author: LIVELY, Circuit Judge.

text:
    George P. BAKER et al., Trustees of the Property of Penn Central Transportation Company, Plaintiffs-Appellees. v. NATIONAL CITY BANK OF CLEVELAND, Defendant-Appellant.
    No. 74-1908.
    United States Court of Appeals, Sixth Circuit.
    Feb. 13, 1975.

      Frank C. Heath, John L. Stauch, Jones, Day, Cockley & Reavis, Cleveland, Ohio, for defendant-appellant.
    Thomas R. Skulina, Cleveland, Ohio, Marvin Comisky, Goncer M. Krestal, Philadelphia, Pa., for plaintiffs-appellees.
    Before MILLER and LIVELY, Circuit Judges, and McALLISTER, Senior Circuit Judge.
   LIVELY, Circuit Judge.

This appeal presents a single question: What requirements must a bank meet in order to effect a non-judicial setoff against the account of a customer? The facts are not in dispute and are stated in the comprehensive memorandum and order entered in the district court by Judge William K. Thomas. Baker, et al., Trustees v. National City Bank of Cleveland, 387 F.Supp. 1137 (N.D.Ohio 1974). The District Judge concluded that a nonjudicial setoff is effected only when intent to set off is accompanied by some act of consummation and evidence of the consummated setoff in bank records. Id. at 1149. Upon a finding that National City Bank (NCB) had done no more on June 20, 1970 than declare an intention to set off the checking account of Penn Central against its demand note to the bank, the district court held that the Penn Central account was subject to a prohibition against setoff contained in Order No. 1 of the Penn Central reorganization proceedings issued on June 21, 1970. We affirm.

No cases have been cited, and we have found none, which state explicitly the steps which a bank is required to take in order to effectuate a setoff. The appellant argues here, as it did in the district court, that under controlling Ohio law a setoff is effective at the time a bank declares a setoff, and that bookkeeping entries are not required to accomplish the act. The cases cited in appellant’s briefs do not hold this. On the other hand, there is language in the cited opinions which indicates that each bank took some overt step to consummate the act of setting off. In Bank of Marysville v. Windisch-muhlhauser Brewing Co., 50 O.St. 151, 33 N.E. 1054 (1893), the court stated that the bank had “applied” the depositor’s account to his debt prior to presentation of a cheek which was dishonored. Id. at 159, 33 N.E. 1054. In State ex rel. Warrensville Heights v. Fulton, 128 O.St. 192, 200, 190 N.E. 383, 386 (1934), in discussing a setoff, the Supreme Court of Ohio stated that “. the trust company was entitled to apply the deposit of relator in part satisfaction of the past-due obligations which the relator owed it.” (emphasis added). In referring to the right of setoff, the Supreme Court of the United States has written—

But, broadly speaking, it represents the right which one party has against another to use his claim in full or partial satisfaction of what he owes to the other. That right is constantly exercised by business men in making book entries whereby one mutual debt is applied against another. Studley v. Boylston Bank, 229 U.S. 523, 528, 33 S.Ct. 806, 808, 57 L.Ed. 1313 (1913) (emphasis added).

Language indicating that a setoff is accomplished by some affirmative act which provides record evidence of the transaction is used throughout the Boylston Bank opinion.

Appellant relies on Ohio Revised Code § 2309.19, which reads as follows:

When cross demands have existed between persons under such circumstances that if one had brought an action against the other a counterclaim could have been set up, neither can be deprived by the benefit thereof by assignment by the other, or by his death. The two demands must be deemed compensated so far as they equal each other.

This statute merely provides that a right to set off is not defeated by an assignment or by death of one of the parties to the debtor-creditor relationship. The section declares an automatic setoff upon death or assignment by providing that the two demands shall be “deemed compensated.” It does not deal with the mechanics of effecting a setoff in other circumstances.

Noting that Pennsylvania has a defalcation statute similar to that of Ohio, appellant has cited a number of cases from that jurisdiction. While it is true that several of these opinions state it is not necessary that there be book entries before a bank may claim a setoff, nevertheless in each case it is clear that the bank performed some overt act to carry out its intent to set off. Goldstein v. Jefferson Title & Trust Co., 95 Pa.Super. 167 (1928); Aarons v. Public Service Building & Loan Association, 318 Pa. 113, 178 A. 141 (1935); Duffy v. Fifty-Eighth & Chester Ave. Building & Loan Association, 325 Pa. 127, 189 A. 307 (1937). In each opinion, the court speaks of the bank’s “exercising” its right of setoff. This implies something more than a declaration of intent. In Gold-stein, supra, the court held that the bank’s refusal to pay its depositor’s check was “sufficient evidence of intention.” We do not read Judge Thomas’ opinion to require that the bank “firsf’ make book entries charging one account and crediting the other before asserting its right to priority, the sequence which the Pennsylvania Supreme Court held was.not required in Aarons, supra. Book entries may be the last step, rather than the first, but the act of setoff is not complete until three steps have been taken: (1) the decision to exercise the right, (2) some action which accomplishes the setoff and (3) some record which evidences that the right of setoff has been exercised.

The Uniform Commercial Code, § 4— 303, which was in effect in Ohio in June 1970, deals with the right of setoff. Ohio Revised Code § 1304.23. This section, inter alia, determines the time at which items become subject to setoff by a bank. The scheme of § 1304.23 is to provide a series of “milestones,” all of which are overt acts, the reaching of which renders an “item” or instrument drawn against a customer’s account impervious to non-acceptance by the bank. While the statute does not prescribe particular steps for effecting a setoff, in Comment 5 it is stated that “[i]n the case of setoff the effective time is when the setoff is actually made.” 13 Page’s Ohio Code Revised, 281 (1962). It is clear from this language that a setoff does not occur automatically each time a bank holds the matured debt of a depositor. The setoff must be “actually 'made.” We do not hold that § 1304.23, standing alone, disposes of the issue in this case. However, it is a further sign which points to a policy of the State of Ohio, and of all states that have adopted the Uniform Commercial Code, which requires that internal banking transactions involving adverse interests be evidenced by bookkeeping entries or some similarly binding overt act. This policy not only provides criteria for determining conflicting claims, but also assures those who deal with banks that their rights will not be defeated by unsupported internal declarations of a self-serving nature.

While there is no requirement that the actual cross entries to reflect off setting debits and credits be made before the right of setoff is exercised, when the time the setoff is put in issue, it is incumbent upon the bank asserting the setoff to produce evidence of the time that the setoff was “actually made.” As Judge Thomas pointed out in his memorandum, banks in Ohio may transact business outside of banking hours. There was nothing to prevent NCB from making a record by temporary manual entries if the computerized records were not operative at the time the decision to set off was reached on Saturday June 20, 1970. Furthermore, a telegram to the depositor, dispatched at that time, would have clearly established the time at which the setoff was effectuated.

It would be unrealistic to hold that mere intra-mural declarations between employees of a bank, accompanied by no affirmative acts and no steps to record the transaction, are sufficient to effectuate a setoff. The business of banks is carried on, in the main, by making entries in records rather than by the transfer of money. It is a business of debits and credits. To permit a bank to effect a setoff against a customer’s account by means of mere conversations among bank personnel would seriously undermine confidence in the banking system. Further, to permit the consequences of a critical order of a court of competent jurisdiction in reorganization proceedings to be evaded on the basis of the proof in this record would be detrimental to orderly legal processes.

The judgment of the district court is affirmed.

      . We are aware that some courts have construed similar statutes as effecting automatic setoff in other circumstances. See comment, Compensatio, 53 Calif.L.Rev. 224 (1965). However, the Supreme Court of Ohio does not appear to have adopted such a construction.


source: Caselaw Access Project

author: WEICK, Circuit Judge.

license: Public Domain

text:
    Joan WOODRUFF et al., Plaintiffs-Appellants, v. Hewitt P. TOMLIN, Jr., et al., Defendants-Appellees.
    No. 74-1876.
    United States Court of Appeals, Sixth Circuit.
    Feb. 21, 1975.
    Norman Herring, Phoenix, Ariz., H. Houston McKnight, Memphis, Tenn., for plaintiff s-appellants.
    Leo Bearman, Jr., Leo Bearman, Sr., John J. Thomason, Memphis, Tenn., Victor F. Schneider, Jackson, Tenn., for defendants-appellees.
    Before WEICK, EDWARDS and CELEBREZZE, Circuit Judges.
   WEICK, Circuit Judge.

The sole question in this appeal is whether the plaintiffs’ action for damages for malpractice against their attorneys, the defendants, was barred by the Tennessee one-year statute of limitations, Tennessee Code Annotated § 28-304. The District Court held that the action was barred by the statute of limitations. The Court granted the defendants’ motion for summary judgment and dismissed the complaint. The plaintiffs appealed. We reverse.

Joan and Patricia were minor sisters. Their father employed the attorneys, the defendants, to represent them in their claims for damages for personal injuries arising out of a collision between an automobile driven by Patricia, in which Joan was riding as a passenger, and a gravel truck owned by G. L. Teague and driven by his employee, James Pomeroy, which collision occurred on May 22, 1968.

The attorneys filed suit in behalf of the sisters in the Circuit Court of Chester County, Tennessee, against Teague and Pomeroy, to recover damages for serious personal injuries sustained by the sisters.

The case was tried before a jury, resulting not only in a verdict in favor of the defendants, on the plaintiffs’ claims for personal injuries, but also in favor of the defendants on their cross-claim against the plaintiff, Joan Woodruff, for damages. An appeal was taken to the Tennessee Court of Appeals from the judgment entered upon the verdict. The Court of Appeals affirmed the judgment of the Circuit Court on January 15, 1973. This malpractice suit was filed within one year thereafter, namely on January 14, 1974.

In their complaint the plaintiffs charged the defendants with negligence and dereliction of duty in their investigation and preparation for trial, continuing in their handling of the case in the Circuit Court and in the Court of Appeals. They also alleged in their complaint that the attorney-client relationship continued until some time after January 15, 1973, and that they first learned of the breach of duty and negligence of the defendants some time after January 15, 1973.

It was the position of the defendants in the District Court that the plaintiffs’ cause of action accrued as to each negligent act or omission at the time such negligent act or omission occurred; thus, the claim for improper investigation and pretrial preparation accrued prior to the trial.

