author: BUA, District Judge.

text:
    UNITED STATES of America, Plaintiff, v. Fernando LOPEZ and Jico Garcilazo, Defendants.
    No. 85 CR 458.
    United States District Court, N.D. Illinois, E.D.
    Nov. 15, 1985.

      Anton R. Valukas, U.S. Atty. by Lawrence E. Rosenthal, Asst. U.S. Atty., Chicago, Ill., for plaintiff.
    Ronald A. Bredemann, Flood & Bredemann, Park Ridge, Ill., for defendant Lopez.
    Francis A. Nolan, Chicago, Ill., for defendant Garcilazo.
   ORDER

BUA, District Judge.

Before the Court is the defendant Lopez’s amended motion to quash his arrest and suppress certain evidence. For the reasons stated herein, defendant’s motion is granted in part and denied in part.

I. FACTS

The parties have stipulated to the following pertinent facts. At approximately 11:50 p.m. on March 12, 1985, Officer Richard Boyle of the Chicago Police Department and Special Agent Frank Tucci of the Federal Drug Enforcement Agency (DEA) observed a male individual deplane from Eastern Airlines, Flight 430. That individual was the defendant Fernando Lopez. Flight 430 originated in Miami, Florida. Lopez carried a black cloth shoulder bag. Officer Boyle and Agent Tucci approached the individual and identified themselves as police officers. Neither Tucci nor Boyle had ever seen Lopez before March 12, 1985, nor had they ever heard his name, nor had they received any reports of any drug shipments arriving from Miami on that flight, nor that an individual would be carrying any contraband on that flight.

For the purposes of this motion, the parties ask that the Court assume that there was a seizure of the shoulder bag and that the seizure was illegal. Inside the shoulder bag, Agent Tucci found approximately one kilogram of a mixture that appeared to contain cocaine. A field test indicated that the mixture did in fact contain cocaine.

Lopez was placed under arrest and processed by the arresting officers. While processing the defendant, the arresting officers made various statements: that, if defendant was turned over to state authorities, he could be prosecuted for delivery of cocaine and receive a minimum sentence of six years in prison without the possibility of probation; and that the minimum bail allowed him in state court would be $50,-000, or $5,000 in cash.

On March 12, 1985, subsequent to his arrest and the above statements, Lopez, while being fingerprinted at the O’Hare International Airport office of the DEA, expressed his willingness to cooperate with the DEA. Lopez stated that he had been hired in Miami by a man named Leon and was being paid $1,500 to deliver a kilogram of cocaine to a buyer in Chicago named Paul. Lopez agreed to contact Paul at the telephone number he had been given by Leon, and participate in a controlled delivery of the cocaine to Paul.

On March 28, 1985, as a direct result of Lopez’s cooperation with the government, Leon Binkiewicz and Paul Pauluzzi were charged with narcotics violations under 21 U.S.C. §§ 841(a)(1), 843(b) and 846. Both of these individuals subsequently agreed to cooperate with the government. When they were both debriefed by the government, both individuals named Jico Garcilazo as a member of the cocaine distribution system as alleged in the indictment.

During the course of Lopez’s cooperation with the government, he was not represented by counsel prior to March 25, 1985. Pursuant to a subpoena served upon him by the government, Lopez was to appear before a Special Grand Jury on March 28, 1985. On March 25, 1985, Lopez met with counsel Patrick Coffey of the Federal Defender Program, who was appointed to represent Lopez in pending Grand Jury proceedings. No charges were filed against Lopez and he had remained at liberty from the point of his arrest on March 12, 1985 until his subsequent arrest on July 18, 1985. By letter dated March 25, 1985, the government, through Assistant U.S. Attorney Scott F. Turow, memorialized the pretrial diversion agreement that it had reached with Lopez and his attorney.

Pursuant to that agreement, the government agreed to stop investigating Lopez further with respect to unlawful possession and distribution of cocaine and to place him on 18 months probation. If the government determined that Lopez had not testified truthfully in the grand jury proceedings and any resulting trials, the letter reserved the government’s right to prosecute Lopez at that time for perjury or false statement and for any other crimes he may have committed. In addition, the letter stated the government’s position that it would be free to use any statements Lopez has made or will make against him in such a prosecution. A formal pretrial diversion agreement was executed thereafter.

Lopez was debriefed by DEA agents and Assistant U.S. Attorney G. Ferguson on March 26, 27 and 28, and Lopez testified before the Grand Jury on March 28. During the debriefings and testimony, Lopez made inculpatory statements and at all times he was at liberty to consult with his attorney.

After debriefing Leon Binkiewicz and Paul Pauluzzi, the DEA agents recontacted Lopez, who denied knowing that Jico Garcilazo was involved in the conspiracy. Pursuant to his plea agreement, Binkiewicz cooperated with the government and met with Lopez on July 10, 1985. At the time of this conversation between Binkiewicz and Lopez, the government believed that Lopez had knowledge of the role played by Garcilazo in the alleged conspiracy.

On July 16, 1985, Lopez returned to Chicago at the government’s request in order to testify again before the Grand Jury. At this time the government knew that Lopez had knowledge concerning Garcilazo and, in fact, Lopez was the target for the Grand Jury investigation. On July 17, Lopez was questioned by DEA agents and Assistant U.S. Attorney Ferguson. Lopez was not informed that he was the target of an investigation, nor that the DEA or the government believed that he had in fact breached any portion of his pretrial diversion agreement. Patrick Coffey, Lopez’s attorney was not informed of this interview. At the interview, Lopez again made inculpatory statements and denied knowing that Garcilazo was a member of the alleged conspiracy, which was then a subject of the investigation before the Grand Jury. On July 18, 1985, Lopez testified before the Grand Jury.

After testifying before the Grand Jury, Lopez was escorted by a DEA agent to the office of Assistant U.S. Attorney Ferguson. After waiting there for approximately 45 minutes, at approximately 4:00 p.m., Lopez was confronted by Assistant U.S. Attorney Larry Rosenthal, Ferguson, and DEA Agents Tucci and William Furay. Lopez was told by Rosenthal that he had “blown it,” that he was going to jail, and that he would lose his job. Further, Rosenthal told Lopez that the only way he would get any further consideration was to tell the truth, cooperate with the government and stop lying. This exchange lasted for approximately one-half hour, at which time Lopez made inculpatory statements. The other individuals left Lopez in Ferguson’s office with a DEA agent. Lopez also made inculpatory statements to the DEA agent and admitted that he had lied before the Grand Jury.

Subsequent to his second Grand Jury appearance, Lopez was not informed of his Miranda rights nor informed that he was in the government’s custody. Immediately after making inculpatory statements to the DEA agent, Lopez was taken to the United States Marshal’s office, where he was fingerprinted, processed, and placed in incarceration. After Lopez made the inculpatory statements to the DEA agent and before being fingerprinted and processed, Federal Defender Coffey was contacted and allowed to speak to Lopez.

Prior to making any inculpatory statements before the Grand Jury on July 18, 1985, Lopez was not in custody. However, he was the subject- of an obstruction of justice investigation at that time. He was not informed that he was the subject of that investigation, nor was his attorney informed of that fact prior to his testimony before the Grand Jury. The first time that Coffey was notified of Lopez’s presence in Chicago was after his arrest on July 18, 1985. Prior to that arrest, no agent of the government attempted in any way to prevent Lopez from contacting Coffey.

II. DISCUSSION

For the purposes of this motion to suppress, the parties agreed that this Court should assume that the seizure of the shoulder bag from defendant Lopez on March 12, 1985 was an illegal seizure. In support of his motion to quash his arrest and suppress the evidence gained therefrom, the defendant Lopez sets forth three grounds: (A) all of his statements should be suppressed as the fruit of his illegal arrest; (B) his testimony before the Grand Jury on July 18, 1985 should be suppressed because he and his attorney were not informed that he was the target of an investigation; and (C) his statements made subsequent to his Grand Jury testimony on July 18, 1985 should be suppressed because they were the product of a custodial interrogation performed without notifying his counsel or giving him his Miranda warnings.

A. Fruit of the Poisonous Tree

(1) Statements Made From March 12 Through March lk

Defendant Lopez argues that all of his statements made after his illegal arrest and the illegal seizure should be suppressed as the fruit of an illegal arrest and seizure. He contends that the statement made to the DEA agent at the time of his arrest on March 12, 1985 should be suppressed because it was the direct product of his illegal arrest and no intervening fact or event occurred which would purge the statement of the primary taint of the illegal arrest. Lopez also asserts that his incriminating acts and statements made between March 12 and 14, when he cooperated with the DEA agents to complete the sale of the cocaine, should be suppressed. In its brief in opposition to defendant’s motion, the government does not contest the exclusion of the statements made from March 12 through March 14.

Assuming the illegality of the seizure of the shoulder bag, the Court agrees with the defendant that no intervening event occurred to purge those statements, even in the context of defendant’s cooperation, from the primary taint of the illegal seizure. Even though the statements may be voluntary within Fifth Amendment standards, the causal connection for Fourth Amendment purposes still exists between the illegality of the arrest and the statements made between March 12 and 14. Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975). Therefore, defendant’s statements made between March 12 and 14 are suppressed.

(2) Statements Made After The Pretrial Diversion Agreement

Defendant Lopez appears to argue that, since he would not have cooperated by entering into a pretrial diversion agreement but for the illegal arrest and seizure, any statements made after execution of the pretrial diversion agreement should be suppressed. Presumably, these statements include his testimony before both Grand Juries, as well as statements made during debriefing with DEA agents. The government counters that the pretrial diversion agreement and other facts constitute an act of voluntariness sufficient to purge these later statements and Grand Jury testimony of the primary taint of the illegal search and seizure.

