author: JUNE L. GREEN, District Judge.

text:
    WASHINGTON-BALTIMORE NEWSPAPER GUILD, LOCAL 35, Plaintiff, v. The WASHINGTON POST COMPANY, Defendant.
    Civ. A. No. 85-0559.
    United States District Court, District of Columbia.
    Nov. 6, 1985.
    Robert E. Paul, Paul & Thompson, P.C., Arlington, Va., for plaintiff.
    Richard C. Hotvedt, D. Michael Under-hill, Washington, D.C., for defendant.
   OPINION

JUNE L. GREEN, District Judge.

This matter is before the Court on plaintiffs motion for summary judgment, defendant’s opposition thereto and cross-motion for summary judgment, supplemental briefing by both parties on the respective motions, and the entire record herein. For the reasons stated below, the Court grants in part and denies in part plaintiff’s motion for summary judgment and grants in part and denies in part defendant’s cross-motion for summary judgment.

Findings of Fact

Plaintiff Washington-Baltimore Newspaper Guild, Local 35 (“Guild”) is an unincorporated association and labor organization which represents employees of a number of employers for collective bargaining purposes. In this action, the jurisdiction of the Guild extends to “all employees ... in the Advertising, Business, Circulation, Editorial, and News Departments, the maskers and scalers of the Engraving Department, and composing room assistants of the newspaper, The Washington Post,” with certain exceptions. Plaintiff’s Statement of Material Facts as to Which There Is No Genuine Issue (“Plaintiff’s Facts”) ¶ 4. Defendant The Washington Post Company (“The Post”) is a corporation organized under the laws of the State of Delaware with its headquarters in Washington, D.C. Defendant owns and publishes The Washington Post, a daily and Sunday newspaper of general circulation.

The Post and the Guild have been parties to a series of collective bargaining agreements over the years, including an agreement which became effective by its terms from July 10, 1979 through July 9, 1982 (“1979 Agreement”). Plaintiff’s Facts If 3; Defendant’s Statement of Material Facts as to Which There Is No Genuine Issue (“Defendant’s Facts”) ¶¶ 3, 6.

In September 1980, during the term of the 1979 Agreement, The Post installed and made operational a new video display terminal (VDT) computer news system manufactured by Raytheon Corporation. Complaint, Exhibit D at 16; Memorandum of Points and Authorities in Opposition to Plaintiff’s Supplemental Motion for Summary Judgment and In Support of Defendant’s Supplemental Motion for Summary Judgment (“Defendant’s Opposition to Plaintiff’s Supplemental Motion for Summary Judgment”) at 6. As the newsroom began to utilize this equipment for the publication of the newspaper, copy editors and chief copy editors (also known as “slot persons”) were assigned duties different from and additional to the editing duties which had constituted the nature of their respective positions. These slot persons now were given the task of area composition, which entailed arranging the copy precisely as it would appear in the page. The Guild, through its representatives, filed a grievance with the Post, pursuant to Article XXII of the 1979 Agreement, on the ground that The Post had effectuated a substantial change in the duties and responsibilities of the position of copy editor and slot person without following the requirements of Article VI, Section 6(b) of the contract, and seeking a wage increase for those employees whose jobs were affected by the new VDT system. Plaintiff’s Facts II 8; Defendant’s Facts ¶ 10.

When the matter could not be resolved. by the parties, they submitted the issue to arbitration. James V. Altieri, Esquire, was selected by the parties to hear, and resolve the controversy. Nine days of hearings were held in Washington, D.C., between May 1982 and June 1983. Both parties submitted post-hearing memoranda to the arbitrator which presented their respective positions concerning whether there had been a substantial change and whether a wage increase was proper.

During the time that the briefs were submitted, the parties also were engaged in negotiations for the purpose of agreeing to a collective bargaining agreement to succeed the 1979 Agreement. Although the stated termination date of the 1979 Agreement was July 9, 1982, the parties continued to abide by the contract’s terms and provisions for over a year after this date, pursuant to the “evergreen clause” of Article XXIII(l), because neither the Guild nor The Post gave the requisite notice.

Article XXIII(l) of the 1979 Agreement states:

This Agreement shall be effective from July 10, 1979 to July 9, 1982, and thereafter, but it shall be terminated, and all terms and provisions shall become null and void, in the event of (1) a strike called by the Guild, or (2) a lockout declared by The Post, or (3) five (5) days written notice by either party at any time after thirty (30) days following July 9, 1982 to the other of its termination of the Agreement.

Complaint, Exhibit A at 60. Subsequently, The Post gave the required notice under the “evergreen clause” on September 9, 1983, and terminated the terms and provisions of the 1979 Agreement.

The parties executed a successor collective bargaining agreement on November 28, 1983 (“1983 Agreement”), which is currently in effect and will run through July 9, 1986. The 1983 Agreement contains general salary increases for The Post employees including those employees covered by the Guild’s grievance. These increases were retroactive to July 12, 1982, the first day of the first pay period following the stated expiration date of the 1979 Agreement, July 9, 1982.

Shortly after the execution of the 1983 Agreement, Arbitrator Altieri issued an Interim Opinion and Award as to the grievance filed by the Guild. The arbitrator concluded that the imposition of the additional duties and responsibilities on copy desk personnel violated Article VI, Section 6(b) of the 1979 Agreement. The Award also provided the parties with a sixty-day period to develop their own remedy, after which time either party could petition the arbitrator for a remedy which would be binding on the parties.