The claim for ineffective and improper representation at the trial accrued at the end of the trial.

Relative to the Court of Appeals, it was the position of the defendants that any cause of action for negligence or dereliction of duty in that Court accrued on October 17, 1972, which was the date of oral argument. The appeal, however, was pending until the Court of Appeals decided the case on January 15, 1973.

The relationship of attorney and client did not end on the date of the oral argument; it certainly continued until after the Court of Appeals decided the case. The attorneys owed a duty to advise their clients of the decision of the Court of Appeals, and to consult with them as to whether they desired an appeal taken to the Supreme Court of Tennessee. Until the case was finally terminated and a final judgment rendered the plaintiffs could not prove damage, because the Court of Appeals might have granted a new trial, and on retrial a different result could possibly have occurred.

The District Court relied on Albert v. Sherman, 167 Tenn. 133, 67 S.W.2d 140 (1934) for the general rule in Tennessee that a cause of action for malpractice accrues from the date of the wrongful act, rather than the date of the damage caused. It also distinguished Bland v. Smith, 197 Tenn. 683, 277 S.W.2d 377 (1955), which held that the cause of action accrued when the judgment became final; and Frazor v. Osborne, 57 Tenn. App. 10, 414 S.W.2d 118 (1966), involving continued negligence.

The District Court did not have the benefit of the most recent decision of the Supreme Court of Tennessee in Teeters v. Currey, Tenn., 518 S.W.2d 512 (1974), which held that a cause of action for medical malpractice did not accrue until it was discovered or should reasonably have been discovered by the patient. The Supreme Court of Tennessee overruled all previous Supreme Court and Appellate decisions inconsistent with its holding. In that case the Court stated:

The same considerations of elemental justice would demand a similar rule in malpractice actions. We find it difficult to embrace a rule of law requiring that a plaintiff file suit prior to knowledge of his injury or, phrasing it another way, requiring that he sue to vindicate a nonexistent wrong, at a time when injury is unknown and unknowable.

In our opinion this same rule applies to malpractice cases against lawyers. We are confident that if this decision had been available for the District Judge he would have reached a different result in the instant case.

The plaintiffs could not reasonably have discovered the negligent acts until the termination of the litigation and until after the relationship of attorney-client had ended.

In Hodge v. Service Mach. Co., 438 F.2d 347, 349 (6th Cir. 1971), Judge Celebrezze, who wrote the opinion for the Court, stated:

A cause of action accrues when a suit may be maintained upon it. Black’s Law Dictionary 37 (4th ed. 1951). A suit may not be brought upon a cause of action until it exists, and a cause of action does not exist until all its elements coalesce. In civil actions for damages, two elements must coalesce before a cause of action can exist: (a) a breach of some legally recognized duty owed by the defendant to the plaintiff; (b) which causes the plaintiff some legally cognizable damage.

Thus, no cause of action accrued until after the plaintiffs discovered or could reasonably have discovered the malpractice and until after the judgment of the Circuit Court had become final. Teeters v. Currey, supra; Bland v. Smith, supra. The judgment did not become final until the Court of Appeals decided the appeal and the time to appeal to the Supreme Court of Tennessee had expired.

The judgment of the District Court is reversed and the cause is remanded for trial on its merits.

      . The pertinent provisions of the Tennessee statute of limitations are:
      [A]ctions and suits against attorneys for malpractice whether said actions are grounded or based in contract or tort, . . . shall be commenced within one (1) year after [the] cause of action accrued. (T.C.A. § 28-304).


author: PER CURIAM:

text:
    In the Matter of GREAT WESTERN RANCHES, INC., Debtor. FIRST NATIONAL PARK BANK OF LIVINGSTON, MONTANA, Claimant-Appellant, v. Stuart M. KAPLAN, Trustee-Appellee. Robert L. BEERY, Petitioner-Appellant, v. Stuart M. KAPLAN, Trustee-Appellee.
    Nos. 73-2564, 73-3236.
    United States Court of Appeals, Ninth Circuit.
    Feb. 24, 1975.

      Nick J. Colessides, Salt Lake City, Utah, for appellants.
    Henry Goss, San Francisco, Cal., for trustee-appellee.
    Before ELY and CARTER, Circuit Judges, and LANE , Judge, Court of Customs and Patent Appeals.

       Honorable Donald E. Lane, Judge, United States Court of Customs and Patent Appeals, sitting by designation.

   OPINION

PER CURIAM:

Claimant-appellant First National Park Bank of Livingston, Montana (“the Bank”) appeals from the dismissal by the district court of its petition for review of a referee’s decision in bankruptcy, for failure to file the petition within the ten days mandated by 11 U.S.C. § 67(c). We affirm.

The Bank filed a claim for $95,857.10 in the bankruptcy proceedings of the debtor, Great Western Ranches, Inc. The appellee, the Trustee for the debtor, objected to this claim and, in addition, asserted certain counterclaims against two officials of the Bank. The referee ruled in favor of the Trustee on both issues, and following a hearing on December 7, 1972, filed Findings of Fact and Conclusions of Law. On December 13, 1972, the referee signed a formal judgment dismissing the Bank’s claim and awarding the Trustee judgment on the counterclaim. On that same day, the judgment was entered on the referee’s docket and a copy of the judgment was sent to counsel of record, including the Bank’s counsel. The Bank’s counsel submitted an affidavit stating that the Bank was first notified of the existence of the judgment by the district court clerk on December 27, 1972, and that he personally received written notice on December 30, 1972. The referee’s judgment was entered on the civil docket by the clerk of the district court on January 9, 1973.

The Bank filed on January 10, 1973 a motion for a new trial or in the alternative to reopen the case. Subsequently, on January 19, 1973, the Bank and its officials petitioned for review by the district court of the referee’s judgment. The Trustee submitted a motion to dismiss the petition, because it was untimely under 11 U.S.C. § 67(c). The district court granted the Trustee’s motion to dismiss, and this appeal ensued.

The controlling statutory provision, 11 U.S.C. § 67(c), provides in part:

“(c) A person aggrieved by an order of a referee may, within ten days after the entry thereof or within such extended time as the court upon petition filed within such ten-day period may for cause shown allow, file with the referee a petition for review of such order by a judge and serve a copy of such petition upon the adverse parties who were represented at the hearing. Such petition shall set forth the order complained of and the alleged errors in respect thereto. Unless the person aggrieved shall petition for review of such order within such ten-day period, or any extension thereof, the order of the referee shall become final.”
“In proceedings under the Act the Rules of Civil Procedure for the District Courts of the United States shall, insofar as they are not inconsistent with the Act or with these general orders, be followed as nearly as may be. But the court may shorten the limitations of time prescribed so as to expedite hearings, and may otherwise modify the rules for the preparation or hearing of any particular proceeding.”

The Bank’s argument that the ten-day review period was initiated by the January 9th entry on the civil docket of the district court rather than the December 13th entry on the referee’s docket is incorrect. The applicable bankruptcy rules indicate that the district court and the referee are to keep separate dockets with different entry requirements in bankruptcy matters.

The Bank contends, however, that General Order No. 37 makes applicable the docket entry procedure of Fed.R. Civ.P. 79(a); that the entry by the referee was inadequate to satisfy Fed.R. Civ.P. 79(a); and that therefore the January 9th entry on the district court docket initiated the ten-day period.

We find it unnecessary to reach this issue. Whether or not Fed.R.Civ.P. 79(a) is applicable to entries in both the district court’s and referee’s dockets, and whether or not the December 13th entry by the referee was so non-informative as to fail to commence the ten-day period, see, e. g., Reynolds v. Wade, 241 F.2d 208 (9 Cir. 1957), the December 13th notation of the referee’s Order on the district court’s docket was sufficient to commence the ten-day period. The fact (if true) that the Bank and its counsel received notice of the December 13th Order on December 27 and 30 (after the ten-day period) is of little consequence because the petition for review was not filed within ten days after either of those dates.

Since the Bank’s January 10 motion for new trial and January 18 request for an extension of the time in which to file a petition for review also fell outside the ten-day period, they did not comport with the statutory requirements of 11 U.S.C. § 67(e) and are therefore also untimely. See Goff v. Pfau, 418 F.2d 649, 652-654 (8 Cir. 1969), cert. denied, 398 U.S. 931, 90 S.Ct. 1830, 26 L.Ed.2d 97 (1970).

Nor is the dismissal of the Bank’s petition for review unduly harsh or inequitable. This court has determined that Congress intended the ten-day requirement to be strictly construed and compulsorily applied. See In the Matter of Robert Lee Benefiel, 500 F.2d 1219 (9 Cir. 1974).

Affirmed.

      . Although Robert L. Beery initially filed a notice of appeal, he has since abandoned that appeal and we therefore dismiss.

      . The Supreme Court’s General Orders and Forms in Bankruptcy have been abrogated by the new Bankruptcy Rules and Official Bankruptcy Forms, effective October 1, 1973. Since the present proceedings occurred prior to this date, the old rules and forms are applicable.

      . General Orders in Bankruptcy, No. 1 provided:
      “The clerk of the district court shall keep a docket, in which the cases shall be entered and numbered in the order in which they are commenced. It shall contain an entry of the filing of the petition and of the action of the judge or clerk of the district court thereon; of the reference of the case, if any reference is made, to a referee; of the transmission of the referee’s certified record of the proceedings; and of all proceedings in the case except those duly entered on the referee’s docket. The clerk’s docket shall be arranged in a manner convenient for reference, and shall at all times be open to public inspection. “The referee, in each case referred to him, shall keep a docket sheet of all proceedings before him substantially in the manner indicated by Form No. 70. The referee’s docket shall at all times be open to public inspection. The original referee’s docket sheet shall be transmitted to the clerk of the district court for preservation by him when the case is closed.”

        See also General Forms in Bankruptcy, Form No. 70.

      . General Orders in Bankruptcy, No. 37 provided:

      . Fed.R.Civ.P. 79(a) provides in pertinent part:
      “The clerk shall keep a book known as ‘civil docket’ . . .. All judgments shall be entered chronologically in the civil docket on the folio assigned to the action and shall be marked with its file' number. These entries shall be brief but shall show the nature of each paper filed or writ issued and the substance of each order or judgment of the court .. The entry of an order or judgment shall show the date the entry is made.”

