author: CAFFREY, Chief Judge.

text:
    EATABLE GREETABLE PRODUCTS, INC., et al., Plaintiffs, v. SWEET STOP INC., et al., Defendants.
    Civ. A. No. 85-3472-C.
    United States District Court, D. Massachusetts.
    Feb. 13, 1986.

      John L. Welch, Wolf, Greenfield & Sacks, Boston, Mass., for plaintiffs.
   MEMORANDUM

CAFFREY, Chief Judge.

This is a civil action brought by Eatable Greetable Products, Inc., a Massachusetts corporation having its principal place of business at Sharon, Massachusetts, and David Aronson, president of Eatable Greet-able Products and a citizen of Massachusetts, against Sweet Stop, Inc., a New York corporation having its principal place of business at Staten Island, New York, and Gerald Feldman, president of Sweet Stop and a New York citizen. The plaintiffs seek both equitable relief and damages on the ground that the defendants, inter alia, violated an agreement with the plaintiffs whereby the defendants assigned to David Aronson the exclusive right to manufacture, have manufactured, sell or otherwise distribute the defendants’ product, the “candy greeting card jar”.

The issues now before the Court are whether the Court has in personam jurisdiction over Sweet Stop and Feldman and, if so, whether the plaintiffs are entitled to a preliminary injunction against Sweet Stop and Feldman. For the reasons set forth below, I rule that the plaintiffs have carried their burden of showing that this Court has jurisdiction over the defendants, and that the plaintiffs are entitled to a preliminary injunction.

The pleadings, affidavits, and depositions filed in this case reveal the following facts: In May of 1982 the defendants, Sweet Stop and Feldman, entered into their first agreement with David Aronson. By the terms of this agreement Aronson acquired the exclusive right to manufacture, distribute, and sell the “candy greeting card jar” in all of New England, except for Fairfield County, Connecticut. Defendant Feldman came to Massachusetts to sign the agreement and spent several days working with Aronson in Massachusetts. Aronson paid Sweet Stop and Feldman more than $15,000 under the 1982 agreement. Aron-son made approximately 50% of his sales of the candy jar product in Massachusetts.

On November 23, 1984 the defendants and Aronson entered into a second agreement, which they intended to supersede the 1982 agreement. That 1984 agreement is the subject of this action. By the terms of the 1984 agreement, Aronson agreed to pay the defendants $15,000 in installments in exchange for the right to manufacture, distribute, and sell the candy jar product in New England, exclusive of Fairfield County, Connecticut, for a 99 year period. The agreement provided that the conveyance of rights to Aronson was “irrevocable” and that the defendants agreed not to seek “... to revoke said conveyance and assignment, or otherwise to re-capture the New England territory ...” from Aronson during the 99-year period. Aronson gave the defendants a downpayment of $2,000 in November of 1984 and then made monthly payments of $599.89 through August of 1985, when the defendants purported to terminate the agreement.

Plaintiff Aronson states in his affidavit that he has performed all 'his duties set forth in the 1984 agreement. On August 15, 1985 the defendants’ counsel sent a letter purporting to terminate the 1984 agreement because Aronson, who previously had operated his business as a sole proprietorship under the name “Eatable Greet-ables”, incorporated under the name “Eatable Greetable Products, Inc.” after signing the agreement. In this letter the defendants’ counsel stated that the defendants’ right to terminate the agreement was based on paragraph 18 of the agreement which provides that “the rights, duties and obligations of each party ... may not be divided, assigned or transferred by [Aron-son] to another without the prior express, written consent of [Sweet Stop and Feld-man], ...”

After mailing this letter, the defendants instructed their New England sales representative, Joseph C. Sullivan of Dover, Massachusetts, to begin selling the candy jar product in New England. On August 28, 1985 the defendants forwarded 96 “candy greeting card jars”, catalogue sheets, and a price list for the jars to Sullivan in Massachusetts. The price list indicated that it was “effective in New England only”. During the first week in September of 1985, Sullivan and his staff contacted and took orders from at least five customers in Massachusetts. The orders were then forwarded to the defendants in New York. In addition to taking orders from customers in Massachusetts, Sullivan told at least some of those customers that, according to Sweet Stop and Feldman, Aron-son had breached the 1984 agreement, lost his right to sell the candy jar product, and that the defendants would obtain a cease and desist order to prevent Aronson from selling the product.

On September 6, 1985, immediately after the plaintiffs learned of the events described above, they brought this action seeking a declaratory judgment that they did not breach their 1984 agreement with the defendants, and also seeking damages and injunctive relief based on alleged acts of trade disparagement, unfair competition, and breach of contract by the defendants. On September 12, 1985 the plaintiffs filed an ex parte motion for a temporary restraining order. On September 19, 1985 Magistrate Robert B. Codings recommended that a temporary restraining order be issued, and on October 10, 1985 this Court issued the requested restraining order and ordered the defendants to show cause why the restraining order should not be converted to a preliminary injunction. The defendants failed to appear at the show cause hearing on October 28, 1985, and at that time the Court requested the plaintiffs to submit a brief on the question of the Court’s in personam jurisdiction over Sweet Stop and Feldman.

This Court may exercise jurisdiction over the defendants only if both of the following questions are answered affirmatively: 1) Is the assertion of jurisdiction authorized by the Massachusetts long-arm statute, Mass.Gen.Laws Ann. ch. 223A, § 3? and 2) Is the exercise of jurisdiction consistent with the basic due process requirements of the United States Constitution? Good Hope Industries, Inc. v. Ryder Scott Co., 378 Mass. 1, 389 N.E.2d 76 (1979); Hahn v. Vermont Law School, 698 F.2d 48 (1st Cir.1983). The plaintiffs bear the burden of demonstrating that the Court has personal jurisdiction over the defendants. Palandjian v. Pahlavi, 586 F.Supp.671 (D.Mass.1984).

The law of the forum state, in this case Massachusetts, is controlling with respect to the amenability to suit of a nonresident in a diversity action. Hahn, 698 F.2d at 49; Caso v. Lafayette Radio Electronics Corp., 370 F.2d 707 (1st Cir.1966). The relevant portion of the Massachusetts long-arm statute provides that “[a] court may exercise personal jurisdiction over a person who acts directly or by an agent, as to a cause of action in law or equity arising from the person’s ... transacting any business in this commonwealth_” Mass. Gen.Laws Ann. ch. 223A, § 3. This language has been construed to impose a set of constraints on the exercise of in person-am jurisdiction in addition to those imposed by the United States Constitution. Nova Biomedical Corp. v. Moller, 629 F.2d 190 (1st Cir.1980). ■

The Supreme Judicial Court of Massachusetts has said that the term “transacting any business” is not limited to commercial activity, but rather “is general and applies to any purposeful acts by an individual, whether personal, private or commercial.” Ross v. Ross, 371 Mass. 439, 441, 358 N.E.2d 437 (1976). The scope of the term “transacting any business” within the meaning of the long-arm statute “must be decided on the particular facts” involved in each case. Droukas v. Divers Training Academy, Inc., 375 Mass. 149, 157, 376 N.E.2d 548 (1978).

For the reasons discussed below, I rule that this action “arises from” the defendants’ “transacting any business” in Massachusetts within the meaning of Mass. Gen.Laws Ann. ch. 223A, § 3. The facts in this case are similar to those in Nova Biomedical Corp. v. Moller, 629 F.2d 190 (1st Cir.1980), a case in which the Court of Appeals for the First Circuit reversed the district court’s dismissal of the action for lack of personal jurisdiction over the defendant, a Swiss citizen. The defendant’s principal contacts with Massachusetts consisted of a cross-licensing agreement with a Massachusetts corporation and the sale of various products and chemicals to that corporation. The Swiss defendant wrote two letters to the plaintiff, another Massachusetts corporation, charging it with patent infringement and threatening suit. After receiving these letters, the plaintiff sought a declaratory judgment that a patent held by the defendant was invalid. The Court of Appeals ruled that on those facts the defendant’s actions constituted the transaction of business within the meaning of the Massachusetts long-arm statute because the defendant’s sending threatening letters was an attempt “to reduce competition and thereby improve defendant’s marketing and economic position.” Nova, 629 F.2d at 195, quoting from B & J Manuf. Co. v. Solar Indus., Inc., 483 F.2d 594, 598 (8th Cir.1973). See also Hahn v. Vermont Law School, 698 F.2d 48 (1st Cir.1983) (mailing application information and acceptance letter to applicant in Massachusetts is sufficient, without more, to constitute transacting business under the Massachusetts long-arm statute).