The parties, however, could not agree on an appropriate amount of compensation for the new duties. The Post maintained that the wages should not be changed, or if a change were appropriate, that the wages should be decreased. The Guild continued to argue that a wage increase was owed from the date the grievance had been filed. Thereafter, the Guild asked the arbitrator to issue a final Opinion and Award, and to order whatever remedy, if any, was appropriate. In response to the Guild’s request, The Post sent a letter to Arbitrator Altieri arguing that, assuming arguendo that some wage alteration were appropriate, the execution of the successor collective bargaining agreement on November 28, 1983, and the accompanying bargaining history precluded the arbitrator from altering wage rates for the period encompassed by the new collective bargaining agreement.

Both parties argued their respective positions at a hearing held before the arbitrator on October 2, 1984. After submission of post-hearing memorandum, Arbitrator Altieri issued his Final Opinion and Award on December 19, 1984, which again held that there had been a substantial change in the duties and responsibilities of the copy editors and slot persons, and found that this change entitled these employees to a five percent wage increase beginning on September 1, 1980, through July 9, 1982. Complaint, Exhibit N at 12. However, the arbitrator also held that the wage provisions in the new collective bargaining agreement set and controlled the wage rates for these employees subsequent to July 9, 1982, the stated termination date of the 1979 Agreement. Id. at 10.

The Guild disagreed with the latter part of the arbitrator’s Award and, by letter, sought The Post’s agreement to resubmit this issue to the arbitrator. The Post declined and the Guild instituted this , civil action.

In its original complaint, the Guild asked this Court to vacate that portion of the arbitrator’s Opinion and Award which terminated backpay liability as of July 9, 1982, and order The Post to calculate backpay through September 1983, or alternatively, remand the proceeding to the arbitrator for a revision of his Opinion and Award. The Guild amended its complaint after The Post notified it in mid-May 1985, that no department (thus no copy editor or slot person) had converted to area composition prior to March 1, 1981. Consequently, The Post submitted a list of the eligibility dates for those employees who The Post believed were entitled to compensation pursuant to Arbitrator Altieri’s Award to the Guild for review. The Guild took the position that all copy editors and slot persons should receive extra backpay for work performed after September 1, 1980, and amended its complaint to include this allegation.

Thereafter, both the Guild and The Post filed motions for summary judgment and submitted supplemental briefing on the respective motions.

Conclusions of Law

It is plain that summary judgment may be granted only when it is shown that a moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). However, “summary judgment is a lethal weapon, and courts must be mindful of its aims and targets and beware of overkill in its use.” Brunswick Corp. v. Vineberg, 370 F.2d 605, 612 (5th Cir.1967). “[A] court should confine its inquiry to determining whether genuine, triable issues of fact exist, and should not attempt prematurely to resolve bonafide factual disputes under the guise of a Rule 56 disposition.” Newspaper Guild Local 35 v. Washington Star, 543 F.Supp. 906, 113 LRRM (BNA) 3133, 3135 (D.C.D.C.1982) (citation omitted). The moving party bears the burden of demonstrating that there are no genuine issues of material fact and that, accordingly, the movant is entitled to judgment as a matter of law. Id. 543 F.Supp. 906, 113 LRRM (BNA) at 3135. In the instant matter, both parties have moved for summary judgment and concede that there are no genuine issues of material fact. Accordingly, it is appropriate to dispose of the instant case through summary judgment.

Since the Supreme Court’s decisions in the Steelworkers Trilogy, the law is well settled that a court’s role in reviewing an arbitration award is limited to determining whether the award “draws its essence from the collective bargaining agreement.” United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 597, 80 S.Ct. 1358, 1361, 4 L.Ed.2d 1424 (1960). This standard prohibits courts from reviewing the merits of an arbitration award. “The refusal of courts to review the merits of an arbitration award is the proper approach to arbitration under collective bargaining agreements. The federal labor policy of settling labor disputes by arbitration would be undermined if courts had the final say on the merits of the awards.” Id. at 596, 80 S.Ct. at 1360. Arbitration “is faster, cheaper, less formal, more responsive to industrial needs, and more conducive to the preservation of ongoing employment relations than is litigation.” Safeway Stores v. Local 400, 118 LRRM (BNA) 3419, 3421 (1985) (citation omitted). In recognition of its utility, courts traditionally have refused to become another layer of review and cause of delay. Office and Professional Employees International Union, Local 2 v. Washington Metropolitan Area Transit Authority, 724 F.2d 133, 137 (D.C.Cir. 1983).

A reviewing court’s inquiry is limited to a determination of “whether the parties consensually committed the issue to arbitration and whether the arbitrator rested his decision on an interpretation of the collective bargaining agreement.” Newspaper-Guild v. BNA, 97 LRRM (BNA) 3068, 3069 (1978) (citation omitted). Under the law of the District of Columbia Circuit, “[t]he case must present egregious deviations from the norm before [the courts] will abandon the firmly-established principle of deference.” Safeway Stores v. Local 400, 118 LRRM at 3421.

Deference to arbitration awards, however, does not grant the arbitrator unrestrained authority. Arbitration is a contractual matter and the arbitrator’s authority is limited by the terms of the arbitral agreement. Davis v. Chevy Chase Financial Limited, 667 F.2d 160, 165 (D.C.Cir. 1981). An arbitrator’s authority is confined to interpreting and applying the collective bargaining agreement, and he may not “dispense his own brand of industrial justice” by substituting his view of what the parties to an agreement should have agreed to for what the parties actually agreed to. United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. at 597, 80 S.Ct. at 1361.

The arbitration award in question provides, in pertinent part, that

All Copy Editors and Slot Persons in the employ of the Publisher during the period between September 1, 1980 and July 9, 1982 shall be paid an additional amount equal to five (5%) percent of what they earned in this period.