      . The district court docket entries for December 13 and January 9 read:
      “Dec 13 961 Filed/Judgment, that the Claiment’s [sic] claim herein be dissm. on the merits, and is further ordered that the trustees counterclaim is granted.”
      “Jan 9 Entered Judgment, Filed Judgment Jan 9, 1973 Noticed Entry of Judgment”


author: OPINION

text:
    UNITED STATES of America ex rel. G. Daniel WALKER, Petitioner-Appellant, v. Jacob B. GUNN, Respondent-Appellee. PEOPLE OF the STATE OF CALIFORNIA, Plaintiff-Appellee, v. G. Daniel WALKER, Defendant-Appellant.
    Nos. 74-2785, 74-2593.
    United States Court of Appeals, Ninth Circuit.
    Feb. 12, 1975.

      G. Daniel Walker, pro se.
    Evelle J. Younger, Atty. Gen., Sacramento, Cal., for respondent-appellee.
    Before CARTER and TRASK, Circuit Judges, and RENFREW, District Judge.

       Honorable Charles B. Renfrew, United States District Judge, Northern District of California, sitting by designation.

   OPINION

James M. CARTER, Circuit Judge. Petitioner G. Daniel Walker appeals from an order denying his motion for relief pursuant to Fed.R.Civ.P. 60 and denying his petition for a writ of habeas corpus. Both the motion and the petition are based upon petitioner’s contention that his state court trial and conviction are null and void because he had previously filed a petition for removal to federal court, thereby depriving the state court of jurisdiction in the matter. In denying the habeas petition, the district court held that the removal petition had been untimely and that the state court proceedings were therefore valid. We affirm.

FACTS

Petitioner was indicted and tried for first degree murder in California Superi- or Court. On November 19, 1973, preliminary instructions were given to the prospective jurors and voir dire was commenced. Sometime later during that day, petitioner attempted to file a petition for removal to federal court with a federal district court judge, but the judge refused to accept the petition and verbally denied the request for removal.

On November 20, 1973, voir dire continued, several motions by petitioner were heard and denied, a number of jurors were selected, and at 3:15 p. m. the first jury panel was exhausted. Also on November 20th, petitioner formally filed his petition for removal to the United States District Court for the Eastern District of California, complying with all of the procedural requirements of the removal statute, 28 U.S.C. § 1446. The petition was filed at 2:45 p. m. and the state court trial judge was notified in open court shortly after 3:15 p. m. That same day, the petition was denied in an ex parte order. The state court proceeded with the trial, petitioner was convicted, and on February 8, 1974, he was sentenced to life imprisonment.

On May 2, 1974, petitioner filed a “Motion For Relief From Order of November 20th, 1973, Pursuant to Rule 60 Of Federal Rules of Civil Procedure,” contesting the district court’s November 20, 1973, denial of his petition for removal. He contended, inter alia, that his removal petition had divested the state court of jurisdiction until a remand was ordered, and that since no remand order had ever been issued the state court proceedings were null and void. On May 10, 1974, petitioner filed a petition in the United States District Court for the Eastern District of California for a writ of habeas corpus, alleging that the state court trial and sentence were void for the same reasons stated in his May 2 motion.

On July 24, 1974, the district court, in a single judgment, denied both the Rule 60 motion and the habeas petition, holding that the petition for removal had been filed on the second day of the state jury trial and was therefore untimely, that no reason justifying the delay in seeking removal had been given, and that in any event the petition was without merit. The court also held that the ex parte summary denial was proper to avoid unnecessary disruption of the state court trial. This appeal ensued.

DISCUSSION

The procedure for effecting removal of a criminal action is set forth in 28 U.S.C. § 1446. That section reads in pertinent part:

“(a) A defendant or defendants desiring to remove any civil action or criminal prosecution from a State court shall file in the district court of the United States for the district and division within which such action is pending a verified petition containing a short and plain statement of the facts which entitle him or them to removal together with a copy of all process, pleadings and orders served upon him or them in such action.
******
“(c) The petition for removal of a criminal prosecution may be filed at any time before trial.” (Emphasis added.)

Petitioner concedes and numerous cases so hold that the statute, insofar as the time for removal is concerned, is imperative and mandatory, must be strictly complied with, and is to be narrowly construed. See, e. g., Vendetti v. Schuster, 242 F.Supp. 746, 751 (W.D.Pa.1965). However, petitioner contends that the state court trial did not commence until the jury was sworn on November 26, 1973. The State contends that the trial commenced for purposes of § 1446(c) on November 19, 1973, when voir dire of prospective jurors began, and that the petition for removal, filed the next day (after a number of jurors had been selected, an entire panel exhausted, and several motions heard and denied) was therefore not filed “before trial.”

There are no cases to support petitioner’s position. In each of the cases noted by him in his brief, either the statutory language was different from that of § 1446(c) or the removal petition had been filed prior to any proceedings in the state court case.

Although there are no reported cases concerning whether the trial had commenced in the instant case within the meaning of the removal statute, in other contexts virtually all cases in all jurisdictions have held that trial commences when the veniremen are called to be examined concerning their qualifications. See, e. g., Hopt v. Utah, 110 U.S. 574, 578, 4 S.Ct. 202, 28 L.Ed. 262 (1884); Vecki v. Sorensen, 171 Cal.App.2d 390, 340 P.2d 1020 (1959); Kadota v. City and County of San Francisco, 166 Cal.App.2d 194, 333 P.2d 75 (1958). In Kadota, supra, the court stated that its holding “that the impanelment of the jury is a part of the trial not only comports with the common understanding among lawyers and judges, but finds support in the rulings of the courts of other jurisdictions in a variety of circumstances.” 166 Cal.App.2d at 195, 333 P.2d at 76 (with numerous citations).

In State of South Carolina v. Moore, 447 F.2d 1067 (4 Cir. 1971), the court expressed discomfort with its decision in that case that Moore’s state court conviction was void because his removal petition had been filed less than an hour before any proceedings had commenced in state court:

“We are concerned that this construction of § 1446 makes it susceptible to substantial abuse by individuals seeking to interrupt or delay state trials. ... It permits one wishing to delay a state trial to do so, even though his removal petition is subsequently found to be frivolous.” Id. at 1074.

It was just such an abuse of § 1446 that the court below was avoiding in holding that petitioner’s petition was untimely when filed during the second day of the empanelling of the jury in the state court trial, particularly since the court found no valid reason for petitioner’s delay in filing.

In support of its strict construction of § 1446(c), the court in Biscup v. People, 129 F.Supp. 765 (W.D.N.Y.1955) stated: “The right of removal being in derogation of state sovereignty, should not be enlarged beyond what is definite and free from ambiguity, McCaffrey v. Wilson Co., D.C., 10 F.2d 368.” Id. at 767. Strict construction, common usage, and avoidance of abuse of the removal statute all support the district court’s interpretation of “before trial” as meaning “before proceedings for empanelling the jury.” Petitioner’s removal petition was therefore untimely.

Petitioner, however, contends that the district court’s failure to give him notice of the proposed dismissal and an opportunity to present arguments in opposition denied him the “essence of our judicial system”, citing People v. Pobuta, 437 F.2d 1200 (9 Cir. 1971). Pobuta, supra, is inapposite, however, because in that case the district court summarily and without notice dismissed a removal petition on the merits. This court held that the district court had thereby deprived the petitioner of “the ‘essence of our judicial system’ — ‘the right to a hearing on the merits of a claim over which the court has jurisdiction.’ ” Id. at 1200 (emphasis added). In the present case, the petition was untimely and the district court was therefore without jurisdiction to decide the merits. Summary dismissal was the proper course of action.

In Moore, supra, the court stated with respect to “eleventh hour” removal petitions: “The problem is not acute if the state court is sitting where a federal judge is readily available, the removal petition is promptly brought to his attention, he recognizes it as an attempt to delay or disrupt the state court proceedings and promptly files a remand order.” 447 F.2d at 1074 n. 23. The district court below expressed similar sentiments in denying both the Rule 60 motion and the petition for a writ of habeas corpus with respect to the attempted removal by the petitioner long after the “eleventh hour.”

The judgment of the district court is affirmed.

      . The Clerk’s record from the district court in Appeal No. 74-2593 was captioned as above. The district court order denying Walker relief under Rule 60 was captioned as set forth above.


text:
    Donna SANZ, Administratrix of the Estate of Jacqueline Kautzman, Deceased, and Dean A. Fischer, Administrator of Estates of Duane G. Fischer and Judith Fischer, Deceased, Plaintiffs and Appellants, v. RENTON AVIATION, INC., and Pleasure Fund Management Co., Inc., et al., Defendants and Appellees, Ralph Kautzman, Executor of the Estate of Matthew L. Kautzman, Deceased, Third-party Plaintiff and Appellee, National Insurance Underwriters, Third-party Defendant and Appellee.
    No. 73-2787.
    United States Court of Appeals, Ninth Circuit.
    Feb. 7, 1975.

      Dexter A. Washburn (argued), Seattle, Wash., for plaintiffs and appellants.
    Harold D. Johnson (argued), for Helsell, Paul, Fetterman, Todd & Hokanson, Seattle, Wash., for defendants and appellees.
    Before CHOY and GOODWIN, Circuit Judges, and BURNS, District Judge.

       The Honorable James M. Burns, United States District Judge for the District of Oregon, sitting by designation.

   OPINION

PER CURIAM:

Sanz and Fischer, personal representatives of the estates of persons killed in a light-plane crash, appeal the judgment of the district court in favor of the aircraft-rental company. The court found that the sole and proximate cause of the crash was pilot error, and that defendant Renton Aviation was not negligent in any respect causally related to the accident. We affirm.

The court found the sole proximate cause to be “the careless and reckless operation of the aircraft by the deceased, Mr. Kautzman, operating the aircraft during the nighttime when he was not competent to do so * * *.” It also found that the pilot’s failure to maintain normal flight was the result of his inability to cope with the absence of a visual natural horizon.

The limited record before us on appeal supports the conclusion of the trial court. The aircr.aft-rental agreement expressly prohibited night flight, and Renton Aviation personnel told the pilot that the plane was to be operated during daylight hours only.