The facts in this case, even more forcefully than in the Nova Biochemical case, support the conclusion that this case arises from the defendants’ “transacting any business” in Massachusetts. The record reveals that in 1982 the defendants sold David Aronson the rights to manufacture, distribute, and sell the candy jar product in Massachusetts and the other New England states during a three year period for $15,-000. Fifty percent of Aronson’s sales pursuant to this contract were made in Massachusetts. In August of 1984 the parties entered into the agreement that is the subject of this litigation. By the terms of the 1984 agreement the defendants conveyed all of their rights for the next 99 years with respect to the candy jar product to Aronson for $15,000, to be paid by Aronson in installments. In June of 1985 the defendants engaged an agent in Massachusetts, Joseph Sullivan, to sell other candy products for them in Massachusetts. Most significantly, in August of 1985 the defendants’ counsel sent a letter to the plaintiffs purporting to terminate the 1984 agreement. The defendants then instructed Sullivan to start selling the candy jar product in New England and sent 96 jars, catalogue sheets, and a price list “effective in New England only” to him. During the first week of September, 1985, Sullivan and his staff took orders from at least five businesses in Massachusetts and then forwarded those orders to the defendants in New York.

Since the plaintiffs have demonstrated that the Court has jurisdiction over the defendants under the Massachusetts long-arm statute, the next inquiry the Court must make in its analysis with respect to the personal jurisdiction issue in this case is whether the exercise of jurisdiction over Sweet Stop and Feldman comports with the due process requirements of the United States Constitution. For the reasons discussed below, I rule that it does.

Due process requires that the defendant be given adequate notice of the suit, Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950), and be subject to the personal jurisdiction of the Court, International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945). Whether the defendants were given notice is not an issue in this case. For this Court to exercise personal jurisdiction over the defendants, their contacts with Massachusetts must be such that maintenance of the suit “does not offend ‘traditional notions of fair play and substantial justice.’ ” International Shoe Co., 326 U.S. at 316, 66 S.Ct. at 58, quoting from Milliken v. Meyer, 311 U.S. 457, 464, 61 S.Ct. 339, 343, 85 L.Ed. 278 (1940).

The defendants’ attempt to retake the New England territory, including Massachusetts, from Eatable Greetable Products and Aronson by sending a letter into Massachusetts purporting to terminate the 1984 agreement, the defendants’ hiring of Joseph Sullivan to sell the candy jar product in Massachusetts, and the defendants’ sending 96 jars and price lists to Sullivan in Massachusetts clearly established such contacts between Massachusetts and the defendants that this Court’s exercise of jurisdiction over the defendants does not offend traditional notions of fair play and substantial justice. Moreover, I rule that having sought to recapture Massachusetts as a sales area for its candy jar product, Sweet Stop and Feldman “should reasonably [have] anticipate[d] being haled into court there.” World-Wide Volkswagen v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 567, 62 L.Ed.2d 490 (1980).

The defendants’ attempts to take back the right to manufacture, distribute, and sell the candy jar product in Massachusetts is supportive of this Court’s exercise of personal jurisdiction over the defendants. See Calder v. Jones, 465 U.S. 783, 790, 104 S.Ct. 1482, 1487, 79 L.Ed.2d 804 (1984). See also, McGee v. International Life Ins. Co., 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957). Just as the brunt of the harm in Calder v. Jones, 465 U.S. at 788-89, 104 S.Ct. at 1486-87, was suffered by the plaintiff in California, the brunt of the harm in this case was suffered by the plaintiffs in Massachusetts. Moreover, the courts m Massachusetts have a strong interest in affording Massachusetts citizens protection from acts such as those alleged in this case. See Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 776, 104 S.Ct. 1473, 1479, 79 L.Ed.2d 790 (1984).

The final question this case presents is whether the plaintiffs are entitled to a preliminary injunction against Sweet Stop and Feldman. To determine whether the preliminary injunction should issue, the Court must evaluate the likelihood of the plaintiffs' success on the merits, the plaintiffs’ claim that they will suffer irreparable harm if the injunction is denied, and any injury the defendants will suffer if the injunction is granted. Town of Brookline v. Goldstein, 388 Mass. 443, 447 N.E.2d 641 (1983).

The letter of the defendants’ counsel to the plaintiffs, dated August 15, 1985, stated that Aronson’s act of incorporating his sole proprietorship was a transfer of Aronson’s rights under the agreement, to which the defendants did not give their express written consent. The letter said further that the act of incorporation therefore was a violation of paragraph 18 of the 1984 agreement, which provided that Aron-son could not “divide[], assign[] or transfer” either party’s rights, duties, or obligations under the agreement without the consent of Sweet Stop and Feldman. There is absolutely no difference that could possibly affect the defendants whether Aronson operates his business as a sole proprietorship or a corporation. Aronson therefore did not need the defendants’ consent before changing the form of his business. Moreover, even if I were to conclude that Aronson should have requested the defendants’ consent before incorporating the business, his failure to do so clearly was not a material breach of the agreement which would entitle the defendants to terminate the agreement. Accordingly, I rule that the plaintiffs have demonstrated a likelihood of success on the merits.

The plaintiffs have also shown that they will suffer irreparable harm if injunctive relief is not issued. The affidavits of David Aronson and the deposition of Joseph Sullivan demonstrate that, at the defendants’ request, Sullivan solicited Aron-son's customers in Massachusetts to buy the “candy greeting card jar” and told these customers that the plaintiffs are no longer entitled to sell it. The plaintiffs’ sales of the “candy greeting card jar” constitutes more than half of their business. Therefore, the plaintiffs face the loss of more than half of their customers and the ultimate demise of their business if an injunction is not issued. This is a sufficient basis for a finding of irreparable harm, especially in light of the strength of the plaintiffs’ legal position.

The defendants, on the other hand, have not shown that they will suffer any hardship if an injunction is issued. In light of the likelihood that the plaintiffs will succeed on the merits, the plaintiffs’ showing that they will suffer irreparable harm if the injunction is not issued, and the failure of the defendants to show that they will suffer any harm if the injunction is issued, I conclude that the balance of hardships tilts decidedly in favor of the plaintiffs. Accordingly, the plaintiffs’ request for a preliminary injunction should be granted.

Order accordingly.

PRELIMINARY INJUNCTION

In accordance with memorandum filed this date, it is ORDERED:

The defendants and their agents, servants, and employees, and all persons in active concert with any or all of them, are immediately and indefinitely enjoined from:

1. Offering the Product for sale, or selling, or otherwise distributing the Product in the New England Territory; and

2. Otherwise unfairly competing in any manner whatsoever with plaintiffs.

      . The defendants have not filed any papers or made any appearances in this case. The plaintiffs’ counsel informed the Court on October 28, 1985 that the defendants believe that the Court does not have personal jurisdiction over them.

      . Sullivan had sold other candy products for the defendants in New England since June of 1985.


source: Caselaw Access Project

author: DORSEY, District Judge.

license: Public Domain

text:
    AUTOMATIC COMFORT CORPORATION v. D & R SERVICE, INC.
    Civ. No. H-84-1069 (PCD).
    United States District Court, D. Connecticut.
    Feb. 14, 1986.
    Eliot B. Gersten, Gersten & Gersten, Hartford, Conn., for plaintiff.
    Richard W. Farrell, Farrell & Barr, Stamford, Conn., for defendant.
   MEMORANDUM OF DECISION RE CONNECTICUT FAIR CONDUCT IN FRANCHISING ACT

DORSEY, District Judge.

Defendant has answered and counterclaimed on the basis that the Connecticut Fair Conduct in Franchising Act (“CFCFA”), Conn.Gen.Stat. § 42-133j et seq., vested it with rights as a franchisee and precludes termination as asserted by plaintiff. Plaintiff insists that even under CFCFA there is no franchise and it has terminated the contract with defendant in accordance with its terms.

