662 F.Supp. 731 (1987)
Herbert MENZEL, and the Conjugal Partnership consisting of Herbert Menzel and Dorothy Menzel, Plaintiffs,
v.
WESTERN AUTO SUPPLY COMPANY, Defendant.
Civ. No. 86-0112(PG).
United States District Court, D. Puerto Rico.
June 8, 1987.
*732 *733 Harvey B. Nachman, Santurce, P.R., for plaintiffs.
Jorge L. CapÛ Matos, Hato Rey, P.R., for defendant.

OPINION AND ORDER
PEREZ-GIMENEZ, Chief Judge.
The matter is before this Court on defendant's, Western Auto Supply Company (hereinafter Western Auto), motion for *734 summary judgment requesting that plaintiffs', Herbert Menzel and the conjugal partnership consisting of Herbert Menzel and Dorothy Menzel (hereinafter plaintiffs), claims under the Age Discrimination in Employment Act (hereinafter ADEA), 29 U.S.C. ß 621, et seq.; the Commonwealth of Puerto Rico Law No. 100 of June 30, 1959, 29 L.P.R.A. ß 146 et seq.; and the Commonwealth Law No. 80 of May 30, 1976, 29 L.P.R.A. ß 185a et seq., be dismissed.
Plaintiffs assert jurisdiction over the claims arising under the laws of the Commonwealth of Puerto Rico pursuant to the diversity jurisdiction statute, 28 U.S.C. ß 1332.
Summary judgment is proper "if the pleadings, depositions, answers to interrogatories and admissions in file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, ___ U.S. ___, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Poller v. Columbia Broadcasting System, 368 U.S. 464, 82 S.Ct. 486, 7 L.Ed.2d 458 (1982).

Findings of Fact
After a thorough review of the entire record, including all the responsive pleadings, affidavits and documents filed this Court finds that there is no genuine issue as to the following material facts:
1. Defendant, Western Auto, is an employer as defined by ADEA and does business in this judicial district.
2. Plaintiff Herbert Menzel worked for Western Auto from approximately January 24, 1978, until August 26, 1985, when he was dismissed. Menzel was 49 years old when employed by Western Auto and 57 years old at the time of dismissal.
3. Throughout his employment, Menzel was evaluated by his immediate supervisors as an employee who placed more emphasis in volume production than in quality business. Based on volume production exclusively, Mr. Menzel earned prizes on several occasions. In the supervisors' opinion, Menzel demonstrated a neglect for details and accuracy, both in reporting functions and expenses and in the performance of his duties. On many occasions Menzel did not follow Company policies and procedures and did not follow up on assignments.[1] (A.H. Velghe's Sworn Statement, par. 5; T. Reese Stansel's Sworn Statement, pars. 3-5; Jeff L. Turner's Sworn Statement, pars. 3 and 5; Terry S. McCoy's Sworn Statement). The record is full of specific examples of Menzel's flawed performance, however, for brevity purposes, most, but not all of them, will be stated in this Opinion.
4. On or about October 19, 1979, Menzel faced a serious disciplinary action, during which his discharge was considered because of his lack of detail in his reporting of expenses and in the performance of his *735 duties. Menzel was subject to an internal audit at Western Auto concerning excessive mileage expense reimbursement requests, as well as excessive undocumented requests for reimbursements of telephone calls while on the field. His superiors, however, recommended that Menzel's employment not be terminated because of Menzel's past dedication to the Company and the fact that no dishonesty was involved. (A.H. Velghe's Sworn Statement, par. 6).[2]
5. Jeff L. Turner was Menzel's supervisor from December 1980 until June 1983. On April 28, 1981, and May 14, 1981, Turner admonished Menzel for several deficiencies in Menzel's work performance concerning credit collections or credit applications and the quality of the receivables Menzel was approving for conversion. (Jess L. Turner's Sworn Statement, par. 3(a) and (b) and Exhibits A and B thereto).
6. During the year 1981, Terry S. McCoy, as Assistant General Credit Manager for Western Auto, met with Menzel to instruct him about company procedures and the use of good judgment in approving conversions from installment accounts to the revolving account system. For some time Menzel was demonstrating poor judgment in the evaluation of the quality of the accounts versus more quantity. After the meeting, Terry S. McCoy submitted a report on Menzel's performance to his superior, A.H. Velghe. The report, dated July 8, 1981, and which was sent to Menzel's file, cited the following specific examples of incorrect credit judgment on Menzel's part:
1. Conversions received with application clearly noted that the account had been previously declined by Kansas City.
2. Approval of new account by telephone when we spend small fortune for Watts line and personnel to handle telephone approval via Kansas City.
3. Recent meeting included confirmation that FSs were to check Total Charge media during visits to insure daily mailing to Kansas City. Yet dealer in Clewiston, Florida which had a history of holding Total Charge payments and has had a number of visits for conversion purposes, recently submitted Total Charge payments that covered a period of two full calendar months. With the history of holding payments, what did Herb do in recent visits other than convert?
4. If I were to attempt to second guess Herb as to the reason for his approving conversions with poor stability, low income, no and/or weak credit, it would be his desire for sheer numbers and a very heavy dependence on the customer's past pay record or installment and the Dealer's personal opinion of the account.
5. While dating back to original conversion days, Bernard Johnson is an example of what can happen. The account was converted in January 1980 with an initial conversion balance in excess of $4,000. Customer's application and credit bureau report indicated an obvious overobligation. Herb thought very strongly that the decision should stand and said that he would collect it if it were delinquent. The account was in the Collection Department four months after being opened. It has not been current since the first billing. Present status is a balance of $4,551. The amount delinquent on the account is $1,713. The account will be a mandatory charge off this month. By July 1980 Herb was called upon to attempt collection on the account. Since July, Mr. Menzel with the assistance of a retail store manager and a dealer and through his own outside chase efforts, has collected two payments of $150 each. As stated, the first contact with Herb for collection assistance was July 1980, the last being April 28, 1981. During this period of time, there have been numerous requests for assistance, and I am sure numerous attempts *736 at chasing this customer. However, as stated, we are in the process of charging off in excess of $4,000 of this account. I would think that the personal time spent by Herb in trying to collect this account would leave a lasting impression as to the need for quality in our receivables but it appears that the direction being taken is quantity, quantity, quantity.
I know Herb can. I honestly do not know why he is not.
(Terry S. McCoy Sworn Statement, par. 3 and Exhibit A attached thereto).
7. On November 4, 1981, Turner met with Menzel in Macon, Georgia, to terminate Menzel's employment. Turner's reasons for firing him were his poor judgment in the use of his time and travel expenses and other job performance deficiencies as perceived by Turner. At the personal request of A.H. Velghe, who intervened on Menzel's behalf when informed of his dismissal, Turner agreed to reinstate Menzel on the job. (Jeff L. Turner's Sworn Statement, par. 3(f); A.H. Velghe's Sworn Statement, par. 7; H. Menzel Deposition, August 18, 1986, p. 25).
8. On November 13, 1981, Turner sent a memorandum to Menzel in which he seriously questioned his judgment in dividing his time between the small tasks and the important tasks of his job. Menzel was told to spend more time in doing what he had to do, instead of unwarrantly criticizing or censuring other members of Western Auto.
9. On January 26, 1982, Turner prepared a Management Performance Appraisal on Menzel covering the period of January 1, 1981, to December 31, 1981. Turner's stated comments therein were that although Menzel had very good intentions, he was often overly sympathetic with dealers, had trouble recognizing good quality credit, kept very poor expense control and often talked when he should be listening. His overall performance evaluation was "satisfactory". Copy of the appraisal was received by Menzel. His specific performance review compared to established objectives consisted of ratings of good, excellent and unsatisfactory. (Jeff L. Turner's Sworn Statement, par. 3(b); Exhibit C thereto; H. Menzel's Deposition, August 18, 1986, pp. 29 & 31).
10. On January 27, 1982, Turner sent a confidential memorandum to his superior, Mr. C.C. Vess. Therein, he recommended the lowest percentage pay increase for Menzel, compared to the other field supervisors under his supervision because in Turner's opinion, Menzel's performance did not justify more. (Jeff L. Turner's Sworn Statement, par. 3(i); Exhibit I thereto).
11. On March 12, 1982, Turner sent Menzel a memorandum reminding him of specific instructions with respect to collection proceedings which Menzel had not followed. Turner had instructed Menzel that if he could not collect the SIB, he was not to leave the store until he had called Turner on the phone. Menzel did not collect the SIB in a particular store on March 9, 1982, nor did he call Turner. Menzel did not respond to this memorandum. (Jeff L. Turner's Sworn Statement, pars. 3(j) and 4; Exhibit D. thereto; H. Menzel's Deposition, August 18, 1986, p. 31; H. Menzel's Deposition Exhibit VI).
12. On June 15, 1982, Jeff L. Turner sent a memorandum to Menzel admonishing him for his poor performance as Senior Field Supervisor-Credit while refreshing his recollection as to Company procedures in granting loans. In particular, Turner was very concerned with respect to a particular loan request for which Menzel had not used the correct approval criteria. Menzel received and did not respond to this memorandum. (Jeff L. Turner's Sworn Statement, par. 3(1) and (4); Exhibit L. thereto; H. Menzel's Deposition, August 18, 1986, pp. 33-35).
13. On December 2, 1982, Turner sent Menzel a memorandum with respect to dealer checks. Menzel received the memorandum and did not respond. In the memorandum Turner made the following observations:
In this morning's mail we received your report for your visit to Sebring, Fla. The report is dated November 24, 1982. It was mailed in a (sic) envelope post *737 marked November 30, 1982. There was a check attached to the report for $2,000.00. You indicated that the check was to be applied to the dealer's delinquency. It would appear that you held this dealer's check in your possession from November 24, to November 30, 1982. If this is the case in fact it is totally inexcusable. Monies received from a dealer are always and without fail to be mailed the day they are received. The store visit report should be written the day the store visit is made and should be mailed along with the check. However, if for some unknown reason you can't complete the report that day the check should still be mailed with a (sic) explanation that the store visit report is to follow.
(Jeff L. Turner's Sworn Statement, pars. 3(n) and 4; Exhibit N thereto; H. Menzel's Deposition, August 18, 1986, pp. 35 and 37; H. Menzel's Deposition Exhibit X.)
14. On December 7, 1982, and January 25, 1983, Turner sent Menzel two memorandums reprimanding him for incomplete store visit reports. Menzel did not respond. (Jeff L. Turner's Sworn Statement, pars. 3(o) and 4; Exhibits O and P thereto; H. Menzel's Deposition, August 18, 1986, p. 38; H. Menzel's Deposition Exhibit XI.)
15. On February 2, 1983, Turner prepared a Management Performance Appraisal on Menzel covering the period of January 1, 1982, to December 31, 1982. Turner's stated comments therein were that Menzel had been instrumental in improving Puerto Rico's operation because of Menzel's new ideas. Among Menzel's other strengths were his planning, his relation to his dealers and his control over the budget and his ability to adapt to a different environment. The overall performance evaluation was good. Mr. Turner points out, however, that Menzel needed to improve in his communication and job knowledge skills. He specifically points out Menzel's incomplete reports, misunderstanding of instructions and his weak knowledge of why, where and how to make a dealer loan. (Exhibit I attached to Hoffman's Deposition).
16. Before Menzel was transferred to Puerto Rico in June 1983, he spent considerable time in Kansas City in the Credit Department. During the revolving credit installation and conversion period he had help from personnel in Kansas City (A.H. Velghe's Sworn Statement, pars. 3 and 9; H. Menzel's Deposition, August 18, 1986, p. 41, line 19).
17. In June 1983, Menzel was appointed Credit Division Manager in Puerto Rico. He was extensively instructed by Terry S. McCoy, his supervisor, concerning his new responsibilities. (Terry S. McCoy's Sworn Statement, par. 4; A.H. Velghe's Sworn Statement, par. 4; Menzel's Deposition, August 18, 1986, pp. 41-42).
18. On April 1984, Mr. Menzel received an award for an idea that he suggested prior to coming to Puerto Rico concerning the use of pre-approval solicitating mail in conjunction with the credit bureau in the States. (Hoffman's Deposition, p. 22; Exhibits 1 and 2 attached to McCoy's Deposition).
19. A.H. Velghe visited Puerto Rico in late October 1984. His visit resulted from conversations with Terry S. McCoy, who had aired his opinion about Menzel's unsatisfactory work performance for some time. Therefore, A.H. Velghe decided to observe Menzel's performance first hand. During the visit he discovered that the charge-off policy had not been followed. In consultation with Menzel and his assistant Estrada, A.H. Velghe concluded that the amount which should have been charged-off prior to that time was in excess of $400,000. In A.H. Velghe's opinion, this was a serious operational problem because it distorted the statistical performance of the Puerto Rico office. Velghe discussed this deficiency with McCoy. (A.H. Velghe's Sworn Statement, par. 10; Terry S. McCoy's Sworn Statement, par. 13).[3]
*738 20. On February 8, 1985, McCoy prepared a Management Performance Appraisal of Menzel that covered the period of 1/1/84 to 12/29/84. The overall evaluation categories were: unsatisfactory, meets standards, exceeds standards and excellent. Menzel was rated: "meets standards". His areas requiring improvement were mentioned in Section III of the Performance Appraisal; namely, having a hard time understanding and following instructions as well as in doing follow-up to specific assignments; also, overreaction to situations and not taking enough time to think things through. His major strengths were overall credit knowledge, experience, oral communicative skills and adaptability. He had an "excellent" rating in the productivity and payroll objectives but "unsatisfactory" in the "stay in the budget" objective. (Terry S. McCoy's Sworn Statement, par. 11 and Exhibit F thereto).
21. In March 1985, Menzel, as well as all other managers in Western Auto, received a salary increase. Menzel's increase was below the Company's average for similar position. (John H. Supplee's Sworn Statement, par. 4).
22. On March 15, 1985, McCoy sent Menzel a memorandum regarding McCoy's visit to Puerto Rico. Therein, McCoy pointed out that the communication problems continued in that specific instructions were not being followed. In his sworn statement, McCoy points out that there were indications that Menzel was not controlling the office operations, that he was unaware of what was going on, and that he was misinforming Western Auto's home office, either willingly or negligently, as to the results of operations. McCoy was concerned that Menzel was not fully understanding his instructions on how to manage his operations. Among the specific problematic areas addressed in the memoranda were: credit balances, charge-off procedures; collection reviews; repossessions; procedure to deal with returned checks; lowering of scheduled monthly payments on different accounts, credit bureau usage, etc. Menzel received this memorandum and did not object to it. (Terry S. McCoy's Sworn Statement, par. 12; H. Menzel's Deposition, August 18, 1986, pp. 50-51).
23. On March 1985 McCoy informed Vice President A.H. Velghe that during McCoy's visit to Puerto Rico, after reviewing the charge-off procedure, he discovered that more than $200,000 had not been charged-off in accordance with company policy (A.H. Velghe's Sworn Statement, par. 11) even though the charge-off policy had been explained to Menzel in numerous occasions. (McCoy's Deposition, p. 71).
24. On June 27, 1985, McCoy prepared a memorandum to the file reporting his visit to the Puerto Rico office from May 25 until June 1, 1985. This was done to back up and explain to A.H. Veghe the specific reasons for McCoy's recommendation that Menzel's employment be terminated. This memorandum was given to Velghe, as well as another one dated June 28, 1985, copy of which was also sent to H. Menzel. In the June 27, 1985, memorandum, McCoy stated that he found no improvement on the overall management of the office. In particular, he stated therein that there was a grand opening of Puerto Rico Flag Stores planned for May 27, 1985, for which many of the preparations had not been made by Menzel at the time of McCoy's arrival. McCoy had the impression that Menzel, either was not aware of the preparation requirements for the grand opening or had lied to him. McCoy was completely dissatisfied with Menzel's performance, in particular with insufficient staff to perform duties during the ceremonies. McCoy had to cover for these deficiencies, which included hiring additional temporary personnel. Although Menzel was previously advised of the procedures, he claimed to be surprised that he was required to make the arrangements. The following are a series of incidents or deficiencies related to the grand opening which were recorded in the June 27, 1985, memorandum:
a) Temporary personnel had not been hired and assigned to the top six stores as per the instructions Terry McCoy had given.