The plaintiffs assert that Kautzman was not currently qualified to fly passengers even in daylight by reason of certain deficiencies in his flight experience apart from his total lack of night flying experience. The plaintiffs then argue that Kautzman’s pilot-in-command deficiencies could have been discovered by greater diligence on the part of the rental company’s agents, and that the failure to make the proper inquiries was negligence, both as a matter of law and as a matter of fact on the evidence in this case.

We do not reach the question of the degree of interrogation and documentation required of prospective renters to satisfy a rental company’s duty of care to persons likely to be harmed by the failure of the pilot to exercise due care. Here, the trier found, on a record which makes the finding not clearly erroneous, that pilot error was the sole cause of the harm to the passengers. That being the case, it is immaterial whether in some respect not shown to be a proximate cause of the crash, one or more acts or omissions of the rental agency may have constituted a breach of some duty.

Alternatively, plaintiffs argue that even if the pilot’s negligence was the sole proximate cause of the accident they may recover from Renton Aviation under a theory that the Federal Aviation Act of 1958, 49 U.S.C. § 1301 et seq., makes Renton Aviation liable without fault as an “operator”. The plaintiffs contend that the owner-lessor of an aircraft violates the law whenever a user violates the law, and therefore the plaintiffs have a cause of action against the owner for any injuries resulting from the negligent operation of the aircraft by the pilot-lessee. This argument is somewhat like the family-purpose doctrine in automobile cases. But it is based upon the following statutory and regulatory provisions:

49 U.S.C. § 1301(26):
“ ‘Operation of aircraft’ or ‘operate aircraft’ means the use of aircraft, for the purpose of air navigation and includes the navigation of aircraft. Any person who causes or authorizes the operation of aircraft, whether with or without the right of legal control (in the capacity of owner, lessee, or otherwise) of the aircraft, shall be deemed to be engaged in the operation of aircraft within the meaning of this chapter.”
49 U.S.C. § 1430(a):
“It shall be unlawful—
<< * * *
“(5) For any person to operate aircraft in air commerce in violation of any other rule, regulation, or certificate of the Administrator under this subchapter * * *.”
14 C.F.R. § 91.9:
“No person may operate an aircraft in a careless or reckless manner so as to endanger the life or property of another.”

We are not persuaded that Congress intended the quoted statutes to be pieced together to create a federal cause of action in favor of all members of the public who suffer injury, from whatever cause, through the use of a rented aircraft. We distinguish Gabel v. Hughes Air Corp., 350 F.Supp. 612, 615 (C.D.Cal. 1972), where the violation of the statutory duty by Hughes, a common carrier, caused the injury.

Had Congress desired that civil liability be extended to nonnegligent owners when a user was shown to have flown recklessly, it could have expressly so provided. The public policy underlying the Act which might support the implication of such a civil remedy is that pertaining to the “promotion of safety in air commerce”. 49 U.S.C. § 1302(e). “Safety”, however, would not be greatly advanced by holding liable as an insurer a non-negligent owner-lessor. Where the negligence of a pilot not in an agency relationship with the owner is the sole cause of the accident, there is no reason to impose no-fault liability upon the owner. If the owner negligently entrusts the aircraft, that is another matter. In the trial below, the plaintiffs failed to plead and prove negligence in entrusting the leased aircraft to an unqualified pilot.

We hold that Congress, in enacting 49 U.S.C. § 1301(26), merely intended to subject owners equally with pilots to the rules, regulations, and penalties provided in the Act, and not to make them civilly responsible for pilot-lessee negligence. Lockwood v. Astronautics Flying Club, Inc., 437 F.2d 437, 439 (5th Cir. 1971); see McCord v. Dixie Aviation Corp., 450 F.2d 1129, 1130-31 (10th Cir. 1971).

The judgment is affirmed.


text:
    David STIRLING, Jr., and William G. Stirling, Plaintiffs-Appellants, v. CHEMICAL BANK, Individually, and as agent, et al., Defendants-Appellees. David STIRLING, Jr., and William G. Stirling, Plaintiffs-Appellants, v. UNION PLANTERS NATIONAL BANK OF MEMPHIS et al., Defendants-Appellees.
    Docket No. 75-7006.
    United States Court of Appeals, Second Circuit.
    Argued Jan. 28, 1975.
    Decided Feb. 11, 1975.
    Feldshuh & Frank, New York City (Sidney Feldshuh, Richard M. Kraver, New York City, of counsel), for plaintiffs-appellants.
    Cravath, Swaine & Moore, New York City, for defendants-appellees Chemical Bank, Frank Beattie, John J. Irish and Paavo Prima.
    Bleakley, Platt, Schmidt & Fritz, New York City (Phillips, Lytle, Hitchcock, Blaine & Huber, Buffalo, N. Y., of counsel), for defendants-appellees Marine Midland Bank — Western and Marine Midland Bank — Rochester.
    Townley, Updike, Carter & Rodgers, New York City (Nixon, Hargrave, Devans & Doyle, Rochester, N. Y., of counsel), for defendant-appellee Lincoln First Bank of Rochester.

      Milbank, Tweed, Hadley & McCloy, New York City, for defendants-appellees Chase Manhattan Bank and First National State Bank of New Jersey.
    Debevoise, Plimpton, Lyons & Gates, New York City (Samuel E. Gates, Bernard J. Bonn III, New York City, of counsel), for defendants-appellees Union Commerce Bank and Union Planters Nat. Bank.
    Before KAUFMAN, Chief Judge, and MANSFIELD and OAKES, Circuit Judges.
   PER CURIAM:

By decision dated September 30, 1974, Judge Dudley B. Bonsai of the Southern District of New York granted motions dismissing with prejudice plaintiffs-appellants’ claims against defendants-appellees in several related stockholders’ class actions, except that common law fraud claims against defendant Union Commerce Bank were dismissed without prejudice (72 Civ. 4476). In another action (74 Civ. 66) a similar complaint was dismissed with leave to file an amended complaint with respect to certain diversity common law fraud claims against Union Planters National Bank. On November 8, 1974, orders were filed accordingly, and on November 11, 1974, judgment was entered on the order in 72 Civ. 4476. On December 2, 1974, an amended complaint was filed against Union Planters National Bank in 74 Civ. 66.

No notices of appeal from Judge Bonsai’s orders were filed by plaintiffs until December 19, 1974, which was 41 days after entry of the order appealed from in 74 Civ. 66 and 38 days after entry of the order in 72 Civ. 4776. Since the notices were not filed within the 30-day period mandated by Rule 4(a), F.R.A.P., defendants promptly moved to dismiss the appeals on the ground that this court lacks jurisdiction to entertain them. See, e. g., United States v. Robinson, 361 U.S. 220, 80 S.Ct. 282, 4 L.Ed.2d 259 (1960); Graddy v. Bonsal, 375 F.2d 764 (2d Cir. 1967); Guido v. Ball, 367 F.2d 882 (2d Cir. 1966). Appellants argue, however, that undisputed circumstances attested to by their counsel demonstrate that there was the substantial equivalent of timely filing, which should suffice. They urge that a literal, rigorous adherence to the formalistic requirements of Rule 4(a) would work a manifest injustice, in view of the positive steps taken by them to file within the prescribed 30-day period. See, e. g., Alley v. Dodge Hotel, 501 F.2d 880 (D.C.Cir. 1974); Crump v. Hill, 104 F.2d 36 (5th Cir. 1939). In the alternative, appellants urge that since the circumstances surrounding the late filing amount to “excusable neglect” as that term is used in Rule 4(a), they should be granted an extension of time nunc pro tunc, which would validate the December 19 filing as timely.

The circumstances relied upon by appellants are as follows: On December 6, 1974, copies of notices of appeal were served by appellants upon appellees’ counsel and, on the morning of December 10, 1974, within 30 days after the entry of judgment in 72 Civ. 4476, notices were presented to the Clerk of the District Court by appellants’ representative, American Clerical Service (“ACS”), for filing, which was refused by the Clerk because of failure to tender the prescribed filing fees. Thereupon appellants’ counsel authorized ACS, still on the morning of December 10, to advance the filing fees and was unequivocally assured by ACS that the notices of appeal would be filed that morning. However, ACS failed to file the notices. When appellants’ counsel discovered this later in December, he filed them on December 19.

Although the foregoing circumstances, if not disputed, may well have entitled appellants to an extension of time on grounds of excusable neglect, they do not satisfy the timeliness requirement of Rule 4(a), which is “mandatory and jurisdictional,” United States v. Robinson, 361 U.S. 220, 224, 80 S.Ct. 282, 4 L.Ed.2d 259 (1960); Federal Deposit Ins. Corp. v. Congregation Poiley Tzedeck, 159 F.2d 163, 165-66 (2d Cir. 1946). Were appellants pro se litigants we might be inclined toward a liberal interpretation of their unsuccessful filing efforts, see Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972), in view of the pro se litigant’s unfamiliarity with procedural requirements. See, e. g., Alley v. Dodge Hotel, supra. However, appellants were represented by experienced legal counsel, whose duty it was to protect his clients by seeing that the important filing deadline would be met. That deadline is not satisfied by service of a notice of appeal upon other parties, Federal Deposit Ins. Corp. v. Congregation Poiley Tzedeck, 159 F.2d 163, 166 (2d Cir. 1946), nor is the deadline extended by the untimely filing of a motion to amend or alter the judgment, 9 Moore’s Federal Practice ¶ 204.12[2], p. 955 (1973 ed.), i. e., after the 10-day period prescribed by Rule 59(e), F.R.Civ.P., for filing such a motion, which cannot be enlarged, see Rule 6(b), F.R.Civ.P.; Spurgeon v. Delta Steamship Lines, Inc., 387 F.2d 358 (2d Cir. 1967); 9 Moore’s Federal Practice ¶ 204.12[1], pp. 951-52 (1973 ed.).

Appellants’ plea for an extension of time nunc pro tunc to December 19 is addressed to the wrong forum. Rule 4(a) authorizes the district court, not the court of appeals, upon a showing of excusable neglect, to grant an extension of not more than 30 additional days beyond the expiration of the original 30-day period for filing. Rule 26(b), F.R.A.P., furthermore, provides that a court of appeals “may not enlarge the time for filing a notice of appeal”. See Alabama Labor Council, AFL-CIO P. E. U. Loc. No. 1279 v. Alabama, 453 F.2d 922, 925 (5th Cir. 1972); 9 Moore’s Federal Practice ¶ 226.02 [2] (1973 ed.).

