author: MISHLER, District Judge.

text:
    Joseph PETROZZA, Plaintiff, v. The INCORPORATED VILLAGE OF FREEPORT; William White, individually and in his capacity as Mayor of the Village of Freeport; and G. Ruiz De Zarate, individually and in his capacity as Superintendent of Buildings for The Incorporated Village of Freeport, Defendants.
    No. CV 83-3403.
    United States District Court, E.D. New York.
    Oct. 30, 1984.

      Guggenheimer & Untermyer, New York City, New York Civil Liberties Union, Nassau Chapter, Mineóla, N.Y., for plaintiff; Jerold D. Jacobson, Frederic C. Leffler, New York City, Alan Azzara, Mineóla, N.Y., of counsel.
    Hart & Hume, New York City, for defendants; James E. Brandt, Lester Ester-man, New York City, of counsel.
   Memorandum of Decision and Order

MISHLER, District Judge.

Defendants move for summary judgment to dismiss plaintiff’s complaint pursuant to Fed.R.Civ.P. 56.

FACTS

On August 3, 1983, plaintiff commenced this action against the Incorporated Village of Freeport (“Village”), William White, individually and in his capacity as Mayor of the Village, and G. Ruiz deZarate, individually and in his capacity as Superintendent of Buildings for the Village, seeking a declaratory judgment, an injunction, reinstatement of plaintiff to his previous position of employment and monetary damages. Plaintiff alleged three causes of action in his complaint: (1) defendants’ discharge of plaintiff from his employment with the Village based on his relationship with one Salvatore Imburgio violated plaintiff’s first and fourteenth amendment rights of free speech and association; (2) plaintiff’s discharge was “arbitrary and capricious” and in violation of his fourteenth amendment rights to due process and equal protection; and (3) plaintiff’s discharge without a hearing or some other grievance procedure to appeal his termination of employment violated his due process rights under the fourteenth amendment of the United States Constitution and under article 1, section 6 of the New York State Constitution (Comp. 1116-18).

Plaintiff was hired as a plumbing inspector for the Village on July 29, 1982. Plaintiff was granted this position as a “provisional appointee,” under a notification which read in pertinent part on the back of the form: “Provisional employment may be terminated at any time.” (deZarate Aff. p. 3 & exhibit C). At the time plaintiff was hired, Imburgio was also working for the Village as a building inspector. Imburgio, who also lived on the same street as the plaintiff, assisted in plaintiff’s on-the-job training. Subsequently, Imburgio accepted a position with the Village Community Development Agency (“CDA”), where he was responsible for checking contractors’ work to verify that it was done pursuant to contractual and code requirements. (Petrozza Aff., II2; Jakubowski Aff. ¶ 4).

Previously, in 1980 and 1981, Imburgio had been a candidate for the Mayor of the Village and opposed the reelection of defendant White. During this campaign, Imburgio made various allegations concerning conflicts of interests which White and a Village Trustee, Alfred Sirlin, purportedly had. Despite these political allegations, defendant White was reelected as Mayor of the Village in 1981.

In the Fall of 1982, plaintiff, as part of his employment, inspected the plumbing in the Department of Public Works project then under construction. Although there is some dispute as to which construction company was the general contractor on the job, it is undisputed that plaintiff advised defendant deZarate of possible code violations by the plumbing subcontractor, Kolin Plumbing. After such information was given to defendant deZarate, plaintiff claims he was told by deZarate to “ease up” and received from him “a cartoon illustration depicting a character which he [deZarate] labeled Petrozza buried under a load of concrete with the warning that if I kept bothering Scalco (the general contractor which plaintiff alleges was responsible for the project) by strictly enforcing the plumbing codes, this could happen to me.” (Petrozza Aff. 114 & Exhibit A). Plaintiff claims that as a result of this cartoon illustration, he inferred that “deZarate was advising [him to] ‘look the other way,’ when it concerned inspections of defendant White’s administration.” (Petrozza Aff. 114). Although defendant deZarate acknowledges the existence of this cartoon and admits having seen it “along with several other cartoons hanging from different places within the offices” of the Village Building Department, he denies having actually given plaintiff the cartoon. (deZarate Reply Aff. p. 6-7). Furthermore, defendant deZarate denies having told plaintiff to “ease up” and attempts to contradict this allegation by submitting to the court copies of the Village’s official response to Petrozza’s notification of the contractor’s code violations. (deZarate Reply Aff. p. 4).

On February 2, 1983, plaintiff alleges that after defendant deZarate saw him together with Imburgio during plaintiff’s lunch break, deZarate, “in the presence of other employees, ... warned [plaintiff] not to associate with ... Imburgio in any way or form.” (Petrozza Aff. ¶ 5; Jakubowski Aff. 116). Defendant deZarate also allegedly told plaintiff that Imburgio was a “bad influence” and if plaintiff “continued to associate with him” he (plaintiff) “would wind up on the unemployment line.” (Petrozza Aff. 115; Jakubowski Aff. II6). Defendants admit that plaintiff was “told he should not associate with a Mr. Imburgio during business hours.” (Defendants’ 3(g) statement). After plaintiff explained to defendant deZarate that because he had several ongoing projects with CD A, he had to associate with Imburgio as a matter of necessity, deZarate allegedly told plaintiff that he could associate with Imburgio for business reasons only. (Petrozza Aff. ¶ 5).

Following this conversation, plaintiff alleges that he “made every effort to stay away from Imburgio socially, politically and professionally.” (Petrozza Aff. II6).

In March, 1983, plaintiff was inspecting plumbing work at the Anchorage, a multidwelling housing project, whose plumbing contractor was Lakeville Plumbing, Inc. Alfred Sirlin, a Village Trustee, had a (publically) disclosed interest in this company. (Petrozza Aff. If 7; Sirlin Aff. p. 2-3). Plaintiff notified the foreman to cease work pending submission of amended plans. During that same day, plaintiff alleges that Sirlin telephoned deZarate “to voice complaints.” (Petrozza Aff. ¶ 7). Sirlin denies having ever made any such complaints. (Sirlin Aff. p. 1-2). Plaintiff further alleges that he was called into deZarate’s office and “[i]n front of other employees, deZarate gave [him] a paper bag from Waldbaum’s grocery to wear over [his] face, specifically advising [him to] use it during inspections.” (Petrozza Aff. ¶ 7). Although deZarate denies that he was advising plaintiff to “look the other way” or that he brought such a bag into the office, deZarate does admit writing plaintiff’s name on the bag and giving it to him to indicate “in jest, that given his knowledge of plumbing, it would make no great difference” if he wore it during his inspections. (deZarate Reply Aff. p. 5-6).

On March 25, 1983, at approximately 11:30 a.m., plaintiff was observed by defendant deZarate and Frank Carry, a building inspector, leaving his house in the company of Imburgio. Plaintiff claims that he returned to his home to use his bathroom and while he was there for “no longer than five minutes,” Imburgio “saw my car, and stopped and knocked on the door.” (Petrozza Aff. II8). Imburgio was admitted into plaintiff’s house by plaintiff’s wife and purportedly discussed with plaintiff a “CDA construction job on Lillian Street for which [plaintiff] was inspecting the plumbing.” (Petrozza Aff. II8).