The test for whether statements made after the accused has been subjected to an illegal search and seizure must be suppressed was stated by the Supreme Court in Taylor v. Alabama, 457 U.S. 687, 102 S.Ct. 2664, 73 L.Ed.2d 314 (1982): “a confession obtained through custodial interrogation after an illegal arrest should be excluded unless intervening events break the causal connection between the illegal arrest and the confession so that the confession is ‘sufficiently an act of free will to purge the primary taint.’ ” Id. at 690, 102 S.Ct. at 2667 (quoting Brown v. Illinois, 422 U.S. 590, 602, 95 S.Ct. 2254, 2261, 45 L.Ed.2d 416 (1975)). Thus, the question is “whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.” Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 417, 9 L.Ed.2d 441 (1963). See also Segura v. United States, — U.S. -, 104 S.Ct. 3380, 3386, 82 L.Ed.2d 599 (1984); Brown, 422 U.S. at 599, 95 S.Ct. at 2259. In determining whether challenged evidence is a product of exploitation of illegality, the line between exploitation and an act of free will which purges the taint must be drawn by reference to the underlying purpose of the exclusionary rule. Dunaway v. New York, 442 U.S. 200, 210, 217-18, 99 S.Ct. 2248, 2255, 2259, 60 L.Ed.2d 824 (1979); Brown, 422 U.S. at 599-600, 95 S.Ct. at 2259-2260. One purpose is to deter further illegal searches and seizures.

In the present case, Lopez was released from custody on March 14, 1985 and continued to cooperate with the government even though there were no formal charges against him. During this time from March 14 to March 25, Lopez consulted with his appointed attorney, Patrick Coffey. After these consultations, Lopez and his attorney entered into an agreement with the government in which he promised to cooperate truthfully in exchange for 18 months of probation and cessation of any further investigation into his activities. Lopez knew that the government’s promises were conditioned on his truthfulness and his failure to testify truthfully could lead to investigation and prosecution based on statements made under the pretrial diversion agreement. Given the facts that Lopez was not in custody for 11 days prior to executing the pretrial diversion agreement and that he had the assistance of counsel prior to and during the execution of the agreement, the Court finds that Lopez’s execution of the pretrial diversion agreement and his cooperation thereunder constitute an act of free will sufficient to purge these later statements from the primary taint of the illegal arrest and search. Taylor, 457 U.S. at 690, 102 S.Ct. at 2666; Brown, 422 U.S. at 602, 95 S.Ct. at 2261.

Lopez’s attempt to argue that, but for the initial illegal arrest and seizure, he would never have had to enter into the pretrial diversion agreement or cooperate in any way with the government, has been rejected by the Supreme Court, see Segura, 104 S.Ct. at 3391-92; Dunaway, 442 U.S. at 217-18, 99 S.Ct. at 2259; Brown, 422 U.S. at 603-04, 95 S.Ct. at 2261-62; and is likewise rejected here. Therefore, the Court finds that the connection between the arrest and seizure and the statements made after the pretrial diversion agreement has “ ‘become so attenuated as to dissipate the taint.’ ” Wong Sun, 371 U.S. at 491, 83 S.Ct at 419 (quoting Nardone v. United States, 308 U.S. 338, 341, 60 S.Ct. 266, 267, 84 L.Ed. 307 (1939)). Accordingly, the Court holds that the statements made after the execution of the pretrial agreement and pursuant to the cooperation thereunder are not suppressed.

In further support for this holding, the Court finds that suppression of these later statements would not deter further illegal searches and seizures and therefore would not further the purposes of the exclusionary rule. This finding is supported by the fact that the defendant here had a choice between cooperating with the government after his release from custody or not cooperating and thereby rely on the illegality of the arrest and seizure as a defense to any subsequent formal charges. United States v. Stevens, 612 F.2d 1226, 1230 (10th Cir. 1979), cert. denied, 447 U.S. 921, 100 S.Ct. 3011, 65 L.Ed.2d 1113 (1980) (plea bargain). Once having made this choice, the defendant should not be allowed to go back on his deal, depriving the government of the benefit of the bargain, and then accuse the government of exploiting his initial illegal arrest and séizure in order to elicit these later statements. See United States v. Stirling, 571 F.2d 708 (2d Cir.), cert. denied, 439 U.S. 824, 99 S.Ct. 93, 58 L.Ed.2d 116 (1978).

In Stirling, one defendant voluntarily negotiated a plea agreement and voluntarily decided to violate the agreement. 571 F.2d at 732. The Second Circuit Court of Appeals noted that the defendant “could have relied on the agreement to protect himself.” Id. The Second Circuit rejected the attempt to preclude use of the information given by the defendant to the Grand Jury pursuant to the plea agreement which he voluntarily violated.

Finally, it is clear that Binkiewicz’s statements and his tape-recorded conversation with Lopez are admissible as the voluntary statement of an accomplice. If Binkiewicz freely and voluntarily consented to the tape recording, the tapes of the conversation with Lopez are admissible. United States v. Wallace, 597 F.2d 641, 642 (8th Cir.1979) (Citations omitted). Lopez could argue that Binkiewicz’s statements and consent, made pursuant to a plea bargain agreement, would never have occurred if Lopez had not been illegally arrested and searched. However, Lopez’s voluntary implication of Binkiewicz under his pretrial diversion agreement so attenuates the connection between the illegal arrest and seizure and Binkiewicz’s plea agreement and consent thereunder that Binkiewicz’s consent to the tape-recorded conversation and his other statements are purged of any taint from Lopez’s arrest and seizure. Therefore, the tape-recorded conversation and Binkiewicz’s statements, as well as Pauluzzi’s, are not suppressed.

B. Failure To Warn Defendant That He was The Target Of An Investigation Prior To Second Grand Jury Appearance

Defendant Lopez seeks either dismissal of the perjury count or suppression of his Grand Jury testimony on the ground that he and his attorney were not advised that Lopez was a target of the Grand Jury’s investigation prior to his appearance. In support of this argument, Lopez asserts that the government knew that he had lied, knew that he was now the target of the Grand Jury investigation, and had reason to believe that he would lie before the Grand Jury and be indicted by it since he had now violated the terms of his pretrial diversion agreement. Finally, Lopez asserts that the government knew that he was represented by an attorney and did not inform his attorney of Lopez’s presence before the Grand Jury or that he was a target.

In determining whether testimony given by a Grand Jury witness could be used against him in a subsequent prosecution, the test for admissibility is not the absence of a “target” warning, but “whether, considering the totality of the circumstances, the free will of the witness was overborne.” United States v. Washington, 431 U.S. 181, 188, 9.7 S.Ct. 1814, 1819, 52 L.Ed.2d 238 (1977); see also United States v. Wong, 431 U.S. 174, 97 S.Ct. 1823, 52 L.Ed.2d 231 (1977). In Wong the defendant was a target of an investigation into bribery and was indicted for perjury, while in Washington the defendant was indicted for theft, for which he was the target suspect. Wong and Washington reject the contention that there is a due process obligation to do anything more than inform the witness of the dangers of testifying falsely by administering an oath. United States v. Crocker, 568 F.2d 1049, 1055 (3d Cir.1977).

In Crocker, the defendant was warned of the possibility of prosecution for perjury if he testified falsely. The Third Circuit Court of Appeals held that, while the Assistant U.S. Attorney may have misled the defendant’s attorney by suggesting that his client was not a target at the time of the second Grand Jury appearance, the alleged misleading statements were not a due process violation. Id. at 1056. The Third Circuit noted that, had the Assistant U.S. Attorney revealed information that defendant had lied in a prior Grand Jury appearance, defendant’s attorney might have urged his client to plead the Fifth Amendment’s privilege against self-incrimination. Important factors in the Third Circuit’s decision were the warnings actually given to the defendant and his knowledge of the subject of the Grand Jury investigation. Id.

In the present case, Lopez knew from the oath administered at the second Grand Jury appearance and from the terms of the pretrial diversion agreement that he might be prosecuted for his statements if he did not tell the truth. Lopez also knew that his cooperation under the agreement was sought in connection with investigating the alleged cocaine conspiracy and the identity of its participants. The tape-recorded conversation between Binkiewicz and Lopez bears out the fact that Lopez knew that he would be asked about Garcilazo’s involvement in the alleged cocaine conspiracy. In addition, one can infer from this conversation that Lopez planned to deny Garcilazo’s involvement in the alleged cocaine conspiracy. Therefore, under Wong, Washington, and Crocker, the Court finds that the failure to warn the defendant that he was the target of an investigation prior to his second Grand Jury appearance is not a due process violation. Furthermore, given the above findings, there is no question that Lopez is not allowed to commit perjury even as a victim of an illegal arrest or search. United States v. Finucan, 708 F.2d 838, 845 (1st Cir.1983). Accordingly, the Court holds that defendant’s statements made at his second Grand Jury appearance are not suppressed.

C. Custodial Interrogation After The Second Grand Jury Appearance

Defendant argues that his statements made subsequent to his Grand Jury testimony on July 18, 1985 should be suppressed because, at that time, he was subjected to custodial interrogation and should have received the warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

The Supreme Court has provided a straightforward test for determining whether an individual is in custody for purposes of receiving his Miranda warnings: “The ultimate inquiry is simply whether there is a ‘formal arrest or restraint on freedom of movement’ of the degree associated with a formal arrest.” California v. Beheler, 463 U.S. 1121, 1125, 103 S.Ct. 3517, 3519, 77 L.Ed.2d 1275 (1985) (per curiam) (quoting Oregon v. Mathiason, 429 U.S. 492, 495, 97 S.Ct. 711, 714, 50 L.Ed.2d 714 (1977) (per curiam). The parties’ stipulation contains the following pertinent facts. After he completed his testimony, Lopez was taken to the U.S. Attorney’s Office and asked to wait in the office of Assistant U.S. Attorney Ferguson. After about 45 minutes he was confronted by Rosenthal, Ferguson and two DEA agents, and at that time was told that the government knew that he had lied to the Grand Jury. At that time, Lopez made inculpatory statements. After the interview was completed, Lopez was given an opportunity to consult with his attorney. He was subsequently formally arrested and taken to the United States Marshal’s Office for processing. At no time during this meeting with Rosenthal, Ferguson, and the agents was Lopez told that he was in custody, nor was he told that he was not free to leave.

