author: GODDARD, District Judge.

text:
    EMPIRE CRAFTS CORPORATION v. NATIONAL SILVER CO.
    District Court, S. D. New York.
    May 25, 1945.

      Nims, Verdi & Martin, of New York City (Harry D. Nims, Minturn de S. Verdi, Wallace H. Martin, and Marion L. Severn, all of New York City, of counsel), for plaintiff.
    Rogers, Hoge & Hills, of New York City (Edward S. Rogers, Clifton Cooper, Leslie D. Taggart, and John P. Chandler, all of New York City, of counsel), for defendant.
   GODDARD, District Judge.

This is a suit in equity under Section 4915 of the Revised Statutes, 35 U.S.C.A. § 63, to reconsider actions of the Patent Office on rulings of law and on the evidence submitted to the Patent Office and also upon evidence produced upon this trial, and for an adjudication that the plaintiff is entitled to register its trade-mark “Royal Crest.”

Plaintiff is a New York corporation which in November 1941, began selling sterling silver knives, forks, and spoons marked “Royal Crest,” In 1942 it advertised these articles so marked in some of the leading women’s magazines and by .1943 the plaintiff sold throughout the country approximately 150,000 pieces of sterling silver marked “Royal Crest.”

In March, 1942 plaintiff applied for registration of the mark “Royal Crest” for sterling silver flatware. The Patent Office approved the application and passed it for publication. Upon its publication in the Patent Office Official Gazette the defendant, National Silver Company, filed opposition to the application pursuant to the TradeMark Act of February 20, 1905, 15 U.S.C.A. §§ 86, 87. This opposition was based upon a renewed registration in June, 1941 by the defendant, National Silver Company, of a trade-mark originally registered by the defendant’s assignor in 1921. The National Silver Company’s renewed trade-mark consists of a double diamond shaped figure bearing the words “Royal Brand Cutlery Company” between the diamonds, and the words “Sharp Cutter” at the center of the internal diamond. The opposer [the defendant] also relied upon the use of the notation “Royal Brand” as applied to its various knives. The opposer, National Silver Company, was organized in 1928 and it and its predecessors have used the diamond trade-mark and also the words “Royal Brand” for upwards of thirty years. During this period with extensive advertising they have built up a large business, national in scope, in goods bearing these marks.

A hearing was had before the Examiner of Trade-Mark Interferences in which the plaintiff urged that the opposer, National Silver Company, the defendant in this case, had no standing as opposer because a third party, the Royal Silver Mfg. Co., Inc., of Norfolk, Virginia, had priority of the use of the mark “Royal Brand.” The plaintiff also urged that the wide spread uses by others of the term “Royal” in the silver trade made mistake by the public unlikely within the meaning of the statute. The plaintiff also contended that the Examiner erred in denying the plaintiff’s motion to strike out the entire testimony offered by the opposer because counsel for the op-poser had instructed its witnesses not to answer certain questions.

The Examiner of Trade-Mark Interferences held that the National Silver Company had “established prior use both as to the registered mark and the mark consisting merely of the words ‘Royal Brand’ ”; that the goods were of the same descriptive properties and the marks were confusingly similar. The Examiner denied the motion to strike out the testimony of the defendant’s witnesses on the ground that the unanswered questions were improper on cross examination and were irrelevant and immaterial. The Examiner, in treating the plaintiff’s contention in respect to the prior use of “Royal” and “Royal Brand” by the Royal Silver Mfg. Co., Inc., stated — “It is not deemed to be material to these proceedings whether or not the opposer has exclusive right to the use of the word.”

Upon appeal the Commissioner of Patents sustained the Examiner holding in substance that the record established prior use of the marks by the defendant and that the mark of the plaintiff was to be used on goods of the same descriptive properties and that the concurrent use of the mark or marks on the respective goods of the parties “would be likely to cause confusion and mistake in the mind of the public and to deceive purchasers with consequent likelihood of damage to opposer.” He further stated — “In view of the above, I think the case was correctly decided by the Examiner of Trade-Mark Interferences.”

The plaintiff now brings this suit alleging that the defendant is not the owner of the trade-marks “Royal,” “Royal Brand” and the diamond “Royal Brand Cutlery Company”; that these marks belong to the Royal Silver Mfg. Co. Inc., of Norfolk, Virginia; that the plaintiff’s mark “Royal Crest” is not confusingly similar to the marks “Royal,” “Royal Brand” or the registered diamond design; that the goods on which plaintiff uses its mark are different from the goods on which defendant uses its marks.

It may be that the Commissioner of Pat-tents is a necessary party to this suit. The decisions seem to indicate that whether the Commissioner of Patents is a necessary party or not depends upon the grounds for refusing registration. See Century Distilling Co. v. Continental Distilling Co., 3 Cir., 106 F.2d 486, certiorari denied 309 U.S. 662, 60 S.Ct. 581, 84 L.Ed. 1010; Tomlinson of High Point v. Coe, 74 App.D.C. 364, 123 F.2d 65; Drackett Co. v. Chamberlain Co., 3 Cir., 81 F.2d 866; see “Trade-Mark Cancellation and Opposition Proceedings and the R. S. 4915 Remedy,” 32 Trade Mark Reporter 23.

The grounds of the Commissioner’s refusal to register plaintiff’s trade-mark are such that it may be that he is a necessary party and that without his being made a party, this court can go no further. However, as neither of the parties have raised the point and the trial took some time, I shall attempt to dispose of the case on the merits. If subsequently a higher tribunal decides that the Commissioner of Patents is a necessary party to this action, then this opinion on the merits will affect neither party disadvantageously.

The proceeding by a bill in equity under Section 4915, Revised Statutes, is part of the application for the patent and applies equally to the registration of a trade-mark. Gandy v. Marble, 122 U.S. 432, 7 S.Ct. 1290, 30 L.Ed. 1223; American Steel Foundries v. Robertson, 262 U.S. 209, 43 S.Ct. 541, 67 L.Ed. 953; United States ex rel. Baldwin Co. v. Robertson, 265 U.S. 168, 44 S.Ct. 508, 68 L.Ed. 962; Tomlinson of High Point v. Coe, 74 App.D.C. 36, 45, 123 F.2d 65; Loughran v. Quaker City Chocolate & Confectionery Co., 3 Cir., 296 F. 822.

It has been held that in a suit of this nature to register a patent the validity or invalidity of the defendant’s registered patent is not in question. Smith v. Carter Carburetor Corporation, 3 Cir., 130 F.2d 555, 560; Cleveland Trust Co. v. Berry, 6 Cir., 99 F.2d 517, 521; Parker v. Commissioner of Patents, D.C., 33 F.Supp. 410, affirmed upon opinion below, Parker v. Coe, 3 Cir., 119 F.2d 781. Therefore, since R.S. 4915 applies to the registration of trademarks, at least analogously, the validity of the defendant’s trade-mark per se, is not in question. However, the court need not rely solely on these patent cases as authority, for in Loughran v. Quaker City Chocolate & Confectionery Co., supra, 296 F. at page 826, the court said — “We are not concerned in this action with the validity of the defendant’s trade-mark registrations; we are concerned only with the plaintiffs’ right to have their trade-mark registered. Therefore any comments we may make upon the defendant’s trade-marks will be addressed only to the position it has taken in opposition to the plaintiffs’ registration.” That case was a suit to register a trade-mark under Section 4915 after three prior administrative decisions.

A bill in equity under Section 4915, R.S. is a suit triable de novo. Butterworth v. Hoe, 112 U.S. 50, 5 S.Ct. 25, 28 L.Ed. 656; General Talking Pictures Corporation v. American Tri-Ergon Corporation 3 Cir., 96 F.2d 800; Perkins v. Lawrence Sperry Aircraft Co., D.C., 57 F.2d 719; Globe-Union, Inc., v. Chicago Telephone Supply Co., 7 Cir., 103 F.2d 722. The law applicable to patents where priority of invention is involved is equally applicable to trade-marks in that the plaintiff cannot rely on a mere preponderance of evidence, but must overcome the prior decisions by testimony which in “character and amount carries thorough conviction.” Morgan v. Daniels, 153 U.S. 120, 14 S.Ct. 772, 773, 38 L.Ed. 657; Century Distilling Co. v. Continental Distilling Corporation, 3 Cir., 106 F.2d 486; Loughran v. Quaker City Chocolate & Confectionery Co., supra.

Both the Examiner of Trade-Mark Interferences and the Commissioner of Patents found that the defendant established prior use both as to the registered trade-mark and the mark consisting merely of the words “Royal Brand”; that the goods were of the same descriptive properties within the meaning of the Trade-Mark Act, and that confusion would likely result.

The plaintiff has submitted no new evidence upon the trial which would affect the findings of the Examiner and sustained by the Commissioner, that the mark of the plaintiff was to be used on goods of the same descriptive properties as those of the defendant, and that the concurrent use of the mark by the plaintiff would likely cause confusion with goods bearing defendant’s marks. The only new evidence now submitted concerns, first, the validity or invalidity of the defendant’s registered trademark; and second, the priority of use of the words “Royal Brand” as between this defendant and a third party. As pointed out above the validity is not now in question. Loughran v. Quaker City Chocolate & Confectionery Co., supra; Lactona, Inc., v. Lever Bros. Co., Cust. & Pat.App., 144 F.2d 891.

The new evidence as to the prior use by a third party of the words “Royal Brand” does not strengthen the plaintiff’s position for the Examiner of Trade-Mark Interferences in denying the plaintiff’s exparte application stated his reasons to be the prior use of the notation “Royal Brand” by this third party; that the marks were to be used on goods of the same descriptive properties; and that “Royal Brand” was confusingly similar to the notation “Royal Crest.”

