author: PAINE, District Judge.

text:
    Marc WILLIAMS a minor By and Through his natural guardian and next friend Mary WILLIAMS, and Mary Williams, individually, Plaintiffs, v. UNITED STATES of America, Defendant.
    No. 83-6743-Civ-Paine.
    United States District Court, S.D. Florida.
    April 9, 1985.

      Gary Marks, Law Office of Mark Marks, North Miami, Fla., for plaintiffs.
    Gary E. Garbis, Miami, Fla., for plaintiffs.
    Jonathan Goodman, Asst. U.S. Atty., Miami, Fla., for defendant.
   FINDINGS OF FACT AND CONCLUSIONS OF LAW

PAINE, District Judge.

This cause was tried by this Court, sitting without a jury, on May 2, 1985, as to the issue of liability. At the conclusion of this trial, this Court ruled, in open court, that it found that the injury giving rise to this action was caused by negligence on the part of the driver of the Postal Service vehicle involved, and this Court held that the United States, as defendant, was liable to plaintiffs for the negligence of its agent. At the conclusion of this trial, this Court granted plaintiffs’ motion to strike the counterclaim for contribution asserted by the United States, against the adult plaintiff Mary Williams. This Court also found for plaintiffs, and against the United States, on the issue of comparative negligence, raised by the government as an affirmative defense. In ruling on this claim, this Court found that the United States had presented no evidence to support this claim. Upon further consideration, this Court will modify its ruling on these issues.

At the conclusion of the trial on May 2, counsel for both sides raised the pending issue of whether plaintiffs would be given leave to amend their complaint so as to state an increased demand for damages. Plaintiffs had filed a motion for leave to amend on August 13, 1984 (Docket Entry 25). In an order dated and filed on March 5, 1985 (Docket Entry 39) this Court reserved ruling on this motion. This Court will now determine that motion.

I. Negligence of Defendant

This Court hereby reaffirms its finding that the driver of the Postal Service vehicle, an employee and agent of the United States, was negligent. The evidence presented showed that the minor plaintiff Marc Williams did suffer an injury at the time alleged in the complaint. No eyewitness testimony was presented to support the claim that the injury was caused by contact between the minor plaintiff and the Postal Service vehicle. However, the factual circumstances described in the testimony lead this Court to that conclusion. The driver of the vehicle testified as to his actions to check for oncoming traffic and pedestrians immediately prior to the incident. Expert witnesses presented both by plaintiffs and the United States described a significant area of obstructed vision from the driver’s seat of the vehicle. However, drivers of motor vehicles are held to a very high degree of care, when they have reason to believe that small children may be present. Miami Paper Co. v. Johnston, 58 So.2d 869, 870-71 (Fla.1952); Bilams v. Metropolitan Transit Authority, 371 So.2d 693, 695 (Fla. 3d DCA 1979). In their pretrial stipulation filed on April 18, 1985 (Docket Entry 48) the parties agree that the substantive law of the forum state, Florida, is to be applied in this case. This Court finds that, in the circumstances described by the evidence, the driver of the Postal Service vehicle was negligent in failing to adhere to the duty of care which the law of the state of Florida imposes on drivers in similar situations. This Court further finds that the evidence supports and leads to a conclusion that the negligence of the driver of the Postal Service vehicle was a direct and proximate cause of injury to the minor plaintiff Marc Williams. In operating the Postal Service vehicle at the time of the incident giving rise to this action, the driver was acting within the scope of his employment and course of his duty as an employee of the United States. Thus, the United States is liable to plaintiffs under 28 U.S.C. § 2674.

II. Counterclaim for Contribution

On August 28, 1984, the United States filed a motion (Docket Entry 29) for leave to assert a counterclaim. The proposed counterclaim was submitted with the motion. In its order dated and filed March 5, 1985 (Docket Entry 39) this Court granted leave to file the counterclaim. In the counterclaim, the United States alleges that the adult plaintiff Mary Williams was herself negligent in allowing the infant plaintiff Marc Williams, her son, to be out on the street without adult supervision, at the time of the accident giving rise to this action. The United States further alleged that the negligence of the adult plaintiff was a proximate cause of the injuries to the minor plaintiff, and the United States sought contribution on that basis.

At the trial on May 2, 1985, plaintiffs argued that, under the law of Florida, a claim for contribution, by a defendant, against a parent of an infant plaintiff, was barred. Plaintiffs relied on Joseph v. Quest, 414 So.2d 1063 (Fla.1982). This Court accepted plaintiffs’ argument and struck the counterclaim.

On reconsideration, this Court will modify that ruling, to conform to the law of Florida. Under the law of that state, a defendant in a tort action brought on behalf of an infant or minor plaintiff is not barred from asserting a claim for contribution, grounded in negligence, against a parent of the infant plaintiff. Rather, under Joseph, the defendant is limited, in such a claim, to the amount of liability insurance, if any, maintained by the parent. Joseph, 414 So.2d, at 1065; Woods v. Winthrow, 413 So.2d 1179, 1181 (Fla.1982). Chinos Villas, Inc. v. Bermudez, 448 So.2d 1179, 1180 (Fla. 3d DCA 1984). This Court will reaffirm its decision to strike the counterclaim, as the United States presented no evidence of liability insurance held by the adult plaintiff Mary Williams. However, as discussed below, this Court finds (on reconsideration) that the adult plaintiff Mary Williams was also negligent, and that her negligence was a contributory cause of the injuries suffered by the minor plaintiff Marc Williams. This Court will give the United States leave to offer evidence, by affidavit or at the trial of the issue of damages, as to any liability insurance held by the adult plaintiff Mary Williams, which would entitle the United States to assert its claim for contribution. Upon the presentation of such evidence, the Court will consider whether to vacate its decision to strike the counterclaim.

III. Affirmative Defense

In this action, the adult plaintiff Mary Williams seeks fifteen thousand dollars ($15,000.00) in damages for medical expenses, lost services, loss of support, etc. due to the injuries suffered by the minor plaintiff Marc Williams. As an affirmative defense, the United States raised the contributory negligence of the adult plaintiff Mary Williams herself, and the United States demanded that any award against it in favor of Mary Williams be reduced to reflect the contributory negligence of Mary Williams. Florida follows the rule of comparative negligence, with liability equitably apportioned on the basis of fault. Hoffman v. Jones, 280 So.2d 431 (Fla.1973). Fla.Stat.Ann. § 768.31 (West).

At the conclusion of the trial on May 2, 1985, this Court ruled that there had been no evidence of negligence on the part of the adult plaintiff Mary Williams. On reconsideration, this Court believes that is incorrect.

The evidence showed that, at the time of the incident giving rise to this action, the minor plaintiff (then only seventeen months old) was alone, clad only in diapers, without adult supervision, in the middle of a residential street, some two hundred feet from his residence. His mother, the adult plaintiff, testified that she was not aware of his absence, until she heard a scream, at the time of the incident. To permit a seventeen month old child to wander in a street without supervision is negligence. Certainly a parent owes to his or her child a level of care and caution equal to that imposed upon drivers of motor vehicles. The evidence supports the conclusion that the mother Mary Williams was negligent, and that her negligence contributed to, and was a proximate cause of, the injuries suffered by her son Marc Williams. This Court finds that the mother is chargeable with fifty percent (50%) of the liability for the injuries suffered by the infant plaintiff, and that any recovery by her on her own claim in this action should be reduced accordingly.

IV. Amendment

As noted in this Court’s order dated and filed on March 5, 1985 (Docket Entry 39), plaintiffs are prohibited, under 28 U.S.C. § 2675(b) from asserting an increased demand for damages unless that demand is premised on “newly discovered evidence not reasonably discoverable at the time of presenting the [initial] claim.” This Court believes that this language means that the new developments must not have been reasonably capable of detection at the time of the initial claim. It is not enough that the extent of the injury was not discovered or contemplated due to the lack of a more thorough examination which could have been conducted earlier. Plaintiffs filed their motion for leave to amend on August 13, 1984 (Docket Entry 25). On August 31, 1984, plaintiffs filed a supplemental memorandum (Docket Entry 30) in response to the reply filed by the United States. (The government’s reply was filed on August 21, 1984 (Docket Entry 27).)

As grounds for this motion, plaintiffs point to the results of a more thorough medical evaluation of the infant plaintiff Marc Williams, conducted by a psychologist (Dr. Jim Milham) on June 25, 1984. Plaintiffs state that at the time of presenting their initial claim to the United States, and of filing the complaint in this action on October 11, 1983, the infant plaintiff was being treated and evaluated by a neurologist (Dr. George E. Levy). Crucial to this Court’s determination of the motion to amend is the fact that plaintiffs have made no allegation that the psychologist could not have examined the infant plaintiff, and rendered his diagnosis, at an earlier time, prior to the presenting of the claim. Plaintiffs allege only that the psychologist did not do so, because plaintiffs did not retain the psychologist earlier.

