source: Caselaw Access Project

author: PER CURIAM;

license: Public Domain

text:
    Angelo Joseph PAVONE et al., Plaintiffs-Appellees, v. LOUISIANA STATE BOARD OF BARBERS EXAMINERS et al., Defendants-Appellants.
    No. 74-1456.
    United States Court of Appeals, Fifth Circuit.
    Dec. 30, 1974.

      C. Paul Barker, William J. Rein, III, New Orleans, La., William J. Guste, Atty. Gen., Baton Rouge, La., for defendants-appellants.
    Joseph Neves Marcal, III, New Orleans, La., for plaintiffs-appellees.
    Before TUTTLE, WISDOM and GOLDBERG, Circuit Judges.
   PER CURIAM;

The only question we need decide in this ease is whether it needed to be heard initially by a statutory three-judge court. It appears that the trial court requested the appointment of a three-judge court pursuant to 28 U.S.C. § 2281, but that the Chief Judge of this court denied the request.

It is now well-settled law that a three-judge court need not be convened if the constitutional defense raised in the case is frivolous in that “previous decisions of [the Supreme Court of the United States] * * * foreclose the subject and leave no room for the inference that the question sought to be raised can be the subject of controversy.” Ex parte Poresky, 290 U.S. 30, 32, 54 S.Ct. 3, 4, 78 L.Ed. 152 (1933); Goosby v. Osser, 409 U.S. 512, 518, 93 S.Ct. 854, 35 L.Ed.2d 36 (1973); Sands v. Wainwright, en banc, 491 F.2d 417, 423 (5th Cir. 1973); Fonseca v. Hildago County Water Improvement District, 496 F.2d 109, 112 (5th Cir. 1974).

The test is squarely met in this appeal. The statute challenged by these plaintiffs restricted “cosmetologists” to cutting the hair of females and forbade them from cutting the hair of males. The statute is so patently unconstitutional as not to present a substantial constitutional question. Bolton v. Texas Board of Barber Examiners, 350 F.Supp. 494 (N.D.Tex.1972), affirmed memorandum, 409 U.S. 807, 93 S.Ct. 52, 34 L.Ed.2d 68 (1972). The ease was thus properly tried by a single judge, whose opinion, reported at 364 F.Supp. 961, we adopt as the opinion of this court on the merits.

Affirmed.


author: PER CURIAM:

text:
    Jay LYNOTT, Plaintiff-Appellant, v. D. Lamar STEWART, Individually and in his official capacity as Sheriff of Dougherty County, Georgia, et al., Defendants-Appellees.
    No. 74-2044
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Dec. 30, 1974.

      Jay Lynott, pro se.
    Arthur K. Bolton, Atty. Gen. of Ga., Atlanta, Ga., Jesse W. Walters, Albany, Ga., for defendants-appellees.
    Before GEWIN, GODBOLD and CLARK, Circuit Judges.

       Rule 18, 5 Cir., see Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5 Cir. 1970, 431 F.2d 409, Part I.

   PER CURIAM:

The District Court denied the petition of plaintiff to proceed in forma pauperis and permitted plaintiff’s complaint, brought under § 1983, to be filed for record purposes only. The District Court then denied leave to appeal in forma pauperis on the ground that the appeal was not taken in good faith. This court granted leave.

The basis of the District Court’s denial was that plaintiff could await his release from prison to pursue this litigation, his cause of action remaining viable during that time by reason of a Georgia statute, Tit. 3, § 801, Ga.Code Ann., which tolls the statutes of limitations for an imprisoned person.

The right of a person to proceed in the courts of the United States without prepayment of fees and costs or security therefor rests upon his making affidavit “that he is unable to pay such costs or give security therefor.” 28 U.S.C.A. § 1915. If the affidavit establishes such inability, as this plaintiff’s does, leave cannot be denied on the ground that at some future time the person’s economic status might be improved and until that time in the future when things may be better the statutes of limitations are tolled. The statute permits no such standard, and employment of such a standard would present constitutional issues which we need not discuss.

The District Court did not reach the question of whether the allegations of poverty were untrue or whether the action was frivolous or malicious. 28 U. S.C.A. § 1915(d). In the interest of judicial economy we note that the complaint states a valid cause of action under the notice pleadings standard enunciated in Campbell v. Beto, 460 F.2d 765 (CA5, 1972).

The order of the District Court denying leave to commence his suit without prepayment of fees and costs or security therefor is reversed, and the case is remanded for further proceedings.


text:
    Hiram B. BAILEY, Petitioner-Appellant, v. STATE OF ALABAMA, Respondent-Appellee.
    No. 74-2104
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Jan. 6, 1975.

      Philip S. Gidiere, Jr., Montgomery, Ala. (Court-appointed), for petitioner-appellant.
    Kent Brunson, Eric A. Bowen, Asst. Attys. Gen., Montgomery, Ala., for respondent-appellee.
    Before BELL, SIMPSON and MORGAN, Circuit Judges.

       Rule 18, 5 Cir., Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5 Cir. 1970, 431 F.2d 409, Part I.

   PER CURIAM:

Bailey appeals the denial, without an evidentiary hearing,' of his petition for habeas corpus. We vacate and remand.

A jury found appellant guilty of robbery and sentenced him to 60 years. He immediately gave notice of appeal but subsequently withdrew it on the alleged ground that his attorney had asked to be relieved and had stated that he could not win the appeal. The appeal was dismissed on March 28, 1973. On April 10, 1973, proceeding pro se, he applied unsuccessfully to the trial court for a writ of coram nobis. The denial of eoram nobis relief was affirmed by the Alabama Court of Criminal Appeals, and certiorari was subsequently denied by the Alabama Supreme Court.

In his habeas petition appellant alleges that: (1) he was illegally extradited to Alabama from Mississippi and prior to his extradition was held incommunicado for approximately 83 days without being taken before a judge; (2) his attorney was ineffective; (3) women and blacks were excluded from the jury venire (4) he was denied the right to subpoena his witnesses even though they were present in Alabama; (5) he was improperly identified by the use of unnecessarily suggestive pretrial identification procedures, as well as by an unnecessarily suggestive line-up at which he was not represented by counsel; (6) an unsworn statement of an F.B.I. agent that appellant admitted having committed the robbery was improperly introduced in evidence; and (7) he was sentenced oh the same day as his conviction.

The lower court denied habeas relief, approving the recommendation of the Magistrate that appellant had exhausted state remedies via coram nobis on all of the grounds presented in his federal ha-beas petition but that he had deliberately by-passed his remedy of direct appeal.

The record makes out an arguable case that the claim of ineffectiveness of trial counsel, also appointed for the appeal, may have had a causal connection with the appeal being dismissed. Under the circumstances of the case the lower court erred in denying habeas relief without holding an evidentiary hearing on the issue of intentional by-pass. Essex v. Elliott, 5 Cir., 1972, 456 F.2d 1039; Bonaparte v. Smith, 5 Cir., 1971, 448 F.2d 385; Johnson v. Smith, 5 Cir., 1971, 449 F.2d 127; see Morris v. United States, 5 Cir., 1974, 503 F.2d 457.

Vacated and remanded.


author: VAN OOSTERHOUT, Senior Circuit Judge. BRIGHT, Circuit Judge

text:
    Christine Roth MELO, Appellant, v. UNITED STATES of America, Appellee.
    No. 74-1169.
    United States Court of Appeals, Eighth Circuit.
    Submitted Oct. 17, 1974.
    Decided Nov. 7, 1974.

      William Bauer, Burlington, Iowa, for appellant.
    Paul A. Zoss, Asst. U. S. Atty., Des Moines, Iowa, for appellee.
    Before VAN OOSTERHOUT, Senior Circuit Judge, and BRIGHT and ROSS, Circuit Judges.
   VAN OOSTERHOUT, Senior Circuit Judge.

This is a timely appeal by plaintiff Christine Roth Melo from final order sustaining motion as amended, filed pursuant to Rule 12(b), Fed.R.Civ.P., to dismiss plaintiff’s complaint by reason of plaintiff’s failure to exhaust available administrative remedies as required by 28 U.S.C. § 2675.

The basic facts are not in dispute. Plaintiff and Richard Dean Dyer, an employee of the United States Post Office, were involved in an automobile collision in Burlington, Iowa on November 1, 1971. The Government concedes that Dyer was acting within the scope of his employment at the time of the collision.

Plaintiff’s counsel by letter dated November 23, 1971, notified the Post Office Department of the accident and expressed the view that plaintiff was damaged by negligent operation of the postal vehicle and that the postal department and Dyer were responsible for damages caused the plaintiff. The nature of the injuries claimed are not stated in the letter nor is any statement made with reference to the amount of damages claimed.

The postal department acknowledged the receipt of the letter and enclosed Forms SF 95 and stated: “The forms must be completed in full and evidence required to be submitted in support of a claim is noted in the instructions on the reverse of SF 95, * *

The plaintiff on October 12, 1973, filed a suit against Mr. Dyer as an individual in the state court. On October 31, 1973, on motion of the United States, the case was removed to the federal court and the United States was substituted as party defendant, all as provided in 28 U.S.C. § 2679(d).

Defendant’s motion as amended to dismiss urged that the court lacked jurisdiction by reason of plaintiff’s failure to exhaust administrative remedies as required by 28 U.S.C. § 2675(a), and additionally that the claim is barred by the two-year statute of limitations provided by 28 U.S.C. § 2401(b).

The trial court in its dismissal order states “plaintiff’s failure to exhaust her administrative remedies is fatal to her case and it must be dismissed.”.

The basic issue raised by this appeal is whether plaintiff’s counsel’s letter of November 23 constitutes a claim against the United States as contemplated by 28 U.S.C. § 2675(a). We agree with the trial court’s determination that the claim as made did not meet the statutory requirements and that hence the case must be dismissed by reason of plaintiff’s failure to exhaust her administrative remedies.

