author: FOREMAN, Chief Judge:

text:
    Margaret G. NEWKIRK, as Special Administrator of Hubert W. Newkirk, Deceased, Plaintiff, v. NATIONAL RAILROAD PASSENGER CORPORATION, a corporation, Defendant.
    Civ. No. 84-3137.
    United States District Court, S.D. Illinois, East St. Louis Division.
    Oct. 7, 1985.
    Lance Callis, Callis & Hartman, P.C., Granite City, Ill., for plaintiff.

      Richard E. Boyle, Gundlach, Lee, Eggmann, Boyle & Roessler, Belleville, Ill., for defendant.
   MEMORANDUM AND ORDER

FOREMAN, Chief Judge:

The defendant’s Motion for Summary Judgment (Document No. 9) is now before the Court.

This action arose from the death of Hubert W. Newkirk, the deceased husband of plaintiff, Margaret G. Newkirk. Mr. and Mrs. Newkirk purchased passenger tickets in Chicago, Illinois on an Amtrak train operated by defendant National Railroad Passenger Corporation (NRPC). The New-kirk’s departed from the Chicago station on October 14, 1982 to visit relatives in Phoenix, Arizonia. The only means of exiting the train was through the entraining doors on each side of the center of the cars. These doors were secured by a snap-lock and safety handle which clamps the doors shut. The snap-lock, which can be locked with a key, was not locked, thereby enabling someone to raise the safety handle and pull the doors open. None of the sealed train windows had been removed at the time of the incident in this action. A vestibule area made it impossible for someone to exit the train from between cars.

On October 16, 1982, Mr. Newkirk told his wife that he was going to the adjoining observation car. Thereafter, Mrs. Newkirk slept in her seat for approximately a half hour. Mrs. Newkirk then discovered that Mr. Newkirk had not returned to his seat. After she unsuccessfully searched the train for her husband, she reported his disappearance to the train’s crew members. Neither the crew members’ search of the train, nor their interviews of train passengers revealed anything about Mr. New-kirk’s whereabouts or the circumstances of his disappearance.

Mrs. Newkirk continued on to Phoenix, Arizona where she reported her husband’s disappearance to the authorities. Mr. New-kirk’s body was finally found on February 24, 1983 along the railroad right-of-way just west of Wilcox, Arizona. The Medical Examiner concluded that the cause of Mr. Newkirk’s death was multiple fractures to the head and body caused by impacting with the ground at a tremendous velocity.

Mrs. Newkirk brought this action against defendant, NRPC, for the death of her husband, relying solely on the doctrine of res ipsa loquitur. Plaintiff alleges that the decedent’s fall from the train would not have taken place in the ordinary course of things if NRPC had not been negligent.

The defendant now moves for summary judgment, arguing that the facts in this case cannot support the application of the doctrine of res ipsa loquitur, and that the plaintiff cannot prove that the proximate cause of the injury was defendant’s allegedly negligent act. Mrs. Newkirk opposes defendant’s motion, arguing that the doctrine of res ipsa loquitur is properly presented in this case.

Summary judgment is appropriate only where the record shows that “there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56. The party moving for summary judgment has the burden of establishing the lack of a genuine issue of material fact. Korf v. Ball State University, 726 F.2d 1222, 1226 (7th Cir.1984). The Court must view the evidence, and the reasonable inferences to be drawn therefrom, in the light most favorable to the party opposing summary judgment. When the moving party fails to meet its strict burden of proof, summary judgment cannot be entered even if the opposing party fails to respond to the motion. Yorger v. Pittsburg Corning Corp., 733 F.2d 1215 (7th Cir.1984).

When the moving party has met its initial burden and the opposing party asserts the existence of a question of fact, the Seventh Circuit has identified two considerations to be used in determining whether summary judgment is proper. The Court must determine whether the non-moving party has established that there is a genuine issue as to that fact.

To create a question of fact, an adverse party responding to a properly made and supported summary judgment motion must set forth specific facts showing that there is a genuine issue for trial ... A party may not rest on mere allegations or denials of his pleadings; similarly, a bare contention that an issue of fact exists is insufficient to raise a factual issue.

Posey v. Skyline Corp., 702 F.2d 102, 105 (7th Cir.), cert. denied, 464 U.S. 960, 104 S.Ct. 392, 78 L.Ed.2d 336 (1983). Furthermore, the disputed fact must be material, that is, it must be outcome-determinative under the applicable law. Egger v. Phillips, 710 F.2d 292, 296 (7th Cir.) (en banc), cert. denied, 464 U.S. 918, 104 S.Ct. 284, 78 L.Ed.2d 262 (1983).

In examining defendant’s motion for summary judgment, the Court finds that the substantive law of Arizona is controlling in this case. Initially, the Court notes that is is bound by the Illinois choice of law doctrine. Klaxon Company v. Stentor Electric Manufacturing Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed.2d 1477 (1941). The choice of law doctrine in Illinois directs that the local law where the injury occurred determines the parties’ rights and liabilities, “unless Illinois has a more significant relationship with the occurrence and with the parties, in which case, the law of Illinois should apply.” Ingersoll v. Klein, 46 Ill.2d 42, 45, 262 N.E.2d 593, 595 (1970). Because the injury occurred in Arizona and neither party is a citizen of Illinois, Illinois does not have any significant relationship to justify the application of its law to this case. Therefore, the law where the injury occurred, Arizona, is applicable.

The plaintiff relies exclusively upon the doctrine of res ipsa loquitur in her complaint. Res ipsa loquitur is a rule of circumstantial evidence under which the jury may infer negligence in the absence of direct evidence to that effect. Jackson v. H.H. Robertson Co., 118 Ariz. 29, 31, 574 P.2d 822, 824 (1978). The necessary conditions for a res ipsa loquitur case in Arizona are: (1) the accident must be one which ordinarily does not occur in the absence of negligence; (2) the accident must be caused by an agency or instrumentality within the exclusive control of the defendant; (3) the accident must not have been due to any voluntary action on the part of the plaintiff or decedent; (4) plaintiff must not be in a position to show the particular circumstances that caused the agency or instrumentality to operate to his injury. Id. See also Capps v. American Airlines, 81 Ariz. 232, 234, 303 P.2d 717, 718 (1956). The plaintiff has the burden of proof as to these elements. See Jackson.

The Court finds that the doctrine of res ispa loquitur is inapplicable to the case at hand. The third requirement of the res ipsa loquitur doctrine is that the accident must not have been due to any voluntary action on the part of the plaintiff or decedent. The circumstances surrounding Mr. Newkirk’s exit from the train are wholly unknown to the parties in this action. Before the doctrine of res ipsa loquitur can be applied, the plaintiff must have evidence that would eliminate the conjecture that the accident resulted from an act of the plaintiff. McKeever v. Phoenix Jewish Community Center, 92 Ariz. 121, 123, 374 P.2d 875, 877 (1962). See also Nieman v. Jacobs, 87 Ariz. 44, 347 P.2d 702 (1959) (“the doctrine of res ipsa loquitur does not apply where the facts shown are equally consistent with the hypothesis that the injury sued for was caused by negligence of either party or of both combined.”) There is no evidence in the record in this case that would eliminate such a conjecture. Therefore, the Court is left to hypothesize how Mr. Newkirk met his death.

The facts in this case show that the train windows were not made to open, but could be opened only by removing them, the door at the end of the last car was locked; exiting the train between cars was made impossible by an enclosed vestibule area; the entraining doors, while not locked, were closed with a snap-lock and secured with a safety handle. In order for someone to have fallen off such a train, it would seem that the person would have had to have made a considerable effort. “People frequently fall without there being negligence of another to cause the fall. It may be done solely to their own negligence.” Capps v. American Airlines, 81 Ariz. 232, 234, 303 P.2d 717, 719 (1956) (emphasis added). Because the record is devoid of any evidence of how Mr. Newkirk left the train, the plaintiff is unable to show that the accident was not due to any voluntary act of Mr. Newkirk. Therefore, the plaintiff cannot rely upon the doctrine of res ipsa loquitur in the present case.

It should be noted that under Illinois law, the doctrine of res ipsa loquitur is not applicable in this case for the same reasons discussed above. See Lynch v. Precision Machine Shop, Ltd,., 93 Ill.2d 266, 443 N.E.2d 569 (1982); Silverman v. General Motors Corp., 99 Ill.App.3d 593, 425 N.E.2d 1099 (1981).

As stated above, the doctrine of res ipsa loquitur is a rule of circumstantial evidence allowing an inference of negligence. While the plaintiff relies solely upon this doctrine, the Court has examined the possibility that there is sufficient direct evidence of negligence and proximate cause to withstand the defendant’s motion for summary judgment. In her complaint, the plaintiff implies that the defendant was negligent in not locking the entraining doors. The defendant has presented to the Court by way of deposition that these doors, although not locked by key for safety reasons, were secured by a safety handle and snap-lock. The plaintiff has presented an affidavit indicating that the doors should have been locked with a key. Assuming the plaintiff’s position is correct, the plaintiff has failed to demonstrate causation because the doors could not have been opened without someone affirmatively lifting the safety handle and unlocking the snap-lock. Under such circumstances, the Court is convinced the defendant’s failure to lock the doors was not the cause of the injury.

The Court is sympathetic to the plight of plaintiff and the mysterious facts surrounding her husband’s death. However, the law will not impose liability on defendant unless the plaintiff can prove her case. The Court is confident that as a matter of law the plaintiff will be unable to do so.

Accordingly, the Court GRANTS the defendant’s Motion for Summary Judgment. The Court DIRECTS the Clerk to enter judgment for the defendant and against the plaintiff. The case is hereby DISMISSED.

IT IS SO ORDERED.


source: Caselaw Access Project

author: CROW, District Judge.

license: Public Domain

text:
    ALFALFA CUBES, INC., a Kansas Corporation, and Lucas Investment, Inc., a Kansas Corporation, Plaintiffs, v. Paul DUTTON, R. Louise Dutton, H. James Maxwell, Joseph Stokey, Clubine and Rettele, Chartered, Union Insurance Company, Stone Post Hay, Inc., a Kansas Corporation, Defendants.
    No. 85 1509.
    United States District Court, D. Kansas.
    Oct. 8, 1985.

      Robert L. Earnest, Russell, Kan., and Brice A. Tondre, Madden & Strate, P.C., Wheat Ridge, Colo., for plaintiffs.
    Gerald M. Kraai, G. Steven Ruprecht, Margolin & Kirwan, Kansas City, Mo., Edward F. Arn, Arn, Mullins, Unruh, Kuhn & Wilson, Wichita, Kan., for Union Ins. Co.
    Clarence L. King, Jr., King, Adrian, King & Brown, Salina, Kan., for Maxwell and Stokey.
    Kenneth L. Cole, Russell, Kan., for Duttons and Stone Post Hay, Inc.
    Aubrey G. Linville, Clark, Mize & Lin-ville, Salina, Kan., for Clubine and Rettele, Chartered.
   MEMORANDUM AND ORDER

CROW, District Judge.