A. Preemption

The first question presented is whether Connecticut’s Act has been preempted. Two sovereigns can create chaos with conflicting regulatory schemes for the same transactions or relationships. Under the Supremacy Clause of the United States Constitution, any federal enactment takes precedence and preempts state statutes which pertain to the same subject. CFCFA manifests Connecticut’s concern for the preservation of fair competition within the petroleum industry as a means of protecting those engaged in the distribution and sale of gasoline and the consuming public’s supply. Defendant claims that, if it is not a franchisee under PMPA, it can be a franchisee under CFCFA, which is not in conflict with PMPA.

When Congress legislates with the intention of occupying a field, when an actual conflict exists between state and federal laws, that field is preempted by federal laws. Bellmore v. Mobil Oil Corp., 783 F.2d 300, 303-304 (2d Cir.1986); Grocery Mfgrs. v. Gerace, 755 F.2d 993, 999 (2d Cir.1985). See Pacific Gas & Elec. v. State Enviromental Resources, 461 U.S. 190, 204, 103 S.Ct. 1713, 1722, 75 L.Ed.2d 752 (1983). An actual conflict exists “when it is impossible to comply with both state and federal law,” Florida Lime Growers v. Paul, 373 U.S. 132, 142-43, 83 S.Ct. 1210, 10 L.Ed.2d 248 (1963), or if state law is an obstacle to the accomplishment of Congress’ objectives. Hines v. Davidowitz, 312 U.S. 52, 61 S.Ct. 399, 85 L.Ed. 581 (1941); see Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 104 S.Ct. 615, 78 L.Ed.2d 443 (1984). Congress has stated its intent with respect to preemption in PMPA:

[To] the extent that any provision of this subchapter applies to termination (or the furnishing of notification with respect thereto) of any franchise, or to the nonre-newal (or the furnishing of notification with respect thereto) of any franchise relationship, no State or any political subdivision thereof may adopt, enforce or continue in effect any provision of any law or regulation (including any remedy or penalty applicable to any violation thereof) with respect to termination (or the furnishing of notification with respect thereto) of any such franchise or to the nonrenewal (or the furnishing of notification with respect thereto) of any such franchise relationship unless such provision of such law or regulation is the same as the applicable provision of this subchapter.

15 U.S.C. § 2806(a). It has been found that there is no franchise between plaintiff and defendant under PMPA. As the state is only precluded from adopting, enforcing or continuing in effect any state law other than the same provision as is found in PMPA to the extent PMPA applies, it follows that where PMPA does not apply there is no preemption and the state is free to enact its own laws. As Congress has mandated a preclusion of other than the same provisions as are found in PMPA with respect to “the grounds for, procedures for or notice requirements of the termination or nonrenewal of petroleum franchises,” Bellmore v. Mobil at 305, there would not appear to be any intention on the part of Congress to preclude the state from enacting its own regulatory scheme with respect to relationships to which the federal law does not apply. Id. at 303-305.

Plaintiff suggests that a broader definition of a franchise in state law and its concomitant embrace of relationships not subject to federal regulation would frustrate Congress’ desire for a consistent definition of franchises within the petroleum marketing field. Congress did not manifest an intent to occupy the entire field of petroleum marketing. Plaintiff has not shown why state regulation of a broader scope of relationships within the field, beyond that regulated by PMPA, would frustrate congressional intent. There is no indication in the record that the state’s regulatory scheme impairs the purpose or effectiveness of PMPA. That the state chooses to regulate relationships which are not franchises under PMPA, if such be the case, would merely complement the federal regulatory purpose and scheme. As such, state law, defining franchises more broadly, is not preempted any more than any other section of CFCFA which is not in conflict with PMPA nor specifically within the provisions of the PMPA preemption section, 15 U.S.C. § 2806(a). Such have been held not to be preempted by PMPA. Bellmore v. Mobil; Lasko v. Consumers Petroleum of Connecticut, Inc., 547 F.Supp. 211, 216 (D.Conn.1981); Ted’s Tire Serv. v. Chevron U.S.A., Inc., 470 F.Supp. 163, 165 (D.Conn.1979); Exxon Corp. v. George Ass’n of Petroleum Retailers, 484 F.Supp. 1008 (D.Ga.1979), aff'd, 644 F.2d 1030 (5th Cir.) cert. denied, 454 U.S. 932, 102 S.Ct. 430, 70 L.Ed.2d 239 (1981).

B. Applicability of CFCFA

Defendant claims that its contracts with plaintiff constitute a franchise under CFCFA which specifies these elements:

(a) An agreement or arrangement.
(b) The granting to the franchisee of the right to engage in the business of:
(1) offering
(2) selling
(3) distributing
motor vehicle fuels and oils.
(c) A marketing plan prescribed substantially by franchiser.
(d) The business must be substantially associated with the franchiser’s trademark, service mark, trade name, logo type, advertising or other commercial symbol describing the franchiser or its affiliate.
(e) Included are agreements:
(1) between a manufacturer, refiner or producer and a distributor, wholesaler or jobber.
(2) between a manufacturer, refiner or producer and a retailer.
(3) between a distributor, wholesaler or jobber and a retailer.

Conn.Gen.Stat. § 42-133k(b).- A franchiser is one who grants a franchise to another, including a manufacturer, refiner or producer or a distributor, wholesaler or jobber, who grants to a distributor, wholesaler, jobber or retailer the authority to use a trademark, trade name, service mark or other identification symbol or name under a franchise. Conn.Gen.Stat. § 42-133k(a), incorporating § 42-133e(b). A franchisee is the counterpart, one granted authority under a franchise, to use a trademark, trade name, service mark, or other identification symbol or name, including a distributor, wholesaler or jobber or retailer. Id.

Clearly an agreement exists between the parties.

The agreements:

(a) Vested defendant with the right to operate and manage two stations at which gasoline is sold, subject to extensive, detailed control by plaintiff over the manner in which the business was conducted, including the sale price.
(b) Entitled defendant to a commission in fixed amounts per unit for sales of gasoline, anti-freeze and cigarettes as well as other products supplied by plaintiff.
(c) Obliged plaintiff to supply gasoline, anti-freeze and cigarettes.
(d) Required the sale of a brand of gasoline supplied by plaintiff to each station.
(e) Permitted defendant to sell associated products as plaintiff permitted.
(f) Obliged defendant to collect cash and process credit cards for plaintiffs account, deducting from the cash its commissions and depositing the net in plaintiff’s bank account.
(g) Obliged defendant to account to plaintiff for gasoline delivered to each station.
(h) Obliged defendant to maintain the equipment except as to ordinary wear and tear.
(i) Obliged defendant to keep the property clean and well lighted, protected by a security alarm, and clear of snow and ice.
(j) Obliged defendant to specific minimum hours of operation.
(k) Obliged defendant to hire necessary employees and to discharge all legal obligations to employees.
(i) Obliged defendant to submit to inspections and audits by plaintiff to verify compliance.

Thus defendant, as the contract provides, has the posture of “managing the gasoline dispensing operation” of plaintiff. See Exhibits 1 & 2 at 3. Certainly defendant is engaged in a business as a result of the contract. It hires employees who engage in activities from which income is derived; it pays its employees and operating expenses from its commissions and keeps the net for its own purposes. It may seek to do what additional business may be permitted at each station. It is at risk in that its commissions, which depend upon the volume of gasoline sold, may not cover its expenses. Yet, it has no control over the volume of gasoline sold. Sales volume depends principally on such things as brand popularity, station location, station hours, station security and perhaps most importantly, the price which plaintiff sets.

