text:
    HARTWICK COLLEGE, Aurelia Osborn Fox Memorial Hospital Society and Railroad and Local Men’s Christian Association of Oneonta, Plaintiffs, v. UNITED STATES of America, Defendant.
    No. 81-CV-281.
    United States District Court, N.D. New York.
    Feb. 25, 1985.

      Herzog, Nichols, Engstrom & Koplovitz, Albany, N.Y., for plaintiffs; James M. Reilly, Albany, N.Y., of counsel.
    Frederick J. Scullin, Jr., U.S. Atty., Syracuse, N.Y., for defendant; Louis J. Lombardo, Tax Div. Atty., Dept. of Justice, Washington, D.C., of counsel.
   McCURN, District Judge.

MEMORANDUM-DECISION AND ORDER

This is an action by four residuary beneficiaries of the Dewar estate to recover an alleged overpayment of income taxes by the estate for the taxable year ending April 30, 1977. Presently before the court is a motion to determine the proper method of calculating the estate’s charitable deduction for income tax purposes under section 642(c)(2) of the Internal Revenue Code. For the reasons set forth below, the court holds that “interrelated computations” is not appropriate for calculating the estate’s charitable deduction for income tax purposes and the estate is entitled to a “straight charitable deduction”.

BACKGROUND

The court has considered the merits of the present action on two previous occasions. Briefly, the facts are as follows: Jessie Smith Dewar died testate on May 28, 1976, leaving an estate of approximately $49 million. Her will provides that first, all debts, expenses, and taxes be paid from the general estate; second, specific bequests be made to the named beneficiaries; and last, the residuary estate be divided among five named charitable organizations. After paying approximately $34 million in administrative expenses and taxes, no funds were left in the residuary estate and a deficit of $304,534.19 remained, necessitating an abatement of the non-residuary beneficiaries’ distributions.

For the year ending on April 30, 1977, the estate reported a taxable income of $2,431,065.00 and paid $1,728,879.00 in income taxes. The estate did not claim a charitable deduction on the fiduciary federal income tax return because no residuary estate for the charities was left after the administrative costs and taxes were paid.

Plaintiffs in the present action are four of the charitable organizations named as residuary beneficiaries in the Dewar will. On March 5, 1980, they filed an amended income tax return for the estate requesting a refund. The Internal Revenue Service took no action. On March 27, 1981, plaintiffs filed the current action to recover the overpayment of the estate’s 1976 income taxes. The complaint alleges that all of the estate’s earned income qualified for the charitable deduction provided by section 642(c)(2) of the Internal Revenue Code, 26 U.S.C. § 642(c)(2). The deduction, if allowed, would leave money in the residuary estate for the residuary beneficiaries.

In a ruling from the bench, the court granted plaintiffs summary judgment. The court held that “(b)y naming the charities in the residuary clause, without conditions or contingencies, she (the testatrix) ‘permanently set aside’ the amount of income that would constitute the residuary estate.” The estate was therefore entitled to a charitable deduction in the amount that the residuary beneficiaries would have received. An order was signed on March 15, 1984, and further proceedings to determine the amount of the income to be refunded were scheduled.

The court subsequently vacated the March 15, 1984 order on defendant’s motion for reconsideration because the order did not accurately reflect the court’s oral ruling. In its May 31, 1984 decision, the court states, “Thus, the court was of the view then (referring to the court’s previous oral decision), as it is now, that the amount of the estate income which was ‘permanently set aside’ for charitable purposes was not the entire $2.4 million reported as ‘taxable income’ on the fiduciary return, but only the amount that the residuary beneficiaries would have received but for the income tax." The court noted that the $304,534.19 deficit, abated from the non-residuary beneficiaries’ distributions, “would have to be paid, with after-tax dollars, from the estate income before the amount of income that would have constituted the residuary estate could be ascertained”. The court ordered the matter referred to a special master for a hearing on the “calculation of the amount of deduction to which the estate is entitled and the amount of refund to which the plaintiffs are entitled”.

The parties subsequently requested the court to hold the appointment of a special master in abeyance to afford them an opportunity to reach a mutually agreeable calculation on their own. Their effort in this regard has resulted in a disagreement over whether “interrelated computations” or a “straight deduction” method should be used to calculate the charitable deduction allowable under section 642(c)(2) of the Internal Revenue Code, 26 U.S.C. § 642(c)(2). Resolution of this issue, now before the court, will enable the parties to agree on the amount of the refund, if any, to be awarded pursuant to the court’s May 31, 1984 Memorandum-Decision and Order, 588 F.Supp. 926.

DISCUSSION

Analogizing to estate taxes, the government contends that “interrelated computations” must be used to determine charitable deductions for income tax purposes. The government argues that for the year in question the estate had $2.4 million of taxable income. One million dollars of that income was used to pay nondeductible, administrative estate expenses and was taxable. As a result, only $1.4 million was left for the residuary estate. The estate’s tax bracket was 70%. If the estate were allowed a $1.4 million charitable deduction, it would owe $700,000 in taxes (70% of $1 million net taxable estate). However, the government argues that the $700,000 in taxes must be paid out of the $1.4 million residuary estate, thereby reducing the amount of money available to the charities. According to the government, the amount of the charitable deduction must be reduced accordingly. Reducing the charitable deduction would in turn increase the income tax owed and further reduce the residuary estate and charitable deduction allowed. The government contends that to determine the correct amount of the estate’s charitable deduction, these pyramiding calculations must continue until the point where the charitable deduction actually equals the money left to pay the charities. The calculations proposed by the government can be made by a complicated algebraic formula, and the process is known as “interrelated computations”.

The government concedes that if “interrelated computations” are used in the present case, the estate’s income taxes will be more than $1.4 million and no money will be left for the charities. Such a result would also effectively circumvent the court’s previous decisions in this action.

Although plaintiffs agree that “interrelated computations” are proper in calculating estate taxes under 26 U.S.C. § 2055(c), plaintiffs contend that Congress did not intend that “interrelated computations” be used for calculating income taxes under 26 U.S.C. § 642(c). Plaintiffs rely on Ed wards v. Slocum, 264 U.S. 61, 44 S.Ct. 293, 68 L.Ed. 564 (1924). In Edwards the Supreme Court was asked to decide whether the government could use an algebraic formula to determine the amount of the charitable deduction which was exempt from estate taxes under section 403 of the Revenue Act of 1918. Section 403(a)(3) was the predecessor to section 2055(c) of the present Code and provided:

That for the purpose of the tax the value of the net estate shall be determined — (a) In the case of a resident, by deducting from the value of the gross estate — (3) The amount of all bequests, legacies, devises, or gifts, to or for the use of the United States, any State, Territory, any political subdivision thereof, or the District of Columbia, for exclusively public purposes, or to or for the use of any corporation organized and operated exclusively for religious, charitable, scientific, literary, or educational purposes, including the encouragement of art and the prevention of cruelty to children or animals, no part of the net earnings of which inures to the benefit of any private stockholder or individual or to a trustee or trustees exclusively for such religious, charitable, scientific, literary, or educational purposes. This deduction shall be made in case of the estates of all decedents who have died since December 31, 1917; ...

Revenue Act of 1918, ch. 18, § 403(a)(3), 40 Stat. 1057, 1098 (1919). The Supreme Court held that as a matter of statutory construction in determining the federal estate tax, the amount of the tax could not be included in the net estate where the residue was given to charity. The Supreme Court stated:

The Government offers an algebraic formula by which it would solve the problems raised by two mutually dependent indeterminates. It fairly might be answered, as said by the Circuit Court of Appeals, that “algebraic formulae are not lightly to be imputed to legislators” but it appears to us that the structure of the statute is sufficient to exclude the imputation. As further remarked below, thé theory departs from the long established practice of the law not to regard the incidence of a tax in the levying of a tax, and the position of the Government is contrary to the expressed intent of the statute to encourage charitable bequests.

Edwards, 264 U.S. at 63, 44 S.Ct. at 293.

In response to Edwards, Congress added the following language to the estate tax provision:

If the tax imposed by Section 301, or any estate, succession, legacy, or inheritance taxes, are, either by the terms of the will, by the law of the jurisdiction under which the estate is administered, or by the law of the jurisdiction imposing the particular tax, payable in whole or in part out of the bequests, legacies, or devises deductible under this paragraph, then the amount deductible under this paragraph shall be the amount of such bequests, legacies, or devises reduced by the amount of such taxes; ... (emphasis added)

Revenue Act of 1924, ch. 234, § 303(a)(3), (b)(3), 43 Stat. 253, 306, 307 (1924). This clause was retroactively repealed by section 323 of the Revenue Act of 1926 but restored as section 807 of the Revenue Act of 1932. The purpose of the new language was to legislatively reverse Edwards. See Harrison v. Northern Trust Co., 317 U.S. 476, 479-80, 63 S.Ct. 361, 362-63, 87 L.Ed. 407 (1943); H.R. No. 708, 72d Cong., 1st Sess., p. 50.

The current provision governing charitable deductions for estate tax purposes provides:

DEATH TAXES PAYABLE OUT OF BEQUESTS. If the tax imposed by section 2001, or any estate, succession, legacy, or inheritance taxes, are, either by the terms of the will, by the law of the jurisdiction under which the estate is administered, or by the law of the jurisdiction imposing the particular tax, payable in whole or in part out of the bequests, legacies, or devises otherwise deductible under this section, then the amount deductible under this section shall be the amount of such bequests, legacies, or devises reduced by the amount of such taxes, (emphasis added)

26 U.S.C. § 2055(c).

Since the Supreme Court decided Edwards, Congress has shown its intent to have charitable deductions for estate tax purposes reduced by the taxes payable out of the charitable bequest. As plaintiffs emphasize, however, no such language exists in section 642(c)(2) which governs charitable deductions for income tax purposes. Section 642(c)(2) provides in pertinent part:

(T)here shall also be allowed as a deduction in computing its taxable income any amount of the gross income, without limitation, which pursuant to the terms of the governing instrument is, during the taxable year, permanently set aside for a purpose specified in section 170(c), or is to be used exclusively for religious, charitable, scientific, literary, or educational purposes, ...