We adhere to our holding in Peterson v. United States, 428 F.2d 368, 369 (8th Cir. 1970), where we stated:

It is settled that the United States, as sovereign, is immune from suit unless it has consented to be sued. United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 85 L.Ed. 1058 (1941); Iowa Public Service Company v. Iowa State Commerce Comm., 407 F.2d 916, 920 (8th Cir.), cert. denied, 396 U.S. 826, 90 S.Ct. 71, 24 L.Ed.2d 77 (1969); Simons v. Vinson, 394 F.2d 732 (5th Cir.), cert. denied, 393 U.S. 968, 89 S.Ct. 398, 21 L.Ed.2d 379 (1968). A corollary to the immunity doctrine is the rule that the United States may define the conditions under which actions are permitted against it. Honda v. Clark, 386 U.S. 484, 501, 87 S.Ct. 1188, 18 L.Ed.2d 244 (1967); Battaglia v. United States, 303 F.2d 683, 685 (2d Cir. 1962); Kuhnert v. United States, 127 F.2d 824 (8th Cir. 1942).

Twenty-eight U.S.C. Ch. 171 delineates the procedure for tort claims against the United States and is controlling. Section 2675(a) of this chapter provides in part:

An action shall not be instituted upon a claim against the United States for money damages for injury or loss of property or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government * * * unless the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency in writing * * *.

Section 2675 clearly makes the filing of an administrative claim a mandatory condition precedent to the filing of civil action against the United States for damages arising from the negligent act or omission of any Government employee acting within the scope of his employment. Best Bearings Co. v. United States, 463 F.2d 1177 (7th Cir. 1972); Bialowas v. United States, 443 F.2d 1047 (3d Cir. 1971); Meeker v. United States, 435 F.2d 1219 (8th Cir. 1970).

Thirty-nine C.F.R. § 912.5 provides :

For purposes of this part, a claim shall be deemed to have been presented when the U. S. Postal Service receives from a claimant, his duly authorized agent or legal representative, an executed Standard Form 95, Claim for Damage or Injury, or other written notification of an incident, accompanied by a claim for money damages in a sum certain for injury to or loss of property, personal injury, or death alleged to have occurred by reason of the incident. (Emphasis added.)

Twenty-eight C.F.R. § 14.2(a), a part of the regulations governing administrative claims under the Federal Torts Act, is substantially the same as 39 C.F.R. § 912.5, relating to claims against the post office department. Twenty-eight C.F.R. § 14.2(a) contains the identical language of 39 C.F.R. § 912.5 requiring a claim for money damages to be in a sum certain.

In Caton v. United States, 495 F.2d 635, 637 (9th Cir. 1974), the court, for sound reasons set out in its opinion, rejects an attack on the validity of 28 C. F.R. § 14.2(a) stating:

We hold that there was a rational basis for the regulation and that it was necessary in order to enable the heads of Federal agencies and the Attorney General to carry out their respective duties in connection with processing and attempting to settle claims under the Tort Claims Act.

In that case the plaintiff in his claim stated with respect to the amount of his claim “unknown at this time.” The court held the plaintiff’s claim failed to comply with the regulation and hence that the claim did not meet jurisdictional requirement of § 2675(a). We hold that the regulation found in 39 C.F.R. § 912.5 is valid. The reasoning in Catón with respect to 28 C.F.R. § 14.2(a) fully supports such determination.

In Avril v. United States, 461 F.2d 1090, 1091 (9th Cir. 1972), the court was confronted with a situation where no amount of damages was claimed. The court dismissed the action for failure to exhaust administrative remedies, holding that the purported claim did not meet the requirements of the statute. The court held:

[T]he requirement that a sum certain be claimed is clearly implied from the statute itself, 28 U.S.C. § 2675, * * It is plain that the required “claim” is something more than mere notice of an accident and an injury. The term “claim” contemplates, in general usage, a demand for payment or relief, and, unless it is a claim for something, is no claim at all.

In Bialowas v. United States, supra, no specific sum claimed was set forth in the purported claim. The court in affirming the judgment dismissing the claim for failure to exhaust administrative remedies states:

The initial purpose of the regulations requiring a statement of the specific sum claimed is to enable a determination by the head of the federal agency as to whether the claim falls within the jurisdictional limits of his exclusive authority to process, settle or to properly adjudicate the claim. Above those limits the settlement must have the prior written approval of the Attorney General or his desig-nee. Furthermore, the requirements of the regulations are intended to set up uniform procedures in the exercise of settlement authority. [443 F.2d, at 1050.]

Section 2675(b) provides that subject to certain exceptions not here relevant the amount of the recovery shall not exceed the amount of the claim presented to the federal agency.

Thus it is apparent that § 2675 requires the claim to the agency set out the amount of damage claimed. It is clear that plaintiff’s purported claim set out in footnote 1, supra, does not constitute a claim contemplated by § 2675 in that it fails to state the nature of plaintiff’s injuries and the dollar amount claimed therefor.

The filing of a suit against the postal employee individually does not confer jurisdiction in the federal court to which the action was transferred. We held in Meeker v. United States, 435 F.2d 1219 (8th Cir. 1970), that the administrative remedy requirements of § 2675 cannot be circumvented by commencing an action against a Government employee in the state court. Judge Matthes’ well-reasoned opinion in that case sets forth the basis for such result. We adhere to the view there expressed.

Plaintiff makes the additional contention that the postal department’s failure to give plaintiff notice of the disposition of her claim within six months, as required by § 2675(a), satisfies the exhaustion of remedies requirement. Such contention lacks merit. As heretofore set out, plaintiff has not filed a proper claim within the contemplation of the statute. The duty of the postal department to consider a claim does not arise until a proper claim has been filed. In any event, plaintiff was adequately advised by the defendant’s letter that it did not consider plaintiff’s letter to be a proper claim.

The trial court, by reason of plaintiff’s failure to exhaust her administrative remedies, acquired no jurisdiction over the plaintiff’s claim. When it clearly appears that the court lacks jurisdiction, the court has no authority to reach the merits. In such a situation the action should be dismissed for want of jurisdiction.

The § 2401(b) statute of limitations issue was raised in the motion to dismiss. Such issue is not specifically mentioned in the trial court’s order. A possibility exists that the court’s order sustaining the motion to dismiss could be construed to cover the statute of limitations issue. Rule 41(b), Fed.R.Civ.P., provides: “Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction, * * * operates as an adjudication upon the merits.” While we have reason to believe that the trial court’s order of dismissal is based solely on lack of jurisdiction resulting from failure to exhaust administrative remedies, we think that any uncertainty in this respect should be removed and that the dismissal order should be amended to show that the dismissal is for want of jurisdiction.

The judgment of dismissal is amended to show that it is based on want of jurisdiction, and as so amended the judgment is affirmed.

BRIGHT, Circuit Judge

(concurring):

I concur in Judge Van Oosterhout’s excellent analysis of the requirements for exhaustion of administrative remedies as a prerequisite to suit under the Federal Tort Claims Act.

The Government on appeal urges two defenses as grounds for affirmance: 1) failure of appellant to exhaust administrative remedies, and 2) the running of the applicable statute of limitations. With respect to the latter defense, it is appropriate to observe that appellant may have indirectly given actual notice to the Post Office Department- of the amount of her claim by serving a summons and complaint, in the state court action, within two years of the accrual of the claim. See 28 U.S.C. § 2401(b). Appellant brought the state action, which was subsequently removed to federal court, against the driver-postal employee involved in the accident. Whether such notice suffices to satisfy the administrative claim filing requirements of 28 U.S.C. § 2675(a) and the applicable regulation thereunder and thus serves to bring appellant’s claim within the statute of limitations, is a question not before us on this appeal and on which I express no opinion.

      . The letter reads:
      This is to advise you that our office represents Mr. and Mrs. Charles Roth and their daughter, Christine, who was involved in an automobile collision with one of your employees. The collision took place on November 1, 1971, at the intersection of Emmett and Washington Streets. It is my understanding that the driver of your vehicle was Richard Dyer.
      We also represent Mr. Pat Melo who owned the vehicle. Damage to both Mr. Melo and Miss Roth is undetermined at this point.
      Please be advised that it is our opinion that the driver of your vehicle was negligent in his operation of the motor vehicle, and therefore, he and the postal department are responsible for the ensuing damage done to Mr. Melo and Miss Roth.
      We would appreciate it if any further communication or questions that you may have with respect to this claim be through our office.

      . 28 U.S.C. § 2401(b) reads as follows :
      (b) A tort claim against the United States shall be forever barred unless it. is presented in writing to the appropriate Federal agency within two years after such claim accrues or unless action is begun within six months after the date of mailing, by certified or registered mail, of notice of final denial of the claim by the agency to which it was presented.

      . 39 C.F.R. § 912.5 provides :
      For purpose of this part, a claim shall be deemed to have been presented when the U. S. Postal Service receives from a claimant, his duly authorized agent or legal representative, an executed Standard Form 95, Claim for Damage or Injury, or other written notification of an incident, accompanied by a claim for money damages in a sum certain for injury to or loss of property, personal injury, or death alleged to liave occurred by reason of the incident. Standard Form 95 may be obtained from postmaster, postal inspectors, or other local Postal Service establishments.


author: HILL, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. MILLER BROTHERS CONSTRUCTION COMPANY et al., Defendants, Rapidways, Inc., Defendant-Appellant.
    No. 74-1028.
    United States Court of Appeals, Tenth Circuit.
    Argued Sept. 10, 1974.
    Decided Nov. 13, 1974.