In light of the above facts, the Court finds that Lopez was not in custody at the time of the above accusations. In addition, Lopez should have known that anything he said, after being informed that the government knew he had lied, could be used against him according to his pretrial diversion agreement. Finally, Lopez’s past cooperation, which was part of his release under the agreement, further persuades the Court that defendant was not in custody during the accusations. See Minnesota v. Murphy, 465 U.S. 420, 104 S.Ct. 1136, 79 L.Ed.2d 409 (1984) (questioning of probationer by probation officer, including accusations, did not mean that probationer was in custody). Accordingly, the Court holds that Lopez’s statements made subsequent to his second Grand Jury appearance are not suppressed.

III. CONCLUSION

For the reasons stated above, the Court finds the following statements are admissible and denies defendant’s motion to suppress as to them: (1) Lopez’s statements made after the execution of his pretrial diversion agreement; (2) all statements made by Binkiewicz and Pauluzzi; (3) Lopez’s testimony before the Grand Jury on July 18, 1985; and (4) Lopez’s statements made subsequent to his July 18 appearance before the Grand Jury. The Court grants defendant’s motion to suppress Lopez’s statements made between the time of the illegal arrest and seizure and the execution of the pretrial diversion agreement.

IT IS SO ORDERED.


source: Caselaw Access Project

author: MOTLEY, Chief Judge.

license: Public Domain

text:
    Robert KLOTSCHE and Robin Acosta, Plaintiffs, v. CITY OF NEW YORK, Defendant.
    No. 84 Civ. 5964 (CBM).
    United States District Court, S.D. New York.
    Nov. 16, 1985.

      Lefkowitz & Graziadei by Frank M. Graziadei, New York City, for plaintiffs.
    Frederick A.O. Schwarz, Jr., Corp. Counsel of City of New York by Joel I. Grobtuch, New York City, for defendant.
   OPINION

MOTLEY, Chief Judge.

Plaintiffs Robert Klotsche and Robin Acosta have commenced this action challenging the legality of section 434a-8.0 of the New York City Administrative Code. Section 434a-8.0 establishes a maximum hiring age of twenty-nine years for New York City police officers. Plaintiffs contend that this policy violates the Equal Protection Clause of the federal Constitution because it is not rationally related to any legitimate state purpose. Plaintiffs also assert that the hiring age policy constitutes a violation of the New York Executive Law’s proscription against age discrimination in employment. The parties have cross-moved for summary judgment. For the following reasons, the defendant’s motions for summary judgment are granted. Plaintiff’s motion is denied.

FACTS

Plaintiffs took and passed the written civil service examination (Examination # 1175) for appointment to the New York City Police Department. Plaintiffs both had reached their twenty-ninth birthday prior to filing their application for this examination. Plaintiff Klotsche was disqualified by the Department of Personnel of the City of New York -[“Department of Personnel”] pursuant to section 434a-8.0 of the New York City Administrative Code. Section 434a-8.0(a) provides that “[o]nly persons shall be appointed patrolmen who shall at the date of the filing of an application for civil service examination less than 29 years of age.”

Plaintiff Acosta was disqualified by the Department of Personnel because he failed the psychological examination that is a prerequisite of appointment as a police officer. See Exhibit “1”, Affidavit of Joel Grobtuch. Robin Acosta appealed his psychological disqualification to the New York City Civil Service Commission, but the appeal was dismissed for failure to prosecute.

Mr. Klotsche filed a discrimination complaint against New York City with the New York State Division of Human Rights, again alleging an age discrimination claim. The State Division found probable cause to believe that there was discrimination by the defendant.

DISCUSSION

PLAINTIFF ROBIN ACOSTA

It is undisputed by the parties that plaintiff Acosta was rejected for appointment as a patrol officer because his psychological tests and interviews indicated “the presence of personality traits incompatible with the demands and stresses of employment as a New York City Police Officer.” (Affidavit of Joel Grobtuch, Exhibit “1”.) Although plaintiff Acosta argues that he also was rejected because of his age, it is patently obvious that even if the age limitation did not exist, he still would not be appointed as a police officer. Accordingly, defendant’s motion for summary judgment as to plaintiff Acosta is granted.

NEW YORK EXECUTIVE LAW

It also is undisputed that plaintiff Klotsche has filed a discrimination claim with the State Division of Human Rights, charging defendant with age discrimination. New York Executive Law section 297, subsection 9 provides that “[a]ny person claiming to be aggrieved by an unlawful discriminatory practice shall have a cause of action in any court of appropriate jurisdiction for damages and such other remedies as may be appropriate, unless such person had filed a complaint hereunder or with any local commission on human rights.” Thus, under section 297 there is a statutory election of remedies which has been enforced by the courts. Collins v. Manufacturer’s Hanover Trust Co., 542 F.Supp. 663, 672-73 (S.D.N.Y.1982); Marin v. New York State Dep’t of Labor, 512 F.Supp. 353, 355 (S.D.N.Y.1981). Even if Klotsche were to withdraw his complaint before the State Human Rights Division, he could not maintain this action unless it was withdrawn for administrative convenience. Emil v. Dewey, 49 N.Y.2d 968, 428 N.Y.S.2d 887, 406 N.E.2d 744 (1980). Accordingly, pursuant to the statutory requirements set forth in Executive Law section 297, this court must grant defendant’s motion for summary judgment as to plaintiff Klotsche’s state law claims.

Additionally, even if Klotsche could maintain his state law cause of action after filing his complaint with the State Division of Human Rights, his pendent state law claim would still be dismissed. Under the current case law of New York, the 29 year age limitation does not violate the provisions of the Human Rights Law, N.Y. Executive Law section 296, section 3-a. See: Knapp v. Monroe County Civil Service Commission, 77 A.D.2d 817, 437 N.Y.S.2d 136 (4th Dep’t 1980).

EQUAL PROTECTION CLAIMS

Both parties have moved for summary judgment on the equal protection claim. Plaintiffs contend that the age limitation provision in the Administrative Code should be reviewed by a “flexible equal protection standard” using a “heightened” level of scrutiny as advocated by Justice Marshall in his dissent in Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 325, 96 S.Ct. 2562, 2572, 49 L.Ed.2d 520 (1976). In addition, plaintiff argues that even if the “rational basis standard” is applied, as defendant contends, the provision should be declared in violation of the Equal Protection Clause of the Fourteenth Amendment. The City of New York, relying on prior decisions, argues that section 434a-8.0(a) passes constitutional muster under the “rational basis standard” set forth in Murgia, supra, and that summary judgment should be granted.

Plaintiffs’ motion for summary judgment is denied. While plaintiffs’ brief cites to many cases which rejected age as a bona fide occupational qualification under the Age Discrimination in Employment Act of 1967, section 2 et seq., as amended 29 U.S.C. section 621, et seq. [“ADEA”], see Equal Employment Opportunity Commission v. County of Los Angeles, 706 F.2d 1039 (9th Cir.1983), they are not controlling in cases brought under the Equal Protection Clause of the Fourteenth Amendment. The analysis to be applied under the ADEA is different than that utilized by the court in determining whether an age limitation violates the Equal Protection Clause. The test under the ADEA requires the employer to show:

(1) that the job disqualifications are reasonably necessary to the essential operation of the business and (2) that there is a factual basis for believing that all or substantially all of the persons within the class protected by the ADEA would be unable to perform the job effectively and safely or that it is impossible or impracticable to determine job fitness on an individual basis.

Hahn v. City of Buffalo, 770 F.2d 12, 14 (2d Cir.1985). The standard to be applied under the Equal Protection Clause of the Fourteenth Amendment, however, is whether the Administrative Code is rationally related to a legitimate state interest. Id. Accord, Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 314, 96 S.Ct. 2562, 2567, 49 L.Ed.2d 520 (1976) (standard reflects “Court’s awareness that the drawing of lines that create distinctions is peculiarly a legislative task and an unavoidable one. Perfection in making the necessary classifications is neither possible nor necessary.”)

The ADEA protects persons between the ages of 40 and 70 years old. 29 U.S.C. section 631(a). Plaintiff Klotsche is 30 years old and may not rely on the ADEA standard which is more stringent than the applicable standard under the Fourteenth Amendment. Thus, while an age limitation statute might not be enforceable as to applicants 40 years or older, it could be valid as to applicants 39 years or younger. Id., n. 2.

In considering whether a statutory age limitation violates the Equal Protection Clause, the court must keep in mind that such a statute is not to be overturned “unless the varying treatment of different groups of persons is so unrelated to the achievement of any combination of legitimate purposes that [the court] can only conclude that the legislature’s actions were irrational.” Vance v. Bradley, 440 U.S. 93, 97, 99 S.Ct. 939, 942, 59 L.Ed.2d 171 (1979). Additionally, “[i]n an equal protection case of this type, ... those challenging the legislative judgment must convince the court that the legislative facts on which the classification is apparently based could not reasonably be conceived to be true by the governmental decision maker.” Id. at 111, 99 S.Ct. at 949.

The plaintiff, in moving for summary judgment, has set forth no facts which show that the legislature acted irrationally in passing the statute. Klotsche relies on McMahon v. Barclay, 510 F.Supp. 1114 (S.D.N.Y.1981), in which the court held that section 58(1)(a) of the New York Civil Service Law was invalid because it violated the Equal Protection Clause of the Fourteenth Amendment. The language of section 58(1)(a) parallels the language of the City’s Administrative Code age limitation provision. Subsequent decisions, however, have found that section 58(1)(a) of the New York State Civil Service Law and section 434a-8.-0(a) of the New York City Administrative Code do not violate the Equal Protection Clause. See, e.g., Hahn v. City of Buffalo, supra, 770 F.2d at 14; Colon v. City of New York, 535 F.Supp. 1108 (S.D.N.Y. 1982); Sica v. County of Nassau, 81 Civ. 3497 (E.D.N.Y. March 9, 1982) (Pratt, J.), slip op.

