author: GENE CARTER, District Judge.

text:
    Marcelos Ramos MOTTA and Society Ordo Templi Orientis, Plaintiffs, v. SAMUEL WEISER, INC., Defendant.
    Civ. No. 81-0459-P.
    United States District Court, D. Maine.
    Dec. 6, 1984.

      Robert E. Mittel, Michael P. Asen, Mittel & Hefferan, Portland, Me., for plaintiffs.
    James S. Erwin, James R. Erwin, II, Strater, Hancock & Erwin, York, Me., for defendant.
   FINDINGS OF FACT, CONCLUSIONS OF LAW AND OPINION

GENE CARTER, District Judge.

I. Introduction

This is an action for copyright and trademark infringement. The center of this controversy is the literary legacy of Aleister Crowley, an English citizen who died in 1947. Crowley was the dominant figure in the Ordo Templi Orientis (OTO), a quasi-Masonic secret fraternity that was founded near the beginning of the twentieth century in Germany. Crowley wrote prolifically during his lifetime, and some of these writings have been published by the defendant in this case. Upon his death, Crowley devised his literary remains to the Ordo Templi Orientis.

Plaintiffs claim ownership of the Crowley copyrights and allege that these copyrights were infringed by Defendant. Plaintiff Motta is Supervisor General of the Society Ordo Templi Orientis (SOTO), a Tennessee corporation that was organized by him in 1978. Plaintiffs allege that the SOTO is legally cognizable as the successor to the OTO to which Crowley willed the rights to his literary remains. Motta alleges that he is the successor to Karl Germer, Crowley’s successor, as “Outer Head of the Order” (OHO), or leader, of the OTO.

The action was tried to the Court in a trial that lasted five days. A full transcript of the testimony was prepared, and the parties have submitted post-trial briefs and proposed findings of fact and conclusions of law. The Court has concluded that Plaintiffs have failed to sustain their burden of proving that they own the Crowley copyrights in their individual capacities or, alternatively, that they may derive ownership from the OTO. Therefore, their claim of copyright infringement must fail.

In making the following findings of fact, the Court found it unnecessary to attempt to penetrate the mystical nature and occult practices of the OTO. It is sufficient to observe that OTO initiates aspire to pass through a series of mystical grades by taking part in secret rituals. The parties agree that the supreme authority within the organization is the Outer Head of the Order, and that Crowley occupied this position until he died. The prose, poetry and rituals authored by Crowley form the literary nucleus of the belief system of OTO devotees, and they have proven to have substantial value on the occult book market.

II. Findings of Fact

The parties agree that the highest position of authority in the OTO, as conceived of and practiced by Aleister Crowley, is the Outer Head of the Order, or OHO. The parties agree that Crowley was the OHO of the OTO by self-designation until he died in 1947. Crowley left a will in which he devised “all the copyrights in my books and writings whatsoever and wheresoever including any copyrights over which at the date of my death I may have power of disposition to the Ordo Templi Orientis.” Plaintiffs Exhibit 12(a). Neither party contests the validity or legal effect of the will, which was probated in England in 1949. Id.

Plaintiffs contend and Defendant does not contest that Karl Germer succeeded Crowley as OHO of the OTO. Germer was a resident of New York City at the time he acceded to the position of OHO and later moved to California. Germer obtained custody of Crowley’s extant literary remains, and was involved in publishing several of Crowley’s writings. Germer died in California in 1962. At the time of his death, he had not expressly named a successor as OHO of the OTO.

Plaintiff Motta, who spent his childhood in Brazil and speaks Portuguese as his native language, currently has a visa to reside in the United States. Tr. at 24, 25. Motta was initiated into the OTO by Germ-er in California in 1955 or 1956. Tr. at 39-40. Motta corresponded with Germer, often regarding OTO matters, regularly until Germer’s death. Motta also visited with Germer at least three times. Motta testified that he spent a number of years in Brazil working on behalf of the OTO and another organization by the name of the “A.A.,” described by Motta as “an occult order for mystical occult training.” Tr. at 97; see also Tr. at 209-211.

Plaintiffs introduced a number of exhibits which they claim prove that Motta is Germer’s successor as OHO of the OTO. In 1956 Germer wrote to Motta in Brazil indicating, “I am willing to give you a document as my representative for a limited time, but I would have to prepare you for it!” Plaintiffs’ Exhibit 7 (emphasis added). This statement cannot constitute direct evidence supporting Motta’s allegation that Germer appointed him OHO. First, Germer intended only to appoint Motta his representative, not his successor as OHO. Second, the context of the statement indicates that Motta’s authority was to be limited to Brazil. Third, the representation was to be granted only for a limited time. Finally, the representation was conditioned upon Germer's preparing Motta for it, and it was not proven that any such document was ever given by Germer to Motta.

In 1962 Germer wrote to Motta regarding a collection of “Crowleiana”:

Please study this matter carefully and let me soon know if you are interested in buying the collection. Some years ago I suggested to Estelle to sell to the Sidney Library, from the consideration that that [sic] Australia is far enough distant from the political turmoil to assume that these valuable Crowleiana might survive a hoiocaust. South America also applies. Needless to say that I would like nothing better than this stuff to be in your hands, provided you can keep its possession secret and safe.

Plaintiffs’ Exhibit 13. In 1961, Germer wrote to Motta:

I can see that you have been tentatively admitted into what I may call the thelemic chain; it will take long, patient, persistent work to prove yourself. In any case: YOUR WORK AT THIS PHASE is in BRAZIL, and nowhere else. It is demanded that you learn to stand on your own feet with courage and with confidence. It is very possible, even probable, that the call is for you to prepapre [sic] the ground for the establishment of a H.Q. somewhere there where ultimately — before “Armageddon” — the archives can be moved. This may be a year or more off.

Plaintiffs’ Exhibit 14. No inference that Germer designated Motta his successor may be drawn from these statements. They indicate only that Germer tentatively perceived Motta to be a desirable purchaser of the Crowley collection because of Motta’s residence in South America, “distant from the political turmoil.” Moreover, the evidence indicates that Germer never effectuated his speculations.

Plaintiff Motta relies upon the preceding references as evidence that he is Germer’s successor. He relies most heavily, however, upon a letter written to him five days after Germer’s death by Germer’s widow. Mrs. Germer stated in pertinent part:

Our beloved Master is Dead He succumbed Oct. 25, 8:55 P.M. under horrifying circumstances.
You are The Follower
Please take it from me, as he died in my Arms and it was his last Wish! Who the Heir of the Library is, I do not know up to now.

Plaintiffs’ Exhibit 16(b) (emphasis in last sentence added). On January 26, 1963, Mrs. Germer wrote to Motta:

But forget about me, You are Young, You are the Future of the Work, I did not believe when Karl said: It takes another 10 Years to Make Motta the Heir! But Spiritually you are his Heir! you have to work- on in Brazil, if You are stubborn You are not stubborn to me, You fight the Work!

Plaintiffs’ Exhibit 19(b) (emphasis in original).

The “You are the Follower” statement does little to substantiate Motta’s claim to be Germer’s successor as OHO of the OTO. First, the evidence of record indicates that the word “follower” does not have any particular meaning in OTO parlance. Mot-ta now interprets Mrs. Germer’s statement to mean that he is OHO, but there is no evidence that he ever so interpreted it prior to this trial. Second, whatever the statement might mean, the Court can accord it very little weight. It is second generation hearsay, admitted as the dying declaration of Germer, see Fed.R.Evid. 804(b)(2), and the excited utterance of Mrs. Germer. See Rule 803(2). Third, Mrs. Germer expressly stated that she did not know who the heir to the library was. Moreover, the diary entries of Mrs. Germer written prior to and at the time of her husband’s death and other evidence demonstrate that her perception of reality at that time had deteriorated, and her credibility is subject to profound question.

Under direct examination, when asked what position he holds in the OTO, Motta stated: “I am afraid that I must say that I am the Outer Head.” Tr. at 119. On cross-examination, Motta said, “I regret to have to repeat that I am now the Outer Head of the order.” Tr. at 133. Motta alleged at trial that he became the Outer Head upon Germer’s death in 1962, and he bases his claim upon Mrs. Germer’s statement, “You are the Follower.” Tr. at 134. Some circumstantial support for Motta’s claim is provided by evidence, summarized above, indicating that he corresponded frequently with Germer and that he had a serious commitment to studying, editing, and publishing the works of Aleister Crowley.

On the other hand, substantial evidence was introduced which tends to belie Mot-ta’s claim of status within the OTO. Although Motta claimed at trial to have assumed the position of OHO upon Germer’s death in 1962, he stated a number of times subsequent to Germer’s death to several different people that he was not the OHO. Tr. at 134, 135, 147; Defendant’s Exhibits 18, 52. Motta stated at least twice that he was not eligible to be OHO, Defendant’s Exhibits 52, 18, and at least twice that it was necessary to elect a new OHO to succeed Germer. Defendant’s Exhibit 18.