*739 b) Although Menzel had confirmed to McCoy that no one would be off in the credit approval area on Thursday or Friday (May 30 and 31, 1985) due to the grand opening, McCoy later discovered that 25% of the qualified evaluator staff was scheduled to be off on Thursday, the first day of the grand opening.
c) On the first day of the grand opening 74% of the staff scheduled to work that day were at lunch at 12:28 p.m. even though Menzel had confirmed to McCoy that he had rearranged the lunch schedule so that at least 50% of the staff would be available.
d) On Friday, May 31, 1985, at 9:00 a.m., there was no one answering the phone at the credit office. This was the second day of the grand opening and the switchboard which receives all incoming calls from the stores was unmanned. When confronted with this Menzel had no response.
(Terry S. McCoy's Sworn Statement, par. 14; Exhibit H thereto; A.H. Velghe's Sworn Statement, par. 12; Exhibit B thereto).
25. In the memorandum of June 27, 1985, McCoy also stated that during his May 1985 visit to Puerto Rico he confronted Menzel on several irregularities with respect to uncollectable accounts. The memorandum contains an extensive list of specific deficiencies and irregularities with which McCoy confronted Menzel, these being basically:
a) Verbal and written policy and procedures concerning charge-offs were not being followed.
b) Team leaders, who were supposedly the best collectors, were performing more clerical functions that collection functions.
c) Duplicate accounts or credit balances of charge-offs (Company 301 accounts) were not being properly handled.
d) Contrary to the policy and procedures established, collection efforts were being made to collect charged off accounts instead of being placed with the collection agency.
e) Previous collection cards were not being researched and given to the collector.
f) Documentation and follow-up of perceived deficiencies in the assistant managers had not been completed satisfactorily.
(Terry S. McCoy's Sworn Statement, pars. 14, 15 and 16; Exhibit H thereto).
26. In June 1985, there was an $85,000 reporting error from Puerto Rico's credit office in a statement approved by Menzel. McCoy was informed of this error. (Terry S. McCoy's Sworn Statement, par. 9; Exhibit J. thereto; H. Menzel's Deposition, August 16, 1986, pp. 55-56).
27. During the months of February to June 1985, McCoy spoke with A.H. Velghe and Mr. J. Garraty, Senior Vice-President, Management Services, about Menzel's performance. In early June 1985 all three of them reviewed Menzel's past history with the company and the different occasions in which they had given him the opportunity to correct said deficiencies. Violations of the Company's "charge off" policy which had been discovered in October 1984 and March 1985 were discussed between them, together with Menzel's more recent deficiencies or poor work performance. In McCoy's opinion and that of the others, Menzel was simply not following the instructions and was not correcting his deficiencies. McCoy recommended, and was supported by both Velghe and Garraty, to discharge Menzel. (Terry S. McCoy's Sworn Statement, pars. 18 and 21; A.H. Velghe's Sworn Statement, pars. 13-17).
28. Menzel believes he was dismissed because of his age because in his opinion he was discharged without just cause; the person who replaced him is much younger; when replaced he had little more than a year to go to vest for his pension benefits; and his replacement had a lower salary and benefits. (H. Menzel's Deposition, August 18, 1986, pp. 68, 71).

Conclusions of Law
Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there *740 is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R. Civ.P. 56(c); Celotex Corp. v. Catrett, supra. In determining whether summary judgment is appropriate the Court must look at the record and indulge all inferences in the light most favorable to the party opposing the motion. Poller v. Columbia Broadcasting System, 368 U.S. 464, 473, 82 S.Ct. 486, 491, 7 L.Ed.2d 458 (1962); Hahn v. Sargent, 523 F.2d 461 (1st Cir. 1975). To be considered "genuine" a material issue must be established by sufficient evidence supporting the claimed factual dispute to require a trial on the merits. Hahn v. Sargent, 523 F.2d at 464. In other words, "summary judgment will not lie if the dispute about a material fact is `genuine,' that is, if the evidence is such that a reasonable jury could return a verdict for the non moving party." Anderson v. Liberty Lobby, Inc., ___ U.S. ___, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986).