      Robert L. Boyce, Jr., Kansas City, Kan. (Howard Washburn, Kansas City, Kan., on the brief), for defendant-appellant.
    Daniel F. Ross, Washington, D. C. (Scott P. Crampton, Asst. Atty. Gen., Meyer Rothwacks, Michael L. Paup, Dept, of Justice, Robert J. Roth, U. S. Atty., James A. Pusateri, Asst. U. S. Atty., Washington, D. C., on the brief), for plaintiff-appellee.
    Before LEWIS and HILL, Circuit Judges, and CHRISTENSEN, District Judge.

       Of the District of Utah, sitting by designation.

   HILL, Circuit Judge.

This is an appeal from a judgment of the United States District Court for the District of Kansas ordering foreclosure of federal tax liens against certain real property, the ownership of which is in dispute.

The facts leading up to this appeal are complex and may be summarized as follows. Anthony Sielman owned certain land in Kansas City, Kansas. In 1952, Wilmer Miller (taxpayer) purchased this land but directed Sielman to deed it to Edward and Nellie Schmidt. The Schmidts, taxpayer’s brother-in-law and sister-in-law, had no interest in the land but held it solely as taxpayer’s nominee.

Taxpayer, in 1959, negotiated a mortgage of the land to Anchor Savings & Loan Company (Anchor) as security for a note evidencing the loan. The mortgage was arranged by taxpayer for his benefit and the Schmidts executed the mortgage at his request.

During this period of time taxpayer and his brother were partners in Miller Brothers Construction Company (Miller Brothers). The partnership failed to pay certain income and FICA taxes in 1959. Deficiencies were assessed against it and notice of tax liens was filed in 1959 and 1960.

Taxpayer became delinquent in his payments to Anchor and refinanced the loan through Investments, Inc. (Investments) in 1961. Investments paid off the delinquent note held by Anchor, took title to the land from the Schmidts, and gave taxpayer an option to purchase. Taxpayer again refinanced the loan in 1962 through Union Mortgage & Investment Company (Union). Union paid off Investments, took title to the land, and gave taxpayer an option to purchase. Sometime before May, 1963, Miller Brothers, already burdened with tax problems, encountered several financial setbacks culminating in foreclosure of its Small Business Administration loan and liquidation.

In May, 1963, taxpayer organized Fair-fax Hauling, Inc. (Fairfax) to take over a hauling contract from the defunct Miller Brothers. Taxpayer was not an officer, director or stockholder in Fair-fax, but he nevertheless exercised managerial control over the corporation.

At around the same time, taxpayer contacted Wilford Sublett, an officer of Rapidways, Inc. (Rapidways), a leasing corporation. Rapidways had previously leased trucks and heavy equipment to Miller Brothers and taxpayer wanted it to do the same for Fairfax. After mesne negotiations it was decided that Rapid-ways would lease trucks and equipment to Fairfax and loan it $5,000 for operating capital. Rapidways was to acquire legal title to the land in question and lease it to Fairfax with an option to pup-chase.

On June 7, 1963, Rapidways paid Union approximately $10,400, which amount Union used to close out taxpayer’s option contract. Taxpayer was present at the closing and directed Union to place legal title in Rapidways’ name. That same day Rapidways and Fairfax entered into a rental and option to purchase agreement which provided, inter alia, that Fairfax would receive legal title to the land after eleven months if it made all lease rental payments and paid Rapid-ways $10,400 plus interest.

Fairfax never used the land. It encountered financial problems after a few months of operation and became unable to fulfill its agreement with Rapidways. Rapidways took possession of the leased equipment, but not of the land. Although it pays taxes and insurance on the land, it has never used it or tried to sell it.

Since its purchase in 1952, taxpayer has exercised the rights of ownership over the land. He built improvements on it, occasionally rented the house to others, and his family used the land for recreation purposes. Taxpayer began using the land as a permanent residence in 1963.

On May 26, 1965, the government filed this suit against Miller Brothers and taxpayer. The complaint stated, inter alia, that Miller Brothers was defunct and without assets and requested that taxpayer’s real and personal property be sold to satisfy the tax liens. An amended complaint was filed on October 26, 1969, adding Rapidways as a defendant and the land to which it held legal title as property subject to the tax liens. The government claimed taxpayer was the equitable owner of the land and that Rapid-ways’ interest therein was subject and inferior to the tax liens. Rapidways answered and asserted it acquired the land free and clear of any federal tax liens

On May 5, 1971, taxpayer died. On November 23, 1971, Rapidways filed a motion to dismiss the action for lack of jurisdiction on the grounds the government had failed to move for substitution of taxpayer’s representative as a party to the action within 90 days after suggestion of death, as required by Rule 25 F.R.Civ.P. The district court denied the motion because a formal suggestion of taxpayer’s death had not been made. Rapidways filed a formal suggestion of death on March 13,1973.

The government, on June 5, 1972, successfully moved for a fifteen day extension of time to file its Rule 25 motion for substitution for the reason that a hearing for the appointment of taxpayer’s administrator was not to be held until June 13, 1972. On June 9, 1972, Rapidways again filed a motion to dismiss on the grounds the government had failed to comply with Rule 25. Thereafter, on June 26, 1972, the government moved to substitute taxpayer’s administrator as a party to the action. Following a hearing, the district court denied Rapidways’ motion and granted the government’s motion.

Subsequent to trial the district court made findings of fact and conclusions of law, including the following: (1) the conveyances in issue were methods of loaning taxpayer money and taking title to the land as a security interest; (2) taxpayer possessed the equitable ownership of the land; (3) Rapidways was aware of taxpayer’s tax problems and of his ownership in the land, and took title thereto as security for the cash advance and equipment lease; (4) Rapidways took legal title to the land subject to the tax liens. Accordingly, the district court ordered the tax liens foreclosed on the land. Rapidways’ subsequent motions for a new trial and for amendment or alteration of the judgment were denied, and it appeals.

Rapidways first contends its February 23, 1972, motion to dismiss pursuant to Rule 25, F.R.Civ.P., should have been sustained. Specifically, it contends a formal suggestion of death was not necessary for the Rule’s 90 day time limitation to take effect because the government was fully aware of taxpayer’s death.

Rule 25 provides that suggestion of death on the record is made by service of a statement of the fact of the death on the parties as provided in Rule 5, F.R.Civ.P. 3B Moore, Federal Practice f[ 25.06 [2.-1] and [3] (2nd ed. 1974). The 90 day time limitation does not commence until this has been done. Id. Since Rapidways failed to comply with the service and filing requirements of Rule 5, there was no suggestion of death on the record and the district court properly denied the motion to dismiss.

Rapidways next contends the district court abused its discretion in granting the goverament an extension of time to file a motion for substitution because the government, aware of taxpayer’s death in 1971 delayed initiation of probate proceedings to appoint an administrator for his estate until May, 1972. We disagree. A discretionary extension should be liberally granted absent a showing of bad faith on the part of the movant for substitution or undue prejudice to other parties to the action. See Rule 6, F.R.Civ.P.; 3B Moore, Federal Practice |[ 25.06 [3] (2nd ed. 1974). We find no bad faith attributable to the government and Rapidways has not shown that it was unduly prejudiced.

Rapidways next contends the district court was required to determine the respective rights of the parties to any surplus proceeds from the foreclosure sale. Although a court must determine the merits of all claims to the property subjected to tax liability, none of the parties to the instant action made any claims to surplus proceeds. The matter was never raised, the sole issue being whether, in view of the competing claims of the government and Rapidways, the property was subject to tax liability. Since parties are entitled only to a determination of issues raised before the court, the district court committed no error in refraining to rule on the matter.

Relying upon First Federal Savings & Loan Ass’n v. Liebert, 195 Kan. 100, 403 P.2d 183 (1965), and Kan.Stat. Ann. § 60-2405, Rapidways argues the government’s judgment must be revived against taxpayer’s representative before the tax liens can be foreclosed. We disagree. Liebert concerns revival of a dormant judgment against a deceased debt- or’s personal representative and § 60-2405 concerns substitution of a deceased or incompetent judgment holder's personal representative as a successor in interest.

In the instant case taxpayer died during pendency of the action, riot after rendition of a judgment, and the administrator of his estate was substituted as a party pursuant to Rule 25. Since a substituted party steps into the same position as the original party there is a continuance of the original action and a separate proceeding against the substituted party is not necessary. See, e. g., Ransom v. Brennan, 437 F.2d 513 (5th Cir. 1971), cert. den’d, 403 U.S. 904, 91 S.Ct. 2205, 29 L.Ed.2d 680; 3B Moore, Federal Practice ¶ 25.05 (2nd ed. 1974).

The next issue concerns the admission into evidence of taxpayer’s deposition. It was admitted on the grounds it showed fraud, an exception to the parol evidence rule. Rapidways now contends those portions of the deposition not concerning it should have been excluded, because there was no evidence it had knowledge of or was involved in the fraud. Because testimony may take a wide range where fraud is alleged we believe the entire deposition was admissible. See, e. g., 3 Jones on Evidence § 16:2 (6th ed. 1972). Those portions of the deposition objectionable to Rapid-ways showed the extent and purpose of taxpayer’s scheme.

The paramount issue on appeal concerns taxpayer’s interest in the land in question. The government contended, and the district court found, that taxpayer was the equitable owner of the land and that legal title thereto was held by others, including Rapidways, only as a security interest. Rapidways asserts that taxpayer never had an interest in the land that could be reached by the government. It takes the position that the conveyances were merely option to purchase agreements under which a purchaser who makes negligible or no payments acquires no interest therein. Since the government’s interest in the land can rise no higher than taxpayer’s, Rapid-ways contends the government acquired no interest in the land whatsoever.