26 U.S.C. § 642(c)(2). The court agrees with plaintiffs that after Edwards Congress knew it had to clearly state its intent to reduce charitable deductions by taxes. The fact that Congress knew how to express this intent is evidenced by the express language Congress added in section 2055(c) for estate tax charitable deductions. However, Congress has not added any such language to section 642(c) governing charitable deductions for income tax purposes despite amending this section several times since Edwards was decided.

In Edwards v. Phillips, 373 F.2d 616, 619 (10th Cir.), cert. denied, 389 U.S. 834, 88 S.Ct. 38, 19 L.Ed.2d 94 (1967) (holding a bequest to foreign school district not deductible for estate tax purposes), the Tenth Circuit rejected a similar attempt to compare section 2055 with section 642(c) stating, “The sections are unrelated and the provisions of one or even the policy expressed in one cannot be carried over to the other.” The court can find no clear intent by Congress to reduce the charitable deductions allowed for income tax purposes by the tax imposed. Moreover, Congress’ failure to add such language after Edwards v. Slocum and its subsequent amendments of the parallel provision for estate taxes strongly indicate that Congress does not intend deductions under section 642(c) to be reduced by taxes.

The cases which the government cites to support its position are distinguishable. None of them deals with whether “interrelated computations” should be used to calculate charitable deductions for income tax purposes. Moreover, they either involve estate taxes or income which never entered the estate to be “permanently set aside” for charitable purposes. For example, in Estate of Wright v. United States, 677 F.2d 53 (9th Cir.), cert. denied, 459 U.S. 909, 103 S.Ct. 214, 74 L.Ed.2d 171 (1982), the Ninth Circuit held that the estate income could not have been “permanently set aside” by the will during the period of a will contest. Pursuant to a settlement agreement, 50% of the residuary estate went to the challengers and only 50% went to charity. Therefore, the estate was only allowed to deduct 50% of the income as a charitable deduction. Similarly in Estate of Freund v. Commissioner of Internal Revenue, 303 F.2d 30 (2d Cir.1962), income not actually received by the estate was not “paid or permanently set aside” for charity. The testator’s share of his law partnership’s income was $35,113.25. The partnership agreement allowed the partners to draw on their accounts, and,the testator withdrew $23,085.91 against his share before he died. The estate only received $12,-027.34 for charitable purposes, and that sum was the allowable deduction.

The Fifth Circuit has stated:

Thus, to qualify for the charitable deduction, the amount here in question must have been (1) part of the Estate’s gross income, and (2) pursuant to the terms of the governing instrument (here the Will) must have been (3) paid or permanently set aside or properly designated to be used exclusively for legitimate charitable purposes.

Sid W. Richardson Foundation v. United States, 430 F.2d 710, 712 (5th Cir.1970), cert. denied, 401 U.S. 1009, 91 S.Ct. 1251, 28 L.Ed.2d 544 (1971), reh. denied, 403 U.S. 912, 91 S.Ct. 2202, 29 L.Ed.2d 689 (1971) (estate not allowed to deduct undistributed corporate income). In the eases cited by the government, the income in question never really vested in the residuary estate so it was not “permanently set aside or properly designated to be used” for charitable purposes. In the present action, however, this court has already held that “the amount of the estate income which was ‘permanently set aside’ for charitable purposes was ... the amount that the residuary beneficiaries would have received but for the income tax”. Hartwick College v. United States, 588 F.Supp. 926, 931 (N.D.N.Y.1984). The money in this action has already vested in the residuary estate but for the taxes, and it has been “permanently set aside” for plaintiffs.

The public policy behind section 642(c) is to encourage private donations to charities. Martens Law of Fed. Tax § 31.01 (1980). See Bliss v. Commissioner of Internal Revenue, 68 F.2d 890, 891 (2d Cir.1934), aff'd, 293 U.S. 144, 55 S.Ct. 17, 79 L.Ed. 246 (1939). With the current reductions in federal support to charitable programs, encouraging private support of charitable organizations like plaintiffs is particularly important. “Exemptions of income devoted to educational and charitable purposes are not to be narrowly construed.” Schoellkopf v. United States, 36 F.Supp. 617, 621 (W.D.N.Y.1941), aff'd, 124 F.2d 982 (2d Cir.1942). See Helvering v. Bliss, 293 U.S. 144, 151, 55 S.Ct. 17, 20, 79 L.Ed. 246 (1934); Hight v. United States, 256 F.2d 795, 802 (2d Cir.1958) (stating with reference to estate tax deductions, “Congress could not have intended to encourage bequests for eleemosynary (charitable) purposes only to have them defeated by narrow construction.”).

Ms. Dewar’s clear testamentary intent was to help support the charitable organizations in her community and not to support the federal government. Out of a $49 million estate, government taxes and administrative expenses have eaten up $34 million. If the complicated algebraic formula that the government advocates is used in the present case, no money will be left for the residuary beneficiaries. This court will not subvert the testatrix’s testimentary intent and statutory policy to benefit charity by implying to section 642(c) Congressional intent to reduce charitable deductions by income taxes without clear evidence of such intent. No such intent has been shown, and, as noted above, the language of section 642(c) and the statutory history of section 2055(c) show the opposite intent.

Accordingly, the court holds that “interrelated computations” should not be used to determine income taxes under section 642(c), and plaintiffs are entitled to a “straight charitable deduction” for the amount of the residue that they would have received but for the income taxes. The parties shall determine, in accordance with this decision, the proper refund due plaintiffs and submit their determination to the court for approval.

IT IS SO ORDERED.

      . The court also rejected defendant's argument that the Surrogate Court's determination that the residuary estate was not intended to be permanently set aside for charitable purposes was collateral estoppel in the federal action.


source: Caselaw Access Project

author: PANNER, Chief Judge.

license: Public Domain

text:
    Howard Welcome WALLER, Plaintiff, v. Roy DRAGO, James Carey, Richard Byram, Marie Gard, Dawn Stewart, Morrow County, by and through its Board of Commissioners, and Umatilla County, by and through its Board of Commissioners, Defendants
    No. P84-6075-PA.
    United States District Court, D. Oregon.
    March 19, 1985.
    Order on Eighth Amendment Rights June 11, 1985.

      Spencer M. Neal, Ginsburg, Gomez & Neal, Hillsboro, Or., for plaintiff.
    James P. Martin, Joyce A. Hyne, Schwabe, Williamson, Wyatt, Moore & Roberts, Portland, Or., for defendants James Carey, Richard Byram, Marie Gard, Dawn Stewart, Umatilla County.
   OPINION

PANNER, Chief Judge.

Defendants Umatilla County, the Umatilla County Board of Commissioners, and Umatilla County employees James. Carey, Richard Byram, Marie Gard, and Dawn Stewart (Umatilla County defendants) move for summary judgment. I grant the motion with respect to plaintiffs unreasonable seizure and due process claims.

BACKGROUND

Plaintiff Howard Welcome Waller brings this action pursuant to 42 U.S.C. § 1983 and the common law of Oregon. He seeks declaratory and monetary relief. Defendants are Morrow County, the Morrow County Board of Commissioners, Morrow County Sheriff Roy Drago (Morrow County defendants), and the Umatilla County defendants.

The pleadings and affidavits show that there is no dispute regarding the following events. On May 11, 1983, plaintiff was arrested in Morrow County, Oregon and charged with driving while suspended (DWS). Morrow County officials held him for three days. On May 13, 1983, he appeared in Morrow County Circuit Court, pled guilty to the DWS charge, and was sentenced to time served. (Complaint, at 6; Second Amended Complaint, ¶ 4.1.)

While holding Waller, the Morrow County Sheriffs Office received information that the Oregon Board of Parole had issued a warrant for Waller’s arrest. (Morrow County Defendants’ Motion for Summary Judgment, Ex. “K” at 1-2.) This was confirmed by phone. (Id.) Acting on this information, Morrow County officials arranged for Waller’s transfer to the Umatilla County Jail, which had space available. After he pled guilty to the DWS charge, Waller was transferred to the Umatilla County Jail.

Waller complained to Umatilla County Jail employees that his incarceration was illegal. He obtained counsel and filed a writ of habeas corpus in state court. He was released July 1, 1983, after the writ was granted by Pro Tem Morrow County Circuit Court Judge Ralph Currin, who found that Waller was “not being held ... pursuant to any valid warrant, detainer, or other court order____” (Second Amended Complaint, “Exhibit.”)

Waller alleges that his fifty-one day incarceration at the Umatilla County Jail was in violation of his right to be free of unreasonable seizures of his person, his right not to be deprived of liberty without due process, and his right to be free of cruel and unusual punishment. Under Oregon law, he alleges false imprisonment and negligence. He also alleges that his first amendment rights were violated when defendants tampered with his official mail. (Second Amended Complaint, If 5.)

The Umatilla County defendants and the Morrow County defendants moved for summary judgment. Waller agreed to dismiss the claim against the Morrow County defendants. During a pretrial conference, he also agreed to dismiss the mail tampering claim against Umatilla County. At the same conference, I denied the Umatilla County defendants’ motion for summary judgment insofar as it applied to Waller’s other claims. By letter, the Umatilla County defendants requested that I reconsider this ruling, but I denied the request. I then instructed the parties to brief the effect of Moody v. Daggett, 429 U.S. 78, 97 S.Ct. 274, 50 L.Ed.2d 236 (1976), and its progeny. I now grant the Umatilla County defendants’ motion for summary judgment with respect to the unreasonable seizure and due process claims.