ADEA Claim
In an age discrimination suit the burden of establishing that the defendant discriminated against plaintiff remains with the plaintiff at all times. Loeb v. Textron, Inc., 600 F.2d 1003, 1011 (1st Cir. 1979). The plaintiff can carry this burden directly by presenting evidence that he was discharged because of his age, see, Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 256, 101 S.Ct. 1089, 1095, 67 L.Ed.2d 207 (1981), or by using the framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), as adopted by Loeb v. Textron, Inc., supra.
Pursuant to Loeb, a plaintiff carries the initial burden of establishing a prima facie case of age discrimination. If a prima facie case has been established, the employer must articulate a legitimate, nondiscriminatory reason for the discharge. This is not a burden of persuasion but of production. If met, the employee must then prove by a preponderance of the evidence that the employer's explanation was a mere pretext for discrimination.
To create a prima facie case under ADEA, plaintiffs must show that 1) Menzel belonged to the protected class; 2) his job performance was sufficient to meet his employer's legitimate expectations; 3) he was discharged in spite of his performance; and 4) the employer sought a replacement for him. Loeb, 600 F.2d at 1014. The Court's task is to ascertain at each step of the test whether any issue of material fact emerges authentically and, if not, whether the case calls for judgment as a matter of law. Smith v. Chamber of Commerce, 645 F.Supp. 604, 606 (D.D.C.1986).
Defendant's position is that plaintiffs have failed to carry their burden with respect to step 2 of the prima facie case. Defendant, however, has preferred to assume for purposes of argument that plaintiffs have established a prima facie case and has moved to articulate, through the introduction of admissible evidence, the legitimate nondiscriminatory reasons for Menzel's dismissal. In support thereof, Western Auto has pointed to depositions, sworn statements and memoranda by personnel with direct supervisory responsibility over Menzel. A review of the entire record shows that Western Auto has met this burden.
On March 15, 1985, Terry McCoy, Menzel's supervisor, sent Menzel a memorandum regarding McCoy's observations of Menzel's performance during a recent visit to Puerto Rico. Therein, McCoy stated that Menzel was not fully understanding McCoy's instructions on how to manage Western Auto's credit operations in Puerto Rico. The specific problematic matters addressed in the memorandum included, among others: charge-off procedures, collection reviews, repossession and procedure to deal with returned checks. (Findings of Fact No. 22).
In Western Auto's parlance, a charge-off refers to the balance owed by a consumer that for whatever reason the consumer does not pay and, accordingly, is taken as a charge to the loss statement of the company for nonpayment. Not enforcing charge-offs reflects a profitability overstatement of operations. (Plaintiffs' Opposition Exhibit *741 No. V, p. 71). Western Auto's policy for charge-offs thus required that any consumer account not making a qualifying payment for six consecutive months be considered a mandatory charge-off and that, regardless of the reasons for nonpayment, the account be charged to the loss statement of the company. Id., at p. 71.
The charge-off policy had been explained to Menzel on numerous occasions. (Findings of Fact 23). Yet, as noted in the March 1985 McCoy Memorandum, McCoy uncovered that the Puerto Rico division under Menzel reflected $200,000 which should have been charged to operational loss. The same problem, however, had already occurred in October 1984. At the time, it had been determined that Menzel's Puerto Rico office carried $400,000 which should have been reflected as loss. (Findings of Fact 19). Even Menzel admits having been aware of the problem involving the $400,000 and did not deny either having received the McCoy March 1985 Memorandum or having discussed the content thereof with McCoy nor the problem involving the $200,000 noted above. (Menzel's Deposition of August 18, 1986, pp. 46, 50).
This serious situation, however, went unabated as charge-off policy irregularities were again detected during McCoy's visit to Puerto Rico in May 1985. (Findings of Fact 25). The charge-off irregularities amount to both infringements of company policy and violations of instructions from his supervisor. Id. Further, they underscored Menzel's inability to overcome noted performance deficiencies, particularly in the area of not being able to understand and follow up instructions.
This problem was compounded by reporting errors from Menzel's Puerto Rico credit office. Thus, in June 1985 there was an $85,000 reporting error from the Puerto Rico office in a statement Menzel had approved. (Findings of Fact 26). Additional problems transpired, such as Menzel's flawed performance during a grand opening of Puerto Rico's Flag Stores in May 1985. (Findings of Fact 25).
The foregoing reflects a pattern of serious problems involving noncompliance with company policy and inability to follow up instructions on Menzel's part. Moreover, while Menzel had been informed of these deficiencies, he had not been able to correct them.
The foregoing also amounts to legitimate employer concerns justifying, if not properly rebutted, summary judgment dismissing the ADEA complaint. Dea v. Look, 810 F.2d 12 (1st Cir.1987); Oglesby v. Coca-Cola Bottling Co., 620 F.Supp. 1336, 1347 (D.Ill.1985) (employee did not meet employer's legitimate expectations even though he could have been excelling in sales volume, yet was deficient in other job areas, such as monitoring of delinquent accounts and timely filing of written reports).
Thus, pursuant to Loeb and Dea, supra, the burden now shifts back to plaintiffs to prove that Western Auto's articulated reasons are but a pretext for discrimination. In determining whether this burden has been met, the question is not whether defendant's decision to fire Menzel reflected an objective fact finding judgment of plaintiff's abilities but whether it was unlawfully motivated. Loeb v. Textron, 600 F.2d at 1014. Thus, plaintiffs cannot avoid a motion for summary judgment merely by showing that the employer's decision was unwise or unfair. Plaintiffs must prove by a preponderance of the evidence that Menzel's age was the determining factor in his discharge in the sense that "but for his employer's motive to discriminate against him because of his age, he would not have been discharged." Id., at 1019.
In order to defeat summary judgment plaintiffs must present evidence addressing or negating Western Auto's reasons to discharge Menzel. See, Dea v. Look, supra. This entails submitting evidence sufficient to prevail before a jury on such issues. See, generally, Anderson v. Liberty Lobby, supra. Plaintiffs have failed to meet this burden.
In this case, plaintiff's evidence had to at least respond to or address Western Auto's proof that Menzel 1) was infringing company policy concerning charge-offs; 2) was *742 not following instructions on company policy and administrative and control matters; 3) had authorized an inaccurate statement amounting to $85,000; and 4) had proved incapable of overcoming deficiencies of which he was aware.
In order to prove that Western Auto's articulated reasons are but a pretext for discrimination plaintiffs have offered Mr. Stanley Hoffman's[4] testimony to try to establish that: 1) from 1977 through 1983 Menzel's performance overall was very good and that in 1983 Menzel had been chosen to head defendant's credit office in Puerto Rico; 2) the overall rating given to Menzel in his 1982 evaluation should have been a high good or a very good overall rating; 3) Menzel received an award on August 21, 1985; and 4) Mr. McCoy did not complain to Menzel about a certain store not having credit applications or about other deficiencies.
Plaintiffs have also offered Mr. McCoy's testimony to try to establish that 1) Menzel got merit increases which were not automatic since same employees did not get merit increases every year; and 2) Menzel had been sent to Puerto Rico to perform a conversion process and said conversion was a success.[5]
This evidence, even if admissible, is insufficient to create a genuine issue of material fact and insufficient to prove that the employer's explanation was a mere pretext for discrimination.

a. Hoffman's Testimony

Assuming the admissibility of Hoffman's opinion testimony that Menzel's performance from 1977 to 1983 was very good or that in 1982 Menzel's overall performance evaluation should have been very good or that in 1983 Menzel was chosen to head defendant's credit office in Puerto Rico, these do not create a genuine issue of material fact insofar as they do not negate flaws in Menzel's performance thereafter. An employee initially qualified for a job could have thereupon performed unsatisfactorily so that the employer could be justified in dismissing him from employment. See, e.g., Sack v. Kimberly-Clark Corp., 33 F.E.P. Cases 624, 626 (E.D.Wis. 1983) (that an employee had been originally hired for the job from which he was subsequently discharged does not negate that he performed unsatisfactorily and not according to his employer's legitimate expectations). Consequently, even assuming, arguendo, that Menzel was (as Hoffman suggested) initially qualified when hired and that he might have performed well in the past, summary judgment still is mandated by Fed.R.Civ.P. 56, due to plaintiffs' failure to rebut Western Auto's evidence of serious flaws in Menzel's performance for the period preceding dismissal.

b. Menzel's Award

Plaintiffs' counsel asserts Menzel received an award on August 21, 1985. *743 (Opposition p. 12). However, the record shows that the award was given in April 1984 (Hoffman's Deposition, p. 22; Exhibits 1 and 2 attached to McCoy's Deposition) for an idea that Menzel suggested before coming to Puerto Rico concerning the use of pre-approved solicitation mail in conjunction with the credit herein in the states. Again, an employee generally could be performing satisfactorily in some areas of the job, yet be deficient in others. See, e.g., Oglesby v. Coca Cola Bottling Co., supra, (employee did not meet employer's legitimate expectations even though he could have been excelling in sales volume, yet was deficient in other job areas, such as monitoring of delinquent accounts and timely filing of written reports). Yet, that does not deprive the employer of the right or authority properly to terminate employees with performance deficiencies.
Consequently, Menzel's 1984 good idea award cannot obscure the fact that he was not performing as his employer legitimately expected at the time of termination.[6]

c. Menzel's Salary Increases and Evaluations

Plaintiffs state that Mr. McCoy admitted that Menzel got increases every year and that these were not automatic because some people did not receive them. (Opposition, p. 14). However, Mr. McCoy did explain that "when someone reaches the maximum for their range they do not receive an increase." Furthermore, Mr. McCoy stated that Menzel's increases were below those of other people reporting directly to him. (McCoy's Deposition, p. 69). Moreover, an increase in salary is not inconsistent with employee deficiencies leading up to an employer's legitimate decision to dismiss him. See, e.g., Grant v. Gannett Co., Inc., 538 F.Supp. 686, 692-693 (D.Del.1982) (age discrimination complaint dismissed because even though employee-plaintiff had received bonuses and salary increases, he had not rebutted employer's evidence that plaintiff had failed to overcome deficiencies in important areas of management). Accordingly, the so-called merit increase does not negate Menzel's deficiencies as legitimate basis for his dismissal.
Nor is summary judgment prevented by evidence that Menzel's performance had been rated as satisfactory or better. See, Kittredge v. Parker Hannifin Corp., 597 F.Supp. at 610 (that employee generally received overall satisfactory rating on an evaluation preceding termination is not inconsistent with evidence of undesirable flaws in employee's performance).

d. The Alleged Absence of Certain Complaints by McCoy

Plaintiffs seek to create a factual issue by offering Menzel's deposition testimony as evidence that McCoy never complained to Menzel during McCoy's May 1985 visit to Puerto Rico. (Plaintiffs' Opposition, p. 13). The truth of the matter, however, is that plaintiffs do not deny that McCoy discussed with Menzel the points raised in the March 1985 Memorandum which followed McCoy's visit to Puerto Rico. Menzel admitted as much during his deposition. (Menzel's Deposition, August 18, 1986, pp. 64-67).

e. Profits in the Puerto Rico Operation

Plaintiffs also seek to create an issue about profitability of Puerto Rico credit operations under Menzel. Although it has no bearing on the reasons advanced by defendant for Menzel's dismissal, plaintiffs insist that before Menzel came to Puerto Rico the office was losing money and that under Menzel such office was a success. Assuming this was true, just because the company was not losing money does not avoid entry of summary judgment. That fact does not address the issues herein nor the reasons for the dismissal. See, Dale v. Chicago Tribune Co., 797 F.2d 458 (7th Cir.1986). Moreover, as explained in Plaintiffs' *744 Opposition Exhibit IV, pp. 69-70, credit profitability in Puerto Rico from 1983 on resulted from centralization and computerizing of operation.
The undisputed facts in this case show that Menzel was discharged for reasons unrelated to his age. Menzel's personnel record, which was prepared in the normal course of business, the sworn statements and depositions filed reveal that prior to coming to Puerto Rico Menzel had on numerous occasions been unable to follow instructions and Company policy concerning charge-offs. Menzel had been informed of these deficiencies but had not been able to correct them. In fact, six months prior to his discharge, Menzel again failed to follow instructions and company policy concerning charge-offs. Furthermore, he had authorized an inaccurate statement amounting to $85,000 and had numerous deficiencies in his handling of the grand opening of Puerto Rico Flag Stores in May 1985. We further note that when Menzel was hired in 1978 he was 49 years old and was already an older worker for purposes of ADEA.