Appellees contend that it is now too late for appellants to obtain such an extension of time from the district court, since they failed to move within the additional 30-day period during which the time might have been extended. In the absence of unusual circumstances we would agree. For instance, if appellants, during the 30-day period following expiration of the time for filing a notice of appeal, had neither filed a notice of appeal nor moved in the district for an extension of time, no jurisdictional basis would exist for the district court to grant an extension of time nunc pro tunc and dismissal of a notice of appeal filed more than 60 days after entry of judgment would be mandated. See Edwards v. Doctors Hospital Inc., 242 F.2d 888, 891 (2d Cir. 1957), cert. denied, 356 U.S. 930, 78 S.Ct. 770, 2 L.Ed.2d 761 (1958). Here, however, the filing of the notice of appeal within 60 days, coupled with a prima facie showing of excusable neglect, and the timely service of the notice of appeal on the opposing parties, constituted a sufficient manifestation on the part of the appellants to permit the district court, in the exercise of its discretion, to treat the notice of appeal as the substantial equivalent of a motion to extend the time because of excusable neglect. See Evans v. Jones, 366 F.2d 772 (4th Cir. 1966); Reed v. People of State of Michigan, 398 F.2d 800 (6th Cir. 1968). Nothing in Rule 4(a) precludes the district court, more than 60 days after entry of judgment, from granting an extension of time to sanction the late filing of a notice of appeal within the second half of the 60-day period, provided a purported notice of appeal has actually been filed within that period. See C-Thru Products Inc. v. Uniflex, Inc., 397 F.2d 952, 954—55 (2d Cir. 1968); Pasquale v. Finch, 418 F.2d 627, 629 (1st Cir. 1969).

Although we thoroughly disapprove of the careless procedure followed by appellants’ counsel, who demonstrated a singular disregard for or ignorance of the pertinent rules, we will remand the case, in view of the showing made, to the district court for the purpose of determining whether there was excusable neglect entitling appellants, in the district court’s discretion, to an extension of time nunc pro tunc to December 19, 1974, for the filing of their notices of appeal. If the district court should so find, the notice filed on that date will be deemed valid as to all appellants except Union Planters National Bank. Otherwise the appeals in 72 Civ. 4476 must be dismissed.

The purported appeal from the order dismissing the complaint against Union Planters National Bank in 74 Civ. 66 must in any event be dismissed for the reason that the order appealed from is not final, since plaintiffs, acting pursuant to leave granted by the district court, filed an amended complaint setting forth their claims based on common law fraud. See 9 Moore’s Federal Practice ¶ 110.13 [1], pp. 152-53 (1973 ed.); id. at ¶ 110.09, p. 127.

      . The record in that case reveals that the notice of appeal was filed more than 60 days after judgment was entered.


author: HILL, Circuit Judge.

text:
    James Allen BUDDE, Plaintiff-Appellant, v. LING-TEMCO-VOUGHT, INC., d/b/a Kentron Hawaii, Ltd., et al., Defendants-Appellees.
    No. 74-1146.
    United States Court of Appeals, Tenth Circuit.
    March 6, 1975.

      Edmond R. Eberle, New Orleans, La., for plaintiff-appellant.
    Johnson, Paulantis & Lanphere, Albuquerque, N. M., for defendants-appellees.
    Before LEWIS, Chief Judge, and HILL and McWILLIAMS, Circuit Judges.
   HILL, Circuit Judge.

This appeal results from the trial court’s quashing service and dismissing appellant’s claim because jurisdiction was lacking.

Appellant Budde was injured on September 27, 1970, in the Republic of South Vietnam, while allegedly a passenger in a jeep driven by Jessie Francis. Appellant claims the accident was caused by Francis’ negligent operation of the vehicle. Francis was employed by Ken-tron Hawaii, Ltd. (Kentron), a subsidiary of LTV Aerospace Corporation (LTV Aerospace), which is a subsidiary of The LTV Corporation (LTV). For many months after the accident, appellant had no recollection of the occurrence. On September 22, 1971, appellant obtained a military accident report which provided some information concerning the accident. On September 27, 1972, appellant filed suit in the Eastern District of Louisiana against Francis, Ling-Temco-Vought, Inc., d/b/a Kentron, and its insurer, Insurance Company of North America. On March 11, 1974, the trial court dismissed that suit because of Louisiana’s one-year statute of limitations and the Fifth Circuit affirmed the dismissal. Budde v. Insurance Co. of North America, 502 F.2d 783 (5th Cir. 1974).

Fearing that dismissal and desiring to take advantage of New Mexico’s three-year statute of limitations, appellant filed this action on August 6, 1973, in the United States District Court for the District of New Mexico. Service of process was made on the Corporation Company, the statutory agent for LTV Aerospace. LTV Aerospace does business in New Mexico. The complaint alleges appellant is a Louisiana citizen and appellees are New Mexico citizens. On September 4, 1973, appellees entered a special and limited appearance and filed a motion to quash purported service of process on the corporate appellees, to quash issuance of summons as to Francis, and to dismiss the complaint because of lack of jurisdiction over the persons. To support their motion, appellees submitted affidavits which indicate LTV is a Delaware corporation with principal offices in Texas, and Kentron is a Hawaii corporation with principal offices there.

The record of proceedings indicates the court sent a letter dated October 18, 1973, to counsel stating that the case would be dismissed on November 1, 1973, if something was not done on it. On October 29, 1973, appellant requested a 60-day extension to obtain affidavits, interrogatories, depositions, etc., for use in opposing appellees’ motions; the trial judge granted a 30-day extension from October 30, 1973. Appellant, on November 30, 1973, filed with the court and mailed to opposing counsel interrogatories concerning the three corporations’ inter-relationships. On January 9, 1974, before answers to the interrogatories had been filed, the trial court granted appellees’ motion to quash service and to dismiss the complaint for lack of jurisdiction.

On appeal, appellant contends the district court unjustly and erroneously deprived appellant of discovery which would have shown the court that it had personal jurisdiction over the appellees. When a defendant moves to dismiss for lack of jurisdiction, either party should be allowed discovery on the factual issues raised by that motion. The trial court, however, is vested with broad discretion and should not be reversed unless discretion is abused. H. L. Moore Drug Exch., Inc. v. Smith, Kline & French Labs., 384 F.2d 97 (2nd Cir. 1967).

We do not believe the trial court abused its discretion here. The court had granted appellant 30 additional days to obtain affidavits, interrogatories, depositions, etc.; the court order dismissing the complaint was filed several weeks after the 30-day extension expired. During this period of time, appellant filed and mailed a set of interrogatories and filed a memorandum and addendum in opposition to the appellees’ motions. No affidavits were filed; one deposition taken in the Louisiana litigation was attached to the memorandum.

An appellate court will not interfere with the trial court’s exercise of its discretion to control its docket and dispatch its business . . except upon the clearest showing that the procedures have resulted in actual and substantial prejudice to the complaining litigant.

Eli Lilly & Co. v. Generix Drug Sales, Inc., 460 F.2d 1096 (5th Cir. 1972).

We do not feel that the trial court’s procedures caused any prejudice to the appellant. Implicit in the trial court’s order quashing service and dismissing the complaint for lack of jurisdiction is a determination ' that further discovery would not demonstrate facts sufficient to constitute a basis for personal jurisdiction in New Mexico over the appellees in this case. Appellant claimed service on LTV Aerospace under New Mexico’s foreign corporation process statute provided jurisdiction over LTV and Kentron which were not directly doing business in New Mexico.

The issue presented here can be stated as follows: Would LTV and Ken-tron (assuming arguendo they were engaging in business in New Mexico under alter ego or agency theories) be subject to process under New Mexico law for a cause of action not arising from the corporation’s New Mexico activities? This issue statement recognizes that in diversity cases state law determines whether a corporation is subject to process in the state and federal decisions determine only if the state law is constitutional. Litvak Meat Co. v. Baker, 446 F.2d 329 (10th Cir. 1971); Walker v. General Features Corp., 319 F.2d 583 (10th Cir. 1963). The relevant New Mexico statute, N.M. Stat.Ann. § 21-3-6 (1970), does not specifically provide that foreign corporations are made subject to process for causes of action not resulting from the corporations’ activities in New Mexico; we have not located a New Mexico decision providing a direct answer to the question.

Since Perkins v. Benguet Consol. Mining Co., 342 U.S. 437, 72 S.Ct. 413, 96 L.Ed. 485 (1952), it has been clear that federal due process does not prohibit a state from assuming jurisdiction to enforce a cause of action not arising out of a corporation’s activities within the state. The Supreme Court, however, indicated a preferential construction of foreign corporation process statutes which excludes their operation if the cause of action does not arise out of business done by the corporation in the state. E. g., Morris & Co. v. Skandinavia Ins. Co., 279 U.S. 405, 49 S.Ct. 360, 73 L.Ed. 762 (1929); Louisville & N. R.R. v. Chatters, 279 U.S. 320, 49 S.Ct. 329, 73 L.Ed. 711 (1929).

The trial judge apparently determined § 21-3-6 did not extend to causes of action not arising out of business done by the corporation in New Mexico. The view of a federal district judge concerning the unsettled law of his state is given great weight and credence by this Court. E. g., Sade v. Northern Natural Gas Co., 501 F.2d 1003 (10th Cir. 1974); United States v. Hershberger, 475 F.2d 677 (10th Cir. 1973). Giving that view great weight and considering the Supreme Court’s preferential construction, we cannot say that § 21-3-6 extends to causes of action not arising out of corporations’ New Mexico business. Consequently, further discovery would not have aided appellant in seeking to establish jurisdiction.

We note that the record does not contain an order dismissing the action; an order dismissing a complaint is not an appealable order. E. g., Smith v. Serna, 367 F.2d 324 (10th Cir. 1966). However, the order does grant the motion to quash service and that order is appealable. Rosenberg Bros. & Co. v. Curtis Brown Co., 260 U.S. 516, 43 S.Ct. 170, 67 L.Ed. 372 (1923); Edwin Raphael Co. v. Maharam Fabrics Corp., 283 F.2d 310 (7th Cir. 1960).

