Chira v. Lockheed Aircraft Corp.

85 F.R.D. 93, 28 Fed. R. Serv. 2d 1255, 1980 U.S. Dist. LEXIS 9798
CourtDistrict Court, S.D. New York
DecidedJanuary 3, 1980
DocketNo. 78 Civ. 3829
StatusPublished
Cited by5 cases

This text of 85 F.R.D. 93 (Chira v. Lockheed Aircraft Corp.) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Chira v. Lockheed Aircraft Corp., 85 F.R.D. 93, 28 Fed. R. Serv. 2d 1255, 1980 U.S. Dist. LEXIS 9798 (S.D.N.Y. 1980).

Opinion

MEMORANDUM AND ORDER

WHITMAN KNAPP, District Judge.

Before us is a motion to dismiss an action for failure to prosecute pursuant to Rule 41(b) of the Federal Rules of Civil Procedure. For reasons set forth in this opinion, the motion is granted.

Facts

Plaintiff is an attorney admitted to the Bars of New York, California, the District of Columbia, and the United States Su-premé Court. During the first sixteen years following his graduation from the New York University Law School in 1958, he was engaged in a variety of legal activities in different parts of the world: He participated in non-degree postgraduate programs in international and comparative law at universities in Copenhagen, Luxembourg, and Paris; was associated with various prominent law firms in New York, Par[94]*94is, and Stockholm; was a legal adviser in the International Affairs Division of the United States Department of the Treasury in Washington, D. C.; was Associate Division Counsel of General Electric Co. in New York; and was a special legal adviser to a Cabinet Minister of the Imperial Iranian Government in Teheran.

In May of 1974, Lockheed Missiles & Space Company, Inc., a subsidiary of defendant Lockheed Aircraft Corp.1 (“Lockheed”), published a job advertisement in The Wall Street Journal. In response to that advertisement, plaintiff, who was then located in New York, submitted a resume accompanied by a letter dated May 30,1974, in which he asserted that “[f]or some time now, I have been especially interested in relocating on the West Coast given a suitable professional opportunity with a corporation in California.” This resume subsequently came to the attention of defendant’s Lockheed-California Company division, which contacted plaintiff and, following several telephone conversations, invited him to an interview at its Burbank, California offices. Plaintiff now alleges that in the course of these negotiations, it was “stated and implied” by defendant’s agents that if he were to be employed by Lockheed-California, it would be “on a senior level in the legal department through which he would interface [sic] with senior management of defendant”; the scope of his duties and responsibilities would be commensurate with his “unique and varied corporate and international experience” and defendant “would help foster and develop his international expertise”; he would be included in any incentive compensation plan for executives when and if such a plan would be reinstated by defendant; and his position “would be a career and permanent position.”2 In September of 1974, Lockheed-California offered him a position as an attorney at a salary of $567.30 per week. Plaintiff accepted this offer and began work in Burbank on October 14.

In his complaint, plaintiff asserts that throughout the approximately thirty-three months that he was employed by Lockheed-California, defendant’s executives led him to believe that they considered his work to be “more than satisfactory.” For example, he claims that John Martin, defendant’s chief counsel, with the encouragement of John Cavanagh, its general counsel and vice-president, nominated plaintiff to be general counsel of the Lockheed Petroleum Services Company in Canada, and that Martin also nominated plaintiff to the Geneva, Switzerland based position of European Counsel.

Plaintiff’s complaint further asserts that the representations made to him by Lockheed’s agents before he was hired were in fact false and fraudulent. He alleges that: “The scope and quantity of the international legal work, travel and negotiations assigned to him was appreciably less than had been represented”; he “was specifically excluded from certain major international legal negotiations involving his division without justification”; he was not treated as a senior legal executive commensurate with his experience; he was not introduced to the president of Lockheed, or to the president or other senior executives of the Lockheed-California Company; he was excluded from the executive dining room; he was “insulated from senior management so that he could not directly interface [sic], interact, or share his professional thinking with them”; on “one or more occasions” his name was excised from his own work product; and he was not allowed to join or receive the benefits of Lockheed’s incentive compensation plan after the plan’s reinstatement, which reinstatement was not disclosed to him.

Nevertheless, in the face of these alleged indignities, plaintiff continued in the em[95]*95ploy of Lockheed-California until July of 1977. He claims that in the course of this employment, he developed certain physical symptoms which required medical attention. He claims that in early June 1977, after having been examined by one Phillip L. Miller, M.D., a North Hollywood, California physician, he requested a medical leave of absence from Thomas Kubani, his immediate supervisor, in order to undergo medical tests, consultations, and treatment in New York where his family resided. According to plaintiff’s complaint, “Kubani wished him well.” Plaintiff also claims that at about the same time, Dr. Miller wrote to Mr. Kubani as well as to John Cavanagh, Lockheed’s general counsel, regarding plaintiff’s medical condition and recommended that plaintiff be given at least six weeks medical leave of absence.

Defendant’s version of the events of early July 1977 is somewhat different. At oral argument before us, defendant’s counsel asserted that: During the thirty-three months of his employment with Lockheed-California, plaintiff had been absent for a great period of time; during the twelve months preceding July 1977, he had used up all his vacation time and had taken thirty-three business days of approved leave without pay; in July 1977 he requested additional time off to return East for what he said were personal business and family matters; his request was refused; and “he left, nevertheless, after getting a California doctor to say that he required some unspecified medical treatments.”

In any ease, it is undisputed that plaintiff did go to New York in the early part of July 1977. On July 19, Kubani, on behalf of defendant, sent a telegram to plaintiff addressed in care of the latter’s brother in Rye, New York. This telegram contained the following language: “Our records indicate that you have been absent without-authorization and salary since July 11. Unless you personally contact me by phone before end of business on July 21 I will consider you to have voluntarily terminated your employment.” Plaintiff claims that because his brother had sublet his home in Rye, New York and was living in another State at that time, he did not receive a copy of the July 19 telegram until substantially after July 21.3

By telegram dated July 26, 1977, and addressed to a California address which supposedly was not plaintiff’s official mailing address in that State, defendant advised plaintiff that: “Your failure to notify the company has resulted in your voluntarily terminating your employment.” Plaintiff asserts that he received a copy of this telegram on August 1, and that he advised defendant by telegram and letter on that date that: He had not voluntarily terminated his employment at Lockheed; he had no wish to do so; he was still undergoing medical tests; and he expected to resume his duties at Lockheed immediately upon obtaining medical clearance. Apparently, however, plaintiff never did return to work at Lockheed.

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85 F.R.D. 93, 28 Fed. R. Serv. 2d 1255, 1980 U.S. Dist. LEXIS 9798, Counsel Stack Legal Research, https://law.counselstack.com/opinion/chira-v-lockheed-aircraft-corp-nysd-1980.