Notwithstanding its business function, the question is whether defendant has been granted the right to engage in the business of offering or selling motor fuels and oils. Plaintiff argues in the negative because defendant neither purchases gasoline or oil nor does it convey title to the ultimate consumer. Rather, defendant merely receives the sale price and accounts for it. The question can best be analyzed by measuring how far defendant is from the situation of a pure employee, who merely takes money and hands it over to his employer. To be a franchise, the franchisee must be engaged in the business of offering or selling gasoline. In actuality it is the plaintiff who is offering/selling gasoline to the public. It owns the station. It buys the gasoline. It arranges for the acquisition of the gasoline and delivers it to the stations. It sets the prices. It is at risk for any loss of the gasoline at the station except by reason of fault on the part of defendant. As discussed in the prior memorandum of decision, defendant was not at any substantial market risk, nor did it have any substantial indicia of entrepreneurial responsibility. Defendant was not engaged in the business of offering or selling gasoline. It was the temporary custodian of the gasoline, the caretaker of the property, the cashier, all as part of plaintiffs business. Plaintiffs argument that the question turns on the absence of any purchases by defendant and of sales in the sense of conveying title is too narrow. Defendant’s rights and responsibilities are very close to the sale process, but the statutory phrase — engaged in the business of offering/selling — is not so narrow, reflective of the state’s intention to extend more broadly the protection of the statutory scheme. However, the narrow scope of the discretion exercisable by defendant, the close control and supervision exercisable by plaintiff over the operation, so limits defendant’s activities as to preclude its being found to be engaged in the business of offering/selling gasoline and oil products at retail. Defendant was not a licensed retailer — plaintiff was. Defendant was not an employee. By the contract terms, it was an independent business entity. But the range of what defendant does in that capacity is markedly limited. Defendant performs an extremely restricted role as part of the business of offering/selling gasoline at retail.

It is well to measure defendant’s posture against the purpose of the Connecticut Legislature. The statutory definition of a franchise is not absolutely clear. The Legislature has created, however, a limited status to which protection is afforded. The Legislature has articulated its concerns and purposes. See Conn.Gen.Stat. § 42 — 133j. A finding that defendant is not within the CFCPA’s protection does not run counter to any of the concerns and purposes set forth in the statute. While plaintiff has tendered defendant an arrangement which vested very little autonomy in defendant and thus has flexed its substantially greater bargaining power, it has not adversely affected the flow of gasoline to a competitive market place. It will continue to sell its gasoline at the same locations, but presumably with someone other than defendant collecting the payments. While defendant’s hopes, and perhaps expectations, of a share in the profit from sales to the public is not upheld here, one with a substantial investment in the business is thus not being squeezed out. To be sure, defendant probably has invested considerable time in the operation, but it was paid for that in the form of its commissions. That its profit may not have been what was hoped for could be the result of an optimistic calculation. It may also be due to other factors beyond defendant’s control. Nonetheless, it was a bargain defendant made and cannot expect the court to reform unilaterally. There is no showing that any uniqueness at either station resulted from defendant’s innovation or effort. The patronage, absent evidence to the contrary, would appear to have been based on product identification, location, lighting, price and other factors not innovative with defendant. Though no doubt a courteous cashier, a helpful attendant, extra service to customers, super cleanliness or other marks of an operator’s input, though not shown here, might play some role in the volume sold, the significance of any such innovation on the part of defendant is not part of this record. The court cannot speculate in these matters. Thus, Connecticut’s wish to protect the investment of time and money, which generate good will for operators whose personal touch was manifest, does not embrace defendant’s operations which have not been shown to have been conducive to such value creation. Thus, the court cannot find that the nature of defendant’s operation is such as to be within the language of the CFCFA as it may be construed to accomplish the purposes of CFCFA.

While defendant was clearly operating within a marketing plan dictated by plaintiff and cannot waive its rights as a franchisee, Conn.Gen.Stat. § 42-133f(e), the parties’ contract did not frame a relationship which Connecticut has defined as a franchise. Therefore, defendant may not prevail on its claim for the benefit of CFCFA as a franchisee thereunder.

As this resolves all issues submitted by the parties at trial, in their stipulations and briefs, judgment shall enter for plaintiff on defendant’s counterclaim under PMPA and CFCFA and for plaintiff on the complaint as previously set forth in the memorandum of decision of October 28, 1985.

SO ORDERED.

      . Plaintiff has sought a declaratory judgment that no franchise was created between it and defendant under the Petroleum Marketing Practices Act ("PMPA"), 15 U.S.C. § 2801 et seq. That claim has been sustained. If defendant is a franchisee under CFCFA, it would gain no rights by reason thereof under PMPA. Defendant’s counterclaim, based on PMPA, was rejected in the prior memorandum of decision. Thus, only the issue presented by defendant’s counterclaim remains, its claim of the benefit of CFCFA, for which no independent federal jurisdiction is required. Rule 13(a), Fed.R.Civ.P.; Moore v. New York Cotton Exchange, 270 U.S. 593, 46 S.Ct. 367, 70 L.Ed. 750 (1926); Moore, Federal Practice, § 1315[1] at 13-99 et seq.

      . Defendant is plainly not a distributor, having none of the characteristics thereof.


author: HADEN, Chief Judge.

text:
    Kenneth R. HANSHAW, Plaintiff, v. Governor of the State of West Virginia, Arch A. MOORE, Jr., et al, Defendants.
    Civ. A. No. 2:86-0125.
    United States District Court, S.D. West Virginia, Charleston Division.
    Feb. 14, 1986.
    Kenneth R. Hanshaw, pro se.
    Herman Canady, Charleston, W.Va., for defendants.
   ORDER

HADEN, Chief Judge.

Pending before the Court is the motion of the Defendant, Herman G. Canady, Jr., to dismiss. The pro se Plaintiff has filed a memorandum in response.

Essentially the Plaintiff complains of the treatment he is receiving in state court attendant to a divorce action. He wishes to put a stop to the entire process. In particular, he requests the Court to enjoin a state court hearing scheduled for February 14, 1986.

The Plaintiffs complaint (and cause of action) suffers from many problems. Foremost of these is its affront to traditional notions of state-federal comity. For instance, the Plaintiff basically wants in-junctive relief. Codified in 28 U.S.C. § 2283, however, is the policy that a federal court “may not grant an injunction to stay proceedings in a State court except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments.” The United States Supreme Court held in Atlantic Coast Line Railroad Company v. Brotherhood of Locomotive Engineers, 398 U.S. 281, 286, 90 S.Ct. 1739, 1743, 26 L.Ed.2d 234 (1970), that the statute is “an absolute prohibition against enjoining state court proceedings, unless the injunction falls within one of three specifically defined exceptions.” The Plaintiff identifies no applicable exception and the Court is unable to find one.

The Plaintiff is obviously involved in a serious domestic dispute in the courts of Kanawha County, West Virginia. The issues relating to such a dispute, however, are not cognizable under the limited jurisdiction of United States district courts. As the United States Supreme Court has said, “the whole subject of the domestic relations of husband and wife ... belongs to the laws of the States and not to the laws of the United States.” Ex parte Burres, 136 U.S. 586, 593-94, 10 S.Ct. 850, 852-53, 34 L.Ed. 1500 (1890). Such matters are better left to the expertise of the state court system.

Accordingly, for the reasons aforementioned, the Defendant’s motion to dismiss is granted. The Plaintiffs complaint is ORDERED dismissed with prejudice.

The Clerk is directed to send a certified copy of this Order to the pro se Plaintiff and to the Defendants of record.

       The Plaintiff has requested that a three-judge panel be convened to declare the state domestic relations system unconstitutional. Although he cites 28 U.S.C. § 2284, the requested procedure was formerly implemented under 28 U.S.C. § 2281. That statute, however, was repealed in 1976.


author: BUA, District Judge.

text:
    EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Applicant, v. TEMPEL STEEL COMPANY, Respondent.
    No. 85 C 8276.
    United States District Court, N.D. Illinois, E.D.
    Feb. 18, 1986.

      John P. Rowe, Kathleen Mulligan, Marvin Benton, E.E.O.C., Chicago, Ill., for applicant.
    William M. Stevens, Janet A. Stiven, Rooks, Pitts & Poust, Chicago, Ill., for respondent.
   MEMORANDUM ORDER

BUA, District Judge.

Before this Court is plaintiff EEOC’s petition for rule to show cause why the EEOC’s subpoena duces tecum No. CH 84-60, as modified, should not be enforced. Jurisdiction is conferred upon this Court by Section 706(f)(3) and 710 of Title VII, 42 U.S.C. §§ 2000e-5(f)(3) and 9. The EEOC’s petition is granted for the reasons stated herein. Tempel Steel’s motion to dismiss the EEOC’s petition for rule to show cause is denied. Similarly, Tempel Steel’s motion to quash the EEOC’s administrative subpoena is also denied.

FACTS

Michael Austin was employed by Tempel Steel prior to a company-wide layoff. Austin was fired during this layoff period. Austin filed a complaint with the Equal Employment Opportunity Commission (“EEOC”) alleging he was discriminated against because of his race. This charge was based on an alleged violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Austin filed his complaint with the EEOC more than 180 days but less than 300 days after the discriminatory act.

