author: DEVITT, District Judge.

text:
    UNITED STATES of America, Plaintiff, v. Joseph Maria ANDRADE, Defendant.
    Crim. No. 3-84-65.
    United States District Court, D. Minnesota, Third Division.
    April 10, 1985.
    James M. Rosenbaum, U.S. Atty., Thomas B. Heffelfinger, Asst. U.S. Atty., Minneapolis, Minn., for Government.
    Ronald I. Meshbesher, Meshbesher, Singer & Spence, Minneapolis, Minn., for defendant.
   ORDER

DEVITT, District Judge.

This matter was heard on March 18, 1985, on defendant’s motion for release pending appeal, pursuant to 18 U.S.C. § 3143(b). Defendant was convicted on November 21, 1984, on eleven counts of wire fraud, mail fraud and conspiracy to defraud. He was sentenced to serve fifteen months in the custody of the Attorney General of the United States and began serving the sentence on February 21, 1985.

The Bail Reform Act of 1984, 18 U.S.C. § 3143(b) requires that a person who has been convicted and sentenced to a term of imprisonment be detained unless the court finds

(1) by clear and convincing evidence that the person is likely to flee or pose a danger to the safety of any other person or the community if released pursuant to section 3142(b) or (c); and
(2) that the appeal is not for purpose of delay and raises a substantial question of law or fact likely to result in reversal or an order for a new trial.
* * * * * *

18 U.S.C. § 3143(b).

The only issue before us is whether or not defendant’s appeal raises a substantial question of law or fact likely to result in reversal or a new trial. 18 U.S.C. § 3143(b)(2).

The government opposes defendant’s motion on the grounds that the issues raised on appeal are not substantial nor are they likely to result in reversal or an order for a new trial if the issues are resolved in defendant’s favor on appeal. We agree.

We apply the two-step analysis of § 3143(b)(2) recently adopted by courts of appeals in two circuits: United States v. Miller, 753 F.2d 19 (3rd Cir.1985) and United States v. Giancola, 754 F.2d 898 (11th Cir.1985). The analysis requires, first, a determination of whether a question on appeal is “substantial,” and, if so, whether the substantial question is sufficiently important to the merits that a contrary appellate ruling is likely to require reversal or a new trial. United States v. Miller, supra, 753 F.2d at 23: United States v. Giancola, supra, 754 F.2d at 900.

The Miller court defined a “substantial” question as one which is “either novel, ... has not been decided by controlling precedent, or ... is fairly doubtful.” United States v. Miller, supra, 753 F.2d at 23. The term was further defined in Giancola to mean a question which is not frivolous: “[i]t is a ‘close’ question or one that very well could be decided the other way.” United States v. Giancola, supra, 754 F.2d at 901.

Assuming an issue raised on appeal is “substantial,” it is “likely” to result in reversal or a new trial only if it is so integral to the merits of the conviction that it is more probable than not that reversal of the conviction will occur if the question is decided in defendant’s favor. United States v. Miller, supra, 753 F.2d at 23; United States v. Giancola, supra, 754 F.2d at 900 (citing Miller with approval).

Defendant asserts that the following two issues raised on appeal are substantial and likely to result in reversal or a new trial:

1) the prosecutor’s use of peremptory challenges to exclude all black veniremen from the jury violated defendant’s Sixth Amendment right to an impartial jury;
2) the admission in evidence, over his objection, of an FBI agent’s notes constituted error in the admission of inadmissible hearsay evidence.

These issues, raised in the course of the trial of this case, were briefed and argued by counsel for the parties. We persist in our earlier rulings.

The exclusion of two black prospective jurors was not a discriminatory use of peremptory challenges and, thus, did not racially taint the jury panel selected. As set forth in the affidavit of Thomas B. Heffelfinger, Assistant United States Attorney, one prospective juror was struck from the jury panel because he lived in the same neighborhood as a man to whom a large number of the fraudulent airline tickets in this case were mailed. The government exercised its peremptory challenge to strike the juror because it was reasonably concerned that he might be familiar with this case or have a bias against the government. The other black prospective juror was a woman who had previously been represented by defendant’s attorney, Ronald Meshbesher, in a criminal matter. Mr. Heffelfinger stated by affidavit that he felt her prior relationship with defense counsel would prejudice the government. Thus, both prospective jurors were struck for reasons unrelated to race.

In light of the facts of this case, defendant has failed to establish that the striking of two black prospective jurors constitutes a substantial issue on appeal. Defendant has not made a prima facie showing that the government misused its peremptory challenges under the analyses of Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), or, more recently, McCray v. Abrams, 750 F.2d 1113 (2nd Cir.1984).

The second issue raised on appeal is similarly not substantial. Defendant contends the court erred in admitting into evidence FBI Agent Jimmie Brown’s handwritten three-page summary of his interview with defendant because the notes were inadmissible as hearsay evidence. He argues the contents of the notes were devastating to his claimed innocence and unwitting participation in the airline ticket scheme. The notes were admitted during the government’s re-direct examination of Agent Brown and after the parties submitted written legal memoranda on the issue.

The notes were introduced by the government to rebut an implication created during the agent’s cross-examination that the agent lied on direct examination in stating that defendant admitted during the interview that he was suspicious of the ticket scheme. Defense counsel had attempted to make similar allegations of fabrication during the cross-examinations of two previous government witnesses, Detective Salitros and Investigator Berry who were also present during the interview with defendant. Detective Salitros stated on cross-examination that defendant had not admitted to knowing the ticket scheme was wrong or to agreeing to gather credit card numbers for Walter Little. On the contrary, Investigator Berry testified that he remembered defendant making the admissions during the interview. Defense counsel suggested that Investigate? Berry and Agent Brown “compared notes” in order to fabricate an incriminating recitation of the interview.

During the cross-examination of Agent Brown, defense counsel continued to attack the accuracy of the written interview notes by suggesting either that Agent Brown’s memory was poor or that he was lying.

We are satisfied that the notes were not hearsay. The Federal Rules of Evidence provide that a statement is not hearsay if:

(1) Prior statement of Witness. The declarant testifies at trial or hearing and is subject to cross-examination concerning the statement, and the statement is ... (B) consistent with his testimony and is offered to rebut an express or implied charge against him of recent fabrication ....

Rule 801(d)(1), Fed.R.Evid. Under the facts of this case, the notes of Agent Brown also were not mere repetition ex-cludable under Fed.R.Evid. 403.

Neither the admission of the notes nor the exclusion of black prospective jurors involved questions that were “fairly doubtful” or were close questions which “very well could be decided the other way.” United States v. Giancola, supra, 754 F.2d at 901. Given the lack of substantiality, we need not discuss the likelihood of reversal on these issues. Nevertheless, we note that under the facts of this case, it is not probable that a contrary appellate ruling would require reversal or a new trial.

Based on the foregoing analysis and the files, records and proceedings in this case,

IT IS ORDERED that defendant’s motion for release on appeal pursuant to 18 U.S.C. § 3143(b) is DENIED.


source: Caselaw Access Project

author: ALEXANDER HARVEY, II, District Judge.

license: Public Domain

text:
    Gerhard ZINSLER, Plaintiff, v. MARRIOTT CORPORATION and Girozentrale Und Bank Der Osterreichischen Sparkassen Ag, Defendants.
    Civ. No. H-83-1664.
    United States District Court, D. Maryland.
    April 10, 1985.

      Warren K. Kaplan, Douglas B. Mishkin and Melrod, Redman and Gartlan, Washington, D.C., Stanton J. Levinson, Baltimore, Md., Daniel M. Litt, Rockville, Md., for plaintiff.
    William F. Ryan, Jr., M. Natalie McSherry and Whiteford, Taylor, Preston, Trimble and Johnston, Baltimore, Md., for defendant Marriott Corp.
    James E. Akers, Ruth A. Bourquin and Sullivan and Cromwell, Washington, D.C., and Andrew Jay Graham and Kramon & Graham, P.A., Baltimore, Md., for defendant Girozentrale Und Bank Der Osterreichischen Sparkassen AG.
   ALEXANDER HARVEY, II, District Judge.

An Austrian citizen is here suing an Austrian bank and a Delaware corporation seeking damages for breach of contract and fraud. The suit arises out of a dispute concerning a promoter’s or finder’s fee allegedly due the plaintiff for his part in procuring the formation of a joint venture between the defendants for the building of a luxury hotel in Vienna, Austria. The primary question presently before the Court is whether this action should go forward here or in an appropriate Austrian court.

The plaintiff is Dr. Gerhard Zinsler (hereinafter “Zinsler”), a citizen of Austria who presently resides in Switzerland. One of the defendants is Girozentrale Und Bank Der Osterreichischen Sparkassen AG (hereinafter “Girozentrale” or “the Bank”), an Austrian bank with its principal place of business in Vienna. The other defendant is Marriott Corporation (hereinafter “Marriott”), a corporation organized under the laws of the State of Delaware with its principal place of business in Maryland. Jurisdiction is asserted on the basis of diversity of citizenship, 28 U.S.C. § 1332 and Maryland’s Long Arm Statute, Md.Cts. & Jud.Proc.Code Ann. § 6-103.

During the years 1978-1979, Zinsler, Marriott, Girozentrale and other persons engaged in various discussions and negotiations relating to the building of and financing of a luxury hotel to be constructed in Vienna, Austria. The Bank was to provide financing and other services in Austria, while Marriott was to furnish to the project its expertise in the hotel management business. Several different sites in Vienna were considered for the location of the hotel. Initial discussions centered about the so-called Schwarzenbergplatz site. Eventually it was decided that the hotel would be built on property which the Bank owned in Vienna, referred to in these proceedings as the Parkring site. In October of 1979, Marriott and Girozentrale entered into an agreement for the building of the luxury hotel on the Parkring site. There after, defendants executed a final Joint Venture Agreement, and the hotel is being or has been built in Vienna. An Austrian subsidiary was formed by Marriott to undertake its obligations under the agreement.

