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AVINS v. MOLL

September 6, 1984

ALFRED AVINS,
v.
CLARENCE R. MOLL, et al.; ALFRED AVINS, v. CLARENCE R. MOLL, et al.; ALFRED AVINS, v. F. EUGENE DIXON, JR., et al.


Cahn, J.


The opinion of the court was delivered by: CAHN

CAHN, J.,

 These actions, consolidated for trial purposes, are brought by Alfred Avins ("Avins"), the founder and former Dean of Delaware Law School of Widener University ("DLS"). *fn1" Avins seeks damages and equitable relief against various individual and corporate defendants, whom Avins claims wrongfully ousted him from his position as DLS Dean and faculty member.

 These cases have a tortuous and protracted history. For nearly a decade, Avins has engaged in litigation against one or more of the defendants in the consolidated actions: Widener University ("Widener"), DLS, Arthur Weeks, Dean of DLS at various relevant times, Dr. Clarence Moll, President of Widener and DLS at various relevant times, and F. Eugene Dixon, Jr., a trustee of Widener and DLS at various relevant times. Eight such cases have been brought by Avins. Simply put, all the actions arose as a result of the affiliation of DLS with Widener in July of 1975. Avins has sued certain individual and corporate defendants in Delaware state court, in the Federal District Court for the District of Delaware, in New York state court, and in this judicial district.

 The factual background of the consolidated actions have been thoroughly described by other members of the judiciary who have adjudicated Avins' claims. See Avins v. White, 627 F.2d 637 (3d Cir.1980), cert. denied, 449 U.S. 982, 66 L. Ed. 2d 244, 101 S. Ct. 398 (1980); Plechner v. Widener College, Inc., 418 F. Supp. 1282 (E.D.Pa. 1976), aff'd 569 F.2d 1250 (3d Cir.1977); *fn2" Avins v. Hannum, 497 F. Supp. 930 (E.D.Pa.1980); Avins v. Widener College, Inc., 421 F. Supp. 858 (D.Del.1976). Accordingly, I will omit a detailed factual statement from this Opinion. Nevertheless, a brief chronological history of the Avins-DLS dispute will place the instant action in its proper perspective.

 Avins founded DLS in 1971. At its inception, DLS was an unaccredited law school. That is, the American Bar Association ("ABA"), had not certified the school. In most states, graduation from an ABA-accredited school is a prerequisite for law students who wish to sit for the bar examination.

 During the accreditation process, the ABA suggested that affiliation of DLS with an established college or university would markedly approve DLS's chances for obtaining accreditation. In 1975, the DLS Board of Trustees voted to affiliate with Widener. Provisional ABA accreditation was obtained before the first DLS class graduated. DLS is now permanently accredited by the ABA.

 Avins opposed the decision to affiliate DLS with Widener. Since the time of the affiliation decision, he has litigated against DLS, Widener, officials and trustees of both schools, and ABA accreditation committee members. In 1976, DLS sought to dismiss plaintiff as a professor at DLS, because his conduct conflicted with the interests of the law school. Hearings were eventually held early in 1978, at which time he was discharged as a DLS faculty member. In August of 1978, Widener chose not to reappoint Avins to the DLS Board of Trustees.

 Prior to his dismissal as a DLS professor, Avins became one of the incorporators of District of Columbia law school in 1977. The institution was designed as a "weekend" law school, where students could attend classes during weekend periods, and not interfere with their weekday occupations. As the name implies, the school was situated in the District of Columbia. Renamed Capitol District Law School, the school was unable to obtain a license empowering it to grant degrees in the District of Columbia. Avins then began another law school in Alexandria, Virginia, which he named Northern Virginia Law School. Later, plaintiff started a division of Northern Virginia in Fall River, Massachusetts, which he named the South-East Massachusetts, Rhode Island, Avins Law School. Both schools are "weekend" law schools, like the now-defunct Capitol District Law School. Neither is accredited by the ABA.

 As previously discussed, Avins has participated as intervenor or plaintiff in several actions in this district and in other jurisdictions challenging the affiliation of DLS with Widener. In the course of his litigation against the instant defendants, he has sought to set aside the DLS-Widener merger, to obtain a lifetime position for himself at DLS, and to compel DLS and Widener to grant him various honorary positions. Avins has also charged certain defendants with defamation, invasion of privacy and intentional infliction of emotional and physical injuries. Finally, he claims that defendants violated the federal antitrust laws by monopolizing the market of law students from, and located in, Delaware, sections of Pennsylvania, and New Jersey, and by conspiring to prevent Avins from starting another law school.

 Defendants have moved for summary judgment in the consolidated actions. For the reasons set forth in this Opinion, defendants' motion for summary judgment will be granted. Judgment will be entered in favor of all defendants and against the plaintiff, and other outstanding motions in the consolidated actions will be disposed of.