Although Motta’s interest in the writings of Crowley is not to be doubted, his professed interest in the OTO as an organization is not supported by the record. He stated at least twice that he was never very interested in the OTO. Defendant’s Exhibit 52, and Tr. at 192. He stated several times that he preferred the A.A., see supra at 4, to the OTO. Defendant’s Exhibits 71 (1957), 72 (1961), 60 (1971), 52 (1974).

Also, the Court is not persuaded of Plaintiff Motta’s credibility on the central question regarding his status in the OTO, and, therefore, can accord very little weight to his testimony. His testimony and correspondence are rife with contradictions. The contradictory statements about his claim to be OHO and his interest in the OTO are cited above. Examples of Motta’s peculiar attitude toward the truth abound in his testimony:

[by Mr. Erwin]
Q And that’s a letter you wrote to Mr. Grant in 1971?
A Yes, sir.
Q Do you recall telling him: “I am not concerned with the OTO as such”? A Yes, sir.
Q Was that true at the time?
A Yes and no.
Q Well, did you mean it?
A It was an attitude that I assumed. Q Well, either you meant it or you didn’t mean it, Mr. Motta?
A I did not mean it.

Tr. at 166-67.

Motta explained his inconsistency about his claim to be OHO as follows:

Sir, I have been answering your questions and apparently I have not been calling myself a liar here. I am not interested in power or titles and I am much more interested in seeing the OTO on its feet working harmoniously together constructively than to be called the Outer Head of the OTO. I have avoided calling myself the Outer Head of the OTO because I know lots of people aspire to that title and if one of them could have shown to me that he or she is in a position right now to assume it, I would gladly let them have it. So that’s why I have avoided using the words Outer Head of the order in relationship to myself, but because I truly would rather be doing something else, but I have promises to keep and miles to go before I sleep.

Tr. at 169. The Court rejects this explanation because it was not proven that Motta laid claim to the title at any time between Germer’s death in 1962 and the commencement of this lawsuit. Furthermore, Motta advances no objective criteria by which his assertion that no one else is eligible to be OHO may be evaluated. Rather, his claim is based solely on his own subjective, self-serving assertions.

Plaintiffs’ explanation in their post-trial brief for the numerous contradictions in Motta’s testimony and correspondence is that “basic doctrine of the OTO requires people in leadership positions to dissemble about those subjects.” Reply Brief of Plaintiffs at 6. First, it is strange that Plaintiff Motta, who was repeatedly confronted with these contradictions upon cross-examination and given the opportunity to explain them on redirect, did not offer this as an explanation at trial. Second, and more importantly, it makes little difference to the Court whether Motta’s dissembling has a doctrinal basis or is simply the product of a dishonest mentality. In either case, the Court can assign very little weight to the testimony of an admitted dissembler.

Testimonial and documentary evidence reveals that Motta is not the only claimant to Crowley’s literary legacy. Grady McMurtry is a California resident who met Crowley when he was serving in Europe at the conclusion of World War II. The evidence includes several letters from Crowley to McMurtry indicating Crowley’s belief that McMurtry was a possible successor to Germer. Defendant’s Exhibits 44, 45, 63, 64. Germer himself recognized that McMurtry held a preeminent historical status in the OTO several times during the 1940s and the 1950s. See Defendant’s Exhibits 66, 67, 68, 69.

At some point prior to Germer’s death, McMurtry and Germer had a falling out. McMurtry left California in 1961 and went to Washington, D.C. to work for the Federal Government. Tr. at 510. He returned to California in 1969. Tr. at 511. Upon his return, McMurtry found that the OTO organization “had disintegrated.” Tr. at 513. McMurtry does not claim to be OHO, but he is the de facto leader of a group of California devotees of Crowley who consider themselves the legitimate OTO. McMurtry’s organization is incorporated in California. Tr. at 508.

James Wasserman, a member of the California incarnation of the OTO, testified that the California-based organization has “approximately 750 members in active standing worldwide.” Tr. at 245. Wasserman was a former associate of Plaintiff Motta and at one time had a power of attorney from Motta to act on his behalf in order to obtain access to the Crowley library. Tr. at 216. Wasserman was also at one time an employee of Defendant Samuel Weiser, Inc. Tr. at 217. While in California in 1976 representing Motta and Defendant, Wasserman was initiated into the OTO by McMurtry. Tr. at 236. Wasserman testified that at that time Motta was not attempting to run any kind of OTO in the United States. Tr. at 235.

Motta incorporated his group as the Society Ordo Templi Orientis (SOTO) in Tennessee in 1978. Plaintiffs’ Exhibit 35. He claims a total membership of five. Tr. at 214.

McMurtry entered into a contract to publish the “Thoth Tarot Cards” as “caliph” of the OTO in 1970. Defendant’s Exhibit 47. In 1976 McMurtry obtained an order in the Superior Court of the State of California which stated that McMurtry was the “duly constituted and authorized representative of the Ordo Templi Orientis” and that he therefore had the right of possession of OTO literary materials that had been left by Karl Germer. Defendant’s Exhibit 59. The evidence is conflicting about whether Plaintiff Motta received notice of the proceeding. It is unnecessary to resolve this factual issue; the Court accepts the Court Order only as circumstantial evidence of McMurtry’s state of mind with respect to his status in the OTO.

The evidence demonstrates that there are still other possible claimants to the OTO legacy. These include a group in Switzerland led by a Joseph Metzger, Defendant’s Exhibits 20, 50, a group in England led by a Kenneth Grant, Defendant’s Exhibit 5, and a former associate of Crowley by the name of Frederick Mellinger. Plaintiffs’ Exhibits 75, 76. The Court need not decide whose claim is superior. The Court simply finds as a fact that Plaintiffs represent only one of several groups who claim to be legitimate successors to Aleister Crowley’s original OTO.

There is no evidence indicating that the OTO was ever incorporated during the lifetime of either Crowley or Germer. Crowley’s will left his literary remains to the “Ordo Templi Orientis.” He named two literary executors; Louis Umfraville Wilkinson and John Symonds, both English citizens. Their role, potentially significant, in the disposition of the copyrights is not addressed by either party. Crowley’s will contains no statement concerning the membership or geographical distribution of the Ordo Templi Orientis to which he devised his copyrights. The evidence presented does not include any externally verifiable criteria for membership in the OTO or for devolution of the title of OHO at the time Crowley died, at the time Germer died, or today. The Court accordingly finds that the membership of the OTO is indefinite and cannot be ascertained. The Court also finds that Plaintiff Motta has failed to prove that Karl Germer ever appointed him successor as OHO.

III. Conclusions of Law

Plaintiff Motta and SOTO do not own the Crowley copyrights in their individual capacities.

The OTO is not proven to be an unincorporated association having legal status to own property. Therefore, Plaintiffs cannot derive ownership of the copyrights from the OTO.

IV. Pending Motions

One pretrial motion and five post-trial motions remain to be decided in this case.

Defendant moved to amend its answer on February 27, 1984, two days before trial began. Defendant sought to add ten “affirmative defenses” to its answer. The Court permitted the amendments on the condition that:

Plaintiff is not precluded from arguing in respect to any affirmative defense pleaded therein that such defense has been waived under the Federal Rules of Civil Procedure, Rule 12(b) and (h), or by other operative principle of law by failure to previously plead such defense as required by those rules of law.

Tr. at 12. Because the Court has determined that the issue of ownership, on which Plaintiffs have the burden of proof, is dispositive in this case, it is unnecessary for the Court to reach the question whether Defendant’s Answer should be amended to include “true” affirmative defenses.

Plaintiffs have filed four post-trial motions concerning registration of various copyrights with the United States Copyright Office: a Motion to Amend Complaint, filed July 3, 1984; a Motion to Amend Record, filed July 20, 1984; a Motion to Amend Record, filed July 26, 1984; and a Motion to Amend Record, filed September 17, 1984. Because the Court has determined that Plaintiffs have failed to sustain their burden of proving ownership, the issues posed by these motions respecting registration of specific copyrights are moot and need not be reached by the Court.

Plaintiffs have also moved to amend the record, on September 20, 1984, to introduce three documents, alleged to be a letter from Germer to Motta, a letter from McMurtry to Germer, and a letter from Germer to McMurtry. Defendant objected on the stated grounds, inter alia, that the documents have not been authenticated and no foundation for their admissibility has been provided. Defendant’s objection is well-founded, and, accordingly, the Motion to Amend Record shall be denied. The Court notes that it has reviewed the proffered documents and that, even if they were to be admitted, they would not alter the findings contained in this decision.

V. Opinion

A.

Plaintiff Motta does not claim personal ownership of the Crowley copyrights. Rather, he contends that his ownership rights are derived from his capacity as OHO or member of the OTO. Plaintiffs’ Brief at 8-10.

Plaintiffs contend, however, that Plaintiff SOTO is the owner of the Crowley copyrights. Plaintiffs’ Brief at 10. SOTO was incorporated by Motta in Tennessee in 1978; Motta claims a nationwide membership of five individuals. The Court has found that other persons with viable claims to OTO membership are not members of Plaintiff SOTO. Any claim by Plaintiff SOTO that it is the exclusive successor to the associational name, “OTO,” must, on this record, fail. At best, Plaintiff SOTO is shown to be merely a corporate member of the organization known as the OTO. Plaintiff SOTO’s ability to assert in a legal forum a claim of ownership of the Crowley copyrights, therefore, must be derived from its capacity as an OTO member.