We find no merit in Rapidways’ position. It is clear that the option contracts given to taxpayer were part of more complex refinancing arrangements in which he remained the equitable owner of the land. Taxpayer stated, in his deposition, that the land was conveyed as a security interest and not as an absolute sale. This is supported by the testimony of a Union employee who stated Union acquired the land as a means of making a loan to taxpayer. And, the president of Fairfax testified that taxpayer “put his farm up” to get the corporation going.

The option contracts themselves appear to have been given in recognition of taxpayer’s interest in the land. Sublett, for example, testified he thought the land was worth about $15,000 but he nevertheless gave taxpayer an option to purchase for $10,400 plus interest, approximately the same amount Rapid-ways paid to Union for the land. Finally, the fact taxpayer exerted dominion and control over the land from 1952 until his death in 1971 is indicative of his ownership. The record does not disclose that Rapidways or any prior legal title holder used the land or interfered with taxpayer’s use of the land.

The government, Rapidways asserts, failed to prove it had actual knowledge of taxpayer’s interest in the land. We do not agree. Taxpayer’s son, present at a May, 1963, meeting between Sublett and taxpayer, testified that Sublett agreed to take legal title to the land as collateral. And taxpayer stated, in his deposition, that Rapidways was aware of his interest in the land. Furthermore, Rapidways did not purchase the land directly from Union as such but acquired it by paying off taxpayer’s option contract with Union. Taxpayer then directed that legal title be placed in Rapid-ways’ name. These facts are inconsistent with Rapidways’ contention that it was unaware of taxpayer’s interest in the land.

Affirmed in all respects.

      . Several other parties were also named as defendants but all of the government’s claims against them were determined by judgments rendered February 6, 1967, and March 30, 1970.

      . Rule 25 (a) (1) provides:
      If a party dies and the claim is not thereby extinguished, the court may order substitution of the proper parties. The motion for substitution may be made by any party or by the successors or representatives of the deceased party and, together with the notice of hearing, shall be served on the parties as provided in Rule 5 and upon persons not parties in the manner provided in Rule 4 for the service of summons, and may be served in any judicial district. Unless the motion for substitution is made not later than 90 days after the death is suggested upon the record by service of a statement of the fact of death as provided herein for the service of the motion, the action shall be dismissed as to the deceased party.

      . .Rule 5:
      (a) Service: When required. Except as otherwise provided in these rules, every order required by its terms to be served, every pleading subsequent to the original complaint unless the court otherwise orders because of numerous defendants, every paper relating to discovery required to be served upon a party unless the court otherwise orders, every written motion other than one which may be heard ex parte, and every written notice, appearance, demand, offer of judgment, designation of record on appeal, and similar paper shall be served upon each of the parties. No service need be made on parties in default for failure to appear except that pleadings asserting new or additional claims for relief against them shall be served upon them in the manner provided for service of summons in Rule 4.
      In an action begun by seizure of property, in which no person need be or is named as defendant, any service required to be made prior to the filing of an answer, claim, or appearance shall be made upon the person having custody or possession of the property at the time of its seizure.
      (b) Same: How made. Whenever under these rules service is required or permitted to be made upon a party represented by an attorney the service shall be made upon the attorney unless the service upon the party himself is ordered by the court. Service upon the attorney or upon a party shall be made by delivering a copy to him or by mailing it to him at his last known address or, if no address is known, by leaving it with the clerk of the court. Delivery of a copy within this rule means: handing it to the attorney or to the party; or leaving it at his office with his clerk or other person in charge thereof; or, if there is no one in charge, leaving it in a conspicuous place therein; or, if the office is closed or the person to be served has no office, leaving it at his dwelling house or usual place of abode with some person of suitable age and discretion then residing therein. Service by mail is complete upon mailing.
      (c) Same: Numerous Defendants. In any action in which there are unusually large numbers of defendants, the court, upon motion or of its own initiative, may order that service of the pleadings of the defendants and replies thereto need not be made as between the defendants and that any cross-claim, counterclaim, or matter constituting an avoidance or affirmative defense contained therein shall be deemed to be denied or avoided by all other parties and that the filing of any such pleading and service thereof upon the plaintiff constitutes due notice of it to the parties. A copy of every such order shall be served upon the parties in such manner and form as the court directs.
      (d) Filing. All papers after the complaint required to be served upon a party shall be filed with the court either before service or within a reasonable time thereafter.
      (e) Filing With the Court Defined. The filing of pleadings and other papers with the court as required by these rules shall be made by filing them with the clerk of the court, except that the judge may permit the papers to be filed with him, in which event he shall note thereon the filing date and forthwith transmit them to the office of the clerk.

      . 26 U.S.C. § 7403(c) provides in part:
      The court shall, after the parties have been duly notified of the action, proceed to adjudicate all matters involved therein and finally determine the merits of all claims to and liens upon the property, and, in all cases where a claim or interest of the United States therein is established, may decree a sale upon such property . . . and a distribution of the proceeds of such sale according to the findings of the court .

      . See, e. g., Armstrong Cork Co. v. Lyons, 366 F.2d 206 (8th Cir. 1966); Daniels v. Thomas, 225 F.2d 795 (10th Cir. 1955), cert. den’d, 347 U.S. 1139, 70 S.Ct. 867, 98 L.Ed. 1139; 49 C.J.S. Judgments §§ 42, 49 (1947).

      . ICan.Stat.Ann. § 60-2405 (1964) states:
      Any person who claims to have succeeded to the interest of the holder of a judgment by appointment as personal representative for a deceased or incompetent judgment holder, by assignment, by operation of law, or otherwise, shall file with the clerk a copy of his letters as personal representative, assignment, or proceedings effecting such transfer, and thereafter such successor in interest shall be entitled to all the rights and remedies available to his predecessor and may proceed to enforce the same in his own name as such successor. If the validity of any such transfer be controverted by any party affected thereby, the court shall, on reasonable notice to all interested parties whose whereabouts are known, determine the respective rights and liabilities of all the parties.


author: COFFIN, Chief Judge.

text:
    UNITED STATES of America, Appellee, v. Peter FAY, Defendant-Appellant.
    No. 74-1235.
    United States Court of Appeals, First Circuit.
    Heard Oct. 7, 1974.
    Decided Nov. 11, 1974.
    Thomas Christian DeCourcy, Boston, Mass., for defendant-appellant.
    Charles E. Chase, Asst. U. S. Atty., with whom James N. Gabriel, U. S. Atty., Boston, Mass., was on brief, for appellee.
    Before COFFIN, Chief Judge, ALD-RICH and CAMPBELL, Circuit Judges.
   COFFIN, Chief Judge.

This case is the latest in a series where a defendant, convicted in a criminal case, has sought to void his conviction because of an alleged violation to his Sixth Amendment right to a speedy trial. This is the first case in which our view of all the relevant factors requires a reversal.

Appellant was indicted on February 12, 1973 for conspiring to distribute cocaine in violation of 21 U.S.C. § 846. A month later, on March 13, appellant’s retained counsel filed a number of motions including a motion for speedy trial. Arraignment was held the following day without action having been taken on the motions. Trial was set for April 25. During April and May co-defendants of appellant filed motions for continuance, for appointment of counsel, for discovery, and for severance. A second trial date, May 23, was passed without trial. On July 24, 1973, the government filed a motion for trial, pointing out that the 180 day period prescribed in the Massachusetts District Court’s Plan for Achieving Prompt Disposition of Criminal Cases which was adopted pursuant to rule 50(b) of Fed.R.Crim.Proc., was to expire on August 27. August 21 was then set as the date for trial. When that date came, the court disposed of severance and discovery motions, including a motion by appellant for severance, but the case was passed, the appellant being put on a 24 hour notice for trial.

On October 17, 1973, appellant filed a motion for judgment of acquittal and for oral argument. Subsequent to this activity, the case lay quiescent for some six months until the parties received notice that the case had been transferred to a visiting judge and was assigned for trial on June 3, 1974. On May 21, 1974 appellant filed a motion to dismiss based on denial of his right to a speedy trial. Hearing was held; the motion was denied ; and the trial, which took place on June 4, resulted in a guilty verdict. Appellant was sentenced to a one year term, the sentence being suspended and appellant being put on probation for three years with the special parole term provided by law. 21 U.S.C. § 841(b).

On June 3, 1974, immediately before trial, a hearing was held on appellant’s speedy trial claim at which the court thoroughly explored both the reasons for delay and the possibility of prejudice. The court identified the appropriate period for explanation as the nine month period beginning on. August 21, 1973, the third date set for trial, and June 4, 1974, the date of trial. It recognized that the defendant was under no obligation to take affirmative action. It inquired as to the source of responsibility. The Assistant United States Attorney had asked for trial shortly before the 180 day period had elapsed. He had talked to the clerk of the judge to whom the case had been assigned. The fact remained that nothing happened from August 21, 1973 until April, 1974, when the parties were notified that the case had been assigned for trial before a visiting judge on June 3, 1974. At one point the court exhibited its frustration by saying that there seemed to be a lack of system for coordination among the offices of the United States Attorney, the clerk, and the judge — a “Tinker to Evers to Chance” situation — without, we add, the effectiveness characterizing that three-some or the appellant having an opportunity to hit a pitched ball.

The alleged specific prejudice lay in the fact that in May, 1973, one Isherwood, who had been with appellant in his apartment at the time of arrest, visited appellant’s counsel and related to him a version of events leading up to the arrest to which he was willing to testify. The putative testimony conflicted with that of the prosecution concerning events shortly before and at the time of appellant’s arrest on January 19, 1973. The government agents’ version was that appellant was seen entering his apartment building, carrying a white paper bag; that subsequently one Owens, who had gone in the building shortly before appellant, was seen leaving the building carrying a white paper bag. Owens placed the bag in the trunk of appellant’s automobile, drove off, and was later arrested as he tried to sell a pound of cocaine to a government agent. The agents then entered appellant’s apartment, and arrested both appellant and Isherwood. On appellant’s person the agents found $1500 of identifiable money. Appellant said that the money had been given him by his grandmother for college tuition. It is alleged that Isherwood’s testimony would have differed from this in two respects. According to appellant’s counsel’s notes, he would have testified that he was in the apartment both when Owens and appellant entered, appellant at no time gave anything to Owens, and Owens was not carrying anything when he left appellant’s apartment. He would also have said that appellant explained that he possessed the money because Owens, fearful of being robbed, had asked him to hold it while he did an errand.