In support of its defense that the age limitation is rationally related to a legitimate state purpose, New York City sets forth several purposes. Relying on the recommendation of two independent Presidential blue-ribbon commissions on crime, see National Advisory Committee on Criminal Justice Standards and Goals, Task Force on Police (GPO 1973); President’s Commission on Law Enforcement and the Administration of Justice, Task Force Report: The Police (GPO 1967), the defendant states that the principal interest served by the age limitation is that the demands of public safety are served by the most physically capable and active police force possible. In addition, the defendant cites to the administrative advantages of a younger police force. The advantages of younger police officers are that they provide more potential years of service and provide for a longer period of profitable return, on investment in recruitment, training and experience. In addition, the City states that a younger police force represents a lighter burden on both the retirement system and operating budget and is more easily trained and more adaptable. In Colon v. City of New York, 535 F.Supp. at 1113-14, Judge Leval upheld section 434a-8.0(a) of the New York City Administrative Code and found that the age limitation was rationally related to these same interests.

Plaintiff, in an equal protection action, has the obligation of convincing “the court that the legislative facts on which the classification is apparently based could not reasonably be conceived to be true by the governmental decision maker.” Vance v. Bradley, supra, 440 U.S. at 111, 99 S.Ct. at 949. Whether or not the court believes these facts and inferences are true is irrelevant. Hahn v. City of Buffalo, 596 F.Supp. 939, 944 (W.D.N.Y.1984), aff'd 770 F.2d 12 (2d Cir.1985). Of course, since this is a summary judgment motion, the burden still remains on the moving party to demonstrate that there are no material issues of genuine fact in dispute. Heyman v. Commerce & Industry Insurance Co., 524 F.2d 1317, 1320 (2d Cir.1975).

Plaintiff challenges the economic considerations set forth by defendant, asserting that such considerations are not permissible bases on which to uphold an age classification. Plaintiff once again relies on cases brought under the ADEA. Courts, however, have accepted economic considerations as a legitimate state interest in equal protection cases, see Colon v. City of New York, supra, 535 F.Supp. at 1113, and plaintiff has set forth no evidence that such an interest is irrational.

The provisions of the New York City Administrative Code bases eligibility for appointment as a police officer on age at the time of the filing of the application for the written examination as opposed to age at the time of appointment. Plaintiff argues that under this criterion a certain number of persons over 29 years old are allowed to become police officers, thereby defeating the goal of maintaining a youthful and vigorous police force. In addition, plaintiff indicates that an exception under Section 434a-8.0(a) allows veterans to deduct from their actual age the amount of time they spent in active service.

The veterans’ credit policy is rational, acknowledging the sacrifice that veterans have made in the service of our country. See Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256, 99 S.Ct. 2282, 60 L.Ed.2d 870 (1979); Colon v. City of New York, supra. Furthermore, there is no evidence that the legislative determination that the age limitation be applied as of time of application is unreasonable. As the City indicates:

This policy enables applicants to determine, before embarking on the often lengthy process of application and testing, whether they will meet the age requirement for the position. If the age limitation were to be based instead on the applicant’s age at the time of appointment, the applicant’s eligibility would in many cases turn on how long the application and testing process took in his or her particular case, a fact that cannot be accurately predicated in advance. Such a policy would also carry with it the potential for abuse, in that the agencies which administer the process could, by delaying the process in a particular case, prevent otherwise qualified applicants from qualifying for an appointment.

Defendant’s Memorandum in Opposition to Plaintiff’s Cross-Motion for Summary Judgment, pp. 5-6.

The New York State Civil Service Commission has stated that it does not believe the 29 year age limitation is appropriate. In addition, other states have higher age limitations for appointments. The mere fact some authorities may disagree with the method by which the legislature has sought to achieve a legitimate goal is irrelevant. For in utilizing the “rational basis” standard, an inquiry into the choice of a legislature to achieve its goals is not an appropriate judicial function. Defendant need not demonstrate that its purported justifications for the age requirement are statistically valid. In addition, defendant need not show that its objectives could not have been accomplished by some other means. Vance v. Bradley, 440 U.S. at 111, 99 S.Ct. at 949.

This court recognizes that were plaintiff Klotsche forty years or older, he could rely on the ADEA. Since, however, he is only thirty years old, his only viable claim is the equal protection cause of action. Plaintiffs have submitted no evidence which indicates that the facts upon which the age classification is apparently based are irrational. Instead, all of the facts indicate that the age requirement of section 434a-8.0(a) of the New York City Administrative Code is rationally related to the goal of maintaining an effective, efficient and safe police department.

CONCLUSION

Plaintiffs’ motion for summary judgment is denied. Defendant’s motions for summary judgment are granted. This action is dismissed and discontinued.


author: POLOZOLA, District Judge.

text:
    Robert JACKSON, Jr. v. PALA, INCORPORATED, et al.
    Civ. A. No. 84-183-B.
    United States District Court, M.D. Louisiana.
    Nov. 16, 1985.
    Louis Quinn, Gary, Field, Landry & Dornier, Baton Rouge, La., for plaintiff.
    William R. D’Armond, Kean, Miller, Hawthorne, D’Armond, McCowan & Jar-man, Baton Rouge, La., for defendants.
   POLOZOLA, District Judge.

Robert Jackson, Jr. filed suit against Pala, Incorporated (“Pala”) and Tom McCurley (“McCurley”) seeking damages under 42 U.S.C. § 2000e-5, the Fifth Amendment to the United States Constitution, and 42 U.S.C. § 1981. Plaintiff contends that Pala, plaintiff’s employer, and McCurley, his superintendent, terminated him because of his race.

Pala and McCurley have moved for summary judgment on Jackson’s Title VII claim on the grounds that Jackson’s suit was filed more than 90 days after receipt of the right-to-sue letter from the Equal Employment Opportunity Commission (“EEOC”). Defendants contend the 90 day time period set forth in § 2000e-5(f)(1) is a jurisdictional prerequisite to filing a Title VII suit. In his opposition to defendants’ motion, Jackson contends that recent jurisprudence by the Supreme Court and the Fifth Circuit Court of Appeals has held that this 90 day period is a statute of limitations which is subject to equitable tolling, waiver, and estoppel. Plaintiff argues that equitable principles should apply in his case.

In Zipes v. Trans World Airlines, 455 U.S. 385, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982), the Supreme Court held that timely filing of an employment discrimination charge with the EEOC is not a jurisdictional prerequisite to a Title VII suit. The court stated in Zipes that the time limit for filing a charge is subject to waiver, estoppel, and equitable tolling. In Baldwin County Welcome Center v. Brown, 466 U.S. 147, 104 S.Ct. 1723, 80 L.Ed.2d 196 (1984), the court indicated that equitable principles could be applied to toll the running of the 90 day statutory period to commence a Title VII action, although no equitable basis for tolling the statute was found in that case. Further, in Espinoza v. Missouri Pacific Railroad Co., 754 F.2d 1247 (5th Cir.1985), the Fifth Circuit, citing Baldwin County, held that the 90 day requirement, as a nonjurisdictional statutory precondition to suit, may be subject to tolling and waiver. 754 F.2d at 1248 n. 1.

The law is clear that the 90 day period in which to file suit may be extended by equitable principles. Thus, Jackson’s complaint is not automatically precluded by his failure to bring this suit within 90 days after receipt of the right-to-sue letter. However, there are no facts presented in this case which would permit the Court to extend the deadline for filing suit from September 4, 1983, the end of the 90 day period, to February 22, 1984, more than eight months after receipt of the right-to-sue letter.

In Baldwin County, 104 S.Ct. at 1725-26, the court cited with approval a case decided by the Sixth Circuit Court of Appeals, Harris v. Walgreen’s Distribution Center, 456 F.2d 588 (6th Cir.1972), which held that the statutory period for filing suit was tolled while a motion for appointment of counsel was pending. The Harris court stated that the plaintiff should be allowed a reasonable time after counsel had been appointed within which to file suit, using the statutory period as a guide. 456 F.2d at 592.

The mere filing of a motion for appointment of counsel in a Title VII suit does not, however, constitute commencement of the action. In Firle v. Mississippi State Department of Education, 762 F.2d 487, 489 (5th Cir.1985), the Fifth Circuit Court of Appeals noted that the Baldwin County decision had overruled previous Fifth Circuit cases which had held that filing a motion for appointment of counsel was sufficient compliance with the statutory 90 day requirement. Thus, Jackson’s reliance on these decisions which have now been overruled is useless.

In Firle, plaintiff timely filed a motion for appointment of counsel. However, the attorney appointed by the court waited over seven months after his appointment to file the Title VII suit. The Fifth Circuit held that the filing of the motion for appointment of counsel had not commenced the action since it did not give the defendant timely “fair notice of what the plaintiff’s claim is and the grounds upon which it rests.” Firle, 762 F.2d at 489, quoting Baldwin County, 104 S.Ct. at 1725 n. 3.

The facts of this case are almost identical to those of Firle. Jackson timely filed a motion for appointment of counsel, which was granted after the 90 day statutory period had expired. His court-appointed counsel then waited eight months to file suit. No other pleadings were filed in the record except the motion for appointment of counsel. Since the Supreme Court has held that filing a motion for appointment of counsel does not give sufficient timely notice to the defendants, and since Jackson has failed to set forth sufficient equitable principles to justify tolling for eight months the statute of limitations, the defendants’ motion for summary judgment on Jackson’s Title VII claim must be granted.