In summary, neither Plaintiff has proven direct ownership of the Crowley copyrights. Any rights they may have must be derived from their status within the OTO.

B.

Plaintiffs have the burden of proving that they own the copyrights in an infringement action. Knickerbocker Toy Co., Inc. v. Azrak-Hamway International, Inc., 668 F.2d 699 (2d Cir.1982); Walker v. University Books, Inc., 602 F.2d 859 (9th Cir.1979); Ferguson v. National Broadcasting Company, Inc., 584 F.2d 111 (5th Cir.1978). If the OTO is not a legal entity capable of owning property, Plaintiffs cannot own the copyrights, and their infringement action must fail.

One of the fundamental precepts of Anglo-American jurisprudence is that a right, to be enforced in a court of law, must have a “holder” or “bearer.” See IV R. Pound, Jurisprudence 192 (1959). There must be a “legal unit” to which the right attaches. Id. This may be a natural person or some other entity which has been accorded legal personality by common law or statute.

The concept of legal personality is to be distinguished from the concepts of standing and capacity. Standing focuses primarily upon the relationship between a person and a legal claim. See 13 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 3531 (1984). Capacity, as normally used, connotes capacity to engage in legal transactions or to obtain judicial relief. Dean Pound explained:

Capacity for rights must be distinguished from capacity for legal transactions (i.e., for acts intended to produce legal consequences to which the law, giving effect to the intention, attaches the intended consequence), capacity for wrongs (i.e. for acts involving civil liability for infringement of rights in rem), and capacity for crimes (i.e. for breaches of absolute duties for which the law provides penal consequences). Want or loss of legal personality, therefore, is quite another thing from lack or loss of capacity for legal transactions or for wrongs or for crimes or for all of them. A person may have legal rights (using rights in the broader sense) and yet be incapable of legal transactions, or incapable of incurring legal liability, or incapable of responsibility for what would otherwise be accounted crimes.

IV R. Pound, Jurisprudence 276-77.

The record in this case poses the fundamental question as to whether the OTO is a person in the law. Under the common law, an unincorporated association is not recognized as a legal entity. Moffat Tunnel League v. United States, 289 U.S. 113, 118, 53 S.Ct. 543, 545, 77 L.Ed. 1069 (1933); Johnson v. South Blue Hill Cemetery Association, 221 A.2d 280 (Me.1966); Byam v. Bickford, 2 N.E. 687, 140 Mass. 31 (1885); State v. Sunbeam Rebekah Lodge No. 180, 127 P.2d 726, 169 Or. 253 (1942). Relief from this rule is available in two different ways. First, courts may determine that a right such as ownership which cannot vest in the association as an entity may vest in the individuals who comprise the organization. See, e.g., County of Trinity v. Rourke, 79 Cal.Rptr. 902, 275 C.A.2d 628 (1969); Flanagan v. Benvie, 273 P.2d 381, 58 N.M. 525 (1954); Rhode Island Association for Blind v. Nugent, 206 A.2d 527, 99 R.I. 187 (1965); Byam v. Bickford, 2 N.E. 687, 140 Mass. 31 (1885); Johnson v. South Blue Hill Cemetery Association, 221 A.2d 280 (Me.1966). Alternatively, some states have enacted statutes conferring entity status upon unincorporated associations for one or more purposes. See, e.g., Cal.Corp.Code § 20001 (West 1977) (permits “any unincorporated society or association” to hold property); 14 M.R. S.A. § 2 (1980) (unincorporated association may sue in the name of its trustees).

It is elementary that a court may not recognize an association as a legal entity under a statute or, alternatively, determine that a right vests in the individual members of an association unless the association has a distinct, identifiable membership. See Johnson v. South Blue Hill Cemetery Association, 221 A.2d 280 (Me.1966); State v. Sunbeam Rebekah Lodge No. 180, 127 P.2d 726, 169 Or. 253 (1942). An “association” that exists in name only is not an association at all, as the term is defined in both common and legal vernacular. Although the formalities of the corporate form are by definition absent, an unincorporated association must have certain characteristics which justify its recognition as an entity or as a distinct group of individuals.

The term “unincorporated association” has been defined as:

a voluntary group of persons, without a charter, formed by mutual consent for the purpose of promoting a common enterprise or prosecuting a common objective.

Local 4076, United Steelworkers v. United Steelworkers, AFL-CIO, 327 F.Supp. 1400, 1403 (W.D.Penn.1971). The term was elsewhere defined similarly as

[an] organization composed of a body of persons united without a charter for the prosecution of some common enterprise. Meinhart v. Contresta, 194 N.Y.S. 593, 594 (Sup.Ct.Spec.Term 1922).

California Clippers, Inc. v. United States Soccer Football Association, 314 F.Supp. 1057, 1068 (N.D.Cal.1970). The Supreme Court had occasion to expound upon the ordinary meaning of the term “association” as it is used in the law:

It has been defined as a term “used throughout the United States to signify a body of persons united without a charter, but upon the methods and forms used by incorporated bodies for the prosecution of some common enterprise.” 1 Abb.Law Dict. 101 (1879); 1 Bouv.Law Dict. (Rawle’s 3rd Rev.) 269; 3 Am. & Eng.Enc.Law (2d ed.) 162; and Allen v. Stevens (App.Div.) [33 App.Div. 485], 54 N.Y.S. 8, 23, in which this definition was cited with approval as being in accord with the common understanding. Other definitions are: “In the United States, as distinguished from a corporation, a body of persons organized, for the prosecution of some purpose, without a charter, but having the general form and mode of procedure of a corporation.” Webst. New Internat. Diet. “[U.S.] An organized but unchartered body analogous to but distinguished from a corporation.” Pract. Stand. Diet. And see Malley v. Bowditch (C.C.A.), 259 Fed. 809, 812; Chicago Title Co. v. Smietanka (D.C.) 275 Fed. 60: also United Mine Workers v. Coronado Co., 259 U.S. 344, 392 [42 S.Ct. 570, 576, 66 L.Ed. 975], in which unincorporated labor unions were held to be “associations” within the meaning of the Anti-Trust Law.

Hecht v. Malley, 265 U.S. 144, 157, 44 S.Ct. 462, 467, 68 L.Ed. 949 (1923). See also Penrod Drilling Company v. Johnson, 414 F.2d 1217, 1222 (5th Cir.1969); Health Care Equalization Committee of the Iowa Chiropractic Society v. Iowa Medical Society, 501 F.Supp. 970, 976-77 (D.Iowa1980).

These definitions make it clear that an unincorporated association is more than a name; the concept connotes a well-defined group of legal persons connected by a common purpose or interest. This common purpose or interest affords a court objective criteria by which it may ascertain the membership. Lacking such criteria, a court cannot grant requested relief to the members of an association. See Johnson, 221 A.2d at 283; Sunbeam Rebekah Lodge, 127 P.2d at 731. In Johnson, the Maine Supreme Judicial Court identified the obstacles to permitting a testamentary gift to vest in the members of a volunteer, unincorporated cemetery association:

The actual membership of the Association at the time of the testatrix’s death is uncertain and cannot be ascertained with any reasonable degree of accuracy. No by-law exists which regulates or defines eligibility for membership ... No criterion of membership being established, neither the purchase of a cemetery lot nor a donation to the Association without more was sufficient to characterize such action as an assent on the part of the purchaser or donor to become a member of the Association. Thus, in the instant case, basic and necessary conditions upon which membership in the defendant Association could be predicated are wanting, and rights and liabilities as usually arise from membership in an unincorporated voluntary association cannot be left for their enforcement to such loose contacts as evidenced herein. The membership in the South Blue Hill Cemetery Association was not sufficiently definite and determinate.

Johnson, 221 A.2d at 283 (emphasis added).

The Court has found that Plaintiff SOTO, a Tennessee corporation, is at best one of many actual or potential claimants to OTO membership. On the evidence before the Court it is not possible to identify a chain of successorship which enables the Court to recognize a definite organization which has the exclusive right to use of the OTO associational name. Crowley identified several possible successors to himself and Germer, and Motta was not one of them. The Court has found that Germer did not appoint Plaintiff Motta as his successor. When they discussed possible successors in their correspondence, both Crowley and Germer wrote in vague, noncommittal terms. They both often changed their opinions of their followers and sometimes about each other. Their judgments about OTO hopefuls with whom they corresponded were highly subjective and are not capable of translation by this Court into objective criteria by which the present-day membership of the OTO may be ascertained. Their correspondence, like most of the letters introduced in the case, is steeped in intrigue and recrimination. The evidence adduced at trial demonstrates that anyone who engaged in correspondence with Crowley and Germer regarding the OTO could not be prevented from starting his own group under the OTO banner.

The reality is that neither Crowley nor Germer articulated, prior to their deaths, anything resembling a set of objective criteria by which the Court can determine the repository of OTO authority or the limits of its membership. Crowley’s legacy is not an organization of definite membership, but an amorphous set of ideas and rituals which may be appropriated by any Crowley or OTO aficionado. The record does not prove the evolution, subsequent to the deaths of Crowley and Germer, of any authoritative criteria to determine membership in any discrete group of persons known as the OTO. In short, the OTO is not a legal “person” capable of owning property as an entity or through its individual members.