Counsel for appellant had apparently not made any effort to keep in touch with Isherwood until shortly before the June 3 trial date. At that time, he unsuccessfully tried to contact Isherwood. His efforts included contacting Isherwood’s mother and visiting places Isherwood was known to have frequented. No reference was made to any prior efforts to locate Isherwood. The court, while stating at one point that it agreed with counsel that appellant had been prejudiced, apparently felt that any “substantial prejudice” would be eliminated by allowing appellant to introduce a statement as to what Isherwood would have testified — “in explanation of the fact that he is unavailable”. It also barred the prosecution from introducing any evidence of “overt act 9”, which alleged that Owens and appellant, on January 19, 1973, packaged a pound of cocaine at appellant’s apartment.

The district court applied, as do we, the “difficult and sensitive balancing process” required by Barker v. Wingo, 407 U.S. 514, 533, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). It found no difficulty in applying three of the four factors identified in Barker. It obviously felt that a delay of nine months following the third trial date, August 21, 1973, was enough to trigger inquiry into the reasons for delay. While it did not deem a very early request for speedy trial helpful to appellant, the court recognized that appellant had no affirmative duty to bring his case on for trial and, by implication, that appellant could not be said to have waived his right to speedy trial. And the court was quite articulate in its conclusion that no satisfactory explanation for the delay on the part of the government had been forthcoming.

With the scales tipping in favor of appellant, the court then faced a specific claim of prejudice. Counsel presented his notes of an early interview with a potential witness who had disappeared from sight — a witness whose presence at a critical time was corroborated by prosecution witnesses. The court’s concern about the relevance of the missing witness’ testimony is shown by its joint requirement that the prosecution not introduce any evidence of the alleged ninth overt act and that appellant’s counsel be allowed to read Isherwood’s statement into evidence. The court was apparently influenced by the fact that there had been no showing that either appellant or his counsel had, from May of 1973 until May of 1974, made any effort to keep in touch with what they lately claimed to be a critical defense witness.

We can understand the skepticism of the court. It is all too easy, through wishful thinking or post hoc reconstruction, to conjure up what someone long since vanished from the scene might have said. Were the scales as to the other factors more in balance (particularly, were a defendant to have participated in the delay), or were there less corroboration of the criticality and existence of the witness, or were the missing testimony a matter only of speculation, we would be able to reach a different conclusion. But on this record, where the appellant did not contribute to the nine month delay, where the delay apparently stemmed from the inability of the judge having charge of the case to hear it, and where counsel, an officer of the court, revealed the contents of his notes of an interview with a witness who, as the government agents acknowledge, was present with appellant at the time of arrest and was also arrested, we cannot impose on appellant the additional burden of an adverse inference from non-availability of a witness. The effective result of such a burden would be to allow the apparent lack of vigilance of defendant and his counsel in checking on their witness to overbalance the three factors clearly favoring defendant and a fourth which at least facially — with some indicia of substantiality — -indicates that defendant was prejudiced. This seems to us a balancing process with weighted scales.

The government’s approach would turn upside down the responsibility for seeing that cases are promptly brought to trial. As the Court in Barker said, its rule — and the Constitution — place “the primary burden on the courts and the prosecutors.” 407 U.S. at 529, 92 S.Ct. at 2191. This burden and the right it serves are not prudential or derived by implication from considerations of judicial administration. To quote Barker again, “. . . [Bjecause we are dealing with a fundamental right of the accused, this [balancing] process must be carried out with full recognition that the accused’s interest in a speedy trial is specifically affirmed in the Constitution.” 407 U.S. at 533, 92 S.Ct. at 2193. If, after an overlong and unjustified passage of time, a known witness, as to whom there exists substantial reason to believe that he would have given specific and relevant testimony, is not available, through no connivance of the defendant, it seems to us that the disadvantage must fall to the government, which has the primary burden of expedition.

We therefore reverse and invoke the “unsatisfactorily severe . . . but . . . the only possible remedy” of dismissal of the indictment. 407 U.S. at 522, 92 S.Ct. at 2188.

We are impelled to say more, since the colloquy in the district court reveals an institutional weakness. As the court observed, “[T] here’s no system that exists . . . as between the judges, the United States Attorney’s Office, and the Clerk’s Office. ...” The system adopted for normal allocation of judicial work is an excellent one: the individual calendar. Judges take cases by random assignment and they have full responsibility for their own docket, from beginning to end. We do not quarrel at all with that principle of judicial administration. But there remains a need for some central monitoring, coordination, and reallocation. The district court’s “Plan for Achieving Prompt Disposition of Criminal Cases” now provides, in paragraph 8(c), that “At not more than 6 month intervals the judges of the court shall meet to review the status of all persons in custody and all cases in which the maximum time limits set forth in section 2 have been exceeded. Cases shall be reassigned as appropriate in order to carry out the purpose of this Plan.” If this is the sole mechanism for intra-court cooperation, it clearly is not enough.

As we said nearly five years ago, in United States v. DeLeo, 422 F.2d 487, 496 (1st Cir. 1970), quoting then Circuit Judge Blackmun in Hodges v. United States, 408 F.2d 543, 551-552 (8th Cir. 1969):

“Where a multiple-judge court uses the individual calendar system, all judges must share responsibility for the prompt disposition of criminal cases, must employ a team approach to those cases, and, when necessary, must reassign them in order that they may be tried according to the commands of the Sixth Amendment and Criminal Rules 48(b) and 50. If a judge is otherwise long committed in another case or is delayed in getting to the criminal cases on his calendar by reason of illness, personal misfortune or press of other business, this obviously does not serve to toll the enforcement of the right of a defendant awaiting trial on that judge’s criminal calendar.”

There was some suggestion by the judge presiding at the speedy trial hearing below that prosecutors have a responsibility on occasions to exert every effort to force judges to act. To this the Assistant United States Attorney replied with a reference to our statement in United States v. DeLeo, supra, 422 F.2d at 499, where we indicated our disapproval of ex parte conferences with a judge, even if the conference dealt only with schedule problems. We are of the same view today. The problem of keeping track of aging criminal eases and seeing that, absent special and justifying circumstances, they are brought to issue within prescribed time limits ought not to be left to prosecutorial pleas, ex parte or not. It ought to be resolved by devices and procedures built into the system. What we said in De-Leo takes on even more cogency today:

“We refrain from saying that ‘a team approach’ is the only mechanism possible; it may well be that one judge could be assigned the responsibility of surveying the calendar. The important point is that there must be some central supervision over crowded dockets in multi-judge courts utilizing the individual calendar system, or that, at a minimum, there be a recognized collective obligation to respond to the self-generated action of the judge whose docket, particularly whose criminal docket, is in arrears. The advantages of the individual calendar cannot justify rigid adherence to that system at the expense of the rights of individual litigants.” [Footnote omitted.] Id. at 496.

Reversed; remanded to the district court for a judgment dismissing the indictment against appellant.

      . See, e. g., Flemming v. United States, 378 F.2d 502 (1st Cir. 1967); Carroll v. United States, 392 F.2d 185 (1st Cir. 1968); United States v. DeLeo, 422 F.2d 487 (1st Cir. 1970); United States v. Butler, 426 F.2d 1275 (1st Cir. 1970); United States v. Daley, 454 F.2d 505 (1st Cir. 1972); United States v. Cabral, 475 F.2d 715 (1st Cir. 1973); United States v. Churchill, 483 F.2d 268 (1st Cir. 1973).

      . Before the court, counsel, apparently referring to liis notes, said that when Isherwood entered the apartment, Owens was already there. We do not understand the discrepancy but it seems not to be material. We take the version in the text from the stipulation submitted by counsel for purposes of this appeal.

      . Counsel did not accept the court’s invitation.

      . More recent indications of our uneasiness on this issue may be found in United States v. Cabra, 475 F.2d 715 (1st Cir. 1973), and United States v. Churchill, 483 F.2d 268 (1st Cir. 1973) (concurring opinion, Coffin, Chief Judge).


author: LEVIN H. CAMPBELL, Circuit Judge.

text:
    Francis L. DOBB, etc., Plaintiff-Appellant, v. George P. BAKER et al., Defendants-Appellees.
    No. 74-1164.
    United States Court of Appeals, First Circuit.
    Argued Sept. 4, 1974.
    Decided Nov. 6, 1974.

      Arthur Goldstein, Worcester, Mass., with whom Goldstein & Goldstein, Worcester, Mass., was on brief, for appellant.
    David W. Walsh, Boston, Mass., with whom Richard J. Ferriter, Boston, Mass., was on brief, for appellees.
    Before COFFIN, Chief Judge, CAMPBELL, Circuit Judge and CLARY, Senior District Judge.

       From the Eastern District of Pennsylvania sitting by designation.

   LEVIN H. CAMPBELL, Circuit Judge.