Pala and McCurley also have moved for summary judgment on Jackson’s second cause of action which was filed pursuant to 42 U.S.C. § 1981 and the Fifth Amendment to the United States Constitution. Defendants contend this second cause of action should be dismissed because: (1) they are not governmental entities; and (2) plaintiff’s suit on his second cause of action has prescribed. Defendants’ first contention is without merit. A cause of action based on 42 U.S.C. § 1981 is applicable to private parties for private discriminatory acts. Sanders v. Dobbs House, Inc., 431 F.2d 1097, 1099 (5th Cir. 1970); Long v. Ford Motor Co., 496 F.2d 500 (6th Cir.1974), and cases cited therein at 503 n. 4.

Pala and McCurley further contend that Jackson’s § 1981 action is time barred since it was filed more than one year after his employment was terminated. Since there is no specifically stated or otherwise relevant federal statute of limitations for claims under § 1981, the controlling period would ordinarily be the most appropriate period provided by state law. Board of Regents v. Tomanio, 446 U.S. 478, 485, 100 S.Ct. 1790, 1795, 64 L.Ed.2d 440 (1980); Johnson v. Railway Express Agency, 421 U.S. 454, 465, 95 S.Ct. 1716, 1721-22, 44 L.Ed.2d 295 (1975). The Fifth Circuit has held that the general one year tort prescription statute, Louisiana Civil Code article 3492 applies in suits filed under § 1981. Cross v. Lucius, 713 F.2d 153, 156 (5th Cir.1983); Jones v. Orleans Parish School Board, 688 F.2d 342, 344 (5th Cir. 1982).

Jackson, in his brief, admits that his suit was not filed within the applicable prescriptive period. He contends, however, tht he should not be penalized for the oversight of his appointed counsel when Jackson “did everything he knew to do to have his claim be heard by the Court.”

Where the state statute of limitations has been “borrowed,” the state rules of tolling are also included. Board of Regents v. Tomanio, 446 U.S. at 485, 100 S.Ct. at 1795. The only equitable tolling allowed under Louisiana law is under the doctrine of contra non valentem agere nulla currit praescriptio, which generally applies only in extremely limited circumstances. Cross v. Lucius, 713 F.2d 153, 157 (5th Cir.1983). This doctrine simply means that prescription does not run against a person who could not bring his own suit, but it is only applied in cases where the “defendant has concealed the fact of the offense or has committed acts (including concealment, fraud, misrepresentation, or other ‘ill practices’) which tend to hinder, impede, or prevent the plaintiff from asserting his cause of action, as long as plaintiff’s delay in bringing suit is not willful or the result of his own negligence.” Nathan v. Carter, 372 So.2d 560, 562 (La. 1979); Arkansas Natural Gas Co. v. Sartor, 78 F.2d 924, 928-29 (5th Cir.1935).

Jackson has made no allegation that the defendants prevented him from bringing this action through fraud or ill practice. It is clear that Louisiana law would not allow equitable tolling of the prescriptive period on Jackson’s § 1981 claim based on the facts presented herein. Consequently, Jackson’s claim must be dismissed as time barred.

■ In summary, there is no genuine issue of material fact in dispute that both Jackson’s claim under Title VII and his claim under 42 U.S.C. § 1981 were filed outside of the time requirements established by law, and no equitable basis for tolling those time requirements has been established. Thus, the defendants are entitled to summary judgment as a matter of law.

While the Court has sympathy for an individual such as plaintiff, under the facts presented, the Court must be guided by the following words of the Supreme Court in Baldwin County:

Procedural requirements established by Congress for gaining access to the federal courts are not to be disregarded by courts out of a vague sympathy for particular litigants. ... “[In] the long run, experience teaches that strict adherence to the procedural requirements specified by the legislature is the best guarantee of evenhanded administration of the law.” 104 S.Ct. at 1726.

Finally, the Court must note that plaintiff has not served “Bruce Lnu,” an unnamed employee who apparently worked for the defendant. Since no service has been made as required by Rule 4 of the Federal Rules of Civil Procedure, the Court shall also dismiss the suit against this defendant.

Therefore:

IT IS ORDERED that the motion of Pala, Incorporated, and Tom McCurley for summary judgment be, and it is hereby GRANTED.

IT IS FURTHER ORDERED that plaintiff’s suit be dismissed with prejudice.

      . Jackson was fired on January 7, 1983; suit was filed on February 22, 1984.

      . Louisiana Civil Code article 3492 provides: Delictual actions are subject to a liberative prescription of one year. This prescription commences to run from the day injury or damage is sustained.
      This article replaced article 3536, which was cited in Cross and Jones.

      . Statutes of limitation are favored in the law, and mere ignorance of one’s rights will not toll the statute of limitations under Louisiana law. Martin v. Mud Supply Co., 239 La. 616, 119 So.2d 484, 492 (1960); Wingate v. National Union Fire Insurance Co., 435 So.2d 594, 596 (La. App. 3d Cir.1983).


author: CALEB M. WRIGHT, Senior District Judge.

text:
    Jerome H. LEMELSON, Plaintiff, v. The BENDIX CORPORATION and Brown & Sharpe Manufacturing Company, Defendants.
    Civ. A. No. 82-308 CMW.
    United States District Court, D. Delaware.
    Nov. 18, 1985.
    See also, Cl.Ct., 8 Cl.Ct. 789.

      Roderick R. McKelvie, of Ashby, McKelvie & Geddes, Wilmington, Del., for plaintiff.
    William H. Sudell, Jr., and Richard D. Allen, of Morris, Nichols, Arsht & Tunnell, Wilmington, Del., Noel C. Crowley, of Allied Corp., Morristown, N.J., of counsel, for defendant, The Bendix Corp.
    Allen M. Terrell, Jr., of Richards, Layton & Finger, Wilmington, Del., William L. Patton, of Ropes & Gray, Boston, Mass., of counsel, for defendant, Brown & Sharpe Manufacturing Co.
   OPINION

CALEB M. WRIGHT, Senior District Judge.

This antitrust action arises out of patent infringement litigation brought by a patentee, Jerome H. Lemelson, against the United States. The infringement action, which was commenced in the Court of Claims on September 4, 1979, alleged that the government’s use of certain, coordinate measuring machines (“CMMs”), purchased from suppliers other than Lemelson, infringed on his patent claims. Two of the government’s CMMs suppliers, Bendix Corporation (hereinafter “Bendix”), and Brown & Sharpe Manufacturing Co. (hereinafter “Brown & Sharpe”), voluntarily entered the Court of Claims action as third-party defendants. The suppliers had significant interests in contesting the infringement action because of an indemnification clause contained in their contracts of sale with the government. The clause, in effect, required each supplier to reimburse the government for damages for which it was liable as a result of a finding that Lemelson’s patent had been infringed by the use of each supplier’s product.

The action presently before the Court, which was filed on July 1, 1982, is against Bendix and Brown & Sharpe. The complaint essentially alleges that the two defendants combined and conspired in violation of Section 1 of the Sherman Act, 15 U.S.C. § 1, (hereinafter “Section 1”), by refusing to negotiate in good faith with Lemelson for settlement of the Court of Claims action. The core of the conspiracy, according to Lemelson, was the defendants’ refusal to enter into a licensing agreement with the plaintiff. The unlawful “group boycott” was allegedly effected through an agreement providing for the sharing of litigation expenses in the Court of Claims action. In addition, plaintiff claims that the purported agreement prohibited either defendant from acting unilaterally with respect to Lemelson’s demands and required each corporation to share with the other all information regarding settlement offeres before negotiating or entering into a patent licensing agreement with the plaintiff. Complaint ¶ 17 (Dkt. No. 1). The answers of defendants deny the material allegations of the complaint. (Dkt. Nos. 33 & 35).

Presently before the Court are defendants’ separate motions for summary judgment which have been pending since the middle of 1983. (Dkt. Nos. 44 & 45). The Court deferred consideration of the merits of those motions pending completion of discovery on the issue of the existence of a conspiracy between the two defendants in violation of the antitrust laws. The discovery cut-off date was extended on several occasions. During this extended discovery period, the Court issued an opinion denying plaintiff’s motion to compel the production of documents which the defendants and the United States Government claimed were protected by attorney-client privilege and work product. Lemelson v. Bendix Corporation, 104 F.R.D. 13 (D.Del. 1984). Briefing of defendants’ motions for summary judgment resumed in April of 1985.

The narrow issue presented by defendants’ motions is whether plaintiff has adduced sufficient evidence from which a trier of fact could infer the existence of a conspiracy in violation of Section 1 of the Sherman Act. This Court has already addressed this issue in connection with its ruling that defendants would not be required to produce documents protected by attorney-client privilege. Although plaintiff argues that additional evidence produced since the Court’s earlier ruling, supports a different finding, the Court, after reviewing plaintiff’s evidence in its entirety, reaffirms the conclusion it reached in its earlier decision — namely, that plaintiff has failed to establish a prima facie basis for inferring the existence of an unlawful conspiracy. Accordingly, defendants’ motions for summary judgment with respect to plaintiff’s antitrust claims will be granted.

I. FACTS

Plaintiff, a holder of numerous patents, began in the late 1960s to contact various manufacturers of CCMs, including defendants, in an attempt to induce these manufacturers to take a license under certain patents which plaintiff believed to be infringed by their machines. From 1969 to 1973, there were numerous contacts between plaintiff and Brown & Sharpe regarding whether it should take a license under plaintiff’s patents. See Plaintiff’s Opening Brief in Support of His Motion to Compel, Exhibit A (Dkt. No. 134). For no apparent reason, Lemelson’s contacts with Brown & Sharpe ceased after 1973 and appear to resume in 1979.

Plaintiff had also contacted Bendix regarding purported infringing products pri- or to 1979. Lemelson wrote to Bendix in July of 1975, claiming that Bendix’s automatic inspection machinery was infringing. See First Affidavit of William Jackson, Exhibits J-9A-9D (Dkt. No. 195). Once again, the correspondence terminates without any resolution of Lemelson’s underlying charges.