When plaintiff returned to the office later that day, plaintiff received a formal “Warning Notice” from deZarate concerning his association or meeting with Imburgio. This notice was witnessed by another employee, Milton Chester. Plaintiff claims that deZarate became “outraged” when plaintiff offered his explanation as to why he was there and that deZarate “exploded with a burst of expletives, heard by employees in an adjoining room.” (Petrozza Aff. 119). Plaintiff further claims that he was then threatened by deZarate with loss of employment. (Petrozza Aff. 119; Jakubowski Aff. 11 6).

Defendants allege that plaintiff could not have been discussing the construction project on Lillian Street with Imburgio because according to Eric Hemphill, Director of CDA, all work was completed in that project on March 9, 1983. (Hemphill Aff. p. 2).

On March 28, 1983, defendant deZarate issued a memorandum to defendant White’s attention recommending that plaintiff’s employment be terminated. The reasons for plaintiff’s termination, as set forth in the memo, are as follows: (1) the plaintiff’s March 25 visit to his house during business hours when he met Imburgio; (2) excessive sick day useage and failure to bring in a doctor’s note; and (3) failure to follow adequate work procedures. In the affidavit by defendant deZarate in support of defendant’s motion for summary judgment, a fourth ground for plaintiff’s discharge was offered: plaintiff’s failure to bring his “beeper” into the field with him on November 15, 1982. (deZarate Aff. p. 4). Plaintiff contests the validity of these grounds for his discharge.

On April 4,1983, plaintiff was notified by defendant deZarate that his employment was terminated, without any hearing or grievance procedure, effective April 19, 1983. Subsequently, plaintiff filed a claim for unemployment compensation, which claim was contested by the Village on grounds of misconduct. Although this claim was initially rejected, Administrative Law Judge (“ALJ”) Silberlicht reversed this determination by failing to find any misconduct on the part of plaintiff so as to justify his discharge. (Petrozza Aff. Exhibit F). The Village appealed this decision to the Unemployment Insurance Appeal Board which, on March 6, 1984, affirmed the ALJ’s decision.

DISCUSSION

We set out the general principles governing summary judgment motions. The moving party has the burden of establishing the absence of a genuine issue of fact. Fed.R.Civ.P. 56(c). Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970); Katz v. Goodyear Tire & Rubber Co., 737 F.2d 238, 244 (2d Cir.1984); United States v. One Tintoretto Painting, 691 F.2d 603, 606 (2d Cir.1982). That burden includes the presentation by the moving party of such “ ‘evidence on which, taken by itself, it would be entitled to a directed verdict.’ ” Donnelly v. Guion, 467 F.2d 290, 293 (2d Cir.1972) (quoting Radio City Music Hall Corp. v. United States, 135 F.2d 715, 718 (2d Cir.1943)). Furthermore, the movant’s burden can only be established “on the basis of admissible evidence adduced from persons with personal knowledge of the facts.” Katz v. Goodyear Tire & Rubber Co., supra, at 244 (quoting Burtnieks v. New York, 716 F.2d 982, 985 (2d Cir.1983)). The opposing party “must set forth specific facts showing that there is a genuine issue for trial.” Fed.R.Civ.P. 56(e); United States v. One Tintoretto Painting, supra, at 606. Conclusory allegations or denials will not defeat a motion for summary judgment. S.E.C. v. Research Automation Corp., 585 F.2d 31, 33 (2d Cir.1978). “To defeat a summary judgment motion the opposing party must set forth ‘supporting arguments or facts in opposition to the motion.’ S.E.C. v. Research Corp., supra, 585 F.2d at 31. If the opponent fails to substantiate the existence of a genuine dispute, a proper concern for judicial efficiency and the mandate of Rule 56(c) require summary disposition of the issue. Id.” Schering v. Home Ins. Co., 712 F.2d 4, 9 (2d Cir.1983). Summary judgment should not be denied on “the mere possibility that a factual dispute may exist,” Quinn v. Syracuse Model Neighborhood Corp., 613 F.2d 438, 445 (2d Cir.1980) (emphasis in original) or a “mere hope that evidence to support his claim would develop at trial.” Taylor v. Rederi A/S Volo, 374 F.2d 545, 549 (3d Cir.1967). Of course, “the court must resolve all ambiguities and draw all reasonable inferences against the moving party.” Katz v. Goodyear Tire & Rubber Co., supra, at 244. Lastly, it should be noted that in resolving whether a case is ripe for summary disposition, “the court cannot try issues of fact but can only determine whether there are issues of fact to be tried.” Id. (quoting Empire Electronics Co. v. United States, 311 F.2d 175, 179 (2d Cir.1962)) (emphasis in original).

1. First Amendment Issues

To begin our analysis of whether defendant is entitled to summary judgment on plaintiff’s first amendment claims, we must accept the premise which both parties have agreed to; namely, that plaintiff, as a provisional employee, without tenure, could be removed at will, with or without cause. Despite this fact that plaintiff could have been discharged with or without cause, it is equally clear that he could not be legally discharged' and is entitled to reinstatement if such , an employment decision was substantially motivated by and would not have occurred but for plaintiff’s exercise of constitutionally protected first amendment freedoms. Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983); Givhan v. Western Line Consolidated School District, 439 U.S. 410, 99 S.Ct. 693, 58 L.Ed.2d 619 (1979); Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977); Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972); Pickering v. Board of Education of Township High School District 205, 391 U.S. 563, 88 S.Ct. 1731 (1968).

Pickering, the seminal case in this area of first amendment law, established an overarching balancing test to guide the analysis of courts in matters such as this. “The problem ... is to arrive at a balance between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” Pickering, supra, at 568, 88 S.Ct. at 1734-35, quoted in Connick v. Myers, supra, 461 U.S. at 142, 103 S.Ct. at 1687. Although the Supreme Court in Pickering explicitly declined to adopt “a general standard against which all such statements may be judged,” Pickering, supra, 391 U.S. at 569, 88 S.Ct. at 1735, the Court did in the Mt. Healthy decision enunciate a three-step process enabling the plaintiff to prove his case. Mt. Healthy, supra, 429 U.S. at 287, 97 S.Ct. at 576; see Givhan v. Western Line Consolidated School District, supra, 439 U.S. at 416, 99 S.Ct. at 697.

Applying Mt. Healthy to the case at bar, we conclude: (1) plaintiff has the burden “to show that his conduct was constitutionally protected” by the first amendment, see Mt. Healthy, supra, 429 U.S. at 287, 97 S.Ct. at 576; (2) plaintiff has the burden to establish that this constitutionally protected conduct was a “substantial” or “motivating factor” in the defendant’s decision to discharge him, see id.; and (3) if plaintiff carries this two-fold burden, then the defendants must show “by a preponderance of the evidence that it would have reached the same decision” as to plaintiff’s discharge even if plaintiff had not engaged in constitutionally protected conduct, see id.

Connick v. Myers clearly indicates that if plaintiff’s speech and associational conduct as a governmental employee “cannot be fairly characterized as constituting speech [and association] on a matter of public concern,” then it becomes unnecessary to examine the grounds for plaintiff’s discharge. Connick v. Myers, supra, 461 U.S. at 146, 103 S.Ct. at 1689, 1670. Connick v. Myers instructs the court to examine “the content, form, and context of a given statement” to analyze whether the employee’s speech is a matter of public concern. Id. at 147, 103 S.Ct. at 1690.

In the case at bar, plaintiff raises issues of both constitutionally protected conduct (association with defendant White’s political opponent, Imburgio) and constitutionally protected speech (communications regarding alleged code violations by contractors).