STANDARDS

Federal Rule of Civil Procedure 56(c) allows the court to grant summary judgment if it finds that: (1) there is no genuine issue as to any material fact, and (2) the moving party is entitled to judgment as a matter of law. The moving party has the burden of establishing the absence of a genuine issue of material fact. Securities and Exchange Commission v. Murphy, 626 F.2d 633, 640 (9th Cir.1980). All reasonable doubts as to the existence of a genuine issue of material fact should be resolved against the moving party. Hector v. Weins, 553 F.2d 429, 432 (9th Cir.1976). In addition, the inferences to be drawn from the underlying facts must be viewed in the light most favorable to the party opposing the motion. United States v. Diebold, 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962). Where different ultimate inferences can be drawn, summary judgment is inappropriate. Sankovich v. The Life Insurance Company of North America, 638 F.2d 136 (9th Cir.1981).

If the moving party satisfies the initial burden, then the burden shifts to the opponent to come forward with specific facts showing that a genuine issue of material fact remains in the case. Fed.R.Civ.P. 56(e); Neely v. St. Paul Fire & Marine Insurance Co., 584 F.2d 341, 344 (9th Cir.1978). An adverse party may not rest upon the mere allegations in his pleadings; he must present the issues of fact in evidentiary form. Fed.R.Civ.P. 56(e). If the adverse party does not respond, summary judgment, if appropriate, shall be entered against him. Id.

DISCUSSION

In evaluating plaintiff’s unreasonable seizure and due process claims, I am not bound by Judge Currin’s finding that the plaintiff was “not being held ... pursuant to any valid warrant, detainer, or other court order____” (Second Amended Complaint, “Exhibit.”) This finding is not supported by the summary judgment material presented to me. The Umatilla County defendants are also not collaterally estopped from raising this issue here.

Under the doctrine of collateral estoppel, once an issue is actually litigated and necessarily determined, that determination is conclusive in subsequent suits based on a different cause of action but involving a party or privy to the prior action. United States v. ITT Rayonier, Inc., 627 F.2d 996, 1000 (9th Cir.1980). “Party” need not be defined in a rigid manner. United States v. Geophysical Corp., 732 F.2d 693, 697 (9th Cir.1984). A person not technically a party to the prior action may be bound if his interests are so similar to those of a party to the prior action that the party was his “virtual representative” in the prior action. Id.

Although the Supreme Court permitted the offensive use of collateral estoppel in Parklane Hosiery Co. v. Shore, 439 U.S. 322, 99 S.Ct. 645, 58 L.Ed.2d 552 (1979), it allowed the courts “broad discretion to determine when it should be applied.” Id. at 331, 99 S.Ct. at 651.

Judge Currin’s order indicates that Richard McNerny, the Morrow County’s District Attorney, was named as the only defendant in Waller’s habeas petition. The order also indicates that McNerny and a Morrow County Sheriff’s Deputy were present.

Morrow County did not act as the “virtual representative” of the Umatilla County defendants in the habeas action. The essence of a habeas action is that the defendant has custody of the petitioner. Morrow County did not have custody of Waller at the time of the hearing. While the Umatilla County Jail accepted custody of Waller at the request of Morrow County officials, Umatilla County held Waller pursuant to the authority of a State Board of Parole warrant, rather than any Morrow County order. It would be unfair to apply offensive collateral estoppel here.

I grant summary judgment for the Umatilla County defendants on Waller’s claim that his right to be free of unreasonable seizures was violated by his detention at the Umatilla County Jail. There is no dispute but that Umatilla County held Waller pursuant to official teletype communications that the State Board of Parole had issued a warrant for Waller’s arrest on October 13, 1981. There is also no dispute that Umatilla County confirmed the warrant by telephone shortly after receiving him. (Umatilla County Defendants’ Motion for Summary Judgment, Ex. “A,” “B,” “E.”)

Waller disputes whether Umatilla County received a copy of the warrant while it held him. This does not present an issue of material fact. Oregon law provides that the “written order of the Board [of Parole] is sufficient warrant for any law enforcement officer to take into custody” an alleged parole violator. ORS 144.331(1). Oregon law also provides, however, that an officer need not have a copy of a warrant or order in hand, but may rely on official communications that a warrant exists. Oregon Revised Statutes 133.310(2) provides:

A peace officer may arrest a person without a warrant when the peace officer is notified by telegraph, telephone, radio or other mode of communication by another peace officer of any state that there exists a duly issued warrant for the arrest of a person within the other peace officer’s jurisdiction.

Oregon Revised Statutes 133.310(2) modifies Oregon Revised Statutes 144.331(1). Umatilla County was entitled to take custody of Waller under Oregon law.

The federal courts have also held that arrest and detention pursuant to teletype, computer, or verbal notification of an arrest warrant satisfy the fourth amendments’ proscription against unreasonable seizures. E.g., United States v. Roper, 702 F.2d 984, 988-89 (11th Cir.1983) (officer had probable cause to arrest when relying on radio communication for National Crime Information Center of warrant to defendant’s arrest); Ruiz v. Craven, 425 F.2d 235, 236 (9th Cir.1970) (same holding where arresting officer did not have arrest warrant in hand but had been informed through official channels of its existence). Even if Umatilla County “seized” plaintiff for purposes of the fourth amendment when it accepted custody of him, it was entitled to rely on the teletype information that a warrant for his arrest had issued. Plaintiff’s fourth amendment rights were not violated.

I grant the motion for summary judgment as to the fourth amendment claim.

I also grant the motion as to plaintiff’s allegation that his fifth and fourteenth amendment right to due process was violated because he never received a Morrissey hearing while incarcerated at the Umatilla County Jail.

In Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), the Supreme Court held that a parolee who has been arrested or detained for a parole violation has a due process right to a preliminary hearing to determine whether there is probable cause that the parolee has violated parole conditions. Id. at 485, 92 S.Ct. at 2602. The preliminary hearing should be conducted “at or reasonably near the place of the alleged parole violation or arrest and as promptly as convenient after arrest while information is fresh and sources are available.” Id.

If probable cause exists, the parolee may demand a more elaborate revocation hearing, which must take place within a “reasonable time” after the parolee is taken into custody. Id. at 487, 92 S.Ct. at 2603.

Oregon Revised Statute 144.343 codifies the Morrissey requirements in most respects. The statute provides, however, for a combined preliminary and revocation hearing in cases where the hearings officer finds probable cause to believe that parole conditions have been violated. ORS 144.-343(2), 144.343(6). The combined hearing is to be conducted by the State Board of Parole or its “designated representative,” and must be held “promptly.” ORS 144.-343(1).

The parties agree that Waller did not receive a hearing while incarcerated at the Umatilla County Jail. The question here is whether the Umatilla County defendants can be held liable for this.

Defendants cite Fowler v. Cross, 635 F.2d 476 (5th Cir.1981). In that case, plaintiff was arrested and incarcerated at a county jail after the state parole commission had issued a warrant for his arrest. The state scheduled a prompt preliminary hearing to be held at the jail. Before the hearing date, the county mistakenly transferred plaintiff to the state prison, which was apparently some distance away. The state held plaintiff there for fifty days, and then transferred him back to the county jail, where the hearing was held. Plaintiff brought an action against county and state officials, alleging that he did not receive a prompt preliminary hearing. The district court granted the county defendants’ motion for summary judgment.

The Fifth Circuit affirmed, holding that under state statutes the state parole commission had the duty to afford plaintiff a preliminary hearing. Citing Baker v. McCollan, 443 U.S. 137, 145-46, 99 S.Ct. 2689, 2694-2696, 61 L.Ed.2d 433 (1979), the Fowler court reasoned that the functions of the county defendants and the state parole commission were reasonably divided under state law. Under this division, the county defendants had no responsibility to afford plaintiff a hearing. Their only duty was to cooperate with the parole commission. That the commission was remiss in its duty to provide plaintiff with a prompt hearing could not serve as the basis for the county’s liability. 635 F.2d at 480.

Oregon statutes provide for a similar division of functions. Under Oregon law, the State Board of Parole or its “designated representative” has the responsibility to conduct parole hearings. ORS 144.343(1). There is no indication that Umatilla County served as the Board’s designated representative, or that the County had any other duty to hold the hearings under state law.

As a political subdivision of the State of Oregon, Umatilla County was obligated to follow the State Parole Board’s directives. The Oregon Attorney General has stated that a county has a statutory duty to hold alleged parole violators on Parole Board orders. 42 Op.Atty.Gen. 225, No. 8090 (1982), citing ORS 144.331, 423.020(1). The Attorney General has also stated that county officials have no authority to release an alleged parole violator without the Board’s approval or a court order, and that County officials who illegally release a parolee can be criminally and civilly liable for doing so. Id. Given Oregon’s division of functions, the Umatilla County defendants cannot be held liable in this case for the State Parole Board’s failure to schedule a hearing. See Fowler, 635 F.2d at 480.

Plaintiff argues that Fowler is distinguishable. While the Fowler court relied on the division of functions between the county and state defendants, it also noted that the county held plaintiff for only a short time before transferring him to the state prison, which then held him for fifty days before returning him to the county jail for his preliminary hearing. This delay could not be attributed to the county defendants. Id. By contrast, Umatilla County had physical custody of plaintiff for fifty-one days, during which a hearing was never held.

Plaintiff argues that the County could not hold him forever, and that at some point it had a duty to either investigate why he had not received a hearing or to release him. Plaintiff argues that because he was held for fifty-one days without a hearing, it should have been plain to the County that a prompt preliminary hearing was long overdue.

I disagree. Plaintiff assumes that he was entitled to a prompt preliminary hearing under Morrissey. He was not. While he may have been entitled to a prompt combined hearing under Oregon law, see ORS 144.343(1), 144.343(3)(g), 144.-343(6), plaintiff’s complaint does not allege a violation of the Oregon statute. I therefore evaluate his claim under Morrissey.

In Moody v. Daggett, 429 U.S. 78, 97 S.Ct. 274, 50 L.Ed.2d 236 (1976), a released federal parolee was convicted on new charges. Shortly after he was incarcerated on the new convictions, the United States Parole Board issued a parole violator warrant. The Board did not execute the warrant, however, and merely lodged it with prison officials as a detainer. The parolee asked the Board to execute the warrant so that he could serve his sentences on his prior convictions concurrently with the new convictions. The Board refused. The petitioner brought a habeas action, arguing that under Morrissey he was entitled to a prompt hearing on the pending parole revocation.