Plaintiffs' Law No. 100 and Law No. 80 claims
Law No. 100 of June 30, 1959, as amended, 29 L.P.R.A. ß 146 et seq., prohibits, among other things, an employee's dismissal for the reason of age. Law No. 100 also provides for a rebuttable presumption of existence of discriminatory motive when the absence of just cause is demonstrated. This rebuttable presumption shifts the burden of proof to the employer, who must go forward with evidence that shows through preponderance of the evidence absence of discrimination in the employee's discharge. To activate the presumption plaintiff must prove that the discharge was performed without just cause. IbaÒez v. Molinos de Puerto Rico, Inc., 114 D.P.R. 42, 50-56 (1983). If plaintiffs cannot establish the bases to trigger the presumption, that is, absence of just cause in the discharge, then the Court should dismiss the claim.
The undisputed facts in this case show that Menzel was discharged for just cause and for reasons unrelated to his age. As we have indicated, the record before us shows that prior to coming to Puerto Rico Menzel had on numerous occasions been unable to follow instructions and Company policy concerning charge-offs. Menzel had been informed of these deficiencies but had not been able to correct them. Six months prior to his discharge, Menzel failed to follow instructions and company policy concerning charge-offs. Furthermore, he had authorized an inaccurate statement amounting to $85,000 and had numerous deficiencies in his handling of the grand opening of Puerto Rico Flag Stores in May 1985.
Furthermore, assuming that there was absence of just cause for Menzel's discharge, defendant clearly established absence of discrimination in his discharge.
The foregoing discussion also suffices to dismiss plaintiff's discharge indemnity claim under Commonwealth Law No. 80.
Law No. 80 of May 30, 1976, 29 L.P.R.A. ß 185a, et seq., was enacted to protect employees from unjust dismissals by their employer. The purpose of the statute is to provide for limited protection (monetary indemnity) from arbitrary dismissals but without unreasonably limiting the employer's inherent freedom to choose and maintain only competent employees. Statement of Motive, Act May 30, 1976, No. 80 Laws of Puerto Rico 1976, p. 251. Just cause is that which has its origin in the proper and normal operation of the employer's establishment. 29 L.P.R.A. ß 185(b). To assist in the comprehension of this cardinal principle, section 185b provides a listing of several specific reasons contemplated as "just cause." That section provides:
Good cause for the discharge of an employee of an establishment shall be understood to be:
a. That the worker indulges in a pattern of improper or disordely conduct.
b. The attitude of the employee of not performing his work in an efficient manner or of doing it belatedly and negligently or in violation of the standards of quality of the product produced or handled by the establishment.

*745 c. Repeated violations by the employee of the reasonable rules and regulations established for the operation of the establishment, provided a written copy thereof has been timely furnished to the employee.
d. Full, temporary or partial closing of the operations of the establishment.
e. Technological or reorganizaion changes as well as changes of style, design or nature of the product made or handled by the establishment and in the services rendered to the public.
f. Reductions in employment made necessary by a reduction in the volume of production, sales or profits, anticipated or prevalent at the time of the discharge.
In the present case, the record reveals just cause for Menzel's dismissal, i.e.: the repeated nature of Menzel's deficient performance, 29 L.P.R.A. ß 185b(b), and repeated violations of the Company's policies, as well as Menzel's failure to follow his supervisor's instructions, ß 185b(c).
WHEREFORE, in view of the above Western Auto's motion for summary judgment requesting the dismissal of plaintiffs' claims under ADEA and Commonwealth Laws 100 and 80 is hereby GRANTED
IT IS SO ORDERED.
NOTES
[1]  Plaintiffs claim that Menzel was never evaluated as less than satisfactory; that the sworn statements of Messrs. Velghe, Stansel, Turner and McCoy have little value when they are not subject to cross-examination, and that Mr. McCoy's sworn statement is not in accord with all of his deposition testimony.

Although Mr. Menzel has never been evaluated as less than satisfactory in his "overall performance" evaluations, plaintiffs have not denied Menzel's failure to follow company policy and instructions regarding charge-offs. Furthermore, the fact that an employee could have been performing in a creditable manner does not rebut deficiencies leading up to termination. See, Kittredge v. Parker Hannifin Corp., 597 F.Supp. 605, 610 (N.D.Mich.1984) (that employee generally received overall satisfactory rating on evaluation proceedings termination is not inconsistent with evidence of undesirable flaws in employee's performance.)
Second, plaintiffs cannot evade summary judgment by ignoring sworn statements. A party opposing a Rule 56 motion cannot rely on the hope that favorable evidence will somehow turn out during trial to defeat summary judgment. Parker v. Federal National Mortgage Association, 741 F.2d 975, 980 (7th Cir.1984). Plaintiffs must do more than expect to argue before a jury that a Rule 56 movant's evidence is not credible. Thus, unless adequately disputed under Fed.R. Civ.P. 56, affidavits could suffice to sustain summary judgment.
Third, to state that an affidavit is not in accord with all of the affiant's deposition testimony does not suffice to defeat summary judgment. Furthermore, we have found no contradiction to justify a trial on the merits.
[2]  In their opposition to defendant's motion for summary judgment, plaintiffs argue that an event that occurred six years prior to Menzel's dismissal has no materiality in terms of Menzel's evaluation and performance in 1985. Plaintiffs, however, fail to challenge the truthfulness of the statement. Further, when viewed in the context of the reasons for Menzel's dismissal, it is relevant in tracing a recurrent pattern of performance regarding administration, control, quality, follow-up and compliance with established procedure.
[3]  According to plaintiffs, this paragraph amounts to hearsay "not worthy of credence nor of comment." Yet, plaintiffs do not explain why the statement constitutes inadmissible hearsay not worthy of credence or comment. Plaintiffs' problem hinges on the groundlessness of their objections.
[4]  Up to October 1984, Stanley Hoffman was corporate vice president of Western Auto in charge of overall administration of credit functions.
[5]  Plaintiffs have also alleged:

In showing that a stated reason is pretextual, evidence that people who are older do not generally survive in management positions at Western Auto in Puerto Rico, is a factor that must be weighed by the fact-finder. Obviously, the defendant's successor plan to lower the age of lower echelon employees is relevant evidence as to the true motive of the defendant's action in removing the plaintiff without any just cause.
(Opposition to defendant's motion for summary judgment, p. 15).
Plaintiffs have two problems. First, the only evidence on record we found related to the first statement is that in his deposition Mr. McCoy agreed that among the exempt personnel Mr. Menzel was the oldest employee in the Credit Department in Puerto Rico and he knew of nobody older, even among the non-exempt personnel. This evidence, however, is clearly insufficient to show by preponderance of the evidence that Western Auto's reasons for Menzel's dismissal were just a pretext. It fails to explain how and why older employees do not generally survive in Western Auto. Many of these employees could have left Western Auto for any reason, including death, transfer, disability, voluntary termination or justified dismissal.
Second, there is no evidence on record to support plaintiffs' contention that the defendant's successor has a plan to lower the age of lower echelon employees.
[6]  Between 1977 and 1983 Menzel also received numerous awards based on volume production alone. (See, A.H. Velghe's Sworn Statement, par. 5). However, again, this cannot obscure the fact that he was not performing as his employer legitimately expected at the time of termination.


615 S.W.2d 231 (1981)
James JENKINS, Appellant,
v.
The STATE of Texas, Appellee.
No. 67381.
Court of Criminal Appeals of Texas, Panel No. 1.
May 6, 1981.
Robert Huttash, State's Atty., Austin, for State.
Before ROBERTS, DALLY and TEAGUE, JJ.

*232 OPINION
DALLY, Judge.
Our prior opinion is withdrawn.
This is an appeal from a conviction for the misdemeanor offense of driving a motor vehicle on a public highway while intoxicated, Art. 6701l-1, V.A.C.S.; the punishment is a fine of $445.
The appeal is submitted on the record without briefs. Having reviewed the record in the interest of justice, Art. 40.09, Sec. 13, V.A.C.C.P., we find that in light of the punishment assessed by the trial court, the judgment must be reversed and the cause remanded for reassessment of punishment.
Art. 6701l-1, V.A.C.S., in pertinent part provides:
"Any person who drives or operates an automobile ... upon any public road or highway in this State ... while such person is intoxicated ... upon conviction shall be punished by confinement in the county jail for not less than three (3) days... and by a fine of not less than Fifty ($50.00) Dollars ...." [Emphasis added.]
The minimum mandatory punishment for this offense must include confinement in the county jail for three days. Since no imprisonment in jail was assessed by the trial court, the punishment assessed was less than the minimum provided by law. See Gassoway v. State, 385 S.W.2d 386 (Tex.Cr.App.1965); Mendez v. State, 379 S.W.2d 333 (Tex.Cr.App.1964); Gilliland v. State, 342 S.W.2d 327 (Tex.Cr.App.1961).
The judgment is reversed and the cause remanded to the trial court for reassessment of punishment.