It is well recognized that freedom of association, especially for politically related reasons, is constitutionally protected conduct. NAACP v. Alabama, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958); see also Dombrowski v. Pfister, 380 U.S. 479, 486, 85 S.Ct. 1116, 1121, 14 L.Ed.2d 22 (1965) (Court’s concern for the “sensitive nature of constitutionally protected expression” and association warranted the unusual remedy of a permanent injunction from state prosecution for the plaintiff); Sweezy v. New Hampshire, 354 U.S. 234, 250, 77 S.Ct. 1203, 1212, 1 L.Ed.2d 1311 (1957) (Court upheld the due process rights of “subversive persons” against the rights of legislators to be informed on the subject of governmental self-preservation, stating that: “Our form of government is built on the premise that every citizen shall have the right to engage in political expression and association”). It is undisputed that plaintiff was warned not to associate with Imburgio, a political opponent of defendant White, whom defendant deZarate allegedly characterized as a “bad influence” on plaintiff. (Petrozza Aff. ¶ 5; Jakubowski Aff. II 6). Plaintiff claims he made every effort to avoid associating with Imburgio politically, socially or professionally as a result of these warnings and threats of discharge.

Furthermore, plaintiff had conversations with defendant deZarate concerning both the Department of Public Works project and the Anchorage project as. to code violations he observed. Plaintiff claims that he was advised by defendant deZarate to “ease up” and, in effect, to overlook any violations he observed at these two sites, both of which sites were focal points in the political controversy raised by Imburgio in his mayoral candidacy. As to whether deZarate responded to plaintiff's information on these occasions in this matter is a genuinely disputed fact. If the court is to draw all reasonable inferences against defendants, the moving party, Katz v. Goodyear Tire & Rubber Co., supra, at 244, then the possibility that plaintiffs first amendment rights were chilled becomes a cognizable claim. This is particularly true in light of Connick v. Myers, which clearly implies that “to bring to light actual or potential wrongdoing or breach of public trust” on the part of the defendants is information the public needs to “evaluate the performance of [their] office” and hence, is a matter of public concern. Connick v. Myers, supra, 461 U.S. at 148, 103 S.Ct. at 1690-91.

Defendants attempt to rebut these claims of constitutionally protected speech and association by asserting that plaintiffs conduct is analagous to the plaintiffs conduct in Connick v. Myers, supra. Specifically, defendants argue that their warnings to plaintiff not to associate with Imburgio falls within the “wide latitude” government officials enjoy in managing their office. Id. at 146, 103 S.Ct. at 1690. Furthermore, they assert that under Pickering, supra, an employee’s “[c]onduct which challenges supervisors and threatens institutional harmony and efficiency cannot be considered constitutionally protected ‘speech.’ ” Orshan v. Anker, 489 F.Supp. 820, 822 n. 1 (E.D.N.Y.1980) (citing Pickering, supra, 391 U.S. at 569-70, 88 S.Ct. at 1735).

The language in Connick v. Myers, as to government officials’ “wide latitude” in managing their office begs the question presently at issue, since the Court limited this statement’s applicability only to situations where the challenged conduct is not, as a matter of law, of public concern. Connick v. Myers, supra, 461 U.S. at 146, 103 S.Ct. at 1690. In regards to defendants’ other argument that plaintiff’s conduct is not constitutionally protected because it is merely disruptive to the office’s efficiency and harmony, the facts, as set forth previously, are in genuine dispute on this point.

Considering the foregoing finding that there exists material fact disputes surrounding the alleged constitutional conduct, the court cannot conclude as a matter of law, that plaintiff’s alleged constitutional conduct was not a “substantial” or “motivating factor” in the defendants’ decision to discharge him. This conclusion is buttressed by the well established principle that questions of causation are generally questions of fact to be submitted to the jury. See Prosser, Law of Torts § 45 (4th ed. 1971). Thus, defendants’ motion for summary judgment on plaintiff’s first amendment claim is denied.

2. Due Process — Right to a Hearing

Plaintiff also claims that his discharge without a hearing or some other grievance procedure to appeal his termination violated his due process rights. Since plaintiff concedes that as a provisional employee, without tenure, he could have been discharged with or without cause, there is little need to address whether any property interest was deprived without due process. See Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972).

To establish that plaintiff was deprived of a liberty interest without due process because defendants imposed a stigma upon plaintiff’s “good name, reputation, honor, or integrity,” id. at 573, 92 S.Ct. at 2707, which thereby restricted his ability to seek employment elsewhere, plaintiff must show the following elements:

[T]he stigmatizing information must be false, Codd v. Velger, 429 U.S. 624, 97 S.Ct. 882, 51 L.Ed.2d 91 [92] (1977) (per curiam), and made public, Bishop v. Wood, 426 U.S. 341, 348, 96 S.Ct. 2074, 48 L.Ed.2d 684 (1976), by the offending governmental entity, see Paul v. Davis, 424 U.S. 693, 708-10, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976); Wisconsin v. Constantineau, 400 U.S. 433, 437, 91 S.Ct. 507, 27 L.Ed.2d 515 (1971).

Gentile v. Wallen, 562 F.2d 193, 197 (2d Cir.1977); see Quinn v. Syracuse Model Neighborhood Corp., supra, at 446.

We conclude, as a matter of law, that the requisite elements for a deprivation of due process claim are lacking for the following reasons.

First, plaintiff has not shown that his reputation, good name, honor, or integrity has been stigmatized by his discharge. Although he does make conclusory allegation to that effect, such allegations, by themselves, are insufficient. See Schering v. Home Ins. Co., supra, at 9. Plaintiff claims that a stigma was created by both defendants’ Warning Notice and defendants’ memorandum recommending his discharge. The context of these documents, however, pertain to job-related shortcomings which do not place in question plaintiff’s integrity and reputation. See Board of Regents v. Roth, supra, 408 U.S. at 572, 92 S.Ct. at 2706-07; Gentile v. Wallen, supra, at 197; Russell v. Hodges, 470 F.2d 212, 216-17 (2d Cir.1972).

It is well settled that for a discharge to create a “stigma,” “it must be something considerably graver than a charge of failure to perform a particular job.” Russell v. Hodges, supra, at 217. Plaintiff attempts to utilize the “paper bag-over-his-head” incident and his alleged suffering of verbal expletives at the hands of defendant deZarate to establish the stigma. These incidents, however, cannot form the basis of the stigmatizing information since they lack the requisite element of falsity. Codd v. Velger, supra, 429 U.S. at 627-29, 97 S.Ct. at 883-85; Gentile v. Wallen, supra, at 197.

Second, plaintiff has failed to establish that the reasons for his discharge were made public, although Bishop v. Wood requires him to do so. Bishop v. Wood, supra, 426 U.S. at 348-49, 96 S.Ct. at 2079-80. He has thus created no genuine factual dispute on this issue other than his mere conclusory allegations.

Thus, defendants’ motion for summary judgment on plaintiff’s claim of a due process right to a hearing should be granted.

3. Arbitrary and Capricious Discharge

Plaintiff has offered no evidence or argument in opposition to defendants’ motion for summary judgment on plaintiff’s claim that his discharge was arbitrary and capricious and in violation of his fourteenth amendment rights of due process and equal protection. Since the law is clear that plaintiff as a non-tenured provisional employee can be removed with or without cause, Riggi v. Blessing, 9 A.D.2d 423, 195 N.Y.S.2d 971, aff'd, 10 N.Y.2d 917, 223 N.Y.S.2d 871, 179 N.E.2d 711 (1961); City of Binghamton v. Binghamton Civil Serv., 63 A.D.2d 790, 404 N.Y.S.2d 918 (1978), defendants’ motion on this claim is granted.