It still appears that as between this plaintiff and the defendant that the defendant had prior use of the mark. Whether it has exclusive use of the marks need not be decided in this suit. See John Morrell & Co. v. Doyle, 7 Cir., 97 F.2d 232, 235, certiorari denied 305 U.S. 643, 59 S.Ct. 146, 83 L.Ed. 415.

In view of the lack of additional evidence sufficient to overcome the findings made by the Examiner of Trade-Mark Interferences and sustained by the Commissioner of Patents, experts in the field of trade-mark practice, this court finds no ground for disturbing these two prior consistent decisions. Morgan v. Daniels, 153 U.S. 120, 14 S.Ct. 722, 38 L.Ed. 657; Cleveland Trust Co. v. Berry, 6 Cir., 99 F.2d 517; Powell v. McNamara, 2 Cir., 74 F.2d 750; Abbott v. Coe, 71 App.D.C. 195, 109 F.2d 449; Kaufmann Department Stores v. S. H. Kress Company, 49 U.S.P.Q. 702.

The only question remaining is the Examiner of Trade-Mark Interferences’ refusal to take into consideration the previous registration and use of the word “Royal” on silverware by a number of other concerns. This refusal was in accordance with the well settled law that the fact that others use trade-marks which are confusingly similar to defendant’s, is no reason why plaintiff should be permitted to add to the confusion. Parke, Davis & Co. v. G. F. Harvey Co., Cust. & Pat.App., 141 F.2d 132; Skelly Oil Co. v. Powerine Co., 86 F.2d 752, 24 C.C.P.A., Patents, 790; Pepsodent Co. v. Comfort Manufacturing Co., 83 F.2d 906, 23 C.C.P.A., Patents, 1224.

For the reasons stated above the defendant may have a decree dismissing the bill of complaint.

Findings of fact and conclusions of law to be submitted by defendant on ten days notice.

       Oral opinion.


source: Caselaw Access Project

author: FOREMAN, Chief Judge.

license: Public Domain

text:
    Robert Lee ELLIS and Joyce Ann Ellis, Plaintiffs, v. METROPOLITAN PROPERTY AND LIABILITY INSURANCE COMPANY, an insurance corporation, Defendant.
    Civ. No. 82-4287.
    United States District Court, S.D. Illinois, Benton Division.
    Oct. 22, 1982.
    Mitchell, Brandon & Schmidt, Carbon-dale, Ill., for plaintiffs.
    Russell F. Watters, Brown, James, Rabbitt, Whaley, McMullin & Pitzer, Belleville, Ill., for defendant.
   ORDER

FOREMAN, Chief Judge.

Before the Court is defendant’s Motion to Dismiss or in the Alternative Strike Count III of Plaintiffs’ Complaint. Count III alleges that defendant unreasonably refused to pay plaintiffs’ insurance claim and therefore breached “the duty of good faith and fair dealing.” Defendant denies that such a cause of action exists. At issue is whether there exists in Illinois a tort action for breach of the duty of good faith and fair dealing against an insurance company.

The Illinois Supreme Court has not yet resolved this issue; the districts are anything but unanimous. This Court, faced with an unsettled state law question, must anticipate how the Illinois Supreme Court would resolve the conflict. Eckenrode v. Life of America Insurance Co., 470 F.2d 1, 3 (7th Cir.1972); Strader v. Union Hall, 486 F.Supp. 159, 161 (N.D.Ill.1980). Also, it is recognized that when “a higher federal court has expounded the law of the state on a particular point, a lower court will follow that decision in the absence of an authoritative state decision.” 1A P12 Moore’s Federal Practice Section 0.309[2] at 3124 n. 23.

It is arguable that this Court is bound by the Seventh Circuit’s determination in Eckenrode that “insurance contracts are subject to the same implied conditions of good faith and fair dealing as are other contracts.” Id. 470 F.2d at 5. In the Court’s opinion, it is not so bound. As the Court in Strader recognized, the Eckenrode decision,

addressed the issue of recovery for intentional infliction of emotional harm under Illinois law. It was in that context that the court found an implied duty of good faith and fair dealing; nowhere in the opinion is it suggested that breach of the duty would give rise to a separate tort action in which punitive damages would be available. Thus, the Court does not consider Eckenrode controlling on this issue.

Strader, supra, 486 F.Supp. at 162-63 n. 5. Since no higher federal court interpretation of this issue is available, the Court must anticipate how the Illinois Supreme Court would rule.

The Court believes the Illinois Supreme Court would not recognize an independent tort action for breach of the duty of good faith and fair dealing. Illinois already has a statutory provision that allows the Court to tax as costs reasonable attorneys fees and other amounts when it finds the insurance company’s failure to settle or delay in settling is “vexatious and unreasonable.” Ill.Rev.Stat. ch. 73, Section 767. The Court agrees with the better reasoned lower state court decisions, which hold that it would be inappropriate for the judiciary to supplement this statutory scheme.

In Ledingham v. Blue Cross Plan for Hospital Care, 29 Ill.App.3d 339, 330 N.E.2d 540 (5th Dist.1975), the Fifth District found for the first time that the insurer-insured relationship gives rise to an implied duty of good faith and fair dealing, the breach of which creates both contract and tort liability. Presumably, this is the case upon which plaintiffs rely for their Count III. See also Robertson v. Travelers Insurance Company, 100 Ill.App.3d 845, 56 Ill.Dec. 222, 427 N.E.2d 302 (5th Dist.1981). That ruling has been vigorously attacked by other districts.

The Court in Debolt v. Mutual of Omaha, 56 Ill.App.3d 111, 13 Ill.Dec. 656, 371 N.E.2d 373 (3rd Dist.1978), affirmed the dismissal of the plaintiffs count requesting punitive damages for the breach of the duty of good faith and fair dealing. In so ruling, the Court reasoned that the Illinois legislature created the remedy for an insured who encounters an unreasonable and vexatious insurance company. Ill.Rev. Stat. ch. 73, Section 767. Consequently, the Court stated that “[wjhere the legislature has provided a remedy on a subject matter we are not only loath but in addition harbor serious doubts as to the desirability and wisdom of implementing or expanding the legislative remedy by judicial decree.” Debolt, supra, 371 N.E.2d at 377. The Court relied on two Illinois Supreme Court cases finding that a legislatively fashioned remedy could not be supplemented or altered by judicial fiat. Cunningham v. Brown, 22 Ill.2d 23, 174 N.E.2d 153 (1961) (Common law theory against tavern owners was not recognized because the Illinois Dram Shop Act provided the sole remedy); Hall v. Gillins, 13 Ill.2d 26, 147 N.E.2d 352 (1958) (The $25,000 limitation of recovery in a wrongful death action is not unconstitutional because of the right of recovery itself was created by the legislature in the first instance).

In addition, the Debolt Court recognized flaws in the reasoning used in Ledingham. First, the reliance in Ledingham on Nevin v. Pullman Palace Car Co., 106 Ill. 222 (1883) was misplaced. In Nevin, the plaintiff and his family was denied use of a berth in a sleeping car without justification. The Supreme Court allowed a tort remedy against the defendant as a supplement to the contractual remedy. The Debolt Court was not persuaded that the Nev-in decision supported the fashioning of a tort against an insurance carrier who refuses to pay policy benefits. In Nevin, the contractual remedy would be the price of the train tickets; against the insurance company, the contractual remedy would be the amount expected under the terms of the policy. The factors warranting a supplemental remedy in Nevin simply are not present in the context of an unreasonable or vexatious insurance company. Debolt, supra, 371 N.E.2d at 376-77.

Second, the Ledingham decision improperly relied upon several California cases as authority for an award of punitive damages for a breach of good faith and fair dealing on the part of an insurer. California has no provision comparable with Ill.Rev.Stat. ch. 73, Section 767. “It could well be argued that the rationale the California courts is that absent a statutory remedy punitive damages will be allowed to an aggrieved party who has been mistreated by an insurer.” Debolt, supra, 371 N.E.2d at 378.

Finally, the reasoning in Ledingham is particularly suspect because it fails to acknowledge the existence of Ill.Rev.Stat. ch. 73 Section 767, a statute specifically tailored to remedy unreasonable and vexatious conduct. This Court agrees with Debolt that Section 767 “is highly significant in that it provides a remedy for an insured and thereby attempts to keep him harmless resulting from misconduct of his insurer. It may well be that the statutory remedy should provide greater relief but we hold that to be a matter for legislative determination.” Debolt, supra, 371 N.E.2d at 378.

Other districts have joined in the criticism of Ledingham. Hoffman v. Allstate Insurance Company, 85 Ill.App.3d 631, 40 Ill.Dec. 925, 407 N.E.2d 156 (2d Dist.1980); Tobolt v. Allstate Insurance Co., 75 Ill. App.3d 37, 30 Ill.Dec. 824, 393 N.E.2d 1171 (1st Dist.1979); Urfer v. Country Mutual Insurance Co., 60 Ill.App.3d 469, 17 Ill.Dec. 744, 376 N.E.2d 1073 (4th Dist.1978) (concurring opinion). The only difficulty is in determining the scope of preemptive impact of Section 767.