The Supreme Court affirmed the denial of the petition, holding that the parolee was not entitled to a revocation hearing until he had been taken into custody as a parole violator by execution of the warrant. The Court reasoned that the hearing for the new convictions could best be held at the conclusion of the parolee’s incarceration, as this would allow the Board to consider his institutional record. 429 U.S. at 87-89, 97 S.Ct. at 278-280. The Court also noted that the parolee’s new convictions obviated the need for a preliminary hearing.

In the present case, where petitioner has already been convicted of and incarcerated on a subsequent offense, there is no need for the preliminary hearing which Morrissey requires upon arrest for a parole violation. This is so both because the subsequent conviction obviously gives the parole authority ‘probable cause or reasonable ground to believe that the ... parolee has committed acts that would constitute a violation of parole conditions,’ [citing Morrissey ] 408 U.S., at 485 [92 S.Ct., at 2602], ... and because issuance of the warrant does not immediately deprive the parolee of liberty. The 1976 Act calls for no preliminary hearing in such cases. 18 U.S.C. § 4214(b)(1) (1976 ed.); see 28 C.F.R. § 2.48(f) (1976).

429 U.S. at 86 n. 7, 97 S.Ct. at 278 n. 7.

Moody is distinguishable on its facts from the present case. Nevertheless, the Ninth Circuit has extended Moody to include cases like this one. In Heinz v. McNutt, 582 F.2d 1190 (9th Cir.1978), plaintiff committed new crimes while on parole. After being convicted of the new charges, he remained at liberty pending appeal. The state parole board held a preliminary hearing and found probable cause that plaintiff had violated parole. Parole was then automatically revoked without a final hearing pursuant to a state statute that allowed revocation without a hearing if the parolee was convicted of a felony.

The Ninth Circuit struck the statute, finding that parole could not be revoked without a final hearing. While it did not need to reach the issue, the court also found that a preliminary hearing was unnecessary where plaintiff had been convicted of a new crime, citing Moody and Morrissey. The purpose of a preliminary hearing is to “determine whether there is probable cause or reasonable ground to believe that the arrested person has committed acts that would constitute a violation of parole conditions.” Morrissey, 408 U.S. at 485, 92 S.Ct. at 2602. The Heinz court reasoned that plaintiff’s need for a preliminary hearing no longer existed because the new convictions provided the requisite cause to believe that the parolee had violated parole. 582 F.2d at 1193. See also Mack v. McCune, 551 F.2d 251, 253 (10th Cir.1977). Because Waller pled guilty to the DWS charge while on parole, there was no need to conduct a prompt preliminary hearing to determine whether there was probable cause to believe that he had violated parole.

Waller pled guilty to the DWS charge in 1983. The parole warrant had issued in 1981. That the DWS conviction occurred after the parole warrant issued is irrelevant. In Johnson v. Chappel, 327 F.2d 888 (D.C.Cir.1964), plaintiff appealed revocation of his parole. The D.C. Circuit held that the parole board properly considered evidence of plaintiffs indictment and guilty plea on a new charge, even though the board did not rely on the evidence when it issued a parole violation warrant for plaintiff. Id. at 889. Just as a conviction occurring after a parole warrant is issued can be used to justify revocation, such a conviction can also be used to provide probable cause to believe that a parolee has violated parole. Waller was not entitled to a preliminary hearing.

Waller was, however, entitled to a revocation hearing. Preliminary hearings must take place “as promptly as convenient after arrest____” Morrissey, 408 U.S. at 485, 92 S.Ct. at 2602. The Ninth Circuit has held that a combined preliminary and revocation hearing which took place twenty-one days after arrest was “prompt.” Pierre v. Wash. St. Bd. of Prison Terms and Parolees, 699 F.2d 471 (9th Cir.1983). A revocation hearing, however, must take place “within a reasonable time after the parolee has been taken into custody.” Morrissey, 408 U.S. at 488, 92 S.Ct. at 2603. The Court in Morrissey noted that “[a] lapse of two months, as respondents suggest occurs in some cases, would not appear to be unreasonable.” Id.

Federal statutes provide that a federal parolee must receive a final hearing within sixty days, or within ninety days if the parolee has been convicted of a new offense. The Supreme Court cited these statutes with apparent approval in Moody. 429 U.S. at 86 n. 8, 97 S.Ct. at 278 n. 8. Thus a period of sixty or even ninety days between the parolee’s arrest and revocation hearing should be reasonable under Morrissey when the parolee is convicted of an offense committed during his parole.

Waller was held for fifty-one days without receiving a hearing. It is not necessary to determine whether the Umatilla County defendants had a duty at some point to investigate why he had not received a prompt hearing. A fifty-one day period easily satisfies the requirement that a revocation hearing be held within a reasonable time.

There is also undisputed evidence that Umatilla County was aware that the Board planned to provide Waller with a hearing. A handwritten note on a teletype concerning Waller provides “Theta P & P Salem called — said they would be setting up hearing around middle of June. MG.” The note is dated May 17, 1983, and was apparently written by defendant Marie Gard, a jail employee. (Umatilla County Defendants' Motion for Summary Judgment, Ex. “E.”) Gard also stated in an interrogatory that she phoned Theta at the Board of Parole on this date, and was advised of the mid-June hearing date. (Umatilla County Defendants’ Motion for Summary Judgment, Ex. “L”)

The Umatilla County defendants were entitled to rely on the Board of Parole’s statement that it would conduct a Morrissey hearing. There is no issue of material fact relevant to the due process claim. The Umatilla County defendants are entitled to judgment as a matter of law on this claim.

Defendants also assert that they are entitled to summary judgment on the due process claim because Waller may not pursue a section 1983 claim for liberty deprivation where there is an adequate remedy in the state courts, citing Haygood v. Younger, 718 F.2d 1472, 1481 (9th Cir.1983). The Ninth Circuit has withdrawn the Haygood opinion pending reconsideration en banc. Haygood, 729 F.2d 613 (9th Cir.1984). The remaining Ninth Circuit opinions on this issue are split. Compare Rutledge v. Arizona Bd. of Regents, 660 F.2d 1345, 1352 (9th Cir.1981), (Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), applies to liberty deprivation claims), with Wakinekona v. Olim, 664 F.2d 708, 715 (9th Cir.1981) (Parratt does not apply to liberty deprivation claims). I will not grant summary judgment on this ground.

In their summary judgment motion, the Umatilla County defendants do not state whether they seek summary judgment on some or all of plaintiff’s claims. Defendants’ summary judgment briefs deal with the unreasonable seizure and due process claims insofar as they are based on the fourth, fifth, and fourteenth amendments to the federal Constitution, and with the mail tampering claim. The briefs do not deal with the cruel and unusual punishment claim or the common law claims. I will not grant summary judgment on these claims without further briefing.

Summary judgment on plaintiff’s eighth amendment claim may be warranted. The parties should brief this issue. Should I grant summary judgment with respect to this claim, plaintiff will have no claim based on federal law. The court will lack subject matter jurisdiction, and the action will be dismissed.

CONCLUSION

The Umatilla County defendants’ motion for summary judgment is granted with respect to plaintiff’s unreasonable seizure and due process claims, insofar as they are based on the federal Constitution. Plaintiff’s mail tampering claim is dismissed with the agreement of plaintiff’s counsel. Within twenty days, the parties shall submit briefs on whether the court should grant summary judgment on plaintiff’s cruel and unusual punishment claim, insofar as that claim is based on the eighth amendment to the federal Constitution.

ON EIGHTH AMENDMENT RIGHTS

The Umatilla County defendants move for summary judgment as to plaintiff’s claim for violation of his eighth amendment rights. I grant the motion insofar as it is based on the federal Constitution.

Plaintiff does not allege that he was mistreated in any way but for the fact of his initial incarceration and the length of that incarceration. Neither of these events involve a violation of Waller’s federal rights to be free from unreasonable seizures or to due process.

Whether plaintiff’s rights under state law were violated is unclear. The Oregon courts should decide this issue. Even if the Oregon courts find that plaintiff’s rights under state law were violated, this in itself would not involve a violation of the eighth amendment of the federal Constitution. There is nothing in the record indicating that the Umatilla County defendants acted in violation of Waller’s federal rights.

As there is no genuine issue as to any material fact, and because the Umatilla County defendants are entitled to judgment as a matter of law, defendants’ motion for summary judgment is GRANTED as to plaintiff’s eighth amendment claim.

Plaintiff’s federal claims are dismissed with prejudice. Plaintiff’s state claims are dismissed without prejudice. The action is DISMISSED. The Clerk of the court is directed to enter judgment accordingly.

IT IS SO ORDERED.


author: BAKER, Chief Judge.

text:
    Florence Y. BARNES, Plaintiff, v. UNITED STATES of America, Defendant.
    No. 84-2060.
    United States District Court, C.D. Illinois.
    March 27, 1985.

      Ralph Swanson, Danville, Ill., for plaintiff.
    Frances Hulin, Asst. U.S. Atty., Danville, Ill., and Angelynn C. Hall, Trial Atty., Tax Div., Dept. of Justice, Washington, D.C., for defendant.
   SUMMARY JUDGMENT FOR PLAINTIFF

BAKER, Chief Judge.

The plaintiff, Florence Y. Barnes, seeks a refund of taxes and interest paid in connection with her 1978 and 1979 federal income tax returns. The plaintiff claims that payments made to her as survivor’s insurance benefits under the State University’s Retirement System are “amounts received under a life insurance contract ... paid by reason of the death of the insured” which are exempt from gross income under the provisions of Internal Revenue Code §§ 101(a)(1) and 101(d). Jurisdiction is vested in the court under the provisions of 28 U.S.C. § 1346(a)(1).

The plaintiff is the widow of a former employee of the University of Illinois who during his lifetime was a contributor to the State University’s Retirement System (SURS). See Exhibit D attached to the First Amended Complaint.