Complaint, Exhibit N at 12.

Plaintiff in the instant action argues that the arbitrator’s ruling that the period of backpay ceases on July 9, 1982, is contrary to the evidence before him and violates the express terms of the 1979 Agreement. It asks this Court to vacate that portion of Arbitrator Altieri’s Award or alternatively, remand this matter to the arbitrator for reconsideration of his findings as to the period of backpay liability.

According to plaintiff, the period of back-pay liability runs between September 1, 1980, the date the Raytheon system became operational, and sometime in September 1983, preferably September 17th, the day before The Post terminated the 1979 Agreement under the “evergreen clause.” It contends that since negotiations of the 1983-1986 Agreement were continuing as of July 1982, the terms of the 1979 Agreement remained in full force until The Post gave notice in September 1983. The Guild also takes a literal approach as to the coverage of the award. It contends that Arbitrator Altieri intended that all copy editors and slot persons employed by The Post during the backpay liability period were entitled to backpay regardless as to whether they actually performed area composition duties during that time.

Defendant, on the other hand, seeks “affirmance” of the arbitrator’s award, but limits the backpay liability to the period between March 1, 1981, the date it claims that area composition duties were first performed by the affected employees, and July 9, 1982, the stated date of expiration of the 1979 Agreement. It interprets the language of the award as only setting out a period of potential backpay liability and insists that a literal reading of the award was not intended by Arbitrator Altieri.

After close examination of the entire record, the Court finds that the award in this case clearly “draws its essence” from the collective bargaining agreement. “[T]he question of interpretation of the collective bargaining agreement is a question for the arbitrator. It is the arbitrator’s construction which was bargained for; and so far as the arbitrator’s decision concerns construction of the contract, the courts have no business overruling him because their interpretation of the contract is different from his.” United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. at 599, 80 S.Ct. at 1362.

Article XXII of the 1979 Agreement provides for a grievance and arbitration procedure for the resolution of contractual disputes.

Article VI, Section 6(b) of the 1979 Agreement states:

(6)(b). In the event The Post creates a new position or substantially alters the nature of an existing job within the bargaining unit, and the duties of the new or altered position are similar to those of an existing classification for which a salary scale has been established, The Post agrees to inform the Guild, in accordance with Article XVII, Section 9(b), and upon request to meet with the Guild to discuss its decision in the event the Guild questions the classification. In the event the Guild does not agree, it may challenge the classification of the new or altered position through the Grievance Procedure set forth in Article XXII.
In the event The Post creates a new position or substantially alters the nature of an existing job within the bargaining unit, and the duties of the new or altered position substantially differ from those of any existing classification for which a salary scale has been established, The Post agrees to notify the Guild before a classification is assigned to the new or altered position, and to seek in good faith to reach an agreement upon the appropriate classification and salary scale. In the event the parties fail to reach agreement, The Post may then assign a classification and salary scale to the new or altered position and the Guild may challenge this determination under Article XXII.

Complaint, Exhibit A at 19-20.

In his Interim Opinion and Award, Arbitrator Altieri determined that Article VI(6)(b) applied to the dispute between the Guild and The Post since there had been a substantial alteration in the copy editor and slot person positions due to the introduction of the Raytheon system. Complaint, Exhibit D at 28. He then found that The Post had violated the notice provision by not providing “advance notice to the Union of its intention to implement the change and giv[ing] the Union an opportunity to discuss and negotiate the effect of the change, prior to its implementation.” Id. at 29.

Arbitrator Altieri adopted the suggestion of the Guild and remanded the matter to the parties to negotiate and resolve their differences. The award further provided that “[i]f they [were] unable to reach agreement within sixty (60) days of receipt of this award, either party may, upon notice to the other, request of the arbitrator that he issue his final award.” Id. at 33. In remanding the matter, the arbitrator stated that,

The undersigned has reached some conclusions with respect to whether any increases in rates are, in fact, called for; whether, if increases were granted, they would be applicable only to the minimum weekly salaries set forth in Article VI; whether, if increases were granted, they should be prospective only or retroactive; and whether Article VI(6)(b)’s requirements were fully met by the Post, as it maintains, when it stood ready, at all times, “upon request to meet with the Guild to discuss the matter”.
The arbitrator wishes to stress the caveat, that neither side should derive any inference as to what his final award is apt to be, from the findings reflected in this interim award. I will, nonetheless, adopt the suggestion of the Union, and first issue a preliminary award, returning the matter to the parties, where it belongs, for them to resolve through the collective bargaining process. It is in the hope that the parties will finally succeed in resolving, for themselves, the question presented, that I adopt the suggestion of the Union, in rendering this interim award. I believe it to be to the mutual advantage of the parties to resolve, through collective bargaining, whatever differences they have on the subject, and not leave it to this arbitrator to impose upon them a result that they are likely to be unhappy with.

Complaint, Exhibit D at 32 (emphasis added).

It was only when the parties failed to reach an agreement about the rate of pay for the affected employees that Arbitrator Altieri issued his Final Opinion and Award. In doing so, he dismissed the Guild’s argument that the period of backpay liability should extend through September 1983, the effective date of termination of the 1979 Agreement. He held that the Guild did not have any rights with respect to rates to be paid subsequent to July 9, 1982, and fixed in the new 1983-86 Agreement since it did not succeed through the bargaining process in achieving agreement on such rates. Id. at 11.