Citing Tobolt, Urfer, and Debolt, the Court in Hoffman found that Section 767 indeed preempted recovery of punitive damages for unreasonable and vexatious conduct by an insurer. However, the Court found that the statute “on its face, does not preempt a plaintiffs right to claim compensatory damages for a breach of good faith and fair dealing.” Hoffman, supra, 407 N.E.2d at 159. However, the reasoning behind the Tobolt and Debolt decisions and the concurrence in Urfer is that Section 767 preempts an independent tort altogether, regardless of whether punitive and compensatory damages are demanded. In fact, the Tobolt Court applied the preemption analysis and dismissed a count demanding punitive and compensatory damages. The rationale behind the To-bolt, Debolt, and Urfer is that Section 767 preempts the judicial fashioning of an independent tort action for breach of the duty of good faith and fair dealing. Allowing compensatory but not punitive damages is inconsistent with this rationale. The Court agrees with the statement in Hamilton v. Safeway Insurance Company, 104 Ill.App.3d 353, 60 Ill.Dec. 97, 432 N.E.2d 996, 999 (1st Dist.1982) that by “enacting section [767] the legislature preempted the field of remedies available to an insured who has difficulty with an unreasonable and vexatious insurance company.”

Finally, this Court’s conclusion that Section 767 preempts plaintiff’s theory in Count III is supported by the decision in Strader v. Union Hall, Inc., 486 F.Supp. 159 (N.D.Ill.1980). Weighing the Ledingham, Tobolt, and Debolt decisions, the Court found preemption of an independent tort action and stated: “[T]he Court does not believe the Illinois Supreme Court would recognize an independent tort action for breach of the duty of good faith and fair dealing.” Strader, supra, 486 F.Supp. at 162. The Court agrees.

Accordingly, defendant’s Motion to Dismiss or in the Alternative Strike Count III is hereby GRANTED. Count III is hereby DISMISSED.

IT IS SO ORDERED.


author: DEVINE, Chief Judge.

text:
    Margaret DUSO, on behalf of herself and all others similarly situated v. John J. RATOFF, in his official capacity as Commissioner of the New Hampshire Department of Employment Security.
    Civ. No. 83-221-D.
    United States District Court, D. New Hampshire.
    Dec. 28, 1983.

      New Hampshire Legal Assistance by Michael A. Fuerst, Claremont, N.H., New Hampshire Legal Assistance by Mitchell Simon, Concord, N.H., for plaintiffs.
    Daniel J. Mullen, Concord, N.H., for defendant.
   OPINION AND ORDER

DEVINE, Chief Judge.

Plaintiff class seeks relief from the statutory offset provisions of New Hampshire and federal law which effectively reduce unemployment benefits of those who receive Social Security benefits. Plaintiff founds jurisdiction upon 28 U.S.C. §§ 1331 and 1343(3), as authorized by 42 U.S.C. § 1983. The matter is now before the Court on cross motions for summary judgment.

The statutory offset provisions of N.H. RSA 282-A:28 and 26 U.S.C. § 3304(a)(15) affected plaintiff Margaret Duso. Duso retired in 1973 and began receiving Social Security benefits, but returned to work at another company in 1978. In 1983 she was laid off and applied for unemployment benefits, but she was denied these benefits because her Social Security income exceeded the benefit amount. Stipulation of Fact, § 4. Plaintiff contends that Social Security benefits were attributable to her first employer and may not be offset against unemployment insurance benefits attributable to her second employer. Defendant argues that N.H. RSA 282-A:28 correctly construes 26 U.S.C. § 3304(a)(15) and allows defendant to offset benefits. Hence, the specific issue presently before the Court is whether Social Security benefits attributable to services performed for a nonbase period employer, infra, p. 5, may be offset against unemployment insurance benefits attributable to a base period employer, id.

Plaintiff challenges N.H. RSA 282-A:28, which states:

Retirement Pay. The maximum weekly benefit amount of any individual who is receiving a government or other pension, retirement or retired pay, annuity, or any similar periodic payment based on previous work shall be reduced by an amount equal to such pension, retirement or retired pay, annuity or other payment which the commissioner finds can be reasonably said to apply to such week.

The statute has been amended by H.B. 743-FN 1, which states:

Retirement Pay. The maximum weekly benefit amount of any individual who is receiving a government or other pension, retirement or retired pay, annuity, or any similar periodic payment based on previous work shall only be reduced by an amount equal to such pension, retirement or retired pay, annuity or other payment which the commissioner finds can be reasonably said to apply to such week if both the unemployment compensation pay and the pension, retirement or retired pay, annuity or similar periodic payment are based on the same period of employment. If an individual is receiving a government, military or other pension, retirement or retired pay, an annuity or a similar periodic payment for one period of employment but has worked long enough in a different period of employment to have qualified under 282-A:25, I and II and other sections of this chapter to be eligible for unemployment compensation benefits for such different period of employment, such an individual’s maximum weekly benefit amount for the most recent period of employment for which he is filing for unemployment compensation benefits shall not be reduced in any way by the amount of the pension, retirement or retired pay, annuity or similar periodic payment based on the period of employment for which he is not currently filing for unemployment compensation benefits.

The amendment became effective January 1, 1983. This challenge, therefore, concerns the validity of the offset provision prior to January 1, 1983.

The Federal Unemployment Tax Act (“FUTA"), 26 U.S.C. §§ 3301, et seq., upon which this matter rests, is the framework for the nation’s federal-state unemployment compensation scheme. See generally State of New Hampshire Department of Employment Security v. Marshall, 616 F.2d 240 (1st Cir.1980). Participating states, such as New Hampshire, must abide by minimum federal criteria and meet with approval of the Secretary of Labor. 26 U.S.C. § 3304. See Cabais v. Egger, 690 F.2d 234, 240 (D.C.Cir.1982); Watkins v. Cantrell, 568 F.Supp. 1225, 1228 (E.D.Va.1983); McKay v. Horn, 529 F.Supp. 847, 850 n. 4, 851 n. 5 (D.N.J.1981). FUTA sets forth those criteria.

Title 26 United States Code § 3304(a)(15) of FUTA is the linchpin statute. As originally enacted, § 3304(a)(15) required an offset of unemployment compensation for all pension and Social Security benefits. Section 3304(a)(15) stated:

the amount of compensation payable to an individual for any week which begins after March 31, 1980, and which begins in a period with respect to which such individual is receiving a governmental or other pension, retirement or retired pay, annuity, or any other similar periodic payment which is based on the previous work of such individual shall be reduced (but not below zero) by an amount equal to the amount of such pension, retirement or retired pay, annuity, or other payment, which is reasonably attributable to such week____

The 1980 amendments ameliorated this effect by providing that only pensions that the base period employer maintained or contributed to would offset unemployment benefits. The current amended statute states:

the amount of compensation payable to an individual for any week which begins after March 31, 1980, and which begins in a period with respect to which such individual is receiving a governmental or other pension, retirement or retired pay, annuity, or any other similar periodic payment which is based on the previous work of such individual shall be reduced (but not below zero) by an amount equal to the amount of such pension, retirement or retired pay, annuity, or other payment, which is reasonably attributable to such week except that—
(A) the requirements of this paragraph shall apply to any pension, retirement or retired pay, annuity, or other similar periodic payment only if—
(i) such pension, retirement or retired pay, annuity, or similar payment is under a plan maintained (or contributed to) by a base period employer or chargeable employer (as determined under applicable law), and
(ii) in the case of such a payment not made under the Social Security Act or the Railroad Retirement Act of 1974 (or the corresponding provisions of pri- or law), services performed for such employer by the individual after the beginning of the base period (or remuneration for services) affect eligibility for, or increase the amount of, such pension, retirement or retired pay, annuity, or similar payment, and
(B) the State law may provide for limitations on the amount of any such a reduction to take into account contributions made by the individual for the pension, retirement or retired pay, annuity, or other similar periodic payment____

The “base period” is the period of employment during which eligibility for unemployment insurance benefits is accrued. A “base period” employer is an employer who paid wages on which the unemployment insurance eligibility of the claimant and the amount and duration of unemployment benefits is based. Rivera v. Patino, 543 F.Supp. 1160, 1165 n. 5 (N.D.Cal.1982), rev’d sub nom., Rivera v. Becerra, 714 F.2d 887 (9th Cir.1983). There is no argument with 26 U.S.C. § 3304(a)(15)(A)(i) and (ii) insofar as it provides that private pensions will be an offset only if the base period employer maintained or contributed to the pension plan, and the base period employment affected eligibility for or increased the amount of such pension. See Rivera v. Becerra, supra, 714 F.2d at 893-94.

The matter before the Court largely is summarized as follows:

The dispute over the proper interpretation of section 3304(a)(15)(A)(i) arises out of a conflict between a portion of the legislative history and the language of the statute.
Section 3304(a)(15)(A)(ii) says that if a base period employer contributes to social security, then the unemployment benefits must be offset by the social security benefits. The statutory language does not permit another interpretation. The offset applies under section 3304(a)(15)(A)(i) if the base period employer “contributed” to the “plan” from which the pension benefits are derived. Unlike section 3304(a)(15)(A)(ii), which does not apply to social security benefits, section 3304(a)(15)(A)(i) does not say the offset will not apply if the base period contributions did not affect eligibility for or the amount of the pension benefits.
The argument for not requiring an offset in these circumstances is based almost entirely on a statement by Senator Bradley. The language in section 3304(a)(15)(A)(i) was taken from an earlier bill and included as part of an amendment offered by Senator Bradley. The Senator offered several examples of how his amendment would work. The crucial example is as follows:
[A]n individual at company A retires and begins to collect social security. For whatever reason, this person then goes to work for company B and, after 6 months there, is terminated. Assuming the individual is eligible for unemployment insurance because of the work done at company B, the level of unemployment insurance compensation will not be reduced at all. This is because the base period employer is not the same as the social security employer. The offset would apply, however, if the individual had returned to work for company A instead of working for company B. Under those circumstances, the base period employer and the social security employer would be the same.
126 Cong.Rec. S12901 (daily ed. September 18, 1980) (remarks of Senator Bradley).
* * * * * *
Each side cites to a number of other portions of the legislative history to support its interpretation. Each of these other citations, however, is ambiguous and can be explained away as either referring to the private pensions or as referring to a different section of the law.