Affirmed.

      . A similar suit was also filed in a federal district court in Florida. Appellant states jurisdictional attacks also have been made in Florida.

      . Although all appellees were alleged to be New Mexico citizens, the appellant states in his brief that Jessie Francis’ whereabouts have never been learned. Appellant indicated, in his trial memorandum, a willingness to amend the complaint to set forth the principal offices and states of incorporation of the corporate appellees and to allege their doing business in New Mexico.

      . N.M.Stat.Ann. § 21-3-6 (1970). “Process against foreign corporations.—
      “A. In all personal actions brought in any court of this state against any foreign corporation, process may be served upon any officer, director or statutory agent of the corporation, either personally or by leaving a copy thereof at his dwelling house or usual place of abode, or by leaving a copy at the office or usual place of business of the foreign corporation.
      “B. If no person has been designated by a foreign corporation doing business in this state as its statutory agent upon whom service of process can be made, or, if, upon diligent search, neither the agent so designated nor any of the officers or directors of the foreign corporation can be found in the state, then, upon the filing of an affidavit to that effect by the person to whom the process has been delivered for service in the office of the secretary of state, together with service upon the secretary of state of a duplicate copy of the process in the cause, the secretary of state shall accept service of process as the agent of the foreign corporation, but the service is not complete until a fee of five dollars ($5.00) is paid to the secretary of state by the plaintiff in the action.
      “C. Upon receipt of the process and fee, the secretary of state shall forthwith give notice by telegraph, charges prepaid, to the foreign corporation at its principal place of business outside the state of the service of the process, and shall forward to that office by registered or certified mail a copy of the process. Where the secretary of state has no record of the principal office of the foreign corporation outside the state, he shall forward the copy of the process to the places designated as its principal office in an affidavit filed with the secretary of state by the plaintiff in the suit or by his attorney.
      “D. The foreign corporation served as provided in this section shall appear and answer within thirty [30] days after the secretary of state gives the notice. The certificate of the secretary of state, under his official seal, of the service is competent and sufficient proof thereof.
      “E. The secretary of state shall keep a record of all process served on him as provided for in this section, and of the time of the service and of his action in respect thereto.
      “F. Any foreign corporation engaging in business in this state, either in its corporate name or in the name of an agent, without having first procured a certificate of authority or otherwise become qualified to engage in business in this state shall be deemed to have consented to the provisions of this section.”
      Appellant does not argue to this Court the possible applicability of N.M.Stat.Ann. §21-3-16, New Mexico’s long arm statute. In the trial court, appellant stated in his “Memorandum in Opposition to Motion to Dismiss” that “[c]ontrary to defendants’ assertions, plaintiff is not asserting that this court has jurisdiction over The LTV Corporation as a result of the New Mexico ‘long arm statute.’ ” That statute, however, would not avail appellant either because the tort here occurred outside New Mexico.

      . N.M.Stat.Ann. § 51-30-10 (Supp.1973) is another statute dealing with service of process on foreign corporations. It does not mention out-of-state causes of action. Section 51-30-10 provides: “The registered agent appointed by a foreign corporation authorized to transact business in this state shall be an agent of the corporation upon whom any process, notice or demand required or permitted by law to be served upon the corporation may be served. Nothing in this section limits or affects the right to serve any process, notice or demand, required or permitted by law to be served upon a corporation in any other manner now or hereafter permitted by law.”


text:
    John W. and Edith GARRETT, Movant-Intervenors-Appellants, v. UNITED STATES of America and R. H. Kloosterman, Special Agent, Internal Revenue Service, Petitioners-Appellees, United California Bank and Steve Ahrahamson, Operations Manager, Respondents-Appellees.
    No. 74-2281.
    United States Court of Appeals, Ninth Circuit.
    Feb. 21, 1975.

      Jack R. White, of Hill, Farrer & Bur-rill (argued), Los Angeles, Cal., for appellants.
    Alfred S. Lombardius (argued), of Tax Div., Dept, of Justice, Washington, D. C., for appellees.

       The Honorable Gus J. Solomon, United States District Judge for the District of Oregon, sitting by designation.

   OPINION

Before KOELSCH and KILKENNY, Circuit Judges, and SOLOMON, District Judge.

PER CURIAM:

Taxpayers appeal from interrelated orders of the district court which deny them permission to intervene in an action by the Internal Revenue Service seeking to enforce a summons to taxpayers’ bank requiring production of bank records relevant to a determination of taxpayers’ tax liability.

The district court’s denial of intervention was proper — this case is virtually on all fours with Donaldson v. United States, 400 U.S. 517, 91 S.Ct. 534, 27 L.Ed.2d 580 (1970). The intervene in a summons enforcement proceeding against a third party, taxpayers must, under Donaldson, demonstrate they have a “significantly protectable interest.” 400 U.S. at 531, 91 S.Ct. 534. Even so, intervention is permissive only, and the district court will be reversed only for abuse of discretion. United States v. Luther, 481 F.2d 429, 433 (9th Cir. 1973). None was here committed. .

Several of the grounds of intervention raised by taxpayers’ proposed answer are identical to those found insufficient to warrant intervention in Donaldson, and are likewise insufficient here. The addition of conclusory allegations, carefully tailored to the language of Donaldson, that a recommendation for prosecution has, or should have, been made, and that the government already possesses the evidence sought by the summons, does not alter the result.

The rationale of Donaldson, that intervention absent a showing of a “significantly protectable interest” should not be allowed to frustrate administration of the tax laws while statutes of limitation are running, see United States v. Newman, 441 F.2d 165, 172-73 (5th Cir. 1971), is equally applicable to taxpayers’ additional allegations, particularly as the taxpayers have offered nothing factually to support them. Such allegations are easily made. The court was not required to allow intervention, and the attendant discovery procedures necessary to support the allegations, to delay the investigation into taxpayers’ tax liabilities, because, as the Court pointed out in Donaldson, “the taxpayer, to the extent that he has such a protect-able interest, as, for example, by way of privilege, or to the extent he may claim abuse of process, may always assert that interest or that claim in due course at its proper place in any subsequent trial. Cf. United States v. Blue, 384 U.S. 251, 86 S.Ct. 1416, 16 L.Ed.2d 510 (1966).” Cf. United States v. Miller, 500 F.2d 751 (5th Cir. 1974); United States v. Oaks, 360 F.Supp. 855 (C.D.Cal.1973).

Likewise, resolution of taxpayers’ Fourth and Fifth Amendment objections to the summons founded on the Bank Secrecy Act, Act of October 26, 1970, P.L. 91-508, 84 Stat. 1114, if not already foreclosed by California Bankers Ass’n v. Shultz, 416 U.S. 21, 94 S.Ct. 1494, 39 L.Ed.2d 812 (1974); Couch v. United States, 409 U.S. 322, 93 S.Ct. 611, 34 L.Ed.2d 548 (1973), and Donaldson, may await future attempt of the government to use the evidence produced in response to the summons. Particularly in light of the slim probability of successfully challenging the production of the bank’s records on Fourth and Fifth Amendment grounds after Couch and California Bankers Ass’n, see Miller, supra, 500 F.2d at 756-57, it was not an abuse of discretion not to permit intervention to litigate the issue here.

Judgment affirmed.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. Lorna Jean LAIRD, Defendant-Appellant.
    No. 74-2820.
    United States Court of Appeals, Ninth Circuit.
    March 10, 1975.
    James M. Wilkes (argued), Tucson, Ariz., for defendant-appellant.
    Bruce R. Heurlin, Asst. U. S. Atty. (argued), Tucson, Ariz., for plaintiff-appellee.
    Before HUFSTEDLER, WALLACE and SNEED, Circuit Judges.
   OPINION

PER CURIAM:

Laird appeals from her conviction for possessing marijuana with intent to distribute in violation of 21 U.S.C. § 841(a)(1). The single issue raised on this appeal is whether her motion to suppress was properly denied. We affirm.

Laird’s vehicle was stopped by Customs and Border Patrol officers after it had apparently tripped a sensor device on a narrow road near the Mexican border. A short dirt extension from the road led to a large hole in the border fence. The signal from the sensor while Laird’s vehicle was near the border by itself could give rise to founded suspicion sufficient for a stop. United States v. Mora-Chavez, 496 F.2d 1181, 1182 (9th Cir. 1974). Here there was much more.

Once legally stopped, additional articulable facts may develop for the founded suspicion to grow into probable cause. United States v. Bugarin-Casas, 484 F.2d 853, 854 (9th Cir. 1973), cert. denied, 414 U.S. 1136, 94 S.Ct. 881, 38 L.Ed.2d 762 (1974). In this case, the odor of marijuana emanating from the trunk of Laird’s vehicle provided the requisite probable cause for a search. Fernandez v. United States, 321 F.2d 283, 286-87 (9th Cir. 1963).

Laird contends, however, that the officer had decided to make the search before the marijuana was smelled; thus, the odor cannot be considered in determining whether there was probable cause. She relies on the following language from United States v. Davis, 482 F.2d 893, 896-97 (9th Cir. 1973), quoting from Lustig v. United States, 338 U.S. 74, 78, 69 S.Ct. 1372, 93 L.Ed. 1819 (1949) (plurality opinion):

A search begins with the planning of the invasion and continues “until effective appropriation” of the fruits of the search “for subsequent proof of an offense.”

But that language, in context, was directed to the question of whether the United States was sufficiently involved in a program of searches to subject a search thereunder to the limitations of the Fourth Amendment. It is not authority for the proposition asserted by Laird. Rather, our language in United States v. Bugarin-Casas, supra, is controlling:

The fact that the agents were intending at the time they stopped the car to search it in any event — generally the sort of search held unconstitutional in Almeida-Sanchez v. United States, supra [413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596], — does not render the search, supported by independent probable cause, invalid.

484 F.2d at 854 n. 1 (citations omitted). At the time the search began, there was probable cause and, therefore, the district court properly denied the motion to suppress.

Affirmed.


author: THOMSEN, Senior District Judge:

text:
    EMPLOYEES PROTECTIVE ASSOCIATION et al., Appellants, v. NORFOLK AND WESTERN RAILWAY COMPANY et al., Appellees.
    No. 74-1577.
    United States Court of Appeals, Fourth Circuit.
    Argued Dec. 6, 1974.
    Decided Feb. 24, 1975.