During the tax years 1978 and 1979, the plaintiff received payments from SURS as “survivor insurance benefits”. She excluded these from taxable income under the provisions of Internal Revenue Code § 101(a) (1954). The defendant assessed deficiencies against the plaintiff for the years 1978 and 1979 together with interest. The deficiency assessments and the interests, in the total amount of $1706.94, were paid by the plaintiff and a timely claim for refund was made with the Internal Revenue Service Center at Kansas City, Missouri. The claim for refund was disallowed and this suit followed. The issue presented is a narrow one: whether the payments received by the plaintiff as “survivor insurance benefits” during the years in question constitute life insurance proceeds which are excludable from income under § 101(a) of the Internal Revenue Code of 1954.

Both the plaintiff and the defendant have moved for summary judgment under the provisions of Fed.R.Civ.P. 56.

SURS has two aspects: first, it provides a retirement annuity to an employee; and second, it provides survivor’s insurance benefits for the family of the employee after his death. As a condition of employment each employee of the University of Illinois contributes eight percent of his salary to SURS, seven percent goes to fund employees’ retirement annuity, Exhibit D, Section 15-157(1) and (6), and one percent goes to fund the survivors’ insurance benefit, Exhibit D, Section 15-158. After her husband’s death, the plaintiff was paid the sum of $3,000 per year in monthly installments of $250. It was those sums that the plaintiff excluded from gross income and which are the subject of the deficiency assessments and claim for refunds which are the center of this suit.

The parties are in agreement that in order for the amounts in controversy to be considered as received under an insurance contract it is necessary that the survivor insurance benefits constitute “a binding arrangement of risk-shifting and risk distribution”. Ross v. Odom, 401 F.2d 464, 467 (5th Cir.1968). It is the plaintiffs contention that risk-shifting and risk distribution are present while the defendant asserts that the survivor insurance benefits under SURS do not involve risk-shifting because (1) the university plan involves no risk since the amounts are entirely refundable; (2) the provisions of the plan do not alleviate the potential financial burden of premature death; and (3) the survivors’ benefits are not payable in all events.

The court is persuaded that the survivor insurance benefits payable under SURS provide for risk shifting and risk distribution as described in Ross v. Odom, 401 F.2d 464 (5th Cir.1968) and Commissioner v. Treganowan, 183 F.2d 288 (2d Cir.1950), cert. denied 340 U.S. 853, 71 S.Ct. 82, 95 L.Ed. 625 (1950). In Ross the government raised the same issues that are raised here. The retirement system in question was the state employee’s retirement system of Georgia. That system had both a retirement pension for the employee and a survivor’s benefit for members of the employee’s family in case of his premature death. The government contended that the payments under the survivor’s benefit aspect of the Georgia program were taxable income but the Fifth Circuit Court of Appeals held that because of the presence of risk shifting characteristics the payments were excludable from income as life insurance proceeds. The Georgia system is parallel to the Illinois system. It provides for employee and state contributions and risk-shifting occurs since the state bears a substantial cost of the plan which is not refundable. The facts of Treganowan indicate there is no merit in the government’s position that the employee must bear the risk of losing his contributions. In Treganowan the decedent had paid only $2,160 in contributions from 1925 to 1941 because of credits from earnings in the fund and from 1941 through 1945 the decedent and his estate had made no contributions at all because of a surplus in the gratuity fund.

The government’s argument that surviv- or’s benefits are not payable in all events and therefore do not involve risk shifting is also without merit in light of Commissioner v. Noel’s Estate, 380 U.S. 678, 85 S.Ct. 1238, 14 L.Ed.2d 159 (1965) where flight insurance was held to have the attributes of risk shifting even though the proceeds were not payable in all events.

The government’s point that the provisions of the plan do not alleviate the potential financial burden of premature death escapes the court. Certainly any insurance payments upon the death of the contributor alleviate the financial burdens bound to be experienced by his survivors after his death. To argue otherwise seems nonsense.

Finally, the government argues that SURS is not actuarily sound. Yet as argued by the plaintiff, and as pointed out in Ross v. Odom, 401 F.2d at 468, the determining factor is whether SURS is hypothetically sound but is in fact financially sound. The annual report of SURS for the year 1979 shows that the survivor’s insurance •benefit fund was indeed financially sound.

IT IS THEREFORE ORDERED that the Clerk enter summary judgment in favor of the plaintiff and against the defendant in the sum of $1,706.94 and costs of suit.

IT IS FURTHER ORDERED that the cross-motion for summary judgment of the defendant be, and hereby is, denied.


author: RYMER, District Judge.

text:
    METROMEDIA BROADCASTING CORPORATION, Plaintiff, v. MGM/UA ENTERTAINMENT CO., INC., et al., Defendants.
    No. CV 85-1494-PAR(Bx).
    United States District Court, C.D. California.
    April 1, 1985.

      Peter Sullivan, Gibson, Dunn & Crutcher, Los Angeles, Cal., for plaintiff.
    Alan D. Croll, Wyman, Bautzer, Roth-man, Kuchel & Silbert, Los Angeles, Cal., for defendants.
   MEMORANDUM OF DECISION AND ORDER

RYMER, District Judge.

Plaintiff Metromedia Broadcasting Corporation (Metromedia) alleges that defendants MGM/UA Entertainment Co., Inc., United Artists Corporation, Inc., and MGM/UA Television Distribution (MGM/UA) have refused to negotiate exclusively and in good faith with plaintiff with respect to the broadcast rights to newly produced first-run episodes of FAME, in violation of their current license agreement; and have conditioned the license of those rights on plaintiffs accepting syndicated reruns of FAME, which plaintiff does not want, in violation of sections 1 and 2 of the Sherman Act, 15 U.S.C. §§ 1, 2 and section 3 of the Clayton Act, 15 U.S.C. § 14. Metromedia seeks a preliminary injunction, enjoining MGM/UA from negotiating, entering into or performing agreements with plaintiffs competitors to license new FAME episodes and from engaging in a tying arrangement.

The Clayton Act provides injunctive relief under the same principles as generally applied by courts of equity. 15 U.S.C. § 26; Los Angeles Memorial Coliseum Comm’n v. National Football League, 634 F.2d 1197, 1200 (9th Cir.1980). Traditionally these include “(1) a strong likelihood of success on the merits, (2) the possibility of irreparable injury to plaintiff if the preliminary relief is not granted, (3) a balance of hardships favoring the plaintiff, and (4) advancement of the public interest (in certain cases).” Los Angeles Memorial Coliseum, 634 F.2d at 1200. In the Ninth Circuit the moving party must show a combination of either (1) probable success -on the merits and irreparable injury, or (2) the raising of serious questions and tipping of the balance of hardships sharply in its favor. Sierra On-Line, Inc. v. Phoenix Software, Inc., 739 F.2d 1415, 1421 (9th Cir.1984). These are not separate tests, but extremes of a single continuum. Benda v. Grand Lodge of the Int’l Ass’n of Machinists, 584 F.2d 308, 315 (9th Cir.1978), cert. dismissed, 441 U.S. 937, 99 S.Ct. 2065, 60 L.Ed.2d 667 (1979).

It is also clear that, “[rjegardless of how the test for a preliminary injunction is phrased, the moving party must demonstrate irreparable harm. Flynt Distributing Co. v. Harvey, 734 F.2d 1389, 1394 (9th Cir.1984) (quoting Los Angeles Memorial Coliseum, 634 F.2d at 1202). Reasonable apprehension of threatened injury will suffice. 15 U.S.C. § 26; Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 130, 89 S.Ct. 1562, 1580, 23 L.Ed.2d 129 (1969).” American Passage Media Corp. v. Cass Communications, 750 F.2d 1470, No. 84-3688 (9th Cir.1985).

Applying these criteria leads me to conclude that, despite the manifest excellence of plaintiff’s papers and argument, the requisite showing for the kind of extraordinary relief requested — in the nature of mandatory specific performance — cannot be made. I shall therefore deny the preliminary injunction on the basis of the following findings of fact and conclusions of law.

A. The contract claim.

MGM/UA first produced a feature-length motion picture entitled FAME and thereafter a television series that ran on the NBC television network for two programming years (1981-82 and 1982-83). When it was cancelled by NBC in the spring of 1983, MGM/UA approached Metromedia regarding the possibility of syndicating FAME on a first-run basis. An agreement was reached according to which 22 to 26 new episodes would be produced, to be repeated once during the year, with the difference between the number actually produced and 26 to be made up by “additional telecasts” consisting of shows produced during the preceding year (and already run on NBC); and to be broadcast on a “barter network” basis with Metromedia stations’ having an exclusive license in their area. FAME was to be identified as a “Metromedia network presentation.” The agreement was renewed for a second season and reduced to writing in May, 1984. As part of those negotiations Metromedia requested a right of first refusal on “new programs in the series and/or additional runs of the programs licensed hereunder;” MGM/UA rejected that proposal but accepted in principle a counter-proposal for approaching Metromedia first “before trying to sell the programs to another station in one of our markets.” That substantially became the “right of first negotiation” set forth in clause (g) of the agreement, providing that MGM/UA shall negotiate in good faith exclusively with Metromedia before discussing with any third party the granting of “any television exhibition rights to any additional episodes of the Series in the Territory licensed hereunder.” It also appears to be customary in the industry for a producer to return to the original licensee and offer reasonable terms for continued use of the same program or for any type of product associated with the underlying program.

With the approach of the end of the fourth season of production, syndication of reruns became feasible because the number of episodes “in the can” was sufficient to support a nightly play (“strip” syndication). Accordingly in October, 1984 MGM/UA offered Metromedia 136 episodes of FAME (of which 88 had already been produced and would have been aired). Metromedia objected to the packaging and pricing of reruns with first runs, but eventually (late January/early February) made an offer for both. In the meantime it released its stations to negotiate individually with MGM/UA; and MGM/UA also approached the Tribune Broadcasting Company with an offer for both first runs and reruns. Metromedia’s counteroffer was not accepted and on February 21, 1985 MGM/UA concluded a deal with Tribune Company on terms and conditions which were comparable to its last offer to Metromedia. Tribune has stations which compete with Metromedia’s in two markets, New York and Chicago. This suit was filed March 5, 1985.