Plaintiffs contend this action now before the court was removed by defendant Union Insurance Company (Union) improvidently and without jurisdiction, and seek remand to state court pursuant to 28 U.S.C. § 1447(c). The court has determined that oral argument is unnecessary for resolution of this matter. See Local Rule 15(d).

Union petitioned for removal on the basis that plaintiff’s claim against it is a “separate and independent claim or cause of action” under 28 U.S.C. § 1441(c). This section provides:

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

If a separate and independent claim has been made against Union, a foreign corporation, the entire case would be removable, because this court would have original jurisdiction under 28 U.S.C. § 1332 on that claim, if sued upon alone. American Fire and Casualty Co. v. Finn, 341 U.S. 6, 71 S.Ct. 534, 95 L.Ed. 702 (1951); Gallagher v. Continental Insurance Company, 502 F.2d 827, 831 (10th Cir.1974).

28 U.S.C. § 1441 specifies what actions are removable. 28 U.S.C. § 1446 outlines the procedure for removal. 28 U.S.C. § 1447 details the procedures after removal, including when a case is to be remanded:

(c) If at any time before final judgment it appears that the case was removed improvidently and without jurisdiction, the district court shall remand the case, and may order the payment of just costs. A certified copy of the order of remand shall be mailed by its clerk to the clerk of the State court. The State court may thereupon proceed with such case.

A court can remand a case only when the statutory requirements for removal are not satisfied; consequently, a court cannot remand a case for discretionary reasons. Thermtron Products, Inc. v. Hermansdorfer, 423 U.S. 336, 345 n. 9, 96 S.Ct. 584, 590 n. 9, 46 L.Ed.2d 542 (1976).

Generally, if a party removes a state court action to the federal court on the jurisdictional basis of diversity of citizenship and the other party seeks to remand challenging that basis for removal, the removing party has the burden to establish its right to a federal forum. McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189, 56 S.Ct. 780, 785, 80 L.Ed. 1135 (1936); R.G. Barry Corp. v. Mushroom Makers, Inc., 612 F.2d 651, 655 (2d Cir.1979).

A few well-settled principles will guide this court in considering the motion before it. By the enactment of § 1441(c), Congress intended to restrict the right of removal. American Fire & Casualty Co. v. Finn, 341 U.S. 6, 10-14, 71 S.Ct. 534, 538-40, 95 L.Ed. 702 (1951); Snow v. Powell, 189 F.2d 172, 174 (10th Cir.1951); 14A Wright, Miller & Cooper, Federal Practice and Procedure 2d § 3724 (1985). Cf. Climax Chemical Company v. C.F. Braun & Co., 370 F.2d 616, 618-19 (10th Cir.1966), cert. denied 386 U.S. 981, 87 S.Ct. 1287, 18 L.Ed.2d 231 (1967). (The court in Finn was not “sounding the death knell of section 1441(c)____”) Second, § 1441(c) is a jurisdictional statute which imposes a test to be determined as a matter of federal law. American Mut. Liability Ins. Co. v. Flintkote Co., 565 F.Supp. 843, 848 (S.D.N.Y.1983); Thornton v. Allstate Ins. Co., 492 F.Supp. 645, 648 (E.D.Mich.1980) (and cases cited therein.) Third, removal statutes are to be strictly construed, and all doubts are to be resolved in favor of remand. Fajen v. Foundation Reserve Ins. Co., Inc., 683 F.2d 331, 333 (10th Cir.1982).

In the application of § 1441(c) to the present ease, the primary task is determining whether the claim against Union is “separate and independent” from plaintiffs other claims. The Tenth Circuit has defined the operative terms as follows:

“The word ‘separate’ means distinct; apart from; not united or associated. The word ‘independent’ means not resting on something else for support; self-sustaining; not contingent or conditioned.”

Snow v. Powell, 189 F.2d at 174. Claims are not “separate and independent” simply because the petition contains separate prayers for relief; alternative prayers for relief; multiple theories of recovery; separate counts; claims with different requirements of proof; or allegations of joint, several, or joint and several liability. American Mut. Liability Ins. Co., 565 F.Supp. at 848. See Thornton, 492 F.Supp. at 649.

The seminal decision interpreting § 1441(c) is American Fire & Cas. Co. v. Finn, 341 U.S. 6, 71 S.Ct. 534, 95 L.Ed. 702 (1951). In Finn, the Court concluded: “that where there is a single wrong to plaintiff, for which relief is sought, arising from an interlocked series of transactions, there is no separate and independent claim or cause of action under § 1441(c).” 341 U.S. at 14, 71 S.Ct. at 540. Utilizing this operative language, lower federal courts have applied essentially two tests: the single wrong to plaintiff, Climax Chemical, 370 F.2d at 618; Gray v. New Mexico Military Institute, 249 F.2d 28, 31-32 (10th Cir.1957), and the interlocked or related series of events. Union Planters Nat. Bank v. CBS Inc., 557 F.2d 84, 89 (6th Cir.1977); Scott v. Metropolitan Life Ins. Co., 450 F.Supp. 801, 803 (W.D.Okla.1978) (so closely related that the claims are interlocked.) See Hudson v. Smith, 618 F.2d 642, 645 (10th Cir.1980). The operation of these rules was discussed by the First Circuit:

Although the “single wrong” rule resolves the removal question presented in this case, as it did in Finn, it should not be perceived as articulating an exhaustive test for applying § 1441(c). Even though an action implicates more than one wrong it may nevertheless fail to contain any separate and independent claims. What should determine the applicability of § 1441(c), however many wrongs may comprise a particular suit, is whether those wrongs arise from an interlocked series of transactions, that is, whether they substantially derive from the same facts____ [citations omitted]. If they do, the congressional objective to require “more complete disassociation,” thus limiting the availability of removal, would not be served by accepting jurisdiction of the action.

New England Concrete Pipe v. D/C Systems, Etc., 658 F.2d 867, 874 n. 12 (1st Cir.1981).

The single wrong test is best explained by reviewing its use. In Finn, the plaintiff, wanting to recover for property lost in a fire, sued two insurers on a contract theory and the local agent of the insurers for negligence. The Court identified the single wrong in Finn as “the failure to pay compensation for the loss on the property.” 341 U.S. at 14, 71 S.Ct. at 540. It is significant that the Court chose to describe the single wrong as a singularity of harm instead of a violation of a particular right. New England Concrete, 658 F.2d at 872.

The Tenth Circuit’s application of the single wrong test has been consistent with the Finn decision. The Tenth Circuit has stated the single wrong test, as follows:

A pleading which alleges but one wrong, for which single relief is sought, cannot constitute a separate and independent claim, no matter how many defendants are said to be liable therefor, or how diverse their basis of liability.

Gray v. New Mexico Military Institute, 249 F.2d at 32 (footnote omitted). In Gray, the plaintiff brought suit against the institute and its employers on theories of negligence and third-party beneficiary to a contract. The plaintiff also sought a declaratory judgment that the institute was negligent, that a contract of insurance existed between the institute and its insurer, that the insurer could not plead a defense of governmental immunity, and that plaintiff should recover from the insurer. 249 F.2d at 29-30. Applying Finn, the Tenth Circuit identified the single wrong as “the alleged negligence of the Institute and its employees.” 249 F.2d at 31.

In two other significant decisions, the Tenth Circuit has found more than one wrong. In Climax Chemical, plaintiff, seeking compensation for an inoperable plant, sued the general contractor and several subcontractors. Each subcontractor was alleged to be liable for the defective design and negligent construction of the particular component of the plant it had been responsible for completing. 370 F.2d at 617-18. Because the failure of any one component physically rendered the plant inoperative, plaintiff’s loss of the plant was an ultimate result and not a single wrong. Plaintiff alleged more than a single wrong in claiming each subcontractor was liable for its performance on the particular component of the plant. 370 F.2d at 618. In Gallagher v. Continental Insurance Company, 502 F.2d at 832, the complaint alleged two wrongs, the nonperformance of one contract and a payment under another invalid contract.

In the determination of whether a separate and independent claims exists, plaintiffs’ entire pleading is controlling. Finn, 341 U.S. at 14, 71 S.Ct. at 540; Thornton, 492 F.Supp., at 649. Plaintiffs’ complaint contains six claims for relief. First, plaintiffs allege Dr. Dutton breached his fiduciary duty as an officer and director of plaintiff corporations in not disclosing his conflicting interest in Stone Post Hay, Inc. and in participating in the sale of hay by Stone Post to plaintiffs at a price higher than what was available from other sources. Second, Mrs. Dutton breached her fiduciary duty as controlling shareholder in plaintiff corporations by not disclosing her conflicting interest in Stone Post. Third, allegations of fraud, deceit, and misrepresentation are made against Dr. Dutton and Mrs. Dutton for the same acts. Fourth, plaintiff alleges two attorneys retained for arranging a securities offering breached their fiduciary duty and were negligent in not discovering and disclosing the Duttons’ conflicting interests. Fifth, the plaintiff’s accountants breached their fiduciary duty and were negligent in not discovering and disclosing the Duttons’ conflicting interests. Sixth, plaintiff alleges Union Insurance Company breached its contract and acted in bad faith in refusing to pay plaintiffs’ claim under a commercial blanket bond for the losses sustained by the Duttons’ acts of dishonesty. On the first three claims, plaintiffs prayed for an accounting and recovery of profits from Stone Post, the payment of all expenses in the abandoned public offering, the return of all plaintiffs’ shares issued to Mrs. Dutton, and attorney fees and costs. On the fourth and fifth claim, plaintiffs prayed for the payment of costs of the abandoned public offering and attorney fees. On the sixth claim, plaintiff prayed for actual damages in excess of $10,000 and exemplary damages.

In opposing the motion to remand, Union primarily relies on two decisions, Thornton v. Allstate Ins. Co., 492 F.Supp. 645, and National S. & L. Ass’n. v. St. Paul Fire, Etc., 84 F.R.D. 425 (E.D.Wis.1979). The court is not persuaded by the reasoning in either decision. In both cases, the courts mistakenly focused on the particular rights of plaintiff violated instead of the single harm done to plaintiff. In Thornton, the plaintiff was assaulted while operating a taxicab owned by one defendant and insured by the other defendant. 492 F.Supp. at 649. The court in Thornton identified the contractual claim against the insurance company as separate and independent from the claims made against the taxicab owner for negligence and a violation of statutory duty. The Thornton decision conflicts with the reasoning of the Tenth Circuit in the Gray case. See New England Concrete, 658 F.2d at 873.