The EEOC referred the discrimination complaint to the Illinois Department of Human Rights (“IDHR”). The IDHR is a state agency authorized to remedy employment discrimination based on race and national origin. The IDHR declined to process Austin’s charge because Austin failed to file the complaint within the IDHR’s 180-day filing period. Thereafter, the EEOC assumed jurisdiction and began investigating. The EEOC requested numerous documents from Tempel Steel during its investigation. When Tempel Steel refused to comply, the EEOC brought this action to compel Tempel Steel to produce the desired documents.

The precise issue before this Court is whether a complainant who fails to file a timely racial discrimination claim with the IDHR is entitled to the extended 300-day federal filing period in which to file with the EEOC.

DISCUSSION

1. Jurisdiction

Section 706(e) of Title VII, 42 U.S.C. § 2000e-5(e) (1976), provides:

A charge under [Title VII] shall be filed within one hundred and eighty days after the alleged unlawful employment practice occurred ... except that in a case of an unlawful employment practice with respect to which the person aggrieved has initially instituted proceedings with a State or local agency with authority to grant or seek relief from such practice ... such charge shall be filed by or on behalf of the person aggrieved within three hundred days after the alleged unlawful employment practice occurred, or within thirty days after receiving notice that the State or local agency has terminated the proceedings under the State or local law ...

It is undisputed that Austin’s race discrimination claim with the EEOC was filed more than 180 days, but less than 300 days after Tempel Steel allegedly discriminated against Austin because he was black. It is equally undisputed that Austin’s claim was referred to the Illinois Department of Human Rights (“IDHR”) by the EEOC more than 180 days, but less than 300 days after Tempel Steel allegedly discriminated against Austin.

Tempel Steel moves to dismiss the EEOC’s petition on the grounds that Austin’s claim was not filed with the EEOC within 180 days of the alleged discriminatory act. Tempel Steel argues that Austin is not entitled to the benefit of the extended 300-day filing period with the EEOC because Austin failed to file a timely claim with the IDHR.

EEOC, in contrast, contends that the 300-day extended time limit applies to Austin’s complaint. EEOC believes a racial discrimination claim is timely filed in a deferral state, such as Illinois, when the complaint is filed with the EEOC within 300 days of the violation. EEOC maintains that the 300-day limit applies regardless of whether the discrimination claim is timely filed under Illinois law.

This Court holds that a Title VII complainant whose claim arose in a deferral state is entitled to the extended 300-day federal filing period. See Mohasco Corp. v. Silver, 447 U.S. 807, 100 S.Ct. 2486, 65 L.Ed.2d 532 (1980). A complainant is not required to have diligently sought a state administrative remedy. This Court believes that allowance of the extended period is the most reasonable and consistent interpretation of the intractable statute. This holding is also supported by a growing majority of the circuit courts that have addressed this issue.

In Mohasco Corp. v. Silver, 447 U.S. 807, 100 S.Ct. 2486, 65 L.Ed.2d 532 (1980), the Supreme Court addressed this issue. In Mohasco, the court was faced with an almost identical set of facts before this Court. In Mohasco, the court stated, “[a] complainant in a deferral state ... need only file his charge within 240 days of the alleged discriminatory employment practice in order to insure that his federal rights will be preserved.” Id. at 814, n. 16, 100 S.Ct. at 2491, n. 16. Timely filing with the state agency was not mandatory.

Tempel Steel correctly points out that the facts in Mohasco are slightly different from the facts before this Court. In Mo-hasco, the complainant initiated state proceedings within the state filing period, 365 days; whereas, the complainant in the instant matter did not file timely with the IDHR. Nevertheless, the Supreme Court’s rationale in Mohasco strongly suggests, if it does not compel, the conclusion that the extended 300-day filing period is to be applied in situations such as the instant case.

In addition, this Court is persuaded by the holdings in numerous circuit courts. Three different circuits have addressed this filing issue and have held that a complainant in a deferral state is entitled to the extended 300-day federal filing period regardless of the timeliness of the complainant’s state filing. See Smith v. Oral Roberts Evangelistic Association, Inc., 731 F.2d 684 (10th Cir.1984); Citicorp Person-to-Person Financial Corp. v. Brazell, 658 F.2d 232 (4th Cir.1981); Owens v. Ramsey Corp., 656 F.2d 340 (8th Cir.1981).

Recently, the Seventh Circuit addressed this identical issue in a claim arising out of the Age Discrimination in Employment Act (“ADEA”). Anderson v. Illinois Tool Works, 753 F.2d 622 (7th Cir.1985). In Anderson, the complainant filed a complaint with the EEOC within 300 days of the alleged unlawful act. However, the complainant failed to timely file with IDHR within its 180-day filing period. Nevertheless, the Seventh Circuit held that the complainant’s filing with the EEOC was timely even though no complaint had been filed with IDHR within its 180-day time period. Although the Seventh Circuit’s Anderson decision only addressed an ADEA claim, this Court believes it should also be extended to Title VII claims. This Court finds the language and logic of the opinion compelling in light of ADEA’s and Title VII’s virtually identical statutory provisions.

In sum, this Court holds, on the authority of Mohasco and its progeny, that the 300-day federal filing period is applicable to complainants in deferral states, regardless of the timeliness of a complainant’s state agency filing. In the instant case, Austin’s complaint was timely filed because Austin filed the complaint with the EEOC within 300 days of the discriminatory act.

2. Petition

The EEOC having filed an application for an order requiring Tempel Steel to show cause why the EEOC’s subpoena No. CH 84-60, as modified by the EEOC’s denial of Tempel Steel’s appeal, should not be enforced, said subpoena and the EEOC’s subsequent denials of Tempel Steel’s petition to revoke and appeal of determination of petition to revoke having duly served upon Tempel Steel on or about December 31, 1981, March 18, 1985, and July 15, 1985, respectively, and good cause appearing therefore:

It is hereby ordered that Tempel Steel appear before this Court on the 10th day of March, 1986, at 9:30 a.m. and show cause why an order of this Court should not be issued directing it to comply with subpoena No. CH 84-60, as modified by the EEOC’s denial of Tempel Steel’s appeal on a date set by this Court.

It is further ordered that service upon Tempel Steel of a copy of this order and of the papers upon which the same is granted on or before the 21st day of February, 1986, shall be sufficient service of this order.

IT IS SO ORDERED.


author: GUNN, District Judge.

text:
    Joan ALLEN, Plaintiff, v. LINCOLN ST. LOUIS, Defendant.
    No. 84-1116C(6).
    United States District Court, E.D. Missouri, E.D.
    Feb. 19, 1986.
    Barbara J. Gilchrist, Clayton, Mo., for plaintiff.
    D. Michael Linihan, Thomas G. Bearden, St. Louis, Mo., for defendant.
   ORDER AND MEMORANDUM

GUNN, District Judge.

IT IS HEREBY ORDERED that defendant’s motion for partial summary judgment be and is granted in part and denied in part as follows: the allegations contained in Count I, paragraphs 9, 13(d) and 13(e) shall be dismissed as not falling within the scope of plaintiff’s timely charge to the Equal Employment Opportunity Commission (EEOC). Count II shall remain before the Court in its entirety.

Plaintiff filed her complaint in this action in May 1984 alleging that defendant discriminated against her on the basis of sex. Plaintiff’s complaint consists of three counts seeking relief under Title VII and the Equal Pay Act as well as damages under state law for slander per se. In brief, plaintiff alleges that defendant paid her less than male employees performing the same work as she; that defendant transferred her to a dead-end position while transferring similarly situated males to positions advantageous to future career development; and that defendant laid her off and failed to recall her on the basis of her sex. Plaintiff’s allegations of slander have no bearing on the motion now before the Court.

Defendant has moved the Court to grant partial summary judgment on those counts of plaintiff’s complaint that turn on allegations of discrimination in lay-off and failure to recall and on wage differentials between plaintiff and similarly situated males in the time period October 1981 to November 1982. Defendant argues that since these allegations were not included within plaintiff’s EEOC charge this Court is without jurisdiction to adjudicate them at this time.

