hawley, brings this action to recover damages allegedly resulting from Northwest’s negligent operation of its airline. For the reasons stated herein, this Court grants Northwest’s motion to dismiss Counts II and III of plaintiff’s complaint.

FACTS

The following facts are alleged in plaintiff's complaint. They are considered to be true for purposes of this order.

On August 27, 1983, Hawley was a passenger on Northwest’s nonstop flight from Chicago’s O’Hare Airport to Kimpo Airport in Seoul, Korea. Hawley suffered a severe heart attack during the flight. Hawley immediately lapsed into unconsciousness. He never regained consciousness. Hawley died shortly thereafter.

Fischer originally filed her claim in the Circuit Court of Cook County, Illinois. The suit was later removed to this Court.

DISCUSSION

The guidelines used in considering a motion to dismiss a complaint for failure to state a claim are well defined. On a motion to dismiss, a complaint must be construed in the light most favorable to the plaintiff, the allegations thereof being taken as true. Mathers Fund, Inc. v. Colwell, 564 F.2d 780, 783 (7th Cir.1977). A complaint should not be dismissed unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to the requested relief. Cruz v. Beto, 405 U.S. 319, 322, 92 S.Ct. 1079, 1081, 31 L.Ed.2d 263 (1972).

COUNTS II AND III

Northwest moves to dismiss Fischer’s claim for failure to state a claim upon which relief can be granted. Northwest argues that Hawley’s heart attack was not proximately caused by an “accident” and is therefore not compensable under Article 17 of the Warsaw Convention. Fischer contends Hawley’s death was caused by an accident as defined by the Warsaw Convention.

Article 17 of the Warsaw Convention makes air carriers liable for injuries sustained by a passenger “if the accident which caused the damage ... took place on board the aircraft or in the course of any of the operations of embarking or disembarking.” 49 U.S.C.A. § 1502 note. Northwest is liable to Fischer under the terms of the Warsaw Convention only if Fischer can prove that an “accident” was the cause of Hawley’s injury.

In Air France v. Saks,—U.S.-, 105 S.Ct. 1338, 84 L.Ed.2d 289 (1985), the Supreme Court defined the term accident. The court held that liability under Article 17 of the Warsaw Convention arises only if a passenger’s injury is caused by an unexpected or unusual event or happening that is external to the passenger. The Air France court reasoned that an accident does not cause an injury when an injury indisputably results from a passenger’s own internal reaction to the usual, normal, and expected operation of the aircraft.

In the instant case, Hawley’s heart attack and subsequent death were not the result of any unusual or unexpected external event connected with the flight. Hawley’s ill health was an internal disability and was not the result of an unusual or unexpected occurrence connected with the flight. Hawley’s injury does not fall within the scope of injuries contemplated by the Warsaw Convention. Therefore, no accident caused Hawley’s injury and Northwest is not liable under the Warsaw Convention.

Fischer’s second argument asserts that the airline’s refusal to aid Hawley after his heart attack was the “accident” that caused the injury. This Court disagrees. The United States Court of Appeals for the Third Circuit rejected this argument in Abramson v. Japan Airlines, Co., Ltd., 739 F.2d 130 (3d Cir.1984). The Abramson court held that a hernia injury not caused by any external events was internal to the passenger and not an accident under Article 17 of the Warsaw Convention. The court also held that the airline’s refusal to aid the passenger after he suffered the hernia attack was not an accident. The Third Circuit found that the failure to aid the stricken passengers was not an occurrence tantamount to other occurrences treated as “accidents” under the Convention. Id. at 132-133.

COUNT I

Finally, Fischer argues that her complaint should not be dismissed in its entirety. Fischer claims Count I of the complaint alleges a cause of action for negligence independent of the Warsaw Convention claim. Moreover, Fischer argues that Count I states a claim upon which relief can be granted. This Court agrees.

Fischer’s complaint clearly sets forth a negligence action alleging Northwest breached its common law duty to exercise reasonable care to its passengers. This Court must treat all well-pleaded facts as true. Under the pleaded facts, a fact finder could find that it was unreasonable for Northwest not to land its airplane at the nearest available airport. In addition, a jury could find that the airplane lacked sufficient medical equipment. Finally, a fact finder could find that Northwest unreasonably failed to contact its ground personnel to obtain medical assistance. Consequently, Northwest’s motion to dismiss Count I is denied.

CONCLUSION

Northwest’s motion to dismiss Count I is denied because Fischer properly pleaded a negligence action. Counts II and III of Fischer’s complaint are dismissed for failure to allege facts sufficient to establish that an “accident” caused Hawley’s heart attack.

IT IS SO ORDERED.