Having failed to prove that Plaintiffs own the copyrights in their individual capacities, Plaintiff Motta is forced to resort to claiming ownership as a member of the OTO. Plaintiff insists that the Court can award its “ultimate judgment” to the OTO and that it need not decide who are the true followers of Aleister Crowley. It is true that the Court need not choose among rival claimants, but the Court must determine that the OTO has legal personality in order to find that it is capable of ownership. Such a determination cannot be made on this record. The critical distinction is that to be made between a design for a fraternal fellowship that exists only in the abstract, on the one hand, and an actual assemblage of human beings associated for some unique or discernible purpose, on the other. The OTO is shown by this record to have been nothing more than an idea in the mind of Aleister Crowley which was embraced by that of Germer.

Even if the Court assumes (the evidence suggests otherwise) that Crowley was the leader of an identifiable association of persons who sought to execute his idea, that he expressly appointed Karl Germer to succeed him as leader, and that Germer also presided over an identifiable association of persons united by Crowley’s fraternal idea, the record before the Court falls far short of proving that, at the present time, or at the time of the alleged infringements, any particular group of human beings could lay exclusive claim to be the OTO, as conceived of by Aleister Crowley when he devised his literary rights to the OTO. The abstract idea of an OTO persists, available to be appropriated by anyone so inclined, but no single group of persons having exclusive right to use of the OTO name appears from this record to exist.

Finally, the Court should take note of the fact that neither Plaintiffs nor Defendants expressly raise in a discrete context the issue as to whether the OTO is a cognizable legal entity. Ordinarily, when an issue is not raised, it is waived. In this case, however, there are at least two compelling reasons why the Court must deal with the issue sua sponte.

First, there is no question that the parties raised the issue of Plaintiffs’ ownership of the copyrights as an element of a claim of infringement, and capacity for ownership is an essential predicate to such ownership. Plaintiff Motta’s infringement claim is derived from the alleged ownership of the OTO. He has a claim only if ownership of Crowley’s literary remains is vested in the OTO. In light of this posture, the Court can hardly overlook the question of whether the OTO is capable of such ownership.

Second, the question as to whether an entity is sufficiently well-defined to be legally cognizable is so fundamental to the effectiveness of the Court’s ultimate order that the Court must consider the issue on its own motion. It is in essence a consideration going to justiciability, which may be raised sua sponte. Cf. Bergstrom v. Bergstrom, 623 F.2d 517, 519 n. 1 (8th Cir.1980) (issue of ripeness may be raised sua sponte at any stage of proceedings); Juidice v. Vail, 430 U.S. 327, 331-32, 97 S.Ct. 1211, 1215-16, 51 L.Ed.2d 376 (1977) (issue of standing raised sua sponte).

Accordingly, it is ORDERED that Judgment be entered in favor of Defendant.

So ORDERED.

      . Plaintiffs argue to the contrary in their reply brief:
      Both of defendant's witnesses who supported that proposition [that "the follower" has no meaning in OTO parlance] were probably not aware of Verse 76, Book 2 of THE BOOK OF THE LAW which reads as follows:
      What meaneth this, o prophet? Thou know-est not; nor shalt thou know ever. There cometh one to follow thee: he shall expound it. But remember, o chosen one, to be me; to follow the love of Nu in the star-lit heaven; to look forth upon men, to tell them this glad word.
      (Emphasis added.) This passage was not introduced as substantive evidence at trial and has not been so admitted by this Court. Even if the Court were to consider it, the passage does not support Plaintiffs’ argument that “the follower" has the special meaning which Plaintiffs attempt to ascribe to it.

      . This case would present difficult questions as to choice of law with respect to the issue of ownership were there any conflict in the law of the interested jurisdictions. First, there is the issue of whether state or federal law applies to the issue of ownership. There is authority supporting the view that state law should apply to issues respecting ownership in actions brought under the federal Copyright Act. See Bartsch v. Metro Goldwyn Mayer, Inc., 391 F.2d 150, 153 (2nd Cir.1968); Fantastic Fakes, Inc. v. Pickwick International, Inc., 661 F.2d 479, 483 (5th Cir.1981); De Sylva v. Ballentine, 351 U.S. 570, 76 S.Ct. 974, 100 L.Ed. 1415 (1956). Second, there is the question as to whether state or federal choice of law rules apply where jurisdiction is founded upon a federal question. See Pennzoil v. Federal Energy Regulatory Commission, 645 F.2d 360, 387 (5th Cir.1981) (federal choice of law rules apply); compare Klaxon v. Stentor Electric Manufacturing Co., Inc., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941) (federal court sitting in diversity must apply choice of law rules of forum state). Finally, there is the question of which state’s law should apply. Here, Maine, Tennessee and California are interested jurisdictions. The Court has reviewed the law of the various interested states and the federal “common law’’ and has determined that there is no conflict with respect to the fundamental principles that are decisive in this case. Accordingly, it is unnecessary to undertake an extended choice of law analysis.


source: Caselaw Access Project

author: ANNA DIGGS TAYLOR, District Judge.

license: Public Domain

text:
    In re LONG DISTANCE TELECOMMUNICATIONS LITIGATION. Seymour LAZAR, an Individual on behalf of himself and all others similarly situated, Plaintiff, v. MCI COMMUNICATIONS CORPORATION, MCI Telecommunications Corporation, and Does I through X, inclusive, Defendants.
    MDL No. 598. Civ. No. 84CV4801DT.
    United States District Court, E.D. Michigan, S.D.
    Dec. 6, 1984.

      James A. Mangione, Law Offices of James A. Mangione, San Diego, Cal., for Seymour Lazar.
    Fay Clayton, Sachnoff, Weaver & Ruben-stein, Ltd., Chicago, Ill., for Certified Collateral Corp., Earl E. Olive and David H. Locks.
    Michael J. Freed, Chicago, Ill., for Euro-market Designs, Inc. d/b/a Crate & Barrel.
    Karl L. Cambronne, Chestnut & Brooks, P.A., Minneapolis, Minn., for McIntosh Embossing, Inc.
    Gerald D. Miller, Miller, Hochman & Myerson, Jersey City, N.J., for Mark Hochman, et al.
    Grant S. Lewis, LeBouef, Lamb, Leiby & MacRae, New York City, for United States Transmission Systems, Inc.
    Mitchell S. Goldgehn, Greenberg Keele Lunn & Aronberg, Chicago, Ill., for Allnet Communication Services, Inc.
    Richard J. Gray, Jenner & Block, Chicago, Ill., for MCI Telecommunications Corp.
    Howard G. Kristol, Reboul, MacMurray, Hewitt, Maynard & Kristol, New York City, for GTE Corp., GTE Spring Communications Corp., GTE Automatic Elec. Corp., Southern Pacific Co., Southern Pacific Communication Co. and Southern Pacific Satellite Co.
    John Havas, Foulkrod, Reynolds & Havas, Harrisburg, Pa., for Lilly M. Feitler, etc.
    Nicholas Chimicles, Greenfield, Chimicles & Lewis, Haverford, Pa., for A. Linda Leventhal, etc.
    Robert P. Hurlbert, Dickinson, Wright, Moon, Van Dusen & Freeman, Bloomfield Hills, Mich., for Western Union Telegraph Co.
    Michael W. Ward, O’Keefe, Ashenden, Lyons & Ward, Chicago, Ill., for U.S. Telephone of the Midwest, Inc.
   MEMORANDUM OPINION AND ORDER

ANNA DIGGS TAYLOR, District Judge.

This cause comes before the court on plaintiff’s motion for remand to the California state court. For the reasons outlined below, plaintiff’s motion is denied, and this cause is consolidated with the other federal actions transferred to this district court for pre-trial management by the Multidistrict Litigation Panel on August 27, 1984.

On May 16, 1984, plaintiff filed this class action for injunctive relief and damages in the Superior Court for the County of San Diego, California, alleging three causes of action: Count I for fraud and deceit; Count II for negligent misrepresentation, and Count III for unlawful, unfair or fraudulent business practices. Plaintiff claims that defendants, common carriers in competition with AT & T for the provision of long distance phone services to consumers, promised substantial savings on each long distance call made. Plaintiff charges that instead, defendants herein have in fact improperly charged, and continue to charge plaintiff and the class he proposes to represent for long distance calls which were never completed, and failed to notify plaintiff of that practice. The allegations of the complaint are characterized by plaintiff as violations of California statutory and common law, exclusive of any federal basis.

Defendants petitioned for removal in the United States District Court for the Southern District of California, alleging that plaintiff’s claims arise under and are governed exclusively by the Federal Communications Act of 1934, 47 U.S.C. § 151 et seq. (1962). On June 22, 1984 counsel for the defendants wrote to the Judicial Panel on Multidistrict Litigation and designated this action as a potential “tag-along” action in connection with other cases then pending before the panel. On this same date, plaintiff petitioned the Southern District of California federal district court to remand to California state court. Hearing of that motion was deferred, pending the decision of the Multidistrict Panel.