In National S. & L. Ass’n. v. St. Paul Fire, Etc., 84 F.R.D. 425, plaintiff sued several of its employees for fraud and St. Paul for failure to cover, under the blanket bond, plaintiff’s losses allegedly caused by employees’ fraudulent actions. In finding the claim against St. Paul to be separate and independent, the court concluded that St. Paul had not been involved in the actions of the other defendants and that the contractual right to reimbursement is distinct from the right to damages for tortious conduct. 84 F.R.D. at 427-28. This reasoning is also inconsistent with the holding in Finn and Gray.

This court is convinced the better approach is a line of decisions holding that claims against the sureties are not separate and independent from the claims against the insured defendants or those defendants whose actions are insured against. Jersey Paving Co. v. Fid. & Deposit Co. of Md., 603 F.Supp. 414, 417 (D.N.J.1985) (Bond on construction contract); Winters v. Hale, 296 F.Supp. 125, 126 (S.D.Ala.1968) (Blanket bond for employee's dishonesty); Henry Kraft Mercantile Co. v. Hartford Acc. & Ind. Co., 107 F.Supp. 505, 507 (W.D.Mo.1952) (Insurance policy covering losses caused by employee’s fraudulent or dishonest acts); Doran v. Elgin Cooperative Credit Ass’n, 95 F.Supp. 455, 458-59 (D.Neb.1950) (Bond on faithful accounting of defendant Bank’s employees). In the above eases, the courts stressed the presence of a single wrong and the contingency of any recovery from the insurance claim upon the validity of the other claims.

In the present case, plaintiffs have suffered a single wrong, the Duttons’ alleged breach of their fiduciary duties. Plaintiffs’ recovery from Union inevitably depends upon the claims against the Duttons. See Doran, 95 F.Supp. at 458-59. The same facts, regarding an interlocked series of transactions, must be proven to establish the liability of the Duttons and Union. See Winters, 296 F.Supp. at 126; See Henry Kraft, 107 F.Supp. at 507.

IT IS THEREFORE ORDERED that plaintiffs motion to remand is granted and the entire ease is remanded to the state court.


author: DALY, Chief Judge.

text:
    UNITED STATES of America, v. Oreste ABBAMONTE, a/k/a “Ernie boy”, Joseph Del Vecchio, a/k/a “Joe Crow”, Guy A. Di Girolamo, Defendants.
    Crim. No. N-83-47 (TFGD).
    United States District Court, D. Connecticut.
    Oct. 8, 1985.
    William A. Keefer, John H. Durham, Attys., U.S. Dept, of Justice, New Haven, Conn., Alan H. Nevas, U.S. Atty., for plaintiff.
    Gerald L. Shargel, New York City, for Joseph DelYecchio.
    Michael Joseph (Joseph & Stalonas), New York City, for Oreste Abbamonte.

      John Nicholas Iannuzzi (Iannuzzi, Russo & Iannuzzi), New York City, for Guy A. DiGirolamo.
   RULING ON REMAND ON MOTIONS TO DISMISS INDICTMENT ON GROUNDS OF DOUBLE JEOPARDY

DALY, Chief Judge.

Defendants Oreste Abbamonte, Joseph DelVecchio and Guy Anthony DiGirolamo have each moved for dismissal of charges against them in this indictment on the ground of double jeopardy. The Court denied those motions on September 18, 1984. In its ruling in United States v. Abbamonte, et al., 759 F.2d 1065 (2d Cir.1985) the United States Court of Appeals for the Second Circuit found that these defendants each made a sufficient showing to place on the prosecution the burden of showing that the conspiracy previously charged in an information filed in the Southern District of New York, in the case of Abbamonte and DelVecchio, and the conspiracy charged in a prior Connecticut indictment, in the case of DiGirolamo, were not part of the overall conspiracy charged in this indictment. 759 F.2d at 1070. In accordance with that ruling remanding the matter for further consideration by this Court, an evidentiary hearing was held on June 20,1985. As set forth more fully below, the Court finds that the government has met its burden and the motions are denied.

Since Abbamonte and DelVecchio base their claims of double jeopardy on their prior convictions in the Southern District of New York and DiGirolamo bases his claim on a prior conviction in the District of Connecticut, the Court treats the claims separately, setting forth first its findings of fact with respect to Abbamonte and DelVecchio, and then its findings as to DiGirolamo.

FINDINGS OF FACT

A. Pending Indictment

Count one of this indictment (“pending indictment”) charges defendants Abbamonte, DelVecchio and DiGirolamo with conspiring with each other and with Frank Santo Cotroni, Giovanni Marra, Michael Corcione, Nichola Bruna and “other persons unknown to the Grand Jury” to distribute heroin in violation of 21 U.S.C. § 846 (1982), between April 26, 1982 and May 28, 1982. The pending indictment charges that part of the conspiracy consisted of Marra and Cotroni, in Canada, arranging for the delivery of heroin to various persons in the New York City area, including Abbamonte and DelVecchio, for further distribution. The indictment alleges that in furtherance of the scheme described above, Cotroni and Marra used DiGirolamo, in Bridgeport, and Corcione as middlemen in the heroin transactions in the New York City area.

Four overt acts are also alleged. The first two are international telephone calls between DiGirolamo and Cotroni. On April 27, 1982, Cotroni telephoned DiGirolamo concerning difficulty in obtaining heroin, and on May 9, 1982, Cotroni again called DiGirolamo with regard to a meeting between DiGirolamo and Corcione. The third overt act alleges a meeting, on May 10, 1982, at which DiGirolamo received a quantity of heroin from Corcione and met thereafter with Abbamonte in the vicinity of Shore Road, Port Washington, New York. The fourth overt act alleges the delivery by Corcione of U.S. currency to Cotroni and Marra in Canada.

B. Abbamonte and DelVecchio

On January 7, 1983, in the United States District Court for the Southern District of New York, defendants Abbamonte and DelVecchio pleaded guilty to Count One of a superseding information (“the information”) which alleged a conspiracy among Abbamonte, DelVecchio, Lorenzo DiChiara, Francisco Solimene, Rafail Gonzalez, Aleida Martinez, “and others unknown” to distribute heroin in violation of 21 U.S.C. § 846. This conspiracy was alleged to have existed from on or about April 1,1982 through January 7, 1983. The information set forth sixteen overt acts. The first overt act was a meeting “in or about April, 1982” between Francisco Solimene and an undercover special agent of the Drug Enforcement Administration (DEA) at which they discussed the sale and distribution of heroin. The fifteen other overt acts all occurred inthe late summer and fall of 1982, beginning on or about September 9, 1982 with another meeting between Solimene and the undercover agent at which Solimene told the agent that he had a source of supply for heroin. Also on or about September 9,1982, Solimene placed a telephone call to Lorenzo DiChiara who met with Solimene on September 14, 1982 and handed him a brown paper shopping bag. The fifth overt act alleges that DiChiara handed Solimene approximately three kilograms of heroin in the vicinty of 87th Street and Third Avenue, Bronx, New York. The information goes on to allege that on or about September 24, 1982, Aleida Martinez spoke by telephone with the undercover agent. Also on September 24, 1982, DiChiara met with Martinez and asked about the whereabouts of Solimene. On or about October 6, 1982, DiChiara met with the undercover agent and another individual to discuss money owed by Solimene and Solimene’s whereabouts. Also on October 6, 1982, DiChiara spoke-with Abbamonte about the money Solimene owed for heroin and Solimene’s whereabouts.

The information further alleges as overt acts that on October 13, 1982, Abbamonte placed a telephone call to another individual; on October 14, 1982, Joseph DelVecchio met with another individual in the vicinity of 65th Street and Third Avenue in Manhattan, New York; on or about October 15, 1982, Abbamonte met with another individual and said in substance that he had heroin available in kilogram amounts; on October 18, 1982, Abbamonte met with the undercover agent and another individual at which time Abbamonte said he would sell heroin to the undercover agent for $180,-000 per kilogram; on October 20, 1982, in the vicinity of 61st Street and York Avenue, Abbamonte and DelVecchio sold to the undercover agent approximately three kilograms of approximately 80% pure heroin; on October 28, 1982, Abbamonte met with the undercover agent and arranged for the sale and delivery of approximately seventeen kilograms of heroin; and finally, on or about November 7, 1982, in the vicinity of 55th Street and 1st Avenue, Manhattan, New York, Abbamonte and DelVecchio possessed approximately nine kilograms of approximately 80% pure heroin.

Thus, the overt acts focused on the disappearance of Solimene who owed money for heroin and the events leading up to two street sales in mid-October and early November of 1982.

During a transaction with Special Agent Francioso, the undercover agent mentioned above, Abbamonte stated that he had three partners: Joseph DelVecchio, “a guy from Brooklyn”, and an unknown person whom he did not identify further. Testimony of Agent Snipes, Transcript of July 20, 1985 hearing (“TR”) at 53. After his arrest, Lorenzo DiChiara became an informant and identified himself as the guy from Brooklyn and the fourth, unknown person as the “puller” or importer. TR. at 54-56. DiChiara further identified Ambrodia Farino as the “puller” who traveled to Italy to arrange for the importation of heroin. TR. at 56, 57, 76. The only other individual DiChiara identified as involved in this narcotics organization was Lorenzo Scaduti. TR. at 75.

During the investigation which resulted in the information, no evidence or information arose which indicated that Cotroni, Marra, DiGirolamo or Corcione were involved with the specific narcotics organization that included Farino, Abbamonte, DelVecchio, DiChiara and Scaduti. TR. at 57-58.

C. Guy A. DiGirolamo

On June 16, 1983 Guy DiGirolamo was indicted in the District of Connecticut together with his wife and two sons in United States v. Guy A. DiGirolamo, et al., Crim. No. N-83-44, (“prior Connecticut indictment”) and charged with conspiring to distribute cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A). The conspiracy was alleged to have existed from February 23, 1982 to June 6, 1982 and alleged the distribution of cocaine in Connecticut and elsewhere. Specifically, the indictment charged that:

It was part of said conspiracy that GUY A DiGIROLAMO, a/k/a “Guy, Sr.” and “Toke” would and did supply quantities of cocaine to GAETANO L. DiGIRO-LAMO, Jr. and MARK DiGIROLAMO for sale and distribution to other persons.
It was further part of said conspiracy that GUY A. DiGIROLAMO ... and GAETANO L. DiGIROLAMO, Jr. would and did arrange to “front” and distribute quantities of cocaine to other persons.
It was further part of said conspiracy that GUY A. DiGIROLAMO ..., LUCY DiGIROLAMO, GAETANO L. DiGIRO-LAMO, Jr. and MARK DiGIROLAMO would and did accept payment for quantities of cocaine “fronted” and distributed to other persons.