CONCLUSION

Defendants’ motion for summary judgment is granted in part and denied in part as follows: defendants’ motion for summary judgment on plaintiff’s claim that his discharge violated his first and fourteenth amendment rights of free speech and association is denied, but defendants’ motion for summary judgment on all of the plaintiff’s other claims is granted, and it is

SO ORDERED.

      . These allegations centered on defendant White’s former interest in the White Insurance Agency, which purportedly had amongst its clients contracting companies who had successfully bid for Village construction projects and who were purportedly responsible for cost overruns in certain construction projects. (Petrozza Aff. H 3; White Aff. p. 3-4). Although many of these allegations were investigated by the Nassau County District Attorney’s Office, no indictments were returned. (White Aff. p. 4).

      . Plaintiff claims that Scalco Construction Company, the company which defendant White purportedly had conflicts of interests with, was the general contractor, (Petrozza Aff. ¶ 34), while defendants claim that Sea Crest Construction was the general contractor following Cinalta Construction Corporation's defaulted bid. (deZarate Reply Aff. p. 2-4; White Aff. p. 5).

      . The Village responded in the following manner: (1) it advised David Lovejoy, Superintendent of the Department of Public Works, of Petrozza’s memo to deZarate; (2) it notified the subcontractor, Kolin Plumbing Corp., that all work on this job must conform to the Village's Plumbing Code; and (3) it obtained Kolin Plumbing's permit application. (deZarate Reply Aff. p. 4 & Exhibits C-l, C-2, and C-3).

      . Defendant deZarate claims that Lakeville Plumbing, Inc. was, in fact, in compliance with the applicable code requirements and that it was only plaintiffs incorrect application of the Village’s antiquated Code that led to the initial controversy.

      . The "Warning Notice” signed by deZarate read:
      "After numerous verbal warnings about associating and/or meeting with Mr. Sal Imburgio of Community Development Agency I once again found the two of you together at your house during working hours (11:30 a.m.). You have also been informed that Vi
        hour for lunch is to be taken between the hours of 12:00 and 1:00 p.m.”
      Plaintiff stated on the notice in the space indicated for employee's remarks:
      "As is necessary for all human beings to use the bathroom, I chose to use the facilities at my house as it is a time saving procedure as opposed to going back to the office at each and every necessary time — as to the arrival of _" (illegible).

      . The text of the memo reads as follows:
      Re: Joseph Petrozza — Provisional Plumbing/Building Inspector
      I would like to recommend that the above named employee be terminated as of April 7, 1983, (with two weeks vacation pay), which marks the end of the pay period.
      The reasons for my recommendation are as follows:
      1. Even though he was warned about going home during working hours, he continued to do so. The last time was on March 25, 1983 at 11:30 a.m. On previous occasions when I asked Mr. Petrozza why he was home, he always gave me the same answer, “I had to go to the bathroom”. However, this time when he came out of the house, he was accompanied by an employee of C.D.A. and, their mood seemed to be rather jovial.
      2. In the past four (4) months he has been out ill five and one half (5‘/á) days and 'A day vacation, which, considering his eight months of employment, I feel is excessive. I still have not received the required Doctor’s note due us when he was out sick (2/14, 2/15, 2/16), even though I reminded him on two or three occasions. I finally had to remind him in writing. By the way, today is one of the sick days that he has taken.
      3. His work and follow-up procedures are far below the standards that are expected from him after eight months of employment.
      Please advise, so that we may notify Mr. Petrozza.

      . As stated above, plaintiff went home to use his bathroom facilities, not to meet intentionally with Imburgio. Plaintiff claims that this is a frequent occurrence among building inspectors. (Petrozza Aff. ¶ 13); Jakubowski Aff. 1f 8). Plaintiff claims that March 25, 1983 was the first time defendant deZarate ever requested a doctor’s note to substantiate his three days of illness in February, 1983. Furthermore, there is some dispute as to whether the union contract requires a doctor’s note to be submitted. As to excessive use of sick days, plaintiff alleges correctly that under the union contract, he had accumulated eight sick days during his period of employment, only seven of which the defendants admit he used. (Petrozza Aff. ¶ 15; deZarate Reply Aff. p. 10-11). Plaintiff also claims that he never received any formal notices that his work was unsatisfactory. Moreover, when deZarate questioned plaintiff as to whether work reports had been submitted for March 16 and March 17, plaintiff alleges he “went over to [deZarate’s] desk and showed him that he had buried [plaintiffs] reports in a pile of documents there.” (Petrozza Aff. ¶ 16). Lastly, as to the "beeper” which plaintiff admits not carrying with him on November 15, 1982, he states that there was no reason to carry the beeper with him to his 8:30 a.m. inspection since when he arrived in the office at 10:00 a.m. that morning he would receive any messages for him.

      . The Supreme Court in the Mt. Healthy decision characterized the question of whether the constitutional conduct was a "substantial factor" in the controversial employment decision as one of causation. See Mt. Healthy, supra, 429 U.S. at 286-87, 97 S.Ct. at 575-76.


source: Caselaw Access Project

author: HUDSPETH, District Judge.

license: Public Domain

text:
    FIRST CITY NATIONAL BANK OF EL PASO, Plaintiff, v. UNITED STATES of America and Mardoqueo M. Alfaro, a/k/a Alfaro M. Mardoqueo, Mardoqueo Alfaro, Alfaro Mardoqueo and Mario Molina, Refugio Chavez Moreno, Santiago Monzon Araujo, Anselmo Chavez Moreno, Jose Maria Chavez Moreno, Juan Huerta Trejo, Justo Chavez Moreno, Rosario Galaviz Gamez, Jaime Galicia Mendez, Nabor Astorga Molina, Crisostemo Galaviz Gamez, Rosario Gastelum Payan and Leticia Corona S., Defendants.
    No. EP-84-CA-231.
    United States District Court, W.D. Texas, El Paso Division.
    Nov. 8, 1984.

      Victor F. Poulos, El Paso, Tex., for plaintiff.
    Mark M. Greenberg, Asst. U.S. Atty., El Paso, Tex., Michael E. Greene, Tax Div., Dept, of Justice, Dallas, Tex., Alfred W. Ricciardi and Merwin D. Grant, Phoenix, Ariz., John B. Luscombe, Jr., El Paso, Tex., for defendants.
   MEMORANDUM OPINION AND ORDER

HUDSPETH, District Judge.

On June 25 and June 28, 1984, the Internal Revenue Service, acting pursuant to the authority of 26 U.S.C. § 6851, terminated the 1984 tax year of Mardoqueo M. Alfaro, and assessed income taxes totaling $28,-341,706.00. In the form of a cross-claim in an interpleader action, Alfaro seeks to challenge pursuant to 26 U.S.C. § 7429 both the reasonableness of the termination assessment and the appropriateness of the amount.

On June 21, 1984, Special Agent Robert Paiz of the Drug Enforcement Administration in Santa Ana, California, received information from a confidential informant that a Latin couple registered under the name “Avendano” in Room 241 of the Anaheim Travelodge were engaged in some type of narcotic transaction. Investigation by Agent Paiz verified that a “Federico Avendano” was registered in Room 241; -that the couple had paid cash in advance for the room, and that at least one international phone call had been made and charged to that room. No activity was observed on June 21, so surveillance was discontinued. The following day, however, surveillance agents saw a 1984 Volkswagen with dealer tags arrive at Room 241, and a Latin female with a small child got out of the car, opened the door with a key, and entered the room. When she came out again, agents followed her to Room 221 of another Anaheim motel called the Convention Center Inn. The agents then established surveillance on the second motel. Examination of the records of the . Convention Center Inn revealed that Room 221 was registered to “Carlos Valdez” of Guadalajara, Mexico; Room 222 was registered to Alfaro Mardoqueo of Guadalajara, and Room 335 was occupied by “Avendano.”