      William G. Anderson, Roanoke, Va., and George V. Gardner, Washington, D. C. (Gardner & Armbrister, Washington, D. C., on brief), for appellants.
    Harold A. Ross, Cleveland, Ohio (Ross & Kraushaar Co., Cleveland, Ohio, and G. Marshall Mundy, Roanoke, Va., on brief), for appellee Brotherhood of Locomotive Engineers.
    Martin M. Lucente, Chicago, 111. (William B. Poff, Bayard E. Harris, Woods, Rogers, Muse, Walker & Thornton, Roanoke, Va., and Sidley & Austin, Chicago, 111., on brief), for appellee Norfolk and Western Railway Co.
    Before BOREMAN, Senior Circuit Judge, WIDENER, Circuit Judge, and THOMSEN, Senior District Judge.
   THOMSEN, Senior District Judge:

Appellants (plaintiffs), seventy-two locomotive engineers employed by the Norfolk and Western Railway Company (N&W) and an ad hoc unincorporated association, brought suit in the district court against N&W, the Brotherhood of Locomotive Engineers (BLE) and Special Board of Adjustment No. 813. Plaintiffs challenged an award of Board No. 813 on the ground that it had acted outside the scope of its jurisdiction. They claimed that federal jurisdiction for such limited review of the award exists under the Railway Labor Act, 45 U.S.C. § 151 et seq., particularly § 153 First (q) and Second, and also under 28 U.S.C. § 1337, as an action arising under a law regulating commerce, namely, the Railway Labor Act, or the Interstate Commerce Act, 49 U.S.C. § 5, or both. The district court concluded that it had no jurisdiction to review the award and dismissed the suit.

“The district courts shall have original jurisdiction of any civil action or proceeding arising under any Act of Congress regulating commerce or protecting trade and commerce against restraints and monopolies.”

I

The dispute stems from the merger of the Virginian Railway Company (Virginian) into N&W. Application for approval of that merger was filed with the Interstate Commerce Commission (ICC) in April 1959 and was granted in October 1959. In anticipation of such approval the two carriers, in June 1959, entered into an Agreement for Protection of Employees with the Railway Labor Executives Association (RLEA), acting on behalf of its constituent organizations, which included BLE. The pertinent provision of that agreement is set out in the margin..

In 1962 N&W sought ICC approval of a second merger, with the New York, Chicago and St. Louis Railroad (Nickel Plate). Since the 1959 Agreement would not protect N&W employees (including former Virginian employees) from consequences attributable to the Nickel Plate merger, RLEA and the two carriers entered into an Agreement for Protection of Employees, which included an arbitration provision, set out in the margin.

As a result of the 1962 Agreement N&W employees were subject to two different sets of merger-protective provisions, the applicable protection depending upon whether the adverse employment effect could be traced to the Virginian or the Nickel Plate merger. Therefore, a Memorandum of Understanding was executed, which provided, inter alia, that the arbitration provisions of the 1962 Agreement would be controlling.

In September 1972 N&W proposed that the “road seniority rosters for engineers, firemen, conductors and brakemen on the Norfolk Division districts be merged and dovetailed appropriately according to seniority dates in order to effectuate a completely integrated operation”. BLE opposed that proposal. Meetings were held in September and October 1972, with representatives of all of the operating employees in attendance. BLE negotiated independently with N&W. When they failed to reach an agreement, N&W, on October 17, 1972, served a demand and notice to establish an arbitration committee pursuant to the 1962 Agreement (see n. 4, above), and by letter dated October 26, 1972, called upon the National Mediation Board to appoint a neutral.

BLE contended that the matter was not arbitrable. It requested the National Mediation Board to deny N&W’s application for the creation of a board and appointment of a neutral, arguing that the dispute does not involve the mere interpretation and application of a collective bargaining agreement, but “a question of law, which an arbitrator lacks the power to decide”. N&W responded, challenging BLE’s objections. On February 2, 1973, the National Mediation Board created Special Board of Adjustment No. 813 and appointed a neutral member thereto. The Mediation Board noted BLE’s objection and in its letter appointing the neutral stated: “This appointment is made without prejudice to the right of the Organization to argue such threshold issues as it deems appropriate in support of its position. Decisions involving disposition of this dispute are within the jurisdiction of the Special Board of Adjustment.”

Board No. 813 convened, held a hearing on the question of its jurisdiction, and issued an interim award in April 1973, in which it concluded, inter alia, that the dispute was subject to final and binding arbitration upon failure of the parties to reach a negotiated settlement, and that the Board had jurisdiction over the dispute submitted to it. However, Board No. 813 also held that meaningful negotiation between the parties had not taken place and that the case should be remanded with directions that the parties exert their best efforts to reach a mutually acceptable agreement. After further negotiations, the parties remained deadlocked on two issues, and the Board was reconvened. After a further hearing, the Board issued its opinion and award, in which it concluded that there should be a consolidation of seniority rosters for engineers for road districts east of Roanoke.

Plaintiffs contended in the district court and before us that the issue of merger of seniority rosters was settled at the time of the 1959 Agreement and was never meant to be the subject of arbitration. The district court did not decide the issue of arbitrability because it concluded that the case should be dismissed for lack of federal jurisdiction.

II

The history of the arbitration provisions of the Railway Labor Act has been reviewed by the Supreme Court on a number of occasions. See, e. g., Brotherhood of Railroad Trainmen v. Chicago R. & I. R. Co., 353 U.S. 30, 77 S.Ct. 635, 1 L.Ed.2d 622 (1957); International Association of Machinists v. Central Airlines, Inc., 372 U.S. 682, 83 S.Ct. 956, 10 L.Ed.2d 67 (1963); Andrews v. Louisville & Nashville R. Co., 406 U.S. 320, 92 S.Ct. 1562, 32 L.Ed.2d 95 (1972).

In 1926 Congress called upon carriers or groups of carriers and their employees to reach agreements for the establishment of boards of adjustment to resolve so-called minor disputes.. The 1926 Act provided no sanctions for failure to reach such agreements and in many instances one or more of the parties refused. Moreover, the boards were to be composed of an equal number of employee and employer representatives and it was not uncommon to find boards, once established, unable to reach a majority decision. Many minor disputes went unresolved. Chicago R. & I. R., 353 U.S. at 35—36, 77 S.Ct. 635; Central Airlines, 372 U.S. at 688, 83 S.Ct. 956.

Therefore, in 1934, “[i]n the interest of industrial peace and of uninterrupted transportation service”, Congress amended the Railway Labor Act to create the National Railroad Adjustment Board, the divisions of which were to hear disputes referred to it by either party and “growing out of grievances or out of the interpretation or application of agreements concerning rates of pay, rules, or working conditions.” See 45 U.S.C. § 153 First (i). The provisions of the 1934 Act dealing with the resolution of minor disputes by the National Railroad Adjustment Board “were to be considered as compulsory arbitration in this limited field”. Chicago R. & I. R., 353 U.S. at 39, 77 S.Ct. at 640. Nevertheless, in § 3 Second of the 1934 Act, 45 U.S.C. § 153 Second, Congress authorized carriers or groups of carriers and their employees to agree to the establishment of system, group or regional boards of adjustment similar to those in the 1926 Act. In 1957 the Supreme Court observed that such boards “can have jurisdiction co-extensive with that of the National Board”. 353 U.S. at 36, n. 13, 77 S.Ct. at 638. The 1934 Act also established the National Mediation Board as an independent agency, with various powers and duties, set out in 48 Stat. 1193, 1195, now codified with subsequent amendments as 45 U.S.C. §§ 154 and 155. Following adoption of the 1934 amendments the parties to railroad disputes made only limited use of the voluntary adjustment boards and the National Railroad Adjustment Board fell far behind in its work.

Therefore, in 1966 Congress amended § 3 of the Act by adding a paragraph which is now the second paragraph in 45 U.S.C. § 153 Second. That amendment authorizes the establishment of special boards of adjustment, upon the written request of either the representatives of the carrier involved or of its employees, to resolve disputes otherwise referable to the National Railroad Adjustment Board and disputes pending before that Board for twelve months. Boards created pursuant to that provision of the 1966 amendment are generally designated “public law boards”, to distinguish them from boards created pursuant to private agreement, authorized by the first paragraph of 45 U.S.C. § 153 Second, which are generally designated “special boards of adjustment”. The provision for the latter type of special boards was retained in the Act as amended in 1966. Neutral members of “public law boards”, like neutral members of “special boards of adjustment”, are appointed by the National Mediation Board.

“Nothing in this section shall be construed to prevent any individual carrier, system, or group of carriers and any class or classes of its or their employees, all acting through their representatives, selected in accordance with the provisions of this chapter, from mutually agreeing to the establishment of system, group, or regional boards of adjustment for the purpose of adjusting and deciding disputes of the character specified in this section. In the event that either party to such a system, group, or regional board of adjustment is dissatisfied with such arrangement, it may upon ninety days’ notice to the other party elect to come under the jurisdiction of the Adjustment Board.”

Ill

The provisions for enforcement and review of awards of the National Railroad Adjustment Board are set out in § 3 First (p) and (q) of the 1966 Act, 45 U.S.C. § 153 First (p) and (q).

The last sentence of the second paragraph of § 3 Second of the Act, 45 U.S.C. § 153 Second, dealing with “public law boards” and their awards, states: “Compliance with such awards shall be enforcible by proceedings in the United States district courts in the same manner and subject to the same provisions that apply to proceedings for enforcement of compliance with awards of the [National Railroad] Adjustment Board”. Several courts have considered the question whether awards of a “public law board” may be reviewed at the suit of an aggrieved party. It has been generally held that they are subject to limited review similar to the review accorded awards of the several divisions of the National Railroad Adjustment Board. See Brotherhood of Locomotive Eng. v. Denver & Rio Grande W. R. Co., 411 F.2d 1115, 1119 (10 Cir. 1969); Transportation-Communication Employees Union v. St. Louis—San Francisco R. Co., 296 F.Supp. 507, 509 (E.D.Mo.1968); Baltimore & Annapolis R. Co. v. National Mediation Board, 321 F.Supp. 51, 55-56 (D.Md.1970); Brotherhood of Railway Carmen v. St. Louis — San Francisco R. Co., 334 F.Supp. 764 (W.D.Mo.1971).