At issue here is Zinsler’s role in the formation of the Girozentrale-Marriott joint venture. Plaintiff Zinsler asserts that he is entitled to a promoter’s or finder’s fee of 3% of the total development cost which he allegedly earned by introducing the parties and by working with them in the preliminary stages of the negotiations which led to the joint venture. Plaintiff alleges that he spent many thousands of hours and dollars in promoting the hotel project and he contends that he was promised the fee recognized by Austrian law and custom if the hotel project came to fruition. Defendants contend that Zinsler acted only as a kind of real estate broker for the Schwarzenbergplatz site which was not the ultimate location of the hotel. Accordingly, they assert that plaintiff is entitled to no fee in connection with the formation of the joint venture which undertook to build the hotel at the Parkring site. In his three-count complaint, plaintiff seeks compensatory and punitive damages based on theoríes of breach of contract, quantum meruit and fraud.

Presently before the Court are motions to dismiss filed by both defendants. Defendant Girozentrale has filed a motion to dismiss the complaint for lack of in personam jurisdiction and on the basis of forum non conveniens. Defendant Marriott has filed a motion to dismiss based solely on the doctrine oí forum non conveniens. Memoranda, affidavits, and exhibits in support of and in opposition to these motions have been filed by the parties and carefully reviewed by the Court. Extensive discovery relating to the issues raised by the pending motions has been undertaken by the parties. Oral argument has been heard in open Court. For the reasons to be stated herein, the Bank’s motion to dismiss for lack of in personam jurisdiction will be denied, and the motions of both defendants to dismiss on the basis of forum non conveniens will be granted.

I

Jurisdiction

Discussion of the Bank’s motion to dismiss the complaint for lack of in personam jurisdiction need not be extensive. In a diversity case like this one, a federal court has the power to exercise control over a non-resident defendant if (1) an applicable state statute confers jurisdiction and (2) the assertion of jurisdiction comports with the constitutional requirement of due process. Bowman v. Curt G. Joa, 361 F.2d 706 (4th Cir.1966).

On the record developed to date, this Court concludes that it may exercise in personam jurisdiction over defendant Girozentrale under the Maryland Long Arm Statute, Md.Cts. & Jud.Proc.Code Ann., § 6-103(a) and (b)(1). The Joint Venture Agreement between Marriott and Girozentrale was executed in London in July, 1982. Before then, officials of Girozentrale participated in meetings and negotiations which took place at Marriott’s headquarters in Maryland on several different occasions. Correspondence and telexes were exchanged between the Bank in Austria and Marriott officials in Maryland in which various aspects of the joint venture were discussed. Documents prepared by Marriott’s legal staff were forwarded to Austria and revised from time to time. On October 15, 1979, officials of the Bank came to Marriott’s headquarters to execute a “Protocol” which set forth the basic understanding between the defendants concerning the structure of their joint venture. In April of 1982, officials of Girozentrale met at Marriott’s headquarters to finalize the terms of the formal Joint Venture Agreement prior to its execution in London in July, 1982.

These facts are sufficient to indicate that Girozentrale was transacting business within the State within the meaning of the Maryland Long Arm Statute. The Bank purposefully availed itself of the privilege of conducting activities within Maryland, thus invoking the benefits and protections of Maryland laws. See Hanson v. Deckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 1239, 2 L.Ed.2d 1283 (1958); World Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 291-92, 100 S.Ct. 559, 564-65, 62 L.Ed.2d 490 (1980).

Moreover, the allegations of the complaint and the facts relied upon by plaintiff in support thereof indicate that plaintiff’s claims arise from activities in which the Bank participated in Maryland. The Bank argues that any role of plaintiff as a promoter or finder related solely to the development of a hotel on the Schwarzenbergplatz site, that any contacts which the Bank had with Marriott in Maryland related solely to the formation of a joint venture for the construction of a hotel on the Parkring site and that accordingly plaintiff’s claim against the Bank does not “arise from” the Bank’s transaction of business in Maryland. But this contention raises questions relating to the merits of the dispute between the parties in this case. See Groom v. Margulies, 257 Md. 691, 703-704, 265 A.2d 249 (1970). The relevant facts are sharply disputed by the parties, and the issue presented can be finally resolved only after all the evidence is considered at the trial. A plaintiff need make only a prima facie showing of jurisdiction to be permitted to go forward in a case such as this one, even though the plaintiff must ultimately establish jurisdiction by a preponderance of the evidence. Marine Midland Bank v. Miller, 664 F.2d 899, 904 (2d Cir.1981). Such a prima facie showing suffices to defeat a motion to dismiss, notwithstanding any controverting presentation by the moving party. Id.

On the record here, this Court concludes that plaintiff has made a prima facie showing of this Court’s jurisdiction over the Bank. It is true that the Bank’s contacts with Maryland were minimal. Nevertheless, they were sufficient to meet the requirements of the Maryland Long Arm Statute that the Bank purposefully availed itself of the privilege of acting in this State and that the cause of action arises from the Bank’s activities here. See McLaughlin v. Copeland, 435 F.Supp. 513, 523 (D.Md.1977). This Court further concludes that the Bank’s acts in Maryland had a substantial enough connection with this State to make reasonable the exercise of jurisdiction over it. Accordingly, the assertion of jurisdiction in this case would comport with the constitutional requirements of due process. See McLaughlin v. Copeland, supra at 524.

For these reasons, this Court concludes that it may exercise personal jurisdiction over defendant Girozentrale in this case. The Bank’s motion to dismiss on grounds of lack of in personam jurisdiction will therefore be denied.

II

Forum Non Conveniens

The principal issue presented by the pending motions is whether this case should go forward in this Court or in an appropriate Court in Vienna, Austria. Both defendants assert that the pertinent facts require dismissal of this action on grounds of forum non conveniens. Following a review of the record here, this Court would agree.

The factors to be considered by a Court in deciding whether or not to dismiss a complaint on the ground of forum non conveniens were discussed by the Supreme Court in Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed.2d 1055 (1947) and more recently in Piper Aircraft Company v. Reyno, 454 U.S. 235, 102 S.Ct. 252, 70 L.Ed.2d 419 (1981). Even when a Court has jurisdiction of a dispute, it may apply principles of forum non conveniens and, under appropriate circumstances, resist imposition upon its jurisdiction. Gulf Oil Corp., supra, 330 U.S. at 507, 67 S.Ct. at 842. A forum non conveniens determination is committed to the sound discretion of the trial court which is required to consider all relevant public and private interest factors and undertake a reasonable balancing of these factors. Piper Aircraft Co., supra, 454 U.S. at 257, 102 S.Ct. at 266. In the Gulf Oil Corp. case, the Supreme Court listed the following private interest factors (330 U.S. at 508, 67 S.Ct. at 843):

Important considerations are the relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing witnesses; possibility of view of premises, if view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious and inexpensive. There may also be questions as to the enforcibility [sic] of a judgment if one is obtained. The Court will weigh relative advantages and obstacles to fair trial.

In listing the public interest factors which a court should also consider in deciding whether or not to apply the doctrine, the Supreme Court in Gulf Oil Corp. further stated (330 U.S. at 508-509, 67 S.Ct. at 843):

Factors of public interest also have place in applying the doctrine. Administrative difficulties follow for courts when litigation is piled up in congested centers instead of being handled at its origin. Jury duty is a burden that ought not to be imposed upon the people of a community which has no relation to the litigation. In cases which touch the affairs of many persons, there is reason for holding the trial in their view and reach rather than in remote parts of the country where they can learn of it by report only. There is a local interest in having localized controversies decided at home. There is an appropriateness, too, in having the trial of a diversity case in a forum that is at home with the state law that must govern the case, rather than having a court in some other forum untangle problems in conflict of laws, and in law foreign to itself.

When the facts of. this case are considered in the light of both these private interest factors and these public interest factors, this Court concludes that this action should be dismissed on the ground of forum non conveniens. Put succinctly, both the parties and the cause of action have substantial connections with Austria. The most convenient forum for the resolution of this dispute is therefore the Commercial Court of Vienna, located in the Austrian City where the hotel in question is to be built.

The plaintiff himself is an Austrian citizen who resides in Switzerland. Indeed, plaintiff is an attorney and a member of the Bar of Austria. Girozentrale is an Austrian Bank with its principal place of business in Vienna. The joint venture was formed for the construction of a luxury hotel in Vienna. Defendant Marriott has formed an Austrian subsidiary corporation to carry out its obligations under the various agreements reached between it and the Bank. An interpretation by the court of Austrian law and custom is at the heart of plaintiff’s claims.

Relying on Gulf Oil Corp., plaintiff asserts that there is a strong presumption in favor of a plaintiff’s choice of forum. However, this presumption is weakened when the plaintiff is foreign. Ullah v. Canion Shipping Co., Ltd,., 589 F.Supp. 552 (D.Md.1984), aff’d 755 F.2d 1116 (4th Cir.1985). The doctrine of forum non conveniens has been recognized by this Court as having particular vitality when the more convenient forum is a foreign country rather than another federal district court. Grodinsky v. Fairchild Industries, Inc., 507 F.Supp. 1245, 1248 (D.Md.1981). As the Supreme Court pointed out in Piper Aircraft Company, a foreign plaintiff’s choice deserves less deference than that of a plaintiff who is a United States citizen or resident. 454 U.S. at 256, 102 S.Ct. at 266. Indeed in that case, the plaintiff was the representative of the estates of several Scottish citizens who had been killed in an air crash which took place in Scotland. Even though both defendants were American corporations, the Supreme Court upheld the trial court’s dismissal of the action on the ground of forum non conveniens.