Appellant brought an action in the district court for injuries sustained when his arm was run over by a train in the Penn Central Railroad Yard at Framingham, Massachusetts. The defendants are the Trustees in Bankruptcy of the Penn Central Transportation Company (Penn) and the engineer of the train which struck appellant. Jurisdiction is founded upon diversity of citizenship. 28 U.S.C. § 1382. The district court, after considering the depositions of the plaintiff and several employees of Penn including the defendant engineer, granted defendants’ motion for summary judgment. Fed.R.Civ.P. 56(b). We examine the record in the light most favorable to plaintiff to determine whether there exist any genuine issues of material fact. Adickes v. S. H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); Peckham v. Ronri-co Corp., 171 F.2d 653, 657 (1st Cir. 1948).

The district court found the following facts, which are essentially undisputed on this appeal. Appellant wandered into the freight yard of defendants’ railroad in Framingham, Massachusetts at 2 a. m. on the morning of June 15, 1972. He was in a very depressed frame of mind, and earlier in the day had been drinking. He stumbled on a track and fell, hitting his head. He lay parallel to the track unconscious for an undisclosed length of time, but less than twenty-five minutes. Subsequently, a train consisting of one refrigerator car and an engine came down the track and ran over appellant’s right arm, causing it to be severed near the shoulder.

The section of the yard where the accident occurred is not lighted. It is close to Waverly Street and about on the same grade. There are no fences separating the train yard from Waverly Street. Occasionally, strangers had been seen prior to the accident wandering across the tracks, mostly on Sunday afternoons, but never at night.

The train was proceeding at five or six miles an hour. The engine was pushing the refrigerator ear and the engineer’s view of the track ahead of him was obstructed by the car. The engine’s headlight was on, but its beam was also obstructed by the refrigerator ear and did not illuminate the tracks ahead of the train. Koslowsky, the conductor, was sitting next to Rita, the engineer. Brakeman Forbes was standing on a platform at the front of the boxcar. Brakeman Calvert was standing on the forward step of the engine. The train had passed over these tracks approximately twenty-five minutes previously, and no one on the train had observed any strangers in the train yard.

Forbes observed a light-colored object near the side of the track, which he first thought was a piece of paper. When the leading edge of the boxcar was about 25 feet from the object, Forbes realized that it was a man lying close to the track. He immediately made a vigorous “washout” signal with his hand lantern, which was a signal for an immediate stop. Koslowsky, the conductor, saw the signal when it was given and immediately directed Rita, the engineer, to stop the train, which he did. Forbes ran back to the Station Master’s office to call for assistance. When the train came to a stop, the rear wheels of the engine were about 10 feet from where appellant was lying. The combined length of the car and the engine was approximately 90 feet.

Appellant was admittedly a trespasser in the freight yard. His right to recover turns, therefore, upon the nature of the duty towards trespassers which Massachusetts imposes upon those in possession of land. See Klaxon Co. v. Stentor Electric Manufacturing Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941); Tessier v. State Farm Mutual Insurance Co., 334 F.Supp. 807, 808 (D.Mass.1971), aff’d, 458 F.2d 1299 (1st Cir. 1972). In Massachusetts, it has long been established that, in the absence of willful or wanton conduct, a trespasser may not recover against a possessor of land for injuries suffered on the latter’s property. See, e. g., Chronopoulos v. Gil Wyner Co., 334 Mass. 593, 137 N.E.2d 667 (1956); Scott v. Boston Elevated Ry., 318 Mass. 31, 60 N.E.2d 5 (1945). Under this standard there could be no recovery upon the undisputed facts here.

The Massachusetts Supreme Judicial Court recently abolished the traditional common law distinctions between classes of invitees and licensees, extending the duty of ordinary care to all lawful visitors. Mounsey v. Ellard,-- Mass.-, 297 N.E.2d 43 (1973). But that court made it clear that it was not ready to include trespassers among those persons to whom the duty of ordinary care was to be extended. The court indicated that refinement, if any, of the rules regarding trespassers could be left to “later cases.” -Mass, at-, 297 N.E.2d at 51-52 n. 7.

Appellant asserts that in the first case since Mounsey to consider the issue of tort recovery for injured trespassers, Pridgen v. Boston Housing Authority, - Mass. -, 308 N.E.2d 467 (1974), the Supreme Judicial Court decided to sweep away all the distinctions between trespassers and lawful visitors that were expressly retained in Mounsey. The district court rejected this broad characterization of Pridgen: It interpreted that case as imposing a duty of ordinary care towards trespassers only after their presence becomes known to the landowner or his agents. Applying this standard, the district court found nothing to indicate that defendants had failed to exercise due care towards the appellant after Forbes had perceived him lying alongside the tracks.

We agree that Pridgen goes no further than to pronounce a standard of care owed to perceived trespassers and that otherwise the traditional requirement of establishing willful or wanton conduct remains-undisturbed. Compare Pridgen v. Boston Housing Authority, - Mass. -, -, 308 N.E.2d 467, 477-478 (1974), with Mounsey v. Ellard, -- Mass.-,-, 297 N.E.2d 43, 51 n. 7 (1973). Indeed, Pridgen was a case involving an employee who, though aware that a child had been trapped on top of an elevator, did not turn off the power. The Massachusetts court held that “the same common duty of reasonable care [owed to lawful visitors] is owed by an owner to a trespasser who has become helplessly trapped on the premises to the owner’s knowledge.” - Mass, at -, 308 N.E.2d at 478. Thus, appellant could recover for any negligence attributable to defendants after they had detected his presence in the freight yard. But, as the district court concluded, there was nothing to support a finding of negligence at that time. Once they saw him, the trainmen acted quickly to halt the train and to render assistance. Since there was no ■ indication that defendants may have violated any duty of care they owed to appellant, the district court acted properly in entering summary judgment.

As a further ground of liability, appellant argues that his injury was caused by defendants’ violation of 49 C. F.R. § 230.231(e), a regulation enacted under the Federal Boiler Inspection Act, 45 U.S.C. §§ 22-34. Literally the regulation does no more than prescribe the type of light a locomotive must carry after sunset, a requirement which defendants’ engine met. But appellant asserts that it should be read to forbid the practice of pushing a car or cars ahead of a yard locomotive in such a manner as to obscure the latter’s light. Cf. Lilly v. Grand Trunk Western R.R., 317 U.S. 481, 63 S.Ct. 347, 87 L.Ed. 411 (1943).

Appellant did not present this claim to the district court. Ordinarily we will not reverse a judgment of the district court on a ground not urged upon or considered by it. Bird v. United States, 241 F.2d 516, 520-521 (1st Cir. 1957); Roto-Lith, Ltd. v. F. P. Barlett & Co., 297 F.2d 497, 500 (1st Cir. 1962). Only in “exceptional cases or particular circumstances . . . where injustice might otherwise result” will we depart from this principle. Bird, supra, 241 F.2d at 520, quoting Hormel v. Helvering, 312 U.S. 552, 61 S.Ct. 719, 85 L.Ed. 1037 (1941).

In a personal injury case, we of course have sympathy for the injured plaintiff. But that is not reason enough to entertain contentions which litigants fail to raise below. Perhaps we would make an exception if the new ground were so compelling as virtually to insure appellant’s success. But while appellant’s new contention is not frivolous, neither is it self-evident.

Appellant does not assert, nor could he, that the alleged violation of the Boiler Inspection Act creates a separate federal cause of action. Cf. Crane v. Cedar Rapids & Iowa City Ry., 395 U.S. 164, 89 S.Ct. 1706, 23 L.Ed.2d 176 (1969). He seems rather to contend that in a negligence action based upon Massachusetts law a prima facie case can be established by showing that a federal safety regulation was violated despite the plaintiff’s status as a trespasser. This is an interesting contention. But it is open to question whether the existence of such a regulation would lead Massachusetts to broaden the scope of the duty owed by a possessor of land to a trespasser. In older cases dealing with state elevator regulations, the Massachusetts courts held that violations of such regulations did not give rise to civil causes of action where there was no common law duty to exercise due care. See, e. g., Carroll v. Hemenway, 315 Mass. 45, 46, 51 N.E.2d 952, 953 (1943).

Moreover, although we do not decide the issue, it is not readily apparent that the facts of this case establish a violation of the federal regulation. Appellant’s interpretation would appear to prohibit a yard locomotive from pushing ears either forward or in reverse at night. No regulations requiring lights on the front of such cars have been shown to us, and it may be that the regulation was not intended to preclude these practices. Appellees, during oral argument, attempted to present certain operating rules, purportedly approved by a governmental body, which, it was contended, tended to show agency acquiescence in the practice complained of here. We did not receive them and remain unclear as to their materiality and force. It is possible, however, that materials of this nature and other extrinsic evidence of railroad and ICC practices presented for the limited purpose of explicating the regulation might have been helpful and even determinative. See 2A Sutherland, Statutory Construction § 49.03 (4th ed. C. Sands 1973); cf. United States v. Groupp, 459 F.2d 178, 181 (1st Cir. 1972). But this court is not equipped to screen and receive evidence. That is the function of the district court and is a further reason why we would be ill-advised to construe the regulation without the benefit of district court proceedings.

Finally, we note that even were appellant to present his alternative claim to a jury he faces what appears to be an uphill battle. Appellant’s own apparent negligence would seem to be a formidable obstacle, and a jury would have to be convinced that the alleged violation of the federal regulation was the proximate cause of his injuries.

Without ruling on the merits of appellant’s contention, we are persuaded that neither justice nor sound practice justify our departing from the normal rule against entertaining new matters on appeal.

The judgment of the district court is affirmed.

      . While Pridgen dealt only with a perceived trespasser, the court cited sections 336 and 338 of the Restatement (Second) of Torts (1965), which define a duty of care not only to known trespassers but to those of whom a landowner has reason to know. Even assuming that Massachusetts endorses the Restatement view fully (which is not clear), the present facts do not create a jury issue on whether defendants had reason to know of appellant’s presence within the yard. The occasional presence of strangers in the yard would be insufficient to alert defendants that an unconscious man might be lying by the tracks in the middle of the night.