The award with which we are dealing in the present case was issued by a “special board of adjustment” and not by a “public law board”. Therefore, the provisions of § 3 Second of the 1966 Act, quoted above, do not apply directly to Special Board No. 813. However, as we noted in Part II, above, authority to create voluntary boards of adjustment has been an integral part of the policy of the Railway Labor Act since 1926; such authority was retained in 1934, when the National Railway Adjustment Board and the National Mediation Board were created; and again in 1966 when the provisions for “public law boards” were added. Such voluntary boards of adjustment remain an authorized alternative method of carrying out the policy of the Railway Labor Act to expedite the disposition of unresolved minor disputes.

We conclude that the complaint filed in the district court in the case now before us presents a claim having its source in and arising under the Railway Labor Act, a law regulating commerce; it is therefore cognizable under 28 U.S.C. § 1337, and the district court had jurisdiction to determine whether Board No. 813 decided a matter which was not within the jurisdiction of that board.

In dismissing this action for want of federal jurisdiction, the district court relied heavily on Brotherhood of Railway, Airline and Steamship Clerks v. Special Board of Adjustment No. 605, 410 F.2d 520 (7 Cir. 1969), cert. den. 396 U.S. 887, 90 S.Ct. 177, 24 L.Ed.2d 162 (1969). With respect, we believe that the construction given the Railway Labor Act in that case was too restrictive.

Our conclusion is supported by International Association of Machinists v. Central Airlines, Inc., 372 U.S. 682, 83 S.Ct. 956, 10 L.Ed.2d 67 (1963); Kansas City Southern R. Co. v. Brotherhood of Railroad Train men, 305 F.Supp. 1142 (W.D.Mo.1969), and by the declared policy of the 1926 Act “. . . to settle all disputes, whether arising out of the application of . agreements or otherwise, in order to avoid any interruption to commerce or to the operation of any carrier growing out of any dispute between the carrier and the employees thereof”. § 2 First, 44 Stat. 577, 578, quoted in Brotherhood of Railroad Trainmen v. Chicago R. & I. R. Co., 353 U.S. at 36, 77 S.Ct. at 638.

In Machinists v. Central Airlines, supra, the Court said:

“While thus establishing a National Adjustment Board with power to make final awards with the help of neutral persons where necessary, Congress also provided in § 3, Second for voluntary system boards: . . .
“This machinery was designed to serve the stated purposes of the Act which were, among others: ‘To avoid any interruption to commerce or to the operation of any carrier engaged therein’ and ‘to provide for the prompt and orderly settlement of all disputes growing out of grievances or out of the interpretation or application of agreements covering rates of pay, rules, or working conditions.’ § 2, 45 U.S.C. § 151a. . . . ” 372 U.S. at 688, 689, 83 S.Ct. at 960.

The Court held that a suit in a federal district court to enforce an award of an airline system board of adjustment, created by a contract between an airline and a labor union pursuant to § 204 of the Railway Labor Act, and whose decisions are final and binding upon the parties, has its source in and arises out of the Railway Labor Act and is governed by federal law. Therefore, (1) such a suit arises under a law of the United States, and a district court has jurisdiction under 28 U.S.C. § 1331, if the jurisdictional amount is satisfied; and (2) such a suit arises under a law regulating commerce, and a district court has jurisdiction under 28 U.S.C. § 1337, irrespective of the amount involved. 372 U.S. at 696, 83 S.Ct. 956.

The same reasoning applies in the instant case with respect to the claimed jurisdiction under 28 U.S.C. § 1337. As in the Central Airlines case, “we are not dealing with a suit involving an aspect of federal law which is only collateral or remote or a case' where state and federal law are so blended as to present a serious question of the scope of the arising-under provision of § 1331 or § 1337”. 372 U.S. at 695, 696, 83 S.Ct. at 964. That such review be governed by federal law, as interpreted and applied by federal courts, accords with federal labor policy. “The needs of the subject matter manifestly call for uniformity.” 372 U.S. at 691, 692, 83 S.Ct. at 962.

The judgment will be vacated and the case remanded to the district court for the limited purpose of deciding whether Board No. 813 exceeded its jurisdiction in making the award under attack in this case.

Vacated and remanded.

      . BLE is the certified bargaining representative for locomotive engineers on N&W. Most of the plaintiffs are members of BLE, although some are members of the United Transportation Union.

      . 28 U.S.C. § 1337:

      . “(a) On the effective date of the said merger, the Norfolk and Western will take into its employment all employees of the Virginian who are willing to accept such employment, and none of the present employees of either of said carriers shall be deprived of employment or placed in a worse position with respect to compensation at any time during his employment because of the merger of said railroads or any program of economies undertaken by the Norfolk & Western because of the merger including, but not specifically limited to, changes pursuant to any integration of employment forces, or other such economies or changes resulting from the merger; provided, however, that all presently working employees of the Virginian and the Norfolk & Western shall be entitled to - the foregoing preservation of employment and, provided further, that in the event that the employee organizations at their option elect not to have presently working employees of either railroad occupy available positions on the merged railroad through integration of seniority rosters without liability to furloughed employees who may be affected by such integration of seniority rosters, then, in that event, said employees shall be entitled only to compensatory benefits and other protection afforded by the terms of the Washington Job Protection Agreement in lieu of preservation of their employment.”

      . The 1962 Agreement provided:
      “1(b) In consideration of the foregoing employee benefits, Norfolk and Western and the other carriers heretofore named shall be entitled to transfer the work of the employees protected hereunder throughout the merged or consolidated system and the labor organizations will enter into implementing agreements providing for the transfer of employees to follow their work, and the employees, their organizations and the carriers will cooperate to that end.
      * sis *
      “1(d) In the event any dispute or controversy arises between Norfolk & Western and any labor organization signatory to this Agreement with respect to the interpretation or application of any provision of this Agreement or of the Washington Job Protection Agreement (except as defined in Section 11 thereof) or of any implementing agreement entered into between Norfolk & Western and individual organizations which are parties hereto pertaining to the said merger or related transactions, which cannot be settled by Norfok & Western and the labor organization or organizations involved within thirty days after the dispute arises, such dispute may be referred by either party to an arbitration committee for consideration and determination. Upon notice in writing served by one party on the other of intent by that party to refer the dispute or controversy to an arbitration committee, each party shall, within ten days, select one member of the arbitration committee and the two members thus chosen shall endeavor to select a third member who shall serve as chairman, in which event the compensation and expenses of the chairman shall be borne equally by the parties to the proceeding. All other expenses shall be borne by the party incurring them. Should the two members be unable to agree upon the appointment of the third member within ten days, either party may request the National Mediation Board to appoint the third member, whose compensation and expenses shall then be paid in accordance with existing law. The decision of the majority of the arbitration committee shall be final and binding.”

      . “It is understood and agreed that the said agreement [1962 Nickle Plate Protective Agreement] does not diminish the rights and benefits of the employees subject to the Agreement of June 18, 1959, or implementing agreements made thereto in the Norfolk and Western-Virginian merger case except that said Agreement effective January 10, 1962, shall apply with respect to arbitration, retraining of employees and transfer of work.”

      . 44 Stat. 577, 578-579, discussed in Chicago R. & I. R., 353 U.S. at 35-36, 77 S.Ct. 635. The definition of minor disputes covers the dispute involved in this case. See Central Airlines, 372 U.S. at 687, 83 S.Ct. 956.

      . H.R.Rep.No.1944, 73d Cong., 2d Sess. 3, quoted in 353 U.S. at 36, 77 S.Ct. at 638.

      . Act of June 21, 1934, c. 691, § 3, 48 Stat. 1189.

      . See S.Rep.No.1201, 89th Cong., 2d Sess., June 2, 1966, 2 U.S.Code Cong. & Admin. News, pp. 2285, 2286 (1966).

      . See Thirty-Eighth Annual Report of the National Mediation Board (1972), pp. 44, 45.

      . The first paragraph of 45 U.S.C. § 153 Second now provides:

      . See Thirty-Eighth Annual Report of the National Mediation Board (1972), pp. 45, 46.

      . 45 U.S.C. § 153 First (p) provides in pertinent part:
      “The district courts are empowered, under the rules of the court governing actions at law, to make such order and enter such judgment, by writ of mandamus or otherwise, as may be appropriate to enforce or set aside the order of the division of the Adjustment Board: Provided, however, That such order may not be set aside except for failure of the division to comply with the requirements of this chapter, for failure of the order to conform, or confine itself, to matters within the scope of the division’s jurisdiction, or for fraud or corruption by a member of the division making the order.”
      45 U.S.C. § 153 First (q) provides:
      “(q) If any employee or group of employees, or any carrier, is aggrieved by the failure of any division of the Adjustment Board to make an award in a dispute referred to it, or is aggrieved by any of the terms of an award or by the failure of the division to include certain terms in such award, then such employee or group of employees or carrier may file in any United States district court in which a petition under paragraph (p) could be filed, a petition for review of the division’s order. A copy of the petition shall be forthwith transmitted by the clerk of the court to the Adjustment Board. The Adjustment Board shall file in the court the record of the proceedings on which it based its action. The court shall have jurisdiction to affirm the order of the division or to set it aside, in whole or in part, or it may remand the proceeding to the division for such further action as it may direct. On such review, the findings and order of the division shall be conclusive on the parties, except that the order of the division may be set aside, in whole or in part, or remanded to the division, for failure of the division to comply with the requirements of this chapter, for failure of the order to conform, or confine itself, to matters within the scope of the division’s jurisdiction, or for fraud or corruption by a member of the division making the order. The judgment of the court shall be subject to review as provided in sections 1291 and 1254 of Title 28.”

      . I. e. a board created pursuant to the-second paragraph of 45 U.S.C. § 153 Second. See last paragraph of Part II of this opinion.

      . See 45 U.S.C. § 151a.

      . It is in accord with the general federal labor policy articulated in United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960).

      . The Court then quoted in full the first paragraph of 45 U.S.C. § 153 Second, which is set out in n. 11, supra.