Metromedia claims that, contrary to its contractual obligation [clause (q)] and to custom and practice in the industry, MGM/UA failed to negotiate in good faith for rights to the 1985-86 FAME season; such a right is enforceable because both the contract and course of dealing between the parties gives definition to the right; and MGM/UA breached the contract by conditioning future first runs on plaintiff’s also taking reruns and refusing to negotiate separately as to each. MGM/UA asserts that what Metromedia in effect seeks is a right of first refusal, which was specifically requested but rejected; that a right of first negotiation is illusory and unenforceable; and that MGM/UA performed because under its interpretation of the contract, it was obligated to make an offer first to Metromedia for all additional episodes, i.e., new first runs and reruns as they became available.

Both parties appear to agree, at least for purposes of this motion, that New York law applies. The weight of New York authority holds unenforceable a clause (q)-type agreement to negotiate in good faith. Candid Productions, Inc. v. International Skating Union, 530 F.Supp. 1330 (S.D.N.Y.1982); Jillcy Film Enterprises, Inc. v. Home Box Office, Inc., 593 F.Supp. 515 (S.D.N.Y.1984) (agreement to “negotiate exclusively in good faith with respect to the terms and provisions relating to the distribution, exhibition or other exploitation” of a documentary not enforceable because the agreement provided no definite, objective criteria or standards against which HBO’s conduct can be measured); see Reprosystem, B.V. v. SCM Corp., 727 F.2d 257 (2d Cir.1984) (implied duty to negotiate in good faith too indefinite to be enforced under New York law); Mocea Lounge, Inc. v. Misak, 94 A.D.2d 761, 462 N.Y.S.2d 704 (2d Dep’t 1983) (definite and certain duty to negotiate in good faith is enforceable if there are clear set of guidelines against which to measure the party’s efforts). In Candid Productions, the parties had a sixteen-year contractual relationship for the television rights to events sponsored by the ISU. Prior contracts contained a right of first refusal clause that required ISU to engage in a period of negotiations with Candid for rights to the next set of championships and granted Candid a right to match any competing offer by a third party if agreement were not reached during the initial negotiation period. The clauses were substantially similar in concept and detail to the right of first refusal proposed by Metromedia, but rejected by MGM/UA. Like the course of events in this case, in Candid Productions the right of first refusal came to be rejected and a provision that ISU would “not negotiate any further contracts for the rights for the World Championships after 1982 without first negotiating in good faith with Candid” was substituted. Also like the course of events in this case, in Candid Productions the ISU informed Candid that instead of contracting for a single event for a period of years, as they had in the past, it wanted to structure the contract to cover all six ISU championships for a five-year period — a package deal. The ISU ultimately negotiated that kind of deal with CBS. The court granted summary judgment for ISU on the ground that the good faith negotiation clause was so vague and indefinite as to be unenforceable.

Metromedia attempts to circumvent Candid Productions by giving content to its right from two sources: first, the course of dealings between the parties as reflected by their 1983-84 and 1984-85 experience, and the first run part of the 1985-87 proposal; and second, custom and practice in the industry, to come back to the same entity for new episodes and not to condition future use on acquisition of further products. However in light of substantial evidence of Metromedia’s concern for protection on both first runs and reruns — and MGM/UA’s belief that it was obliged to offer Metromedia the right to reruns, I cannot find that the contract right to negotiate with respect to “additional episodes” pertains only to first runs. Absent such a limitation, there is substantial doubt that Metromedia can show bad faith and thus entitlement to first runs apart from reruns. Nor is it clear that there is a custom and practice with respect to television rights to syndicated first runs and reruns of syndicated first runs; first run syndication of dramatic works appears to be a relatively new development in the industry, and is concededly “without rules.”

These difficulties are further compounded by virtue of the unusual character of the injunction that is sought. It is not to maintain the status quo (either in time or terms), but is rather to reverse the results of four months’ negotiation and to require MGM/UA to undo half of an offer (the whole of which could have been made to take account of the increased value of FAME now that syndicated reruns are possible) — and to give, not “negotiate,” the right to future first runs on the same terms and conditions as FAME, less reruns, was offered to Tribune (and earlier to Metromedia). In effect that would appear to be an option, or right of first refusal. To that extent it is precisely what MGM/UA declined to agree to, and what the court in Candid Productions declined to order. Cf. Radio Webs, Inc. v. Tele-Me dia Corp., 249 Ga. 598, 292 S.E.2d 712 (1982) (enjoining breach of right of first refusal). It would also appear to be inconsistent with the industry’s conception of a right of first negotiation as an obligation simply to talk about a new program, not necessarily to accomplish it, limited in time to a day or two.

Moreover, neither custom and practice nor the obligation of good faith and fair dealing may supply a term which adds something new or different to the rights and obligations to which the parties have expressly agreed. See Niagara Mohawk Power v. Graver Tank & Mfg., 470 F.Supp. 1308, 1321 (N.D.N.Y.1979); see also Jillcy. There is nothing in the agreement between' the parties which provides that first runs are to be negotiated separately from reruns; indeed reruns and first runs were negotiated together for each of the prior seasons on Metromedia, in that some reruns were explicitly contemplated as comprising part of the total programming package as it was originally licensed.

Finally, I am concerned that in the absence of objective criteria such as are normally found in a right of first refusal, it would be impossible and unfair to determine whether any particular conduct by MGM/UA would constitute contempt. Would it be contempt for MGM/UA to crater FAME and make no offer? or to raise the price or change the compensation for first runs from barter to cash, or a different balance of barter, or a combination of barter and cash? or to decline an exclusivity provision?

B. Antitrust and misuse claims.

Each episode of FAME is copyrighted; FAME is (by definition) unique; and there appear to be few network-quality syndicated first run dramatic works on the market (examples would be “Too Close for Comfort” and “Paper Chase”), although numerous syndicated first run programs of other sorts are available (such as sporting events and game shows). MGM/UA linked the future licensing of first runs with reruns in its offer to Metromedia, Tribune, and WTOG-TV. Metromedia owns and operates seven television stations (Los Angeles, New York, Chicago, Boston, Washington, Houston and Dallas) which reach 24% of the domestic television market; Tribune has five stations (New York, Chicago, Atlanta, Denver and New Orleans) reaching approximately 14% of the country; and WTOG-TV is in St. Petersburg, Florida.

Metromedia argues- that first run episodes are a separate product from strip' syndicated reruns, because each attracts a different level of advertising revenue and viewership, and is traditionally purchased separately, Jefferson Parish Hospital District No. 2. v. Hyde, 466 U.S. 2, 104 S.Ct. 1551, 80 L.Ed.2d 2; American Manufacturers Mutual Insurance Co. v. American Broadcasting-Paramount Theatres, Inc., 221 F.Supp. 848 (S.D.N.Y.1963); American Manufacturers Mutual Insurance Co. v. American Broadcasting-Paramount Theatres, Inc., 388 F.2d 272 (2d Cir.1967); MGM/UA has sufficient market power in the tying product [FAME first runs] on account of its holding copyrights on FAME, and defendants’ conduct is virtually identical to the block-booking found per se illegal in United States v. Loew’s, Inc., 371 U.S. 38, 83 S.Ct. 97, 9 L.Ed.2d 11 (1962); conditioning the purchase of first runs on reruns reflects an attempt by MGM/UA to gain a competitive advantage in the market for reruns; Tribune was coerced into licensing the package, see Osborn v. Sinclair Refining Co., 286 F.2d 832 (4th Cir.1960), cert. denied, 366 U.S. 963, 81 S.Ct. 1924, 6 L.Ed.2d 1255 (1961); Moore v. Jas. H. Matthews & Co., 550 F.2d 1207 (9th Cir.1977); injury to competition is presumed, Digidyne Corporation v. Data General Corporation, 734 F.2d 1336 (9th Cir.1984), cert. granted, — U.S. - (1985); it has standing as a consumer, Blue Shield of Virginia v. McCready, 457 U.S. 465, 102 S.Ct. 2540, 73 L.Ed.2d 149 (1982); Warner Management Consultants, Inc. v. Data General Gorp., 545 F.Supp. 956 (N.D.Ill.1982) to seek both damages and injunctive relief, see Parks v. Watson, 716 F.2d 646 (9th Cir.1982); and that in any event there has been a misuse of the copyright monopoly to obtain a competitive advantage in another market, Berkey Photo, Inc. v. Eastman Kodak Co., 603 F.2d 263 (2d Cir.1979), cert. denied, 444 U.S. 1093, 100 S.Ct. 1061, 62 L.Ed.2d 783 (1980); Columbia Broadcasting System v. American Society of Composers, Authors and Publishers, 562 F.2d 130 (2d Cir.1977), rev’d on other grounds, 441 U.S. 1, 99 S.Ct. 1551, 60 L.Ed.2d 1 (1979).

MGM/UA contends, on the other hand, that there is no unlawful tie-in because the bundle of rights subsumed under the FAME copyright are a single product which distinguishes the packaging of FAME first runs and FAME reruns from the block-booking condemned in Loew’s; Tribune was not coerced because it wanted “all” of FAME; no relevant market has been monopolized because there is no such market as the “strip syndicated rerun” market and monopoly power can’t exist simply because FAME (like all dramatic works) is unique; there has been no attempt to monopolize any relevant market because defendants’ conduct does not clearly threaten competition nor is it clearly exclusionary; tie-ins are not necessarily anticompetitive, Hyde, and regardless, there is no demonstrable effect on competition in any real market; plaintiff lacks antitrust standing because it has not purchased either first runs or reruns and cannot be injured because, on its theory, its competitor paid too much for the rights, leaving it with nothing about which to complain except being a jilted customer; and that for the same reasons, there has been no misuse of copyright.