On balance, the private interest factors point to Vienna as the appropriate forum for resolving this dispute. A key witness is Felix Hasenohrl, the original architect for the project, who introduced Zinsler to Bank officials. In addition, representatives of Infrabau, as well as of Girozentrale, will testify at the trial of this case. All of these witnesses are located in Austria and may not be compelled by process to attend a trial in this district.

In opposing the pending motion, plaintiff first asserts that the testimony of Infrabau witnesses is not relevant to the issues presented in this case. Although such testimony may not be pertinent to plaintiff’s theory of the case, it clearly would be relevant to and necessary for consideration by the court of the defenses asserted herein by both the Bank and Marriott. In its arguments advanced in opposition to the pending motion, plaintiff overlooks the inconvenience and prejudice to defendants which would result if they were compelled to present the testimony of Hasenohrl, Infrabau representatives, and Bank officials at a trial in this Court.

Next, plaintiff points out that three former employees of Marriott who met with Zinsler and Girozentrale representatives at various times could not be compelled to testify in an Austrian court. But the production of these witnesses would appear to be of more concern to the defendants than to the plaintiff. The plaintiff will be undertaking to prove the existence of the alleged oral agreement primarily by his own testimony and the introduction of pertinent documents. Defendants are the parties who would be prejudiced if Urgo, Gomes and Butts could not be compelled to appear at the trial in Austria and present their versions of the conversations in question.

Although Marriott documents are located here, the Bank’s documents are in Austria. Many of these have, as plaintiff points out, now been translated and produced as a result of discovery undertaken in this case to date. However, many other documents are written in German, have not been produced or translated, and could presumably be presented to the Austrian court without the necessity that the parties incur additional translation expenses. Insofar as the enforceability of any judgment is concerned, a judgment secured by the plaintiff against the Bank in this Court would not be enforceable here or in Austria. On the other hand, judgments secured against both defendants in the Commercial Court of Vienna would be enforceable against both parties in Austria and against Marriott here.

Consideration of the public factors likewise points to a trial in Austria. There is little doubt that the Commercial Court of Vienna is an alternative forum for the resolution of this dispute. Jurisdiction clearly exists as to defendant Girozentrale, and under Austrian law, since Marriott has formed an Austrian subsidiary, Marriott likewise may be sued in Vienna. Moreover, both defendants have represented in open Court that if plaintiff now sues them in the Commercial Court of Vienna, they will not interpose any objection based on an applicable statute of limitations which could not have been interposed in this Court. Since defendants are prepared to defend this case on the merits in Austria, that more appropriate forum is available for the resolution of this dispute.

Austrian law and custom is the basis for plaintiff’s claim that he is entitled to a promoter’s fee. The oral contract between plaintiff and the Bank was not only allegedly entered into in Austria but was also to be performed there. The joint venture was formed to construct a hotel in Vienna, and the Joint Venture Agreement itself explicitly provides that Austrian law will be controlling. Clearly, a localized controversy of this sort should be decided “at home.” See Gulf Oil Corp., supra, 330 U.S. at 509, 67 S.Ct. at 843. The home base for this controversy is Vienna. A Maryland jury should not be burdened with the duty “that ought not to be imposed upon the people of a community which has no relation to the litigation.” Gulf Oil Corp., supra at 508-509, 67 S.Ct. at 843. Certainly, the Commercial Court of Vienna would be more at home with the law governing this dispute. As Judge Friendly observed in Conte v. Flota Mercante del Estado, 277 F.2d 664, 667 (2d Cir.1960):

[T]ry as we may to apply the foreign law as it comes to us through the lips of the experts, there is an inevitable hazard that, in those areas, perhaps interstitial but far from inconsequential, where we have no clear guides, our labors, moulded by our own habits of mind as they necessarily must be, may produce a result whose conformity with that of the foreign court may be greater in theory than it is in fact.

It is apparent that plaintiff chose this forum for his suit because of his belief that he would achieve a more favorable result if this Court’s law and procedures were applied. However, in Piper Aircraft Company, supra, the Supreme Court made it abundantly clear that dismissal of a suit on grounds of forum non conveniens may be granted even though the law applicable in the alternative forum is less favorable to the plaintiff’s chance of recovery. If the result were otherwise, foreign litigants with little reason to resort to a court of this country, would be encouraged to add their suits to those already clogging our dockets. As the Supreme Court noted in Piper Aircraft Company, supra, United States Courts are already attractive to foreign plaintiffs and would become even more attractive if courts of this country did not decline to adjudicate essentially foreign litigation. 454 U.S. at 252, 102 S.Ct. at 264. See also, Ullah v. Canion Shipping Company, Ltd., supra at 560. The ability of federal courts in the United States to give speedy justice in matters properly before them would be substantially impaired to the prejudice of all “if they took it upon themselves also to resolve the disputes of the rest of the world.” Cruz v. Maritime Company of Philippines, 549 F.Supp. 285, 290 (S.D.N.Y.1982), aff’d 702 F.2d 47 (2d Cir.1983).

In opposing the pending motion, plaintiff asserts that his discovery is now complete and that this matter will be unduly delayed if this Court rules that this dispute must be tried in Austria. This contention is disingenuous. The Bank’s motion to dismiss was filed on August 29, 1983. That same day, the Bank filed a motion to stay discovery. When he filed his opposition to the motion to dismiss, plaintiff in addition filed a motion to stay determination of the motion to dismiss until discovery on jurisdictional facts could be completed. In seeking to stay all discovery and in opposing plaintiff’s motion to stay determination of the motion to dismiss until discovery, on the jurisdictional facts could be undertaken, the Bank asserted that its motion to dismiss could be decided on the facts already developed, and that additional discovery would be an unnecessary expense and burden on all parties. In its Memorandum and Order of April 27, 1984, this Court denied the Bank's motion to stay discovery and granted plaintiff’s motion to stay a ruling on the Bank’s motion to dismiss until discovery on the jurisdictional issues was completed. Plaintiff then proceeded with extensive discovery. Interrogatories and requests for the production of documents were filed and a number of witnesses were deposed. Necessarily, discovery relating to the jurisdictional facts overlapped with discovery on the merits.

Under these circumstances, plaintiff cannot be permitted to rely on the fact that its discovery is now completed as a reason for this Court to go forward with the trial here. Defendants’ discovery is only in its early stages. In permitting plaintiff to fully discover facts pertinent to the issues of personal jurisdiction and forum non conveniens presented by defendants’ motions to dismiss, this Court has liberally applied discovery rules so as to permit plaintiff to be able to present all pertinent facts which supported his position. Plaintiff can hardly be now heard to say that because the Court has permitted him to engage in broad-ranging discovery, the motion to dismiss on the ground of forum non conveniens should be denied.

Plaintiff complains that the ultimate trial of this case will be unnecessarily delayed if he is now required to file a new suit in Austria. But plaintiff will hardly be required to “start all over again” in Austria. As noted, there has been extensive discovery undertaken to date in this case, and much of this discovery relates to the merits of the dispute between the parties.

The parties have submitted conflicting affidavits relating to the date when this case might be reached for trial in the Commercial Court of Vienna. Whatever might be the status of the docket in that Court, the trial of cases in this Court has in recent years been greatly delayed by mass tort litigation. Assuming a trial which would last for approximately two to three weeks, this case could probably not be assigned a trial date for at least 18 to 20 months. It appears from the record here that a trial in Austria could likewise be held within that period of time.

When all pertinent facts here are weighed and considered, this Court concludes that the balance in this case is strongly in favor of the defendants. An Austrian citizen is here seeking to recover from parties to an Austrian joint venture a fee arising under Austrian law and custom for services performed in connection with the construction of a hotel in Vienna. The appropriate forum for the resolution of this dispute is the Commercial Court of Vienna.

III

Conclusion

For the reasons stated, the motion of defendant Girozentrale to dismiss the complaint on the ground of lack of in person-am jurisdiction will be denied. The motions of both defendants to dismiss the complaint on the ground of forum non conveniens will be granted. A separate Order will be prepared by the Court dismissing this action as to both defendants, with costs.

      . Plaintiff is a lawyer and a member of the Bar of Austria.

      . That property was owned by an Austrian company known as Infrabau.

      . Plaintiff is here seeking $1,500,000 in compensatory damages and $10,000,000 in punitive damages.

      . Only the Bank seeks dismissal on the ground of lack of jurisdiction. This Court clearly has in personam jurisdiction over defendant Marriott.

      . Plaintiff asserts that he no longer practices law in Austria. Nevertheless, his Austrian citizenship and his obvious familiarity with Austrian courts and Austrian law are certainly factors to be considered by this Court in deciding whether this dispute should be resolved “at home."

      . The witnesses in question, Donald J. Urgo, Albert Gomes and Allison Butts, are no longer employed by Marriott.

      . In any event, the depositions of these three witnesses have now been taken. It will be for the Austrian court to decide whether these depositions can be used at trial.

      . Since it has formed an Austrian subsidiary, with assets in that country, Marriott is subject to the jurisdiction of the Commercial Court of Vienna. Moreover, any judgment secured by plaintiff against Marriott in Austria would be enforceable in Maryland pursuant to § 10-701, et seq., Md.Cts. & Jud.Proc.Code Ann.

      . There is no merit to plaintiff's suggestion, made in oral argument but not advanced in any of the voluminous briefs submitted, that Maryland law may be controlling as to his claim of fraud, Most of the alleged misrepresentations occurred in Austria, and they all related to the contract to be performed there.

      . There were many discovery disputes, requiring rulings by the Court and conferences held pursuant to Rule 16(b), F.R.Civ.P.