566 P.2d 117 (1977)
STATE of New Mexico, Plaintiff-Appellee,
v.
John DOE, Defendant-Appellant.
No. 2876.
Court of Appeals of New Mexico.
June 14, 1977.
*119 Jan A. Hartke, Chief Public Defender, Reginald J. Storment, App. Defender, Santa Fe, for defendant-appellant.
Toney Anaya, Atty. Gen., Suzanne Tanner, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.

OPINION
WOOD, Chief Judge.
This Children's Court appeal involves the timeliness of the hearing on the petition. Other issues listed in the docketing statement were not briefed and, therefore, were abandoned. State v. Vogenthaler, 89 N.M. 150, 548 P.2d 112 (Ct.App. 1976). The issue of timeliness involves: (1) the statute, (2) Children's Court rule, and (3) whether the statute or the rule is controlling.
The child was committed to the Boy's School at Springer in February, 1976. According to the briefs, he was paroled by the school. A petition to revoke this parole was filed November 24, 1976. This petition alleged that the child had committed armed robbery and aggravated assault on November 22, 1976. The Children's Court found that the child committed the acts charged, that he was a delinquent child in need of care and rehabilitation. It revoked the child's parole and transferred the child to the Boy's School. The timeliness of the hearing leading to parole revocation is the issue on appeal.

Statute
Children's Court procedures for original petitions alleging delinquency apply to petitions for revocation of parole. Section 13-14-40, N.M.S.A. 1953 (Repl.Vol. 3, pt. 1). A hearing on a petition alleging delinquency must be begun within stated time limits. Section 13-14-26, N.M.S.A. 1953 (Repl.Vol. 3, pt. 1).
Under § 13-14-26(A), supra, a hearing on a petition alleging delinquency must be begun:
"(1) fifteen [15] days from the date the petition is filed when a child in custody is denied unconditional release at his detention hearing;
"(2) forty-five [45] days from the date the petition is filed when a child once in custody for the offense charged in the petition or an offense based upon the same conduct is released at or before his detention hearing... ."
The child asserts that the above-quoted subparagraph (1) applies to his case. He points out that he was released to his parents at the detention hearing held on November 24, 1976, but this release was on specified conditions. Because his release was not unconditional, he claims the 15-day time limitation applied. Because the hearing was not begun within 15 days of November 24, 1976, he asserts he is entitled to a dismissal of the petition with prejudice. We disagree.
The record shows that the child was detained in jail from 8:45 a.m. on November 22, 1976. He was released at his detention hearing. Having been "once in custody for the offense charged in the petition" and having been released at his detention hearing, the above-quoted subparagraph (2) applied. The time for beginning a hearing on the petition to revoke was 45 days from November 24, 1976.
The 45th day would have fallen on January 8, 1977. Since this was a Saturday, the child asserts that a hearing on the petition to revoke should have begun not later than January 10, 1977. On the basis that no hearing had begun within the 45-day period, the child contends his motion to dismiss should have been granted. Again, we disagree.
*120 A petition to revoke the child's release, filed on January 3, 1977, alleged the child had violated the conditions of his release. A hearing on this petition was held on January 5, 1977. At this hearing, the Children's Court ordered the child held in jail.
At the hearing held January 5, 1977, the Children's Court continued the hearing on the petition to revoke until January 21, 1977 because of the absence of certain witnesses. On January 20, 1977 the Children's Court again continued the hearing because a jury trial, at which the judge was presiding, would not be completed within the scheduled time.
The Children's Court denied the motion to dismiss the petition on the basis that the continuances had been granted for good cause and only for so long as necessary. Section 13-14-26(C), supra.
Both the absence of witnesses and the judge being occupied with a jury trial were good cause for the continuances. However, there are no formal orders granting the continuances; rather, the continuances, and the reasons for them, appear in the judge's remarks in ruling on the motion to dismiss. The child asserts this was "slipshod procedure" which failed to consider the interest of the public in prompt disposition of Children's Court cases. Section 13-14-26(C), supra. Regardless of the child's characterization, this record shows that continuances were granted for good cause and only for so long as necessary. See Doe v. State, 88 N.M. 644, 545 P.2d 1022 (Ct.App. 1976).
The hearing on the petition to revoke parole was begun within the time limits of the continuances authorized by § 13-14-26(C), supra. The trial court did not err in denying the motion to dismiss.

Children's Court Rule
The State did not respond to the child's contentions concerning the statute. Its position is that the hearing on the petition to revoke was timely under the Children's Court rules adopted by the Supreme Court.
Children's Court Rule 34(a) states:
"(a) Time Limits. Adjudicatory hearings on petitions shall be commenced:
"(1) Within 90 days from the date the petition is served on the respondent if the respondent is not in detention; or
"(2) Within 30 days from the date the petition is served on the respondent if the respondent is in detention."
The Committee Commentary to this rule states:
"Rule 34 supersedes § 13-14-26 NMSA 1953 Comp. Not only is the statutory term changed, but the time limits for commencement of the hearing are expanded. In terms of the time limit, the rule makes no distinction between a respondent who has been in detention and was released and one who had never been in detention."
The record does not show the date the petition to revoke parole was served on the child; we assume it was served on the filing date  November 24, 1976. Whether the 30- or 90-day period applied depended on whether the child was or was not in detention.
In this case the child was in detention before the petition was filed, but was released after a detention hearing held November 24, 1976. Since the child was in detention but was then released, consistent with the Committee Commentary, we hold that the 90-day provision of the rule applied. The hearing resulting in revocation of probation was held prior to the expiration of the 90 days.
Was the applicability of the 90-day provision changed by the fact that the child's release was revoked on January 5, 1977? No. Since the time periods in the rule run from the date of service, the 30-day period would have run prior to the date the release was revoked. Such an after-the-fact control over the applicable time period is not contemplated by the rule. The child's release was revoked for violation of the conditions of release. See § 13-14-24(G), N.M.S.A. 1953 (Repl.Vol. 3, pt. 1). This did not change the applicable time period which became fixed (either 90 or 30 *121 days) by the presence or absence of detention of the child after the detention hearing. See § 13-14-24, supra.
The hearing on the petition to revoke was timely under Children's Court Rule 34.

Whether the Statute or the Rule is Controlling
Neither the statute nor the rule was violated in this case. Nevertheless, the statute and the rule state different time requirements as to when the hearing must be begun. There can be at least two conflicts between the statute and the rule: (1) a hearing not begun within the statutory time (with no continuances) but begun within the rule time, and (2) a hearing not begun within the rule time (with no continuances pursuant to the rule) but begun within the statute because of continuances granted by the Children's Court.
In case of conflict, which controls?
Section 13-14-4(C), N.M.S.A. 1953 (Repl. Vol. 3, pt. 1) states that the Supreme Court shall adopt rules of procedure not in conflict with the Children's Code governing proceedings in the Children's Court. The time provisions of Children's Court Rule 34 conflict with § 13-14-26, supra; this rule is not authorized by § 13-14-4(C), supra.
Time limitations are procedural. State ex rel. Delgado v. Stanley, 83 N.M. 626, 495 P.2d 1073 (1972); Southwest Underwriters v. Montoya, 80 N.M. 107, 452 P.2d 176 (1969); State v. Arnold, 51 N.M. 311, 183 P.2d 845 (1947). Under the New Mexico Constitution, the Supreme Court has inherent power to regulate all procedure affecting the judicial branch of government. The power to regulate such procedure is vested exclusively in the Supreme Court. In case of a conflict between the statute and a procedural rule adopted by the Supreme Court, the rule controls. Ammerman v. Hubbard Broadcasting, Inc., 89 N.M. 307, 551 P.2d 1354 (1976); State ex rel. Anaya v. McBride, 88 N.M. 244, 539 P.2d 1006 (1975); State v. Roy, 40 N.M. 397, 60 P.2d 646 (1936), 110 A.L.R. 1 (1937).
The order of the Children's Court revoking parole and transferring the child to the Boy's School at Springer is affirmed.
IT IS SO ORDERED.
HENDLEY and LOPEZ, JJ., concur.


401 S.W.2d 301 (1966)
Milford HAWKINS, Appellant,
v.
The STATE of Texas, Appellee.
No. 14761.
Court of Civil Appeals of Texas, Houston.
March 31, 1966.
Weldon H. Berry, Dixie & Schulman, Chris Dixie, Robert E. Hall, George C. Dixie, Houston, Jack Greenberg, James Nabrit, III, Charles H. Jones, Jr., New York City, for appellant.
No brief filed for appellee.
COLEMAN, Justice.
This is a companion case to the case of Johnson v. State of Texas, 401 S.W.2d 298, decided this day. The judgment in this case must be reversed because of the insufficient petition on which it was based for the reasons set out in that opinion.
The petition filed in this cause fails to allege the names and residences of the parents of Milford Hawkins or to state that these facts are unknown. Cecil Hawkins was named as the person having his custody and control. No summons was issued to him. Notice of the hearing was issued to Roberta and Cecil Hawkins in which they are named as the parents of the minor. The officer's return reflects that the notice was delivered to Cecil Hawkins. The notice stated that the hearing on the petition was set for October 28, 1965. The judgment reflects that the case was heard on October 27, 1965, and was signed on that date.
Section 8, Article 2338-1, Vernon's Ann. Tex.St., provides:
"After a petition shall have been filed, and after such further investigation as the Judge may direct, unless the parties hereinafter named shall voluntarily appear, the court shall issue a summons reciting briefly the substance of the petition, and requiring *302 the person or persons who have the custody or control of the child to appear personally and bring the child before the court at a time and place stated. If the person so summoned shall be other than the parent or guardian of the child, then the parent or guardian, or both, shall be notified of the pendency of the case and of the time and place appointed, by personal service before the hearing, if they reside within the jurisdiction of the court, except as hereinafter provided. Summons may be issued requiring the appearance of any other person whose presence, in the opinion of the Judge, is necessary.
"If it appears that the child is in such condition or surroundings that his welfare requires that his custody be immediately assumed by the court, the Judge may cause to be endorsed upon the summons an order that the officer serving the same shall at once take the child into custody."
Section 9, Article 2338-1, V.A.T.S., provides:
"Service of summons shall be made personally by a probation officer or peace officer by the delivery of attested copies thereof to the parent, guardian, or person having custody of the child who is summoned; provided, that jurisdiction may be obtained by the court if the court is satisfied that said officer has made diligent effort to locate such person or persons and has been unsuccessful in locating said persons. It shall be sufficient to confer jurisdiction if service is effected at least two (2) days before the time fixed in the summons for the return thereof."
We call attention to the fact that the term "parties hereinafter named", considered in context with the further provisions of Sec. 8, is quite indefinite. If it were necessary to a decision of this case, it would be difficult to determine whether the voluntary appearance of the "person or persons who have the custody or control of the child" alone would dispense with the necessity of a summons; or whether, in addition, the child or the parent or guardian, must voluntarily appear.
In the absence of the voluntary appearance of the required parties, the section requires the service of a summons on the person or persons having the "custody or control" of the child. In addition, where such person is not the parent or guardian of the child, "then the parent or guardian, or both, shall be notified of the pendency of the case * * * by personal service before the hearing * * *." This provision for notice is vague and indefinite. Where there is a guardian, is it necessary to give notice to both parents and the guardian, or to one parent and the guardian, or will notice to the guardian alone, or the parents alone, be sufficient? How long before the hearing must notice be given?
Apparently service of the summons at least two days before the time fixed in the summons "for the return thereof" is jurisdictional. Sec. 9, however, provides that "jurisdiction may be obtained by the court" if the court is satisfied that the parent, guardian, or person having custody of the child cannot be located, but there is no procedure provided for obtaining such jurisdiction. The necessity for securing jurisdiction over the child is pointed up by the provisions relating thereto in Sections 5 and 7, Art. 2338-1, V.A.T.S.
In this case no summons was issued. Notice is not specifically required unless a summons to produce the child is served on one other than the parent or guardian. Notice was delivered to the father, but not to the mother. The hearing was held prior to the date set in the notice. The judgment does not recite jurisdictional facts, i.e., voluntary appearance or service of a summons. The hearing was had the day following the date of the filing of the petition.
In the absence of a summons served on the father, named in the petition as having the custody and control of the child, or on any other person, and in the absence of a recitation of jurisdictional facts in the *303 judgment, particularly in view of the fact that the notice of the hearing delivered to the father recited that the case was to be heard on the day after the day it was heard and judgment was entered, despite the fact that no statement of facts is in this record, we hesitate to presume that the trial court had jurisdiction by reason of the voluntary appearance of the parties.
These matters are noted, although not necessary to a decision in this case, for the reason that remedial legislation appears to be necessary. It is most unfortunate that doubt and uncertainty as to the procedure to be followed in the initiation and processing of juvenile delinquency petitions necessarily remains.
The judgment of the trial court is reversed. Milford Hawkins and the sureties on his recognizance bond are discharged and the proceedings ordered dismissed.