Leave to amend under 28 U.S.C. § 2675(b) is generally granted “only when an unexpected change occurred either in the law or in a medical diagnosis.” O’Rourke v. Eastern Air Lines, Inc., 730 F.2d 842, 856 (2d Cir.1984). To be allowed to amend, plaintiffs must show that the evidence could not have reasonably been discovered at the time of presenting the initial claim to the United States. Gallimore v. United States, 530 F.Supp. 136, 138 (E.D.Pa.1982); Fraysier v. United States, 566 F.Supp. 1085, 1090 (S.D.Fla.1983) (Spellman, J.) See McDonald v. United States, 555 F.Supp. 935, 957-62 (M.D.Pa.1983) and Jayson, L., 2 Handling Federal Tort Claims § 228.07[2], at pp. 10-51 — 10-53 (revised ed. 1984) and the cases discussed therein. Plaintiffs have not shown that their claim for increased damages is supported by any evidence which was not reasonably discoverable at the time plaintiffs presented their initial claim to the United States. This Court will deny the motion for leave to amend.

This Court will consider the instant order as including the findings of fact and conclusions of law required to be entered, under Rule 52 of the Federal Rules of Civil Procedure, upon the trial of the issue of liability. Although the findings and conclusions have not been stated in separate numbered paragraphs, this Court believes that the instant order satisfies the purpose of Rule 52. Ramirez v. Hofheinz, 619 F.2d 442, 445 (5th Cir.1980); Pierre v. Hess Oil Virgin Islands Corporation, 624 F.2d 445, 450 (3d Cir.1980); McCrea v. Harris County Houston Ship Channel Navigation District, 423 F.2d 605, 610 (5th Cir.) cert. denied 400 U.S. 927, 91 S.Ct. 189, 27 L.Ed.2d 186 (1970).

In a separate order, this Court will establish a final discovery schedule and set a trial date for the remaining issue of damages.

Accordingly, it is

ORDERED and ADJUDGED as follows:

1. The United States, as defendant, is hereby held to be liable to plaintiffs, for the injuries suffered by plaintiffs, as a result of negligence on the part of an agent and employee of the United States.

2. The counterclaim for contribution, asserted by the United States as defendant against the adult plaintiff Mary Williams, is hereby stricken.

3. The adult plaintiff Mary Williams is hereby held to have been negligent, and that negligence is hereby held to have contributed to the injuries suffered by the minor plaintiff, Marc Williams. Any recovery by the adult plaintiff Mary Williams on her claim in this action will be reduced, by fifty percent (50%), to reflect the comparative negligence on her own part.

4. The motion filed by plaintiffs on August 13, 1984 (Docket Entry 25) asking leave to amend their complaint to assert an increased demand for damages is denied, on the grounds that plaintiffs have not offered any newly discovered evidence in support of their motion. The maximum recovery in this action will be limited to thirty-five thousand dollars ($35,000.00) on the claim of the infant plaintiff Marc Williams, and seven thousand five hundred dollars ($7,500.00) (after reduction to reflect the contributory negligence) on the claim of the adult plaintiff Mary Williams.


source: Caselaw Access Project

author: HADEN, Chief Judge.

license: Public Domain

text:
    Ida Jane STEELE, Plaintiff, v. Ricky Dewayne MORRIS, Defendant.
    Civ. A. No. 2:85-0088.
    United States District Court, S.D. West Virginia, Charleston Division.
    April 9, 1985.

      E. Joseph Buffa, Charleston, W. Va., for plaintiff.
    Wayne King, Clay, W. Va., for defendant.
   MEMORANDUM OPINION AND ORDER

HADEN, Chief Judge.

The Plaintiff, Ida Jane Steele, filed the complaint instituting this action on January 16, 1985, alleging malicious use of civil process and/or abuse of process by the Defendant. Plaintiff’s complaint further alleges that Defendant’s actions were willful, deliberate and so outrageous as to give rise to punitive damages. Rather than answer the complaint, the Defendant filed a motion to dismiss the complaint on the grounds that Plaintiff’s claims should have been asserted as a counterclaim in one of the two actions between these same parties brought in the Circuit Court of Clay County, West Virginia, and that the requisite jurisdictional amount of $10,000 was not in controversy. Inasmuch as Defendant’s motion to dismiss was not accompanied by a memorandum of law, in order to facilitate the decisional process the Court ordered the Defendant to file a memorandum of law in support of his motion by March 12, 1985, with the Plaintiff to respond by April 5, 1985. The Court’s Order noticed counsel that upon completion of the briefing schedule the Court would consider this matter mature for decision and may rule thereon without further notice to counsel of record. Contrary to this Court’s scheduling order, the Defendant failed to file a supporting memorandum. Despite Defendant’s briefing default, counsel for Plaintiff dutifully filed a memorandum of law in opposition to Defendant’s motion to dismiss in a timely fashion. In addition to responding to the arguments made in Defendant’s motion to dismiss, counsel for Plaintiff has requested the Court in her responsive memorandum to award Plaintiff her attorney’s fees incurred in preparing the memorandum in opposition to Defendant’s motion to dismiss on the ground that “Defendant’s Motion to Dismiss appears to have been interposed for improper purposes pursuant to Rule 11 ____” The date for submitting memorandum of law having expired pursuant to the terms of this Court’s Order entered February 25, 1985, this matter is now ripe for decision.

The underlying civil actions brought by the parties in the Circuit Court of Clay County, which suits ultimately gave rise to this action, were related in that each involved personal relations between the parties. First in time was a civil paternity suit brought by Steele against Morris. That lawsuit was followed by one brought by Morris against Steele wherein Morris alleged Steele had contracted with him to pay for “stud fees” and that she had breached the agreement, for which breach Morris claimed compensatory and punitive damages. Morris’ breach of contract suit was voluntarily dismissed by him with prejudice on December 21, 1984. The pleadings in this case do not reveal the disposition or status of Steele’s paternity suit.

The foregoing procedural history demonstrates the incorrectness of Defendant’s argument that Plaintiff’s claims asserted herein should be dismissed because they were not raised by counter-claim in one of the Clay County actions because the case law clearly establishes that a cause of action for malicious use of civil process and/or abuse of process does not accrue until the allegedly abusive or malicious lawsuit is terminated. See e.g., Vinal v. Core, 18 W.Va. 1, 23-24 (W.Va.1981). Woodford v. McDaniels, 73 W.Va. 736, 81 S.E. 544 (1914); Allen v. Burdette, 89 W.Va. 615, 109 S.E. 739 (1921). See also Rule 13(a) of the Federal Rules of Civil Procedure “Compulsory Counterclaims. A pleading shall state as a counterclaim any claim which at the time of serving the pleading the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction”. Because the claims herein asserted by Plaintiff had not yet accrued, and thus could not have been asserted by Plaintiff, in the Clay County litigation, Defendant’s motion to dismiss on this basis is denied.

Defendant’s motion to dismiss for lack of jurisdictional amount is equally without merit. Because this is a diversity of citizenship action brought pursuant to 28 U.S.C. § 1332, the actual amount in controversy must exceed $10,000 for this Court to have jurisdiction. The general rule governing whether the requisite jurisdictional amount is in controversy is that the “sum claimed by the Plaintiff controls if the claim is apparently made in good faith.” St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 288, 58 S.Ct. 586, 590, 82 L.Ed. 845 (1938); Prior Oil Well Drilling Co. v. David A. Waldron and Associates, Inc., 601 F.Supp. 778, 779 (S.D.W.Va.1985); Patrick v. Sharon Steel Corp., 549 F.Supp. 1259, 1261 (N.D.W.Va.1982). Before the Court can dismiss an action on this basis it “must appear to a legal certainty that the claim is really less than the jurisdictional amount ____” St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. at 289, 58 S.Ct. at 590; Prior Oil Well Drilling Co. v. David A. Waldron and Associates, Inc., 601 F.Supp. at 779; Patrick v. Sharon Steel Corp., 549 F.Supp. at 1262. Measured against this standard it is clear Plaintiff has properly pled in her ad damnum the requisite jurisdictional amount. Plaintiff’s complaint alleges that as a result of Defendant’s actions she lost her job as a teacher, incurred expenses for attorney’s fees, travel and moving, loss of benefits and has suffered emotional distress, embarrassment, mental anguish and damage to her reputation. Significantly, Plaintiff has also claimed entitlement to punitive damages for Defendant’s willful, deliberate and outrageous conduct. In view of the ad damnum, which appears to be properly pleaded and in good faith, the Court cannot find and conclude “to a legal certainty” that Plaintiff’s damages claim is for “really less than the jurisdictional amount and, therefore, denies Defendant’s motion to dismiss the complaint for lack of jurisdiction.

Upon review of the entire record in this action, the Court is of the opinion that Plaintiffs motion pursuant to Rule 11 for recovery of her attorney’s fees incurred in preparation of her memorandum of law in opposition to Defendant’s motion to dismiss warrants favorable consideration by the Court. Rule 11 provides, inter alia, “The signature of an attorney or party constitutes a certificate by him that he has read the pleading, motion or other paper; that to the best of his knowledge, information and belief formed after reasonably inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.” The advisory committee notes on the 1983 amendment to Rule 11 contains the following observation:

“The new language stresses a need for some prefiling inquiry into both the facts and the law to satisfy the affirmative duty imposed by the rule. The standard is one of reasonableness under the circumstances.” See Kinee v. Abraham Lincoln Federal Savings & Loan Association, 365 F.Supp. 975 (E.D.Pa.1973). “This standard is more stringent than the original good-faith formula and thus it is expected that a greater range of circumstances will trigger its violation. See Nemeroff v. Abelson, 620 F.2d 339 (2d Cir.1980).”