On May 14, 1984, DiGirolamo pleaded guilty to the conspiracy charged in the prior indictment.

Court-authorized electronic surveillance was conducted between April 8, 1982 and June 6, 1982 over a telephone at the residence of Guy A. DiGirolamo. The affidavit of Special Agent Paul Salute sought authorization to intercept the communications of Guy A. DiGirolamo, Frank Santo Cotroni, Claude Faber, Richard Goulet, Oreste Abbamonte, Alphonse Sisea, Joseph DelVecchio, Michael Mahigel, Victor Riccatelli, Lucy DiGirolamo, and others then unknown over telephone numbers located at 26 Texas Avenue, Bridgeport, CT. Defendants’ Exhibit (“DX”) # 501, Initial Application of April 8, 1982. The affidavit alleged that there was probable cause to believe that those named were committing offenses “involving the importation, manufacturing, distributing, and dispensing, and possessing with intent to manufacture, distribute, and dispense a controlled substance, including heroin and cocaine....” DX # 501 11 3(a). Further, Agent Salute averred that the named targets were involved in an unlawful “business enterprise involving controlled substances” in violation of 21 U.S.C. §§ 841(a)(1), 843(b), 846, 960 and 963. DX # 501 H 3(b).

Richard Genova, a Special Agent of the F.B.I., testified that the principal informant, designated CI-1 in the initial electronic surveillance application, at no time provided any information to the effect that Cotroni was involved in any cocaine dealings with Guy DiGirolamo or anyone else. TR. at 6.

CONCLUSIONS OF LAW

The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution provides that “[n]o person [shall] be subject for the same offense to be twice put in jeopardy of life or limb.” Once there has been a conviction for a certain offense, this clause prohibits a second prosecution for the same offense. Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 2225, 53 L.Ed.2d 187 (1977). In light of the perceived ease with which prosecutors can divide a single conspiracy into separate conspiracies by alleging different overt acts, the Court must look to a number of factors to ensure that separate conspiracies, as opposed to a single conspiracy, exist where separate conspiracies are the offenses alleged. United States v. Papa, 533 F.2d 815 (2d Cir.), cert. denied, 429 U.S. 961, 97 S.Ct. 387, 50 L.Ed.2d 329 (1976); United States v. Mallah, 503 F.2d 971 (2d Cir.1974), cert. denied, 420 U.S. 995, 95 S.Ct. 1425, 43 L.Ed.2d 671 (1975).

In determining the extent of any identity between purportedly separate conspiracies, the Court may consider (1) the criminal offenses charged in the indictments; (2) the participants of the conspiracies; (3) the dates during which the conspiracies existed or were alleged to have existed; (4) the methods of operation; (5) the overt acts done in furtherance of the conspiracies; (6) the geographic scope of the conspiracies; (7) the extent to which the purported conspiracies share a common objective; and (8) the degree of interdependence between the purported conspiracies. United States v. Korfant, 771 F.2d 660, 662 (2d Cir.1985). The Court may consider the totality of the circumstances. “There is no litmus test for determining whether one conspiracy is part of another conspiracy and ... the answer in each case depends on all of the pertinent circumstances.” United States v. Abbamonte, et al., 759 F.2d at 1069.

As the Court of Appeals stated in remanding this case, “once a defendant introduces sufficient evidence that the conspiracies alleged were in fact one, the burden shifts to the government to rebut the inference of unity.” 759 F.2d at 1069, citing United States v. Papa, 533 F.2d at 820-23; United States v. Bommarito, 524 F.2d 140 (2d Cir.1975); United States v. Mallah, 503 F.2d 971. The government must establish these separate conspiracies by a preponderance of the evidence. See United States v. Thomas, 759 F.2d 659 (8th Cir.1985); United States v. Jabara, 644 F.2d 574 (6th Cir.1981).

Defendants Abbamonte and DelVecchio argue that the information to which they pleaded guilty was the distribution phase of the overall Canada-Bridgeport-New York conspiracy alleged in the pending indictment. To create the inference of unity Abbamonte and DelVecchio point to the following: (1) both conspiracies involved the distribution of heroin in the New York City area during 1982; (2) the heroin in both conspiracies came from a source in Italy; (3) there was a similarity or overlap of personnel as illustrated by the statements made by the government at sentencing proceedings in the Southern District which showed that DiGirolamo had been involved with Abbamonte and his partners in drug transactions for a long period of time in the New York area, dating as far back as the mid-seventies when Cotroni, Abbamonte, DelVecchio and DiGirolamo were incarcerated together at the Lewis-burg Penitentiary; and (4) averments in a wiretap application and in an application for extension of the original wiretap order which indicated a single business enterprise involving the key figures in both conspiracies.

In considering the factors outlined above the Court recognizes a certain amount of overlap between the two conspiracies. For example, the statutory violation charged in the pending indictment is identical to that charged in the information, i.e., conspiracy to distribute and possess with the intent to distribute heroin, a schedule I controlled substance, in violation of 21 U.S.C. § 846. Further, the time period alleged in the pending indictment, April 26, 1982 through May 28, 1982, is completely within the time period alleged in the information, April 1, 1982 through January 7, 1983.

The geographic scope of the two purported conspiracies was also somewhat similar since both involved distribution of narcotics in the New York City area. The pending indictment, however, describes a Canada-Bridgeport-New York City distribution scheme, whereas the information made no reference to any scheme by which heroin was imported from Canada or through Bridgeport to New York and appears to have involved direct importation from Italy to New York. Although there was mention in the wiretap application of Agent Salute during the investigation leading to the pending indictment that Cotroni’s heroin was coming from a source in Italy, the government introduced evidence that the heroin which was the subject of the information was imported from Italy by Ambrodia Farino, the “puller”, with no evidence that the heroin came into the country from Canada. TR. at 55-56. Although Snipes conceded the possibility that the heroin may have come through Canada, he testified that he never received information to that effect. Thus, although the geographic scope may have been similar since both conspiracies involved the ultimate distribution of narcotics in the New York City area, the scope of the conspiracy in the pending indictment extended to Canada. Moreover, no connection whatsoever was drawn between Farino and Cotroni as suppliers of heroin from Italy.

Similarity or identity of time period, offense alleged, and geographic location of the conspiracies is not sufficient indication of a single conspiracy. United States v. Papa, 533 F.2d at 821 citing United States v. Mallah, 503 F.2d at 983 (“New York City is large enough to harbor two simultaneous narcotics conspiracies ... ”). The other factors listed above, then, take on greater significance.

With regard to the similarity of participants in the two conspiracies, Agent Snipes testified that the name “Cotroni” did not surface at all during his investigation of DelVeechio and Abbamonte in connection with the information. Agent Snipes further testified that the names Giovanni or “John” Marra, Michael Corcione and Guy DiGirolamo never surfaced during the course of his investigation which resulted in the Southern District information. TR. at 57-58. Defendants argue that the testimony of Agent Snipes left open the possibility that DiGirolamo and others named in the pending indictment could have been involved in the Abbamonte/DelVecchio organization which he investigated in connection with the information. Defendants draw this conclusion from Snipes’ testimony that there could have been other members of the organization which DiChiara, the informant, did not name and that DiChiara never told Snipes that those he did name were the only members of the organization. The Court is not persuaded by this argument, however, in light of Snipes’ testimony that the names of the other co-conspirators in the pending indictment never arose in the course of the investigation. TR. at 57-58. The government is not required here to positively establish that the named co-conspirators in the pending indictment were not involved in any way with the conspiracy alleged in the information, but is rather only required to establish by a preponderance of the evidence that the conspiracy alleged in the pending indictment is a conspiracy separate from the conspiracy to which Abbamonte and DelVeechio pleaded guilty in New York. Thus, on the issue of whether there was an overlap of participants in the two conspiracies, the Court finds that the only clearly established overlap is that of Abbamonte and DelVeechio themselves.

The role of Abbamonte and DelVeechio as New York City distributors in both conspiracies is clear. In the pending indictment they received heroin from Cotroni through DiGirolamo in Bridgeport and in the information they received heroin from Farino and together with DiChiara distributed it in the New York City area. The overlap of two participants, while not insignificant, is not dispositive of the issue of whether two separate conspiracies existed.

The above analysis illustrates what the Court views as different methods of operation in the two conspiracies. The conspiracy alleged in the information involved a scheme by which the narcotics were imported by Farino from Italy for further distribution by Abbamonte, DelVeechio, DiChiara, and Scaduti, whereas the conspiracy alleged in the pending indictment involves a scheme whereby narcotics were imported from Canada, through Bridgeport, for distribution in the New York City area by, among others, Abbamonte and DelVeechio. Additionally, the specific locations for meetings, transfers and collections also differed.

The Court also notes that only the first of the sixteen overt acts alleged in the information occurred during the time period covered in the pending indictment. While the Court recognizes that merely alleging different overt acts may be insufficient to establish separate conspiracies, the Court considers it to be one indication here of separate conspiracies.

Defendants DelVecchio and Abbamonte point to the transcript of the sentencing proceedings of April 1, 1983. DX # 504, “Sentencing Minutes”. During those proceedings, the government contended that the street sales included as overt acts in the information were part of “a whole continuing business.” DX # 504 at 39. The government further stated that Abbamonte and DelVecchio were seen with DiGirolamo “on May 4th, on June 14th, and on July 7, 1982, moving around in the area of Pleasant Avenue with packages.” DX # 504 at 43. The government also pointed out that it had information which showed that DiGirolamo, Abbamonte and DelVecchio had discussed plans to go into the narcotics business together when they were released from the federal penitentiary in Lewisburg, Pennsylvania. The fact that the government included the above statements in its sentencing memoranda and in its comments during the sentencing proceedings is of no great significance since the prosecutor is not limited in his sentencing comments to the particular crime for which the defendant is about to be sentenced. As the government points out in its Proposed Findings of Fact and Conclusions of Law, such information is permissible so as to enable the sentencing judge to “gain a fuller assessment of the defendant so that the punishment will fit the offender and not merely the crime for which he was convicted.” United States v. Piteo, 726 F.2d 53, 54 (2d Cir.1984). No double jeopardy issue is created by subsequent prosecution of a crime adverted to in a sentencing proceeding. Id. Cf. United States v. DeFillipo, 590 F.2d 1228, 1234 (2d Cir.1979) (admission of prior conspiracy as other crimes evidence raises no presumption of double jeopardy). Moreover, as the government points out, defendant DelVecchio represented in his sentencing memorandum that his involvement was the result of “the long tentacles and temptations of agents and informants who ensnared him ...” rather than any long term involvement in a conspiracy. Government’s Exhibit (“GX”) # 2 at 5, 9. The informant and agent apparently referred to did not make contact with either DelVecchio or Abbamonte until October, 1982. TR. at 49. Defendant Abbamonte similarly represented that his involvement in the conspiracy charged was limited to the two week period from October 13, 1982 to November 2, 1982. He denied any long term involvement in the conspiracy. GX # 1 at 9. While the comments made by the defendants at sentencing are not determinative, the Court believes that they provide support for the finding of separate conspiracies.

