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MASS v. BRUCE MCCLENAHAN

May 2, 1995

MITCHELL MASS, Plaintiff, -v.- BRUCE McCLENAHAN, IMPERIAL MARKETING, INC., HONEYWELL & ROBERTS, INC., LEAD MARKETING, INC., ENIGMATIC MARKETING, INC., JOHN DOE and JACK DOE, Defendants.


The opinion of the court was delivered by: JOHN S. MARTIN, JR.

 JOHN S. MARTIN, Jr., District Judge:

 Mitchell Mass, a New York attorney, was retained by defendant Imperial Marketing, Inc. ("Imperial") in February of 1992. Between that time and March of 1993, he advised Imperial and several affiliated entities, the other corporate defendants named in this action, on a range of corporate and litigation matters.

 In the fall of 1992, Bruce McClenahan, Imperial's sole shareholder, allegedly began to encourage Mass to move to Las Vegas, where Imperial and McClenahan's other businesses were headquartered, and to accept employment as an executive of Imperial. These overtures led to negotiations and eventually to a written contract between Mass and Imperial (the "employment contract" or "employment agreement"), executed in January of 1993, pursuant to which Mass was hired to serve as Imperial's president and CEO for a minimum of three years, see Celli Aff. Ex. B, Sub-Ex. 1; Levi Aff. Ex. D.

 On or about January 23, 1993, McClenahan allegedly made a telephone call to Mass in which he terminated the employment agreement between Mass and Imperial. Mass claims that, during the telephone call, McClenahan told Mass that he had shown the employment contract to "advisors," who had informed McClenahan that hiring a "New York Jew" would be disastrous for Imperial and McClenahan. According to Mass, McClenahan explained that his "advisors'" concerns were the reason for the termination of the employment agreement. Celli Aff. Ex. D., at 294-97.

 Thereafter, Mass continued to serve as Imperial's attorney. However, on or about March 12, 1993, McClenahan allegedly made another telephone call in which he terminated Mass as an attorney for the corporation. According to Mass, McClenahan told him that McClenahan's "advisors" had suggested that Imperial should not continue to retain a "New York Jew" as its attorney; once again, McClenahan allegedly said that the concerns of his "advisors" were the reason for Mass' termination as Imperial's attorney. Id. at 328, 517-19.

 Mass then filed the present lawsuit, in which he has brought a claim under 42 U.S.C. § 1985(3) against all defendants; a claim against Imperial and McClenahan under 42 U.S.C. § 1981; and claims against McClenahan and Imperial for breaching the employment agreement and for filing a frivolous lawsuit in federal district court in Nevada. Now before the court are related motions by the defendants for full or partial summary judgment in their favor. *fn1" For the reasons discussed below, defendants' motion for partial summary judgment on plaintiff's § 1981 claim is denied; summary judgment is granted in favor of all defendants on plaintiff's § 1985(3) claim; summary judgment dismissing plaintiff's contract claim against Imperial is denied; and summary judgment dismissing the contract claim against McClenahan is granted.

 I. The § 1981 Claim

 Defendants ask the court to grant summary judgment on plaintiff's § 1981 claim "to the extent [this claim] seek[s] to impose liability and recoup damages arising out of plaintiff's termination as defendants' attorney." Defs.' Br. at 3-4. Defendants argue that § 1981 either does not, or constitutionally cannot, reach the attorney-client relationship between Mass and Imperial. *fn2"

 Section 1981 provides, in relevant part: "All persons within the jurisdiction of the United States shall have the same right. . .to make and enforce contracts. as is enjoyed by white citizens." The statute undoubtedly reaches the attorney-client relationship between Imperial and Mass. By its terms, the statute is applicable: Mass is a "person within the jurisdiction of the United States," and the relationship between him and his fee-paying client was a contractual one. Defendants suggest that the statute was not intended to reach an attorney's contract to perform legal services for his client, but Congress nowhere indicated such an intent. To the contrary, when Congress chose to protect the right to make and enforce contracts, it meant to provide a sweeping remedy against racial discrimination. See Runyon v. McCrary, 427 U.S. 160, 170, 96 S. Ct. 2586, 2594, 49 L. Ed. 2d 415 (1976); see also Jones v. Alfred H. Mayer Co., 392 U.S. 409, 436, 88 S. Ct. 2186, 2201, 20 L. Ed. 2d 1189 (1968). *fn3"

 Defendants note that there is a strong public policy supporting the right of a client to discharge an attorney at any time, despite contractual provisions to the contrary. See, e.g., In re Cooperman, 83 N.Y.2d 465, 611 N.Y.S.2d 465, 633 N.E.2d 1069 (Ct. App. 1994). From this they argue that, because an attorney has no contractual right to continued employment by his client, plaintiff has not stated a claim under § 1981. However, even if one were to consider a contract between an attorney and client to be an agreement that is terminable at will by the client, such a contract could not be terminated for a discriminatory reason. See Campbell v. AT&T Communications, 1994 U.S. Dist. LEXIS 9790, *8, 1994 WL 380620, at *3 (N.D. Ill. July 18, 1994) ("There is no 'at-will' defense to a federal discrimination complaint."); see also Baker v. Am. Juice Co., 870 F. Supp. 878, 883 (N.D. Ind. 1994) (§ 1981 applicable when at-will employee alleged that he had been discharged on the basis of his race). Where there is clear evidence that the contract was terminated for a prohibited reason, there is no justification for applying a different rule simply because the contract is one between a lawyer and client.

 While the worthwhile goal of protecting a client's right to discharge a lawyer at any time may make it appropriate to impose a higher standard of proof of discriminatory intent when a lawyer brings a claim of discrimination, in the present case there is direct evidence that plaintiff was discharged because he was "a New York Jew." If this is in fact what happened, the public policy embodied in § 1981 clearly requires that plaintiff be provided with a remedy. This country's strong commitment to the proposition that there should be no discrimination on the basis of race, religion or national origin need not founder on the fear that somehow the enforcement of this policy will destroy the attorney-client relationship. It is difficult to believe that lawyers will often bring claims of discrimination against their former client. In the rare case where the issue is raised, the courts can be trusted to scrutinize such claims with care and to fashion appropriate relief.

 Nor would application of § 1981 to the attorney-client relationship between Mass and Imperial impinge on Imperial's First Amendment freedom of association. The First Amendment protects relationships which involve "deep attachments and commitments to the necessarily few other individuals with whom one shares not only a special community of thoughts, experiences and beliefs, but also distinctively personal aspects of one's life." Roberts v. United States Jaycees, 468 U.S. 609, 617, 104 S. Ct. 3244, 3249, 82 L. Ed. 2d 462 (1984). *fn4" Among the reasons that such relationships warrant constitutional protection, the Roberts Court discussed two in particular: first, such relationships play a critical role in "cultivating and transmitting shared ideals and beliefs," and thus "foster diversity and act as critical buffers between the individual and the power of the State," 468 U.S. at 619, 104 S. Ct. at 3250; and second, such ties are a source of considerable "emotional enrichment" to the individuals involved, thereby enhancing "the ability independently to define one's identity that is central to any concept of liberty," id.


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