Considering the grounds raised by the Defendant in support of his motion to dismiss and also considering the fact that the law governing same is well settled, the Court cannot help but conclude that had Defendant’s counsel made a reasonable inquiry into “both the facts and the law” before filing the motion to dismiss that he would have been quickly dissuaded from filing that motion. Having done so, the Defendant has seriously delayed the prosecution of this action in that it has been over two months since the filing of the complaint, and because no answer has been filed, the issues have yet to be joined and pretrial deadlines established. This is precisely the type of unnecessary delay Rule 11 is designed to avoid. In her memorandum of law in opposition to Defendant’s motion to dismiss Plaintiff states that the preparation of the memorandum “has cost her four and one-half (4½) hours of attorney’s time at Seventy Five Dollars ($75.00) per hour.” This is precisely the type of unnecessary expense Rule 11 is designed to avoid. These amounts appear to be reasonable to the Court both as to the time expended and the hourly rate. The Court, therefore, hereby grants Plaintiff’s motion for attorney’s fees pursuant to Rule 11 and hereby awards her $337.50. The Defendant is ORDERED to tender the aforementioned amount to Plaintiff’s counsel forthwith, but in any event, within ten days of the date this Order is entered.

      . See Plaintiffs memorandum in opposition to motion to dismiss at p. 1.

        . In Vinal the court observed:
      “To warrant any verdict of the jury or judgment of the court in favor of the plaintiff against the two defendants jointly in such a suit as this for malicious prosecution against them, such as was rendered in the case, it must have been proved on the part of the plaintiff according to the decision in Scott & Boyd v. Shelor, 28 Grat. [891] 899 in the words of Judge Burks slightly modified: ‘First, that the prosecution alleged in the declaration had been set on foot and conducted to its termination, and that it had ended in the final discharge of the plaintiff by the justice ____
      18 W.Va. at 23.

      . The West Virginia Supreme Court of Appeals stated in the Allen case: "That there must be a determination of the suit which it is alleged is maliciously prosecuted is uniformly held ...” 89 W.Va. at 618, 109 S.E. 739.

      . Plaintiff asserts her salary for the present school year would have been $15,079.00, with an additional amount for accumulated sick leave.

      . Plaintiff, of course, would be entitled to recover punitive damages if she can prove at trial the Defendant’s conduct was intentional or willful, wanton and reckless. See e.g., Wells v. Smith, 297 S.E.2d 872 (W.Va.1982); Bond v. City of Huntington, 276 S.E.2d 539 (W.Va.1981).

      . Pursuant to this Court’s case management system, once the issues have been joined the Court enters a comprehensive Pretrial Procedures and Final Scheduling Order setting the trial, final settlement conference and pretrial conference dates and establishing deadlines for completion of discovery, joinder, dispositive motions, motions in limine, etc. See Rule 16 of the Federal Rules of Civil Procedure.


author: SWEET, District Judge.

text:
    John McGHAN, Plaintiff, v. Dick EBERSOL and No Sleep Productions, Inc., Defendants.
    No. 84 Civ. 1316 (RWS).
    United States District Court, S.D. New York.
    April 12, 1985.

      Pryor, Cashman, Sherman & Flynn, New York City (Donald S. Zakarin, Philip R. Hoffman, David A. Nicholas, New York City, of counsel), for plaintiff.

      Patterson, Belknap, Webb & Tyler, New York City (Eugene L. Girden, Esther Koslow, New York City, of counsel), for defendants.
   OPINION

SWEET, District Judge.

Plaintiff John McGhan (“McGhan”) brought this suit against defendants Dick Ebersol (“Ebersol”) and No Sleep Productions, Ltd. (“No Sleep”) alleging violation of a joint venture agreement and misappropriation of ideas. The defendants have now moved for summary judgment, and McGhan has cross-moved for partial summary judgment. For the reasons discussed below, the defendants’ motion is granted and McGhan’s motion is denied.

Facts

This action arises out of the creation of a popular television series called “Friday Night Videos” (“FNV”), a music video show broadcast over the NBC Television Network on Friday nights. FNV is owned by No Sleep, of which Ebersol is an officer and sole owner. Ebersol is a well-known television producer who has established a reputation for his success with late night television programming, in particular for his efforts with the variety and comedy show “Saturday Night Live” and the rock music show “Midnight Special.” McGhan has been involved in the radio and music industry for over a decade, in particular as creator and producer of a youth radio network called “The Source” owned by NBC radio, as director of Rolling Stone Magazine Productions, a radio syndication company, and as creator of the successful radio show Rolling Stone Magazine’s Continuous History of Rock & Roll.

FNV was first conceived in August of 1982, when Ebersol approached Brandon Tartikoff (“Tartikoff”), NBC’s president of Entertainment, to try to persuade him to replace a failing late night comedy show called “SCTV” with a music video show. Although Tartikoff expressed some interest he was not prepared to take action at that time. In late November, 1982, Ebersol’s interest in the project was revived after observing a network news broadcast on the success of Music Television Video (“MTV”), a cable television channel which broadcasts music videos on a 24-hour basis. He again approached Tartikoff with the concept of a music video show.

During the course of conversations over the next few days, Tartikoff expressed considerable interest in the project and suggested that Ebersol come up with a written presentation laying out those elements that would distinguish the NBC show from MTV. Tartikoff subsequently obtained approval to replace SCTV with Ebersol’s series, although the parties dispute whether any binding commitment was made at that time. According to Ebersol, they also decided that even though no pilot was needed because the series would use MTV as a pilot, the series would fulfill a commitment that NBC had earlier made to Ebersol to fund any future pilot he might propose.

Ebersol then contacted McGhan, whom he had met while Ebersol was at Saturday Night Live and McGhan was at The Source and with whom he had discussed the possibility of a simulcast of a musical performance on “Saturday Night Live.” Ebersol described the proposed show as including top videos and interviews and asked McGhan if he would be capable of producing the show. After McGhan said he was, Ebersol asked him to put together a document incorporating any ideas for the shows. Several days later, McGhan presented Ebersol with a document entitled “Loose Thoughts” in which he set forth various ideas for the show, and a few days after that an expanded proposal entitled “Video Rock.” McGhan and Ebersol have differing recollections as to the degree of enthusiasm with which these documents were received by Ebersol. They also contest the degree to which these documents reflected McGhan’s original concepts for the video show rather than Ebersol’s initial proposals.

McGhan concedes that he and Ebersol never specifically discussed ownership of FNV, but contends that Ebersol conveyed to him the understanding that McGhan would be an owner of FNV. Ebersol asserts that it was his understanding that McGhan had agreed on an employment relationship when Ebersol asked him if he could produce the show. Neither party has referred to any specific discussion concerning the nature of their relationship to each other or to the show.

In mid-January 1983 Ebersol and McGhan had a series of meetings to prepare a final proposal to be sent to NBC. As a result of these meetings, a document entitled “A New Late Night Project” was prepared and sent to Tartikoff which incorporated the ideas laid out in “Video Rock” and included several additional ideas. In mid-February, Ebersol and McGhan met with Tartikoff and other NBC executives to discuss the show. According to McGhan, the question of whether or not NBC would own the show was raised at the meeting but not resolved because of a concern about union payments. McGhan contends that following the meeting Ebersol told McGhan that there would be more profit if they owned the show as opposed to NBC, and also assured him that the show would be very lucrative for both of them.

In the weeks following the meeting, a variety of changes and deletions were made before the final format used in the July 29, 1983 premiere was agreed upon. McGhan worked for Rolling Stone until his position was eliminated in February of 1983. After that he worked exclusively on FNV. McGhan contends that he turned down other offers of employment to work on FNV. The quality of work performed by McGhan from February on is disputed. According to Ebersol, problems developed between McGhan and Ebersol right from the start. Ebersol claims that although he specifically instructed McGhan not to negotiate or discuss money with record companies, McGhan entered into commitments with David Benjamin (“Benjamin”) of CBS Records that later had to be renegotiated.

According to Ebersol, by May of 1983 Ebersol was convinced that McGhan was not qualified to be the producer of a network television show, and offered the job to Benjamin. At that point, McGhan was told that he could be the coordinating producer. According to McGhan, Ebersol told him at this time that McGhan had no ownership interest in the show. McGhan states that despite this, he chose to stay with the show because of his financial position and the time he had already put in. McGhan informed Ebersol that his friend Dennis Somach (“Somach”) would negotiate his position on the show for him.