Rivera v. Becerra, supra, 714 F.2d at 892-93 (emphasis in original).

Plaintiff zealously argues the importance of the legislative history of the

1980 amendment of 26 U.S.C. § 3304(a)(15). Plaintiff argues that the statements of Senator Bradley, a co-author of the 1980 amendment, are entitled to great weight. National Woodwork Manufacturers Association v. NLRB, 386 U.S. 612, 640, 87 S.Ct. 1250, 1266, 18 L.Ed.2d 357 (1967). “It is the sponsors that we look to when the meaning of the statutory words is in doubt.” Id. But when confronted with a statute which is plain and unambiguous on its face, the Court ordinarily does not look to legislative history as a guide to its meaning. Ex parte Collett, 337 U.S. 55, 61, 69 S.Ct. 944, 947, 93 L.Ed. 1207 (1949). Where a statute’s scope is narrow, its language precise, and its application foresee-ably mechanical, it will take a showing of “rare and exceptional circumstances” to convince the Court that the statute should not be applied as written. Ciampa v. Secretary of Health and Human Services, 687 F.2d 518, 524 (1st Cir.1982). The statutory language of section 3304(a)(15) was part of an attempt by Congress to ameliorate the harsh effects of earlier legislation, and the line drawn by the statute is neither so unreasonable nor at variance with the policy of the legislation as to justify disregarding the clear meaning of the statute’s words. Rivera v. Becarra, supra, 714 F.2d at 893.

Title 26 United States Code § 3304(a)(15)(A)(i) says and means that Social Security benefits offset unemployment benefits if the base period employer makes Social Security contributions. Id. In construing federal law this way, the Court finds that defendant did not violate federal law and hence removes the linchpin holding together plaintiff’s theories of recovery. Watkins v. Cantrell, supra, 568 F.Supp. at 1228.

Accordingly, plaintiff’s motion for summary judgment is denied, and defendant’s motion for summary judgment is granted. The parties shall notify the Court within thirty (30) days if there are to be any further proceedings in this case.

SO ORDERED.


author: SENTER, Chief Judge.

text:
    RICHARD GOETTLE, INC., Plaintiff, v. TENNESSEE VALLEY AUTHORITY, Defendant.
    No. EC82-387-LS-P.
    United States District Court, N.D. Mississippi, E.D.
    Feb. 28, 1984.

      James A. Clark, Schiff, Hardin & Waite, Chicago, Ill., Thomas D. Murry, Mitchell, McNutt, Bush, Lagrone & Sams, Tupelo, Miss., for plaintiff.
    Herbert S. Sanger, Jr., Gen. Counsel, James E. Fox, Associate Gen. Counsel, Thomas C. Doolan, Donna L. Pierce, Tennessee Valley Authority, Knoxville, Tenn., for defendant.
   MEMORANDUM OPINION

SENTER, Chief Judge.

This cause comes on for hearing on cross motions for partial summary judgment. Having read the memoranda submitted by the parties, together with the exhibits, and being otherwise fully advised in the premises, the court is now in a position to address the issues raised by these motions.

This action was filed by Richard Goettle, Inc. (hereinafter Goettle) against the Tennessee Valley Authority (hereinafter TVA) under Section 10(a)(2) of the Contract Disputes Act of 1978, 41 U.S.C. § 609(a)(2). Counts I, II, and III of the complaint seek additional compensation for excavation work performed under a written construction contract between Goettle and TVA.

The undisputed facts, as shown by the pleadings and the contract, establish the following:

On September 25, 1979, TVA issued an invitation for bids (IFB), including a complete bidding package, for the construction of reinforced concrete drilled pier foundations for the cooling towers at TVA’s Yellow Creek nuclear plant project near Iuka, Mississippi. The bidding package consisted of an invitation, bid, and acceptance. All documents as returned by the successful bidder together constituted the contract between the bidder and TVA.

At the time the invitation was issued, TVA had not determined the specific size of the piers which would be used for the cooling tower foundation. As a result, TVA required bidders to submit “unit prices” for various diameters of excavation in three different subsurface materials for each of the three possible sizes of piers that could be used for the cooling tower foundation. Goettle submitted unit prices for soil and chert excavation in 66, 72, and 78 inch diameters. It submitted unit prices for rock excavation in diameters of 60, 66, and 72 inches. The unit prices submitted for each category were to be “a total excavated price per linear foot of pier foundation.”

It was TVA’s prerogative under the contract to select the size of the piers which would support the outside perimeter of the cooling towers. The contract required the contractor to “[pjrovide for the construction of veil support pier foundations” and “to furnish all labor, tools, equipment, forms, and materials ... for the construction of pier foundations to support the cooling tower veil on sound bearing rock.”

Specification 4218 of the contract contained detailed information about the pier foundations which Goettle was to construct. Paragraph 7.3 of the specifications stated that the pier shaft dimensions could not be less than those shown on the TVA drawings. It also stated that the maximum shaft diameter could not exceed the specified shaft diameter by more than five percent except where temporary casing was installed. Paragraph 7.3 also provided that if such casing was installed, the shaft diameter could be six inches larger than the diameter specified in the drawings.

The contract imposed upon the contractor the responsibility for keeping ground water from entering the shafts in order to permit placement of the concrete piers. Paragraph 7.1.2 of the specifications stated that, where necessary, “[t]he shaft walls ... shall be protected against caving in or sloughing, and ground water shall be prevented from entering the shaft through the walls by installing temporary steel casing.” Additionally, paragraph 7.4.2 of the specifications provided that temporary steel casing could be used to seal off ground water, but that these casings were not to extend into the rock socket except under special circumstances when the seal at the top of the rock proved to be ineffective.

The contract identified by TVA as No. 80K54826533 was awarded to Goettle as the low bidder on February 1, 1980. On February 20, 1980, TVA sent a letter to Goettle which transmitted a revised drawing showing that TVA had selected the pier size, specified in the first column on the Pier Foundations Itemization Sheet, having a diameter of 66 inches through soil and chert and 60 inches through rock.

The subsurface reports that were contained in TVA’s Invitation for Bids on the veil pier foundations suggested no more than two to four feet of weathered rock. Paragraph 4.3.1 of the specifications expressly stated that the subsurface information provided by TVA “is not guaranteed by TVA to represent all conditions that will be encountered in constructing drilled pier foundations at the site.” During construction, it became apparent that TVA’s subsurface reports were not accurate in that large quantities of weathered rock were encountered. TVA rejected the weathered rock as unacceptable to serve as the rock socket for the foundations. Accordingly, Goettle excavated through the weathered rock until solid rock suitable for the 60 inch rock socket was reached. Goettle then inserted casing through the weathered rock to (1) prevent ground water from entering the shaft, (2) to prevent caving in or sloughing, and (3) to provide a safe environment for inspection of the rock socket. Since the rock socket was to be 60 inches in diameter without casing, it was necessary to use a larger diameter casing above the socket. Thus, Goettle excavated a 66 inch cased shaft through the weathered rock to enable it to place the 60 inch diameter socket into the solid rock.

Goettle was paid by TVA for all excavation at the unit price submitted for 60 inch diameter piers.- Goettle contends, however, that it should have been compensated at the unit price submitted for rock excavation for a pier having an actual diameter of 66 inches.

I. Count I — Plaintiffs Claim Under the Contract.

In Count I of the complaint, Goettle claims that the contract provides for the payment of the unit price for rock excavation for a diameter of 66 inches and specifies that the contractor will be paid at the quoted unit price for its actual excavation. When weathered rock was encountered, TVA required that it be excavated and TVA’s specifications necessitated that the excavation be 66 inches in diameter. Thus, according to Goettle, it must be paid the contractual price for its actual excavation at the unit price for rock excavation for a diameter of 66 inches as provided in the contract. Alternatively, Goettle asserts that the unanticipated rock presented a differing site condition for which Goettle is entitled to an “equitable adjustment in the price.” The most equitable price, according to Goettle, is that specified in the contract for the 66 inch diameter excavation.

TVA asserts that it selected the 60 inch diameter excavation and that this alternative comprehended an additional six inch diameter excavation if such excavation was needed for dewatering and for the use of temporary casing. Inasmuch as the contract required Goettle to construct a pier with a 60 inch diameter in rock, the unit price specified in the contract for excavation for that size pier is controlling. The court finds TVA’s argument persuasive.

It is well established that “[wjhere one agrees to do, for a fixed sum, a thing possible to be performed, he will not ... become entitled to additional compensation, because unforeseen difficulties are encountered.” United States v. Spearin, 248 U.S. 132, 136, 39 S.Ct. 59, 61, 63 L.Ed.2d 166 (1918). In the action sub judice, although the bid submitted by Goettle included unit prices for excavation for each of the three different sizes of piers, the contract specified that only one of the three sizes would be designated by TVA for actual construction. Once the selection was made by TVA, the prices submitted for the other sizes obviously had no applicability. The unit prices submitted by Goettle and accepted by TVA for excavation through soil, chert, and rock for the selected pier size constituted a “total excavated price per linear foot of pier foundation” and included all excavation work necessary to construct a pier that size. Compensation for excavation to construct that pier size, contrary to Goettle’s argument, was not to be determined by the diameter of the shaft which was excavated in order to construct a pier of the required size.