      . “Yard locomotives. Each locomotive used in yard service between sunset and sunrise shall have two lights, one located on the front of the locomotive and one on the rear, each of which shall enable a person in the cab of the locomotive under the conditions, including visual capacity, set forth in paragraph (a) of this section, to see a dark object sucli as there described for a distance of at least 300 feet ahead and in front of such headlight; and such headlights must be maintained in good condition.”
      The regulation has the force of federal law. See Lilly v. Grand Trunk Western R. R., 317 U.S. 481, 63 S.Ct. 347 (1943).

      . The regulation requires a light sufficient to enable a person in the cab to see an erect man at a distance of 300 feet. See 49 C.F. R. § 230.231(a). Appellant, however, was prone alongside the tracks. The engine crew said they saw a light-colored object by the tracks which they first took to be a piece of paper. Defendants argue that even had the engine’s light been unobstructed, appellant would still not have been detected until too late to prevent his injury,


author: KILKENNY, Circuit Judge: MERRILL, Circuit Judge

text:
    TRIXLER BROKERAGE COMPANY, a California corporation, Appellant, v. RALSTON PURINA COMPANY, a corporation, Appellee.
    No. 73-1197.
    United States Court of Appeals, Ninth Circuit
    Nov. 5, 1974.

      Stuart R. Poliak (argued), Howard, Prim, Rice, Nemerovski, Canady & Pol-iak, San Francisco, Cal., for appellant.
    Noble K. Gregory (argued), Pillsbury, Madison & Sutro, San Francisco, Cal., for appellee.
    Before MERRILL and KILKENNY, Circuit Judges, and CRARY, District Judge.

       The Honorable E. Avery Orary, United States District Judge for the Central District of California, sitting by designation.

   OPINION

KILKENNY, Circuit Judge:

Appellant appeals from an adverse judgment in a non-jury trial, in an action against appellee for alleged violations of Sections 1 and 2 of the Sherman Act (15 U.S.C. §§ 1 and 2), bad faith, breach of contract and misrepresentation. Appellant is a corporation engaged in the food brokerage business, acting as an independent sales agent in northern California for various food processors and manufacturers. Appel-lee, among other things, is a corporation engaged in processing and manufacturing food.

FACTUAL BACKGROUND

A summary of the facts, stated favorably for appellee, is as follows: In 1952 when Van Camp Sea Food Company, a predecessor of appellant, decided to change its marketing scheme from direct sales' to brokerage, J. Thomas Trixler, president of appellant, resigned as an employee of Van Camp and became its broker and a broker for other food processors. Trixler then incorporated his business, and his company was orally appointed by Van Camp as broker for northern California. Later, the appellant company was formed and took over the California operations of its predecessor. Since that time it has been managed by Trixler, its president and principal shareholder.

In 1963, appellee acquired Van Camp, the latter continuing as an administrative division of the former. Trixler continued as broker for the Van Camp tuna products under an arrangement which was not formally expressed, either orally or in writing. From 1953, appellee, in accordance with accepted business practice, conducted regular studies to, determine the relative economics of marketing its products through brokers as opposed to direct sales. In the early fifties, it marketed all of its consumer products through a direct sales force. Later, in the mid-fifties, it changed courses and by 1960 all of its consumer products were marketed by brokers. By the use of brokers, appellee was unable to give its junior management personnel sufficient sales experience to enable them effectively to supervise and work with food brokers. Consequently, in 1965, appellee established a direct sales force in St. Louis to provide a training ground for sales management personnel. This force failed to provide a sufficient number of trained personnel, and in 1966 another force for training purposes was established in Los Angeles.

In 1965, and subsequently, appellant inquired from time to time as to appel-lee’s overall policy concerning brokers and was told that appellee was “broker minded” or “broker oriented” and that there were no plans to terminate appellant. To this date, no national sales force has been established by appellee, none is planned, and most of its tuna products are still marketed through brokers. Even after the establishment of the direct sales force in Los Angeles in 1966, there was no decision or plan to extend the direct sales training force until February, 1968. In the so-called “Operation February” report, San Francisco, Philadelphia and Baltimore-Washington were selected as feasible markets for the institution of a direct sales training area. The recommendation that San Francisco be selected was dated April 23, 1968, and approval for it was given on April 24th. Appellant was notified on May 6, 1968, of its termination as broker for Chicken of the Sea tuna, but was asked to continue as broker through July 31, 1968.

From at least 1968 until the time appellant ceased representing appellee, appellant was aware of the fact that appellee might consider returning to direct sales in northern California. When the termination decision was made, appellant was offered two months equivalent brokerage. The offer of equivalent brokerage was extended to retain the good will of appellant during the change-over period and to provide payment to appellant during the transition. On May 28, 1968, appellant notified appellee that it was ceasing to represent appellee as of June 30, 1968. On July 1, 1968, appellant began representing Carnation, a competitive brand of tuna. Appellant received brokerage through June 30th.

PLEADINGS

On December 24, 1968, appellant filed a complaint charging breach of contract, bad faith and violations of the antitrust laws previously noted. Ralston answered and counter-claimed for brokerage paid by mistake. No jury was requested by either party. On September 8, 1969, appellant moved for a jury trial. The motion was denied as untimely. Then appellant filed a motion for leave to amend the complaint, stating two additional causes of action. The amended complaint was filed, and appellant then filed a demand for a jury trial on its two additional causes. A motion to strike the jury demand was granted. Subsequently, the court denied appellant’s motion to reconsider the demand for a jury trial, and the case proceeded to trial before the court. After trial, the court rendered its memorandum of decision against appellant and in favor of appellee. The court later signed and filed detailed findings of fact and conclusions of law on which judgment was entered against appellant on its claims and in favor of appellee on its counterclaim for $1,558.78.

CONTENTIONS

Briefly stated, appellant’s contentions are:

(I) that it was entitled to a jury trial on its sixth and seventh claims;

(II) that appellee’s conduct constituted an unreasonable restraint of trade which proximately caused damage to appellant in violation of Section 1 of the Sherman Act;

(III) that the trial court applied an erroneous rule of law in requiring direct evidence of intent to monopolize on a claim of attempted monopoly under Section 2 of the Sherman Act.

JURY REQUEST

Appellant concedes that it failed to file a timely motion for a jury trial on its first five claims. It asserts, however, that a timely demand was made for a jury trial on the issues created by the sixth and seventh claims set forth in the amended complaint. The answer lies in whether the sixth and seventh claims created new issues within the meaning of Rule 38(b), F.R.Civ.P. [Emphasis supplied.]

In addition to incorporating by reference all of the allegations in the previous four claims charging Sherman Act violations, the fifth claim of appellant’s original complaint — on which appellant failed to ask for a jury trial — alleged that in May, 1968, the appellee and another surreptitiously attempted to induce salesmen and other employees of appellant to breach and terminate their employment contracts with appellant and to accept employment with appellee. The claim then went on to charge that this conduct and “ . . . the termination of Trixler’s brokerage agreements, . were performed [by appellee] in bad faith and in violation of [appel-lee’s] obligation to act in good faith and to deal fairly with . . . ” appellant. [Emphasis supplied.]

The appellee, not surprisingly, sought additional information with reference to the charges of bad faith and unfair dealings set forth in the fifth claim. On discovery, in answer to an interrogatory as to the facts on which it based its bad faith charges in that claim, the appellant’s response was vague and indefinite. Being dissatisfied with this response, appellee sought additional details on the nature of the bad faith charges. In answer to this request for clarification, the appellant expanded on its previous statement of the bad faith charges in the fifth claim and stated:

“Over a period of several years, commencing in or about 1965 and continuing through April 1968, Ralston Purina represented to Trixler' that there was no possibility in the foreseeable future of Ralston Purina substituting a direct sales force for brokers in Northern California, or in any area other than in St. Louis (in April 1965) and in Los Angeles (in August 1966) , and that such a substitution was not the subject of consideration or study by Ralston Purina. Said representations were made by Ralston Purina to Trixler on at least the following occasions, by and to the following named individuals:
(a) In or about August 1965, R. H. Dean so represented to J. Thomas Trixler;
(b) In or about January 1966, R. H. Dean so represented to J. Thomas Trixler;
(c) In or about May 1966, Glenn Copeland so represented to J. Thomas Trixler;
(d) In or about November 1967, R. L. Siler, Guy Dougherty and Bob McMath so represented to J. Thomas Trixler and John T. O’Leary.”

It will be observed that each allegation in the supplemental response amounts to a charge of bad faith and a violation of “appellee’s obligation to act in good faith and to deal fairly with” the appellant, as alleged in the fifth claim.

Particularly significant is the fact that appellant’s alleged sixth and seventh claims use substantially the same language employed by appellant in its supplemental response to appellee’s inquiry into the basis of the bad faith charges in the fifth claim. Clearly, the allegations of bad faith in the fifth claim are sufficiently broad to permit evidence of the acts charged in the sixth and seventh claims.

Although designated as the sixth and seventh causes of action, they are in fact neither causes of action nor claims. At most, they clarify the charges already made in the fifth claim. The sixth and seventh claims, by elaborating on the charges of bad faith in the fifth claim, did not create new issues. By any reasonable analysis, the identical issue of bad faith is charged in each one of the claims. We need not further clutter the legal publications by citing authority to support the statement that pleadings under F.R.Civ.P. are to be liberally construed. In these circumstances, having waived its right to a jury trial on its fifth claim, the appellant is not entitled to a jury trial on a more detailed statement of the same charge in the sixth and seventh claims.