What the arbitrator is asked to do by the Guild involves more than interpreting Article VI(6)(b). He has been asked to establish the appropriate salary differentials for the Copy Editors and Slot Persons, in the light of his finding that, during the term of the agreement, there has been a substantial alteration in the nature of their duties. The determination of the rates appropriate by reason of changes implemented during the term of the agreement, is a legislative function that does not deprive the parties of their right, when the time arrives for negotiating a new agreement, to bargain for the best terms their economic strength makes possible.
Unless the parties, by mutual consent, adopt in a successor agreement the rates that were fixed in an arbitration proceeding, or, unless, at the time that authority is given to an arbitrator, to establish rates, it is the mutual understanding of the parties that any rates fixed by him would extend beyond the term of the agreement, his ruling cannot deprive a party of the right to bargain for different rates in the successor agreement.

Id. at 10-11 (emphasis added).

The Court finds that “it is quite [possible for an honest intellect to interpret the words of the contract and reach the result which the arbitrator reached.” Washington-Baltimore Newspaper Guild, Local 35 v. The Washington Star Co., 94 Lab.Cas. (CCH) 1113,514 (D.D.C.1981) (iquoting Union Employers Division of Printing Industry v. Columbia Typographical Union No. 101, 353 F.Supp. 1348, 1349-50 (D.D.C.1973), aff'd 492 F.2d 669 (D.C.Cir.1974) (without opinion)). The Guild was aware that if no agreement could be reached between itself and The Post that the arbitrator would decide, inter alia, what rate increase, if any, was warranted. Moreover, it was the Guild that suggested that the arbitrator remand the matter to the parties to give them a chance to settle the dispute.

The Guild also had the opportunity, through the collective bargaining process, to negotiate an additional rate increase for the affected employees for the period subsequent to July 9, 1982, but failed to do so. It cannot now ask the Court to do for it what it chose not to do. This is especially true given the courts’ traditional deference to arbitration awards. “An arbitration award must stand if some support for its basis exists in the record.” Devine v. White, 697 F.2d 421, 436 n. 80 (D.C.Cir. 1983). The Court finds that the arbitrator did not abuse his authority in granting his Final Opinion and Award and that the portion of the award which terminates back-pay liability on July 9, 1982, clearly “draws its essence” from the 1979 collective bargaining agreement.

In addition, the Court finds that The Post’s contention that the arbitration award only sets out a period of potential backpay liability is meritless. The Post argues that Arbitrator Altieri did not intend a literal reading of that portion of the award which grants backpay to all copy editors and slot persons employed during the stated period. “The Post believes that the proper interpretation of the Award is that copy editors and slot persons are entitled to additional compensation only for the actual time between September 1, 1980 and July 9, 1982 that they performed area composition duties. ” Defendant’s Opposition to Plaintiff’s Supplemental Motion for Summary Judgment at 15 (emphasis added). After an extensive investigation, The Post concluded that it would pay copy editors and slot persons compensation as of March 1, 1981, to ensure that all copy editors and slot persons received at least all the compensation owed. The Post explains that March 1, 1981 was selected “because it was the earliest date that The Post’s investigation revealed that anyone in the affected class of employees began performing area composition duties.” Id. at 29.

It appears to the Court that Arbitrator Altieri was aware that although the Raytheon system was first used for production on September 1, 1980, some of the affected employees may not have actually performed any area composition duties until a subsequent date. Nonetheless, he decided to award backpay to all copy editors and slot persons employed by The Post between September 1, 1980, and July 9, 1982. Mr. Altieri was the mutually agreed upon arbitrator in this dispute between the parties and he decided the matter based on his expertise and experience with collective bargaining agreement disputes. When The Post agreed to submit this matter into this arbitrator’s hands, it agreed to be bound by his decision. The Court, therefore, refuses to allow The Post to eviscerate the backpay award to all copy editors and slot persons and thus affirms the arbitrator’s Final Opinion and Award.

Conclusion

“By vacating [any portion] of the arbitration award in the instant action, the Court would be intruding upon the authority of the arbitrator to interpret the collective bargaining agreement____” Safeway Stores v. Local 400, 118 LRRM (BNA) at 3426.

An appropriate order is attached.

ORDER

Upon consideration of plaintiff’s motion for summary judgment, defendant’s opposition thereto and cross-motion for summary judgment, supplemental briefing by both parties on the respective motions, the entire record herein, and for the reasons set forth in the accompanying opinion, it is by the Court this 6th day of November 1985,

ORDERED that plaintiff’s motion for summary judgment is granted as to that portion seeking affirmance of September 1, 1980 as the commencement date of The Post’s period of backpay liability; it is further

ORDERED that plaintiff’s motion for summary judgment is denied as to that portion asking the Court to vacate the part of the arbitrator’s Final Opinion and Award which terminates backpay liability on July 9, 1982; it is further

ORDERED that defendant’s cross-motion for summary judgment is granted as to that portion seeking affirmance of the arbitrator’s Final Opinion and Award; it is further

ORDERED that defendant’s cross-motion for summary judgment is denied as to that portion seeking to limit The Post’s period of backpay liability to March 1, 1981, through July 9, 1982; and it is further

ORDERED that this case is dismissed with prejudice.