      . In early 1985, there were pending in this Court 303 asbestos cases and 242 Daikon Shield cases, many of which involved multiple parties plaintiff.


author: MOYE, Chief Judge.

text:
    HEALTHCREST, INC., a Georgia Corporation, Plaintiff, v. AMERICAN MEDICAL INTERNATIONAL, INC. (“AMI”), a Delaware Corp.; Brookwood Medical Center of Eufaula Incorporated; Brookwood Medical Center of Houston Incorporated; Eastern Professional Properties, Inc., A Delaware Corp.; Gordon Crowell Memorial Hospital, Inc., A North Carolina Corp.; and Lister Hill Hospital, Inc., An Alabama Corporation, Defendants.
    Civ. A. No. C84-1405A.
    United States District Court, N.D. Georgia, Atlanta Division.
    April 10, 1985.

      David C. Jensen, Peterson Young Self & Asselin, Atlanta, Ga., for plaintiff.
    Halsey G. Knapp, Jr., Atlanta, Ga., for defendants.
   ORDER OF COURT

MOYE, Chief Judge.

The above-styled breach of contract action is before the Court on the defendants’ motion to disqualify the plaintiff’s law firm. This motion raises difficult and complex issues concerning the ethical standards applicable to lawyers who wish to represent clients in litigation involving transactions that the lawyers worked on prior to the litigation. After a review of the pleadings and case law and a balancinig of the competing interests, this Court concludes that the defendants’ motion to disqualify the plaintiff’s law firm must be granted.

FACTUAL BACKGROUND

The contract at issue in this case involves the sale by the defendants to the plaintiff of three hospitals. This contract was initially formed in March, 1984 in Beverly Hills, California. The contract was agreed to after six days of negotiations at the defendants’ offices. Present during these negotiations were three lawyers from Peterson Young Self & Asselin (Peterson Young); two of the plaintiff’s executives; and lawyers representing the defendants.

On June 28, 1984, a representative of defendant AMI and several of AMI’s in house attorneys went to the law offices of Peterson Young to attempt to close the sale of the hospitals listed in the contract. When they arrived, however, they were told by members of the Peterson Young firm that there were zoning problems related to one of the hospitals. Following this meeting, AMI representatives met with Phil Self, an attorney for Peterson Young, and attempted to work out the zoning problems. There were no corporate representatives of the plaintiff present at this meeting.

On the evening of June 28, the plaintiff presented a counter-proposal to the defendant which would have reduced the sales price of one of the hospitals by roughly $2,000,000.00 along with other changes. The next morning the plaintiff expanded its counter-proposal but no agreement was reached. Later, the defendants requested written assurances from the plaintiff that the transaction would close by September 13, 1984 but did not receive any such assurances.

The plaintiff’s complaint alleges that the defendants’ failure to tender complete performance by June 30, 1984 constituted a material breach of the contract. The defendants dispute this contention claiming that the contract did not have to close until September 13, 1984. The defendants also contend that the plaintiff violated the terms of the contract by not giving the defendants time to cure the zoning defect and by radically altering the contract prior to its closing.

The defendants have filed the present motion to disqualify the law firm of Peterson Young from serving as plaintiff’s attorney in this case on the grounds that attorneys from that firm, because of their “often exclusive presence” at some of the formation stages of the contract at issue, “ought” to testify on behalf of the plaintiff. Before turning to the merits of the defendants’ argument, this Court will detail the legal standards applicable to a motion to disqualify.

A. The Legal Standards

This Court has the power and the obligation to regulate the conduct of attorneys who practice before it. See Amoco Chemical Corporation v. MacArthur, 568 F.Supp. 42, 44 (N.D.Ga.1983). The local rules of this Court mandate that all lawyers practicing before this Court must comply with the Code of Professional Responsibility and Standards of Conduct adopted by the State Bar of Georgia. Local Rule 110-3. This Code of Professional Responsibility contains the following regulations governing a lawyer who might be called upon to testify for his client:

A lawyer shall not accept employment in contemplated or pending litigation if he knows or it is obvious that he or a lawyer in his firm ought to be called as a witness except that he may undertake the employment and he or a lawyer in his firm may testify:
(1) If the testimony would relate solely to an uncontested matter;
(2) If the testimony will relate solely to a matter of formality and there is no reason to believe that substantial evidence will be offered in opposition to the testimony;
(3) If the testimony will relate solely to the nature and value of legal services rendered in the case by the lawyer or his firm to the client;
(4) As to any matter, if refusal would work a substantial hardship on the client because of the distinctive value of the lawyer or his firm as counsel in the particular case.

D.R. 5-101(B).

If, after undertaking employment in contemplated or pending litigation, a lawyer learns or it is obvious that he or a lawyer in his firm ought to be called as a witness on behalf of his client he shall withdraw from the conduct of the trial and his firm, if any, shall not continue representation in the trial, except that he may continue the representation and he or a lawyer in his firm may testify in the circumstances enumerated in D.R. 5-101(B)(1) through (4).

D.R. 5-102(A).

The crucial issue facing this Court is whether a member of Peterson Young “ought to be called as a witness” in this case. The Courts that have interpreted D.R. 5-101(B) and D.R. 5-102(A) have reached conflicting interpretations of the word “ought.” In MacArthur v. Bank of New York, 524 F.Supp. 1205, 1208 (S.D.N.Y.1981), the Court stated that the “ought to be called” test required the Court to determine “whether the attorney’s testimony could be significantly useful to his client;” and, if so, the attorney should disqualify himself. Other courts, however, have interpreted the “ought to be called” test narrowly requiring a showing that the attorney is an “indispensible witness” before granting a motion to disqualify. See J.D. Pflaumer, Inc., et al., v. United States Department of Justice, 465 F.Supp. 746 (E.D.Penn.1979).

In addition to the controversy over the interpretation of the term “ought”, the courts differ as to how much input the client should have in situations such as the one before this Court. In Pflaumer, supra, the court made the following observation:

Clearly, where there is a good faith dispute between the parties as to whether a lawyer-witness possesses crucial information, that attorney and his client are in the best position to determine whether his testimony is in fact indispensable ... Plaintiffs and their counsel should be permitted to present their case according to their own best judgment, and if it is their best judgment that they can get by without testimony from counsel, then it is certainly not up to defendants to urge upon them a different plan of presentation that would necessitate disqualification.

Pflaumer, supra, at 747-48.

The Pflaumer court’s deference to the litigation strategy of the client and attorney is not accepted by all courts. In MacArthur, supra, for example, the court held that a client cannot waive the dictates of D.R. 5-101(B). And, in United States, ex rel. Sheldon Electric Co., v. Blackhawk Heating & Plumbing, Inc., 423 F.Supp. 486 (S.D.N.Y.1976), the court expressed the following concerns about an attorney testifying in a case:

Aside from the likelihood of actual prejudice ...; the court must be mindful of the possibility that testimony by an attorney in the case may lead the public to think that lawyers may as witnesses distort the truth ... where doubt may becloud the public’s view of the ethics of the legal profession and thus impugn the integrity of the judicial process, it is the responsibility of the court to insure that the standards of ethics remain high.

Blackhawk at 489. (emphasis added).

In light of the conflicting interpretations of D.R. 5-101(B) and D.R. 5-102(A) among the courts, this Court has searched for binding Eleventh Circuit precedent to guide this Court’s path through this difficult area of the law. This search, however, has been only marginally successful. In Draganescu v. First National Bank of Hollywood, 502 F.2d 550 (5th Cir.1974), the court did not allow an attorney to represent his client when the attorney concededly was a material witness in the case. The bulk of this decision was concerned with the “substantial hardship” exception to D.R. 5-101(B). And, in Cossette v. Country Style Donuts, Inc., 647 F.2d 526 (5th Cir.1981), the only other Eleventh or old Fifth Circuit case this Court could find relating to D.R. 5-101(B), the court did not engage in a lengthy discussion of the standards relevant to the issues of attorney disqualification. The Cossette Court merely denied the plaintiff’s motion to disqualify the defendants’ attorney noting that the plaintiff did not prove that the defendants’ attorney was “aware of facts making it ... obligatory to place themselves on the witness stand in order to advance the defendant’s case completely and zealously.” Id. at 30-31.

After a review of the relevant case law, this Court concludes that the best approach to solving problems arising under D.R. 5-101(B) and D.R. 5-102(A) is one which takes into account all of the relevant factors including the client’s interest in hiring the counsel of its choice and the court’s interest in preserving the integrity of the judicial system. Therefore, instead of adopting a rigid definition of the phrase “ought to be called” which might prove outcome determinative in many cases, this court feels that an in-depth examination of the peculiar facts of each case is necessary and that a client may be allowed to waive the dictates of D.R. 5-101(B) and D.R. 5-102(A) in some cases but not in other cases depending on the relative importance of the attorney’s testimony.

B. The Present Case

There appears to be two central issues that this Court will have to resolve when this case comes before it on the merits. First, the parties disagree as to when the contract at question needed-to be closed. The plaintiff claims that the contract required closing before June 30, 1984 whereas the defendants argue that September 13, 1984 was the final closing date. The second issue involves a dispute as to what transpired between the parties during the June 28 and 29 meetings in Atlanta. The plaintiff claims that the defendants did not properly tender performance which constituted a material breach of the contract. The defendants argue that the plaintiff repudiated the agreement by offering a counter-proposal significantly different than the original agreement. The issue before this Court is whether the plaintiff’s attorney “ought” to testify as to these matters.

Phil Self, a member of the Peterson Young firm, testified in his deposition that the plaintiff's argument that the contract had to be closed by June 30, 1984, is partly based on the “intent of the parties.” Self, deposition at 15-16. The contract was drafted, however, with the aid of members of the Peterson Young firm including Mr. Self. The defendants argue, therefore, that Mr. Self, as well as other members of his firm, will have to testify at trial as to what date the parties intended to be the final closing date.

The plaintiff attempts to rebut the defendants’ argument by noting that Mr. Ronald Turner, the plaintiff’s President, was “intimately knowledgeable” regarding the terms of the contract and their meaning. The plaintiff also alleges that two other of its officers are knowledgeable regarding the closing date of the contract. And, the plaintiff claims that the cross-examination testimony of two of AMPs officers supports its position. Because of the availability of the above-mentioned testimony, the plaintiff argues that it will not need to use the testimony of Peterson Young attorneys and therefore the motion to disqualify should be denied.