Cataldo v. E. I. DuPont De Nemours & Co., 253 F.Supp. 235 (S.D.N.Y.1966), upon which appellant relies, would be a fragile foundation on which to rest our decision. First of all, the case is not binding on us. Next, we question if in the circumstances of this case appellant’s sixth and seventh claims introduced new theories of recovery. Bad faith is the underlying theory of all. Finally, we hold that the presentation of a new theory does not constitute the presentation of a new issue on which a jury trial should be granted under F.R.Civ.P., Rule 38(b).

Manifestly, the issue contemplated by the Rule is one of fact. When read in context, the word issue must have been intended by the Supreme Court to mean nothing other than an issue of fact. Obviously, appellant would not be demanding a jury trial on an issue of law. A theory of recovery, as distinguished from an issue of fact, in normal parlance presents a question of law. Even a casual reading of the applicable subdivision of the Rule makes it clear that the issue on which demand may be made for a jury trial is not created until service of the “last pleading directed to such issue.” The theory of a case relates to the ultimate basis of liability, rather than to an issue created by the pleadings. An issue of fact does not exist unless there is an allegation and a responsive denial. A theory of recovery exists from the outset, irrespective of a responsive pleading. A word, such as issue, with a fixed legal meaning is presumed to have been used in that sense. Bradley v. United States, 410 U.S. 605, 609, 93 S.Ct. 1151, 35 L.Ed.2d 528 (1973); Barber v. Gonzales, 347 U.S. 637, 74 S.Ct. 822, 98 L.Ed. 1009 (1954). Moreover, the use of the word issue, in these circumstances, would imply the exclusion of the word theory. Matheson v. Armbrust, 365 U.S. 870, 81 S.Ct. 904, 5 L.Ed.2d 860 (1961); Arley v. United Pacific Ins. Co., 379 F.2d 183 (CA9 1967), cert. denied, 390 U.S. 950, 88 S.Ct. 1039, 19 L.Ed.2d 1140 (1968). We decline to follow Cataldo.

Much more in point, although factually distinguishable, are Alcoa S. S. Co. v. Ryan, 211 F.2d 576 (CA2 1954); Railex Corp. v. Joseph Guss & Sons, Inc., 40 F.R.D. 119 (D.D.C.1966), aff’d, 127 U.S. App.D.C. 230, 382 F.2d 179 (1967), and Reeves v. Pennsylvania R. Co., 9 F.R.D. 487 (D.Del.1949). All of the evidence which might be introduced under the specific allegations set forth in claims six and seven was, in fact, received by the trial court under the allegations of the fifth claim. Specific findings against appellant were made on all of these charges. In finding against appellant on its allegations in the fifth claim, the lower court necessarily disposed of appellant’s contentions as set forth in its alleged sixth and seventh claims.

RESTRAINT OF TRADE

Despite appellant’s forceful arguments to the contrary, we agree with the district court’s findings that appellee did not violate Section 1 of the Sherman Act, 15 U.S.C. § 1, and thus hold that they are not clearly erroneous.

Under the doctrine stated in Bushie v. Stenocord Corp., 460 F.2d 116 (CA9 1972), appellee was entitled to terminate appellant’s brokerage services provided that valid business reasons underscored the termination and that there was no parallel arrangement for restraining trade. Appellant concedes that a manufacturer may normally control the distribution of its own products, choose its customers as it sees fit, and cease doing business with a particular distributor at any time. United States v. General Motors Corp., 384 U.S. 127, 86 S.Ct. 1321, 16 L.Ed.2d 415 (1966); United States v. Parke, Davis & Co., 362 U.S. 29, 80 S.Ct. 503, 4 L.Ed.2d 505 (1960), and Joseph E. Seagram & Sons, Inc. v. Hawaiian Oke & Liquors, Ltd., 416 F.2d 71 (CA9 1969), cert. denied, 396 U.S. 1062, 90 S.Ct. 752, 24 L.Ed.2d 755 (1970), rehearing denied, 397 U.S. 1003, 90 S.Ct. 1113, 25 L.Ed.2d 415. Appellant also concedes that the district court properly held that the standard for determining whether an arrangement violates Section 1 of the Sherman Act is whether it is so inherently anti-competitive in purpose or effect, or both, as to constitute an unreasonable restraint of trade. At this point, however, the appellant parts company with the lower court and argues that it committed reversible error by holding that the “non-compete” provision was reasonable in scope and duration and served a legitimate business purpose not in restraint of trade. Our examination of the record convinces us that the trial court did not erroneously apply the standards mentioned in Alpha Distributing Co. of Cal., Inc. v. Jack Daniel Distillery, 454 F.2d 442, 452 (CA9 1972), and that there is ample evidence in support of its finding that the “non-compete” provision was reasonable in scope and duration and served a legitimate business purpose not in restraint of trade.

Appellant’s contention that there was an oral brokerage contract between appellant and appellee to last as long as appellant ably performed its responsibility, and that appellee breached that contract, presents a question of fact. Appellant is here faced with the adverse finding of the trial court that no such oral contract existed and that there was no fixed term of duration, either explicit or implicit, or that appellant would continue to have appellee’s account as long as appellant “continue to do a good job.” These findings are not clearly erroneous.

Nor do we find substance in appellant’s claim that appellee’s qualified offer of 60 days’ “equivalent” brokerage constituted an unreasonable restraint of trade. Again, on this issue, the lower court made specific findings against the appellant and, additionally found that appellant was not “otherwise entitled” to equivalent brokerage. These findings are supported by the record and are controlling on the issue.

ATTEMPTED MONOPOLIZATION

Finally, appellant urges that the trial court applied an erroneous rule of law in requiring direct evidence of intent to monopolize on a claim of attempted monopolization under Section 2 of the Sherman Act.

At the outset, we must recognize that a manufacturer, such as appellee, has a natural monopoly over its own products, especially when the products are sold under trademark. Industrial Bldg. Materials, Inc. v. Interchemical Corp., 437 F.2d 1336, 1344 (CA9 1970). Under such circumstances, there is no violation of the antitrust laws unless the manufacturer uses his natural monopoly to gain control of the relevant market in which his products compete.

Appellant’s argument that the establishment of his claim in restraint of trade under Section 1, creates a prima facie case of attempting to monopolize under Section 2, falls of its own weight. Since we have already held against appellant on its Section 1 claim, that claim cannot be used to create a prima facie case for a Section 2 claim of attempting to monopolize.

Utilizing language in Lessig v. Tidewater Oil Co., 327 F.2d 459, 474 (CA9 1964), cert. denied, 377 U.S. 993, 84 S.Ct. 1920, 12 L.Ed.2d 1046, and Industrial Bldg. Materials, Inc. v. Interchemical Corp., supra, appellant argues that the lower court was in error when it held that appellee had no intent to monopolize the tuna business and did not attempt to monopolize it. In each of those cases, the attempt to monopolize claim was founded upon a substantial claim of restraint of trade, and in those circumstances we held that the specific intent required for a claim of attempting to monopolize could be inferred. Since appellant failed on its restraint of trade claim, no basis for the inference ever existed.

Appellant challenges the lower court’s conclusion that: “To prove a violation of section 2 of the Sherman Act, the plaintiff must show a specific intent to monopolize and sufficient market power to establish a ‘dangerous probability’ of success.” [Emphasis Supplied.] Even conceding that the relevant market is not in issue where the charge is attempt to monopolize, rather than monopolization, Industrial Bldg. Materials, Inc., supra, 437 F.2d at 1344, nonetheless, the district court’s finding that appellee had no intent to monopolize the tuna business and did not make such an attempt, is controlling. The conclusion of the court on appellant’s burden with reference to the relevant market is surplus-age and in no way prejudiced the appellant. The court’s finding of a lack of intent is sufficient, in itself, to destroy appellant’s attempted monopolization claim.

CONCLUSION

Without going into further detail, we hold the there is ample evidence to support the findings of fact of the lower court, that the court correctly applied the law to the facts before it, and that none of its findings is clearly erroneous.

We have not discussed in detail each of appellant’s contentions. However, we have considered them and feel that a more detailed discussion would unduly lengthen this opinion, without enlightenment to the bench or bar, and without change in the ultimate result.

Affirmed.

MERRILL, Circuit Judge

(concurring) :

I concur in Judge Kilkenny’s opinion.

In addition to the facts recited by him I would note that the offer of equivalent brokerage was conditioned upon appellant not representing products which ap-pellee considered “competitive” with its tuna products; that the offer further provided that appellant would be free to begin representing competitive brands at any time and would nevertheless be entitled to receive equivalent brokerage for such time during the two-month period as it did not represent competitive brands.

I understand Judge Kilkenny to hold that the basic issue here presented under § 1 of the Sherman Act is whether, in light of the e'ourse of dealing between the parties, this offer of equivalent brokerage conditioned on this covenant not to compete was, as matter of law, reasonable or unreasonable. On this I agree with Judge Kilkenny that as matter of law it was reasonable.

      . Equivalent brokerage is the sum computed by applying the broker’s commission to sales actually made in the period for which bro- . kerage is being paid, even though the sales are made by another broker or a direct sales force.

      . Counsel for the parties erroneously referred to the claims as “causes of action.” See Rule 8(a), (e) (2), P.R.Civ.P.

      . “(b) Demand. Any party may demand a trial by jury of any issue triable of right by a jury by serving upon the other parties a demand therefor in writing at any time after the commencement of the action and not later than 10 days after the service of the last pleading directed to such issue. Such demand may be indorsed upon a pleading of the party.”

      . Winch is, in substance, a duplication of the allegations in the sixth.

      . “29. Ralston Purina had no intent to monopolize the tuna business here involved and did not attempt to monopolize that business. The limitation in its offer was reasonable in time and scope. Its purpose was not furtherance of any attempt to monopolize, nor was it aimed at securing the power to control prices or eliminate competitors. There was no shortage of brokers to handle the products of Ralston Purina’s competitors” (R.Vol. 6,1390).