Defendants also rely on the averment in the wiretap applications and affidavits that there was one overall business among all the key figures to deal in both heroin and cocaine. DX # 501, 502. These statements, however, which might appear to indicate that the government believed that all defendants were engaged in an overall conspiracy to distribute both cocaine and heroin, were drafted “during the investigating phase of this matter to comply with the statutory requirements of 18, United States Code, § 2510, et seq., and do not reflect any legal or factual conclusions or judgments beyond those required by the language of said statute.” Affidavit of William A. Keefer, June 20, 1985, GX # 3. See Government’s Proposed Findings of Fact and Conclusions of Law at 9-12. The government describes the paragraphs of the application as purely descriptive in nature and states that they offer no analysis or theory of conspiratorial culpability. While the government was required to list all the potential interceptees or targets of investigation, the government was not required to set forth its theory of culpability as to every target. 18 U.S.C. § 2518(1)(b)(i) and (iv).

Finally, the Court finds no indication of interdependence between the conspiracies. Each conspiracy could have continued completely independently of the other.

Thus, although there are, as the Court of Appeals noted, certain factors which point toward one overall conspiracy to deal in both heroin and cocaine, such as the overlap of time and place, and to a certain extent, personnel, the other factors which indicate separate conspiracies, such as different overt acts, a variance in personnel at the important stage of source or importer of narcotics, a lack of interdependence between the conspiracies, and a different method of operation, are of greater significance and require the finding of two separate conspiracies.

With regard to DiGirolamo’s double jeopardy claim, after an analysis of all the circumstances and consideration of the eight factors, the Court finds that the prior Connecticut indictment and the pending indictment, both returned by the same grand jury, allege separate conspiracies. The offenses alleged in the two indictments are different. The prior indictment alleges a conspiracy to distribute a Schedule II controlled substance, cocaine, in violation of 21 U.S.C. § 846 and the pending indictment alleges a conspiracy to distribute a Schedule I controlled substance, heroin, in violation of 21 U.S.C. § 846. The time period of the conspiracies overlapped for approximately two months from April 1, 1982 to June 6, 1982. The geographic location of the conspiracy charged in the prior indictment was the District of Connecticut and elsewhere. The government argues that the phrase “and elsewhere” was included for venue purposes and cites United States v. Sinito, 723 F.2d 1250, 1258-59 (6th Cir.1983). Although the Court does not specifically adopt this argument, it notes that the government’s anticipated proof at trial did not involve any action occurring outside the District of Connecticut.

The prior indictment did not specifically allege overt acts, but it did allege that as part of the conspiracy (1) Guy DiGirolamo supplied cocaine to Mark DiGirolamo and Gaetano L. DiGirolamo, Jr. (his two sons) for sale and distribution to others; (2) Guy DiGirolamo and his two sons “fronted” and distributed cocaine to others; and (3) Guy DiGirolamo, Lucy DiGirolamo, Gaetano DiGirolamo, Jr. and Mark DiGirolamo accepted payment for cocaine which had been fronted and distributed to others. These allegations are entirely different from the alleged overt acts in the pending indictment described above. See supra, at 1431.

The methods of operation were also different in that, in the conspiracy to which DiGirolamo pleaded guilty, members of his family played key roles, whereas there is no evidence that the members of his family played any role in the heroin distribution conspiracy alleged in the pending indictment. Further, the informant designated CI-2 in the April 8, 1982 wiretap application, DX # 501, advised the government that DiGirolamo’s cocaine was supplied by persons from one of the New York “families”, indicating that Cotroni, in Canada, was not a supplier of DiGirolamo’s cocaine. Paragraph 36a of the same affidavit indicates that CI-1 also advised the government that “DiGirolamo continues to travel to New York and Long Island to see “Ernie Boy” Abbamonte, who continues to be DiGirolamo’s main source of cocaine.” DX #501. Thus while there was some overlap of personnel, notably Abbamonte, the participants were substantially different in that the cocaine distribution conspiracy primarily involved the members of DiGirolamo’s family.

The Court finds further that there was no evidence of interdependence of the conspiracies. While all narcotics distribution conspiracies may be considered to have as an ultimate common objective the distribution of narcotics, there is no evidence that these conspiracies sought the same specific objective.

For the foregoing reasons, the Court finds that the government has put forward sufficient evidence to show by a preponderance of the evidence that the conspiracies alleged in the pending indictment, the Southern District information, and the pri- or Connecticut indictment constitute separate conspiracies. The motions to dismiss on grounds of double jeopardy are, therefore, DENIED.

      . The pending indictment also includes three counts of substantive offenses of transporting over $5,000 in U.S. currency into Canada without filing a certain customs form in violation of 31 U.S.C. §§ 5316, 5322(b) and 18 U.S.C. § 2. These latter counts are not at issue in the instant motions.

      . The Court recognizes the seeming inconsistency between this testimony and the statements made by the government at sentencing and in its sentencing memorandum. The Court addresses the government's statements infra at pages 1435-36. On the basis of that discussion, the Court finds that this possible inconsistency is not significant. The issue raised by the pending motions is whether the conspiracies alleged in the pending indictment and in the information constitute separate conspiracies. The government’s knowledge of other dealings between Abbamonte and DelVeechio and DiGirolamo which they brought to the sentencing judge’s attention at the time of sentencing is not necessarily indicative of a single conspiracy and is outweighed by the other factors which establish separate conspiracies.


author: HADEN, Chief Judge.

text:
    Brenda L. TURLEY, Plaintiff, v. UNION CARBIDE CORPORATION, Defendant.
    Civ. A. No. 84-2330.
    United States District Court, S.D. West Virginia, Charleston Division.
    Oct. 9, 1985.
    Alfred B. MeCuskey, II, St. Albans, W.Va., for plaintiff.
    Roger A. Wolfe, Jackson, Kelly, Holt & O’Farrell, Charleston, W.Va., for defendant.
   MEMORANDUM OPINION AND ORDER

HADEN, Chief Judge.

Pending before the Court is the Defendant’s motion to dismiss or in the alternative for summary judgment. In support of its motion, the Defendant has a filed a lengthy and well-written brief. In response, the Plaintiff asserts that the motions are untimely.

The Plaintiff, in arguing that the Defendant’s dispositive motions come too late, points to this Court’s Pretrial Procedures and Final Scheduling Order of December 14, 1984. That Order set May 30, 1985, as the deadline for filing dispositive motions. The Defendant acknowledges that that deadline has come and gone, but contends that it has good cause for why the Court should now consider its motions. The Defendant argues that the grounds in support of its motions were not fully exposed until the Plaintiff “had completed her pretrial submissions required by this Court in the above-mentioned Order.” Counsel may or may not be aware that this Court as a matter of procedure set the deadline for dispositive motions to be thirty days after the discovery cutoff date. In this ease, discovery was scheduled to end on April 30, 1985; therefore, the deadline for dispositive motions was set as May 30, 1985. This thirty-day “grace period” allows counsel to assimilate and organize the information gathered during discovery for use in any dispositive motion which may be appropriate for the Court’s consideration. Upon Plaintiff’s motion, the discovery in this case was reopened until September 10,1985. In the Order which extended discovery, the Court expressed some reservations about the good cause shown by the Plaintiff. Nevertheless, in the interest of justice, the motion was granted.

The record does not clearly reflect whether the Defendant was hindered by the delay of discovery completion or by other pretrial delays. In any event, at the pretrial conference in this action, September 3, 1985, the Defendant submitted its motions with supporting memoranda. The Court then set up a briefing schedule for Plaintiff to respond. At no time did the Plaintiff’s counsel object to the procedure. The Court does not now consider the Plaintiff’s objection to be well taken. The Court also regrets that it does not have the benefit of Plaintiff’s argument in considering the motions before the Court.

I. Statute of Limitations

The Defendant makes a compelling argument that the statute of limitations for this action should be one year from the date of discharge. Plaintiff was discharged from Defendant’s employment on March 9, 1983. She filed a complaint with the West Virginia Human Rights Commission charging the Defendant with acts of discrimination because of her sex and handicap. The Commission issued a right-to-sue notice dated December 15, 1983. The Plaintiff thereafter filed suit in Kanawha County Circuit Court on August 1, 1984. The action was then removed to this Court by the Defendant. The applicable statute dictates that a recipient of a right-to-sue notice may bring suit within ninety days of the notice or until the end of the applicable statute of limitations, whichever is later. W.Va.Code, § 5-ll-13(b). Accepting arguendo the one year limitation period advocated by the Defendant, the latest the Plaintiff could have filed this action was March 14, 1984. Thus, her action, filed several months after that date, would be untimely.

The Defendant partly bases its argument on W.Va.Code, § 55-2-12, which provides, in pertinent part, as follows:

“Every personal action for which no limitation is otherwise prescribed shall be brought: ... (c) within one year next after the right to bring the same shall have accrued if it be for any other matter of such nature that, in case a party die, it could not have brought at common law by or against his personal representative.”

The Defendant also tenders the West Virginia authority Snodgrass v. Sisson’s Mobile Sales, Inc., 161 W.Va. 588, 244 S.E.2d 321 (1978), which holds that W.Va.Code, § 55-2-12 must be read in pari materia with W.Va.Code, § 55-7-8a(a), since both relate to the same subject matter and were adopted as part of a common plan. Id. 244 S.E.2d at 324. W.Va.Code, § 55-7-8a(a) provides, in pertinent part, as follows:

“(a) In addition to the causes of action which survive at common law, causes of action for injuries to property, real or personal, or injuries to the person and not resulting in death, or for deceit or fraud, also shall survive; and such actions may be brought notwithstanding the death of the person entitled to recover or the death of the person liable.”

The West Virginia Supreme Court has held that “[t]he effect of this subsection is to create statutory survivability for the causes of action contained therein to parallel the same causes of action set out in W.Va.Code, 55-2-12(a) and (b).” Snodgrass at 324-25. Hence, an action based in fraud and deceit is subject to a two-year limitations period.