Goettle was required under the contract to take whatever steps necessary to assure that the concrete piers were constructed in accordance with all contract specifications, including the installation of temporary casings and related excavation where necessary. The contract contemplated that in constructing a pier with a diameter of 66 inches in soil and chert and 60 inches in rock, plaintiff, if necessary, would have to excavate a shaft up to six inches greater in diameter to install temporary casing. Thus, the possibility of a need for “overexcavation” was contemplated by the contract and anticipated by the parties to the contract. Goettle has been fully paid according to the bid and accepted unit price for all excavation required for the pier size selected and actually constructed. It is not entitled to any increased compensation. TVA did nothing more than require Goettle to do the work provided for under the contract in conformity with the contract specifications. See United States v. Spearin, supra, ITT Artic Servs., Inc. v. United States, 207 Ct.Cl. 743, 524 F.2d 680 (1975); T.A. Loving & Co. v. United States, 132 Ct.Cl. 378, 132 F.Supp. 250, cert. denied 350 U.S. 884, 76 S.Ct. 136, 100 S.Ct. 779 (1955). “It would be a novel doctrine indeed to allow a contractor an adjustment ... for the reason that he was compelled to live up to his contract commitments.” Olin Mathieson Chemical Corp. v. United States, 179 Ct.Cl. 368, 407 (1967).

Additionally, with regard to Goettle’s argument that the weathered rock encountered during construction constituted a differing site condition, TVA has never contended that Goettle must bear the cost of excavation through the unanticipated weathered rock. In fact, TVA has paid Goettle, at the linear foot unit price for 60 inch rock excavation, for all of the excavation actually performed by Goettle.

Additionally, although it is conceded that the weathered rock actually present on the site differed considerably from that shown by the data provided to Goettle by TVA, Paragraph 4.3.1 of the specifications expressly stated that the subsurface information provided by TVA was “not guaranteed by TVA to represent all conditions that will be encountered in constructing the drilled pier foundations at the site.” TVA fully disclosed all the information it had in regard to the site conditions in the subsurface investigation reports and had no further obligation with respect to such conditions. The reports given by TVA to Goettle noted the presence of weathered rock, although in smaller quantities than that actually encountered, and thus put the contractor on notice of the presence of such materials. The presence of such rock was thus not unanticipated. Accordingly, TVA is entitled to summary judgment as to this issue.

II. Counts II and III — Plaintiffs Claims Based On “Unjust Enrichment and Quantum Meruit. ”

A claim based on unjust enrichment is one for recovery based on a quasi — or implied-in-law contract. See, e.g., Bloomgarden v. Coyer, 479 F.2d 201, 210 (D.C.Cir.1973); City of Chattanooga v. Louisville & N.R.R., 298 F.Supp. 1, 9 (E.D.Tenn.1969), aff'd 427 F.2d 1154 (6th Cir.), cert. denied, 400 U.S. 903, 91 S.Ct. 141, 27 L.Ed.2d 140 (1970); Herrmann v. Gleason, 126 F.2d 936, 940 (6th Cir.1942). It is well established that no quasi — or implied-in-law contract can come into existence with respect to a given subject matter where there exists an express contract with respect to that subject matter. See, e.g., United States Steel Corp. v. United States, 210 Ct.Cl. 228, 536 F.2d 921, 928 (1976). It is equally well settled that the existence of an express contract precludes the implication of a contract in regard to the same subject matter. In such a situation, the terms of the express contract are controlling. See, e.g., National Trailer Convey, Inc., v. United States, 170 Ct.Cl. 823, 345 F.2d 573, 576 (1965); United States v. Ahearn, 231 F.2d 353, 356 (1955); Schwob v. International Water Corp., 136 F.Supp. 310, 314 (D.Del.1955).

In the action sub judice, the express contract clearly controls the rights of the parties to this litigation. As a result, Goettle cannot recover additional compensation under a claim based upon unjust enrichment or quantum meruit. Accordingly, TVA is entitled to summary judgment in regard to Counts II and III of the complaint.

An order in conformity with this opinion shall issue.

      . These subsurface materials were soil, chert, and rock.

      . Contract, Pier Foundations Itemization Sheet.


author: ROBERT H. HALL, District Judge.

text:
    Stephen CAPPS, Plaintiff, v. SOUTHEAST PACKAGING CORPORATION, Defendant.
    Civ. A. No. C83-1168A.
    United States District Court, N.D. Georgia, Atlanta Division.
    June 12, 1984.

      Daniel S. Bowling, III, Smith, Currie & Hancock, Atlanta, Ga., for plaintiff.
    Virginia B. Garrett, Douglasville, Ga., for defendant.
   ORDER

ROBERT H. HALL, District Judge.

This action for alleged employment discrimination is presently before the court on defendant’s motion for summary judgment. Plaintiff brought suit under 42 U.S.C. § 1981, thereby invoking this court’s jurisdiction. For the reasons stated herein, the court GRANTS defendant’s motion.

FACTS

Plaintiff, a white male, alleges that he has been the victim of reverse racial discrimination. According to plaintiff, Vilma Bradshaw, a black supervisor employed by defendant cursed at plaintiff for failing to fix a fan. Plaintiff admits that he responded with cursing and that he never fixed the fan. Plaintiff contends that the black supervisor received no discipline but that he was fired. Defendant has now moved for summary judgment contending that plaintiff was discharged solely for his insubordination and that race was not a factor. Further facts will be disclosed as necessary for the discussion of this motion.

DISCUSSION

The law establishing the various burdens of proof borne by the parties to a so-called “disparate treatment” action such as the one at bar was set forth by the United States Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Although McDonnell Douglas involved a suit under Title VII, the standards enunciated in that case are applicable to actions brought under 42 U.S.C. § 1981. Crawford v. Western Elec. Co. Inc., 614 F.2d 1300 (5th Cir. 1980).

In McDonnell Douglas the Supreme Court held that the plaintiff bears the initial burden of establishing a prima facie case of discrimination. Id., 411 U.S. at 802, 93 S.Ct. at 1824. If plaintiff establishes this prima facie case, the burden shifts to the employer to articulate a legitimate, non-discriminatory reason for its actions. Id. Once the employer has articulated such a reason, the burden then shifts to plaintiff to demonstrate that the reason proffered is a pretext for discrimination. Id. at 804, 93 S.Ct. at 1825. The ultimate burden of persuasion remains with plaintiff throughout these various shifts in the burden of going forward. These principles have been reiterated by the Court in Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981); Board of Trustees v. Sweeney, 439 U.S. 24, 99 S.Ct. 295, 58 L.Ed.2d 216 (1978); and Furnco Constr. Corp. v. Waters, 438 U.S. 567, 98 S.Ct. 2943, 57 L.Ed.2d 957 (1978).

Defendant argues that in the instant case plaintiff cannot sustain the necessary burdens as set out in the above-cited cases. In deciding the case this court will consider each step in the three part analysis separately.

A. Plaintiffs Prima Facie Case

In addition to clarifying the allocation of the burden of proof in an employment discrimination ease, McDonnell Douglas set forth a formula for establishing a prima facie case. This formula is not an absolute, however, and has been altered to fit the facts of particular cases. With respect to cases involving discharge for violation of work rules, the plaintiff must establish that he was a member of a protected group and then make a showing of some evidence to demonstrate either that he did not violate the rule or that, if he did, black employees who engaged in similar acts were not punished similarly. Brown v. A. J. Gerrard Mfg. Co., 643 F.2d 273 (5th Cir.1981); Harris v. Plastics Mfg. Co., 617 F.2d 438 (5th Cir.1980).

In the present case plaintiff has simply failed to introduce any evidence which would lead to any inference of racial discrimination. In plaintiffs deposition (introduced by defendant as an attachment to its motion for summary judgment) he admits that he cussed at Ms. Bradshaw (Plaintiff’s Depo., p. 22), and that he was informed by the company vice-president, Tom Van Sant, that cursing a supervisor constituted insubordination under the company policies and warranted his termination. (Plaintiff’s Depo., p. 19-24). In fact, in his deposition plaintiff alleges that the company discriminates against blacks (Plaintiff’s Depo., p. 15-16).

Indeed, plaintiff contends that his termination was prompted by an alleged personality conflict with Mr. Van Sant, who the court notes is a white male:

A: ... Tom wanted to give me the ax and get me out of there____ (Plaintiff’s Depo., p. 23).
Q: It (the termination) was really due to an unsatisfactory working relationship with the vice-president, Tom Van Sant?

A: Yes sir. It was obvious he didn’t like me, even at the unemployment hearing. (Plaintiff’s Depo., pp. 37, 38).

Mr. Van Sant, when deposed in this matter, stated unequivocally that race was not a factor in plaintiff’s discharge. (Van Sant Depo., p. 22). This evidence is uncontroverted by plaintiff. According to plaintiff, Mr. Van Sant was “out to get” plaintiff and plaintiff “wondered” in his deposition “if they didn’t set Vilma (Ms. Bradshaw) up to cuss me to see if I’d cuss her back to get fired." (Plaintiff’s Depo., p. 36). Whether a white male did in fact set plaintiff up to be fired is not an issue in this case. However unfair that may have been, it does not, and cannot, constitute racial discrimination.

Moreover, plaintiff has failed to introduce any evidence that black employees have received favorable treatment under similar situations. Brown, supra. Nowhere has he offered evidence that in the past management officials have had knowledge that a black hourly employee cursed a supervisor and refused to perform a work assignment, but refused to terminate the employee. In fact, plaintiff admits that blacks have been fired for the same infraction.

Q: Black people, do they get in trouble for cussing supervisors?

A: Yes, sir.

Q: Do you know of any examples where a Black person would have gotten fired for cussing a supervisor?