Although the plaintiff’s argument has some merit, it is not convincing. It is true that the plaintiff might be able to present a prima facie case without the testimony of the lawyers who drafted the contract at issue. The applicable standard, however, is whether a Peterson Young attorney “ought” to testify on behalf of the client. Certainly, the drafter of a contractural provision in dispute would be the most qualified person to testify as to the meaning of that portion of the contract. It is undisputed that Peterson Young attorneys drafted the contract at issue in the case. This Court feels that testimony from these lawyers would be vital to the plaintiffs’ case especially if the defendants put their own lawyers on the stand to testify as to the disputed clauses in the contract. Furthermore, members of the Peterson Young firm were present during the negotiations that took place between the parties on June 28 and June 29. What transpired at these meetings is disputed and this Court believes that the testimony of Peterson Young lawyers will be necessary in order for the plaintiff to adequately present his case.

Having made the foregoing observations, this Court feels that it ought to balance the harm caused to the plaintiff and the judicial system by the plaintiff being precluded from calling his attorneys to the stand with the plaintiff’s right to the counsel of its choice. In this case, the plaintiff wants the counsel that represented him throughout the negotiations process to also represent him at trial. This Court feels great sympathy for the plaintiff who wishes to retain counsel whom it is familiar with and trusts. This Court also feels, however, that the testimony of the plaintiff’s attorneys in this case is crucially important and that the fact-finding process will be severely limited if the plaintiff’s attorneys do not testify at trial. Furthermore, this case is troubling to the Court because the plaintiff wishes to retain trial counsel who were also the attorneys who drafted the documents that triggered this litigation. Therefore, the Peterson Young firm will be arguing to the jury the meaning of documents they drafted and the nature of meetings they attended even if they don’t actually testify on the witness stand. This Court concludes that the judicial system has an extremely strong interest in discouraging such a result.

In sum, this Court finds that the law firm of Peterson Young “ought” to testify on behalf of the plaintiff in this case and therefore the defendants’ motion to disqualify is hereby GRANTED. The Court directs the plaintiff to contact this Court’s Deputy Clerk and arrange a suitable schedule for the hiring of new counsel.

      . This Court feels that the Third Circuit’s “indispensable testimony” standard is far too narrow to further the judicial system’s interest in preventing the blurring of the roles of advocate and witness. It would be extremely difficult in most cases to establish that any witness’s testimony is indispensable.

      . The plaintiff has not argued that the exceptions to D.R. 5-101(B) and D.R. 5-102(A) are applicable to this case,


author: DORSEY, District Judge.

text:
    815 FOXON ROAD, INC. v. TOWN OF EAST HAVEN, CONNECTICUT, Sarravich Minaka, Individually and as Zoning Enforcement Officer, and Joseph Pascarella, Individually and as Chief of Police.
    Civ. No. N-84-374 (PCD).
    United States District Court, D. Connecticut.
    April 11, 1985.

      Daniel A. Silver, Pudlin & Silver, New Britain, Conn., for plaintiff.
    Michael A. Albis, East Haven, Conn., for defendants.
   MEMORANDUM OF DECISION

DORSEY, District Judge.

Plaintiff, relying on 42 U.S.C, § 1983, 28 U.S.C. § 1343, and 28 U.S.C. § 2201, seeks a declaratory judgment, injunctive relief and damages on the basis that certain zoning regulations promulgated by the defendant Town of East Haven (Town) are unconstitutional on their face and as applied to plaintiff. Jurisdiction is found.

The parties were heard. For the following reasons, and in the following respects, judgment shall enter for the plaintiff. Facts

1. Plaintiff operates a commercial enterprise in leased premises at 815 Foxon Road, East Haven, Connecticut.

2. In addition to the sale of books and magazines, plaintiff exhibits films, largely consisting of sexually explicit material, in booths for one or two customers.

3. Defendant Town is a Connecticut municipal corporation.

4. Defendant Sarravich Minakan (Minakan) is the zoning officer of the Town.

5. Defendant Joseph Pascarella (Pascarella) is the Chief of Police of the Town.

6. The Town adopted zoning regulations on October 24, 1966, and amended same on December 21, 1977, and May 23, 1984, therein permitting the use of premises for exhibition of films in movie booth centers (MBC) only in CA-2 zoning districts, one of five commercial districts recognized and defined by regulation as areas “that have been growing, many over a long period of time, as retail and office sites providing a variety of commercial services for the community.”

7. The regulations permit an MBC in CA-2 districts upon the issuance of a permit after a site plan approval.

'8. Plaintiff has not sought nor obtained an MBC permit.

9. Enforcement of the zoning regulations by the zoning officer and Chief of Police is threatened in the form of penalties and a discontinuance order.

10. The May 23, 1984, amendment added, as to premises to be used for individual film exhibitions:

(a) An off-street parking requirement of one car for each viewing device.

(b) The requirement of a site plan approval.

11. Theatres are permitted in CA-1, CA-2, CB-1 and CB-2 zones.

12. The regulations applicable to film exhibitions are content neutral, i.e. they make no reference to the content of the films exhibited.

13. Prior to May 23, 1984, MBCs were prohibited under the regulations. That prohibition was invalidated on constitutional grounds by Judge Burns on May 15, 1984, in Civil N-83-575, 815 Foxon Road, Inc. v. Town of East Haven, et al.

14. On May 23, 1984, MBCs became a permitted use subject to the limitations discussed herein.

15. The Town Planning and Zoning Commission adopted the May 23, 1984, amendments as a tempered response to the perceived view of the public that such use not be permitted in any location.

16. CA-2 zones are essentially for commercial use, business and offices as are CA-1 zones, and, with the addition of automotive sales and services, as are CB zones. CC zones, except for density appear also to be commercial zones.

17. There are four CA-2 zones in different parts of Town.

18. An MBC is not permitted on a CA-2 district lot which abuts a residential zone to avoid “direct impact on a residential area” by setting some arbitrary distance requirement. Testimony of Anthony Pánico, the Town’s Planning Consultant, Transcript at 10). See Amendment of May 23, 1984, Schedule A, Section 24, 1136(A).

19. Plaintiff’s premises is located in a CA-2 zone. Its film business would not be permitted there because those premises abut residential property.

20. A 200' minimum distance to residential property would result in the prohibition of any CA-2 land in the Town being used for MBCs.

21. The parking ratio applied to theatres is not applied to MBCs as theatre attendees are seen as traveling in groups. One space per booth allows for waiting customers at MBCs. There was no evidence as to the parking spaces available on the lot occupied by the plaintiff. Theatres are required to provide one parking space for each four seats.

22. No particular provisions are applicable to site plan approval for MBC use as opposed to any other site plan approval.

23. Within the four CA-2 zones, there are ten lots on which MBCs are permitted, all in one of the four zones. No further identification of these lots, their present use, nor their availability for use as MBCs is reflected in the record.

24. Zoning district locations may be changed on petition.

Discussion

Plaintiff claims the regulations on their face and as applied to its business violate the first and fourteenth amendments. Specifically, plaintiff claims that: (1) the exercise of its rights is lost or diminished without due process by reason of the requirement of a site plan approval; (2) its right to carry on its business is subjected to unequal restrictions; and (3) the right to protected speech is facially chilled, restricted and infringed by the restriction of permissible locations for business such as plaintiff’s.

A.

The due process claim is without merit. Defendant’s regulations are enforced by a site plan approval. This is largely a documentation procedure. The regulation specifies the form and content of the documents required and the procedure to be followed. See Section 33, Exhibit A. If met, the standards require approval, thereby enforcing the zoning requirements. See Conn.Gen.Stat. § 8-3(g). The standards are uniformly applicable and provide no singular requirements for MBCs. Plaintiff suggests that because it is exercising a first amendment right, it should be subject to no prior restraints on the location of that exercise. Yet plaintiff concedes the Town’s right to control land use by zoning regulations. Plaintiff’s Memorandum, June 27, 1984, at 10. Site plan approval insures compliance with that control. Since a town may regulate “the place where such films may be exhibited [without offending] the First Amendment,” Young v. American Mini Theatres, 427 U.S. 50, 63, 96 S.Ct. 2440, 2448, 49 L.Ed.2d 310 (1976), a method of exercising that right (site plan approval) is not an unlawful restraint on the first amendment right.

B.

The equal protection claim, as it pertains to parking, is likewise without merit. Plaintiff claims that the requirement on theatres, one off-street parking space for each four seats, Exhibit A, Section 42.5.4, constitutes unequal treatment without rationale. The Planning and Zoning Commission’s determination that patrons of MBCs would be more likely to attend singly while theatre attendees would be more likely to attend singly while theatre attendees would be more likely to attend in groups, is not refuted in the record. A theatre is not necessarily always, nor substantially always, fully occupied. There was no evidence of any test of actual seating use in theatres. An MBC appears to be a smaller operation than theatres. MBCs are defined as an establishment where the film viewing is “by a single individual or by a group of two persons.” Exhibit A, Section 4.28. The contemplation of a waiting line of customers and a high volume of use of the booths prompted the requirement of a parking space for each exhibition machine. There is no evidence to suggest that that contemplation is erroneous or unfounded. The orderly conduct of business, provision for traffic flow, and minimization of intrusion on adjacent property users vindicates off-street parking requirements as a proper exercise of power in relation to a legitimate government purpose. As the requirement on MBCs is not clearly unwarranted, for those purposes, it cannot be said that the requirement is unreasonable as a means to accomplish a proper governmental purpose, nor so restrictive in relation to the requirements of another comparable use, i.e. theatres, as to be deemed violative of the equal protection clause.

C.