On August 27, 1984, the Multidistrict Panel transferred nine long distance telecommunications actions pending in district courts to this forum. As a “tag-along” action, this ease was subsequently transferred by order of the Panel dated September 28, 1984.

Pursuant to 28 U.S.C. § 1447(c) (1973), plaintiff now renews his motion for remand to the California state court on the ground that the matter was improvidently removed, no federal claims having been stated.

This action is but the most recent of fourteen class actions pending in the federal courts challenging the same alleged billing and disclosure practices of the defendants which are assailed by plaintiff herein. This court dismissed the first of these cases under the principles of primary jurisdiction, in deference to the Federal Communications Commission. Control Electronics v. Southern Pacific Communications Co., 83CV1010DT (E.D.Mich.1984). The second case was dismissed by the District Judge on primary jurisdiction grounds as well. Retail Recruiters of New York, Inc. v. MCI Telecommunications Corp., 83CV8048 (S.D.N.Y.1984). Of the remaining cases, nine have been transferred to this court by order of the Judicial Panel. The Panel’s decision regarding transfer of a tenth case was deferred pending resolution of an appeal. The other two cases are no longer pending in federal courts. Although plaintiff’s complaint does not expressly refer to the Federal Communications Act of 1934, the factual allegations of his complaint are materially indistinguishable from those presented in the cases which comprise the consolidated multidistrict matter now before this court, all of which are grounded in the Federal Communications Act.

In Ivy Broadcasting v. American Tel. and Tel. Co., 391 F.2d 486 (2d Cir.1968), the Second Circuit Court of Appeals determined that “questions concerning the duties, charges and liabilities of telegraph or telephone companies with respect to interstate communications service are to be governed solely by federal law and that the states are precluded from acting in this area.” 391 F.2d at 491. The court there held that a radio broadcasting company did not have a state law cause of action to redress the AT & T Company’s allegedly negligent operation of its lines and discriminatory billing practices.

Defendants here cite Ivy in support of the argument that the state common law and statutory claims which plaintiff presents are preempted by the Communications Act. In response, plaintiff contends that under Nader v. Allegheny Airlines, 426 U.S. 290, 96 S.Ct. 1978, 48 L.Ed.2d 643 (1976), his California state law claims are not preempted by the Communications Act as he had made no allegations which “arise under” that act. Further, plaintiff argues that the savings clause contained in the Communications Act, 47 U.S.C. § 414 (1962), expressly preserves his state law claims, as well as his right to elect to pursue either federal or state remedies.

This court must find that plaintiff’s claims are preempted. 47 U.S.C. § 201(b) (1962) states as follows:

All charges, practices, classifications and regulations for and in connection with a carrier’s communications services shall be just and reasonable.

Although plaintiff does not expressly allege the unreasonableness of a rate or tariff of the defendants, he is in effect chailenging the justice and reasonableness of a particular practice: the defendants’ alleged procedures concerning disclosure of their billing practices. The Federal Communications Act of 1934, which sets forth a comprehensive scheme of federal law governing charges, practices, duties and liabilities of interstate telecommunications carriers in connection with a carrier’s provision of interstate long distance service to its customers, would surely be thwarted if the Federal Communications Commission, the primary enforcement agency under the Act, is vulnerable to contradictions and inconsistent adjudications in the courts of the fifty states. Not only the Commission, but also the statute it was created to enforce, would very shortly be rendered inoperative if the semantics of a complaint are permitted to outweigh its sense and produce such a result.

Moreover, to permit plaintiff to take his case back to the California state court now would provoke a multitude of state class actions on this very issue, each materially indistinguishable from the consolidated actions now before this court, in innumerable state fora against the same defendants. Inconsistent rulings and impossibility of compliance would soon follow. To permit the possibility that defendants herein would be required to provide long distance service under differing sets of rules in different states would be to ignore Congress’ recognition in the Communications Act of the need for comprehensive regulations as well as the practical difficulties inherent in state-by-state regulation of such an industry. The ultimate and inevitable losers in such a process would be the consumers which plaintiff seeks to represent.

Under Garibaldi v. Lucky Food Stores, 726 F.2d 1367 (9th Cir.1984), a removing court may examine the true nature of plaintiff’s complaint when it is charged by the removing party that plaintiff has attempted to avoid a federal cause of action by relying solely on state law. This rule, known as the “artful pleading doctrine,” ensures that a party may not defeat removal by refusing to plead necessary federal questions in a complaint.

Although this court certainly is not straining to transmute run-of-the-mill state law claims into federal questions, it is clear here that plaintiff, under the sheep’s clothing of California law, is seeking to attack defendants’ disclosure practices concerning their billing procedures. Those allegations are at the very heart of the multidistrict litigation which has been consolidated before the court, and which is governed by 47 U.S.C. § 201(b).

Both the injunctive relief and the damages sought by plaintiff are available under governing federal law. 47 U.S.C. §§ 205-207 (1962). The savings clause, contained at 47 U.S.C. § 414, is inapplicable here, as plaintiff’s complaint effectively challenges practices expressly and exclusively regulated by the Federal Communications Act in 47 U.S.C. § 201.

It is noteworthy that the Federal Communications Commission has recently acknowledged its jurisdiction of questions concerning a carrier’s duty to inform and disclose as among its statutorily described responsibilities for regulating the practices of a common carrier of telephone services. Bill Correctors, Ltd. v. MCI, (— FCC —, 11/8/84). In this administrative proceeding, now pending before the FCC, the Commission is moving under §§ 201(b), 202(a) and 209 of the Communications Act to examine “the method by which carriers should notify customers of the possibility of erroneous charges for short calls and of their refund policies therefore.” FCC has also ordered all of the defendants involved in that proceeding to file, for examination purposes, a description of the notification methods employed to advise customers of potential billing errors and refund policies.

For the foregoing reasons, plaintiff’s motion to remand this case to the California state court system must be and hereby is denied.

IT IS SO ORDERED.


author: ARONOVITZ, District Judge.

text:
    Joseph NIEVES, Plaintiff, v. METROPOLITAN DADE COUNTY, Defendant.
    No. 82-2615-Civ.
    United States District Court, S.D. Florida.
    Dec. 6, 1984.

      Jesse J. McCrary, Jr., Miami, Fla., for plaintiff.
    Lee A. Kraftchick, Asst. County Atty., Miami, Fla., for defendant.
   MEMORANDUM OPINION CONTAINING FINDINGS OF FACT AND CONCLUSIONS OF LAW

ARONOVITZ, District Judge.

Nature of the Action

THIS CAUSE came on for trial before the Court without a jury on Plaintiff JOSEPH NIEVES’ Complaint (Docket No. 1) alleging violation of Title 42 of the United States Code, Section 2000e for alleged discrimination in employment based on national origin. The Court heard and received into evidence live testimony, deposition testimony and numerous exhibits, and has had the benefit of closing argument by counsel. The Court having considered the foregoing and having been otherwise fully advised in the premises, sets forth herein its findings of fact and conclusions of law.

FINDINGS OF FACT

1. Plaintiff JOSEPH NIEVES is a citizen of the United States and a resident of Dade County, Florida.

2. Defendant METROPOLITAN DADE COUNTY is a political subdivision of the State of Florida and operates a mass transit system known as Metrobus. Metrobus is engaged in an industry affecting interstate commerce.

3. On April 1, 1974, Defendant hired Plaintiff to serve as a Transit Information Clerk for Metrobus. Transit Information Clerks answer passenger inquiries about bus routes and fares.

4. When Plaintiff first applied for the Transit Information Clerk position, he was asked to fill out an application form indicating his “race and/or nationality or both”. The form requires applicants to check the “appropriate box or boxes”. Plaintiff marked the box for “Caucasian” but left the box for “Spanish-American” blank. As a result, Mr. Nieves was listed as Caucasian, not of Spanish American national origin, in his Dade County personnel record.

5. According to the Plaintiff, when he first began working for Metrobus, he told a number of persons that he was Hispanic, but the only person he could initially recall telling was Ron Tober. Mr. Nieves testified that he told Tober of his national origin at an initial interview. Peter Andolina, Nieves’ immediate supervisor, was at the initial interview with Tober but did not hear Nieves mention his national origin.

6. Joseph Jakobsche became the Director of Plaintiff's Department in September 1976. By the time Jakobsche arrived at Metrobus, Tober had already left, so it was impossible for Tober to convey whatever knowledge he may have had about Nieves’ national origin to Jakobsche. Nieves admitted on cross-examination and in his deposition that he never told Jakobsche of his national origin. On rebuttal, Nieves testified for the first time that he might have mentioned his national origin to Jakobsche during a brief conversation.

7. Dade County regularly evaluates its employees using a standardized employee evaluation form. On his first evaluation, Plaintiff was rated satisfactory. On his 1974-75 evaluation, he was again rated satisfactory overall but “weak” in the category of “personal relations with fellow employees and supervisors”. The rater, Peter Andolina, commented that Nieves’ “rapport with fellow workers does need improvement”. In his 1975-76 evaluation, Plaintiff was again rated satisfactory but “weak” in personal relations with fellow employees. Peter Andolina explained that these “weak” ratings in personal relations were the result of complaints he had received from Nieves’ co-workers and his own observation of Nieves’ difficulty getting along with fellow employees.