A: Yes sir. (Plaintiff’s Depo., p. 40). In addition, defendant has introduced the affidavit of Plant Manager Harold Self. He states unequivocally that no black employee has been allowed to commit actions such as those of the plaintiff and avoid termination.

In light of plaintiff’s own testimony and the uncontroverted evidence of defendant’s witnesses, the court holds that plaintiff has failed to make out a prima facie case of racial discrimination. Plaintiffs grievance seems to be that he was treated unfairly, that he was justified in cursing at his supervisor, that discharge was too harsh a remedy under the circumstances, and that his discharge was prompted more by Mr. Van Sant’s alleged personal dislike for him than by the incident in question. Assuming the truth of all of these allegations there is still no evidence that plaintiff has been the victim of racial discrimination in violation of § 1981.

B. Defendant’s Reason and Pretext

Even if the court could find that plaintiff had established a prima facie case of racial discrimination, defendant’s motion for summary judgment would not necessarily be defeated. Defendant has certainly articulated a legitimate, non-discriminatory reason for the termination. According to defendant the sole reason for the plaintiff’s termination was the fact that plaintiff admittedly cursed his supervisor. At this point plaintiff would have the opportunity to prove that this reason was merely a pretext for racial discrimination. McDonnell Douglas, 411 U.S. at 804, 93 S.Ct. at 1825. It is uncontradicted that the plaintiff did commit the actions for which the defendant states it terminated him and that those actions did constitute grounds for his discharge. Plaintiff has simply failed to introduce any evidence to suggest that the proferred reason is pretextual.

CONCLUSION

The plaintiff in this case has failed to allege a prima facie case of racial discrimination. Even if such had been alleged, however, defendant’s motion for summary judgment would be granted because plaintiff failed to introduce any evidence that the reason given by defendant for plaintiff’s termination was a pretext for discrimination. As stated by the Eleventh Circuit:

(T)he plaintiff, when faced with a motion for summary judgment, cannot rely on attenuated possibilities that (the finder of fact) would infer a discriminatory motive, but rather must come forward with sufficient evidence to establish a prima facie case and respond sufficiently to any rebuttal by the defendant to create a genuine issue of material fact.

Pace v. Southern Ry. System, 701 F.2d 1383, 1391 (11th Cir.1983). Plaintiff’s response to defendant’s motion for summary judgment was wholly inadequate, plaintiff presented no facts or arguments in support of its case and, therefore, the court can only conclude that none exist.

Defendant’s motion for summary judgment is GRANTED, thereby terminating this case.

      . In his response to defendant’s statement of Material Facts Not in Dispute plaintiff admits that he was a non-supervisory employee and that Ms. Bradshaw was a supervisor.

      . Fifth Circuit cases decided prior to October 1, 1981, have been adopted as binding precedent by the Eleventh Circuit. Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir.1981).

      . Plaintiff admits that the articulated reason for his discharge was the fact that “it’s company policy to terminate somebody's employment for cussing a supervisor.” (Plaintiff’s Depo., p. 27).

      . White people are protected from racial discrimination by 42 U.S.C. § 1981. McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 96 S.Ct. 2574, 49 L.Ed.2d 493 (1976).

      . Pace was an age discrimination case. However, the same standards of proof applicable in cases alleging age discrimination are applicable in § 1981 lawsuits. Williams v. General Motors Corp., 656 F.2d 120 (5th Cir.1981).


author: SHOOB, District Judge.

text:
    Melvin Arthur HILLER and Dawen, Inc., Plaintiffs, v. Michael J. MURPHY, District Director, IRS, et al., Defendants.
    Civ. A. No. C83-2657A.
    United States District Court, N.D. Georgia, Atlanta Division.
    July 5, 1984.

      James C. Watkins, Joe W. Gerstein, Doraville, Ga., for plaintiffs.
    Larry D. Thompson, U.S. Atty., Barbara V. Tinsley, Asst. U.S. Atty., Atlanta, Ga., Victoria J. Sherlock, Atty., Tax Div., Dept, of Justice, Washington, D.C., for defendants.
   ORDER

SHOOB, District Judge.

This is an action for injunctive relief seeking the return of materials seized from plaintiffs by agents of the Internal Revenue Service (“IRS”), the suppression of the materials from use in any future criminal proceeding, and a cessation of further investigations based on the seized materials. Defendants, all IRS officials, have moved for judgment on the pleadings.

Defendants first challenge the Court’s subject matter jurisdiction. Plaintiffs predicate jurisdiction on Fed.R.Crim.P. 41(e), 28 U.S.C. § 1346(a)(2), and the Court’s inherent equity powers. Section 1346(a)(2) of title 28 applies only to suits for money damages and is therefore inapplicable to this action seeking equitable relief. Hunsucker v. Phinney, 497 F.2d 29, 36 (5th Cir.1974) (on petition for rehearing).

However, whether premised on Fed.R.Crim.P. 41(e) or the Court’s general equity jurisdiction, this Court does have the power, grounded in its inherent supervisory authority over its officers, to order the suppression or return of unlawfully seized property prior to the initiation of any civil or criminal proceedings flowing from the seizure. Hunsucker, supra, 497 F.2d at 32. Exercise of this so-called “anomalous” jurisdiction, however, is governed by equitable principles. Id., 497 F.2d at 34. In determining whether jurisdiction is warranted in a particular case the Court should consider (1) whether the allegations of the complaint show a “callous disregard for ... constitutional rights,” id. (quoting Silbert v. United States, 275 F.Supp. 765, 767 (D.Md.1967)), (2) whether the plaintiff has an individual interest in and need for the material whose return he seeks; (3) whether the plaintiff would be irreparably injured by denial of the return of the property, and (4) whether the plaintiff has an adequate remedy at law for the redress of his grievance. Id., 497 F.2d at 34-35; see also Richey v. Smith, 515 F.2d 1239, 1243-44 (5th Cir.1975); Mason v. Pulliam, 402 F.Supp. 978, 980-81 (N.D.Ga.1975), aff'd, 557 F.2d 426 (5th Cir.1977).

Plaintiffs Melvin Hiller and Dawen, Inc., of which Mr. Hiller is president, allege in their complaint (1) that in November 1980 they engaged a broker to arrange the sale of either of two restaurants in the Atlanta area owned by plaintiffs; (2) that the broker arranged a meeting with two gentlemen identified as Jim Luke and Jack Fischer, who represented themselves as agents of a prospective purchaser from Florida; (3) that in reliance on their representations, plaintiffs made available to Messrs. Luke and Fischer the business records of one of plaintiffs’ restaurants with the express understanding that such information was confidential; (4) that Messrs. Luke and Fischer were, in fact, special agents of the Criminal Investigation Division of IRS; (5) that in June 1981, based on information garnered from plaintiffs’ records by Messrs. Luke and Fischer, the IRS obtained a search warrant from a United States Magistrate, searched the premises of plaintiffs’ restaurant, and seized certain business records; and (6) that in November 1982 the IRS informed plaintiffs they were under investigation for possible violations of the federal tax laws.

The first question the Court must consider in determining whether it should exercise its jurisdiction here is whether, as plaintiffs claim, the alleged actions of the IRS agents, if proven, would constitute a violation of plaintiffs’ fourth amendment right to be free from unreasonable searches and seizures. Plaintiffs rely on United States v. Tweel, 550 F.2d 297 (5th Cir.1977), in which the court held that records voluntarily supplied to the IRS by a taxpayer should have been suppressed in a subsequent criminal prosecution, because an IRS agent had obtained the taxpayer’s agreement to supply the records by misrepresenting to his accountant that the investigation was civil instead of criminal. Applying the “well established rule that a consent search is unreasonable under the Fourth Amendment if the consent was induced by the deceit, trickery or misrepresentation of the Internal Revenue agent,” 550 F.2d at 299 (citations omitted), the Tweel court found “that the agent’s failure to apprise the appellant of the obvious criminal nature of this investigation was a sneaky deliberate deception by the agent under the above standard and a flagrant disregard for appellant’s rights.” Id.

Defendants, on the other hand, rely on the Ninth Circuit’s recent decision in Jones v. Berry, 722 F.2d 443 (9th Cir.1983), where, on facts practically identical to those presented in the instant case, the court reversed the district court’s grant of a pre-indictment petition seeking return and future suppression of evidence seized by the IRS. The district court in Jones had relied principally on Tweel, supra, in issuing its order, see Jones v. Berry, 524 F.Supp. 645, 651 (D.Ariz.1981); however, the court of appeals distinguished Tweel on the grounds that

[t]here, IRS agents, known to the suspect to be IRS agents empowered to conduct civil audits, abused the voluntary civil tax reporting and investigation system by inducing the suspect to turn over records for a criminal investigation. Thus, they abused the powers of their positions. Here, by contrast, the IRS agents did not pretend to be civil agents, thereby implicitly invoking their powers as civil investigators, when in fact they intended to conduct a criminal investigation. Rather, the agents pretended to be fellow criminals in order to gain the Joneses’ confidence. Such deception is far different from that practiced in Tweel.

722 F.2d at 447 n. 5. Citing Hoffa v. United States, 385 U.S. 293, 302, 87 S.Ct. 408, 413, 17 L.Ed.2d 374 (1966), where the Court stated that the fourth amendment affords no protection to “a wrongdoer’s misplaced belief that a person to whom he voluntarily confides his wrongdoing will not reveal it,” the court concluded that the IRS agents’ activities did not constitute a search within the meaning of the fourth amendment:

[W]e believe that Hoffa and its progeny compel the conclusion that when, as here, undercover agents gain the confidence of one suspected of criminal activity, and the suspect later voluntarily reveals to the agents evidence of crimes, he or she can have no expectation of privacy in the information so revealed. [Citation omitted.] Government discovery of information or activities, as to which a defendant exhibits no expectation of privacy, is not a search within the meaning of the fourth amendment.