In Stanley v. Sewell Coal Co., 285 S.E.2d 679 (W.Va.1981), the West Virginia Supreme Court addressed the question of the applicable statute of limitations for a wrongful discharge suit brought under the authority of Harless v. First National Bank in Fairmont, 162 W.Va. 116, 246 S.E.2d 270 (1978). Harless had sanctioned a civil remedy for an employee who was discharged from an employment at-will position in contravention of a substantial public policy principle — in that case, reporting statutory violations. After giving a broad interpretation to the legal concept of “fraud and deceit,” the Stanley Court concluded “that the underlying principles of a retaliatory discharge cause of action are sufficiently related to an action for fraud and deceit so that the two-year statute of limitations applies under W. Va. Code, 55-2-12, and W.Va.Code, 55-7-8(a).” Stanley at 683. The Defendant’s task here, obviously, is to distinguish the holding in Stanley.

The Defendant argues that it would not be logical to extend the holding in Stanley to discrimination claims under the West Virginia Human Rights Act. It points out that whereas the Harless wrongful discharge action is entirely a creation of the Court, an action under the Human Rights Act is one of statutory origin. It thus concludes that “any attempt to equate the two causes of action proceeds from a false assumption.” Without aid of further elaboration by the Defendant, the Court fails to see why one needs to proceed with this assumption which the Defendant labels as false. Certainly, the two actions have different origins. The Court, however, is not precluded from equating the two simply because of differing origins. Indeed, it is precisely because of this difference that the Court must — as part of a careful analysis — look for similarities.

The Defendant states that the decision in Stanley “may be read in one of two ways. Either it stems from the peculiar nature of the retaliatory discharge cause of action as created in Harless, or it stands for the proposition that any act which contravenes a substantial public policy constitutes fraud and deceit and is, therefore, survivable under W.Va.Code, 55-7-8(a).” The Court cannot agree with this characterization; it sets forth a false dilemma. The Defendant would have the Court believe that if Stanley cannot be limited to the narrow facts and holding of Harless, then it must be broadly interpreted to stand for “the proposition that any act which contravenes a substantial public policy constitutes fraud and deceit.” This case does not involve “any act”; it involves, in part, an alleged discharge from employment for reasons which — according to the West Virginia Legislature — contravene public policy. Hence, the reasoning of Stanley appears to govern. The Defendant may be at liberty to portray the Stanley Court as one using “convoluted analysis” and propogating “an amazing piece of verbal sleight-of-hand.” This Court, however, as a federal court sitting in diversity, is not willing or able to second guess the judgment of the highest court of West Virginia. Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938).

To further support its argument that a one-year limitations period should pertain, the Defendant cites W.Va.Code, § 5-11-13 and its discrete time periods. Specifically, the Defendant points out that an individual must file his or her complaint with the Commission within ninety days of the incident upon which the complaint is based. The Commission than has 180 days to hold a public hearing; if it fails to do so, a right-to-sue notice must be given to the complainant. The complainant then has ninety days to bring suit. From this series of time periods, the Defendant deduces a legislative intent to place a one-year limitations period on actions under the Human Rights Act. The Court, on the other hand, finds that if the statutory language embodies any legislative intent, it is an intent to leave the determination of the limitations period to authority outside of W.Va.Code, § 5-11-13. Otherwise, the Legislature would not have provided for the contingency whereby an applicable statute of limitations had not expired. It could have just allowed the time periods in the statute to act of their own force. In summation, the Court believes the statutory section cited by the Defendant only to evince a legislative intent to place the parties back into the traditional judicial system after a period of time, not to prescribe of its own weight a limitations period.

II. Plaintiffs Claim of Handicap Discrimination

The Defendant contends that the Plaintiff has abandoned her handicap discrimination claim. The basic facts appear to be as follows:

1. Both the Plaintiffs amended complaint before the West Virginia Human Rights Commission and her complaint in this civil action asserted that she was discriminated against on the basis of a handicap.

2. This 'Court’s Order of December 14, 1984, directed the parties to submit suggested findings of fact, suggested conclusions of law and a proposed pretrial order covering all pertinent claims and theories.

3. The Plaintiff submitted the three above documents without mentioning the handicap claim.

4. The Defendant extensively discussed the handicap claim in its submissions.

Accordingly, the Court finds that the Plaintiff has abandoned her handicap claim. She may not recover upon this claim at trial; however, the underlying facts of such claim may be admissible where relevant to other claims.

III. Sex Discrimination

The Defendant contends that a claim based upon sexual harassment does not state a cause of action under West Virginia law. Before turning to this argument, the Court first finds that no genuine issue of material facts exists as to the Plaintiff’s sexual harassment claim. Hence, judgment is appropriate as a matter of law. In this instance, the Court finds the Defendant to be entitled to summary judgment. Therefore, the Court need not and does not address the Defendant’s argument as to the validity of this type of action.

Sexual harassment has been defined as “the unwanted imposition of sexual requirements in the context of a relationship of unequal power.” C. MacKinnon, Sexual Harassment of Working Women, 1 (1979), quoted in note “Sexual Harassment Claims of Abusive Work Environment under Title VII,” 97 Harv.L.Rev. 1449 (1985). The EEOC guidelines on sexual harassment, 29 C.F.R. § 1604.11 (1983), opened with the following comment:

“(a) Harassment on the basis of sex is a violation of Sec. 703 of Title VII. Unwelcome sexual advances, requests for sexual favors and other verbal or physical conduct of a sexual nature constitute sexual harrassment when (1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment, (2) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual, or (3) such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment.”

This action is not brought under Title VII; therefore, the Guidelines are not expressly applicable. Nevertheless, the Court does not believe that the guidelines provide insight into the nature of a sexual harassment theory. The theory rests upon conduct which can be characterized as sexual. “Sex” in this instance does not mean gender. Rather, it is used pursuant to its more popular meaning. Thus, while the harassment may be directed at a member of the female sex, it is a harassment which plays upon the stereotypical role of the female as a sexual object. See Katz v. Dole, 709 F.2d 251 (4th Cir.1983); Henson v. City of Dundee, 682 F.2d 897 (11th Cir.1982).

In reviewing the record of this case, the Court is of the opinion that there are no facts which would support a finding of sexual harassment as that term has come to be used in employment discrimination law. The Plaintiffs complaint is based upon the actions of one person, her foreman. Her own testimony, however, reveals that the Plaintiff was not subjected to harassment of a sexual nature. The foreman did not demand sexual relations, he did not touch her or make sexual jokes. Instead, it appears that he harassed her in a nonsexual manner. The Plaintiff alleges that he was “picking on me all the time.” The Plaintiff also alleges that the foreman treated her differently than the male employees. On these facts, the Plaintiff states a cause of action for sex discrimination. It does not, however, fall under the label of sexual harassment.

The distinction between a theory based on sexual harassment and one based on general sex discrimination is more than a matter of semantics. The distinction lies in the analysis to be applied. In Katz, the Fourth Circuit held that, unlike a disparate treatment analysis, an analysis of a sexual harassment claim does not center on a discriminatory motive. Rather, “the most difficult legal question typically will concern the responsibility of the employer for that harassment.” Katz at 255. Without straying too far from what needs to be answered here, the Court believes that a disparate treatment analysis is appropriate under these facts. See McDonell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). The McDonell test may, of course, need to be modified to meet the special facts of this case. Burdette v. FMC Corp., 566 F.Supp. 808 (S.D.W.Va. 1983) (McDonell test not to be ritualistically applied).

Accordingly, it is hereby ORDERED that:

1. The Defendant’s motion for summary judgment on the statute of limitations issue is denied.

2. The Defendant’s motion for summary judgment on the Plaintiff’s handicap discrimination claim is granted.

3. The Defendant’s motion for summary judgment on the Plaintiff’s sexual harassment theory is granted.

The Clerk is directed to send a certified copy of this Memorandum Opinion and Order to counsel of record.


author: SPRIZZO, District Judge:

text:
    BROSS UTILITIES SERVICE CORP., the Theodore D. Bross Line Construction Corporation, Plaintiffs, v. Abdulla Fouad A. ABOUBSHAIT, Abdulla Fouad A. Aboubshait Establishment, Fouad Abdulla Fouad, Fouad Abdulla Fouad Corporation, Defendants.
    No. 81 Civ. 6972 (JES).
    United States District Court, S.D. New York.
    Oct. 9, 1985.

      Mark C. Yellin, West Hartford, Conn., for plaintiffs.
    Chadbourne, Parke, Whiteside & Wolff, New York City, for defendants; Stuart D. Baker, Donald I. Strauber, James C. La-Forge, of counsel.
   OPINION AND ORDER

SPRIZZO, District Judge:

BACKGROUND

In March of 1974, plaintiff, The Theodore D. Bross Line Construction Corp. (“Bross Line”), received a letter from S.S. Ayntrazi, managing director of the Electrical and Instrumentation Division of Abdulla Fouad in Saudi Arabia, concerning possible “cooperation” between that company and Bross Line with respect to work related to the generation, transmission, and distribution of electrical power. Bross Line, a Connecticut corporation, is a wholly-owned subsidiary of plaintiff Bross Utilities Service Corp. (“Bross Utilities”), a holding company and also a Connecticut corporation.

Plaintiffs entered into extensive negotiations with defendants Abdulla Fouad A. Aboubshait (“Fouad”) and Fouad Abdulla Fouad, both Saudi Arabian citizens, regarding the project. In January of 1975, Bross Utilities incorporated a wholly-owned subsidiary in Grand Cayman Islands, British West Indies, named Bross International, Ltd. (“Bross International”), and, in April of 1975, Bross International, defendant Fouad Establishment and Emeco Intemational Engineers Contractors (“Emeco”), a Lebanese company, entered into an “Association Agreement” to form a joint venture company in accordance with the laws of Saudi Arabia, called Fouad Bross EmecoElectrical Engineers, Contractors (“FBE”). The company was formed in accordance with the terms of the Association Agreement.

The stated business of FBE was to “carry out operations involved in the fabrication, construction, erection, commissioning and maintenance of electrical works related to generating plants, substations, transmission and distribution lines and related services.” See Ex. B to Plaintiffs’ Memorandum in Opposition to Defendants’ Motion for Summary Judgment (“PI. Memo, in Opp.”) at 1 (“Association Agreement”). The FBE agreement and subsequent by-laws provided that Fouad Establishment would have a 50% interest in the profits of FBE, and that Bross International and Emeco would have 31.5% and 18.5% interests respectively. FBE would be managed by its board of directors, with two directors to be appointed by Bross International and one each by Fouad Establishment and Eméco. Id. at 4. In 1976, Fouad Establishment and Bross International removed Emeco from the joint venture and continued working under the name Abdulla Fouad & Bross (“Fouad & Bross”).

Plaintiffs have sued defendants for alleged breaches of (1) the FBE/Fouad & Bross joint venture, and (2) an alleged overarching oral partnership agreement between plaintiffs and defendants. Defendants have moved for summary judgment pursuant to Fed.R.Civ.P. 56, on the ground that there is no factual support for the claim of an oral agreement, and that plaintiffs cannot sue for violations of either the FBE or Fouad & Bross agreements, as they were not parties to those contracts.