As surveillance continued on the Convention Center Inn, the agents observed a male individual emerge from Room 221 with a brown cardboard box. He placed the box in a 1975 Volkswagen and drove away. The agents followed the Volkswagen to the San Diego Freeway, and observed that the driver turned north toward Los Angeles. As the agents followed the vehicle on the Freeway, they observed that it changed lanes frequently and drove “erratically.” The agents decided to stop this vehicle and to question the driver. Upon questioning, the driver stated that his name was Carlos Felix-Sanchez; that he was from Mexico; that he was in California on a “social visit,” and that he was staying in Anaheim at Room 335 of the Convention Center Inn. The cardboard box which Felix had removed from Room 221 and placed in his vehicle contained a sophisticated money-counting machine. As the agents drove back toward Anaheim with Felix, he informed them that they would find a lot of money in the motel room.

Upon returning the Convention Center Inn, the agents found the Latin woman previously seen, who gave her name as Ana Luisa Avendano, occupying Room 335. She admitted to being the occupant of Room 241 at the Travelodge also, and she consented to the search of both rooms. In Room 335, the agents found another money-counting machine and two cardboard boxes full of money. The search was expanded to include Rooms 221 and 222. In Room 221, which was occupied by a male individual giving his name as Jesus Guerrero, the agents found more cardboard boxes full of money. A dog trained to detect the odor of narcotic drugs was brought to the motel, and he “alerted” to the containers of money in both Rooms 335 and 221. Guerrero stated that the occupant of Room 222 (whose name was Mardoqueo Alfaro according to registration documents) was not present, and that he could not give the agents permission to take the dog into Room 222. The agents obtained a search warrant for Room 222, and found therein additional large quantities of money, to which the dog again alerted. A total of $4,100,000.00 in United States currency was found in the three motel rooms. In addition, the agents found a deposit slip indicating the deposit of $626,000.00 in currency in the Bank of Coronado of San Ysidro, California on June 21, 1984. The money and records were seized, as were the two money-counting machines. The machines were submitted to the DEA laboratory, where they were “vacuumed” in order to determine whether any narcotic drug residue was present. Laboratory tests were positive for traces of cocaine.

Both Carlos Felix-Sanchez and Jesus Guerrero were arrested on suspicion of dealing in drugs. After his arrest, Felix-Sanchez indicated that he desired to cooperate with the agents. He told them that he had been employed by individuals from Mexico to collect money in California for return to Mexico. He also stated that he had been in Anaheim at the same motel about two weeks before, and that the purpose of that trip was also to collect money for the same people. Felix-Sanchez declined to identify the people for whom these services were being performed, but he stated that the money in question came from “drogas.”

The seizure of currency occurred on a Saturday. On Monday or Tuesday, Assistant U.S. Attorney Christine Byrd in Los Angeles was contacted by a California attorney named Charles Garry, who said that he represented Felix-Sanchez and Guerrero, and that the money seized did not belong to them. Garry advised AUSA Byrd that the money belonged to Mardoqueo Al-faro of Guadalajara, Mexico, and that the two individuals arrested were just his agents. Garry further informed Byrd that the 4.1 million dollars seized in Anaheim had been brought into the United States from Mexico in a legal manner, and that it was all intended for deposit in the Bank of Coronado. About this time, the Drug Enforcement Administration received information from confidential informants that Alfaro was involved in a drug trafficking ring that dealt in large quantities of cocaine, heroin, and marihuana, and that the illicit profits of this ring averaged $10,000,-000 to $20,000,000 a month.

Utilizing the information outlined above, Agents of the Internal Revenue Service set out to calculate the federal income taxes owed by Alfaro for the calendar year 1984. Using the estimate of $10,000,000 a month profit for five and three-quarters months (from January 1, 1984 to June 21, 1984), the revenue agents calculated federal income taxes due and owing in the amount of $28,341,706.00. Pursuant to 26 U.S.C. § 6851, a termination assessment was made. The Internal Revenue Service then proceeded to levy on all assets located within the United States in which Alfaro was believed to have an interest. The assets levied upon included approximately 6.5 million dollars in deposits in the First City National Bank of El Paso, Texas.

On July 2, 1984, Plaintiff First City National Bank filed an interpleader action in the 243rd District Court of El Paso County, Texas, asking that court to determine whether the funds on deposit belonged to the United States Government or to Mr. Alfaro and his associates. Defendant United States of America removed the state court action to this Court pursuant to 28 U.S.C. § 1441(a). By way of cross-claim, Defendant Alfaro promptly challenged the termination assessment.

A. Venue.

Cross-Defendant United States of America first contends that Alfaro’s cross-claim should be dismissed because of improper venue. Title 26, United States Code, Section 7429(e) provides that an action for judicial review of a jeopardy or termination assessment “shall be commenced only in the judicial district described in Section 1402(a)(1) or (2) of Title 28, United States Code.” The Government argues that under Section 1402(a)(1) an individual, not a corporation, may sue only in the judicial district where he resides, and Cross-Plaintiff Alfaro, a “resident” of Mexico, resides within no judicial district.

The short answer to the Government’s argument is that Alfaro did not “commence” this action. The action was “commenced” when the Plaintiff, First City National Bank, filed an interpleader suit in state court. Defendant United States of America then removed the action to federal court, and Defendant Alfaro brought a cross-claim challenging the termination assessment. The doctrine of “ancillary venue” therefore applies, and Alfaro’s third-party claim should be considered ancillary for the purpose of statutory venue restrictions. 6 Wright and Miller, Federal Practice and Procedure § 1445 (1971). The Government’s motion to dismiss for lack of proper venue should be denied.

B. Reasonableness of Termination Assessment.

The Government has the burden of proving that the making of a termination assessment is reasonable under the circumstances. 26 U.S.C. § 7429(g)(1); DeLauri v. United States, 492 F.Supp. 442, 445 (W.D.Tex.1980). That burden is not particularly onerous, however; the standard is somewhat greater than “arbitary and capricious” and somewhat less than “substantial evidence.” DeLauri v. United States, supra; Loretto v. United States, 440 F.Supp. 1168, 1172 (E.D.Pa.1977). The Court may consider all relevant evidence in determining reasonableness, not just that which was available to the Internal Revenue Service at the time it made the assessment. DeLauri v. United States, supra; Loretto v. United States, supra at 1173.

Under 26 U.S.C. § 6851(a)(1), a termination assessment may be properly made if the Internal Revenue Service determines

“... that a taxpayer designs quickly to depart from the United States or to remove his property therefrom, or to conceal himself or his property therein, or to do any other act ... tending to prejudice or to render wholly or partially ineffectual proceedings to collect the income tax....”