Beginning around 1975, both defendants began marketing computer-controlled CCMs and sold them, inter alia, to the United States Navy, Army, Air Force, Department of Energy and NASA. Plaintiff has alleged that Bendix and Brown & Sharpe are leading manufacturers of automatic measuring machines, accounting for more than one-half of such sales in the United States, and further, that they account for substantially more than one-half of the sales of CCMs in the United States. Complaint ¶ 9(a) (Dkt. No. 1).

In April of 1976, plaintiff made a written administrative claim for compensation to the Air Force, based on the belief that Brown & Sharpe’s computer-controlled CCM device, which the Air Force used, infringed on one of his patent claims. See First Affidavit of William E. Jackson, Exhibit E-7 (Dkt. No. 195). The claim was denied in 1979, and subsequently, plaintiff brought an action in the Court of Claims against the Government. As noted above, both Bendix and Brown & Sharpe, as government suppliers of CMMs, joined this action as third-party defendants. Their conduct in defending the Court of Claims action is the source of plaintiffs present antitrust action.

The relevant evidence in addressing the merits of defendants’ summary judgment motions involves events occurring after the commencement of Lemelson’s Court of Claims action on September 14, 1979. Of these events, perhaps the most significant was a meeting held on December 7, 1979, among patent attorneys for the government suppliers and the United States Government. At that meeting, it was tentatively agreed between Brown & Sharpe and Bendix that the two would retain jointly the services of outside counsel, John Kidd, a patent attorney with the law firm of Pennie & Edmonds. See Plaintiff’s Answering Brief in Opposition to Defendants’ Motions for Summary Judgment, Exhibit C (Dkt. No. 194). According to the terms of the agreement, the two parties would split the cost of Mr. Kidd’s services along with any other suppliers who decided to join them. Id. Mr. Kidd’s initial duty would be to render a validity opinion on the Lemelson patent, and, if the dispute proceeded to trial, Mr. Kidd would function as trial counsel for Bendix and Brown & Sharpe. Id. A memo from the Secretary of Brown & Sharpe to the company’s Treasurer concludes by saying, “All parties agree that a strong unified approach against Mr. Lemelson is mandatory.” Id.

Prior to the formal appearance of Kidd in the Court of Claims action, Lemelson sent letters to Bendix on December 26, 1979, and to Brown & Sharpe on December 29, 1979, asking them to enter into a licensing agreement as a means of settling the Court of Claims action. See Plaintiff’s Opening Brief in Support of His Motion to Compel, Exhibit B-3 (Dkt. No. 134) (Bendix’s response to Lemelson’s letter); Plaintiff’s Reply Brief in Support of His Motion to Compel, Exhibit J (Dkt No. 141). Bendix, through its Mideastern Regional Patent Counsel, Raymond Eifler, responded to Lemelson’s letter with letters both to Lemelson on January 18, 1980, see Plaintiff’s Opening Brief in Support of His Motion to Compel, Exhibit B-3 (Dkt. No. 134), and to Lemelson’s attorney, William Jackson, on February 7, 1980. See Plaintiff’s Answering Brief in Opposition to Defendants’ Motions for Summary Judgment, Exhibit N (Dkt. No. 194). Bendix’s response made clear its own belief that no infringement had occurred, but also expressed a willingness to reassess its position upon receipt of additional information from Lemelson. Jackson attempted to follow up the Eifler letter with a telephone call to explore the prospects of settlement, but Eifler remained adamant in insisting that the scope of the infringement dispute be defined with greater precision. See Plaintiff’s Opening Brief in Support of His Motion to Compel, Exhibit B-4 (Dkt. No. 134).

Lemelson’s letter to Brown & Sharpe was circulated to Bendix, as evidenced by a document identifying a letter from an in-house attorney at Bendix to Brown & Sharpe’s outside counsel, Herbert Barlow, Jr. See Plaintiff’s Answering Brief in Opposition to Defendants’ Motions for Summary Judgment, Exhibit K (Dkt No. 194). Brown & Sharpe, through Barlow, did not respond to Lemelson’s letter until March of 1980. For the most part, Brown & Sharpe advanced a position similar to Bendix. This led to a telephone conversation between Jackson and Barlow in which Jackson made an offer in which Lemelson would grant Brown & Sharpe a retroactive license in return for a payment of between $600,000 and $700,000. See Deposition of William E. Jackson, 40-48 (Dkt. No. 123). This offer was rejected and was promptly followed by a second offer from Jackson seeking only $350,000. Id. No formal response to this offer was made for fifteen months. On March 6, 1980, John Kidd of Pennie & Edmonds entered a formal appearance in the Court of Claims action on behalf of Bendix and Brown & Sharpe. Shortly thereafter, Jackson contacted the Government’s attorney, David Spevack, and the two discussed the possibility of settlement. Jackson contends that he was informed by Spevack that, as a practical matter, plaintiff would be faced with a “united front” from the defendant and the third-party defendants. Jackson confirmed his understanding of Spevack’s remarks by letter. See Plaintiff’s Answering Brief in Opposition to Defendants’ Motion for Summary Judgment, Exhibit G (Dkt. No. 194).

On April 7, 1980, Kidd wrote to Jackson objecting to Jackson’s continuing direct communication with Kidd’s clients without notifying Kidd. Kidd stated emphatically, “I believe you were required, by the Code of Professional Conduct to automatically refer all future matters to counsel and refrain from communicating with clients represented by counsel. I assume and expect that you will promptly curtail such tactics in the future.” Id., Exhibit H. The letter read in context seems to have been prompted by discovery requests made by Jackson, but the precise context of Kidd’s remarks could be read to include settlement negotiations as well.

Regardless of what Kidd meant, intermittent settlement negotiations with Bendix and Brown & Sharpe continued over the next two years. Sometimes these negotiations were conducted by Kidd and sometimes they were negotiated separately with representatives of each corporation without Kidd’s presence. The first communications regarding settlement with Bendix after Pennie & Edmonds’ appearance came in October of 1980. The meeting was held at Pennie & Edmonds’ offices and was attended by Eifler for Bendix and Jackson on behalf of Lemelson, along with attorneys from Pennie & Edmonds. It dealt only with preliminary settlement issues. See Deposition of William E. Jackson 70-72 (Dkt. No. 123).

On November 7, 1980, Jackson met with Eifler alone to discuss settlement and received a generally negative response. See id. at 74; First Affidavit of William E. Jackson, ¶ 8a (Dkt. No. 195). Jackson submitted a new offer to Bendix in February of 1981 seeking almost $650,000 spread over three payments. He received no response to this offer.

At about the same time, Jackson travelled to Rhode Island to have lunch with two Brown & Sharpe officials, R.J. Duncan, the corporation’s treasurer, and A.C. Sauerbrey, the corporation’s secretary. Jackson was informed that $350,000, mentioned almost a year before, was too high, although Brown & Sharpe remained willing to discuss settlement. Id. at 49-50. Jackson protested that Brown & Sharpe’s sales figures justified such a licensing fee. Subsequently, Jackson wrote a letter restating Lemelson’s terms for settlement but increasing the settlement figure to $500,000, spread over three payments. See id. at 51-52. Brown & Sharpe did not respond, nor did it have any communications with Jackson again regarding settlement until June 26, 1981. At that time, the General Counsel for Brown & Sharpe, James W. Hayes, accompanied by Kidd, personally delivered a letter to Lemelson who was accompanied by Jackson. The letter contained an offer of settlement for about $15,000. Id. at 53-54. Although Jackson sent at least one letter to Kidd with a copy to Hayes responding in greater detail to issues raised by the Hayes letter, there were no further direct meetings regarding settlement after the Hayes meeting between Jackson and Lemelson on the one hand, and Brown & Sharpe personnel on the other. See First Affidavit of William E. Jackson, Exhibit J-13 (Dkt. No. 195).

The next significant episode in the settlement negotiations, according to the plaintiff, was a series of so-called “joint” offers made by Kidd on behalf of both defendants. The first of these came in December of 1981 at the deposition of Jerome Lemelson noticed in connection with the Court of Claims action. During a break in the deposition, Kidd allegedly approached Jackson and informally inquired whether Lemelson would be willing to accept a $100,000 payment from each defendant in settlement of the infringement claims. See Deposition of William E. Jackson 57-59 (Dkt. No. 123).

Apparently the offer was not accepted because three months later during the course of a telephone conversation between Kidd and Jackson, a new offer surfaced. According to Jackson, Kidd suggested a $200,000-$300,000 figure. Id. at 123-60. Jackson attempted to clarify the terms of the exploratory offer in a letter dated March 8, 1982, see Plaintiffs Answering Brief in Opposition to Defendants’ Motion for Summary Judgment, Exhibit T (Dkt. No. 194), which was hand delivered by Jackson to Kidd in a meeting held on March 11, 1982. This was followed by a letter from Jackson to Kidd dated March 23, 1982, confirming his oral understanding that the dollar sum represented what each defendant would pay. See Id. at Exhibit U. In the March 23rd letter, Jackson also requested Kidd to provide him with the name of a Bendix official whom he could contact for purposes of conducting direct settlement negotiations.

Kidd appears to have provided Jackson with the name of Kenneth Seamen, a Bendix patent attorney, because a memo dated April 1, 1982, from Seamen to a supervisor reports a telephone conversation with Jackson. See Plaintiff’s Opening Brief in Support of His Motion to Compel, Exhibit B-7 (Dkt. No. 134). Moreover, at the same time, Seamen wrote to Kidd requesting a copy of all correspondence regarding settlement negotiations involving Bendix over the last two months. See Plaintiff’s Reply Brief in Support of His Motion to Compel, Exhibit H-l (Dkt. No. 141). Within a month, Kidd wrote a letter to Bendix chief in-house patent counsel, William Thornton, recounting details regarding previous settlement discussions with Jackson. See Plaintiff’s Answering Brief in Opposition to Defendants’ Motions for Summary Judgment, Exhibit Q (Dkt. No. 194).