8. Prior to 1978, the Transit Information Clerks did not have their own supervisor. Scheduling for unforeseen vacancies, writing reports and other matters were handled by a “lead worker”, Fred Werner. He received a salary supplement to compensate him for these additional duties.

9. Sometime in 1977, Metrobus decided to create a supervisor position for the Transit Information Clerks. As the Director of Planning and Marketing, Joseph Jakobsche was given the task of deciding who to hire for the new position. He first considered offering the position to his secretary, Esther Guerrero, an Hispanic female. Jakobsche felt that Guerrero was qualified for the position because she often acted as his liaison with the Transit Information Clerks and had previously worked as a traffic manager for an export company where she supervised several employees. Ms. Guerrero told Mr. Jakobsche that she was not interested in the position.

10. After discussions with the Transit Information Clerks’ collective bargaining representative, the Transit Workers Union (TWU), Jakobsche agreed to select the Transit Information Supervisor from among the ranks of the existing clerks. Prior to making his selection, Jakobsche consulted William Imhof from the Metro-bus Personnel Department. Jakobsche told Imhof about the Transit Information Supervisor position and his desire to fill the position quickly. Imhof decided that the position could best be filled by using the County’s “special certification” procedure rather than by using a standard promotional examination. The special certification process is used to fill positions where the position has very few incumbents and specialized skills or education is required. In lieu of an examination, recruitment decisions are made on the basis of “the credentials of the applicants as well as the departmental interview and probationary period”. Imhof called the Dade County Central Personnel Department and received verbal confirmation that the special certification procedure was appropriate for selecting the Transit Information Supervisor.

11. The next step in the process was to create a written job specification for the Transit Information Supervisor position. Mr. Imhof drafted such a specification based on the information provided to him by Mr. Jakobsche and his own background in personnel. The written job specification served as a guideline for the remainder of the recruitment process.

12. Jakobsche decided to use a written examination in lieu of an oral interview. He did so primarily because he felt that by allowing the applicants to express themselves in writing they could more fully explain their views on some issues that were of concern to him. He also felt that a written test would help in assessing the candidate’s writing ability. Finally, he felt that using a written examination would expedite the recruitment process by making individual interviews unnecessary.

13. Jakobsche drafted a series of general questions about management style and the applicants’ views about how to improve Metrobus service. As even the Plaintiff admitted, the individual questions were acceptable and similar to the types of questions that might be asked at a job interview. The applicants were instructed that no question “has only one right answer” and that they could take as much time as they desired to complete the examination so long as it was turned in by the end of the day. Jakobsche showed the test to Imhof and asked for his comments. Imhof approved the use of the test because he felt the questions were related to the Transit Information Supervisor position and typical of what was normally asked at an interview.

14. The Dade County Personnel Director, Robert Gangwish, confirmed that the written examination complied with the County’s guidelines for employment interviews. The written examination questions were all decided upon in advance, the same questions were asked of each candidate and the same format and instructions were given to each candidate. The guidelines for interviews also suggest that the interviewer make notes to assist in making the final decision. This guideline was surpassed by having the applicants write out their answers. Although there was much discussion about the subjective nature of the test, as the Dade County Personnel Rules recognize, interviews yield “inherently subjective information”.

15. On November 30, 1977, Jakobsche posted a notice announcing that the test for the Transit Information Supervisor position would be given the next day. Four persons signed up for the test, Annie Wooten, Fred Werner, Charles Horton, and the Plaintiff.

16. After the applicants had written out their answers to the test question, Jakobsehe had them typed-up by his secretary. Jakobsche graded the answers and ranked the candidates as follows: # 1 Charles Horton; #2 Fred Werner and Plaintiff (tie); #4 Annie Wooten. Jakobsche then showed the questions and answers to two of his fellow supervisors without revealing the names of the candidates. The fellow supervisors agreed with Jakobsche that Horton’s answers were the best.

17. Before making his decision, Jakobsche also reviewed each of the candidates’ personnel files. He found that Horton had eleven years of experience as a Transit Information Clerk, Werner ten years, and Plaintiff only four years. Both Horton and Werner had approximately twenty years of experience in the bus system, while Plaintiff had only four years. The applicants’ most recent evaluations, for the period 1975 to 1977, revealed that Horton was satisfactory, that Werner was between satisfactory and outstanding, and that while Plaintiff was generally rated satisfactory, his relations with fellow employees were “weak”. Evaluations prior to 1975 showed that Horton was generally satisfactory but that he needed improvement in his relations with the public. Werner’s pre-1975 evaluations were between satisfactory and outstanding. Nieves had only one evaluation prior to 1975; that evaluation was satisfactory. With respect to supervisory experience, the personnel records indicated that Horton had run his own bus directory business for slightly more than one year, that Werner had served as a lead worker between 1973 and 1978 and that he was rated satisfactory in ability to supervise, and that Plaintiff had served as a supervisor at an airline shipping firm for approximately eight years. Both Horton and the Plaintiff had taken the Dade County Preparation for Supervision Course. Plaintiff had the most years of education; he had received an AA degree in 1963, Werner had finished high school, and Horton had only finished the 11th grade.

18. In addition to considering the test results and the applicants’ personnel files, Jakobsche also considered some comments he had received concerning the applicants from their co-workers and prior supervisor. Prior to the selection, Rosie Johnson had spoken to Jakobsche about Nieves’ threat to fire her if he became the next supervisor. Ms. Johnson recalls making a similar comment about Charlie Horton; unfortunately this comment was made after Horton was selected. Other employees, including David McCann, confirmed that Mr. Nieves’ deportment on the job was less than adequate. Peter Andolina, Jakobsche’s predecessor and Nieves’ former supervisor, also told Jakobsche that Nieves had had problems getting along with his co-workers and as a result was not likely to make a good supervisor.

19. Based upon his review of the candidates’ personnel files, the test results, and his general perception of the candidates’ abilities, Jakobsche decided to offer the job to Charlie Horton. Horton had performed the best on the test, he had the most seniority, and as far as Jakobsche knew he seemed to have the ability to get along with his co-workers.

20. Jakobsche’s perception of Horton’s relations with his fellow employees was apparently mistaken. Shortly after Horton was selected, the other Transit Information Clerks objected to the selection because in 1975 Horton had been arrested and charged with selling untaxed cigarettes. Many of the Transit Information Clerks, including the Plaintiff, had bought the illegal cigarettes from Horton, but they still felt that Horton’s criminal record made him unqualified to serve as a supervisor. Jakobsche was aware of Horton’s arrest at the time of his selection, but felt this factor was not relevant to the determination of who would make the best supervisor. He felt Horton had paid his debt for his indiscretion and that he should be given a second chance. Faced with the hostile reactions of his fellow workers, however, Horton voluntarily decided to step down.

21. After Horton stepped down, Plaintiff went to Mr. Jakobsche to talk about his qualifications for the supervisor position. Plaintiff explained why he felt he should receive the position. Jakobsche replied that while he was satisfied with Plaintiff’s performance as a Transit Information Clerk, he was concerned about his ability to supervise. Jakobsche felt, based on the reports he had received from Nieves’ coworkers and past supervisor, that Plaintiff’s fellow clerks were afraid of him. Jakobsche gave Nieves an opportunity to respond to his concerns, but Nieves offered no explanation for the problems he was having getting along with others.

22. It is apparent that Jakobsche and Nieves have widely divergent personalities. While Jakobsche appears cautious and deliberate, Nieves is more outspoken and aggressive. This conflict in personalities apparently led Jakobsche to conclude that Nieves’ supervisory style would not fit well with his own.

23. Jakobsche decided to offer the position to Werner. Werner had ten years of experience as a Transit Information Clerk compared to Plaintiff’s four. He had been in the bus system for twenty years, he had served as a lead worker for the Transit Information Clerks since October of 1973, his performance evaluations were consistently between satisfactory and outstanding, he had scored the same on the test as the Plaintiff, and finally, he was well-respected by his fellow employees. None of Werner’s co-workers ever complained about either his ability .as a supervisor or his ability to get along with others. Although the Plaintiff had an edge over Werner in education and prior supervisory experience, Jakobsche concluded that this was not sufficient to overcome Werner’s twenty years of commendable performance, his supervisory experience as a lead worker and his well-established relationships with the other Transit Information Clerks.

24. Plaintiff filed an EEOC charge a few months after he failed to obtain the Transit Information Supervisor position. According to Jakobsche, he did not learn Plaintiff was Hispanic until after he received notice of the charge. Plaintiff had no Spanish accent, spoke no Spanish, and according to Jakobsche never mentioned his national origin. Nieves pronounces his name “Neeves” (rhymes with leaves) although the name is traditionally pronounced by Spanish speakers, Ne-ev-ace. In addition, at the time Plaintiff applied for the promotion, his personnel file still indicated that he was Caucasian, and made no mention of his Spanish American nationality. Although the County permits an employee to amend his personnel file at any time, Plaintiff did not amend his file to correct his national origin designation until 1981, three years after he filed his EEOC charge.