The Government has sustained its burden of establishing the reasonableness of the termination assessment in this case. Although Alfaro vigorously disputes the IRS conclusion that the funds levied upon were the proceeds of drug transactions, that conclusion is supported by the following evidence:

1. More than four million dollars in United States currency was seized by Agents of the Drug Enforcement Administration at a motel in Anaheim, California at which Alfaro was registered.
2. An associate of Alfaro, one Carlos Felix-Sanchez, admitted that the funds seized were related to drug transactions.
3. Confidential informants of the Drug Enforcement Administration reported that Alfaro belonged to an organization involved in large-scale drug trafficking, and which realized a profit of at least ten million dollars a month.
4. A trained “drug-sniffing” dog detected the scent of drugs on the containers of currency found in the motel room registered to Alfaro.
5. The DEA laboratory found traces of cocaine on the money-counting machines seized at the Anaheim motel.

Furthermore, investigation by the Internal Revenue Service established that Alfaro had made large deposits of currency at various locations within the United States (including the Bank of Coronado of San Ysidro, California, the El Paso National Bank, the First City National Bank of El Paso, and the Tesoro Savings and Loan Association of Laredo, Texas) within the preceding six months. The use of large amounts of currency is a traditional indicator of a desire to conceal the source of funds. Furthermore, within a few days after the seizure at the Anaheim motel, Alfaro and his associates withdrew millions of dollars from institutions located with the United States. For example, more than two million dollars were withdrawn from the El Paso National Bank in El Paso, Texas, converted to currency and disposed of in a fashion which is still unknown. Several million dollars were withdrawn from the Tesoro Savings and Loan in Laredo, Texas, and were transmitted to Panama by means of a wire transfer. Finally, Alfaro is a citizen of Mexico and resides in Guadalajara, Mexico, outside the boundaries of the United States. For all these reasons, the termination assessments levied on June 25 and June 28, 1984 were reasonable.

C. Appropriateness of the Amount.

Once the Government bears its burden of establishing the reasonableness of a termination assessment, the burden shifts to the taxpayer to show that the amount of the assessment is inappropriate. 26 U.S.C. § 7429(g)(2); DeLauri v. United States, supra at 446. There is a presumption in favor of the Internal Revenue Service that the amount assessed is proper. DeLauri v. United States, supra at 446; Loretto v. United States, supra at 1172 n. 7. The Court is not expected to determine the taxpayer’s ultimate tax liability in this summary proceeding; that issue may and will be litigated elsewhere. DeLauri v. United States, supra.

Cross-Plaintiff Alfaro has failed to sustain his burden of showing that the amount of the termination assessment is not appropriate. The evidence shows Alfaro to have been in control of vast amounts of currency being generated from some source. Over a span of a few months, more than twelve million dollars were deposited in a savings and loan in Laredo, Texas, more than six million dollars in the First City National Bank of El Paso, more than two million dollars in the El Paso National Bank, and more than eight hundred thousand dollars in the Bank of Coronado of San Ysidro, California, not to mention the 4.1 million dollars in currency seized on June 22 and 23 in Anaheim, California. These funds add up to more than 25 million dollars. Explanations offered by the taxpayer and his witnesses as to the sources of these funds, to put it conservatively, lack credibility. In short, the Court finds that the amount of the termination assessments, although large, is not unreasonable or inappropriate in these unusual circumstances.

It is therefore ORDERED that the motion of Cross-Plaintiff Mardoqueo Alfaro for abatement of the termination assessments and the tax liens filed herein be, and the same is hereby, DENIED.

      . Controversy arose at the evidentiary hearing in this case concerning the meaning of the Spanish word "drogas.” There was testimony that the word means "debts" in Spanish, but that it is used as a slang word for narcotics. In view of the other evidence already outlined in this opinion that the money was related to cocaine in some way, the Court will find that Felix-Sanchez used the word “drogas” to mean drugs or narcotics.

      . "Termination assessment” means that the taxpayer’s tax year was declared at an end, and the income taxes assessed were declared to be immediately due and owing.


author: EDELSTEIN, District Judge:

text:
    KENBROOKE FABRICS, INC., Plaintiff, v. HOLLAND FABRICS, INC., Defendant.
    No. Civ. 7540 (DNE).
    United States District Court, S.D. New York.
    Nov. 20, 1984.

      Lester A. Lazarus, P.C., New York City, for plaintiff; Harlan M. Lazarus, New York City, of counsel.
    Fogel, Spiegler & Feingertz, New York City, for defendant; Martin W. Fogel, New York City, of counsel.
   OPINION AND ORDER

EDELSTEIN, District Judge:

Plaintiff Kenbrooke Fabrics, Inc. (“Kenbrooke”) brought this action for infringement of copyright pursuant to 17 U.S.C. §§ 501-505, 509. Jurisdiction arises under 28 U.S.C. § 1338.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Kenbrooke and defendant Holland Fabrics, Inc. (“Holland”) are converters of textiles. This action involves Kenbrooke pattern number 1123 and Holland pattern number 494. Both patterns are so-called “double floral border” patterns, in other words, a floral pattern appears on both edges of the fabric. In the center of both patterns is a small field of flowers. Plaintiff seeks to enjoin defendant from infringing plaintiff’s copyright, to recover damages sustained as a consequence of defendant’s infringement and to pay the costs of the action together with attorney’s fees.

LIABILITY

In order to prevail in a copyright action, plaintiff must establish ownership of a valid copyright by plaintiff and copying by the defendant. Novelty Textile Mills v. Joan Fabrics Corp., 558 F.2d 1090, 1092 (2d Cir.1977). Plaintiff has asserted that pattern 1123 was copyrighted and a Certificate of Registration dated November 15, 1982 and identified as VA 112-460 was accepted in evidence at trial.

The copyright registration constitutes prima facie evidence of the ownership of the copyright. Id. at n. 1; Pret-A-Printee, Ltd. v. Alton Knitting Mills, Inc., 218 U.S.P.Q. (BNA) 150, 151 (S.D.N.Y.1982). Defendant challenged the validity of the copyright based on an alleged incorrect date of publication on the certificate. The date of first publication stated on the registration is October 1, 1982. Defendant produced evidence which placed the accuracy of this date in question. The earliest date of publication was October 23, 1984. Record at 57. Plaintiff established that the latest date of first publication was November 3, 1982, the date of the first sample sale of the fabric. Record at 24. An error in the registration regarding the date of first publication, however, does not invalidate the copyright, Advisers, Inc. v. Wiesen-Hart, Inc., 238 F.2d 706, 708 (6th Cir.1956) (per curiam); United States v. Backer, 134 F.2d 533, 535-36 (2d Cir.1943); 2 M. Nimmer, Nimmer on Copyright § 7.20, at 7-149 (1984), absent a showing of fraud, Advisers, Inc., supra, 238 F.2d at 708; Russ Berrie & Co. v. Jerry Elsner Co., Inc., 482 F.Supp. 980, 988 (S.D.N.Y.1980). Therefore, plaintiff’s copyright certificate is accepted as valid and thus constitutes prima facie evidence of ownership.

In addition to showing ownership of a valid copyright, plaintiff also must establish copying by defendant. Copying is generally proven by showing: (1) that defendant had access to plaintiffs design; and (2) that the defendant’s design is substantially similar to plaintiff’s design. Novelty Textile Mills, Inc. v. Joan Fabrics Corp., 558 F.2d 1090, 1092 (2d Cir.1977); Pret-A-Printee, Ltd. v. Allton Knitting Mills, Inc., 218 U.S.P.Q. (BNA) 150, 151 (S.D.N.Y.1982).