Plaintiffs contend that summary judgment is improper because (1) the separate corporate existence of Bross International can be disregarded to allow plaintiffs, the real parties in interest to the FBE joint venture, to assert claims against defendants with respect to the FBE joint venture; (2) Fouad & Bross was a joint venture undertaken directly between defendants and plaintiffs; and (3) there is a genuine issue of material fact as to whether an overarching oral partnership agreement exists between plaintiffs and defendants with respect to the joint venture.

DISCUSSION

1. Breach of the FBE Agreement

The Court agrees with defendants that plaintiffs cannot assert any claims based upon breach of the FBE joint venture agreement. Plaintiffs concede that Bross International, the foreign subsidiary of Bross Utilities, was the only Bross company party to that agreement. The contract refers only to Bross International, and is subscribed only by Bross International. Plaintiffs contend, however, that Bross International is merely a shell corporation created for tax purposes and that plaintiffs were the real parties in interest with respect to the contract with defendants. Therefore, they argue that the Court should pierce the corporate veil between Bross Utilities and Bross International and allow plaintiffs to assert any claim of Bross International arising from the joint venture with defendants.

Plaintiffs’ argument clearly lacks merit. The deposition testimony of plaintiffs’ own officers, some of whom were also officers of Bross International, demonstrates that while Bross Line was the party originally contacted by defendants, and while plaintiffs engaged in negotiations with defendants, plaintiffs chose to create a subsidiary to enter into the written agreement with defendants.

Plaintiffs have cited no authority for their contention that they should be permitted to disregard the separate corporate existence of Bross International in order to sue defendants. It is well-established that, under New York law, “a corporation is a ‘creature of the law, endowed with a personality separate and distinct from its owners’ and ... the ‘dual personality of parent and subsidiary is not lightly disregarded.’ ” See Boise Cascade Corp. v. Wheeler, 419 F.Supp. 98, 102 (S.D.N.Y. 1976), aff'd without opinion, 556 F.2d 554 (2d Cir.1977) (quoting Berger v. Columbia Broadcasting System, Inc., 453 F.2d 991, 994 (5th Cir.1972)). A parent corporation cannot create a subsidiary corporation and then ignore the separate corporate existence of that subsidiary whenever it would be advantageous to the parent. See, e.g., Carey v. National Oil Corp., 592 F.2d 673, 676 (2d Cir.1979); In re Beck Industries, Inc., 479 F.2d 410, 418 (2d Cir.1973); Commissioner of Internal Revenue v. Schaefer, 240 F.2d 381, 383 (2d Cir.1957).

Thus, the courts will not allow a parent to pierce the corporate veil it created for its own benefit, so as to assert the claims of its subsidiary. See, e.g., Carey, supra, 592 F.2d at 676; Coast Manufacturing Co. v. Keylon, 600 F.Supp. 696, 698 (S.D.N.Y.1985); Boise Cascade, supra, 419 F.Supp. at 102; Colin v. Altman, 39 A.D.2d 200, 202, 333 N.Y.S.2d 432, 433-34 (1st Dept.1972); Ipco Hospital Supply Corp. v. Consolidated Edison Co., 100 Misc.2d 789, 791, 420 N.Y.S.2d 78, 80 (Sup.Ct.1979). “[That] procedure is only permissible against a purported stockholder who is using the corporate veil to defraud.” See Boise Cascade, supra, 419 F.Supp. at 102 (quoting Colin, supra, 39 A.D.2d at 202, 333 N.Y.S.2d 433) (emphasis added).

Plaintiffs’ allegation that Bross International was a shell corporation created solely for tax purposes is irrelevant. In Boise Cascade, supra, the court rejected plaintiff’s argument that it could assert the claims of a corporation of which it was sole shareholder, because plaintiff alleged that the corporation was a “dummy” and that plaintiff had performed the corporation’s obligations under a contract between the corporation and defendant. The Boise Cascade court noted that stock ownership is not equivalent to ownership of corporate property, including the corporation’s claims under a contract. See id. at 101-02.

This result is unaffected by the circumstance that Bross International has apparently been dissolved, or that Bross Utilities may have guaranteed performance of contracts entered into by FBE. It is also irrelevant that plaintiffs may have performed work under the FBE agreement on behalf of Bross International. This is a common practice in parent/subsidiary relationships, which does not create a contractual relationship between plaintiffs and defendants.

2. Breach of Fouad & Bross Agreement

Plaintiffs claim that Fouad & Bross, the joint venture created when Emeco was removed from FBE in or about September of 1976, was a “direct” contract between plaintiffs and defendants. Plaintiffs’ own deposition testimony and the other documents before the Court demonstrate, however, that the change from FBE to Fouad & Bross was, in effect, merely a change of name reflecting the removal of Emeco from the joint venture, and that Bross International, not Bross Line or Bross Utilities, was the actual party to the Fouad & Bross contract. There is no evidence of any contract between plaintiffs and defendants. Therefore, for the same reasons as noted above with respect to the claims based on the FBE agreement, plaintiffs cannot sue on any claims of Bross International arising from the Fouad & Bross joint venture.

3. Overarching Oral Partnership

Plaintiffs allege that, in addition to the written joint venture agreements to which Bross International was a party, there existed an overarching oral partnership agreement between plaintiffs themselves and defendants, which defendants breached. According to plaintiff, this agreement was entered into at some time prior to the creation of Fouad & Bross, and apparently at about the same time as the creation of FBE. To support this contention, plaintiffs point to the initial contact of plaintiff Bross Line by defendants, the correspondence and negotiations between plaintiffs and defendants, and the fact that plaintiffs allegedly performed all of Bross International’s obligations under the written agreements.

Plaintiffs argue that, given these facts, this case is substantially similar to Louis Dreyfus Corp. v. ACLI International, Inc., 52 N.Y.2d 736, 417 N.E.2d 562, 436 N.Y.S.2d 268 (1980), wherein the New York State Court of Appeals recognized an overarching oral partnership agreement between two parent corporations to share profits under a partnership contract between their subsidiaries. The Dreyfus court held that a merger clause in the written contract between the subsidiaries did not bar enforcement of the separate oral agreement between the parents which contained material terms not encompassed by the written contract. Id. at 739, 417 N.E.2d at 563, 436 N.Y.S.2d at 269.

The deposition testimony of plaintiffs’ own witnesses demonstrates, however, that Dreyfus is inapposite to this case. Plaintiffs do not allege that an oral agreement differing in its terms from the FBE agreement existed between plaintiffs and defendants. Rather, they argue that the oral agreement was exactly the same as the FBE agreement and encompassed the same terms, but that plaintiffs, rather than Bross International, were involved. Moreover, the testimony of plaintiffs’ own witnesses clearly established that there is no factual support for such an oral agreement, even if one had been alleged. Eugene Bross, president of both Bross Utilities and Bross Line, testified that no other joint venture agreement existed but the written FBE and Fouad & Bross contracts. Indeed, he conceded that Bross Utilities and Bross Line intended to carry out the business with defendants through Bross International, which was formed for tax purposes. Theodore Bross, Chairman of the Board of Bross Utilities and former president and Chairman of Bross Line, also testified that there was only one agreement between all the parties, made through Bross International for tax purposes. Joseph Kelly, vice-president of Bross Lines, likewise testified that the only agreements which existed were the written agreements, which were made through Bross International and which incorporated all prior agreements which had been reached during negotiations between the parties.

Therefore, to permit plaintiffs to sue on an oral partnership theory on the facts of this case would in effect nullify the rule which prevents a parent corporation from ignoring or bypassing the separate corporate existence of its subsidiary for its own benefit, because any corporation which negotiated with another party, but used a subsidiary to contract with that party, could claim that, in addition to the written contract, there existed an overarching oral partnership identical to the written contract to which the parent was a party. Such a holding would clearly subvert the policies, reflected in the cases cited above, which refuse to permit a piercing of the corporate veil for the benefit of a parent corporation.

It is therefore clear that defendants are entitled to summary judgment on this claim. Plaintiffs are correct in asserting that were there any genuine issue of material fact as to whether the alleged oral partnership existed, the Court would have to deny summary judgment. See, e.g., Fed.R.Civ.P. 56; Quinn v. Syracuse Model Neighborhood Corp., 613 F.2d 438, 445 (2d Cir.1980). The Court also recognizes that it “must resolve all ambiguities and draw all reasonable inferences in favor of the party against whom summary judgment is sought.” See, e.g., Quinn, supra, 613 F.2d at 445 (quoting Heyman v. Commerce & Industry Insurance Co., 524 F.2d 1317, 1320 (2d Cir.1975)). However, it is also clear that on a motion for summary judgment, where defendant has established that no genuine issues of material fact exist, plaintiff cannot merely rely on the allegations of the complaint, see, e.g., Gatling v. Atlantic Richfield Co., 577 F.2d 185, 187 (2d Cir.), cert. denied, 439 U.S. 861, 99 S.Ct. 181, 58 L.Ed.2d 169 (1978); Dressler v. MV Sandpiper, 331 F.2d 130, 132-33 (2d Cir.1964), but must put forth facts to support his claims. See, e.g., Research Automation, supra, 585 F.2d at 33; Gatling, supra, 577 F.2d at 187; Beal v. Lindsay, 468 F.2d 287, 291 (2d Cir.1972).

Plaintiffs have failed to meet this burden. Despite being afforded repeated opportunities by the Court to do so, plaintiffs have submitted no evidence to support their contention that there was any agreement in addition to the written FBE/Fouad & Bross contracts. In the face of the deposition testimony of plaintiffs’ officers, which contradicts the claim of a separate oral partnership, plaintiffs’ counsel’s argument that such an agreement existed and could be proved at trial is insufficient to defeat a motion for summary judgment.

While the selective reading of the affidavits or depositions which plaintiffs advocate might create the illusion of an issue of fact as to the existence of an oral agreement, a consideration of all of the evidence demonstrates that there are no genuine issues of material fact requiring a trial. Contrary to plaintiffs’ contention, the Second Circuit has rejected the rule that summary judgment is appropriate only where there is not the “slightest doubt” as to the facts. See, e.g., Gatling, supra, 577 F.2d at 188; Beal, supra, 468 F.2d at 291; cf. Quinn, supra, 613 F.2d at 445. Therefore, summary judgment in favor of defendants is proper, and shall be entered accordingly.

It is SO ORDERED.

      . Other defendants are Abdulla Fouad A. Aboubshait Establishment (“Fouad Establishment”), a Saudi Arabian corporation of which defendant Fouad is chairman and sole shareholder, and Fouad Abdulla Fouad Corp., another Saudi Arabian corporation of which defendant Fouad Abdulla Fouad is chairman and sole shareholder.