Somach first informed Ebersol’s attorney, Michael Rudell (“Rudell”), that McGhan wanted a salary of $10,000 for each show and $25,000 for all of McGhan’s pre-production services. On June 3, 1983, Somach agreed to $2,750 salary for each new show. According to Ebersol, he also agreed to $3,500 for all of McGhan’s preproduction efforts. The parties dispute whether Somach ever sought to obtain an ownership interest in the show for McGhan. Somach did seek profit participation for McGhan in “ancillaries” (spin-offs) and merchandising, but Rudell advised him that Ebersol would not agree to it. Rudell then arranged for a draft of a contract entitled the “Coordinating Producers Agreement” and incorporating the agreement reached between Somach and Rudell to be sent to McGhan’s attorneys, Stephen Rodner (“Rodner”) and Alan Siegel (“Siegel”). After speaking with McGhan his attorneys requested an ownership interest but were rebuffed. Rudell disputes that this request was ever made. In any event, McGhan subsequently instructed them not to press the issue and to continue to negotiate for him, and made various suggestions and requests that were transmitted to Ru-dell. During this time period McGhan accepted $2,750 for each of the two shows produced. He also accepted $3,500, an amount Ebersol claims was intended to cover all of McGhan’s pre-production efforts but which McGhan asserts was merely his share of the pre-production money paid by NBC. This payment was made following receipt of an invoice from McGhan to Ebersol in which McGhan asked for payment for “services rendered during January 1983 for your company’s new project.” Def. Ex. 11. McGhan testified that he arbitrarily selected that month to avoid any problems with his having collected unemployment insurance during the following months. He stated that he performed no services in January 1983.

On August 16, 1983, before any employment agreement had been signed, McGhan was informed by Benjamin that he had been dismissed. On that same day, his attorneys telephoned Ebersol’s attorneys and said that McGhan was asserting a “proprietary” interest in FNV. Six months later, McGhan filed the complaint in this action asserting an ownership interest in both the show and in the original ideas he contends he contributed to the show, and charging Ebersol with violating a joint venture agreement and with misappropriating McGhan’s original ideas.

Discussion

In this motion, Ebersol has moved for summary judgment on the grounds that McGhan has not provided sufficient evidence of the essential elements of a joint venture, that McGhan has not established the existence of a legal relationship that would entitle him to ownership of any ideas he may have contributed to FNV, and that in any event, none of McGhan’s ideas were sufficiently original to allow him to assert a proprietary interest.

Joint Venture

Under New York law, a “joint venture” is defined as “an association to carry out a single business enterprise for profit; a common enterprise for mutual benefit; a combination of property, efforts, skill and judgment in a common undertaking.” U.S. v. Standard Oil Co., 155 F.Supp. 121, 148 (S.D.N.Y.1957), aff'd, 270 F.2d 50 (2d Cir.1959); see Chalmers v. Eaton Corp., 71 A.D.2d 721, 419 N.Y.S.2d 217 (3d Dept.1979). “The ultimate inquiry is whether the parties have so joined their property interests, skills, and risks that for the purpose of the particular adventure, their respective contributions have become one and the commingled properties and interest of the parties have thereby been made subject to each of the associates on the trust and inducement that each would act for their joint benefit.” Hanlon v. Melfi, 102 Misc.2d 170, 423 N.Y.S.2d 132 (Sup.Ct., Suffolk County 1979). In order to find a joint venture, “[t]he crucial factors to be considered are the intent of the parties, express or implied, whether there was joint control and management of the business, whether there was sharing of profits and losses, and whether there was a combination of property, skill or knowledge.” Sherrier v. Richard, 564 F.Supp. 448, 457 (S.D.N.Y.1983), citing Ramirez v. Goldberg, 82 A.D.2d 850, 439 N.Y.S.2d 959 (2d Dep’t 1981). The most important element in a joint venture is the existence of a contract or agreement; “An agreement between the parties to create a joint venture is essential and whether or not a joint venture exists depends entirely upon the intention of the parties, either express or implied.” Yonofsky v. Wemick, 362 F.Supp. 1005, 1031 (S.D.N.Y.1973), citing U.S. v. Standard Oil Co., supra, 155 F.Supp. at 148. A joint venture may be created by oral agreement or implied by conduct. Sherrier v. Richard, supra; Wooten v. Marshall, 153 F.Supp. 759, 765 (S.D.N.Y.1957).

In the case at hand, McGhan asserts that he has presented sufficient evidence to require a conclusion that there is a genuine issue of material fact as to the existence of an agreement between himself and Ebersol. According to McGhan, both Ebersol’s use of certain words in his discussions with McGhan and the conduct of McGhan and Ebersol indicate that the parties intended to be joint venturers. In particular, he repeatedly points to Ebersol’s use of the collective terms “we” and “us” when discussing FNV with McGhan. He notes that Ebersol told him that he needed someone to work with him, not for him, that he suggested that the show would be lucrative for both of them and that at one point he told McGhan there would be more profit if they owned the show as opposed to NBC, and that if NBC owned it, it would have to buy out their interest in the show. He also points to Ebersol’s use of the words “our entire program” and similar collective pronouns in the proposal entitled “New Late Night Project” that was submitted to NBC.

In addition, McGhan suggests that Ebersol’s actions demonstrate that he and McGhan intended to be joint venturers or that at the very least Ebersol attempted to convey that impression to McGhan. In support, he points to the fact that Ebersol solicited McGhan’s ideas, that McGhan was present at the February 1983 meeting with NBC, and in particular to the fact that McGhan worked for four months on the show without any payment or promise of payment. He contends that it is illogical to assume that someone who had been making a salary of $100,000 a year would have been willing to work without pay just for the possibility of obtaining future employment. McGhan also points to the fact that both Somach and Siegel testify that McGhan told them he was a co-owner of FNV.

McGhan has failed to provide enough evidence to create a genuine issue of material fact as to the existence of an agreement. In order to find a joint venture, “there must be specific agreement that the individuals are engaging in a joint enterprise ... the agreement must manifest the intent of the parties to be associated as joint venturers.” Yonofsky v. Wernick, supra, 362 F.Supp. at 1021. The fact that Ebersol used plural rather than singular pronouns is not enough to establish that Ebersol intended to enter into a joint venture with McGhan. While McGhan cites cases where the parties’ language was taken into consideration in determining whether or not an agreement existed, see, Sherrier v. Richard, supra; Forman v. Lumm, 214 A.D. 579, 212 N.Y.S. 487, 491 (1st Dept. 1925), both involve situations where the parties referred to their relationship as a partnership or used similar language that went considerably beyond the use of collective pronouns. Furthermore, McGhan himself referred to FNV as “your new project” in the invoice he sent to Ebersol. Nor does Ebersol’s decision to ask McGhan for input or to include him at meetings represent probative evidence of his intent. While McGhan’s decision to work on FNV without pay suggests that he felt he would eventually be compensated in a manner that would justify his decision, it does not provide proof of any agreement. McGhan himself testified that he did not have a clear understanding as to ownership after his initial meetings with Ebersol and that it was a “nebulous” agreement, although he felt positive that Ebersol had intentionally implied that McGhan would have an ownership interest. At no time was ownership ever discussed.

In addition, McGhan’s arguments are undercut by the fact that he negotiated for an employment contract and accepted payment in accordance with that contract, even though it was never signed. Whether or not the check for $3,500 that McGhan received was actually in payment for all of his pre-production services, a conclusion that seems likely given that that was the sum so designated in the contract, or merely a payment from NBC’s production budget, his acceptance of a set payment per show in accordance with an employment contract is inconsistent with his claims. McGhan claims that the employment contract is irrelevant to his assertions of an ownership interest, because he only began his employment negotiations to protect his financial interests when he realized for the first time that Ebersol would not voluntarily give him an ownership interest. Given the lack of evidence of any prior understanding as to a joint venture, however, McGhan’s willingness to negotiate for an employment contract does not support his claim of ownership.

Furthermore, McGhan has offered no proof of an agreement to share profits or losses, an essential element of a joint venture relationship. See Mallis v. Bankers Trust Co., 717 F.2d 683, 690 (2d Cir.1983); Yonofsky v. Wernick, supra, 362 F.Supp. at 1031. Ebersol testified that he spent between ten and twenty thousand dollars on the show before NBC agreed to pay pre-production costs. There is no evidence that Ebersol asked McGhan to bear any of those expenses or that there was any expectation on McGhan’s part that he might be required to participate in any losses incurred. McGhan stated that he believed that there would be no risk of loss because NBC would put up any initial costs. However, his belief that the show would not involve a loss does not represent proof of any agreement to share profits or losses.

Additionally, McGhan has failed to establish another crucial element of a joint venture, namely, that the parties have “joint control and management of the business.” Ramirez v. Goldberg, 82 A.D.2d 850, 439 N.Y.S.2d 959 (2d Dept.1981); Yonofsky v. Wemick, supra, 362 F.Supp. at 1031. McGhan himself conceded that his powers and responsibilities were limited by Ebersol and that he was not able to operate outside of Ebersol’s direction and control. Unlike Ebersol, he did not have the power to hire or to enter into binding contracts.