 DISCUSSION

 1. Antitrust Claims.3

 Regarding the alleged monopolization, Avins claims that the geographic market DLS dominates encompasses "Delaware, Pennsylvania south of Philadelphia, and New Jersey south of Camden." Pretrial Statement With Respect to the First Cause of Action, para. 5. Plaintiff offers no evidence to support his definition of this market. I disagree with Avins' lines of demarcation, which are obviously meant to exclude the Philadelphia area and more specifically, Temple Law School (Philadelphia) and Rutgers Law School (Camden), both of which have evening divisions like DLS. However, even if I accept Avins view of the geographic market, it is certainly true that potential students located in the DLS market have the option of attending other well-established institutions, such as Temple or Rutgers.

 I am equally troubled by Avins' silence in failing to address the geographic locale of the District of Columbia Law School, which was located in Washington, D.C. In close proximity to that school are Catholic University's Columbus School of Law, Georgetown University Law Center, George Washington's The National Law Center, University of Baltimore School of Law, and University of Maryland School of Law. All are located in the District of Columbia or Baltimore, all offer evening law school curricula, and all were presumably "competitors" of the District of Columbia Law School. Nevertheless, Avins purports to confine the relevant geographic market to "Delaware, Pennsylvania south of Philadelphia, and New Jersey south of Camden." *fn4"

 Notwithstanding Avins' failure to describe persuasively the market in which the District of Columbia Law School functions, he has also failed to set forth any facts which show that DLS achieved its allegedly monopolistic position in a predatory or deliberate manner. *fn5" See United States v. E.I. Dupont de Nemours & Co., 351 U.S. 377, 393, 76 S. Ct. 994, 100 L. Ed. 1264 (1956); United States v. Grinnell Corp., 384 U.S. 563, 16 L. Ed. 2d 778, 86 S. Ct. 1698 (1966); Berkey Photo, Inc. v. Eastman Kodak Company, 603 F.2d 263 (2d Cir.1979), cert. denied, 444 U.S. 1093, 62 L. Ed. 2d 783, 100 S. Ct. 1061 (1980). In fact, Avins asserts that "by reason of its geographic location, DLS has a monopoly of part-time legal education in its prime market." Pretrial Statement With Respect to the First Cause of Action, para. 6. Accordingly, even if DLS dominates a particular "market" in Avin's view, there is no evidence that such domination is due to any factor other than the geographical placement of the school.

 I have likewise determined that defendants are entitled to summary judgment as to Avins' Sherman Act restraint of trade claims. Avins incorporates the remaining counts of his complaint into the restraint of trade allegations, claiming that defendants' hostility towards him amounts to an antitrust violation which ultimately harmed his work at District of Columbia Law School. As defendants correctly note, however, Avins must show that defendants did injury to the competitive process itself, not merely inflict injury on a particular competitor. Brown Shoe Co. v. United States, 370 U.S. 294, 320, 8 L. Ed. 2d 510, 82 S. Ct. 1502 (1962). In this regard, Avins has made no allegations of per se trade restraints such as price-fixing, division of markets or tie-ins. This being the case, Avins has the burden of demonstrating an unreasonable restraint of trade:

 
Under the rule of reason analysis, the elements of restraint of trade are:
 
(1) An agreement among two or more persons or distinct business entities;
 
(2) which is intended to harm or unreasonably restrain competition;
 
(3) and which actually causes injury to competition.
 
Kaplan v. Burroughs Corp., 611 F.2d 286, 290 (9th Cir.1979), cert. denied, 447 U.S. 924, 100 S. Ct. 3016, 65 L. Ed. 2d 1116 (1980). A crucial determination, therefore, is whether or not the alleged conduct of the defendant has impact upon competition in general, DeVoto v. Pacific Fidelity Life Ins. Co., 618 F.2d 1340, 1344 (9th Cir.), cert. denied, 449 U.S. 869, 101 S. Ct. 206, 66 L. Ed. 2d 89 (1980); Kaplan v. Burroughs Corp., 611 F.2d at 291, as '[i]t is the impact upon competitive conditions in a definable product market which distinguishes the anti-trust violation from the ordinary business tort.' Id.

 Hayden Publishing Co., Inc. v. Cox Broadcasting Corp., 566 F. Supp. 503, 511 (E.D.N.Y.1983). Here, Avins' trade restraint allegations incorporate his causes of action for contract breach, injury to reputation, and other "ordinary business torts." Avins does not trace how defendants' actions affected competitive conditions, but rather, complains that those actions injured him personally.