The issue posed is interesting and novel: whether to license as a package the component rights of which a copyright in a single intellectual property consists, amounts to a tying arrangement which runs afoul of the antitrust laws or constitutes an abuse of the copyright monopoly. I conclude that neither will so likely be proved that, when weighed with other appropriate considerations, preliminary relief should be granted.

1. What was packaged.

MGM/UA attempted to license a package of 136 copyrighted programs of FAME to Metromedia; and it did license the 136 to Tribune. Of these, 88 have been produced and televised over the last four years. The other 48 have yet to be produced or broadcast. Metromedia does not challenge MGM/UA’s right to package the 48 forthcoming first run productions. However it does contest MGM/UA’s right to require the license of strip syndicated reruns, apparently those “in the can” as well as those to be created.

Unlike the block-booking in Loew’s and Paramount, Mulvey v. Samuel Goldwyn Productions, 433 F.2d 1073 (9th Cir.1970) and Aurora Enterprises v. National Broadcasting Co., 688 F.2d 689 (9th Cir.1982), MGM/UA did not condition the license of, or use leverage from, one copyrighted property (like “Star Wars”) to license another, unrelated (and unwanted) property (like “Planet of the Apes”). It did offer two rights, the right to telecast first runs (which Metromedia wants) with the right to telecast reruns (which Metromedia does not want but the Tribune took). However, both these rights inher in the copyright. 17 U.S.C. § 106. Therefore a substantial question exists about plaintiffs ability to show that the scope of the monopoly is enlarged by the granting of one license only, cf. Paramount; Mercoid Corp. v. Mid-Continent Inv. Co., 320 U.S. 661, 64 S.Ct. 268, 88 L.Ed. 376 (1944), or that competition is suppressed beyond that which is permitted by the copyright laws. See Cardinal Films v. Republic Pictures Corp., 148 F.Supp. 156 (S.D.N.Y.1957) (Judge Edelstein holding that neither can be where defendant conditioned license to distribute copyrighted motion picture on purchase of 16mm prints from it); Waldbaum v. Worldvision Enterprises, Inc., 1978 Trade Cas. ¶ 62,378 (S.D.N.Y.1978).

In its recent decision in Jefferson Parish Hosp. Dist. No. 2 v. Hyde, 466 U.S. 2, 104 S.Ct. 1551, 80 L.Ed.2d 2 (1984), the Supreme Court defined the test for separate products to be whether the arrangement “link[s] two distinct markets for products ... distinguishable in the eyes of buyers.” 104 S.Ct. 1562. This, in turn, depends not on the functional relation between the two items, but on the character of the demand for them. Id. at 1562. The test is intended to prohibit only those arrangements which create the possibility of “foreclospng] competition on the merits in a product market distinct from the market for the tying item.” Id. at 1563.

In Hyde the Court found that two distinguishable services were provided in a single transaction in part because anesthesiological services could efficiently be offered separately from hospital services and were billed separately, so that consumers differentiated between anesthesiological services and the other hospital services provided by the defendant. In this case, plaintiff is likely to show that syndicated reruns generally are offered separately from first runs; but neither side has adduced evidence of how syndicated reruns are marketed vis-a-vis syndicated first runs. That there may be a difference is suggested by the original programming package in this case, which included first runs, and reruns. There is no track record with respect to whether FAME reruns and first runs could be separately sold; however there is evidence that they could not be simultaneously shown without confusing the viewer and diluting the value of both. Although first runs and reruns generally appear to be independently priced, and first run rights to FAME are essentially barter while reruns are essentially cash, those FAME reruns that were part of the original programming package were priced together with first run episodes on a barter basis. Thus the normal distinction may be blurred in this case. Finally, although not directly relevant since the competition impacted is among producers trying to syndicate reruns or television stations that are rerun consumers, the public would appear to perceive reruns differently from first runs in that ratings (and in turn advertising revenues) are less for reruns than for their corresponding first runs. To this extent demand for reruns may be separate from that for first runs. Cf. Times-Picayne Publishing Co. v. United States, 345 U.S. 594, 73 S.Ct. 872, 97 L.Ed. 1277 (1953). However there is nothing in the record to suggest that some reruns are not perceived more favorably than first runs (or other reruns) against which they may be competing in any given time slot or any given market.

Plaintiff faces a further difficulty because of how it posits power in the tying market. For that purpose, Metromedia defines the tying product as FAME’S copyright and uniqueness. Inotherwords, all of FAME that inheres in the copyright is the product from which market power derives. However, the “tied” product has the same copyright and uniqueness. Accordingly the copyright and/or uniqueness that constitutes the tying product is not distinguished from the product to which it is tied.

On balance, while a serious question may be raised about whether the demand for first runs is separate from that for reruns under Hyde, that may not be material when the licensing of a single intellectual property is at issue. Cardinal Films; Waldbaum. In such a case competition on the merits of unrelated properties, whether in strip syndication or first run, is unlikely to be implicated for any reason other than quality. Thus, to carve up the FAME copyright would not appear to serve the competitive purposes of the rule against tying.

2. Market power.

The tie of one product to another is per se illegal only if the seller possesses sufficient market power in the tying product [FAME first runs] appreciably to restrain trade in the tied product [FAME reruns]. Forcing must be probable. Hyde, 104 S.Ct. at 1560. Assuming a threshold showing of a substantial potential for impact on competition (as, for example, when a tie affects more than a single purchaser or a substantial volume of commerce is foreclosed), Hyde reaffirms the proposition that a seller, in this case MGM/UA, may be presumed to have power in the tying product [FAME first runs] when it holds a copyright or has an otherwise unique item. But see Hyde, — U.S. at_, 104 S.Ct. at 1568, 80 L.Ed.2d at 25 (O’Connor, J., concurring opinion). In so doing the Court relied on the rationale of Loew’s, as follows: “Any effort to enlarge the scope of the patent monopoly by using the market power it confers to restrain competition in the market for a second product will undermine competition on the merits in that second market. Thus, the sale or lease of a patented item on condition that the buyer make all his purchases of a separate tied product from the patentee is unlawful. See United States v. Paramount Pictures, 334 U.S. 131, 156-159, 92 L.Ed. 1260, 68 S.Ct. 915 [928-930] (1948); International Salt [v. U.S. ], 332 U.S. [392], at 395-396, 92 L.Ed. 20, 68 S.Ct. 12 [at 14-15]; International Business Ma chines Corp. v. United States, 298 U.S. 131, 80 L.Ed. 1085, 56 S.Ct. 701 (1936).” Id. at 1560-61. In each of these cases per se illegality was premised on misuse of the copyright or patent or unique commodity to foreclose competition on an item bearing an unrelated copyright or patent or attribute. See also Digidyne Corp. v. Data General Corp., 734 F.2d 1336 (9th Cir.1984), cert. granted, — U.S. — (copyrighted operating system software used to sell CPUs). Because the scope of the defendants’ monopoly has not been enlarged so as to impact sales of anything other than a right included within the copyright on FAME, I doubt the applicability of the per se rule.

Neither side makes any particularly extensive analysis of the markets in which first runs and/or reruns are sold, Hyde. 104 S.Ct. at 1561. There is insufficient evidence in the record from which to conclude whether the relevant market would be all television shows, or all first runs, or all syndications, or syndicated first runs, or some combination of these — or nationwide, or territory by territory, or independent network by independent network; or whether the relevant competitors would be all producers of first run episodes, or only of syndicated first run episodes, or only of first run episodes which have been (prematurely) cancelled for network play. Nor is there any substantial indication of what MGM/UA’s share of any of these markets would be. The contract at issue has an affect on six Tribune stations plus one independent in St. Petersburg; or seven Metromedia stations. Thus, I cannot say that plaintiff is likely to show that defendants’ share of any relevant market is more than the shares held insufficient in Hyde and Times-Picayune.

There likewise is no way to determine whether there are close substitutes in any meaningful market. Plaintiff raises a potentially serious question with respect to power in the market for syndicated first runs, since there evidently are but a handful of dramatic works now in production. However I cannot conclude that there is any reasonable likelihood of such a restricted market’s being defined. Finally, there is nothing to suggest that television stations are not price conscious or are without ample information about the quality of competing properties.

3. Restraint or affect on rerun market.

Plaintiff raises an issue (based on hearsay evidence), which may be serious, about a glut on the rerun market in general that may give MGM/UA the ability to foreclose competition in the syndication market because of leverage which comes from its relatively unique position as producer of syndicated first runs. However there is no evidence that quality or supply, or television station choice or demand, is affected, or likely to be affected, by the tying arrangement at issue (except inferentially to the extent that money otherwise being paid for FAME would be spent on different reruns — for which there is no support in the record). Since MGM/UA could exert the market power directly in the tying product which it legitimately has through ownership of the FAME property by affixing any price it wishes to the first run license, it may be irrelevant that it does so indirectly by “forcing” a station to buy the rerun rights. This may particularly be the case when to do so is the only means by which to reverse negative cash flow, recoup costs of production, and continue to create new episodes. See, e.g., Moore; cf. Data General.

4. Damages.

In order for plaintiff to prevail on the merits it must also show injury causally related to defendants’ antitrust violation. Kline v. Coldwell, Banker & Co., 508 F.2d 226 (9th Cir.1974), cert. denied, 421 U.S. 963, 95 S.Ct. 1950, 44 L.Ed.2d 449 (1975). Hyde recognizes that it is not unlawful for one with market power simply to increase the price of the tying product so long as competition on the merits in the market for the tied product is not impaired in order to insulate an inferior product from competitive pressures. Simply to show that a noncompetitive price has been paid for the product which is tied is not enough. See Siegel v. Chicken Delight, Inc., 448 F.2d 43, 52 (9th Cir.1971), cert. denied, 405 U.S. 955, 92 S.Ct. 1172, 31 L.Ed.2d 232 (1972); Kypta v. McDonald’s Corp., 671 F.2d 1282, 1285 (11th Cir.), cert. denied, 459 U.S. 857, 103 S.Ct. 127, 74 L.Ed.2d 109 (1982); Casey, 590 F.Supp. at 1571-2; see also United States Steel Corp. v. Fortner Enters., Inc., 429 U.S. 610, 97 S.Ct. 861, 51 L.Ed.2d 80 (1977). Accordingly, “to demonstrate the injury necessary to establish defendant’s liability, plaintiff must prove that the payment for both the tied and tying product exceeded their combined fair market value.” Casey, 590 F.Supp. at 1571. There is no indication that this is the case.