In the meantime, Bendix officials had arranged two meetings, one with Jackson and Lemelson together and another with Lemelson alone. In the first of these meetings, Seamen met with Lemelson and Jackson to discuss settlement. See First Affidavit of William Jackson ¶ 8(c) (Dkt. No. 195). Further discussions were held between another Bendix official and Lemelson in a brief layover at La Guardia Airport. Id. at ¶ 9.

On June 2, 1981, this action was filed in the District Court of Delaware. Shortly thereafter, trial in the Court of Claims action commenced. Early in the trial, Jackson asked Kidd and received from him the names of individuals from each company authorized to discuss settlement. See Deposition of William Jackson 65-67 (Dkt. No. 123). Jackson never contacted the company officials.

II. THE REQUIREMENT OF UNLAWFUL CONCERTED ACTION

Section 1 of the Sherman Act is directed exclusively at anticompetitive conduct that is the result of concerted action. Although Section 1 by its terms refers to contracts, combinations or conspiracies in restraint of trade, it has long been recognized that this disjunctive triad reduces to the single requirement of concerted action. See Edward J. Sweeney & Sons, Inc. v. Texaco, 637 F.2d 105, 111 (3d Cir.1980).

The sole issue presented by defendants’ motions is whether there is sufficient evidence of an unlawful conspiracy to merit trial. In evaluating the sufficiency of the evidence in support of plaintiff’s case on summary judgment, the Court must, of course, view the evidence in a light most favorable to the non-moving party. United States v. Diebold, 369 U.S. 654, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962); Goodman v. Mead Johnson & Co., 534 F.2d 566, 573 (1976), cert. denied, 429 U.S. 1038, 97 S.Ct. 732, 50 L.Ed.2d 748 (1977). Moreover, this Court is mindful that the function of a court on summary judgment is not to try the facts but solely to determine whether there are facts to be tried. The present motions, however, do not call upon this Court to resolve conflicting evidence regarding the underlying facts, an exercise that would clearly implicate the trier-of-fact’s function to credit or discredit evidence. Rather, defendants’ motions seek to test as a matter of law the limits of what can be permissibly inferred from the evidence.

Fed.R.Civ.P. 56(c) places the initial burden of establishing the absence of any genuine issue of material fact on the moving party. Adickes v. S. H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). Defendants have carried this initial burden by denying plaintiff’s allegation of unlawful conspiracy. Although defendants concede the existence of an agreement between them, they contend the substance of the agreement amounts to nothing more than a joint defense agreement, and accordingly, it should be exempt from antitrust scrutiny. Zenith Radio Corp. v. Matsushita Electronic Industrial Co., 513 F.Supp. 1100, 1157 (E.D.Pa.1981) (Becker, J.), rev’d. on other grounds, 723 F.2d 238 (3d Cir.1983), cert. granted on other grounds, — U.S.-, 105 S.Ct. 1863, 85 L.Ed.2d 157 (1985). Defendants also anticipate evidence to be presented by plaintiff, arguing that the evidence is entirely consistent with the mere existence of an agreement to share litigation costs and that it provides an insufficient basis from which to infer the existence of a conspiracy.

This record is strong enough to shift the burden to the non-moving party under Rule 56(e) to set forth specific facts showing that there is a genuine issue for trial. First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 289, 88 S.Ct. 1575, 1592-93, 20 L.Ed.2d 569 (1968). In this case, the non-moving party’s burden translates into establishing a prima facie case of conspiracy.

Plaintiff relies exclusively on circumstantial evidence to meet this burden. As a general rule, the law does not distinguish between the efficacy of direct and circumstantial evidence. Indeed, in the case of conspiracy, it has long been recognized that direct proof of an express agreement is certainly not required and is rarely available. See Edward J. Sweeney & Sons, Inc. v. Texaco, 637 F.2d 105, 111 (3d Cir. 1980).

In relying exclusively on circumstantial evidence, however, plaintiff must overcome the inherent limitations- on the use of circumstantial evidence: “the circumstances [must be] such as to warrant a jury in finding that the conspirators had a unity of purpose or a common design and understanding, or a meeting of minds in an unlawful arrangement.” Venture Technology, Inc. v. Natural Fuel Gas Co., 685 F.2d 41, 45 (2d Cir.1982) (quoting American Tobacco Co. v. United States, 328 U.S. 781, 810, 66 S.Ct. 1125, 1139, 90 L.Ed. 1575 (1946)). In short, inferences based on circumstantial evidence must be reasonable and not merely speculative.

What is reasonable under the circumstances is determined by the laws of logic and common sense. In re Japanese Electronic Products, 723 F.2d 238, 304 (3d Cir.1983), cert. granted on other grounds, — U.S. -, 105 S.Ct. 1863, 85 L.Ed.2d 157 (1985). Plaintiff contends that so long as the underlying circumstantial evidence is merely consistent with the conclusion he ultimately seeks to infer, then the inference is reasonable and this Court is required on summary judgment to make it, as the most favorable inference for the non-moving party. This Court cannot agree. Circumstantial evidence must meet a higher threshold than mere consistency to guarantee that inferences are not wholly speculative. Where, as here, there are at least two plausible versions of the facts— one legitimate and the other illegitimate— some piece of circumstantial evidence must make the existence of a conspiracy more likely, if only slightly, than the explanation of the facts proferred by the defendants before that evidence can be credited as a reasonable basis for inferring the existence of a conspiracy.

Some years ago, this Court in Jones Knitting Corp. v. Morgan, 244 F.Supp. 235 (E.D.Pa.1965), aff'd. in part and rev’d. in part, 361 F.2d 451 (3d Cir.1966), considered the additional quantum of cooperation necessary to make a joint defense agreement actionable under the antitrust laws. There, this Court held that restrictions, contained in a joint defense agreement, constituted a per se violation of the antitrust laws. The agreement required participants to notify other members of a trade association of the terms of any settlement offer before negotiating with plaintiff. The Court reasoned that any restriction on the freedom of the participants to negotiate with plaintiff, no matter how slight, fell within the scope of the blanket prohibition on concerted refusals to deal.

The breadth of the strict rule announced in Jones Knitting has been criticized. See Gould v. Control Laser Corp., 462 F.Supp. 685, 690-91 (M.D.Fla.1978), aff'd., 650 F.2d 617 (5th Cir.1981). And arguably the per se approach adopted in Jones Knitting no longer reflects recent refinements in the Supreme Court’s application of the per se rule, see e.g., Broadcast Music, Inc. v. Columbia Broadcasting System, Inc., 441 U.S. 1, 99 S.Ct. 1551, 60 L.Ed.2d 1 (1979), especially with respect to concerted refusals to deal. See generally Northwest Wholesale Stationers, Inc. v. Pacific Stationery and Printing Co., — U.S. -, 105 S.Ct. 2613, 86 L.Ed.2d 202 (1985); NCAA v. Board of Regents of University of Oklahoma, 468 U.S. 85, 104 S.Ct. 2948, 82 L.Ed.2d 70 (1984).

Although recognizing the limitations of its Jones Knitting decision, this Court cannot agree with plaintiff’s assertion that it abandoned Jones Knitting sub silentio in its previous decision on plaintiff’s motion to compel. This Court’s reservations regarding whether defendants’ conduct should be evaluated under a per se or rule of reason standard, or any other reservations regarding the rule announced in Jones Knitting, are simply beside the point with respect to the Court’s previous decision or defendants’ present motions. In both cases, the Court is merely concerned with the existence of a prima facie case of conspiracy which, as the Court emphasized in its last opinion, requires evidence from which it is reasonable to infer some restriction on the freedom of the defendants to negotiate settlements with the plaintiff independently. See Lemelson I, supra, 104 F.R.D. at 18-19.

III. PLAINTIFF’S EVIDENCE OF AN UNLAWFUL CONSPIRACY

Plaintiff focuses on a number of different aspects of this case to give prima facie support to the allegations contained in his complaint: (1) the December 1979 meeting; (2) the indemnification agreement; (3) the defendants’ sharing of settlement information; (4) Pennie & Edmonds’ role in settlement negotiations; (5) the totality of the circumstances; and (6) the failure to reach a settlement. With respect to each of these areas, plaintiff’s argument is basically the same: the circumstantial evidence is not inconsistent with the existence of a conspiracy, and therefore, the Court has a reasonable basis for inferring that a conspiracy did in fact exist. The summary of plaintiff’s evidence below makes clear that the circumstantial evidence on which he relies makes any inference of a conspiracy speculative at best.

(1) The Meeting

This Court, in its earlier decision, rejected plaintiff’s suggestion that the meeting of December 7, 1979, by itself was evidence of a conspiracy. The purpose of this meeting, according to defendants, was to organize a joint defense in the Court of Claims action, an interpretation borne out by one of the participants’ contemporaneous notes. See Plaintiff’s Answering Brief in Opposition to Defendants’ Motion for Summary Judgment, Exhibit C (Dkt. No. 194). This Court has no reason to reconsider its earlier decision unless plaintiff can offer some evidence suggesting the purpose of the meeting was unlawful.

The fact that the meeting itself preceded formal adoption of any joint defense agreement is of little or no consequence. Obviously, any joint defense agreement would have to be preceded by negotiations regarding the terms of the agreement. Plaintiffs suggestion to the contrary would result in a “Catch-22” situation for defendants. Antitrust immunity for joint defense agreements would provide little solace if negotiations regarding the agreement constituted an independent basis for antitrust liability.

Plaintiff makes much of the fact that Bendix allegedly recognized the possibility that it might be found liable for patent infringement. Such a possibility undoubtedly crosses the mind of any party sued for infringement, and is a reflection more of prudence rather than guilt. Recognition by a defendant of potential liability in entirely separate legal proceedings, however, does not shed any light on plaintiffs antitrust allegations. The possibility of liability suggests a reason for entering into a joint defense agreement as much as an incentive for engaging in an antitrust conspiracy.