The evidence that McGhan has presented may be sufficient to support the conclusion that at least up until May 1983 McGhan believed that he was entitled to something in the form of an interest in the show. But the evidence cannot support a finding of an implied agreement by both parties to enter into a joint venture. The reasoning of the district court in Yonofsky v. Wemick, supra, is equally applicable here:

Viewed in the light most favorable to plaintiff, the testimony reveals that [plaintiff] was promised something by defendant if he aided [defendant] ... [b]ut that something.,_was never clearly revealed; it certainly was not a fifty-percent interest in defendant’s business. Perhaps it was a promise of employment, but even this was never definitely worked out between the parties. Whatever arrangement may have existed between the parties was at best vague and indefinite.

362 F.Supp. at 1036. The evidence does not reveal that the parties had any definite arrangement or understanding of their relationship between the time that Ebersol first approached McGhan and the point at which Somach began to negotiate McGhan’s contract. Having failed to adequately protect his own interests, McGhan cannot now rely on this court to provide that protection. Because he has not provided evidence that could establish the existence of any of the essential elements of a joint venture, Ebersol’s motion for summary judgment is granted as to McGhan’s claims relating to a joint venture.

Misappropriation

In certain situations, the courts of New York will “afford protection to persons who ... have disclosed their ideas to others in the expectation that the idea would be used, and the use compensated.”. Vantage Point, Inc. v. Parker Brothers, Inc., 529 F.Supp. 1204, 1216 (E.D.N.Y.1981), aff'd without op. sub. nom. Vantage Point, Inc. v. Milton Bradley, 697 F.2d 301 (2d Cir.1982). In order for an idea to be susceptible to a claim of misappropriation, two essential elements must be established: the requisite legal relationship must exist between the parties, and the idea must be novel and concrete. The legal relationship between the plaintiff and defendant may be either a fiduciary relationship, or based on an express contract, an implied-in-fact contract, or a quasi-contract. Id. at 1216-17.

Ebersol first contends that McGhan’s claim must fail because he was fully compensated for any ideas that he allegedly contributed. In support, he asserts that the payment of $3,500 that McGhan received in June of 1983 was in payment for all services, including the creation of ideas, provided by McGhan up until production began. However, McGhan disputes this characterization of the $3,500 payment. Although the “Coordinating Producer’s Agreement” provides for the payment of this sum for pre-production services, there is no indication that the parties intended “services” to include the development of original ideas for use on the show. The contract also provided that Ebersol would own all ideas contributed to the show that were used, although McGhan could retain ownership of all unused ideas. However, the contract was never signed and thus may serve only as evidence to be submitted to the trier of fact. The degree to which MeGhan was actually compensated for his original ideas, if any, raises a genuine issue of material fact that cannot appropriately be resolved on a motion for summary judgment.

Ebersol also contends that no issue of material fact is presented as to whether a fiduciary relationship or an implied-in-fact or implied-in-law contract existed between the parties. However, while the evidence submitted is not enough to support the conclusion that the parties entered into a joint venture, it does create a factual issue as to the actual nature of the relationship that existed between the parties. A confidential or fiduciary relationship exists between parties “where the parties do not deal on equal terms and one trusts and relies on the other.” Sachs v. Cluett, Peabody & Co., 265 A.D. 497, 39 N.Y.S.2d 853, 856 (1st Dept.), aff'd, 291 N.Y. 772, 53 N.E.2d 241 (1944). Ebersol contends that because MeGhan was represented by sophisticated and experienced persons, including attorneys, when his employment contract was negotiated, there was a pattern of equality and arm’s length negotiations. However, there is no evidence that MeGhan was represented by anyone between November 1982 and May 1983, and the circumstances and nature of MeGhan and Ebersol’s dealings during that time might support the conclusion that McGhan relied upon Ebersol to protect his interests. Thus, a question of fact is presented as to the extent to which a fiduciary relationship existed. See Cole v. Phillips Lord, Inc., 262 A.D. 116, 28 N.Y.S.2d 404, 410 (1st Dept.1941); Klein v. Ekco Productions Co, 135 N.Y.S.2d 391, 395-96 (Sup.Ct. Kings Co.), aff'd, 285 A.D. 906, 139 N.Y. S.2d 258 (1954).

Similarly, the evidence as to the circumstances surrounding their relationship might support the conclusion that the parties had entered into an implied agreement that MeGhan would be fairly compensated for any original ideas that he might contribute. An implied-in-fact contract may be based upon industry custom or usage regarding submission and use of ideas. See Vantage Point, Inc. v. Parker Bros., Inc., supra, 529 F.Supp. at 1216; Bevan v. CBS, 329 F.Supp. 601, 608 (S.D.N.Y.1971). A determination as to the existence of such an implied agreement must be made by the trier of fact by examining the manner in which Ebersol and MeGhan conducted themselves in light of ordinary industry practice as to use of ideas. Finally, the degree to which Ebersol’s actions with respect to MeGhan were sufficiently improper and his enrichment sufficiently unjust so as to entitle MeGhan to compensation on a quasi-contract basis is also a question of fact. Because the issue of the nature of the relationship established between the parties raises genuine issues of material fact, it cannot be resolved on a motion for summary judgment.

Even if MeGhan successfully establishes the existence of the requisite legal relationship between himself and Ebersol, however, he must also establish that the ideas for which he seeks compensation were both novel and concrete. MeGhan contends that he created the following ideas for FNV and that all of them are novel:

(1) “The Reel Rock Awards” (video awards)
(2) “Where Are They Now” (with Ebersol) (interviews with rock stars of yesteryear)
(3) “The Video Vote” (a 900 call-in number for viewers to call and vote on videos)
(4) “Private Reels” (Rock group’s private footage)
(5) Stereo simulcast of a network series on a continuing basis
(6) “Hall of Famers” (tributes to classic rock musicians and bands)
(7) A highly stylized announcer rather than an on-screen host

An examination of McGhan’s deposition testimony, however, reveals that he is unable to claim compensation for any of these ideas. At his deposition, MeGhan admitted that the “Reel Rock Awards” segment was never used on FNV (McGhan Tr. at 221, 259). A plaintiff cannot recover for misappropriation of ideas unless the ideas are actually used by a defendant. Seymore v. Readers Digest Ass’n., Inc., 493 F.Supp. 257, 265 (S.D.N.Y.1980); Educational Sales Programs, Inc. v. Dreyfus Corp., 65 Misc.2d 412, 317 N.Y.S.2d 840, 843 (Sup.Ct. N.Y.Co.1970). McGhan also admitted at his deposition that the “Where Are They Now” segment, a segment dropped after the first show, was “absolutely Dick’s idea” (McGhan Tr. at 227), although in his affidavit submitted in opposition to this motion he now claims it as his own. (McGhan Aff. ¶ 20). The Second Circuit has held that a discrepancy between deposition testimony and affidavits will not preclude summary judgment:

If a party who has been examined at length on deposition could raise an issue of fact simply by submitting an affidavit contradicting his own prior testimony, this would greatly diminish the utility of summary judgment as a procedure for screening out sham issues of fact.

Perma Research and Serv. Co. v. Singer Co., 410 F.2d 572, 578 (2d Cir.1969). Based on McGhan’s deposition testimony, he has no right to claim ownership of the “Where Are They Now” segment.

As to the 900 number “Video Vote” segment, which was also dropped by the show, McGhan conceded in his deposition that MTV had featured a 900 number “Video Fight” before FNV was ever aired and that a 900 call in vote had already been used by Ebersol on SNL. McGhan Tr. at 70, 491-92. While it is true that the fact that a plaintiff’s idea “embodies elements long in use does not of itself negate originality or novelty,” Baut v. Pethick Const. Co., 262 F.Supp. 350, 361 (M.D.Pa.1966), in order to be protectable, adaptions of ideas must:

show genuine novelty and invention, and not a merely clever or useful adaption of existing knowledge ... [t]he judicious use of existing means or the mixture of known ingredients in somewhat different proportions — all the variations on a basic theme — partake more of the nature of elaboration and renovation than of innovation.

Educational Sales Programs, Inc. v. Dreyfus Corp., supra, 317 N.Y.S.2d at 844 (citation omitted). Furthermore, a plaintiff may not claim that an idea is novel if the idea was already in use in the industry at the time of plaintiff’s submission or if the defendant himself had already used that idea. See Bram v. Dannon Milk Prods., 33 A.D.2d 1010, 307 N.Y.S.2d 571 (1st Dept. 1970); Downey v. General Foods Corp., 31 N.Y.2d 56, 334 N.Y.S.2d 874, 286 N.E.2d 257 (Ct.App.1972). In this case, Ebersol had already made use of the general idea of a telephone call in on SNL, and MTV had featured the identical element in the context of a music video show. The mere fact that on FNV the idea was used for the first time on a network, rather than cable, television series does not qualify it for protection as novel or original.

Similarly, the concept behind “Private Reels” was already in use in the industry prior to FNV. The idea that McGhan proposed under the heading “Private Reels” — the viewing of private footage filmed by rock bands and shown only at their concerts — was not used on FNV (McGhan Tr. at 254, 257), and the segment entitled “Private Reels” as it appeared on FNV consists of interviews with various rock stars. McGhan has conceded that MTV has interview segments, (McGhan’s Tr. at 124) and that having interviews was one of the first ideas discussed by Ebersol and McGhan (McGhan’s Tr. at 86). The idea of interviewing performers or showing them “behind the scenes” cannot qualify as a unique and novel concept.