157 F.Supp.2d 234 (2000)
GMA ACCESSORIES, INC. Plaintiff,
v.
IDEA NUOVA, INC., et al., Defendants.
No. 00 Civ. 2732(DC).
United States District Court, S.D. New York.
December 18, 2000.
*235 *236 The Bostany Law Firm, By: John Bostany, New York, New York, for Plaintiff.
Lennon & Klein, P.C., By: David P. Lennon, New York, New York, for Defendant.
The Law Firm of Jeffrey S. Dweck, P.C., By: Jeffrey S. Dweck, New York, New York, for Defendant.

MEMORANDUM DECISION
CHIN, District Judge.
Plaintiff GMA Accessories, Inc. ("GMA") brings this action alleging, inter alia, that defendant Idea Nuova, Inc., GMA's competitor in the novelty industry, infringed upon GMA's copyrighted floral designs. In response, Idea Nuova asserts counterclaims against GMA based on GMA's sale of inflatable furniture under trademarks similar to Idea Nuova's "ROOM IN A BOX" mark. Idea Nuova asserts six amended counterclaims for: (1) trademark infringement, false designation of origin, *237 false description, and false representation under Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a); (2) trademark dilution under Section 43(c) of the Lanham Act, 15 U.S.C. § 1125(c); (3) cancellation of trademark registration, under Section 37 of the Lanham Act, 15 U.S.C. § 1119(c); (4) "fraudulent trademark registration application," under Sections 35(a) and 38 of the Lanham Act, 15 U.S.C. §§ 1117(a) and 1120; (5) declaratory relief under the Declaratory Judgment Act, 28 U.S.C. §§ 2201; and (6) common law unfair competition.
GMA moves to dismiss the amended counterclaims, contending that because they are permissive rather than compulsory and because they fail to state a claim under federal law, they must be dismissed pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6). For the reasons that follow, the motion is granted in part and denied in part.

BACKGROUND

A. Facts

The facts as alleged by Idea Nuova and assumed to be true for purposes of this motion, are as follows:
Idea Nuova and GMA are competitors in the business of manufacturing novelty items and selling them to retail stores. (Am.Ans.¶ 120). GMA was started by former employees of Idea Nuova; since its inception in 1990, GMA has hired approximately twenty to twenty-five former Idea Nuova employees, including office workers and designers. (Am.Ans.¶ 122). GMA hires these employees "to ascertain what types of products, designs and labels Idea Nuova is going to sell in the coming seasons" so that it may develop similar, competitive products. (Am.Ans. ¶ 123).
One product Idea Nuova creates, designs, and markets is inflatable furniture made from flexible polyvinyl chloride or "PVC." (Am.Ans.¶ 80). Idea Nuova's inflatable PVC furniture is regarded by wholesalers, retailers, and consumers as being of the "highest quality." (Am. Ans. ¶ 81). Since 1998, Idea Nuova has sold its inflatable PVC furniture in a "single and novel package" marketed under the trademark "ROOM IN A BOX."[1] (Am. Ans. ¶ 82). "During all relevant times," Idea Nuova has continuously used the ROOM IN A BOX trademark in connection with its inflatable PVC furniture. (Am.Ans. ¶ 83). In addition, through its wide distribution and extensive sales, "the ROOM IN A BOX trademark has developed a secondary meaning and a significance in the minds of the purchasing public," such that the public readily identifies the trademark with Idea Nuova's distinctive furniture. (Am.Ans. ¶¶ 84-85). Idea Nuova has spent substantial sums of money advertising its ROOM IN A BOX product, and, as a result of its efforts, the ROOM IN A BOX trademark has become an "extremely valuable asset" of Idea Nuova. (Am.Ans. ¶¶ 86-87).
In late 1998 or early 1999, after Idea Nuova began using the ROOM IN A BOX trademark in connection with its inflatable PVC furniture, GMA began selling its own inflatable PVC furniture under the names "Inflatable Room In A Box," "Bathroom In *238 A Box," and "Room On The Run."[2] (Am. Ans. ¶ 89). Idea Nuova alleges that GMA's use of these names in connection with the sale of inflatable PVC furniture "is likely to cause confusion and mistake in the minds of the purchasing public" by creating the impression that GMA's furniture is "authorized, sponsored, or approved by Idea Nuova." (Am.Ans. ¶ 91). Idea Nuova further alleges that GMA intentionally and wilfully adopted marks that are "confusingly similar" to Idea Nuova's ROOM IN A BOX trademark in an effort to take unfair advantage of Idea Nuova's goodwill and reputation. (Am.Ans. ¶¶ 92-93). Finally, Idea Nuova asserts that GMA's use of confusingly similar marks "dilute[s] the distinctive quality of defendant Idea Nuova's names." (Am.Ans. ¶ 116).
In January 1999 and again in May 1999, Idea Nuova demanded that GMA cease and desist from using names or marks confusingly similar to Idea Nuova's ROOM IN A BOX mark. (Am.Ans. ¶ 94). GMA did not comply with the demand; instead, it filed an application with the Patent and Trademark Office ("PTO") to trademark the name "Room in A Box" for use on "inflatable toy furniture." (Am.Ans. ¶ 95). GMA's application for the "Room in a Box" trademark was "suspended" because the PTO determined that another company not Idea Nuovahad "first use" of the mark. (Affirmation of Michele Ficarra, dated Aug. 4, 2000, ¶ 5).[3] Indeed, it appears that at least four non-parties to this action have, at some point, registered the mark "ROOM IN A BOX" or variations thereof. (Ficarra Aff. ¶¶ 6-7, Ex. D). Idea Nuova has not disputed that it never attempted to register the ROOM IN A BOX trademark.

B. Prior Proceedings

On August 7, 2000, GMA moved to dismiss Idea Nuova's counterclaims, contending that because the counterclaims: (1) are permissive rather than compulsory, and (2) fail to state a federal cause of action, they must be dismissed pursuant to Fed. R.Civ.P. 12(b)(1) and 12(b)(6). On September 5, 2000, Idea Nuova both opposed the motion and amended its counterclaims to address some of the pleading defects identified in GMA's motion. See Fed. R.Civ.P. 15(a); Rose v. Associated Univs., Inc., No. 00 Civ. 0460, 2000 WL 1457115, at *3 (S.D.N.Y. Sep. 28, 2000) (motion to dismiss is not a responsive pleading). Unsatisfied, GMA moved to dismiss the amended counterclaims on the same grounds it previously raised.

DISCUSSION

A. Motion to Dismiss Standard

In reviewing a motion to dismiss, I must accept the factual allegations set forth in the complaint (or, as here, a counterclaim) as true, and draw all reasonable inferences in favor of the plaintiff. See Bernheim v. Litt, 79 F.3d 318, 321 (2d Cir.1996). A complaint may not be dismissed under Fed.R.Civ.P. 12(b)(6) unless it "appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Cooper v. Parsky, 140 F.3d 433, 440 (2d Cir.1998) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). In *239 other words, the issue before the Court on a motion to dismiss "is not whether ... plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Villager Pond, Inc. v. Town of Darien, 56 F.3d 375, 378 (2d Cir.1995) (citation omitted), cert. denied, 519 U.S. 808, 117 S.Ct. 50, 136 L.Ed.2d 14 (1996).

B. Compulsory v. Permissive Counterclaims

Pursuant to Fed.R.Civ.P. 13(a), "[a] pleading shall state as a counterclaim any claim [that] ... arises out of the transaction or occurrence that is the subject matter of the opposing party's claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction." A counterclaim is compulsory when a "logical relationship exists between the claim and the counterclaim and ... the essential facts of the claims are so logically connected that considerations of judicial economy and fairness dictate that all the issues be resolved in one lawsuit." Adam v. Jacobs, 950 F.2d 89, 92 (2d Cir.1991) (internal quotations omitted); see AT & T Corp. v. American Cash Card Corp., 184 F.R.D. 515, 519 (S.D.N.Y.1999) (quoting same). A compulsory counterclaim need not have an independent basis of federal jurisdiction. See Klein v. London Star Ltd., 26 F.Supp.2d 689, 697 (S.D.N.Y.1998) (citing Harris v. Steinem, 571 F.2d 119, 122 (2d Cir.1978)).
In contrast, a counterclaim that does not arise out of the same transaction or occurrence as the opposing party's claim is deemed "permissive," see Fed. R.Civ.P. 13(b), and must be dismissed absent "an independent jurisdictional predicate." Klein, 26 F.Supp.2d at 697. Here, Idea Nuova does not contest GMA's characterization of its counterclaims as permissive. Rather, Idea Nuova alleges that its counterclaims do have an independent jurisdictional predicate; that is, the counterclaims are sufficient to state a claim under the Lanham Act.