      . The Guild and The Post disagree as to the actual effective date of the contract termination. The Post asserts that the contract terminated five days after it tendered the notice or on September 14, 1983. Defendant's Statement of Material Facts as to Which There Is No Genuine Issue 1f 7. The Guild's position, however, is that the notice was not effective until it was received, and since it was not received by the Local until September 13th, the termination became effective on September 18, 1983. Memorandum of Points and Authorities in Support of Plaintiffs Motion for Summary Judgment at 27, n. 7.
      Given the Court’s disposition of this matter, it finds that the effective date of the contract termination is not a genuine issue of material fact which precludes the granting of summary judgment.


source: Caselaw Access Project

author: EDWARD C. REED, Jr., District Judge.

license: Public Domain

text:
    G. Mitchell SMITH and Sue Smith, Plaintiffs, v. INTERNATIONAL HARVESTER CO., A Delaware corporation; and Black Companies I through IV, Defendants.
    No. CV-R-85-349-ECR.
    United States District Court, D. Nevada.
    Nov. 6, 1985.

      John R. Brydon, Reno, Nev., for plaintiffs.
    Jerry H. Mowbray, Reno, Nev., for defendant Intern. Harvester.
   ORDER

EDWARD C. REED, Jr., District Judge.

On December 13, 1984, the plaintiffs in this action filed a personal injury complaint in the Second Judicial District Court of the State of Nevada. At that time, plaintiffs, who are both Nevada residents, had included as a defendant in the action Bell Brand Ranches, which is a resident and domiciliary of the State of Nevada. Sometime prior to March 29, 1985, Bell Brand and the plaintiffs reached a settlement. On March 29, 1985, in response to an interrogatory propounded by defendant International Harvester, the plaintiffs indicated that Bell Brand had settled with plaintiffs for $7,500. The date on which the parties filed the stipulation of settlement in the state court is not indicated on this record. The official Notice of Entry of Order of Dismissal, in which the state court recognized the settlement and dismissed Bell Brands from the action was not filed until June 6, 1985.

On July 3, 1985, International Harvester removed the case to this court pursuant to 28 U.S.C. § 1441(a), asserting that the dismissal of Bell Brands created complete diversity between the defendants and plaintiffs in the action. The plaintiffs, however, have moved this Court to remand the action back to the state court, contending that International Harvester failed to file its removal petition within thirty days after the point when the case became removable.

REMOVAL OF CASES FROM STATE COURTS

In order to remove a case from state to federal court, there must exist on the face of the complaint original federal subject matter jurisdiction. 28 U.S.C. § 1441(a). In the present case, federal subject matter jurisdiction did not exist on the face of the complaint. It was only after the non-diverse Bell Brands was dismissed from the suit that federal subject matter jurisdiction arose. Removal in such a situation is still possible, for 28 U.S.C. § 1446 provides that

[i]f the case stated by the initial pleading is not removable, a petition for removal may be filed within thirty days after the receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable.

28 U.S.C. § 1446(b). Plaintiffs claim that their answers to the defendants’ interrogatories, in which they indicated that they had settled with non-diverse Bell Brands, constitute “other paper” through which the defendants should have ascertained that removal was possible. The defendants, however, claim that the answers to interrogatories in this case are not sufficient to constitute “other paper,” and that the real notice of the possibility of removal did not come until the entry of the official order dismissing the non-diverse defendant.

The law is clear that an answer to an interrogatory may constitute an “other paper” for the purposes of the Code. Initially, courts have stated that “the time period to remove an action cannot depend on defendant’s actual knowledge, because the statute expressly allows a defendant to rely on papers presented to it Jong v. General Motors Corp., 359 F.Supp. 223, 225 (N.D.Cal.1973) (emphasis supplied) (citing Camden Indus. Co. v. Carpenters Local No. 1688, 246 F.Supp. 252 (D.N.H.1965) aff'd, 353 F.2d 178 (1st Cir.1965)); Bonnell v. Seaboard Airlines R.R., 202 F.Supp. 53 (N.D.Fla.1962); Hamilton v. Hayes Freight Lines, 102 F.Supp. 594 (E.D.Ky. 1952). In addition, a court must take note that the “amended pleading, motion, order or other paper” must derive from “either the voluntary act of the plaintiff in the state court, or other acts or events not the product of the removing defendant’s activity.” Potter v. Carvel Stores of New York, Inc., 203 F.Supp. 462, 467 (D.Md.1962) aff'd, 314 F.2d 45 (4th Cir.1963) (citing Putterman v. Daveler, 169 F.Supp. 125 (D.Del.1958)). Many courts have found that answers to interrogatories constitute exactly such voluntary acts of the plaintiff, even though they are responses to questions originated by the defendant.

In Miller v. Stauffer Chemical Co., 527 F.Supp. 775 (D.Kan.1981), for example, the plaintiff filed the initial petition in the state district court, setting out the facts necessary to establish complete diversity, but only claiming damages of $8,000. Thus the original complaint failed to establish federal subject matter jurisdiction because the claimed damages did not meet the $10,000 requirement of 28 U.S.C. § 1332. Id. at 776. On August 5, 1980, the plaintiff responded to interrogatories propounded by defendant. In its answer to those interrogatories, the plaintiff admitted that its injuries had exceeded the amount required for diversity jurisdiction. On August 21, 1980, the defendant filed a petition for removal to federal court. The plaintiff, however, moved to remand the case contending that the actual time at which the case became removable was August 16, 1979, on which date the plaintiff had requested leave to file an amended complaint to reflect increased damages.