The concept of a simulcast is also one that had been used in the industry prior to FNV. As McGhan testified at his deposition, MTV had previously been simulcast over The Source, and SNL had also used a simulcast prior to FNV’s origination. McGhan contends, however, that it was he who had first suggested the idea of a simulcast on SNL to Ebersol in 1981, and that in any event a continuing simulcast as a feature of a network television program had never before been attempted. Even assuming that the concept of a simulcast was McGhan’s original and innovative creation while he was at The Source, he cannot now lay claim to the use of the idea on FNV after it has been used in the industry:

If the idea or suggestion is already the subject of general knowledge, or has as its basis an improvement of a standard technique, or better use of existing means, or the “mixture of known ingredients in somewhat different proportions” ... the idea has no value as property____

Seymore v. Readers’ Digest Ass’n., supra, 493 F.Supp. at 265. The concept of a continuing simulcast as a regular feature of a program may never have been used before FNV, but it represents no more than the “mixture of known ingredients in somewhat different proportions.” See Futter v. Paramount Pictures, Inc., 69 N.Y.S.2d 438, 440 (Sup.Ct. N.Y.Co.1947) (“merely combining these obvious elements cannot convert a general idea, which is not novel, into a unique concept.”).

As to the segment entitled “Hall of Famers,” the concept of a tribute to classic rock musicians or bands, such as The Beatles, also fails to qualify as a unique or novel concept. Instead, it also represents an “idea or suggestion ... already the subject of general knowledge.” Seymore v. Readers’ Digest Ass’n., supra, 473 F.Supp. at 265. Ebersol testified that MTV had previously aired old musical footage. Ebersol Tr. at 941. In making a determination as to the extent to which an idea can be protected, “the requirements of originality and novelty should be viewed in the entire context in which the elements are used.” Baut v. Pethick Const. Co., supra, 262 F.Supp. at 361. In the context of a television show focusing exclusively on rock videos and rock stars, the concept of a segment featuring older musicians and bands cannot be considered to be a novel and original idea but instead represents “more of the nature of elaboration and renovation than of innovation.” Educational Sales Programs, Inc. v. Dreyfus Corp., supra, 317 N.Y.S.2d at 844. McGhan’s assertions of originality cannot overcome his failure to provide “some affirmative indication that his version of relevant events is not fanciful.” Quinn v. Syracuse Model Neighborhood Corp., 613 F.2d 438 (2d Cir.1980).

The last element to which McGhan lays claim is FNV’s use of an off-camera announcer. Ebersol claims that this cannot qualify as novel because MTV also uses an announcer, although he appears on-camera rather than off screen. McGhan, however, asserts that it is this very distinction between a host and a highly stylized off-camera announcer that makes this element unique. This distinction, however, is not enough to allow McGhan to assert that this idea is his original creation. A litigant opposing summary judgment “may not rest upon mere conclusory allegations or denials.” SEC v. Research Automation Corp., 585 F.2d 31, 33 (2d Cir.1978). McGhan has not demonstrated that this is an idea that shows “genuine novelty and invention, and not a merely clever or useful adaption of existing knowledge____” Educational Sales Programs, Inc. v. Dreyfus Corp., supra, 317 N.Y.S.2d at 844.

Finally, McGhan cannot rely on the press releases distributed by NBC to promote the show and listing the show as “revolutionary” and containing “a substantial amount of feature material that viewers won’t be able to see anywhere else” as proof that he contributed novel ideas to FNV. He has been unable to point to any specific component of FNV that did not have its origin either in MTV or in the industry in general. Because McGhan has failed to produce enough evidence to support the conclusion that he contributed novel and original ideas to FNV, his claim of misappropriation must fail.

McGhan’s Motion for Partial Summary Judgment

In his responsive papers, McGhan asserts that he is entitled to partial summary judgment in the sum of at least $24,750. He bases his claim on the fact that during the course of Ebersol’s deposition he testified that as far as he knew both Benjamin and Lou Del Prete (“Prete”), MeGhan’s successor as Coordinating Producer, were essentially guaranteed payment for their services for the first 13 week cycle of FNV. Ebersol also stated that he was not aware of any distinctions, with respect to guarantees of payment, as to McGhan on the one hand and Benjamin and Prete on the other. Ebersol Tr. at 812-816. On the basis of this testimony, McGhan asserts that he should be entitled to guaranteed payment for the remaining shows in the first cycle. However, Ebersol also testified that he was not fully aware of the provisions of the agreements reached with the various parties and deferred to the more complete knowledge of his lawyer, Rudell. Furthermore, a “play or pay” provision was something that McGhan’s representatives attempted unsuccessfully to include in the draft contract. There is no evidence that Ebersol and McGhan ever agreed on such a provision. The mere fact that Ebersol was unclear as to what provisions were included in McGhan’s proposed contract does not entitle McGhan to exactly the same provisions as his successors.

For the reasons discussed above, Ebersol’s motion for summary judgment is granted and McGhan’s motion is denied. The case is dismissed and the clerk is directed to enter judgment.

IT IS SO ORDERED.


author: GIERBOLINI, District Judge.

text:
    UNITED STATES of America, Plaintiff, v. APPROXIMATELY 2,475,840 LBS. OF CLEAN, UNROASTED COFFEE BEANS arriving in San Juan on July 15, and 29, 1984, Defendant, Seaside Realty Corp., Claimant.
    Civ. No. 84-2263 GG.
    United States District Court, D. Puerto Rico.
    April 16, 1985.
    Daniel López Romo, U.S. Atty., Hato Rey, P.R., for plaintiff.
   OPINION AND ORDER

GIERBOLINI, District Judge.

This is a civil action in rem seeking the forfeiture of defendant, approximately 2,475,840 pounds of coffee beans, seized on or about August 6, 1984 by officers of the United States Customs Service for violations of 19 U.S.C. § 1592 and 18 U.S.C. § 545. Jurisdiction is invoked under 28 U.S.C. §§ 1345 and 1355.

The claimant and apparent owner of the defendant coffee beans, Seaside Realty Corporation (Seaside) filed a motion to dismiss pursuant to Rules 12(b)(1) and (6) of the Federal Rules of Civil Procedure, contending that this court lacked jurisdiction to hear plaintiffs claim under 19 U.S.C. § 1592. It also asserted that forfeiture under 18 U.S.C. § 545 was improper. Plaintiff then voluntarily dismissed its claim under 19 U.S.C. § 1592. Thereafter, a hearing was held on claimant’s motion to dismiss and the parties were granted time to file memoranda on the legislative history of Section 545.

In its motion to dismiss, claimant contends that the language of the forfeiture provision of the statute makes it clear that a conviction or, at least, an indictment is required to proceed under Section 545. Accordingly, claimant asks for dismissal of this action since neither a conviction nor an indictment of a person exists in this case.

Opposing the proposition that a conviction or an indictment is a prerequisite to a Section 545 forfeiture, plaintiff cites several cases, holding that an acquittal of a defendant charged with the violation of Section 545 does not bar a subsequent forfeiture. See One Lot Emerald Cut Stones and One Ring v. United States, 409 U.S. 232, 93 S.Ct. 489, 34 L.Ed.2d 438 (1972) (acquittal of a violation under Section 545 does not bar a forfeiture under 19 U.S.C. § 1497); U.S. v. One 1971 Mercedes Benz 2-Door Coupe, 542 F.2d 912 (4th Cir.1976) (forfeiture under 49 U.S.C. 781 and 782 not barred by prior acquittal); U.S. v. One Clipper Bow Ketch Niskku, 548 F.2d 8 (1st Cir.1977) (dismissal of criminal charges with prejudice does not affect forfeiture under 21 U.S.C. § 881 and 49 U.S.C. § 782); U.S. v. One Assortment of 89 Firearms, 465 U.S. 354, 104 S.Ct. 1099, 79 L.Ed.2d 361 (1984) (a gun owner’s acquittal on criminal charges involving firearms does not preclude a subsequent in rem forfeiture proceedings against those firearms under the Gun Control Act, 19 U.S.C. § 924(d)). See also U.S. v. One 1969 Buick Riviera Automobile, 493 F.2d 553 (5th Cir.1974) (dismissal with prejudice of a criminal indictment charging violations of 21 U.S.C. §§ 841(a)(1) and 952(a) does not bar a subsequent forfeiture action under 19 U.S.C. §§ 1595(a) and 952(a)); Leiser v. U.S., 234 F.2d 648 (1st Cir.1956), cert. denied, 352 U.S. 893, 77 S.Ct. 133, 1 L.Ed.2d 87 (1956) (acquittal under 18 U.S.C. § 545 does not bar forfeiture under 19 U.S.C. § 1497).