 Notwithstanding the deficiencies in Avins' restraint of trade allegations, I have also concluded that plaintiff cannot, as a matter of law, succeed in proving the "combination . . ., or conspiracy" that is a necessary part of his Sherman Act trade restraint claim. See 15 U.S.C. § 1. It is clear that the defendants in the consolidated actions are sued due to their relationship with Widener and with DLS. All individual defendants are either trustees or employees of one or both institutions. DLS is, of course, a wholly-owned subsidiary of Widener. The Court of Appeals for the Third Circuit, as well as other courts of appeals, has previously determined that section 1 of the Sherman Act "does not reach a putative 'conspiracy' between a corporation and its employees." Tose v. First Pennsylvania Bank, N.A., 648 F.2d 879, 893 (3d Cir.1981) (footnote omitted). That is, the relationship between the corporation and its employees cannot give rise to the requisite "concerted action" for a section 1 claim. Id. This precludes Avins' suggestion that a "combination" of certain unidentified "defendants" reduced Avins' ability to mold District of Columbia Law School into a viable competitor of DLS.

 2. Second and Third Causes of Action

 Avins' second and third claims against defendants arise out of his discharge as DLS Dean and his ultimate termination as a DLS faculty member. In these claims, Avins complains that Weeks interfered with Avins' relationship with DLS by advocating the DLS-Widener affiliation, and by forcing Avins to resign as Dean during the ABA accreditation campaign. Avins alleges that Weeks acted as agent of the other defendants in performing these deeds. Avins also claims that Weeks further interfered with plaintiff by, inter alia, falsely testifying against Avins before a grievance committee, by preventing Avins' name from being placed on the school library, by criticizing the professorial abilities of Avins, and by scheduling meetings with Avins when Weeks knew Avins would be out-of-town.

  In analyzing Avins' allegations, it is first appropriate to narrow his claims, due to the res judicata and collateral estoppel effects of prior litigation. The parties have reviewed the relevant legal principles of res judicata and collateral estoppel in their memoranda. The Court of Appeals for the Third Circuit has adhered to the view that state law rules of res judicata and collateral estoppel apply in diversity cases. See Provident Tradesmens Bank & Trust Co. v. Lumbermens Mutual Casualty Co., 411 F.2d 88, 94 (3d Cir.1969). Nevertheless, the majority rule is to the contrary, and calls for the application of federal law. See, e.g., Hunt v. Liberty Lobby, Inc., 228 U.S. App. D.C. 88, 707 F.2d 1493, 1496 (D.C.Cir.1983); Restatement (Second) of Judgments, § 87. The parties in the instant case have manifested a willingness to apply federal principles of res judicata and collateral estoppel. I will therefore evaluate defendant's arguments by utilizing federal standards. *fn6"

 As has been often stated, the three prong test for the application of res judicata to a given action requires (1) a final judgment in a court of competent jurisdiction in the earlier case; (2) the assertion of the same cause of action in the two cases at issue, and; (3) the presence of the same parties or their privies in both lawsuits. See Haefner v. The County of Lancaster, 543 F. Supp. 264, 265 (E.D.Pa. 1982), aff'd, 707 F.2d 1401 (3d Cir.1983). In recent times, however, the last of these three requirements has been abolished in the strict sense. The Court of Appeals for the Third Circuit, among other courts, has broadened the availability of res judicata to persons who were not parties to or in "privity" with parties in the earlier case. See Bruszewski v. United States, 181 F.2d 419 (3d Cir.), cert. denied, 340 U.S. 865, 95 L. Ed. 632, 71 S. Ct. 87 (1950). That is, where the same plaintiff sues in multiple suits on identical causes of action, defendants in the later suits who were not named as defendants in the earlier suits are entitled to the benefit of res judicata so long as there is a close or particular relationship with the defendants in the earlier suit:

 
Where different plaintiffs sue the same defendant in successive suits, many courts have questioned the fairness of invoking res judicata against the defendant unless a significant relationship can be found between the plaintiffs. But where, as in this case, res judicata is invoked against a plaintiff who has twice asserted essentially the same claim against different defendants, courts have, as indicated in the cases above cited, enlarged the area of res judicata beyond any definable categories of privity between the defendants . . . . We are in accord with this development of the law away from formalism which impedes the achievement of fair and desirable results.

 Bruszewski, 181 F.2d at 422. The Court of Appeals later reaffirmed Bruszewski, holding in Gambocz v. Yelencsics, 468 F.2d 837, 841 (3d Cir.1972) that res judicata applies "where there is a close or significant relationship between successive defendants."

 The doctrine of collateral estoppel, sometimes called "issue preclusion," serves essentially the same policy goals as res judicata -- avoiding relitigation of the same claims, expense to litigants and inconsistent results. The rules of res judicata and collateral estoppel are often confused. The Court of Appeals for the Third Circuit has described the distinction between the doctrines as follows:


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