The filing of an administrative charge of discrimination with the EEOC is a jurisdictional prerequisite to a suit in a United States District Court under Title VII. 42 U.S.C.A. § 2000e-5 (1985); see McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); Shea v. City of St. Paul, 601 F.2d 345 (8th Cir.1979). The EEOC charge “triggers the investigatory and conciliatory procedures of the EEOC,” Sanchez v. Standard Brands, Inc., 431 F.2d 455, 466 (5th Cir.1970), and provides the agency in the first instance with an opportunity to mediate disputes and achieve voluntary compliance with the statutory mandate. Id. Resort to judicial proceedings must await action or notice of non-action by the EEOC and, in view of the purpose of this prerequisite as providing an opportunity for conciliation efforts in advance of litigation, any judicial proceedings that do ensue must be limited in scope to those matters dealt with by the EEOC investigation—in short, those allegations actually contained in the EEOC charge or “... any kind of discrimination like or related to allegations contained in the charge.” Id.

In seeking to delimit the appropriate scope of judicial proceedings, courts have rejected arguments that mere technical in-sufficiencies should bar subsequent judicial action, see Sanchez, supra (designation of discrimination as sex-based on EEOC charge does not preclude review for race discrimination where facts alleged in charge provided notice to the EEOC of the unlawful employment practice), in favor of a “reasonably related” approach that permits litigation of any matters related to or developing from the specific acts charged before the EEOC, see Equal Employment Opportunity Commission v. Home of Economy, Inc., 539 F.Supp. 507 (D.N.Dak.1982). In evaluating whether conduct is “reasonably related,” courts have focused on whether the charge provided adequate notice to ensure the EEOC the opportunity to investigate and make conciliation efforts. Sanchez, supra; Shannon v. Western Electric Co., 315 F.Supp. 1374 (W.D.Mo.1969).

This Court holds that in the instant case plaintiff’s general allegations in her EEOC charge of discriminatory treatment did not give the EEOC notice of discharge and failure to recall so as to satisfy this standard. Although plaintiff’s lay-off may have been the culmination of the discrimination investigated by the EEOC, it is not adequately “similar to or reasonably related to allegations made in the charge,” Plummer v. Chicago Journeyman Plumbers, Etc., 452 F.Supp. 1127, 1141 (N.D.Ill.1978), to be properly before this Court on the basis of that charge.

This Court reaches a contrary conclusion with regard to plaintiff’s wage discrimination claims. Plaintiff charged that she was not given equal pay for equal work. This Court finds that this would give the EEOC adequate notice to conduct a full investigation of relative pay scales throughout the duration of plaintiff’s employ.

Accordingly, Paragraphs 9, 13(e) and 13(e) of Count I of plaintiff’s complaint shall be stricken, and plaintiff shall proceed on that count on a theory of discrimination in terms and conditions of employment alone.


author: CARMAN, Judge:

text:
    BINGHAM & TAYLOR, DIVISION, VIRGINIA INDUSTRIES, INC., et al., Plaintiffs, v. UNITED STATES, Defendant.
    No. 85-07-00909.
    United States Court of International Trade.
    Feb. 14, 1986.
    Paul C. Rosenthal and Kathleen T. Weaver, Collier, Shannon, Rill & Scott, Washington, D.C., for plaintiffs.
    Lyn M. Schlitt, General Counsel, Michael P. Mabile, Asst. General Counsel, and John C. Kingery, U.S.I.T.C., Washington, D.C., for defendant.
   MEMORANDUM OPINION

CARMAN, Judge:

In this countervailing duty action plaintiffs contest the preliminary determination of the United States International Trade Commission (Commission) that there is no reasonable indication the domestic light iron construction eastings industry is materially injured or threatened with material injury by reason of subsidized imports from Brazil. Iron Construction Castings from Brazil, Canada, India, and the People’s Republic of China, 50 Fed.Reg. 27, 498 (1985). Defendant opposes plaintiffs’ Rule 56.1 motion for judgment upon the agency record, contending that the Commission’s preliminary determination is not arbitrary, capricious, nor an abuse of discretion, and is in accordance with law. See 19 U.S.C. § 1516a(b)(l)(A) (1982) (standard of review). For the reasons that follow, the Court remands this action to the Commission for redetermination.

Background

This controversy arises out of five simultaneously initiated investigations involving iron construction castings. Four of the investigations are antidumping investigations in which the Commission found that there is a reasonable indication that the domestic industry is materially injured or threatened with material injury by reason of sales at less than fair value of light and heavy construction castings imported from Brazil, Canada, India and the Peoples Republic of China. Plaintiffs in this case challenge the Commission’s preliminary determination in the fifth investigation, which is a countervailing duty investigation of iron construction castings from Brazil. The Commission’s determination in the countervailing duty investigation, published in the same notice as the determinations for the antidumping investigations, was that a domestic industry is materially injured by Brazilian imports of heavy iron construction castings, while there is no reasonable indication that a domestic industry is materially injured or threatened with material injury, or that the establishment of an industry in the United States is materially retarded, by reason of Brazilian light iron construction castings. See 50 Fed. Reg. 27,498.

In reaching its preliminary affirmative injury determinations in the antidumping investigations, the Commission cumulated the impact of the imports from the four countries on the domestic industry. In reaching the preliminary determination in the countervailing duty investigation, however, the Commission refused to cumulate the impact of imports subject to the anti-dumping investigations with the impact of imports subject to the Brazilian countervailing duty investigation. See Iron Construction Castings from Brazil, Canada, India, and the People’s Republic of China, U.S.I.T.C. Public. 1720, at 12, Investigation No. 701-TA-249 (Preliminary) (June 1985).

Opinion

The primary issue is whether section 612(a)(2) of the Trade and Tariff Act of 1984 (the 1984 Act), Pub.L. No. 98-573, 98 Stat. 3033 (to be codified at 19 U.S.C. § 1677(7)(C)(iv)), requires the Commission to cumulatively assess the volume and effect of imports of like products subject to both antidumping and countervailing duty investigations. Section 612(a)(2) of the 1984 Act amended section 771(7)(C) of the Tariff Act of 1930 by adding inter alia the following:

(iv) Cumulation. — For purposes of clauses (i) [volume] and (ii) [price], the Commission shall cumulatively assess the volume and effect of imports from two or more countries of like products subject to investigation if such imports compete with each other and with like products of the domestic industry in the United States market.

19 U.S.C.A. § 1677(7)(C)(iv) (West Supp. 1985).

Plaintiffs contend that the subsection (iv) cumulation provision quite broadly “requires the Commission to cumulate when two criteria are satisfied: (1) imports of like products are subject to investigation, and (2) imports compete with one another and with the domestic like product.” Plaintiffs’ Brief at 13. Plaintiffs’ position is that there is no additional requirement that the cumulated imports be subject to the same type of investigation and, therefore, subsection (iv) requires the “cross-cumulation” of the volume and effect of imports subject to both antidumping and countervailing duty investigations.

Defendant contends that as the 1984 Act provision for cumulation is entirely silent concerning cross-cumulation, initial statutory directives imposing countervailing and antidumping duties continue to control. In countervailing duty cases, for instance, defendant claims that 19 U.S.C. § 1671(a) applies, which reads:

(a) General Rule. — If—
(1) the administering authority determines that—
(A) a country under the Agreement, or
(B) a person who is a citizen or national of such a country, or a corporation, association, or other organization organized in such a country,
is providing, directly or indirectly, a subsidy with respect to the manufacture, production, or exportation of a class or kind of merchandise imported into the United States, and
(2) the Commission determines that—
(A) an industry in the United States—
(i) is materially injured, or
(ii) is threatened with material injury, or
(B) the establishment of an industry in the United States is materially retarded,
by reason of imports of that merchandise,
then there shall be imposed upon such merchandise a countervailing duty, in addition to any other duty imposed, equal to the amount of the net subsidy.

19 U.S.C. § 1671(a) (1982) (emphasis added). Essentially, defendant’s argument is that section 1671(a) restricts the Commission’s injury investigation in countervailing duty cases to the injury “by reason of imports of that merchandise” investigated with respect to the provision of a subsidy. By the same reasoning, defendant argues that in antidumping duty investigations 19 U.S.C. § 1673 restricts the Commission’s injury investigation to the injury “by reason of that merchandise” investigated with respect to sales in the United States at less than fair value.