C. Section 43(a) of the Lanham Act

Idea Nuova asserts a counterclaim for trademark infringement, false designation of origin, false description, and false representation pursuant to section 43(a) of the Lanham Act. Section 43(a) provides protection for unregistered marks by giving "a producer a cause of action for the use by any person of `any word, term, name, symbol, or device, or any combination thereof ... which is likely to cause confusion ... as to the origin, sponsorship, or approval or his or her goods....'" Wal-Mart Stores, Inc. v. Samara Bros., Inc., 529 U.S. 205, 120 S.Ct. 1339, 1342, 146 L.Ed.2d 182 (2000) (quoting 15 U.S.C. § 1125(a)). To be entitled to protection under § 43(a), a mark must be distinctive. A word mark, such as ROOM IN A BOX,[4] may be distinctive in one of two ways. First, the mark may be "inherently distinctive," meaning "[its] intrinsic nature serves to identify a particular source." Id. at 1343. Word marks are held to be inherently distinctive if they are "arbitrary," "fanciful," or "suggestive." Id. (citing Abercrombie & Fitch Co. v. Hunting World, Inc., 537 F.2d 4, 10-11 (2d Cir. 1976)); see BigStar Entertainment, Inc. v. Next Big Star, Inc., 105 F.Supp.2d 185, 195-98 (S.D.N.Y.2000).
Second, a word mark that is not inherently distinctive is still entitled to protection if it has "acquired distinctiveness" by developing a secondary meaning. *240 Wal-Mart, 120 S.Ct. at 1343. A mark has a secondary meaning "when, `in the minds of the public, the primary significance of [the mark] is to identify the source of the product rather than the product itself.'" Id. (quoting Inwood Labs., Inc. v. Ives Labs., Inc., 456 U.S. 844, 851, n. 11, 102 S.Ct. 2182, 72 L.Ed.2d 606 (1982)). Marks that are not suggestive, arbitrary, or fanciful, but rather "descriptive" in nature require a showing of secondary meaning to be eligible for protection under § 43(a). See BigStar, 105 F.Supp.2d at 196 (discussing difference between suggestive and descriptive terms); see also La Cibeles, Inc. v. Adipar, Ltd., No. 99 Civ. 4129, 2000 WL 1253240, at *5 (S.D.N.Y. Sept. 1, 2000) (proof of secondary meaning not required for suggestive marks). GMA contends that Idea Nuova fails to state a claim under § 43(a) because it has not sufficiently alleged that ROOM IN A BOX has either inherent or acquired distinctiveness.
Idea Nuova has alleged, however, that the ROOM IN A BOX mark "has developed a secondary meaning and significance in the minds of the purchasing public" and that the public "immediately identif[ies]" inflatable PVC furniture bearing the ROOM IN A BOX name with Idea Nuova. (Am.Ans. ¶ 84). Because Idea Nuova has sufficiently alleged secondary meaning, I need not decide at this time whether ROOM IN A BOX is suggestive, such that it is eligible for protection under the Lanham Act without proof of secondary meaning, or descriptive, such that proof of secondary meaning is required. It is certainly possible that Idea Nuova will be unable to substantiate its allegations. Nevertheless, at this early juncture I am required to accept the truth of the allegations in the amended counterclaims. Accordingly, GMA's motion to dismiss Idea Nuova's § 43(a) claim is denied.

D. Federal Trademark Dilution Act

Idea Nuova alleges dilution of its ROOM IN A BOX trademark pursuant to the Federal Trademark Dilution Act ("FTDA"), § 43(c) of the Lanham Act, 15 U.S.C. § 1125(c). The FTDA provides in relevant part:
The owner of a famous mark shall be entitled, subject to the principles of equity and upon such terms as the court deems reasonable, to an injunction against another person's commercial use in commerce of a mark or trade name, if such use begins after the mark has become famous and causes dilution of the distinctive quality of the mark.
15 U.S.C. § 1125(c)(1). Dilution is defined as: "the lessening of the capacity of a famous mark to identify and distinguish goods or services, regardless of the presence or absence of(1) competition between the owner of the famous mark and other parties, or (2) likelihood of confusion, mistake, or deception." 15 U.S.C. § 1127.
There are "five necessary elements" to a claim of trademark dilution under the FTDA: "(1) the senior mark must be famous; (2) it must be distinctive; (3) the junior use must be a commercial use in commerce; (4) it must begin after the senior mark has become famous; and (5) it must cause dilution of the distinctive quality of the senior mark." Nabisco, Inc. v. PF Brands, Inc., 191 F.3d 208, 215 (2d Cir.1999); see Cello Holdings, L.L.C. v. Lawrence-Dahl Cos., 89 F.Supp.2d 464, 472 (S.D.N.Y.2000). GMA's sole argument in support of its motion to dismiss Idea Nuova's amended counterclaim for trademark dilution is that Idea Nuova failed to allege that GMA's "use of the mark began `after the senior mark has become famous.'" (GMA Rep. Br. pp. 1-2) (quoting Nabisco, 191 F.3d at 215).
*241 Idea Nuova has alleged, however, that its ROOM IN A BOX mark is "famous" and "distinctive." (Am.Ans.¶¶ 85, 99). In addition, Idea Nuova has alleged that GMA's manufacture and sale of inflatable furniture under names allegedly similar to Idea Nuova's ROOM IN A BOX began after Idea Nuova "adopted and used the ROOM IN A BOX trademark" and that GMA "wilfully intended to trade on Idea Nuova's reputation and/or to cause dilution of Idea's Nuova's famous" mark. (Am.Ans.¶¶ 89, 99). Although Idea Nuova's ultimate ability to prevail on its FTDA claim is questionable, at this early stage Idea Nuova has pleaded the elements of its claim.

E. Section 37 of the Lanham Act

Idea Nuova seeks to "cancel" GMA's "Room In a Box" trademark application and GMA's "Room on the Run" trademark registration pursuant to § 37 of the Lanham Act, 15 U.S.C. § 1119. GMA first argues that Section 37 is inapplicable to its pending trademark application. I agree.
Section 37 provides in relevant part: "[i]n any action involving a registered mark the court may determine the right to registration, order the cancelation of registrations, in whole or in part, restore canceled registrations, and otherwise rectify the register with respect to the registrations of any party to the action." 15 U.S.C. § 1119. Thus, by its terms, § 37 contemplates an action involving a registered trademark. See id.; see also In re Falchi, No. 97 B 43080, 1998 WL 274679, at *7 (Bankr.S.D.N.Y. May 27, 1998) ("to obtain an order cancelling a trademark registration under § 37 ... plaintiff must allege a controversy as to the validity of or interference with a registered trademark"); Universal Sewing Machine Co. v. Standard Sewing Equip. Corp., 185 F.Supp. 257, 260 (S.D.N.Y.1960) (Section 37 assumes an action involving a registered mark). Idea Nuova cites no authority for the proposition that § 37 permits a district court to cancel a pending trademark application.[5] Accordingly, Idea Nuova's § 37 claim to "cancel" GMA's as yet unregistered trademark, "Room in a Box," is dismissed.
GMA next argues that there is no other justiciable controversy between the parties involving GMA's registered trademark, Room on the Run, and that the Court therefore lacks subject matter jurisdiction to entertain an action for the mark's cancellation. Section 37 "assume[s] a properly instituted and otherwise jurisdictionally supported action involving a registered trademark." Moog Controls, Inc. v. Moog, Inc., 923 F.Supp. 427, 431 (W.D.N.Y.1996). Thus, a party cannot seek cancellation offensively and rely solely upon that claim for federal jurisdiction. Id. Here, however, Idea Nuova claims that GMA's use of the Room on the Run trademark infringes Idea Nuova's ROOM IN A BOX mark in violation of § 39(a) of the Lanham Act. There exists an independent basis for federal jurisdiction "involving" GMA's registered trademark; accordingly, GMA's second argument is rejected. As GMA does not challenge Idea Nuova's standing to seek cancellation of GMA's trademark or its purported basis for doing so, I need not and do not reach these issues. See, e.g., Cunningham v. Laser Golf Corp., 222 F.3d 943, 945 (Fed. Cir. 2000).

*242 F. Sections 35(a) and 38 of the Lanham Act

Idea Nuova asserts a claim pursuant to Sections 35(a) and 38 of the Lanham Act, 15 U.S.C. §§ 1117(a) and 1120, entitled "fraudulent trademark registration application." (Am.Ans. ¶¶ 109-10). The claim seeks "damages as a result of GMA's improper federal trademark registration applications" and attorneys' fees. The amended counterclaims do not make clear whether Idea Nuova is referring to GMA's registered trademark, "Room on the Run," or pending trademark application, "Room in a Box."

1. Section 35(a)

"Section 35(a) of the Lanham Act governs claims for monetary relief and attorney fees made by plaintiffs who have successfully established a trademark violation." International Star Class Yacht Racing Ass'n v. Tommy Hilfiger, U.S.A., Inc., 80 F.3d 749, 752 (2d Cir.1996). The statute provides in relevant part: "the plaintiff shall be entitled, ... subject to the principles of equity, to recover (1) defendant's profits, (2) any damages sustained by the plaintiff, and (3) the costs of the action...." 15 U.S.C. § 1117(a). In addition, the court may award reasonable attorneys' fees to the prevailing party in "exceptional cases." See id.; International Star, 80 F.3d at 752. GMA contends that Idea Nuova's Section 35(a) claim must be dismissed because (1) Section 35(a) is inapplicable to unregistered marks, and (2) Idea Nuova does not state a claim under § 1125(a).
By its terms, Section 35(a) applies to violations of § 1125(a)the section of the Lanham Act that provides protection for unregistered marksaccordingly, GMA's first argument is rejected. GMA's second argument is rejected as well, as I have previously held that Idea Nuova's claim for violations of Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a), survives the motion to dismiss. Moreover, Idea Nuova has alleged that GMA intentionally created confusion to deceive prospective purchasers. This allegation, if true, could support a claim under Section 35(a).[6]See International Star, 80 F.3d at 754 (citing Restatement (Third) of Unfair Competition § 37 cmt. e (1995)); United Greeks, Inc. v. Klein, No. 00 Civ. 0002, 2000 WL 554196, at *2 (N.D.N.Y. May 2, 2000). Accordingly, GMA's motion to dismiss Idea Nuova's Section 35(a) claim is denied.