25. The EEOC conducted an investigation into Nieves’ charge of discrimination and concluded there was probable cause to believe Nieves was discriminated against on the basis of his national origin. The investigator, Robert Metaxa, testified at trial concerning the scope of his investigation and the factors he considered relevant in making his recommendation of probable cause. Mr. Metaxa testified that he found no direct evidence of discrimination, but nevertheless concluded the County was guilty of discrimination because he felt the explanation proffered by the County for its decision was not supported by the objective evidence. He gave no credence to the written test because it was too subjective, though he testified that he never actually saw a copy of the test. Mr. Metaxa never personally met the Plaintiff and was unable to interview a number of witnesses who testified at trial. Mr. Metaxa assumed that the County knew Nieves was Hispanic, despite Nieves’ employment application and a memo from Mr. Jakobsche denying that he considered Nieves’ national origin. In reviewing the candidates’ comparative qualifications, he found that only Nieves had supervisory experience although Werner and Horton also had such experience. He also found that Nieves had the best evaluations although his evaluations for the past three years were no better than Horton’s and significantly worse than Werner’s. Mr. Metaxa did not consider the comments made by Nieves’ co-workers to Mr. Jakobsche because he felt they were unreliable “hearsay”. He also did not consider any of the subjective factors considered by Jakobsche such as temperament and ability to get along with others because he felt such factors were not measurable.

26. Since 1976 when Jakobsche first began working for Metrobus, he has hired or promoted 108 persons. Of these persons, 42% were White, 28% were Black, 29% were Hispanic and 1% were other. Jakobsche has promoted 20 persons since 1976, of these 45% were Hispanic. Plaintiff attempted to discount these statistics by suggesting that Jakobsche had little discretion as to who would be hired or promoted because most hiring and promotion is done on the basis of ranking on eligible lists. As Mr. Jakobsche and the Personnel Director both testified, however, even when hiring or promotion is made from an eligible list, the hiring official has substantial discretion as to who is selected. There is no requirement in the County that hiring or promotion be done strictly on the basis of rank order.

27. The 1970 census figures for the Miami-Dade Metropolitan Statistical Area indicate that the Miami labor force is comprised of approximately 60% White (non-Hispanic), 14% Black and 26% Hispanic. Jakobsche’s hiring statistics compare very favorably with these general statistics.

28. In 1981, Metrobus created another Transit Information Clerk Supervisor position. Plaintiff declined to apply for this position even though a new test had been developed by the County’s Central Personnel Department. The position was awarded to Patricia Tims, a Black female. In November 1983, Metrobus made Enrique Alvarez-Bulla, an Hispanic male, the Acting Supervisor of the Transit Information Clerks.

29. At a number of times during the trial of the instant cause, the testimony as between Plaintiff and Mr. Jakobsche, Director of Plaintiff’s Department, differed greatly with respect to their recollection and interpretation of the facts, events and participants that ultimately gave rise to the instant discrimination claims. The Court has considered these discrepancies in the testimony and based on the respective demeanor of each witness as well as the corroborative nature of the evidence, including the testimony of other witnesses, the Court finds that the testimony of Mr. Jakobsche is more credible than the testimony of Plaintiff. Thus, whenever the testimony between the two witnesses conflicts, the Court attaches more weight to the testimony of Mr. Jakobsche.

30. On the issue of national origin, the Court notes that neither from observing the Plaintiff nor from listening to his speech patterns, mannerisms and pronunciation of the English language was it apparent that Plaintiff was Hispanic. There was no outward indication of this fact. Other than at one point in rebuttal during Plaintiff’s testimony, wherein Plaintiff glancingly asserted that the directors and supervisors at Metrobus “knew” Plaintiff was Hispanic, is it apparent from the record that Mr. Jakobsche or others in authority did in fact know that Plaintiff was Hispanic at the time that the position for Transit Supervisor was filled. Therefore, the Court finds that there was no exercise of discrimination by Mr. Jakobsche or any others in authority against Plaintiff.

CONCLUSIONS OF LAW

1. The Court has jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343, in that this action arises under Title VII, a federal statute providing for the equal rights of persons within the United States. Venue is proper in the Southern District of Florida because Plaintiff and Defendant reside within the District.

2. Plaintiff is an employee within the meaning of Title VII, 42 U.S.C. § 2000e(f).

3. Defendant is an employer within the meaning of Title VII, 42 U.S.C. § 2000e(b).

4. In this employment discrimination action involving disparate treatment, the burden is on the Plaintiff to demonstrate that the Defendant has unlawfully discriminated against him. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981).

5. To establish a prima facie case of disparate treatment, the Plaintiff must demonstrate (1) that he is a member of a protected class; (2) that he applied for an available position; (3) for which he was qualified; and (4) that he “was rejected under circumstances which give rise to an inference of unlawful discrimination”. Id. at 253, 101 S.Ct. at 1094.

6. The Defendant can rebut the Plaintiff’s prima facie case “by producing evidence that the Plaintiff was rejected or someone else was preferred for a legitimate, non-discriminatory reason”. Id. at 254, 101 S.Ct. at 1094. The Defendant’s burden is not one of persuasion but only of production. Id. at 254-55 & n. 8, 101 S.Ct. at 1094 & n. 8. See Perryman v. Johnson Products Co., 698 F.2d 1138, 1142 (11th Cir.1983) (“It is important to bear in mind ... that the defendant’s burden of rebuttal is exceedingly light.”) The Defendant is under no obligation to demonstrate that the person selected was more qualified than the Plaintiff for if two candidates are equally qualified, the choice of which candidate to hire is left to the employer’s discretion. 450 U.S. at 259, 101 S.Ct. at 1096.

7. If the Defendant meets its burden of production, the Plaintiff must then demonstrate by a preponderance of the evidence that the Defendant’s proffered reason “was not the true reason”, but merely a pretext for unlawful discrimination. 450 U.S. at 256, 101 S.Ct. at 1095. The Plaintiff can meet this burden “either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer’s proffered explanation is unworthy of credence”. Id. The burden remains on the Plaintiff throughout the trial to prove discrimination by a preponderance of the evidence. Id.

8. It is questionable whether Plaintiff even established a prima facie case in this action. Although he claims to be Hispanic, he never listed himself as such on his employment application and the credible evidence indicates he never notified anyone in County management that he was in fact Hispanic. During his case in chief and in his deposition, Plaintiff could not recall ever telling Jakobsche he was Hispanic. The only person he could recall mentioning his national origin to was a Mr. Ron Tober who had left the County before Jakobsche even began. Plaintiff may indeed be Hispanic, but it is difficult to see how Jakobsche could have discriminated against him on that basis if he was never made aware of the fact. See, e.g., Miller v. Mercy Hospital, 720 F.2d 356 (4th Cir.1983) (District court’s finding of discrimination was clearly erroneous where the evidence failed to demonstrate that the employer’s agent was aware of the plaintiff’s race.)

9. Assuming that Plaintiff did establish a prima facie case, it was effectively rebutted by the legitimate reasons proffered by the Defendant. A comparison of Plaintiff to the two successful candidates reveals that Plaintiff was not the best qualified candidate. Both Horton and Werner had significantly more experience than Plaintiff as Transit Information Clerks and in the bus system; Horton and Werner had been with the bus system approximately twenty years while Nieves had been there only four. Horton’s and Werner’s evaluations were better than Plaintiff’s for the three year period considered most significant by Jakobsche. Although Plaintiff was rated overall satisfactory during this period, his 1975-77 evaluations indicated that his relations with fellow employees were “weak”. Horton’s evaluations were satisfactory, while Werner’s were between satisfactory and outstanding. Nieves had eight years of supervisory experience while Werner had five and Horton had run his own business for slightly more than one year. Both Plaintiff and Horton had taken a supervisory training course and Werner had served as a lead worker. Jakobsche legitimately concluded on the basis of these factors that Horton and Werner were better qualified than Nieves. Although Nieves had a slight edge over the other candidates in the category of education, this factor alone is not sufficient to render Jakobsche’s decision erroneous.

10. In addition to these objective criteria, Jakobsche also considered a number of subjective criteria in making his decision. While subjective criteria must be scrutinized more carefully than objective criteria, nothing in Title VII precludes their use in making employment decisions. See, e.g., Grubb v. W.A. Foote Memorial Hospital, 741 F.2d 1486 (6th Cir.1984) (“[Subjective evaluation is not a per se indicator of discrimination.”); Verniero v. Air Force Academy School District No. 20, 705 F.2d 388, 392 (10th Cir.1983) (Subjective evaluations play a legitimate part in an employer’s determination of whether an employee should be promoted.); Grano v. Department of Development, 699 F.2d 836, 837 (6th Cir.1983) (“[SJubjeetive employment evaluations ... are not illegal per se. The ultimate issue in each case is whether the subjective criteria were used to disguise discrimination.”); Hun Ping Wang v. Hoffman, 694 F.2d 1146 (9th Cir.1982). While an employer may not rely exclusively upon the wholly subjective judgments of a single supervisor, it may rely on subjective judgments to the extent that they are based on actual observations of an employee’s performance. Compare Harris v. Birmingham, 712 F.2d 1377 (11th Cir.1983) (wholly subjective judgments by white supervisors provide a ready mechanism for discrimination); and Lee v. Conecuh, 634 F.2d 959 (5th Cir.1981) (employer may not avoid a finding of discrimination by relying on wholly subjective judgments); with Knight v. Nassau County Civil Service Commission, 649 F.2d 157, 161 (2d Cir.1981) (subjective judgments can serve as a legitimate non-discriminatory reason for an employment decision if they are based on specific articulated facts). In fact, as this Circuit noted in Ramirez v. Hofheinz, 619 F.2d 442, 446 (5th Cir.1980), supervisory positions sometimes “require subjective evaluation”.