However, the cases cited by plaintiff shed little light on the issue at hand since they do not decide whether Title 18, § 545, itself, requires a conviction or an indictment. First, they all involve the situation where a defendant has already gone through an indictment process. Second, they merely stand for the general proposition that the doctrines of collateral estoppel and double jeopardy are inapplicable as defenses in forfeiture proceedings where a defendant, charged with violating Section 545, was previously acquitted or his indictment previously dismissed with prejudice. Thus, even if it could be said for certain, that an acquittal would bar a forfeiture proceeding under Section 545, the question of whether a formal indictment is necessary would still be left open.

Moreover, all the cases cited by plaintiff involve forfeiture provisions other than Section 545 and thus, make clear only that an acquittal or dismissal does not bar a subsequent forfeiture under a different statute. No one is contending that a conviction or an indictment is needed in order to proceed under a general forfeiture statute — just that one is needed pursuant to Section 545. This being the ease, it is necessary to delve into the construction and the legislative history of the statute in order to decide the issue now at hand.

Section 545 is entirely based on The Tariff Act of 1930, Title 19, Section 1593 of the United States Code which provided in part:

(b) IMPORTATION CONTRARY TO LAW. If any person fraudulently or knowingly imports or brings into the United States, or assists, buys, sells, or in any manner facilitates the transportation, concealment, or sale of such merchandise after importation, knowing the same to have been imported or brought into the United States contrary to law, such merchandise shall be forfeited and the offender shall be fined in any sum not exceeding $5,000 nor less than $50, or be imprisoned for any time not exceeding two years, or both, (emphasis added)

As evident from the language of this statute, the forfeiture provision was part of the punishment imposed for committing the criminal offense. As such, any merchandise brought into the United States in violation of this section was automatically forfeited to the United States upon the conviction of a defendant; no separate proceeding was necessary.

On June 25, 1948, Section 1593 was amended and included in the revision of Title 18 in its present form as Section 545. (See Note 1). In addition to making changes in the phraseology, Congress separated the forfeiture provision from the penalty clause. According to the Revision Notes under Section 545, such changes were drafted “to make it clear that forfeiture was not dependent upon conviction." The apparent effect of these changes was to allow the owner of the property in question to assert his defenses against forfeiture, in a separate in rem proceeding.

In United States v. Brigance, 472 F.Supp. 1177 (S.D.Texas 1979), the court addressed the question of whether Rule 7(c)(2) of the Federal Rules of Criminal Procedure — applicable only to criminal forfeitures — was applicable to the forfeiture provision of Section 545. In deciding that Section 545 did not require that notice of the forfeiture be given in an indictment, the court held:

The problem of adequate notice does not exist when 18 U.S.C. 545 is involved, since it contains a forfeiture provision which is in rem in nature, not in person-am, and which is not an automatic and direct consequence of conviction. Although the language of 545 does not expressly so state, the history behind it supports the conclusion that enforcement of that section’s forfeiture clause requires separate in rem proceedings. Indeed, the legislative history of 545 gives clear indication that the forfeiture provision contained therein was deliberately phrased so as to avoid having forfeiture dependent upon conviction. See House Report No. 304, 80th Cong. 1st Sess., A46 (1947). Id. at 1181.

If Section 545 requires a separate in rem proceeding against the property in question, then it stands to follow that neither a conviction of the offender nor an indictment is a necessary prerequisite. Indeed, the result would be different if the forfeiture clause of Section 545 was part of the punishment for the criminal offense as it was with Section 1593.

In its motion, claimant argues that while Congress intended to provide a separate in rem proceeding, it did not intend to eliminate the requirement of obtaining a prior conviction. Thus, claimant essentially contends that Section 545 requires a separate in rem proceeding to be held after the conviction of the offender. We decline to adopt this interpretation. The language of the Revision Notes is clear — forfeiture is not dependent upon conviction. If Congress had wanted to make a conviction a prerequisite to a Section 545 forfeiture, then it would have phrased the provision in a way similar to that of 21 U.S.C. § 848 or of 18 U.S.C. § 1963 or would have left the wording of 19 U.S.C. § 1593 unrevised.

While a forfeiture proceeding could not be commenced until the conviction of the offender at Common Law, See Various Items of Personal Property, et al v. United States, 282 U.S. 577, 51 S.Ct. 282, 75 L.Ed. 588 (1931), we now recognize that where a statute contains a forfeiture clause which is in rem in nature and not in personam, and the clause does not expressly or impliedly provide for a prior conviction of the individual offender, such a conviction is not a prerequisite of the forfeiture. A conviction in these cases is not necessary because the property, and not the person, is considered to be the offender. See 36 Am Jur 2d at 623; Various Items, supra; Goldsmith-Grant Co. v. United States, 254 U.S. 505, 41 S.Ct. 189, 65 L.Ed. 376 (1921); The Palmyra, 12 Wheat 1 (1827).

We are mindful that the question we decide today is one of first impression in our Circuit and has not been explicitly decided by any other circuit. Therefore, we will be willing to amend this order to certify this matter to the United States Court of Appeals for the First Circuit pursuant to 28 U.S.C. § 1292(b) if claimant so requests.

Wherefore, in view of the above, claimant’s motion to dismiss is hereby denied.

SO ORDERED.

      . Title 18, § 545 of the United States Code provides in part that:
      Whoever knowingly and willfully, with intent to defraud the United States, smuggles, or clandestinely introduces into the United States any merchandise which should have been invoiced, or makes out or passes, or attempts to pass, through the customhouse any false, forged, or fraudulent invoice, or other document or paper; or
      Whoever fraudulently or knowingly imports or brings into the United States, any merchandise contrary to law, or receives, conceals, buys, sells, or in any manner facilitates the transportation, concealment, or sale of such merchandise after importation, knowing the same to have been imported or brought into the United States contrary to law—
      Shall be fined not more than $10,000 or imprisoned not more than five years, or both.
      ******
      Merchandise introduced into the United States in violation of this section, or the value thereof, to be recovered from any person described in the first or second paragraph of this section, shall be forfeited to the United States, (emphasis added)

      . In United States v. One Lot Emerald Cut Stones and One Ring, 461 F.2d 1189 (5th Cir.1972), aff’d 409 U.S. 232, 93 S.Ct. 489, 34 L.Ed.2d 438 (1972), the defendant had been acquitted of violating Title 18, § 545. Following the acquittal the government sought to forfeit the gems and ring that were allegedly smuggled and clandestinely introduced into the United States pursuant to Section 545 and under 19 U.S.C. § 1497. The court held that an acquittal under Section 545 did not bar a forfeiture action under Section 1497 because no crime of any sort had to be proved in order to impose the sanction. With respect to Section 545, the court stated:
      ... the criminal section requires proof beyond a reasonable doubt of a knowing and willful smuggling or clandestinely introducing into the United States, merchandise with intent to defraud the United States which should have been invoiced. Then it is equally plain that forfeiture provisions of the same section provide for forfeiture only if the merchandise is "introduced into the United States in violation of this section.” Thus, to obtain a forfeiture under Section 545, it must be proved that the gems, here in issue, were knowingly and willfully smuggled or clandestinely introduced into the United States with intent to defraud the United States.
      In affirming the Fifth Circuit, the Supreme Court in Emerald, 409 U.S. 232, 93 S.Ct. 489, held that neither collateral estoppel nor the doctrine of double jeopardy barred a forfeiture proceeding. Collateral estoppel would be a bar only if, in the prior criminal proceeding, the elements of a Section 1497 forfeiture had been resolved against the government. Id. at 234, 93 S.Ct. at 491. The Court reasoned that the difference in the burden of proof in criminal and civil cases would preclude the application of collateral estoppel. Citing Helvering v. Mitchell, 303 U.S. 391, 58 S.Ct. 630, 82 L.Ed. 917 (1938), the Court stated: “[t]he acquittal of the criminal charges may have only represented ‘an adjudication that the proof was not sufficient to overcome all reasonable doubt of the guilt of the accused.’ ” Id. at 235, 93 S.Ct. at 492.
      The Court stated further that double jeopardy would not bar forfeiture because neither two criminal trials nor two criminal punishments were involved. Forfeiture under Section 1497 is purely a civil sanction and it is within Congress’ prerogative to impose both civil and criminal sanction for the same act or omission. Id. at 235, 93 S.Ct. at 492.
      Moreover, the Court stated that Section 1497 "does not result in a forfeiture by reason of the commission of a criminal offense. A forfeiture results from the act of importation without following customs procedures; no criminal offense, much less a criminal conviction is required.” Id. See Footnote 6 at 236, 93 S.Ct. footnote 6 at 492.
      With respect to Section 545, however, the Supreme Court expressly refused to decide the question whether an acquittal under Section 545 barred a subsequent forfeiture under the same statute. But see U.S. v. Two Hundred and One, Fifty Pound Bags of Furazolidone, 52 F.R.D. 222 (1971) (acquittal under Section 545 is a bar to a forfeiture under the same statute.)

      . Rule 7(c)(2) provides as follows: "No judgment of forfeiture may be entered in a criminal proceeding unless the indictment or the information shall allege the extent of the interest or property subject to forfeiture.”