2. Section 38

Idea Nuova also purports to bring its claim for attorneys' fees and damages pursuant to Section 38 of the Lanham Act. Section 38 provides in relevant part:
Any person who shall procure registration in the Patent and Trademark Office of a mark by a false or fraudulent declaration or representation, oral or in writing, or by any false means, shall be liable in a civil action by any person injured thereby for any damages sustained in consequence thereof.
15 U.S.C. § 1120.
To the extent Idea Nuova is alleging a claim based on GMA's suspended "Room In A Box" trademark application, the claim must fail; by its terms Section 38, 15 U.S.C. § 1120, does not apply to trademark applications that have not been registered. See Bernard v. Commerce Drug Co., 774 F.Supp. 103, 109 (E.D.N.Y.1991), aff'd, 964 F.2d 1338 (2d Cir.1992). To the extent Idea Nuova's claim is instead based *243 on GMA's registered "Room on the Run" trademark, it fares no better.
First, attorneys' fees are ordinarily not recoverable under § 38. See Havana Club Holding, S.A. v. Galleon, S.A., No. 96 Civ. 9655, 1998 WL 150983, at *2 (S.D.N.Y. Mar. 31, 1998) (citing Blue Bell, Inc. v. Jaymar-Ruby, Inc., 497 F.2d 433, 439 (2d Cir.1974)). Although it is possible "fees could be awarded in a case where an absolutely false registration was fraudulently obtained solely for the purpose of instituting completely vexatious litigation," Idea Nuova has failed to plead that GMA filed a trademark application "solely ... to facilitate meritless litigation." Havana Club, 1998 WL 150983, at *2 (granting motion to dismiss § 38 claim) (internal quotation marks and citation omitted).
Second, a claim for fraudulent registration under § 38, like any fraud claim, must comply with the heightened pleading standards of Fed.R.Civ.P. 9(b). See Havana Club, 1998 WL 150983, at *3 n. 8; see also Fed.R.Civ.P. 9(b) ("[i]n all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity"). The heightened pleading requirements apply to each element of the fraud claim. See Havana Club, 1998 WL 150983, at *3. Here, Idea Nuova has failed to plead its claim with the requisite degree of particularity.
In support of its claim, Idea Nuova points to paragraph 97 of its amended counterclaims, which states:
Upon information and belief, plaintiff GMA knowingly and intentionally made false and fraudulent representations in its trademark applications that, inter alia, it was the owner of the "Room in A Box" mark and the "Room on the Run" mark and that no other person or entity has the right to use those marks in commerce or other marks likely to cause confusion or to cause mistake, or to deceive.
(Am.Ans. P. 97). In general, a party pleading fraud may not do so on "information and belief." An exception to this general rule exists when the facts underlying the fraud are peculiarly in the other party's knowledge. Even then, however, the party pleading fraud "bears the burden of alleging the facts upon which [its] belief is founded." Weaver v. Chrysler Corp., 172 F.R.D. 96, 101 (S.D.N.Y.1997) (citing Di-Vittorio v. Equidyne Extractive Indus., Inc., 822 F.2d 1242 (2d Cir.1987)). Idea Nuova has failed to show that the exception applies in this case.
In addition, Idea Nuova has failed to plead two elements of its fraud claim causation and damagesat all, much less with particularity; that is, it has failed to plead how it was injured as a result of GMA's allegedly false statement on its Room on the Run application. See, e.g. Havana Club, 1998 WL 150983, at *3. Indeed, Idea Nuova has not even made the conclusory allegation that it lost sales due to the statement. Accordingly, GMA's motion to dismiss Idea Nuova's § 38 claim is granted.

G. Declaratory Judgment

Idea Nuova seeks a declaration pursuant to 28 U.S.C. § 2201 that GMA's use of the ROOM IN A BOX mark "in connection with the sale of inflatable furniture ... would constitute an infringement of defendant Idea Nuova's trademark." (Am. Ans. ¶ 112). GMA moves to dismiss the claim pursuant to Fed.R.Civ.P. 12(b)(1), arguing that (1) the Declaratory Judgment Act does not provide Idea Nuova with a basis for subject matter jurisdiction, and (2) Idea Nuova's claim for declaratory relief is not justiciable by this Court because there is no "actual controversy" between the parties.
*244 It is well-settled that the Declaratory Judgment Act is not itself an independent basis for subject matter jurisdiction. See Niagara Mohawk Power Corp. v. Tonawanda Band of Seneca Indians, 94 F.3d 747, 752 (2d Cir.1996). In addition, the Declaratory Judgment Act "permits declaratory relief only in cases presenting `actual controvers[ies],' ... a requirement that incorporates into the statute the case or controversy limitation on federal jurisdiction found in Article III of the Constitution." Id. The test for whether an "actual controversy" exists in the context of trademark litigation has two prongs,
both of which must be satisfied in order to establish declaratory judgment jurisdiction: (1) has the defendant's conduct created a real and reasonable apprehension of liability on the part of the plaintiff, and (2) has the plaintiff engaged in a course of conduct which has brought it into adversarial conflict with the defendant.
Starter Corp. v. Converse, Inc., 84 F.3d 592, 595 (2d Cir.1996). The latter prong is usually met by showing that the plaintiff has "a definite intent and apparent ability to commence use of the mark[]." Id. (internal quotations omitted); see Gianni Sport Ltd. v. Metallica, No. 00 Civ. 0937, 2000 WL 1773511, at *3 (S.D.N.Y. Dec. 4, 2000) (standard intended to "prevent parties with merely a vague and unspecific desire to use a mark from seeking an opinion on hypothetical facts") (internal quotations omitted).
A declaratory plaintiff in a trademark action is, in most instances, seeking a declaration that it is free to use a mark without incurring liability for infringement. See, e.g. Starter Corp., 84 F.3d at 594; Gianni, 2000 WL 1773511, at *1. Here, however, counterclaim plaintiff Idea Nuova is seeking a declaration that GMA's use of the mark ROOM IN A BOX infringes Idea Nuova's trademark. Accordingly, it is necessary to reverse the nomenclature of the parties when applying the Starter Corp. test.
Applying this test, it is clear that Idea Nuova has not sufficiently pled that GMA has "a definite intent and apparent ability to commence use of" the ROOM IN A BOX mark. The amended counterclaims do not allege that GMA engaged in any "meaningful preparation" with respect to using the mark. See Starter Corp., 84 F.3d at 596-97. Idea Nuova's allegation that GMA filed an application to trademark "Room in a Box"an application that the PTO has since suspendedat most shows that GMA has a "vague or general desire" to use the mark. Starter Corp., 84 F.3d at 596. Such allegations are insufficient to establish the existence of an actual controversy. Accordingly, Idea Nuova's claim for declaratory relief is dismissed for lack of subject matter jurisdiction.[7]

H. Unfair Competition

GMA has not moved to dismiss Idea Nuova's common law unfair competition claim pursuant to Fed.R.Civ.P. 12(b)(6). Because Idea Nuova states a claim under the Lanham Act, I will exercise supplemental jurisdiction over its related unfair competition claim pursuant to 28 U.S.C. § 1367. See, e.g. Hofmann v. Kleinhandler, *245 No. 93 Civ. 5638, 1994 WL 240335, at *6-7 (S.D.N.Y. May 31, 1994) (exercising supplemental jurisdiction over state law unfair competition claim) (citing United Mine Workers v. Gibbs, 383 U.S. 715, 725-28, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966)).

CONCLUSION
For the foregoing reasons, plaintiff's motion to dismiss Idea Nuova's amended counterclaims is granted in part and denied in part. Idea Nuova's amended counterclaims seeking relief (1) under § 37 of the Lanham Act, 15 U.S.C. § 1119, with respect to GMA's unregistered trademark, (2) § 38 of the Lanham Act, 15 U.S.C. § 1120, and (3) the Declaratory Judgment Act, 28 U.S.C. § 2201, are dismissed.
SO ORDERED.
NOTES
[1]  Although Idea Nuova repeatedly refers to itself as "defendant" in its counterclaims, paragraph 82 of its counterclaims alleges that "[p]laintiff designed, and then began manufacturing and selling its highly stylized inflatable furniture in or about 1998. Plaintiff sold various items of its inflatable PVC furniture in a single and novel package, and adopted and otherwise used in commerce the trademark ROOM IN A BOX." (Am.Ans. ¶ 82). From the context, the Court assumes the references to "plaintiff" to be an error.
[2]  The parties are inconsistent in their capitalization of the various trademarks. Where quoting, the Court will follow the parties' usage.
[3]  When deciding a motion pursuant to Fed. R.Civ.P. 12(b)(1), the Court may consider affidavits and other evidence outside the pleadings. See Gianni Sport Ltd. v. Metallica, No. 00 Civ. 0937, 2000 WL 1773511, at *2 (S.D.N.Y. Dec. 4, 2000) (citing Kamen v. American Tel. & Tel. Co., 791 F.2d 1006, 1011 (2d Cir.1986)).
[4]  Idea Nuova does not appear to be alleging a claim for trade dress infringement based on GMA's manufacture and sale of inflatable PVC furniture.
[5]  Goya Foods v. Tropicana Prods., Inc., 846 F.2d 848, 854 (2d Cir.1988), cited by Idea Nuova, does not provide such authority; there, the Second Circuit merely held that the doctrine of primary jurisdiction does not require a court to stay a trademark infringement litigation pending the outcome of a PTO registration proceeding.
[6]  It is unclear why Idea Nuova purports to base its Section 35(a) claim for damages and fees on alleged false statements GMA made in its trademark applications; such statements are not a prerequisite to recovery under Section 35(a).
[7]  In its opposition papers, Idea Nuova seeks to bolster its claim for declaratory relief by arguing that "there is a controversy regarding Idea Nuova's claim that GMA's `Inflatable Room In A Box,' `Bathroom In A Box,' and/or `Room On The Run,' names infringe on Idea Nuova's ROOM IN A BOX mark." (Idea Nuova Mem. p. 6). Idea Nuova does not seek such broad declaratory relief in its amended counterclaims, however, and it cannot supplement or amend its claims by way of argument.