11. In this case, Defendants concede that Jakobsche considered some subjective criteria in making his decision, specifically each of the candidates’ ability to get along with others. The “ability to get along with others ... is a legitimate business reason for the non-selection of” a candidate for promotion. Verniero, 705 F.2d at 392; Burrus v. United Telephone Co., 683 F.2d 339, 342-43 (10th Cir.1982) (an applicant’s “inter-personal skills” are a legitimate non-discriminatory reason for non-selection). In making his assessment that Nieves did not get along well with his co-workers, Jakobsche relied on a number of objective criteria. Nieves’ personnel file included two evaluations by Jakobsche’s predecessor, Peter Andolina, indicating that Nieves’ ability to get along with his co-workers was weak. He also received verbal reports from Andolina and Nieves’ co-workers, Rosie Johnson and David McCann, that Nieves had difficulty getting along with others. While these assessments of Nieves’ temperament may or may not be correct, they are still relevant to the decision-making process. See, e.g., Moore v. Sears Roebuck & Co., 683 F.2d 1321 (11th Cir.1982) (memoranda submitted to an employer concerning performance of the plaintiff are not hearsay because they are not offered to “prove the particulars of their contents, but to help establish that [the employer] was motivated, in making its employment decision”.) It is not the defendants’ obligation to prove that its assessment of the plaintiff’s qualifications was correct, because mere mistakes in judgment do not constitute unlawful discrimination. Burdine, 450 U.S. at 259, 101 S.Ct. at 1096; Moore, 683 F.2d at 1323, n. 4; Jones v. Orleans Parrish School Board, 679 F.2d 32, 38 (5th Cir.), rehearing granted on other grounds, 688 F.2d 342 (1982). Based upon the information provided to him by Nieves’ co-workers and prior supervisor, Jakobsche concluded in good faith that Nieves had difficulty getting along with his fellow employees. Whether Jakobsche’s assessment was correct or incorrect, it does not amount to discrimination.

12. Jakobsche’s decision also appears to have been based, at least in part, on a conflict between his personality and that of Nieves. Jakobsche is cautious and deliberate while Nieves is more outspoken and aggressive. Personality clashes of this nature can serve as a legitimate non-discriminatory reason for rejection of a candidate and do not amount to discrimination in violation of Title VII. See, e.g., Mortensen v. Callaway, 672 F.2d 822, 824 (10th Cir.1982); Burrows v. Chemed Corp., 567 F.Supp. 978, 985 (E.D.Mo.1983). Jakobsche apparently concluded that Nieves’ personality would not mesh with his approach to management.

13. Although much of the testimony at trial concerned the written test Jakobsche used purportedly ás a substitute for an interview, the test ultimately had no effect on the final selection. Werner and Nieves scored equally on the examination, and as a result, it was not a factor in the final decision to promote Werner.

14. Nevertheless, Plaintiff contends that the written test was a poor selection device and a violation of County employment policy. Plaintiff’s argument misconstrues the issue in this Title VII action. The issue is not whether Jakobsche’s test was a poor one or even whether it violated the County’s personnel rules, but only whether it was used intentionally to discriminate against the Plaintiff on the basis of his national origin. Poor selection procedures do not give rise to Title VII liability absent a demonstrably discriminatory motive. Milton v. Weinberger, 696 F.2d 94, 100 (D.C.Cir.1982); Gilchrist v. Bolger, 733 F.2d 1551 (11th Cir.1984) (whether an employer’s policy “is a good employment policy or a bad one or even a policy prohibited under other laws, Title VII does not prohibit employment decisions based on that policy, provided the policy is applied equally to all employees”). Even when an employer misconstrues its own employment policies, Title VII liability may not be imposed if the employer “nonetheless based [its] decision on [the successful candidate’s] superior qualifications and not on the plaintiff’s race”. Clark v. Huntsville, 717 F.2d 525, 528 (11th Cir. 1983).

15. Despite Plaintiff’s objections to the procedure followed by Jakobsche, no evidence was presented to show that he was treated any differently than any other candidate. Plaintiff objected that he was not interviewed for the promotion, but neither was any other candidate. He objected that he received only one day’s notice of the test, but no candidate received notice any earlier. He objected that his test was graded by Jakobsche and not by Central Personnel as required by the Dade County Personnel Rules, but no candidate’s test was graded by anyone other than Jakobsche. Each of the witnesses, other than Plaintiff, testified that the procedure followed by Jakobsche complied with the County’s rules, but even if it did not there is no proof in the record to suggest that the violation of any rule was a result of discrimination.

16. In attempting to demonstrate that Defendant’s proffered reasons were pretext for discrimination, Plaintiff offered the testimony of the EEOC investigator, Robert Metaxa, and the findings of the EEOC. EEOC determinations are generally admissible in evidence, but the court has the discretion to give them as much or as little weight as it deems appropriate under the circumstances. See, e.g., Dickerson v. Metropolitan Dade County, 659 F.2d 574, 579 & n. 13 (5th Cir.1981); Hilton v. Wyman-Gordon, Co., 624 F.2d 379, 382-83 (1st Cir.1980); Smith v. Universal Services, Inc., 454 F.2d 154 (5th Cir.1972). But see Johnson v. Yellow Freight System, 734 F.2d 1304, 1309 (8th Cir.1984) (court has discretion to exclude EEOC determinations completely in jury trials if sufficient negative factors are present). Once the EEOC determination is admitted, it is within the court’s discretion to determine whether to also admit the testimony of the EEOC investigator who made the recommendation for the determination. Dickerson, 659 F.2d at 579. The Court admitted the EEOC investigator’s testimony but upon consideration concludes for several reasons that it should be given little weight. Metaxa stated that he assumed without investigating that Nieves was Hispanic even though the County contested this issue and the testimony at trial showed that Jakobsche was not aware of Nieves’ national origin. Metaxa also concluded that Nieves must have been discriminated against because he was the most qualified candidate, but in making this determination, he made a number of erroneous factual assumptions. For example, he found that only Nieves had supervisory experience, whereas in fact both Mr. Horton and Mr. Werner also had such experience. He found that Nieves had the best evaluations, whereas in fact Werner had the best evaluations. He also ignored any factor he considered subjective such as temperament and the ability to get along with others. While Metaxa discounted these factors because they were not measurable, they are criteria which may be considered in determining who should be a supervisor. See, e.g., Verniero v. Air Force Academy School District No. 20, 705 F.2d 388, 393 (10th Cir.1983) (subjective evaluations play a legitimate part in an employer’s determination whether an employee has the ability to get along with others). Metaxa also did not have an opportunity to interview several of the witnesses who testified at trial. As a result, he was not aware of all the factors that Jakobsche considered in making his decision.

17. Metaxa also was not aware of Jakobsche’s statistical hiring record. The Supreme Court has held that a “non-discriminatory ‘bottom line’ and an employer’s good faith efforts to achieve a non-discriminatory workforce might in some cases assist an employer in rebutting the inference that particular action has been intentionally discriminatory ...”. Connecticut v. Teal, 457 U.S. 440, 102 S.Ct. 2525, 73 L.Ed.2d 130 (1982). The statistical evidence in this case clearly indicates that Jakobsche harbors no innate prejudice against Hispanics. The percentage of Hispanics he has hired since he began working for the Defendant is consistent with the percentage of Hispanics in the available labor market.

18. Plaintiff has not demonstrated that the Defendant’s proffered reasons for his non-selection were mere pretext for discrimination. Jakobsche did not even know Plaintiff was Hispanic until after Plaintiff filed his EEOC charge. The evidence showed that Jakobsche promoted Horton and then Werner because he felt they were more qualified for the supervisor position than the Plaintiff. Although Plaintiff raised a number of objections to the procedure followed by Jakobsche in making his decision, none of those objections demonstrates discrimination.

19. Plaintiff has failed to establish by a preponderance of the evidence that Defendant denied him a promotion to the position of Transit Information Supervisor because of his national origin.

20. The instant cause shall be DISMISSED WITH PREJUDICE by Final Judgment entered under even date herewith. Each party shall bear its own costs and attorneys’ fees.

21. No attorneys’ fees shall be awarded to Defendant as the prevailing party. An award of attorneys’ fees to the prevailing party is a matter which is committed to the discretion of this Court under Title 42, United States Code, Section 2000e-5(k). The Court finds that commencement of the instant employment discrimination suit was not frivolous, groundless or unreasonable. Accordingly, an award of Defendant’s attorneys’ fees will not be assessed against Plaintiff.