      . Title 21, § 848(a)(2) provides: "Any person convicted under paragraph (1) of engaging in a continuing criminal enterprise shall forfeit to the United States — (A) the profits obtained by him in such an enterprise, and (B) any of his interest in, claim against, or property or contractual rights of any kind affording a source of influence over, such enterprise.” Title 18, Section 1963(a) provides in part: “Whoever violates any provision of section 1962 of this chapter shall be fined not more than |25,000 or imprisoned not more than twenty years or both, and shall forfeit to the United States (1) any interest he has acquired or maintained in violation of section 1962 and ...” In addition, Section 1963(c) goes on to provide: "Upon conviction of a person under this section, the court shall authorize the Attorney General to seize all property or other interest declared forfeited under this section upon such terms and conditions as the court shall deem proper. ...”


author: WARRINER, District Judge.

text:
    In re UNCLAIMED BALANCE ACCOUNT CAN 200.
    United States District Court, E.D. Virginia, Richmond Division.
    April 16, 1985.
   OPINION

WARRINER, District Judge.

The Clerk of the Court for the Eastern District of Virginia has requested that certain funds on deposit with the Treasurer of the United States in a Symbol 200 account, an account in the name of and to the credit of the United States District Court for the Eastern District of Virginia, be transferred to a Symbol X600 account, an account in the name of and to the credit of the United States. The Symbol X600 denominated account is generally unclaimed monies.

In support of the request the Clerk has submitted a memorandum dated 28 December 1983 from William M. Nichols, General Counsel, Financial Management Division of the Administrative Office, to Dewey R. Heising, Chief of the Financial Management Division, and a resulting memorandum from Mr. Heising dated 8 February 1984 to the Clerks of all United States District Courts.

The list of accounts submitted by the Clerk with the transfer request itemizing the amount of money on deposit from various lawsuits indicates that all of these funds are for unclaimed wages obtained from employers under provision of the Fair Labor Standards Act [29 U.S.C. §§ 201-219]. However, the precise statutory source of these wages is not identified. From the briefs accompanying the request it appears that the monies were received by the Court from actions brought either under 29 U.S.C. § 216 or under 29 U.S.C. § 217 or that portions were paid into court under one section and other portions under the other.

Under these circumstances the Court does not have sufficient information to determine whether or not it would be appropriate to make the transfer requested by the Clerk.

Section 216 sets out procedures for the disposition of unclaimed funds recovered from actions brought under that section. Section 216(c) provides:

Any sums thus recovered by the Administrator [Secretary of Labor] on behalf of an employee pursuant to this subsection shall be held in a special deposit account and shall be paid, on order of the Administrator [Secretary of Labor], directly to the employee or employees affected. Any such sums not paid to an employee because of inability to do so within a period of three years shall be covered into the Treasury of the United States as miscellaneous receipts.

Accordingly if the funds the Clerk requested be transferred are those that were recovered under § 216, this Court should not have received or held the funds in any event. They should have been held in “a special deposit account” subject to the order of the Secretary. Deposits of § 216 funds to the credit of the Court was error since such a fund would not be subject to the “order of the [Secretary].” The proper disposition of any such funds on deposit to the credit of the Court is to transfer the money to the Secretary of Labor who can then comply with the provisions of § 216(c) upon the expiration of the requisite three-year period.

Section 217 does not contain any provisions concerning the disposition of unclaimed wages. Section 217 deals with injunction proceedings aimed at enjoining violations by an employer who fails to pay the minimum wage or fails to pay his employees overtime compensation. It has been held that as part of its equity power a court may order the employer to make restitution for unpaid minimum wages and for overtime violations. See Mitchell v. Robert De Mario Jewelry, Inc., 361 U.S. 288, 80 S.Ct. 332, 4 L.Ed.2d 323 (1960); Wirtz v. Milton J. Wershow Co., 416 F.2d 1071, 1072 (9th Cir.1969).

Generally when an award of restitution is made under § 217 the money is entrusted by the Court to the Secretary who sees to it that the aggrieved employees receive compensation. See Usery v. Godwin Hardware, Inc., 426 F.Supp. 1243, 1269 (W.D.Mich.1976). The Secretary of Labor, if he is unable to locate the employees, at times, will submit those unclaimed funds to the court. See, e.g., Usery, 426 F.Supp. at 1269. Because there is no statutory provision specifically mentioning the procedure to be followed in § 217 actions, I assume 28 U.S.C. §§ 2041 and 2042 control the disposition of § 217 funds when they have been returned to a court by the Secretary.

Section 2041 provides:

All monies paid into any court of the United States, or received by the officers thereof, in any case pending or adjudicated in such court, shall be forthwith deposited with the Treasurer of the United States or a designated depository, in the name and to the credit of such court. This section shall not prevent the delivery of any such money to the rightful owners upon security, according to agreement of parties, under the direction of the court.

Section 2042 provides:

No money deposited under § 2041 of this title shall be withdrawn except by order of court.
In every case in which the right to withdraw money deposited in court under § 2041 has been adjudicated or is not in dispute and such money has remained so deposited for at least five years unclaimed by the person entitled thereto, such court shall cause such money to be deposited in the Treasury in the name and to the credit of the United States. Any claimant entitled to any such money may, on petition to the court and upon notice to the United States attorney and full proof of the right thereto, obtain an order directing payment to him.

Reading §§ 2041 and 2042 together establishes that funds received from the Secretary by the court in a § 217 action must be deposited with the Treasurer or with a designated depository in the name of and to the credit of the court. Once deposited the money must remain deposited as provided by § 2041 to the name of and to the credit of the court for five years unless it is earlier claimed by a claimant entitled to the funds. Only after the end of five years may the unclaimed funds be deposited to the credit of the United States.

The memo from Mr. Nichols mentioned above cites Hodgson v. Wheaton Glass Co., 446 F.2d 527, 535-36 (3d Cir.1971) and Usery v. Godwin Hardware, 426 F.Supp. 1243, 1269 (W.D.Mich.1976) for the proposition that when § 217 funds are paid to a clerk of the court by the Secretary, the clerk may “deposit the unclaimed wages into the Treasury ‘forthwith,’ to be held for the missing claimants. It is not necessary for the clerk to hold this type of money for five years under 28 U.S.C. § 2042.” The memorandum from Mr. Heising expands upon this direction, citing the same cases, saying that “the Clerk of the Court may deposit unclaimed wages into the Treasury without holding them for five (5) years.” Mr. Heising further advises that such § 217 funds should be deposited to the credit of the United States in the Symbol X600, Payment of Unclaimed Monies Account.

The memo from Mr. Nichols asserts that “[a]s far as the court is concerned, the money is ‘claimed’ and is out of the judicial system” when the § 217 money was initially reposed in the Secretary of Labor and therefore, Mr. Nichols opines, the five-year period prescribed under § 2042 is inapplicable. This assertion, I believe, is incorrect.

The only persons that could assert a statutory “claim” for the money would be those employees whose wages were unlawfully withheld, the Secretary’s only function is to facilitate delivery of the funds to such claimants. Section 2041 speaks in terms of “rightful owners,” section 2042 speaks of the “person entitled” and “claimant entitled” — these terms are intended to describe the injured employees rather than the Secretary who can assert no claim or entitlement.

Mr. Nichols and Mr. Heising both, I believe, misconstrue the holdings in Hodgson and Usery. Rather than saying that the provisions of § 2042 are inapplicable, the holdings specifically say the provisions are applicable. See Hodgson 446 F.2d at 535; (“If the Court receives the funds under these provisions [§ 2041, 2042] the money will remain on deposit with the Treasurer of the United States subject to withdrawal, by court order, on a petition by a claimant”); Usery, 426 F.Supp. at 1269 (The money “shall be deposited with the Clerk of this Court, who shall be directed to forthwith deposit such money with the Treasurer of the United States pursuant to 28 U.S.C. § 2041).

I agree with Hodgson and Usery but not with the Administrative Office’s interpretation of these cases. The Court does not dispute Mr. Nichols’ contention that the funds should be deposited into the United States Treasury “forthwith.” However, I disagree with the implication in the memos of both Mr. Nichols and Mr. Heising that the requirement of § 2042 that the funds be deposited to the name and credit of the United States District Court can be ignored. Temporary shunting § 217 funds to the Secretary for efficient distribution does not repeal the clear direction of §§ 2041 and 2042 when the funds are returned to the court — as properly they should be. Accordingly when § 217 funds are returned to the court by the Secretary, the court must deposit such funds with the Treasurer of the United States or another designated depository in the name of and to the credit of such court. A transfer of funds to Symbol X600 is not appropriate because that account is to the general credit of the United States rather than to the credit of the court. Five years from the date of original receipt, pursuant to the injunctive order, the court may direct deposit in the Treasury of the United States in the name of and to the credit of the United States.

The Clerk of the Court is DIRECTED to determine which of the sums set forth in his request are § 216 and which are § 217 funds. Such monies as are determined to be § 216 funds are to be returned to the Secretary of Labor by order of the court. Such funds as are determined to be § 217 funds shall be held for the expiration of the five-year period specified in § 2042 and then upon request shall be transferred to the Treasury to the credit of the United States.

And it is so ORDERED.