5. Standing.

Whether the plaintiff is a proper party to bring this action depends upon the nexus between the alleged wrongdoing by the defendants and harm to plaintiff, and upon the relationship of the injury alleged with those forms of injury about which the antitrust laws are concerned. See Blue Shield of Virginia v. McCready, 457 U.S. 465, 102 S.Ct. 2540, 73 L.Ed.2d 149; Associated General Contractors v. California State Council of Carpenters, 459 U.S. 519, 103 S.Ct. 897, 74 L.Ed.2d 723 (1983). Under section 4 of the Clayton Act five factors are relevant: (1) the nature of the plaintiff’s alleged injury including the status of the plaintiff as consumer or competitor in the relevant market; (2) the causal connection between the antitrust violation and harm to plaintiff; (3) the speculative measure of the damages; (4) the risk of duplicative recovery; and (5) the complexity in apportioning damages. Bubar v. Ampco Foods, Inc., 752 F.2d 445, 449 (9th Cir.1985). Less stringent requirements exist for standing to assert an equitable action brought under section 16 of the Clayton Act. Id. at 449 n. 2. Thus on this motion, the Court need only be concerned with the nature of plaintiff’s alleged injury and its directness.

Although not free from doubt, Metromedia appears to have standing as a consumer in the market in which trade was restrained. Associated General Contractors, 459 U.S. at 539, 103 S.Ct. at 909; McCready; and see Mulvey v. Samuel Goldwyn Productions, 433 F.2d 1073, 1076 (9th Cir.1970); Aurora Enters, v. National Broadcasting Co., 688 F.2d 689 (9th Cir.1982); Fields Productions, Inc. v. United Artists Corp., 432 F.2d 1010 (2d Cir.1970) (per curiam), aff'g, 318 F.Supp. 87 (S.D.N.Y.1969), cert. denied, 401 U.S. 949, 91 S.Ct. 932, 27 L.Ed.2d 232 (1971). Also it would appear that one who refuses to purchase has suffered sufficiently direct injury to challenge a tying arrangement. Warner Management Consultants v. Data General Corp., 545 F.Supp. 956, 965 (N.D.Ill. 1982); Ware v. Trailer Mart, Inc., 623 F.2d 1150 (6th Cir.1980).

C. Irreparable injury.

Metromedia argues that FAME is the centerpiece of its new programming image for which there is no substitute, that it has been a door-opener to an important viewing audience of urban youth, and that FAME has become identified with Metromedia through a substantial advertising campaign. Because of this it claims irreparable injury from loss of image, momentum and goodwill as well as revenue from spot sales and barter. MGM/UA contends that Metromedia’s interest is only economic and that loss of viewers and injury to reputation are compensable in money damages.

I do not believe that irreparable injury has been shown. First, Metromedia’s existence is not threatened in any respect. Whatever its loss of revenue on account of an antitrust violation, or MGM/UA’s failure to negotiate, is compensable in damages. Cass Communications. Second, the difference between advertising revenue generated on FAME and a replacement is measurable. Metromedia has both a track record on FAME (as well as adjacent time periods), along with audience surveys and ratings, as a basis for comparison and calculation of loss. An even more direct basis for comparison will exist in the two markets in which there is overlap with Tribune. See Capital Cities Communications, Inc. v. Twentieth Century Fox Film Corporation, Slip Op. No. N-83-464 (D.Conn.1983); cf. Continental Distributing Co. v. Somerset Importers, Ltd.., 411 F.Supp. 754 (N.D.Ill.1976) (no basis for comparison available); and see Los Angeles Memorial Coliseum. Third, while FAME (like all works of art) is unique and its loss may affect Metromedia’s momentum, it also may not; taste, like FAME, is fleeting and there is nothing to show that a substitute may not catch on even more. To this extent the injury claimed is theoretical and not properly the basis for preliminary relief. A.L.K. Corporation v. Columbia Pictures Industries, Inc., 440 F.2d 761 (3rd Cir.1971); but see Courier Times, Inc. v. United Feature Syndicate, Inc., 300 Pa.Super. 40, 445 A.2d 1288 (1982) (irreparable injury on account of loss of unique product, “Peanuts,” came from premier position assigned to “Peanuts” by the Inquirer in its effort to attract former Bulletin readers). Nor does it appear that loss of good will should be differently treated. In effect Metromedia has already placed a value on all of FAME (first runs and reruns) by the offer it made to MGM/UA. Finally, it has always been possible for Metromedia to lose FAME. At the end of either last season or this, MGM/UA could itself have decided not to produce new episodes. That being the case, Metromedia must have considered the risk worth taking, or put another way, not irreparable.

By the same token MGM/UA stands also to suffer, if the relief requested were granted. The Tribune sale would be lost and possibly also the property. Without support from syndicated reruns it may be unable to continue first run production. Some additional deference to possible harm to MGM/UA is indicated because Metromedia delayed seeking relief until the time for commitments for the 1985-86 season is imminent, despite the fact that the package to which objection is made was proposed in October, four months ago. Capital Cities, Slip. Op. at 9-10.

CONCLUSION

Given the extraordinary nature of relief that is sought, the likely unenforceability of a right of first negotiation, the lack of a convincing showing that each of the constituent elements of an unlawful tying arrangement exists, the probable compensability of whatever injury is proved, and the potential for harm to MGM/UA as well, I cannot conclude that irreparable injury will occur or that the balance of hardships tips so sharply in Metromedia’s favor that the requisite showing is made. Accordingly, plaintiff’s motion for a preliminary injunction is denied.

Plaintiff’s counsel shall arrange with defendants’ counsel and the Court’s clerk for a mutually convenient time for a' status conference, to be held (either in Chambers or on the telephone) within seven days of the date of this Order.

      . The Court's detailed findings of fact are filed separately, under seal.

      . As put by Judge Weinfeld:
      “An agreement to negotiate in good faith is amorphous and nebulous, since it implicates so many factors that are themselves indefinite and uncertain that the intent of the parties can only be fathomed by conjecture and surmise. Suppose the defendant, in its initial request, asks for an amount for the licensing rights which plaintiff considers exorbitant or outrageous and in its view has been advanced solely for the purpose of defeating the Court’s direction to negotiate. On what basis does the Court decide that the sum is so unreasonable so that it can determine that the propose was contrary to good faith bargaining? Is the Court then required in furtherance of its decree to direct the parties to continue negotiations until they reach an agreement or does it conclude that an impasse has resulted which reflects good faith and thereby releases the defendant to negotiate with third parties? Indeed, this is by no means a hypothetical inquiry. There is no dispute that when Candid was aware that CBS was in the picture, the plaintiff jumped its original offer from a sum of $1.43 million for the total package of all the skating events to an ultimate figure of $5 million or 10% or $100,000 above any offer made by CBS, whichever was higher.
      ... Moreover the suggestion by Candid that the decree contain a provision that the parties ‘continue the negotiations for a sufficient minimum period before signing with another to permit a fair opportunity to overcome in all respects the comparative attractiveness of competitive proposals’ is hardly a thinly disguised method of reinstating the first refusal right which had been eliminated from the current contracts. This would be contrary to the parties’ deliberate elimination of that provision from the contracts at issue.” Candid Productions, 530 F.Supp. at 1337.

      . MGM/UA’s version of how it has marketed future rights to FAME has varied, from its position at the hearing on plaintiff's request for a TRO (no package); to a "preference” that Metromedia take both reruns and first runs; to use of the first runs as a "carrot”; to offering FAME in its entirety; to “no guarantee” of first runs without reruns. Regardless of how these different characterizations affect the credibility of defendants’ position, the common denominator is that all the rights, to reruns as well as first runs, were apparently linked or packaged.

      . Conceptually, to condition a license of one new episode on another new episode is the same as to condition a license of one new episode on one old one. However the former obviously comports with industry practice and the buyers' preference. Also, unlike the comparison between first runs and reruns, there is no suggestion of a separate market. At the same time, it is unclear where along the continuum between one new episode conditioned on another new episode, to lots of new episodes conditioned on lots of old episodes, conduct concededly lawful becomes unlawful — when in any case it is the same intellectual property which is subject to license. See Waldbaum v. Worldvision Enterprises, Inc., 1978-2 Trade Cas. ¶ 62,378 (S.D.N.Y.1978); Cardinal Films v. Republic Pictures Corp., 148 F.Supp. 156 (S.D.N.Y.1957).

      . This would appear to be particularly true in the case of the reruns which are not already in the can. Increasing the number of uses of each copyrighted work from two (first run [original plus repeat within same week] plus one rerun) to several (first run plus additional reruns), and changing the form of payment from barter to barter plus cash, appears clearly to be within the scope of MGM/UA’s legitimate exploitation of its copyrights. Packaging of the episodes to be created in the future, including however many reruns thereof MGM/UA thinks appropriate, would therefore not appear in any event to constitute a tying arrangement. See Waldbaum; Cardinal Films.

      . It would also appear to be the case that a rerun is an integral part of the copyrighted first run. See Casey v. Diet Center, Inc., 590 F.Supp. 1561 (N.D.Cal.1984); cf. Data General, 734 F.2d at 1343. A rerun is identical to its corresponding first run, and necessarily could not exist but for the original; likewise, the value of a rerun is related to, and stems from, the success of the original.

      . MGM/UA suggests that the tying product may instead be the rerun rights. However there is no substantial support for such a view.

      . Unlike Data General, supra, there is no indication in this case that creation or production of comparable programs is economically infeasible, or that many television stations are "locked in” to the defendants' tying product [FAME first run episodes] by any investment in reruns.