In order to establish access, plaintiff need prove only that the defendant had an opportunity to see plaintiff’s work. Musto v. Meyer, 196 U.S.P.Q. (BNA) 820, 821 (S.D.N.Y.1977); see Midway Mfg. Co. v. Bandai-America, Inc., 546 F.Supp. 125, 146 (D.N.J.1982). At trial, defendant’s president, Martin Levine, testified that he saw plaintiff’s design in May 1983. Record at 104. This testimony, however, was not consistent with Mr. Levine’s deposition testimony where he stated that he had not seen plaintiff’s design prior to being served with the summons in this action. Record at 128. This direct conflict between Mr. Levine’s trial and deposition testimony casts doubt on the witness’s credibility and the weight to be accorded his testimony. The conflict in the testimony results in some uncertainty regarding when Mr. Levine, in fact, first saw plaintiff’s design. This factual uncertainty, however, is not fatal to plaintiff’s claim. The exact date of Mr. Levine’s viewing of the design need not be established. All that is needed to establish “access” is the opportunity to see the work. Plaintiff’s design was in possession of some of Holland’s customers and Mr. Levine admits to having viewed the design. Thus, Mr. Levine clearly had such an opportunity to see the work, and in fact, at some point, did see plaintiff’s design.

Plaintiff also must establish that defendant’s design is “substantially similar” to plaintiff’s design. The test for “substantial similarity” is whether an ordinary observer would regard the aesthetic appeal of the two designs as the same. Novelty Textile Mills, Inc. v. Joan Fabrics Corp., 558 F.2d 1090, 1093 (2d Cir.1977); Peter Pan Fabrics, Inc. v. Martin Weiner Corp., 274 F.2d 487, 489 (2d Cir.1960). A great deal of testimony, in painstaking detail, was presented at trial regarding the similarities and differences between plaintiff’s and defendant’s design. These witnesses were all involved in the textile industry. This detailed testimony was not necessary. The court has had an opportunity to view the fabrics and it is clear that defendant’s design is substantially similar to plaintiff's design and, in fact, to the eye’s of a lay observer are almost identical.

Defendant presented evidence of the independent creation of the Holland design, which, if accepted, may overcome the finding of similarity. Ideal Toy Corp. v. Kenner Prods. Div. of Gen. Mills Fun Group, Inc., 197 U.S.P.Q. (BNA) 738, 749 (S.D.N.Y.1977). Mr. Levine testified that he purchased the design from a design studio in New York. Record at 99. The president of the design studio then testified that the Holland pattern 494 was the design sold to Holland. A bill was introduced into evidence reflecting a sale of a design from the design firm to Holland.

Facts brought to light by the testimony of both of these witnesses cast substantial doubt on the credibility of their testimony. First, the artwork relating to the design could not be produced by either Mr. Levine, Record at 101, or the president of the design firm, Record at 145. Thus, there is no objective proof that the design attributed to the design firm and reflected in the bill of sale was in fact Holland pattern 494.

Further, the president of the design firm testified that he had met with Mr. Levine the day before trial because he “wanted to know what this is all about.” Record at 153. At this meeting the president of the design firm asked Mr. Levine what pattern was involved in the suit and was told that it was Holland design number 494. At trial, the design firm president testified that he knew that the allegedly infringing pattern was the design that he sold to Holland because he “recognize[d] it.” Record at 140. The testimony regarding the meeting with Mr. Levine certainly affects the design firm president’s credibility. The court specifically questions the accuracy of the testimony relating to the events surrounding the creation and sale of the design that took place over three years ago. Finally, the court doubts that the design firm’s president could associate Holland design 494 with the design reflected by the bill of sale to Holland without the “refreshing of recollection” provided by the eve-of-trial meeting with Mr. Levine.

The court finds that there is no credible objective evidence of independent creation to rebut the finding of substantial similarity. Therefore, plaintiff has proved copyright infringement by defendant and defendant is hereby enjoined from further infringement of plaintiff’s copyright of pattern 1123.

DAMAGES AND ATTORNEYS’ FEES

Kenbrooke seeks statutory damages and attorneys’ fees as provided by 17 U.S.C. §§ 504, 505. Statutory damages are appropriate where the measure of actual damages is difficult to ascertain. Lauratex Textile Corp. v. Allton Knitting Mills, Inc., 517 F.Supp. 900, 903 (S.D.N.Y.1981). Actual damages are usually measured in terms of lost profit. In this case, the effect of defendant’s infringement on plaintiff’s sales is difficult to determine. Plaintiff had a successful sampling of their pattern, Record at 68, however, the sale of stock goods was not successful. Record at 69-70. The effect of defendant’s design on plaintiff’s sales cannot be measured easily. Statutory damages provide an acceptable alternative.

Statutory damages are also appropriate where the copying was willful. The court finds that the copying in this case was willful. This is based on the high degree of similarity between the two designs which could only be attributable to copying, the fact that Mr. Levine did not attempt to copyright his design, Lauratex Textile Corp. v. Allton Knitting Mills, Inc., 519 F.Supp. 730, 733 (S.D.N.Y.1981), the lack of candor of Mr. Levine during his testimony, see Lauratex Textile Corp. v. Allton Knitting Mills, Inc., 517 F.Supp. 900, 904 (S.D.N.Y.1981), as well as the “unavoidable inference ... that Mr. Levine has built a business based on deliberate infringement of the copyrights of other converters.” Pret-A-Printee, Ltd. v. Allton Knitting Mills, Inc., 218 U.S.P.Q. (BNA) 150, 153 (S.D.N.Y.1982).

Turning to the amount of the statutory damages. Plaintiff requests $50,000, the maximum allowed by the statute. As noted, Mr. Levine and his corporate alter egos have been involved in a number of copyright infringement actions. In fact, it may be said without much exaggeration that Mr. Levine has had the unique opportunity to shape the law relating to textile copyright in this district. In a prior action, the court ordered Mr. Levine and the corporate defendant to pay $30,000 in statutory damages. Pret-A-Printee, Ltd., supra, at 154. The leniency in that case was based on the fact that the defendants had not been involved in any new litigation during the previous two years and the belief that “the defendants may be feeling the effects of previous statutory damage awards____” Id. This leniency was apparently misplaced. Mr. Levine has been involved in at least two other suits since that decision was rendered in addition to the instant action. See Delman Fabrics v. Holland Fabrics, No. 84 Civ. 2512 (CSH) (S.D.N.Y. filed Apr. 9, 1984); Lenfield Fabrics v. Holland Fabrics, No. 83 Civ. 7541 (WCC) (S.D.N.Y. filed Oct. 14, 1983). In order to attempt to deter the defendant from future violations, the court determines that $50,-000 in statutory damages should be awarded. The defendant cannot be permitted to continue as one of the “bad boys” of the textile industry.

Finally, plaintiff seeks attorneys’ fees in the amount of $8,062.50. The award of attorneys’ fees is within the discretion of the court and serves the purpose of the Copyright Act to compensate the plaintiff and deter future violations by the defendant. See Boz Scaggs Music v. KND Corp., 491 F.Supp. 908, 915 (D.Conn.1980). The fee requested is reasonable considering “the amount of time spent on this case, ‘the amount of work necessary, the amount of work done, the skill employed, the monetary amount involved and the result achieved.’ ” Lauratex Textile Corp. v. Allton Knitting Mills, Inc., 517 F.Supp. 900, 904 (S.D.N.Y.1981) (quoting Orgel v. Clark Boardman Co., 301 F.2d 119, 122 (2d Cir.), cert. denied, 371 U.S. 817, 83 S.Ct. 31, 9 L.Ed.2d 58 (1962)). The plaintiff is therefore awarded attorneys’ fees in the amount of $8,062.50.