The Kansas federal district court initially found that the mere filing of a motion for leave to amend a complaint could not be taken as notice that a previously non-removable case was now removable. As the court noted, “the mere filing of a motion to amend does not affect the existence or non-existence of federal jurisdiction and cannot make an action removable that was not removable under the original complaint.” Id., at 777. On the other hand, the court noted that answers to interrogatories could be taken as “other paper” sufficient to give notice that a case has become removable. The plaintiff’s answers to the interrogatories, found the court, were “a voluntary act that changed the damages claim to an amount exceeding $10,000, and thus, for the first time, established plaintiffs’ claim for damages in an amount required for diversity jurisdiction.” Id. at 778 (citing Fleming v. Colonial Stores, Inc., 279 F.Supp. 933, 934 (N.D.Fla. 1968)). See Ellis v. Logan Co., 543 F.Supp. 586, 589 (W.D.Ky.1982) (answers to interrogatories which ascertained jurisdictional amount sufficient to start running of 30-day period); Brooks v. Solomon Co., 542 F.Supp. 1229, 1230 (N.D.Ala.1982) (answers given at a deposition constitute “other paper” for purposes of the code); Lee v. Altamil Corp., 457 F.Supp. 979, 981 (M.D. Fla.1978) (documents obtained during the course of discovery may be “other paper” for purposes of the Code); see also Krantz v. Boneck, 599 F.Supp. 785, 787 (D.Nev. 1984) (federal subject matter existed on the face of the complaint, and thirty-day period thus ran from its filing; answers to interrogatories which contained additional jurisdictional facts therefore irrelevant).

Answers to interrogatories or questions put at depositions may thus constitute the “other paper” necessary to give notice that a state court action has become removable. Plaintiff in this action contends that its answer to International Harvester’s interrogatory gave such notice. What the answer to the interrogatory told the defendant, however, was that the plaintiff had settled with Bell Brands, not that Bell Brands had been dismissed from the suit. Under Nevada law, the two are not identical.

Nevada Rules Civ.Proc., Rule 41(a)(1) provides that

[a]n action may be dismissed by the plaintiff upon repayment of defendants’ filing fees, without order of the court ... (ii) by filing a stipulation of dismissal signed by all parties who have appeared in the action.

Thus, the approval of the court is not necessary in order to dismiss a party from a suit in Nevada courts, as plaintiffs contend. It is necessary, however, that the stipulation be signed by all parties to the action, and that that stipulation be filed with the court before the party may be considered dismissed. Jeep Corp. v. Second Judicial District Court, 98 Nev. 440, 652 P.2d 1183, 1186 (D.Nev.1982). Merely stating that a settlement has been reached does not equate to notice that a party has been dismissed from the suit, therefore. There must be indication that a stipulation has been signed by all parties and filed before one may reasonably conclude under state law that a party has been dismissed from the action. In this sense, plaintiffs’ interrogatory answer is not sufficient to indicate that the case had become removable, in that the answer stated merely that a settlement had been reached, not that the stipulation for dismissal of Bell Brands had been signed and filed.

Plaintiffs further contend that the defendant received sufficient notice of the case’s removability when he received a copy of the notice to set for trial on March 13, 1985. Because the certificate of service appended to the notice indicated that service had only been made on defendant International Harvester’s attorney, plaintiffs contend that defendant should have thereby concluded that Bell Brands and any other fictitious parties (Does) had been dismissed from the suit, and that diversity jurisdiction was then available. Plaintiffs’ contention has merit, at least as far as the fictitious parties are concerned.

Barngrover v. M.V. Tunisian Reefer, 535 F.Supp. 1309 (C.D.Cal.1982), is instructive. In that case, a longshoreman sought to recover damages for personal injuries sustained while loading cargo aboard a ship docked at a California port. The plaintiff commenced the action in the California state court system and named the following as defendants: the vessel involved; Norton, Lilly and Company, a California corporation; and twenty fictitious defendants. On June 8, 1981, Norton, Lilly was dismissed from the action. On October 19, 1981, an at issue memorandum, which indicated that none of the fictitious defendants remained in the suit, was filed by the plaintiff and served upon the defendant. On January 8, 1982, a pretrial conference was held, at which the parties completed a questionnaire which asked identical questions to those answered by the at issue memo.

Less than thirty days following the pretrial conference, on February 5, 1982, the defendant removed the case to the United States District Court for the Central District of California. The plaintiff, however, opposed the removal, on the grounds that the petition for removal had not been filed in a timely manner. In that the at issue memorandum of October 19 indicated that none of the ficticious defendants remained in the suit, the plaintiff argued, that document demonstrated the complete diversity between the parties involved, and constituted the “other paper” indicating the availability of removal.

The court agreed with the plaintiff. The at issue memorandum, it found, is a representation by the plaintiff that all essential parties have been served prior to the time of trial, and that no other pleadings remain to be filed. Id. at 1311. The court thus found that, “the filing of an At-Issue Memorandum represents a deliberate choice on the part of the plaintiff to abandon claims against further unserved fictitious defendants in order to obtain a position on the civil active list.” Id. The memo thus revealed that the plaintiff had abandoned hope of joining the fictitious parties, and indicated the existence of diversity jurisdiction. Therefore, the defendant should have filed the petition for removal within thirty days of receipt of the memo, and not from the pretrial conference. The petition was thus tardy in this case, and the court remanded back to state court.

In the present case, the defendant International Harvester could have properly assumed, as in Bamgrover, that the notice to set trial indicated the plaintiffs concession that no other parties would be named. In this sense, defendant should have known that the fictitious parties (Does) could no longer destroy absolute diversity. Thus, if Bell Brands had been dismissed from the action at this time, the thirty days in which a removal petition would have been proper would have begun to run from the filing of the notice, because it would have indicated the existence of complete diversity.