722 F.2d at 447-48.

This Court agrees with the Ninth Circuit’s reasoning and finds that Tweel, supra, is not applicable to the facts presented in the instant case. Accordingly, plaintiffs’ complaint fails to allege facts establishing a violation of plaintiffs’ fourth amendment rights. In the complete absence of any alleged constitutional violation, the Court deems it unnecessary to consider the other factors relevant to exercise of its jurisdiction over plaintiffs’ claims. Finding that plaintiffs have alleged no violation of their constitutional rights by the defendant officials, it clearly would be inappropriate for the Court to exercise its equitable jurisdiction to correct its officers’ abuses of power.

Accordingly, treating defendants’ motion for judgment on the pleadings as a motion to dismiss, the motion is GRANTED, and this action is hereby DISMISSED without prejudice.

      . The Court notes that the facts of the instant case do differ from Jones in one particular. The agents in Jones, posing as potential purchasers of the taxpayers’ business, expressly suggested that they were interested in a business that could generate substantial skimming and demanded to see records supporting the business’s purported skim, whereupon the taxpayer produced records that substantiated the skim. 722 F.2d at 445. Hence, the court of appeals characterized the agents’ deception in Jones as “pretend[ing] to be fellow criminals in order to gain the Joneses' confidence." Id. at 447 n. 5 (quoted in text supra). In the instant case, on the other hand, there is no indication that the undercover agents told plaintiffs they were interested in skimming profits from the business, or that plaintiffs specifically produced any records to show that skimming was possible. Thus, paraphrasing Jones, the agents’ deception in this case is more appropriately characterized as "pretending to be fellow businessmen in order to gain the taxpayers' confidence.” The Court, however, does not find this difference in the nature of the agents' deception in the two cases to be significant in evaluating the fourth amendment issue. That the taxpayers in the instant case believed the IRS agents to be legitimate businessmen, and not criminals, does not alter the essential fact that they voluntarily revealed to the agents records containing evidence of possible criminal activity and thereby exhibited no expectation of privacy as to such information.

      . In any event, given plaintiffs’ delay in filing suit of more than a year after first being notified of IRS’s criminal investigation and of more than two years after the allegedly unconstitutional searches and seizure took place, it would not appear that plaintiffs' need for the material whose return they seek is particularly pressing. This factor also would weigh against the exercise of jurisdiction, even though plaintiffs are admittedly threatened with potential irreparable harm in the form of a criminal indictment, and other legal remedies may be inadequate. See Richey, supra, 515 F.2d at 1243 n. 10 & 1244 n. 11.

      . This Court’s decision that exercise of its equitable or supervisory jurisdiction is not warranted in this case is not a final adjudication on the merits of plaintiffs’ claims, and the dismissal of plaintiffs’ action is accordingly without prejudice to adjudication of plaintiffs’ claims in an appropriate future proceeding. See Hunsucker, supra, 497 F.2d at 36.


author: LAUGHLIN E. WATERS, District Judge.

text:
    UNITED STATES of America, Plaintiff, v. ASSOCIATED CONVALESCENT ENTERPRISES, INC., Defendant.
    No. CV 83-430-LEW(Gx).
    United States District Court, C.D. California.
    July 18, 1984.
    Stephen A. Shefler, Asst. U.S. Atty., San Francisco, Cal., for plaintiff.
    Leo Branton, Jr., Los Angeles, Cal., Christine M. Frahm, San Diego, Cal., for defendant.
   ORDER FOR SANCTIONS

LAUGHLIN E. WATERS, District Judge.

This ease was transferred on motion of the defendant to this Court from the Northern District of California on December 17, 1982, and after numerous proceedings was set for trial to commence on April 3, 1984.

The Court finds that on February 21, 1984, only six weeks prior to the trial, this Court ordered, on motion of the defendant, the substitution of Leo Branton, Jr., Esq. in place of Robert C. McDaniel, Esq. as lead counsel for the defendant. Mr. McDaniel had earlier substituted in place of Nancy Powell, Esq. on August 2, 1983. Mr. McDaniel made no personal appearance in connection with any of the earlier proceedings before this Court, and all pleadings had been prepared and signed by Christine Frahm, Esq. Mr. Branton made several “courtesy” appearances on behalf of Mrs. Frahm but at no time informed the Court that he was not attorney of record.

Prior to the date of transfer, the record clearly indicated that the government contemplated calling Mr. Branton as a witness at trial, and Mr. Branton has never disputed that he was fully aware of this fact when he requested to be substituted in. This Court was not informed of the fact of his status as a potential witness at the time of substitution.

The Court further finds that on March 30, 1984, four days prior to trial and ten days after the time designated by Local Rule 9.11.2(b), the government filed its narrative statement of the testimony expected to be elicited from Mr. Branton at trial. Mr. Branton has urged that it was not until the filing of this narrative statement that he was made aware of the nature of the testimony sought by the government.

The Court further finds that on April 2, 1984, one day prior to trial, defendant filed a document denominated Motion to Prohibit Calling of Leo Branton, Jr. as Witness or Motion for Continuance in the Alternative. Defendant has referred to this motion in various ways at various times to suit its particular purpose. The defendant has variously characterized this document as 1) a motion to prohibit calling Mr. Branton as a witness, 2) a motion to have the Court determine whether Mr. Branton’s testimony presented a conflict with his client’s interest, 3) a motion to continue the trial in order to obtain the defendant’s written waiver of the potential conflict, and 4) a motion for disqualification. This latter characterization was later denied by defendant.

[.PRO — “If the Court allows the calling of declarant, then declarant believes that it is his ethical responsibility under the Rules of Professional Conduct of the State Bar of California to disqualify himself as lead counsel for the defendant ...” (Motion to Prohibit Calling of Leo Branton, Jr. as Witness or Motion for Continuance in the Alternative page 5, lines 4-7.)
“It is clear ... that counsel in the instant case is in a position of conflict of interest because of his testimony ...” (Memorandum of Points and Authorities page 8, lines 19-21 (April 2, 1984).
CONTRA — “I never filed a motion asking to be relieved as counsel.” (Declaration of Leo Branton, Jr. in Opposition to Imposition of Sanctions page 3, lines 19-20).
“My motion was not one to allow to be disqualified____” (Declaration of Leo Branton, Jr. in Opposition to Imposition of Sanctions page 4, line 2 (April 27, 1984).]

The Court finds that the motion filed by the defendant on April 2, 1984 was intended to be, as represented and discussed at the hearing, a motion to have Mr. Branton disqualified as attorney of record and to have the trial continued to allow the defendant time to obtain new counsel. Based on Mr. Branton’s representation that he was now in a position of potential conflict with his client, the motion to disqualify was granted.

The Court further finds no merit in Mr. Branton’s claim that he was wholly unaware of any potential conflict prior to the government’s untimely filing of the narrative statement. Mr. Branton was involved in prior litigation in the Northern District of California on behalf of this same client in which similar conflict issues were raised. Mr. Branton also concedes that he knew that the government had named him as a witness before he requested to be substituted into this case. Under the circumstances, it should have been transparent that a potential conflict existed.

The Court further finds that Mr. Branton had a duty at the time that he requested to be allowed to enter this case to inform the Court of the existence and nature of his potential conflict so that his requested substitution could properly be evaluated. The failure to so advise the Court necessitated a last minute continuance of the trial. This continuance resulted in a needless expenditure of tax dollars in connection with the bringing of witnesses and counsel to court and the waste of counsels’ time in preparation for trial. Had Mr. Branton been candid and forthcoming with the Court, this entire matter could and would have been resolved well in advance of the time that the government had to complete preparations for trial and the summoning of its witnesses. The direct result of what this Court considers to have been a calculated failure on the part of Mr. Branton to inform the Court has been an otherwise avoidable expenditure by the government of money and resources which will in large part be necessarily duplicated when this matter again comes on for trial.

Since all of the time involved in the earlier preparation for trial may not necessarily have been wasted in connection with the continued trial date, the amounts requested by the government are approved and/or reduced as follows:

Requested Approved
Legal Pees: $15,520.00 $5,000.00
Lawyer Expenses: 1,862.50 1,862.50
Witness Expenses: Not submitted

GOOD CAUSE APPEARING THEREFOR, IT IS HEREBY ORDERED that the defendant’s prior counsel, Mr. Branton, and defendant pay to the plaintiff the sum of $6,862.50 as sanctions for the unreasonable, vexatious and irresponsible conduct described above. 28 U.S.C. § 1927.

Said amount is to be paid to the plaintiff by Leo Branton, Jr., Esq. personally not later than August 15,1984. Mr. Branton is further ordered to advise the Court, in writing not later than August 22, 1984, that payment has been made in accordance with this Order.


author: CHARLES SCHWARTZ, Jr., District Judge.

text:
    Willie HARRIS v. DU PONT DE NEMOURS, et al. Mack F. BURNS v. E.I. DU PONT DE NEMOURS AND COMPANY.
    Civ. A. Nos. 84-831, 84-964.
    United States District Court, E.D. Louisiana.
    July 21, 1984.

      Arthur Cobb, Baton Rouge, La., for Willie Harris.
    James A. George, Baton Rouge, La., for Mack F. Burns.
    Harry McCall, Jr. and L. Havard Scott, III, New Orleans, La., for E.I. du Pont de Nemours & Co.
   ORDER AND REASONS

CHARLES SCHWARTZ, Jr., District Judge.