Defendants claim that plaintiff is without standing to challenge the constitutionality of the regulations. Plaintiff, no stranger to the regulations, is presently located where they would not permit the use. As an operator of the use in question, on land where the use would not be permitted under the regulations and presently threatened by penalties and shutdown, plaintiff enjoys sufficient standing to challenge the regulations both as applied and facially. See, e.g., Secretary of State v. Munson, — U.S. -, 104 S.Ct. 2839, 81 L.Ed.2d 786 (1984); Broadrick v. Oklahoma, 413 U.S. 601, 612-13, 93 S.Ct. 2908, 2916, 37 L.Ed.2d 830 (1973) (noting the Supreme Court’s “departure” from traditional standing rules in first amendment facial overbreadth challenges).

The Town has the authority to enact zoning regulations for the benefit of the community for the purpose of “achieving a satisfactory quality of life.” Schad v. Borough of Mt. Ephraim, 452 U.S. 61, 68, 101 S.Ct. 2176, 2182, 68 L.Ed.2d 671 (1981). However, those legitimate interests must be protected “by narrowly drawn regulations ... without unnecessarily interfering with First Amendment freedoms.” Village of Schaumburg v. Citizens for a Better Environment, 444 U.S. 620, 637, 100 S.Ct. 826, 836, 63 L.Ed.2d 73 (1980); Buckley v. Valeo, 424 U.S. 1, 25, 96 S.Ct. 612, 637, 46 L.Ed.2d 659 (1976); see Hynes v. Mayor of Oradell, 425 U.S. 610, 620, 96 S.Ct. 1755, 1760, 48 L.Ed.2d 243 (1975); First Nat’l Bank v. Vellotti, 435 U.S. 765, 786, 98 S.Ct. 1407, 1421, 55 L.Ed.2d 707 (1978). “Broad prophylactic rules ... are suspect. Precision of regulation must be the touchstone.” NAACP v. Buttons, 371 U.S. 415, 438, 83 S.Ct. 328, 340, 9 L.Ed.2d 405 (1963).

To determine whether the zoning regulations challenged here accomplishes legitimate purposes, United States v. O’Brien, 391 U.S. 367, 376, 88 S.Ct. 1673, 1678, 20 L.Ed.2d 672 (1968), without intruding unnecessarily on the rights of plaintiff or others potentially caused by the statute to refrain from constitutionally protected speech or expression, Broadrick, 413 U.S. at 612, 93 S.Ct. at 2916, the regulations must be scrutinized in relation to its terms and purposes, but the determination is made in relation to the right alleged to be infringed. Thomas v. Collins, 323 U.S. 516, 529-30, 65 S.Ct. 315, 322, 89 L.Ed.2d 430 (1945). The right to free speech is so inherently vital to full citizenship as to vest one asserting its infringement with standing on the basis of having sustained irreparable injury, unless the restriction is justified as minimally intrusive in pursuit of a legitimate government purpose. Reasonableness requires not only a significant governmental interest, but the preservation of adequate channels for communication. Schad, 452 U.S. at 61, 101 S.Ct. at 2179.

Municipalities may regulate land use, but they may not regulate the exercise of first amendment rights. Moore v. City of East Cleveland, 431 U.S. 494, 514, 97 S.Ct. 1932, 1943, 52 L.Ed.2d 531 (1977). As there held, the zoning regulations are to be assessed in terms of the propriety of the governmental interest exercised and, if those interests are lawful, whether the regulation minimally intrudes on the constitutional right. Id. at 499, 97 S.Ct. at 1935. Once a regulation is shown to restrict or chill the exercise of first amendment rights, not only must the interests asserted or protected by the regulation be lawful, but. also the regulation must constitute the minimum intrusion on the right necessary to achieve the lawful purpose. A regulation impacting negatively on the exercise of a first amendment right is presumptively invalid. Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70, 83 S.Ct. 631, 639, 9 L.Ed.2d 584 (1963). A free flow of ideas is so intrinsically of the essence of this nation’s strength, so ultimately the embodiment of individual freedom that its curtailment is allowed only to the extent necessary to accomplish a competing, legitimate governmental purpose.

Here, the communication by means of films, individually viewed, is clearly impaired when permitted only in limited locations. The regulations’ subject neutrality, i.e. as to the films’ content, does not alter the fact that impairment occurs. Indeed, content neutrality is potentially more broadly restrictive, since communication of a broad range of subjects or ideas may thus be restricted. The court is not, of course, blind to the actual films being exhibited. Plaintiff has repeatedly referred to the issue in terms of sexually explicit material or the like. Plaintiff’s Memorandum at 9, 16, 20, and Supplemental Memorandum at 2. This court cannot, and does not here, assess the regulations other than on the basis of their neutrality with regard to the content of the films in question. There is nothing in the regulations that requires or even suggests that they are to be applied other than to all individual film exhibitions. Thus, the question is whether there is justification in the asserted governmental purposes for the resultant restraint on the right to speech in the form of exhibition of films to individual viewers. The regulations will not be assessed as plaintiff seeks, that is, as a restraint of the exhibition of sexually explicit material.

The right to restrict the location where first amendment rights are exercised has been established. Young, 427 U.S. at 61, 96 S.Ct. at 2448. What the regulations accomplish, and what plaintiff challenges, is clearly authorized. “The power of local government to zone and control land use is undoubtedly broad and its proper exercise is an essential aspect of achieving a satisfactory quality of life ....” Schad, 452 U.S. at 68, 101 S.Ct. at 2182. The Town’s purpose in the regulations thus is a proper exercise of governmental authority.

The question left is whether the Town’s method of achieving that purpose is constitutional, i.e. whether the regulation is drawn sufficiently narrowly to avoid unnecessary intrusion on freedom of expression. United States v. O’Brien, 391 U.S. at 376-77, 88 S.Ct. at 1679. It is not improper to limit the areas in which such activities are permitted. The degree of restriction is lawful if the interests asserted by the Town could not be served by less intrusive means. Here, two of the restrictions on MBCs are:

(a) The use is not permitted on any lot which is partially in or which is contiguous to residential property.

(b) The use is permitted in only a CA-2 zone.

Limited areas or zones in which the use is permitted and the requirement of space between the use and residential land has been held to be proper. Young v. American Mini Theatres, 427 U.S. 50, 96 S.Ct. 2440, 49 L.Ed.2d 310. The first restriction is valid.

The validity of the limitation to the CA-2 zone is determined by whether such a limitation is the means which is least intrusive on plaintiff’s constitutional right by which to accomplish the Town’s legitimate purpose. The exclusion of the use in question from the eight residential districts is reasonable and logical. The stated design and purposes of the light industry zones, shore development districts, plan development and flood plain districts are likewise not unreasonable bases for exclusion therefrom of MBCs. The locations contemplated by the commercial CB and CC districts, as well as the permitted used therein, are not clearly incompatible with MBCs, but exclusion of such centers is not clearly improper. The CA-2 uses extend to retail and office sites providing a variety of commercial services. A wish to improve the character of the existing development is expressed as well as the need for consistency with intensive use of adjacent residential areas and for off-street parking to be provided by each permitted use. The CA-1 district is intended to encourage, principally in the downtown area of East Haven center, the same uses with greater concentration of retail services and office facilities, including multi-story buildings. Automotive uses are excluded as incompatible as are residential uses. Centralized parking, not necessarily on the lot for each use, is contemplated. The CA-2 zone thus differs only slightly from the CA-1 zone and, except for locations and automotive sales and services, from the CB districts.

Of the seventy-one (71) use categories in the regulations, those most akin to MBCs are:

(a) No. 34—indoor theatres and assembly halls.

(b) No. 35—indoor theatres and assembly halls accessary to permitted uses on the same premises.

Both such uses are permitted in the CA-1, CA-2, CB-1, CB-2 and CC zones, subject to site plan approval. The latter is also permitted in the CD and light industry districts. It might be argued that use No. 43, bowling alleys or pool halls, are not without similarity in use, quality and characteristics to MBCs. Such are permitted uses in the CB-1, CB-2 and CC districts.

While the adopting resolution refers to the CA-2 district as “an appropriate district in which to permit” MBCs as the CA-2 districts are “intended to provide a variety of retail and commercial services,” Exhibit A, nothing in the resolution nor in the testimony provides a rationale for why such use is not compatible with the uses and purposes of the other commercial districts. Indeed, while the centers are limited to the CA-2 districts, categories 34 and 35 are not similarly restricted. No evidence was offered as to why the restriction to the CA-2 district is necessary for MBCs and not for theatres and assembly halls. Conversely, there is no rationale offered for why theatres and assembly halls should be permitted in CA-1, CB-1, CB-2 and CC districts while MBCs are not there permitted. There is no apparent conflict between MBCs and the uses or purposes of those other four districts. The testimony adduced no reasons for imposing restrictions other than that the CA-2 zone “permits a wide variety of businesses, office and commercial establishments,” (Tr. 9), a comment that equally applies to the CA-1, CB-1, CB-2 and CC zones. CA-1 is noted as having “a tighter lot size” and being found “in a downtown situation,” (Tr. 9), but is otherwise not substantially distinguishable from the CA-2 zone. An MBC was likened to theatres generally, yet the Town offered no explanation for why a narrower limit was imposed on MBCs than on theatres. The fact that theatres are more broadly permitted undercuts the justification offered for the restriction of MBCs other than to the same districts in which theatres are permitted.

As the restriction on the first amendment right must be as narrow as possible and, as defendants had the burden of justifying the limits imposed, the record fails to show why the permissible locations of MBCs must be more narrowly restricted than the permissible location of theatres. The restrictions on MBCs to CA-2 zones is found to be excessive and not as narrowly or minimally intrusive on the first amendment right as is required. As unduly restrictive, it is unconstitutional as violative of the first amendment.