The Court finds that section 1677(7)(C)(iv), without exception, requires the cumulation of imports from two or more countries of like products "subject to investigation” that compete with one another and with the domestic like product, regardless of whether the investigations relate to dumping, subsidies, or both.

Although an agency’s interpretation of a statute it is charged with enforcing is entitled to deference if it is reasonable and not in conflict with congressional intent, see Asahi Chemical Industry Co. v. United States, 4 CIT 120, 123-25, 548 F.Supp. 1261, 1264-65 (1982), the court will not defer to an interpretation that is contrary to the express language of the statute, its purpose, and congressional intent. See Board of Governors of the Federal Reserve System v. Dimension Financial Corp., — U.S. -, -, 106 S.Ct. 681, 686, 88 L.Ed.2d 691 (1986); Rose v. Lundy, 455 U.S. 509, 517, 102 S.Ct. 1198, (1982); Southeastern Community College v. Davis, 442 U.S. 397, 411, 99 S.Ct. 2361, 60 L.Ed.2d 980 (1979). The Court is constrained to conclude in the instant case that the Commission’s refusal to cumulate is indeed contrary to the statute, its purpose, and legislative intent.

The legislative history of the 1984 Act does not explicitly address the issue of cross-cumulation. The House Ways and Means Committee, however, provided the following explication of the new cumulation provision:

Reasons for change
The purpose of mandating cumulation under appropriate circumstances is to eliminate inconsistencies in Commission practice and to ensure that the injury test adequately addresses simultaneous unfair imports from different countries. Most Commissioners have applied cumu-lation under certain circumstances but have articulated a variety of differing criteria and conditions. However, cumu-lation is not required by statute. In addition, a few Commissioners have imposed conditions which do not seem justified to the Committee.
The Committee believes that the practice of cumulation is based on the sound principle of preventing material injury which comes about by virtue of several simultaneous unfair acts or practices. The Committee amended the criteria to permit cumulation of imports from various countries that each account individually for a very small percentage of total market penetration, but when combined may cause material injury. The requirement in the bill as introduced that imports from each country have a “contributing effect” in causing material injury would have precluded cumulation in cases where the impact of imports from each source treated individually is minimal but the combined impact is injurious. The Committee does intend, however, that the marketing of imports that are cumulated be reasonably coincident. Of course, imports of like products from countries not subject to investigation would not be included in the cumulation.

H.R.Rep. No. 725, 98th Cong., 2d Sess. 37, reprinted in 1984 U.S.Code Cong. & Admin.News 4910, 5127, 5164 {emphasis added).

In keeping with the foregoing views, Congress broadly required cumulation of the injurious effects of “simultaneous unfair acts or practices” if certain conditions are met. Congress’s rejection of the concept of “contributing effect” underscores its intent that cumulation be broadly applied, even where the impact of unfairly traded imports from one source may be minimal, “but the combined impact is injurious.” There is no doubt that the combined impact from both dumped and subsidized imports may be injurious. Further, there is no suggestion in the language of the 1984 statute or in its legislative history that the Commission separately consider the injurious effects of one type of unfair practice from those of another type of unfair practice. The effects of injury from different types of unfair trade practices upon the domestic industry are identical — it makes no difference to a domestic light construction castings producer whether it loses sales because foreign castings are dumped or because they are subsidized. As the Commission’s own General Counsel correctly observed, “[t]he rationale for aggregating import data rests upon the combined effects of unfairly traded imports in contributing to injury to the domestic industry involved. The considerations are not different in countervailing duty investigations than they are in antidumping investigations.” Memorandum from General Counsel to the Commission, GC-G-05, at 12-13 (Jan. 7, 1983) (quoting GC-F-186).

It is further noteworthy that when Congress considered the amendment of section 1677(7)(C) it was apprised of the question of cumulating imports of the same product in separate countervailing duty and anti-dumping duty investigations:

The law now permits the International Trade Commission to combine or “cumu-late” imports from different countries when making injury determinations in antidumping and countervailing duty investigations. Cumulation makes sense; death by one or one hundred blows is equally fatal. The ITC, however, has been hesitant to cumulate imports at all and extremely reluctant to do so in preliminary injury investigations. There also has been some question about cu-mulation of imports of the same product in separate countervailing duty and antidumping cases. We believe that it would be helpful to amend the statute to require cumulation in certain circumstances. Such an amendment would help to ensure that domestic industries are not denied relief because of an unwise exercise of discretion by the Commission.

Options to Improve the Trade Remedy Laws: Hearings Before the Subcomm. on Trade of the Comm. on Ways and Means, 98th Cong., 1st Sess. 197, 203 (1983) (statement of Adolph J. Lena) (emphasis added). Significantly, Congress did not make any exclusion or exception for cross-cumulation in the 1984 statute, but rather elected to mandate cumulation in broad terms.

Defendant points out, however, that Congress intended the Trade Agreements Act of 1979 to implement two important, but separate, multilateral agreements — the Subsidies and the Antidumping Codes, that is, the Agreement on Interpretation and Application of Articles VI, XVI, and XXIII of the General Agreement on Tariffs and Trade, and the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade. See S.Rep. No. 249, at 37, U.S.Code Cong. & Admin.News 1979, p. 423. Moreover, Congress added material injury requirements respectively to the countervailing duty and antidumping duty statutes. Defendant thus contends that the enactment of United States obligations under the separate Codes with separate injury tests bars the cross-cumulation of injury from imports subject to separate countervailing duty and antidumping duty investigations. Defendant appears especially impressed that the injury test in subsidy cases applies only to countries that have signed the Subsidies Code, while all importers receive the benefit of an injury determination in antidumping investigations. Compare 19 U.S.C. §§ 1303 and 1671(b) (imposition of countervailing duties) with 19 U.S.C. § 1673 (imposition of anti-dumping duties); see also S.Rep. No. 249, at 61, U.S.Code Cong. & Admin.News 1979, p. 447.

Nevertheless, the definition of material injury, the respective indicia of injurious impact, and the causal nexus between the injury and the unfairly traded imports are identical for subsidy and dumping investigations and are outlined in a common statutory provision — 19 U.S.C. § 1677(7). The 1984 Act added to this statute subsection (C)(iv), which broadly states that “the Commission shall cumulatively assess the volume and effect of imports from two or more countries of like products subject to investigation if such imports compete with each other and with like products of the domestic industry.”

While mere placement of the cumulation directive in a statutory provision applicable to both antidumping and countervailing duty cases does not in and of itself suggest or require aggregation of dumped and subsidized imports, the language of subsection (C)(iv) requires the cumulation of products “subject to investigation.” There is absolutely no indication that cumulation is to be limited to products subject only to anti-dumping duty investigations or to products subject only to countervailing duty investigations. Again, “[t]he primary concern of the law is with the effect on domestic industry.” American Grape Growers Alliance for Fair Trade v. United States, 9 CIT —, 615 F.Supp. 603, 606, appeal docketed, No. 85-2717 (Fed.Cir. Aug. 28, 1985) (cumulation required where like products compete with each other only to same degree as with like products of domestic industry under pre-1984 Act law). In light of Congress’s expressed concern with the combined effects of all unfairly traded imports upon domestic industries, the Court must inexorably conclude that section 1677(7)(C)(iv) is intended to require the cu-mulation of all competing like products subject to investigation, whether the investigations cover dumped or subsidized imports, or both.

The Court is mindful of the policy of encouraging countries to sign the Subsidies Code, see S.Rep. No. 249, at 44-45, U.S. Code Cong. & Admin.News, 1979, pp. 430, 431, which underlays the requirement of an injury determination in subsidy investigations. Although countries “under the Agreement” providing subsidies leading to only de minimis injury may be penalized because of dumped merchandise over which they have no control, the concern is no different in multiple subsidy investigations where each country has no control over subsidization by other countries, and where cumulation is concededly mandatory. In enacting the countervailing and anti-dumping duty laws, Congress balanced many interests. But with the 1984 cumulation provision, Congress clearly tipped the scale in favor of the domestic industry and against any country engaging in unfair trade practices.