This matter came before the Court on the motions of defendant, E.I. du Pont de Nemours & Company (du Pont) for summary judgment against plaintiffs, Willie Harris and Mack Burns, on the grounds that du Pont was the statutory employer of plaintiffs under Louisiana law. Considering the memoranda filed by the parties, the record herein and the law applicable to this matter, the motions were granted for the reasons set forth below.

These consolidated cases arose from an explosion and fire on July 12, 1983, at du Pont’s Pontchartrain Works plant at Reserve, Louisiana. On the date of the incident in suit, plaintiffs, Willie Harris and Mack Burns, were employed by Hydro-Services, Inc., a contractor engaged by du Pont to perform hydroblasting services at the plant. Hydroblasting is a process for removal or cleaning of residue from tube bundles incorporated into the heat exchanger which is used in the manufacture of chloroprene. Specifically, in the manufacture of chloroprene, which is produced at du Pont’s Pontchartrain Works, it is necessary to utilize a heat exchanger which incorporates a tube bundle, known as a calandria. This tube bundle may contain hundreds of small tubes of an inch or less in diameter. From time to time, residue collects in these small tubes and must be removed for the manufacture of chloroprene to continue. One method of removing this residue is hydroblasting, a type of high-pressure water cleaning.

In addition to the foregoing uncontested facts, defendant asserts that the work for which plaintiffs’ employer had been engaged was identical to that for which Browning Ferris Industries had previously been employed at du Pont’s Pontchartrain Works. Defendant further asserts that the factual situation described in the unreported opinion of the Fifth Circuit in Keys v. E.I. du Pont de Nemours & Company, Inc., 720 F.2d 1289 (5th Cir.1983), is the same as that which obtained on the date of the incident in suit. That case involved a negligence action against du Pont for injuries sustained by an employee of Browning Ferris Industries while he was working at du Pont’s LaPlace, Louisiana plant. The Fifth Circuit affirmed the trial court’s granting of summary judgment in favor of du Pont on grounds that it was the statutory employer of plaintiff. The pertinent facts of that case are as follows:

“Until 1970, du Pont employees did the hydroblasting at LaPlace. Du Pont then began subcontracting the work at La-Place, because it was believed to be more economical to do so. Currently, du Pont relies exclusively upon its own employees and equipment to do hydroblasting at two of its plants. At six others, du Pont uses its own employees and equipment, supplemented by contract labor as required. At plants such as La Place, where hydroblasting is required less frequently, du Pont relies entirely on contractors to do the work.” at p. 2.
* * * * * *
“... du Pont assigns its own employees to perform hydroblasting services ... du Pont utilized its own employees to perform hydroblasting at its LaPlace plant for numerous years before contracting out those services ... hydroblasting is an integral and necessary part of the manufacturing process, at p. 6.

Based upon the foregoing, defendant contends that it was the statutory employer of the plaintiffs on the date of the incident in suit, and thus, is immune from tort liability.

Plaintiff Willie Harris contests that the work performed by Hydro-Services, Inc. was identical to that previously performed by Browning Ferris Industries at du Pont’s Pontchartrain Works, and that this type of work was held to be part of du Pont’s trade, business or occupation in the Keys case. However, plaintiff has produced no countervailing evidence in this regard.

Plaintiff Mack Burns contends that the following material facts are at issue: (1) Since 1970, no du Pont employee has done hydroblasting work. Du Pont did not customarily engage in hydroblasting and it was therefore not a part of its trade, business or occupation; (2) Du Pont did. not own or otherwise possess hydroblasting equipment on July 12, 1983; (3) Hydroblasting is not a part of du Pont’s usual and customary practice in the manufacture of chloroprene because du Pont’s employees have not done hydroblasting work since 1970; (4) Since 1970, du Pont has contracted with independent contractors, including Hydro-Services, Inc., and only employees of independent contractors have done hydroblasting work at the du Pont LaPlace plant since 1970; and (5) All hydroblasting work done by contractors at du Pont’s plant in LaPlace since 1970 has been done with equipment owned and/or operated by the independent contractors and not with equipment owned or otherwise possessed by du Pont.

Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Rule 56(c), Fed.Rules Civ.Proc. The party seeking summary judgment has the burden of showing that there is no material fact in dispute, and every reasonable inference arising from the record must be resolved in favor of the party opposing the motion. Penton v. Crown Zellerbach Corporation, 699 F.2d 737 (5th Cir.1983). However, when a motion for summary judgment is supported in the manner provided in Rule 56(c) the response of an adverse party, “by affidavits or ... otherwise ... must set forth specific facts showing that there is a genuine issue for trial.” Rule 56(e), Fed. Rules Civ.Proc.

Under Louisiana law, specifically, L.S. A.-R.S. 23:1061, a principal is the “statutory employer” of its contractor’s employee when the contractor is engaged to perform work which is part of the “trade, business or occupation” of the principal. When a statutory employment relationship exists, the statutory employer is liable for workmen’s compensation benefits to the employees of the contractor, and an injured employee’s claims against the statutory employer is limited to such benefits. L.S.A.R.S. 23:1032.

In Lewis v. Exxon Corp., 441 So.2d 192, opinion on rehearing, 441 So.2d 197 (La.1983), the Louisiana Supreme Court recently set forth the test for whether a statutory employment relationship exists, as follows:

“First, the ‘work’ must be part of the principal’s ‘trade, business or occupation.’ Second, the principal must have been engaged in that trade, business or occupation at the time of the injury.” 441 So.2d at 197.

Although Courts must look to the facts of each case to determine whether a particular activity is within the scope of the principal’s trade, business or occupation, the Louisiana Supreme Court has described the pertinent considerations on this issue:

“Generally, in order for a work or project to be within a principal’s trade, business or occupation, it must be routine or customary [citations omitted], or some other type of activity which is necessary for the principal’s day-to-day operations ... [T]he works contemplated by the statute are those activities which are an actual ■ part of the nature and purpose of the principal’s enterprise.
* * * * * *
In addition to the regularity or predictability of the activity, it is also important to determine whether the employer normally is equipped to handle such projects, both as to manpower and equipment ... General maintenance and repair work, which by their nature allow the smooth and continued operations of the principal, are within the scope of the statute.” 441 So.2d at 198. [Emphasis supplied.]

In the instant case, plaintiffs contend that material issues of fact exist which are pertinent to the determination of whether there was a statutory employment relationship. However, the affidavit and deposition testimony submitted by plaintiffs in support of this contention merely address the fact that du Pont employees had not engaged in hydroblasting at the Pontchartrain Works plant since 1970, nor was the facility equipped, in terms of manpower and equipment to do so. This fact is not contested by defendant and, in the Keys case, was considered by the court in rendering its decision. Plaintiffs have produced no evidence to contradict the fact that du Pont had and has employees who customarily perform hydroblasting work, albeit at facilities other than the one to which plaintiffs were assigned at the time of their injuries. The Keys decision makes it clear that “it is no bar to summary judgment that du Pont customarily contracts out hydroblasting operations at the LaPlace plant, see Forno v. Gulf Oil Corp., 699 F.2d at [795] 797, or at other plants.” at p. 7. It is sufficient that the principal’s employees performed hydroblasting at its various other facilities. Hodges v. Exxon Corp., 727 F.2d 450 (5th Cir.1984).

Plaintiffs further contend that the Lewis case, which was decided post-Keys, mandates a different conclusion than that reached by the Keys court. We disagree. In Blanchard v. Engine & Compressor Services, Inc., 613 F.2d 65 (5th Cir.1980), the Fifth Circuit held that the proper standard for determining the statutory employment issue was

"... whether the activity done by the injured employee or his actual immediate employer is part of the usual or customary practice of the principal ...
* * * * * *
More specifically, we should first consider whether the particular principal involved in the case customarily does the type of work performed by the contractor and whether the contractor’s work is an integral part of the work customarily performed by the principal.” 613 F.2d at 71.

The question of whether the Lewis decision changed the standard to be applied in determining the existence of a statutory employment relationship was answered in the recent case of Hodges v. Exxon Corp., supra, in which the Fifth Circuit concluded:

“In our view, despite the differing language of the two tests, analysis of the problem under either is the same. Both tests require a factual determination of whether the actual scope of the work contract under which the alleged statutory employee performs his duties is within the nature and purpose of the principal’s trade business or occupation.” 727 F.2d at 453.

Indeed, the pertinent factors to be considered on this issue, as set forth in the Lewis decision, lead us to the inescapable conclusion that the work of plaintiffs’ employer in the instant case is general maintenance work which by its nature allows the smooth and continued operations of the principal and, thus, falls within the scope of the statute. Likewise, we reject plaintiffs’ contention that the case of Benson v. Seagraves, 436 So.2d 525 (La.1983) mandates a different conclusion. An identical argument was rejected by the Fifth Circuit in Hodges v. Exxon Corp., supra.

We find that there is no genuine issue of material fact on the issue of whether du Pont was the statutory employer of plaintiffs herein. Based upon the facts of this case, it is clear that hydroblasting is routine, customary and necessary for the continuance of du Pont’s day-to-day operations; it is the type of routine maintenance work which allows the smooth continued operations of the principal. As such, hydroblasting is part of defendant’s trade, business or occupation. Furthermore, there is no factual distinction between the Keys ease and the instant case such as to warrant a different conclusion here. We hold that du Pont was the statutory employer of plaintiffs Willie Harris and Mack Burns and, thus, defendant is immune from tort liability.

Accordingly, and for the foregoing reasons the motion of defendant for summary judgment is hereby granted. The Clerk of Court is directed to enter judgment in favor of defendant du Pont and against plaintiffs Willie Harris and Mack Burns.

      . Affidavit of Gerald E. Roberts, maintenance supervisor at the du Pont plant.

      . Id.