CONCLUSION

Defendant is found to have infringed plaintiff’s copyright. Defendant is hereby enjoined from further infringements of plaintiff’s pattern 1123. Plaintiff is awarded statutory damages in the amount of $50,000 and attorneys’ fees in the amount of $8,062.50.

SO ORDERED.

      . 17 U.S.C. § 408(d) provides for the filing of an application for supplementary registration to correct an error in the copyright registration. The statute states that the information contained in a supplementary registration augments but does not supercede that contained in the basic registration. The basic registration will not be expunged or cancelled. Thus, even if plaintiff was to amend the original copyright now, the copyright would be valid and support an infringement action.

      . The two designs use a floral border running down the fabric on both sides parallel to the selvage. Both fabrics also contain small flowers in the area between the floral borders in what is called the "field." The similarity between the two is obvious.
      There are also certain apparent differences between the two designs. Record at 79-84. The details of the flowers making up the border are different. Further, plaintiffs design was described as "more stylized." Record at 83. However, these differences are so slight, the dissimilarities so insubstantial, that while they ensure that the patterns are not identical, they do not negate the substantial similarity.
      The court notes that findings such as this regarding similarity of fabric design by a district court have often been reversed on appeal. See, e.g., Novelty Textile Mills, Inc. v. Joan Fabrics Corp., 558 F.2d 1090, 1093-94 (2d Cir.1977) (reversing district court finding of no substantial similarity): Soptra Fabrics, Corp. v. Stafford Knitting Milk, Inc., 490 F.2d 1092, 1093-94 (2d Cir.1974) (same). All that can be said is that "[similarity] is in the eye of the beholder." Margaret Wolfe Hungerford, Molly Bawn (1878).

      . A claim of independent creation is not new for Mr. Levine. This claim has been made and rejected in other suits for copyright infringement brought against Mr. Levine and his corporate alter egos. See, e.g., Pret-A-Printee, Ltd. v. Allton Knitting Mills, Inc., 218 U.S.P.Q. (BNA) 150, 152 (S.D.N.Y.1982); Lauratex Textile Corp. v. Allton Knitting Mills, Inc., 519 F.Supp. 730, 732 (S.D.N.Y.1980).

      . This figure was submitted by plaintiff and was broken down as follows:
      Item No. of Hrs.
      Preparation of Order to Show Cause, TRO and Summons and Complaint 3.50
      Filing of Order to Show Cause, TRO, Summons and Complaint, correspondence and phone calls 2.25
      Correspondence and phone calls .50
      Preparation of Consent Preliminary Injunction correspondence and phone calls 1.50
      Correspondence and phone calls .25
      Correspondence, phone calls and preparation of notice to take examinations 1.00
      Correspondence and revision of notice .25
      Review of file, preparation for examination before trial and examination before trial 4.50
      Correspondence, phone calls, preparation of consent order releasing security .75
      Item No. of Hrs.
      Correspondence, stipulation and phone calls .50
      Correspondence and phone calls .50
      Preparation of Joint Pre-trial Order, review of file, correspondence and phone calls 3.50
      Revision of pre-trial order, correspondence and phone calls 2.50
      Phone calls and correspondence 1.00
      Revision of pre-trial order, phone calls and meeting with defendant’s counsel 5.50
      Preparation for trial 8.50
      Preparation for trial and trial 8.50
      Review of trial transcript, file and preparation of Post-Trial Memorandum 12.50
      Total hours at $125 per hour = 22.50; Total hours at $150 per hour = 35. The total fee was $8,062.50.


author: TROUTMAN, Senior District Judge.

text:
    Margie CHANDLER, et al. v. RIVERVIEW LEASING, INC., et al.
    Civ. A. No. 84-2411.
    United States District Court, E.D. Pennsylvania.
    Dec. 19, 1984.
    David A. Scholl, Bethlehem, Pa., for plaintiff.
    Steven Fischer, Philadelphia, Pa., J. Samuel Choate, Jr., Washington, D.C., for defendant.
   MEMORANDUM AND ORDER

TROUTMAN, Senior District Judge.

When considering a motion to remand two inquiries must be made. The Court must decide whether removal of the matter from state court was appropriate in the first instance. If so, then the Court must determine whether or not to retain jurisdiction over any pendent state claims. Title 28 U.S.C. § 1441.

Plaintiff claims that the above captioned action was improperly removed from state court and presently seeks to have the entire matter remanded to the Northampton County Court of Common Pleas. Under Title 28 U.S.C. § 1441(a) “... any civil action brought in a state court of which the district courts have original jurisdiction, may be removed by the defendants to the district court of the United States ...” except as otherwise expressly provided by an Act of Congress. Title 28 U.S.C. § 1441(c) further provides that when a separate and independent claim, removable if sued upon alone, is joined with a non-removable claim(s), the entire action may be removed and the district court may retain jurisdiction over all issues therein or, in its discretion, remand all issues not within its original jurisdiction.

Currently, plaintiffs complaint contains six counts, five of which deal specifically with Pennsylvania state law. Count two of the complaint alleges violations of the Truth in Lending Act, Title 15 U.S.C. § 1601 et seq., and seeks relief under that Act (15 U.S.C. § 1640). Under the Truth in Lending Act a plaintiff may bring an action in state or federal court, 15 U.S.C. § 1640(e). Therefore, it is clear that Count two alleges a claim or cause of action over which this Court would have original jurisdiction.

The present state of the law is clear that where a plaintiff seeks to enforce a federal statute and requests relief under its provisions in addition to relief under state law claims, there is sufficient ground to remove the entire case to federal district court pursuant to Title 28 U.S.C. § 1441 as long as Congress has not expressly provided otherwise. Wolgin v. State Mutual Investors, 442 F.Supp. 974 (E.D.Pa.1977). Furthermore, a suit brought under the TILA is subject to removal from state to federal court. Sicinski v. Reliance Funding Corp., 461 F.Supp. 649 (D.C.N.Y.1978); Butler v. Rye, 544 F.Supp. 143 (D.C.Mo.1982).

In light of the foregoing it is clear that this action was properly removed from state court to federal court based on Count two of plaintiffs’ complaint.

Once the Court has determined that an action was properly removed to federal court, it must then decide whether or not it should retain jurisdiction of any pendent state claims. Pursuant to Title 28 U.S.C. § 1441(c) it is within the sound discretion of the district court to retain or remand any state law claims. A review of the complaint in the present action reveals that Counts 1, 3, 4, 5 and 6 are pendent state claims. In light of plaintiffs’ uncontested assertion of the novelty of the state law claims the Court concludes it would be preferable for the state courts to address these issues. The interests of all parties will be best served by having the state courts first decide these state issues of first impression. If, as a result, the parties agree that convenience and conservation of judicial resources dictate a remand of Count two of the complaint, we shall recognize and comply with such agreement and request.

Therefore, we will remand the pendent state claims. DiAntonio v. Pennsylvania State University, 455 F.Supp. 510 (M.D. of Pa. 1978); State of Nebraska v. Northwestern ERN Engineering, et al., 69 F.Supp. 347 (D.C. Nebraska 1946). An appropriate order follows.

ORDER

AND NOW, this 19th day of December, 1984, upon consideration of plaintiffs’ motion to remand and defendants’ response thereto, IT IS ORDERED that plaintiffs’ motion is DENIED in part and GRANTED in part. The Court shall retain jurisdiction of Count two of plaintiffs’ complaint and remand Counts One, Three, Four, Five and Six to the Northampton County Court of Common Pleas.