There are restrictions on MBCs which are not imposed on theatres, to wit:

(a) None are allowed within 500' of any lot used for churches, parish halls, schools, colleges, universities, hospitals, cemeteries, day nurseries, and educational, religious, philanthropic and charitable institutions.

(b) None are allowed within 500' of places selling alcoholic beverages, nor within 200' of food service establishments.

(c) None are allowed on lots contiguous to or incorporated in part in residential zones.

(d) None are allowed within 1500' of any other such center.

There is no explanation for any of these restrictions other than the testimony pertaining to the residential zone restriction, which has been sustained in Young v. American Mini Theatres, 427 U.S. 50, 96 S.Ct. 2440, 49 L.Ed.2d 310, the reasoning of which would equally apply and sanction the restrictions of (a) above also. As these restrictions are not applicable to theatres in general, the attempt to rationalize these restrictions as necessary fails because if they are, or are not, necessary for film exhibition locations, they should likewise be necessary, or unnecessary as the case may be, for all film exhibition locations including theatres. As the restriction of MBCs to the CA-2 zone is unduly restrictive and as the aforesaid restrictions are applied arbitrarily to MBCs as opposed to theatres, to such extent the regulations violate the fourteenth amendment.

Summary

The requirement of site plan approval for MBCs and the failure of the regulations to permit such MBCs throughout the Town do not violate the first amendment nor fourteenth amendment due process rights. The prohibitions of Sections 36A(a) and (c) are not violative of first amendment rights, but as the prohibitions of ¶ 36A(a)-(d), Exhibit A, are not equally applied to comparable and indistinguishable uses, to wit, theatres, such restrictions as imposed only on MBCs violate the equal protection rights of the fourteenth amendment. The restriction of MBCs to the CA-2 zone, as not shown to be as narrow a restriction as possible to effectuate the purposes of the zoning regulations, is unduly restrictive of first amendment rights and as not equally applied to theatres must also fall to the equal protection claim in the fourteenth amendment.

•As the Town’s zoning regulations are severable, only the provisions thus found to be in conflict with the Constitution are invalid.

The court is not unaware of an underlying consideration of the Town, the wish for insulation against the type of films seemingly to be the only ones likely to attract a clientele to individual movie booths, i.e. sexually explicit material. The fact that the commission acted on the heels of Judge Burns’ holding the blanket prohibition unconstitutional and the testimony of the Town officials that they acted in the face of the wishes of the citizenry to bar such centers completely, cannot be ignored even though the regulations are content neutral. That neutrality does not bar the close scrutiny required of any restriction on first amendment rights. While some citizens, and Town officials in response thereto, may have wished to regulate taste, they may not censor, no matter how distasteful the permitted speech may be to some, if not many. The court cannot permit censorship no matter how laudable may be the taste being exercised. To the extent the regulations are here found to violate the first and fourteenth amendments, they may not be enforced by the Town or any of its officers, agents or employees, nor by defendants Minakan or Pascarella, and they are hereby enjoined therefrom.

Plaintiff has proved no damages and none are thus awarded.

SO ORDERED.

      . Paragraph 36(A) has other distance requirements that pertain to MBCs in relation to churches or their affiliated structures, school or educational facilities, day nurseries, places at which alcoholic beverages are sold or on premises for consumption, and other movie booth centers.


text:
    G.E. Paul COLLINS, et al., v. GULF OIL CORPORATION, et al.
    Civ. No. B-83-542 (PCD).
    United States District Court, D. Connecticut.
    April 11, 1985.

      Andrew D. Painter, Abate & Fox, Stamford, for plaintiffs.
    Albert Zakarian, Felix J. Springer, Day, Berry & Howard, Hartford, Conn., for defendant.
   RULING ON DEFENDANTS’ MOTION TO DISMISS

DORSEY, District Judge.

This action, under numerous contract and tort law theories, stems in essence from an alleged breach of an employment contract. Defendants, Gulf Oil Corporation (Gulf) and Transinsco, Inc. (Transinsco), have moved to dismiss the fourth, eighth, ninth, tenth, fourteenth, eighteenth, nineteenth and twentieth counts of plaintiffs’ second amended complaint (complaint), pursuant to Rule 12(b)(6), Fed.R. Civ.P., for their failure to state a claim upon which relief can be granted. With the introduction of facts outside the pleadings, defendants’ motion to dismiss the fourth and fourteenth counts must be considered as one for summary judgment. Rule 12(b), Fed.R.Civ.P.; Modern Woodcrafts, Inc. v. Hawley, 534 F.Supp. 1000, 1002 n. 1 (D.Conn.1982); 5 C. Wright & A. Miller, Federal Practice and Procedure, § 1366 at 679 (1969 Ed.).

Plaintiffs’ failure to dispute these facts permits their consideration in relation to plaintiffs’ allegations and in determining defendants’ claim to judgment as a matter of law in relation to the fourth and fourteenth counts. Rule 56, Fed.R.Civ.P. The inquiry into the remaining six counts is limited under Rule 12(b)(6) to the factual allegations therein, construed in the light most favorable to plaintiffs with all well-pleaded material facts taken as true. Frey Reddy-Mixed Concrete v. Pine Hill C.M., 554 F.2d 551, 553 (2d Cir.1977); Gumer v. Shearson Hammill & Co., 516 F.2d 283, 286 (2d Cir.1974); Shapiro v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 495 F.2d 228, 231 (2d Cir.1974), aff’g, 353 F.Supp. 264, 268 (S.D.N.Y.1972).

Facts—Uncontested or Pleaded

From 1978 through 1982, plaintiff G.E. Paul Collins (Collins), a citizen of the United Kingdom, was an insurance accountant at Insco, Limited (Insco), a Bermuda-based “offshore” insurance subsidiary of defendant Gulf, a Pennsylvania corporation. On or about May 17, 1982, Gulf sponsored Collins for an intra-company transfer and an “L-l” visa and his wife, Gerda Louisa Augusta Collins (Gerda), a citizen of Belgium, for a non-working “L-2” visa for purpose of Collins’ transfer to Transinsco, a Gulf subsidiary incorporated and doing business in Connecticut. Collins’ assignment as Transinsco’s Director, Systems Development, was not to exceed three years, following which he would return home or be reassigned elsewhere. In reliance upon Gulf’s representations concerning the duration of his Transinsco assignment and a future reassignment, Collins relocated his family to Stamford, Connecticut, on or about July 1, 1982. During his employment at Transinsco, his supervisor, Clyde Hayden (Hayden), failed to evaluate Collins’ performance in conformance with the established Gulf practice. In particular, Hayden wrote a memorandum to the file recording a December 17, 1982, meeting between himself and Collins wherein he criticized Collins’ performance. On May 20, 1983, Collins met again with Hayden and received a copy of this memorandum, whereupon he learned that a performance evaluation had occurred.

Collins asserts that Gulf violated the federal immigration laws by representing on his visa application that his assignment would extend for three years and that he would be given a level of responsibility which he never received. He also alleges that during his stay at Transinsco, funds due Insco were illegally concealed by Hayden and another Transinsco employee and used by Transinsco, thereby conferring an unfair competitive advantage upon Transinsco. He further asserts that from May 1982 to June 22, 1983, Gulf and Transinsco violated §§ 38-69, et seq., Conn.Gen.Stat., and its consent decrees with the Securities and Exchange Commission by failing to obtain “agent” or “broker” licenses. By virtue of his accounting position, Collins asserts he was placed in the position of being an accessory to these illegal acts and when he became a threat to covering them up he was terminated on or about June 30, 1983, effective July 31, 1983. As a result of his discharge, both his and his wife’s visas were revoked.

Discussion

A. Fourth and Fourteenth Counts

In the fourth and fourteenth counts of the complaint, respectively, Collins alleges that defendants intentionally and negligently inflicted great emotional distress upon him and his family in sponsoring his visa; failing to comply with established performance evaluation procedures; representing that his assignment would extend three years; and terminating his employment with the knowledge that it would result in the automatic revocation of his visa.

1. Intentional Infliction of Emotional Distress

A claim for intentional infliction of emotional distress lies against:

One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another ... if bodily harm to the other results from it [as well as] for such bodily harm.

Hiers v. Cohen, 31 Conn.Supp. 305, 308, 329 A.2d 609 (1973), citing Restatement (Second) of Torts, § 46(1) (1965).

Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community ....

Restatement (Second) of Torts, § 46, Comment d (1965).

Defendants urge that plaintiff’s claim must fail as he has not alleged any facts from which “extreme and outrageous” conduct could be inferred. Defendants underscore this by pointing out that, even in nearly 500 pages of plaintiff's deposition, plaintiff failed to show that his termination was conducted in an egregious or unconscionable manner, but testified only to what he considered improper motives for defendants’ conduct.

Plaintiff neither disputed defendants’ claims nor introduced evidence from which outrageous or extreme conduct may be inferred. Rather, plaintiff merely labels defendants’ conduct as “outrageous and extreme” and argues that the facts of this case are so extraordinary that reasonable people will differ as to whether or not defendants’ conduct was, in fact, outrageous.

Prior to Murray v. Bridgeport Hosp., 40 Conn.Sup. 56, 480 A.2d 610 (1984), courts in Connecticut did not recognize the tort of intentional infliction of emotional distress in the employment context. In Murray, the Superior Court denied an employer’s motion to dismiss a claim of intentional infliction of emotional distress in defendant’s failure to evaluate plaintiff, holding that whether or not the failure to evaluate was extreme or outrageous conduct was a question of fact. This holding, contrary to the general rule, fails “to determine, in the first instance, whether the defendant’s conduct may reasonably be regarded as so extreme and outrageous as to permit recovery.” Restatement (Second) of Torts, § 46, Comment h (1965); Wells v. Thomas, 569 F.Supp. 426, 433 (D.Pa.1983). Extension of this tort to an employment contract dispute on facts much more egregious than those in the instant case has been resisted. Wells; Waldon v. Covington, 415 A.2d 1070 (App.D.C.1980).