However, contrary to plaintiffs’ contentions, the notice to set in this case contains no indication that Bell Brands had been dismissed from the action. Although the certificate of service on the document makes no reference to Bell Brands, the document’s caption clearly indicates that Bell Brands was at that time considered to be part of the suit. Moreover, defendants had not yet received plaintiffs’ interrogatory answers when the notice to set was received, so they were not yet even aware of the possibility of Bell Brands’ dismissal. Although the notice to set indicated that the Does were no longer in the suit, the defendants had no way of knowing from the face of this document whether Bell had actually been dismissed. In this sense, the notice cannot be taken as “other paper” indicating the existence of federal subject matter jurisdiction. Only the official notice which indicated that the non-diverse Bell Brands had been dropped from the suit can be so construed. In that the defendant International Harvester filed its petition for removal within thirty days of the notice of Bell Brands’ dismissal, the petition is timely, and the case need not be remanded to state court.

IT IS, THEREFORE, HEREBY ORDERED that the motion to remand this case is DENIED.


author: KANE, District Judge.

text:
    Albert MAGER, Plaintiff, v. Margaret HECKLER, Secretary of Health and Human Services, Defendant.
    Civ. A. Nos. 83-K-1431, 85-K-59.
    United States District Court, D. Colorado.
    Nov. 7, 1985.

      Lisa Robinow, Colo. Rural Legal Services, Inc., Alamosa, Colo., for plaintiff.
    James R. Cage, Asst. U.S. Atty., Denver, Colo., for defendant.
   ORDER GRANTING ATTORNEY PEES

KANE, District Judge.

Plaintiff is a 41-year old man who was severely injured in an automobile accident in 1969. He lost his left arm, broke several other bones in his body, and is in constant pain from three crushed vertebrae in his lower back. He was a paraplegic for three years, and suffers frequent epileptic seizures because he cannot afford his medicine. Despite the fact that there was objective evidence supporting plaintiff’s assertion of severe pain, and no contradiction that he suffered compression injuries to the three vertebrae in his lower back, the administrative law judge found that plaintiff was still able to perform light work and was not disabled.

At a hearing on April 18, 1985, I reversed the Secretary’s finding that the plaintiff was not disabled. Plaintiff has filed a verified motion for sanctions under Rule 11 of the Federal Rules of Civil Procedure, and, in the alternative, an application for attorney fees under the Equal Access to Justice Act (EAJA), 28 U.S.C.A. § 2412(d), as amended, by Act of August 5, 1985, Pub.L. No. 99-80, 99 Stat. 183. I must decide, therefore, whether attorney fees should be awarded pursuant to the EAJA, imposed as a Rule 11 sanction, or denied altogether.

I.

ATTORNEY FEES UNDER THE EAJA

Attorney fees should be awarded to the prevailing party under the EAJA unless the position of the United States was substantially justified or special circumstances make such an award unjust. 28 U.S.C.A. § 2412(d)(1)(A). In Trujillo v. Heckler, 582 F.Supp. 701 (D.Colo.1981), I held that “fees may be recovered in a Social Security Act proceeding under the EAJA.” Id. at 704. I also held that the standard for substantial justification is essentially one of reasonableness. I applied the “reasonable litigation-attorney” standard set forth by Judge Weinstein in Zimmerman v. Schweiker, 575 F.Supp. 1436, 1439 (E.D.N.Y.1983), complete with its “ethical and procedural obligations,” in judging whether the government’s position was substantially justified. Id. at 704-05.

In Trujillo I also stated that United States v. 2,116 Boxes of Boned Beef, 726 F.2d 1481 (10th Cir.1984), “require[d] me to consider the position the government takes before this court, not the position taken below during the administrative proceeding.” Id. at 1487. Since I authored Trujillo, however, the Equal Access to Justice Act (EAJA), 28 U.S.C.A. § 2412, has been amended (Act of August 5, 1985, Pub.L. No. 99-80, 99 Stat. 183). Section 2(b) of the Act (to be codified at 28 U.S.C. § 2412(d)(1)(B)) provides:

Whether or not the position of the United States was substantially justified shall be determined on the basis of the record (including the record with respect to the action or failure to act by the agency upon which the civil action is based) which is made in the civil action for which fees and other expenses are sought.

Section 2(c)(2)(D) of the Act of August 5, 1985 amends subsection (d)(2) by providing:

“position-of the United States” means, in addition to the position taken by the United States in the civil action, the action or failure to act by the agency upon which the civil action is based; except that fees and expenses may not be awarded to a party for any portion of the litigation in which the party has unreasonably protracted the proceedings.

As noted by Senator Grassley, the sponsor of the amendment:

This bill makes a most important clarification from prior Equal Access to Justice Act. It states clearly that when deciding whether a prevailing party shall be awarded fees, a court or adjudicative officer shall evaluate both the Government’s arguments made in the litigation and the agency action that made it necessary for the private party to seek relief. Thus, if the agency action that led to the litigation is not substantially justified, a prevailing party could be eligible for an Equal Access to Justice Act award, irrespective of the merits of the Government’s arguments once they get to court.

131 Cong.Rec. S9992 (daily edition, July 24, 1985) (remarks of Senator Grassley). See also H.R.Rep. No. 120 (pt. 1) at 11, 99th Cong., 1st Sess., reprinted in 1985 U.S. Code Cong. & Ad.News 132 at 140 (“[These changes] clarify the Congressional intent that the ‘position of the agency’ is much broader than the litigation position, and includes actions and omissions of an agency or its staff to act based on a statutory, regulatory, or constitutional duty.”).