Defendant contends that the application of cross-cumulation would lead to anomalous results, referring to various distinctions between the antidumping and countervailing duty provisions respecting certain special findings and considerations in injury investigations. Compare 19 U.S.C. § 1671d(b)(4) with 19 U.S.C. § 1673d(b)4 (additional findings required upon an affirmative finding of critical circumstances); see also 19 U.S.C. § 1677(7)(E) and (F)(i) (consideration of nature of subsidy in determination of threat of material injury). Cu-mulation, however, is required only for the purpose of evaluating volume and price effects under 19 U.S.C. § 1677(7)(C)(i) and (ii). Plainly, cross-cumulation does not preclude the Commission from properly making certain findings or considering information as required by these other statutory provisions.

Defendant’s argument, based on a literal reading of statutory provisions other than the cumulation provision (i.e., 19 U.S.C. §§ 1671(a), 1671d(b), 1673 and 1673d(b)), stems from a perceived requirement of a causal nexus between dumped or subsidized imports, not a combination of both, and the injury to the domestic industry. A literal reading of these provisions, however, would equally prohibit the cumulation of imports subject to two or more investigations of the same unfair trade practice. If 19 U.S.C. §§ 1671d(b) and 1673d(b), for example, were read to mean that the Commission’s final determination must be of injury “by reason of imports of the merchandise” found by the International Trade Administration to be subsidized (or dumped), it would follow that cumulation of the injurious effects of imports covered by separate investigations would always be prohibited because the Commission must limit its causal nexus analysis to the merchandise which is subject to the particular dumping or subsidy investigation. To the extent that the other statutory provisions cited by defendant are in pari materia with the cumulation provision, they must be harmonized with the clear congressional purpose in broadly mandating cumulation. See United States v. Invicta Seeland, Inc., 25 CCPA 300, 305-06, T.D. 49397 (1938).

Defendant has not pointed to one policy reason why the cumulative injurious effects of imports in multiple subsidy investigations or multiple dumping investigations should be treated differently from the cumulative injurious effects of imports in concurrent subsidy and dumping investigations. Defendant’s interpretation of the law in essence urges this Court to tolerate an obvious loophole in the cumulation directive for no apparent justification. As discussed, congressional intent to protect domestic industry from the compounded effects of unfairly traded imports from two or more countries requires no more than that the injury be caused by imports of competing like products from countries under investigation.

The criteria that the Commission is required to consider in subsections (C)(i) and (ii) applies to both preliminary and final determinations. See 19 U.S.C. § 1677(7)(B). The Court accordingly holds that the Commission’s refusal in its preliminary determination to cumulate the volume and effect of imports of the merchandise subject to both the countervailing and anti-dumping duty investigations is not in accordance with law. This case must therefore be remanded to the International Trade Commission for further consideration and redetermination consistent with this opinion.

Plaintiffs also challenge the Commission’s interpretation and application of the “reasonable indication” standard of 19 U.S.C. § 1673b(a) (1982) in making its preliminary determination, citing American Lamb Co. v. United States, 9 CIT —, 611 F.Supp. 979, remanded, 785 F.2d 994 (Fed. Cir.1985); Jeannette Sheet Glass Corp. v. United States, 9 CIT-, 607 F.Supp. 123, appeal docketed, No. 86-519 (Fed.Cir. October 4, 1985); Republic Steel Corp. v. United States, 8 CIT -, 591 F.Supp. 640 (1984), reh’g denied, 9 CIT -, Slip.Op. 85-27 (March 11, 1985). As it may ultimately be unnecessary to reach the issue of “reasonable indication” in this case, the Court reserves decision on this question at this time.

ORDER

Upon reading and filing plaintiffs’ motion for review upon the agency record, defendant’s response thereto, upon all other papers and proceedings had herein, and upon due deliberation, it is hereby

ORDERED, ADJUDGED and DECREED that:

the case is remanded to the International Trade Commission for redetermination;

the Commission shall cumulate the volume and price effects of the Brazilian light construction castings subject to the countervailing duty investigation with those of the light construction castings subject to the parallel antidumping duty investigations as required by 19 U.S.C. § 1677(7)(C)(iv); and

the International Trade Commission shall report its redetermination made consistent with the foregoing opinion to this Court within 45 days after the date of entry of this order.

      . The term “cross-cumulation" as used in this opinion refers to the aggregation of less than fair value (dumped) and subsidized imports from two or more countries for purposes of volume and price analysis.

      . The Commission cited the respective provisions for final determinations, 19 U.S.C. §§ 167Id (countervailing duty investigations) and 1673d (antidumping duty investigations), as its basis for refusing to cross-cumulate. See
        U.S.I.T.C. Public. 1720, at 12-13. Defendant in its briefs focused on 19 U.S.C. §§ 1671(a) and 1673, though, apparently because this action is a challenge to a preliminary determination.

      . The legislative history of the Trade Agreements Act of 1979 also emphasizes congressional focus on the impact to domestic industries from unfair trade practices. There too Congress viewed subsidies and dumping as “two of the most pernicious practices which distort international trade to the disadvantage of United States commerce.” S.Rep. No. 249, 96th Cong., 1st Sess. 37, reprinted in 1979 U.S.Code Cong. & Admin.News 381, 423.

      . Prior to the 1984 Act, the Commission had found the cumulation methodology appropriate in certain investigations under the Antidumping Act of 1921 and the Trade Agreements Act of 1979. See e.g., Portland Gray Cement from Portugal, T.C. Public. 37, Investigation. No. AA1921-22, (1961); Pig Iron from East Germany, Czechoslovakia, Romania, and the U.S.S.R., T.C. Public. 265, Investigation Nos. AA1921-52-55, (1968); Aminoacetic Acid (Glycine) from France, T.C. Public. 313, Investigation Nos. AA1921-61, (1970); Certain Carbon Steel Products from Belgium, The Federal Republic of Germany, France, Italy, Luxembourg, The Netherlands, and The United Kingdom, U.S.I.T.C. Public. 1064, Investigation Nos. 731-TA-18-24 (Preliminary) (1980). The Commission had not, however, cross-cumulated prior to the 1984 Act. U.S.I.T.C. Public. 1720, at 12.
      Cumulation was first judicially approved in City Lumber Co. v. United States, 64 Cust.Ct. 826, A.R.D. 269, 311 F.Supp. 340 (1970), aff'd, 59 CCPA 89, C.A.D. 1045, 457 F.2d 991 (1972). Still, Congress explicitly recognized in 1974 that cumulation was not required "as a matter of law,” but could be applied by the Commission on a case by case basis. S.Rep. No. 1298, 93d Cong., 2d Sess. 180 (1974), U.S.Code Cong. & Admin.News 1974, pp. 7186, 7317. It was only after a long period of administrative discretion in applying cumulation that Congress finally made the methodology mandatory in the 1984 Act.
      For a rendition of the legislative process leading to the enactment of section 1677(7)(C)(iv) and the refusal of the House conferees to yield on the stringent cumulation requirement, as they had done in agreeing to agency discretion respecting other provisions, see Bello & Holmer, The Trade and Tariff Act of 1984: Principal Antidumping and Countervailing Duty Provisions, 19 Int’l Law. 639, 661 & nn. 74-78 (1985).

      . The extent of the relevant cause of injury is itself a highly controversial issue and not settled in the law. See generally, Victor, Injury Determinations by the International Trade Commission in Antidumping and CVD Proceedings in the Trade Agreements Act of 1979 — Four Years Later 117, 147-54 (1983).

      . An additional requirement for cumulation, clear from the legislative history, is that the marketing of unfairly traded imports be "reasonably coincident." H.R.Rep. No. 725, at 37, U.S.Code Cong. & Admin.News 1984, p. 5164; see also Price, The Trade and Tariff Act of 1984: An Analytical Overview, 19 Int’l Law. 321, 335 (1985) (predicating cumulation on three conditions); cf. Certain Carbon Steel Products from Austria, Poland, Romania, Sweden and Venezuela, U.S.I.T.C. Public. 1642, at 48-50, Investigation Nos. 701-TA-225-234 and 731-TA-213-217, 219, 221-26, and 228-35 (Preliminary) (1985) (views of Vice Chairman Liebeler) (cumulation limited to imports from countries that are currently the subject of an investigation). This issue is not before the Court in the present case since the countervailing duty investigation exactly paralleled the antidumping investigations.