Assuming, arguendo, that the tort of intentional infliction of emotional distress should be recognized in the employment context, whether defendants’ conduct was extreme or outrageous under the facts of the instant case as a matter on which reasonable minds can differ, requires determination by the court in the first instance. In light of the commonly accepted meaning of “extreme and outrageous conduct,” plaintiff’s claim fails for he has not introduced facts from which a jury would be permitted to infer that defendants’ conduct was extreme or outrageous.

2. Negligent Infliction of Emotional Distress

Connecticut has not yet recognized the tort of negligent infliction of emotional distress in the employment context. For the tort to lie, in general, however, plaintiff must show that defendants should have realized that their conduct involved an unreasonable risk of causing distress and from the facts known to them should have realized that the distress, if it were caused, might result in illness or bodily harm. Urban v. Hartford Gas Co., 139 Conn. 301, 93 A.2d 292 (1952); Bertozzi v. McCarthy, 164 Conn. 463, 323 A.2d 553 (1973); Restatement (Second) of Torts, § 313. As in the tort of intentional infliction of emotional distress, a plaintiff need not show actual physical harm or injury, so long as defendant’s conduct involved an unreasonable risk of causing distress resulting in illness or bodily harm. Montinieri v. SNET Co., 175 Conn. 337, 398 A.2d 1180 (1978).

Defendants argue that plaintiff fails to state a claim since the degree of anxiety arising from termination of employment is not sufficiently high to meet this standard. Defendants, perhaps with tongue in cheek, point out that the only physical problem suffered by Collins as testified to in his deposition was a digestive condition consisting of “burping” which predated working at Transinsco. Plaintiff has not disputed this fact nor introduced any evidence from which it can be inferred that defendants’ conduct was so egregious that it should have realized that it involved the unreasonable risk of causing emotional distress. Montinieri at 337, 398 A.2d 1180. In essence, plaintiff would have us hold that any time an employer does not comply with performance evaluation procedures and terminates an employee that it has negligently inflicted emotional stress. Such is not the law.

Summary judgment is granted to defendants as to the fourth and fourteenth counts.

B. Eighth and Eighteenth Counts

In the eighth and eighteenth counts, directed against Gulf and Transinsco, respectively, Collins alleges violations of the Connecticut Unfair Trade Practices Act, §§ 42-110a, et seq., Conn.Gen.Stat. (CUTPA), by their failure to obtain insurance licenses as required by Connecticut law; misuse of funds due Insco; violation of a consent decree with the Security Exchange Commission.

Primarily at issue here are §§ 42-110b and 110g(a). Section 42-110g(a) states

Any person who suffers any ascertainable loss of money or property, real or personal, as a result of the use or employment of a method, act or practice prohibited by § 42-110b, may bring an action ... to recover actual damages

Connecticut Acts 467 (1984) (P.A. No. 84-468) added: “Proof of public interest or public injury shall not be required ....” Section 42-110b states: “No person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce.”

To sustain a CUTPA claim, plaintiff must show that he was a direct victim of defendants’ unfair practices. Murphy v. McNamara, 36 Conn.Sup. 183, 416 A.2d 170 (1979). Although the Act does not facially exclude employment contract disputes, this court has dismissed a CUTPA claim where plaintiff alleged loss of money or property as a result of a retaliatory discharge based on plaintiff’s objection to the employer’s unfair practices since this was “but an indirect, remote relationship,” not governed by CUTPA. Troxler v. Hartford Ins. Group, Civil No. H-80-298 (D.Conn.1981), 7 Conn.L.Trib. No. 22 at 7. Plaintiff vainly asserts that his loss and injury were the direct and proximate result of defendants’ illegal acts and would distinguish Troxler by arguing that his situation is somehow different since defendants also allegedly violated the federal immigration laws. The court finds that Troxler controls as the relationship between plaintiff’s loss and defendants’ unfair practices is too remote to sustain plaintiff’s claims.

Therefore, defendants’ motion to dismiss the eighth and eighteenth counts is granted.

C. Tenth and Twentieth Counts

The tenth and twentieth counts, as against defendants Gulf and Transinsco, respectively, allege Gerda’s loss of consortium due to hér husband’s emotional strain and trips abroad to seek employment.

“[E]ither spouse has a claim for loss of consortium shown to arise from a personal injury to the other spouse caused by the negligence of a third person.” Hopson v. St. Mary’s Hosp., 176 Conn. 485, 496, 408 A.2d 260 (1979) (emphasis added). As Collins does not allege actual physical injury to have resulted from the allegedly wrongful acts of defendants, at issue here is whether his alleged emotional strain falls within the meaning of “person injury.”

Defendants argue that the term “personal injury” is synonymous with “physical injury” and, therefore, plaintiffs claim must fail. Plaintiff argues that Hopson is not so limited and cites in support Montinieri, where the court recognized that an action for negligent infliction of emotional distress may lie even in the absence of physical injury. Assuming arguendo that Montinieri is controlling, plaintiff has failed to show that defendants “should have realized that its conduct involved an unreasonable risk of causing emotional distress and that that distress if it were caused might result in illness or bodily harm.” Id. at 345, 398 A.2d 1180. Plaintiffs citation to Agis v. Howard Johnson Co., 371 Mass. 140, 355 N.E.2d 315 (1976), where the court held that a loss of consortium claim may lie even in the absence of physical injury, is not controlling in this court, nor supportive of any discernible trend or course in which the law of Connecticut may be following.

Moreover, the Restatement (Second) of Torts, § 693, stresses the necessity of a physical harm:

(1) One who by reason of his tortious conduct is liable to the one spouse for illness or other bodily harm is subject to liability to the other spouse for the resulting loss of the society and services of the first spouse ... and for reasonable expense incurred by the second spouse in providing medical treatment. (Emphasis added).

Absent a clearer signal from the Connecticut courts that a loss of consortium claim may lie without physical or personal injury, this court must grant defendants’ motion to dismiss as to the tenth and twentieth counts.

D. Ninth and Nineteenth Counts

In the ninth and nineteenth counts against defendants Gulf and Transinsco, respectively, Gerda claims negligent infliction of emotional distress.

In Connecticut, although a plaintiff need not prove physical injury or risk of harm from physical impact to recover for the negligent infliction of emotional distress, it must at least be shown that defendant “should have realized that its conduct involved an unreasonable risk of causing emotional distress and that that distress if it were caused might result in illness or bodily harm.” Montinieri, at 345, 398 A.2d 1180. Moreover, “emotional distress is a proper element of damages only when it results from the breach of a duty to the particular plaintiff.” Anonymous v. Hospital, 35 Conn.Sup. 112, 398 A.2d 312 (1979).

Plaintiff claims that because defendants knew that her husband’s discharge would result in the revocation of their visas, they had a heightened standard of care to comply with established Gulf performance evaluation procedures and their failure to do so was a breach of their duty and the direct cause of plaintiff’s great emotional suffering. However, as defendants rightly point out, plaintiff’s claim must fail as she has not demonstrated that the breach was of a duty owed her and not to her husband. Anonymous; Lessard v. Tarca, 20 Conn.Sup. 295, 133 A.2d 625 (1957).

Defendants’ motion to dismiss as to the ninth and nineteenth counts is granted.

SO ORDERED.

      . See Defendants’ Memorandum in Support of Motion to Dismiss, n. 3 at 8-9, n. 4 at 20.

      . See generally Plaintiffs’ Brief in Opposition to Defendants’ Motion to Dismiss.

      . Plaintiff's arguments that he was not an "at-will" employee and the highly dubious assertion that this was not an employer-employee relationship but a parent-child relationship has no bearing on this claim.

      . In Wells, the court granted summary judgment in the face of allegations that the employee was stripped of her position, placed in a newly-created position with no responsibilities, her office was taken away, her secretary was reassigned to someone else, she was given poor performance evaluations where for twenty-five years she had only received excellent ratings, she was not given annual salary increases and finally she was terminated, all allegedly without cause. In Waldon, the court affirmed a dismissal where plaintiff claimed that her husband’s death was due to defendants’ failure to give him notice of meetings, threat to institute actions to determine his competency to teach and assignment to teach classes out of his specialty. See also, Cautilli v. GAF Corp., 531 F.Supp. 71 (D.Pa.1982).

      . It is, therefore, unnecessary to address either the argument that defendants’ practices violate CUTPA under Murphy’s three-prong test, or the issue of whether the recent amendment, 1984 Public Act 468, which eliminated the "public interest nexus" imposed by Ivey, Barnum & O’Mara v. Indian Harbor Properties, Inc., 190 Conn. 528, 461 A.2d 1369 (1983), or the "public nexus” requirement of O’Mara controls. The question being whether the Act imposes substantive changes in the law, so as to preclude, under settled principles, its retroactive application, or merely clarifies the original CUTPA so as not to run afoul of a retroactivity bar. See, e.g., Circle Lanes of Fairfield, Inc. v. Fay, 195 Conn. 534, 540-41, 489 A.2d 363 (1985).

      . The "argument" that both plaintiffs have complained of physical manifestations of stress and anxiety and will testify that the devastating economic consequences of the dismissal prevented them from obtaining medical attention which would have been pursued under normal circumstances is rejected. See Plaintiffs’ Brief in Opposition to Defendants' Motion to Dismiss at 30.

      . Plaintiffs’ argument in their Brief in Opposition to Defendants’ Motion to Dismiss that the defendants assumed a duty to Gerda merely by sponsoring her and her children’s visas and that this duty included inter alia not to arbitrarily or maliciously terminate her husband’s employment is rejected in the absence of any factual basis or legal support. Since plaintiff has failed to demonstrate that defendants owed her a duty, we need not address plaintiff’s argument that defendants' conduct was outrageous and extreme.