      . Plaintiffs originally claimed to be successors in interest to Bross International. The Amended Complaint deleted this contention.

      . The Court assumes that New York law is applicable in this case. While plaintiffs are both Connecticut corporations and defendants are all foreigners, no party has asserted that any law other than that of New York should govern this action, nor has any proof of foreign law been submitted. Therefore, the Court will apply the law of the forum. See, e.g., O'Rourke v. Eastern Air Lines, Inc., 730 F.2d 842, 846-47 (2d Cir. 1984); Vishipco Line v. Chase Manhattan Bank, N.A., 660 F.2d 854, 860 (2d Cir.1981), cert. denied, 459 U.S. 976, 103 S.Ct. 313, 74 L.Ed.2d 291 (1982); Rinieri v. News Syndicate Co., 385 F.2d 818, 820 n. 3 (2d Cir.1967).

      . Plaintiffs have argued for the first time in their post-argument papers that the guarantee by Bross Utilities of a contract entered into by ' FBE with Arabian American Oil Co. constituted an amendment of the FBE agreement adding Bross Utilities as a “direct party” to the FBE joint venture. This claim is not stated in the complaint. However, it is clear that merely furnishing a guarantee does not make the guarantor a partner of the partnership whose performance the guarantor has guaranteed.

      . Funds of Funds, Ltd. v. Arthur Andersen & Co., 545 F.Supp. 1314 (S.D.N.Y.1982), cited by plaintiffs as authority for their contention that a parent may assert the claims of its subsidiary, is clearly inapposite. In that case the court noted that the subsidiary had assigned its rights to the parent and had agreed that the parent should pursue the subsidiary’s claims against the defendants. See id. at 1371.
      The Court would also have no subject matter jurisdiction were Bross International named as plaintiff, as the action would then be one solely between aliens. See, e.g., Corporacion Venezolana de Fomento v. Vintero Sales Corps., 629 F.2d 786, 790 (2d Cir.1980), cert. denied, 449 U.S. 1080, 101 S.Ct. 863, 66 L.Ed.2d 804 (1981); ITT v. Vencap Ltd., 519 F.2d 1001, 1015 (2d Cir.1975).

      . While plaintiffs argue that Peter Olsen, senior vice-president and director of both plaintiffs and president of Bross International, testified that Bross Utilities, rather than Bross International, was a party to the Fouad & Bross venture, this clearly misrepresents Olsen's testimony. Although Olsen stated that Bross Utilities was the real party in interest to the Fouad & Bross venture, on cross-examination he conceded that he probably signed the Fouad & Bross agreement on behalf of Bross International, although he could not be sure without seeing the actual contract to refresh his recollection. See Olsen Deposition at 152. Indeed, Mr. Olsen admitted that, although everything he did was for Bross Utilities, Bross International was used as a vehicle for tax reasons. The parties have not submitted to the Court the Fouad & Bross contract, but every other document submitted regarding Fouad & Bross, including documents signed by Mr. Olsen, refer to Fouad & Bross as a partnership to which only Bross International was a party. Plaintiffs' failure to produce a Fouad & Bross contract signed by Bross Utilities supports the conclusion that that was very likely true of that contract as well. In any event, in the absence of any oral or written evidence establishing that the Fouad-Bross contract was signed on behalf of Bross Utilities, the Court must reject plaintiffs' contention that there is a material issue of genuine fact as to whether Bross Utilities or Bross International was party to the Fouad & Bross contract.

      . The Court rejects plaintiffs’ latest theory, argued for the first time in its post-argument papers, that the FBE agreement in fact covered only work to be done in Saudi Arabia, but not any work done outside that country, and that a separate oral agreement existed between plaintiffs and defendants with respect to the work required to be done in the United States and elsewhere. As noted above, the plaintiffs’ own officers testified that there was only one agreement, and that it was embodied in the written contracts. The deposition testimony and documents submitted by the parties provide absolutely no support for plaintiffs’ new argument regarding separate agreements for work done inside and outside Saudi Arabia. Indeed, it demonstrates that work done in the United States was part of the duties of Bross International under the joint venture agreements. Plaintiffs cannot defeat summary judgment by raising an "issue” so late in the proceedings for which they have offered no factual support. See, e.g., S.E.C. v. Research Automation Corp., 585 F.2d 31, 33 (2d Cir.1978); Gatling v. Atlantic Richfield Co., 577 F.2d 185, 188 (2d Cir.), cert. denied, 439 U.S. 861, 99 S.Ct. 181, 58 L.Ed.2d 169 (1978).

      . In a statement submitted pursuant to Rule 3(g) of the Civil Rules of the United States District Courts for the Southern District of New York, plaintiffs state that they also assert claims arising from interference by defendants with the contractual relationship of Bross Utilities with Arabian American Oil Co. The amended complaint makes clear, however, that these allegations are premised on the claim that Bross Utilities was a party to the FBE joint venture and to the contract which Arabian American Oil Co. awarded to FBE and which Bross Utilities guaranteed. The Court has rejected this claim. Plaintiffs state that they also sue for interference by defendants with the contractual relationship between Bross Line and its employees in the United States. Once again, the amended complaint makes clear that plaintiffs allege that defendants interfered with the joint venture workforce. Since the Court has concluded that Bross Line was not a party to the joint venture, this claim must be dismissed.


text:
    Jonna T. LINGLE, Plaintiff, v. NORGE DIVISION OF MAGIC CHEF, INC., a Delaware Corporation, Defendant.
    Civ. No. 85-4426.
    United States District Court, S.D. Illinois, Benton Division.
    Oct. 9, 1985.
    Freddy L. Shapiro, Murphysboro, 111., for plaintiff.
    R. Michael Kimmel, Gilbert, Kimmel, Huffman & Prosser, Carbondale, 111., for defendant.
   MEMORANDUM AND ORDER

FOREMAN, Chief Judge:

Before the Court is defendant’s Motion to Dismiss for lack of jurisdiction and plaintiff’s response thereto.

This one count complaint for retaliatory discharge was originally brought in State Court. Plaintiff claims that she was terminated from her job by the defendant for exercising her rights under the Illinois Workers’ Compensation Act. Ill.Rev.Stat. ch. 48, § 138.1 et seq. Defendant argues that plaintiff’s claim is governed by a collective bargaining agreement requiring grievance and arbitration of the dispute, and that under the National Labor Relations Act (LMRA), any state law remedies which plaintiff may have are preempted. The Court agrees with the defendant.

In determining the issue of preemption, this Court is guided by the recent United States Supreme Court decision in Allis-Chalmers Corp. v. Lueck, — U.S. -, 105 S.Ct. 1904, 85 L.Ed.2d 206 (1985). In Allis-Chalmers the Court was faced with the issue of whether the tort of handling an insurance claim in bad faith was preempted by § 301 of the LMRA where the plaintiff was subject to a collective bargaining agreement providing for certain grievance procedures. In making its determination, the Court set out certain guidelines for courts to follow when faced with similar issues regarding the preemptive effect of § 301. One policy which the Court was concerned with effectuating was the need for uniform federal interpretation of contract phrases found in collective bargaining agreements. As stated by the Court, issues relating to “what the parties to a labor contract agreed, and what legal consequences were intended to flow from breaches of that agreement” should be resolved by a uniform body of federal law. 105 S.Ct. at 1911. If the tort claim is “inextricably intertwined with consideration of the terms of the labor contract” or “purports to define the meaning of the contract relationship” then that tort is preempted. Id. at 1912.

The Illinois Supreme Court has recognized a tort for retaliatory discharge despite the existence collective bargaining agreement provisions mandating grievance and arbitration of disputed discharges. Midgett v. Sackett-Chicago, Inc., 105 Ill.2d 143, 85 Ill.Dec. 475, 473 N.E.2d 1280 (1984). The Illinois Court did not address the issue of preemption, however, noting that it was not raised in the trial or appellate courts. Id. 85 Ill.Dec. at 480, 473 N.E.2d at 1285.

Applying the standards announced by the Court in Allis-Chalmers, it is abundantly clear that the plaintiff’s claim is preempted. There can be little doubt that plaintiff’s claim for retaliatory discharge is “inextricably intertwined” with the collective bargaining provision prohibiting wrongful discharge or discharge without just cause. It is equally clear that such a tort claim would effect the “legal consequences [which] were intended to flow from breaches of [the] agreement.” The parties have agreed to abide by the orderly mechanism for grievance of wrongful discharge claims as set out in the collective bargaining agreement. Allowing an independent tort action for retaliatory discharge would undermine the mutually agreed upon procedures provided for in that agreement. See Midgett, 85 Ill.Dec. at 481-82, 473 N.E.2d at 1286-87 (Ryan, J., dissenting). Recovery of punitive damages is also a possibility where plaintiff brings an action for retaliatory discharge. Such extraordinary damages clearly are not legal consequences which were intended to flow from the breach of the agreement. Thus, this Court holds that plaintiff’s claim for retaliatory discharge is preempted by § 301 of the LMRA. Accord Johnson v. Hussmann Corporation, 610 F.Supp. 757 (E.D.Mo.1985).

Since plaintiffs claim is essentially a § 301 claim, the Court finds dismissal is required due to plaintiffs failure to exhaust his administrative remedies. Republic Steel Corporation v. Maddox. 379 U.S. 650, 85 S.Ct. 614, 13 L.Ed.2d 580 (1965). The grievance/arbitration provisions of the collective bargaining agreement provide the exclusive procedure for resolving disputes between the parties. There is no indication that the union has breached its duty of fair representation in this matter, (See Republic Steel, 379 U.S. at 652, 85 S.Ct. at 616.) or that plaintiffs claim falls within any other exception to the exhaustion rule. See D’Amato v. Wisconsin Gas Co., 760 F.2d 1474, 1488-89 (7th Cir.1985).

Accordingly, defendant’s Motion to Dismiss is hereby GRANTED. Plaintiff’s complaint is hereby DISMISSED.

IT IS SO ORDERED.

      . Section 301 of the LMRA provides:
      Suits for violations of contracts between an employer and a labor organization representing employees in an industry affecting commerce ... may be brought in any District Court of the United States having jurisdiction of the parties. 29 U.S.C. § 185(a).

      . The Court believes the Seventh Circuit Court of Appeals is in accord on this issue. In Jackson v. Consolidated Rail Corp., 717 F.2d 1045 (7th Cir.1983) the Court held that the exclusive administrative remedies established by the Railway Labor Act preempted any State Court action for retaliatory discharge. More recently the Court dispelled any notion that Railway Labor Act has a greater preemptive effect than the LMRA where the contract establishes a grievance and arbitration remedy. Lancaster v. Norfolk and Western Railway Company, 773 F.2d 807, 816 (7th Cir.1985).