Plaintiff also notes that Bendix was the principal force behind the joint defense agreement and that Brown & Sharpe prior to the meeting had decided not to participate in the Court of Claims action. These additional allegations, even assuming their truth, are of only passing interest. Any agreement must have its genesis in some train of events. The particular train of events in this case appears completely ordinary. The details emphasized by plaintiff are irrelevant to resolving the crucial question of whether the purpose of the meeting was unlawful.

The only piece of evidence that even arguably suggests an improper intent among the participants of the meeting is a statement by a corporate officer from Brown & Sharpe that the participants agreed on the need for a “strong unified approach against Mr. Lemelson.” Id. at Exhibit C. The use of the imperative tone perhaps imparts more of a conspiratorial flavor to the proceedings than anything else to which plaintiff has been able to point, but standing alone it is just too little. The expression could just as easily refer to the joint defense as to an unlawful conspiracy.

(2) The Indemnification Agreement

Plaintiff contends that the government’s attorney in the Court of Claims action, David Spevack, repeated the “united front” expression in a telephone conversation with Mr. Jackson, and elaborated further that the government would not consent to a settlement unless any settlement involving one of the companies had the approval of the other company. According to plaintiff, Spevack’s understanding was a “natural” consequence of the indemnification clauses contained in the contract of sale each supplier entered with the government. Although defendants point to the terms of the clauses to refute plaintiff’s interpretation of the conversation, see Government’s Reply Brief (Dkt. No. 174) (on motion to compel) (discussing construction of indemnification clauses), on a motion for summary judgment, the Court is bound to credit the non-moving party’s version of the facts. Even assuming that Spevack made the statement attributed to him, however, the statement is not evidence from which the existence of a conspiracy could be inferred.

First, the statement fails to establish any connection between what may have been the government’s position and the existence of an unlawful conspiracy between Bendix and Brown & Sharpe. There is nothing to show that Bendix and Brown & Sharpe assented to Spevack’s representations except a self-serving letter, drafted by plaintiff’s counsel in the Court of Claims action, which was sent to the defendants.

More importantly, the remarks attributed to Spevack by Jackson are inadmissible as hearsay. Spevack and the government are not parties in this action. Although the government is not a party to the present action, plaintiff might contend that it is a co-conspirator of the defendants and that Spevack’s remarks were made in furtherance of a conspiracy. It is well-established, however, that before statements of a co-conspirator can be regarded under Fed.R.Evid. 801(d)(2)(E) as beyond the scope of the rule against hearsay, it is necessary for the party who wishes to offer the statement in evidence to produce independent evidence of the existence of the conspiracy and the alleged co-conspirator’s membership in it. In re Japanese Electronic Products, 723 F.2d 238, 260-64 (3d Cir.1983), cert. granted on other grounds, — U.S. -, 105 S.Ct. 1863, 85 L.Ed.2d 157 (1985); see also Glasser v. United States, 315 U.S. 60, 74, 62 S.Ct. 457, 467, 86 L.Ed. 680 (1942). Since the purpose of the present motion is to test plaintiff’s prima facie evidence of conspiracy, and the admissibility of statements of a co-conspirator presupposes the existence of a prima facie case, the merits of the present motion must be resolved prior to admitting any statements of an alleged co-conspirator.

(3) Defendants’ Sharing Of Settlement Information

During the period following the meeting in December of 1979 but prior to April 7, 1980, there was communication between the two defendants regarding their respective positions in response to settlement offers each had received from Lemelson. Bendix circulated to Brown & Sharpe a draft of a letter sent to Lemelson and a copy of another letter sent to Jackson. Similarly, Brown & Sharpe, through its outside counsel, provided Bendix with a draft of its response, in the same period.

In addition, there is evidence that Pennie & Edmonds may have been an indirect source of information to each defendant regarding settlement offers made to the other defendant. See, e.g., Plaintiff’s Answering Brief in Opposition to Defendants’ Motions for Summary Judgment, Exhibit R (Dkt. No. 194).

Although the Court was aware of much of this evidence in its prior decision, it nevertheless concluded that the evidence did not provide an independent basis for inferring the existence of a conspiracy because it entailed a “leap of logic” between conduct which is not prohibited by the antitrust laws and the existence of a conspiracy. See Lemelson I, supra, 104 F.R.D. at 18. The Court sees no reason to revise its earlier conclusion.

Even if defendants’ occasional sharing of settlement information was regarded as a form of conscious parallel business behavior, there would still be an insufficient basis for inferring the existence of concerted action. To establish a conspiracy from parallel business behavior, a party must be able to show that the defendants’ acts are in contradiction to their legitimate economic interests. Venzie Corp. v. United States Mineral Products Co., 521 F.2d 1309, 1314 (3d Cir.1975). As this Court noted in its earlier decision, neither the voluntary sharing of information nor the fact that neither defendant reached a settlement with plaintiff indicates that either defendant was acting contrary to its own private economic interests. See Lemelson I, supra, 104 F.R.D. at 28 n. 8. A plaintiff suing different parties for the same reason creates an incentive among the adverse parties to cooperate in the preparation of their respective defenses. Under the circumstances, it would be impossible reasonably to infer otherwise.

(4) Pennie & Edmonds’ Role In Settlement Negotiation

Plaintiff contends that defendants’ decision to retain Pennie & Edmonds is evidence consistent with the existence of a conspiracy, and moreover, that Pennie & Edmonds performed a crucial role in furtherance of the conspiracy by coordinating settlement negotiations. If antitrust immunity for actions taken in connection with a joint defense is to have any meaning, it must include immunity for the actions of counsel and those who rely on counsel’s advice so long as their actions fall within the legitimate scope of a joint defense. Thus, the legal significance of plaintiff’s contentions turns on an understanding of the permissible scope of counsel’s actions for antitrust purposes in conducting a joint defense.

The mere retention of common counsel is certainly within the permissible limits of a joint defense. Presumably, immunity also would encompass the authorization of counsel to conduct settlement negotiations. Antitrust concerns could conceivably be triggered if the participants subordinated their independent judgment in dealing with a plaintiff to the collective judgment of the entire group of participants. Such a situation might arise if all decision-making authority were reposed in counsel or if counsel were permitted to withhold one client’s acceptance of settlement on condition of plaintiff’s acceptance of another client’s settlement offer.

None of the instances cited by plaintiff suggests that Pennie & Edmonds, acting as joint counsel, ever exceeded the legitimate bounds of permissible conduct. Although plaintiff alleges that Brown & Sharpe deferred all judgment in favor of Pennie & Edmonds, the allegation, in the opinion of the Court, is conclusory in nature and is based upon a misreading of a deposition.

Plaintiff further suggests that using Pennie & Edmonds to conduct all settlement negotiations would raise antitrust difficulties. Although it is clear from Jackson’s first affidavit that negotiations were not always supervised by Pennie & Edmonds, even if Pennie & Edmonds had participated in all negotiations, such an arrangement does not constitute an antitrust violation. The crucial concern for purposes of antitrust scrutiny is the locus of decision-making power, and as long as there is not evidence that a defendant has surrendered its decision-making capacity, there is no basis for antitrust liability.

Plaintiff points to what it contends were “joint” offers of settlement as proof of the illicit role played by Pennie & Edmonds in the settlement negotiations. The record does not disclose, however, whether the offers to which plaintiff refers were conditioned on the acceptance of both defendants’ offers. Accordingly, the most that can be said from the record is that Pennie & Edmonds, on more than one occasion, presented simultaneous settlement offers from both defendants. Since plaintiff never attempted to accept the offer of a single defendant, it is impossible to say whether that option was available to plaintiff. When plaintiff expressed a desire to arrange talks with only one defendant in his letter of March 23, 1982, to Kidd, he was given the name of a Bendix official unconditionally.

(5) The Totality Of The Evidence

Admittedly the totality of the evidence may serve as a basis for inferring the existence of a conspiracy even when individual pieces of evidence might prove insufficient when viewed alone. Such is not the case here. The reason is that the individual pieces of evidence relied on by plaintiff do not fit into a coherent pattern. For instance, plaintiff regards both the sharing of information by Bendix and Brown & Sharpe and Pennie & Edmonds’ role, as joint counsel, as evidence of a conspiracy. But if, as plaintiff alleges, Pennie & Edmonds did coordinate settlement negotiations, it is difficult to understand why it would also be necessary for Bendix and Brown & Sharpe to exchange settlement information. In contrast, defendants’ version of the facts does offer a consistent account of the evidence.

For this reason, the Court cannot say that the totality of the evidence makes inference of conspiracy any less speculative than inferring it on the basis of any individual piece of evidence to which plaintiff has referred.

(6) The Failure To Settle

Plaintiff, having failed to adduce any evidence of a conspiracy, concludes its brief by throwing off yet another theory of antitrust liability. After three years of litigation, the plaintiff informs the Court that “the issue ... is Bendix and Brown & Sharpe’s lack of good faith in pursuing [the Court of Claims’] litigation.” The plaintiff cites as evidence of his contention, the fact that together Bendix and Brown & Sharpe may have spent more than a million dollars in defending against Lemelson’s claims, a sum presumably greater than that for which Lemelson was willing to settle.

Although plaintiff maintains that defendants’ expenditures were willingly incurred to drive him out of business, he ignores the fact that it was he who chose to sue defendants. Nor is plaintiff bothered by the fact that the defendants initially prevailed on the merits in the Court of Claims’ action. That decision was substantially affirmed on appeal. Lemelson v. United States, 752 F.2d 1538 (Fed.Cir.1985).

The factual infirmities in plaintiff’s argument only serve to highlight the underlying weakness of his theory. There is simply no rule of law which prohibits parties from spending more on their defense than it would take to settle the case, nor does such conduct provide a basis for inferring the existence of a conspiracy. Plaintiff’s argument, if taken seriously, would sever the concept of antitrust liability from any traditional understanding of competitive injury.

An order granting summary judgment to defendants on plaintiff’s antitrust claims will issue.

      . Section 1 states in relevant part: "Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several states, or with foreign nations, is declared to be illegal.” 15 U.S.C. § 1.