Thus the amendments dictate that I examine both the initial determination of the agency and the government’s actions defending in litigation when I make a determination as to whether the Secretary is substantially justified in her position. The amendments, and the accompanying legislative history, however, do not guide me in determining the nature of the test I should use for substantial justification. In fact, the legislative history is confusing, at times indicating that a government action must be more than merely reasonable to be substantially justified, and on the other hand indicating that the government could be considered substantially justified even when the agency action is arbitrary and capricious. Compare H.R.Rep. No. 120 (pt. 1) at 9, 99th Cong., 1st Sess., reprinted in 1985 U.S.Code Cong. & Ad.News at 138 (“[S]everal courts have held correctly that ‘substantial justification’ means more than merely reasonable. Because in 1980 Congress rejected a standard of ‘reasonably justified’ in favor of ‘substantially justified,’ the test must be more than mere reasonableness.”) and 131 Cong.Rec. S9993 (remarks of Senator Grassley) (“[W]here the agency action is found by a court to be arbitrary and capricious or where there is little or no factual support for the agency action, the Government — as a practical matter — has its work cut out for it to prove substantial justification. Indeed, in the case of an arbitrary and capricious finding, I believe the plain meaning of the words strongly suggest that the Government was not substantially justified.”) with 131 Cong.Rec. S9993 (daily ed. June 24, 1985) (remarks of Senator Thurmond) (“[T]he issues of ‘substantial justification’ relative to the fee award is a separate and distinct inquiry from whatever standard of review has been applied to the merits of the case. Therefore, there could be cases where an agency loses on the merits because a court has found its action to be arbitrary and capricious, but where no attorney fees would be awarded because the Government was substantially justified in the position it had taken.”) Because I find the legislative history on this question conflicting, I will adhere to the standard set forth in Trujillo v. Heckler, 582 F. Supp 701, 704-05 (D.Colo.1984), and described above at page 1-2 of this order. At least one circuit, finding this legislative history “conflicting and inconclusive,” chose to adhere to the circuit’s previous standard for substantial

justification. See Russell v. National Mediation Board, 775 F.2d 1284 (5th Cir. 1985).

In this case, it was clear, from a review of the administrative record and from the April 18, 1985, hearing, that the government’s position was not substantially justified. As I ruled at the hearing:

I’ve been listening to these cases for over seven years and I don’t think I’ve ever seen one in which there’s a greater demonstration of a total lack of compassion and exercise of casuistry and cynicism as this one. This decision is reversed. It is not based on substantial evidence and it ignores Tenth Circuit law with regard to consideration of pain. There is an incorrect application of the Secretary’s own regulations concerning the grid and there is a failure to rebut the prima facie case that was established by the claimant.

Transcript at 14. The record was uncontradicted in demonstrating the physical causes for plaintiff’s back pain. Plaintiff had all the objective manifestations supporting the existence of an impairment which would be expected to prove pain. Plaintiff’s complaints of back pain, accompanied by objective medical evidence, established disability in plaintiff’s case. The Secretary clearly misevaluated plaintiff’s pain, and was not justified in her initial finding on that issue. In addition, no argument was made at the hearing in support of the administrative law judge’s finding on the pain issue. Attorney fees under the EAJA are, therefore, appropriate.

II.

SANCTIONS UNDER RULE 11

Plaintiff claims that the defense attorneys violated Rule 11 by denying plaintiff’s allegations that the administrative law judge had failed to give the proper weight to plaintiffs complaints of pain, and by persisting in arguing in support of the Secretary’s determination that plaintiff could do light work. The amended Rule 11 provides:

The signature of an attorney or party constitutes a certificate by him that he has read the pleading, motion, or other paper; that to the best of his knowledge, information, and belief formed after reasonably inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification or reversal of existing law, and that it is not interposed for any improper purpose, such as to harrass or to cause unnecessary delay or increase the cost of litigation____ If a pleading, motion, or other paper is signed in violation of this rule, the court, upon motion or upon its own initiative, shall impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion, or other paper, including reasonable attorney’s fees.

As I have held previously, see, e.g., Weir v. Lehman Newspaper, Inc., 105 F.R.D. 574 (D.Colo.1985), the requirement that pleadings be well grounded in fact and law is far more stringent under the 1983 amendment to Rule 11 than under the earlier version of the rule. Id. at 576. The amendments were designed to “discourage dilatory or abusive tactics and help to streamline the litigation process by lessening frivolous claims or defenses.” Notes of the Advisory Committee on Rules, Rule 11, 1983 Amendment.

I will not impose Rule 11 sanctions in this case. First, the law has been to some degree in a state of flux. Second, while the defense attorney’s denial that the secretary had misevaluated plaintiff’s back pain is a matter of grave concern, this court has not imposed such a sanction in the past. This case should serve as notice, however, that such Sanctions may be imposed in the future.

Although plaintiff cites some authority for me to award attorney fees under Rule 11 in this case, I prefer the approach taken by the district court in Zimmerman v. Schweiker, 575 F.Supp. 1436 (E.D.N.Y. 1983). I quote at length from the opinion:

Both the Equal Access to Justice Act and the 1983 Amendments to the Rules of Civil Procedure attempt to induce the lawyer to come to grips with the problem of unnecessary litigation, to encourage the attorney to exercise his or her mind and conscience in deciding whether the suit is worth prosecuting or defending. * * * * * *
There is often a special excruciating problem for the government attorney. He or she cannot' fire a client who will not take the litigator’s advice, nor can the client discharge the government attorney____ The hope is that government officials in charge will be less apt to take unreasonable positions against the advice of government lawyers.
To achieve this goal requires a higher standard than that provided for Rule 11 certifications. For, presumably, if certification were improper the government attorney would not act or the court would impose sanctions under Rule 11. Thus an appropriate standard under the Act must be higher than the minimum standard of Revised Rule 11 of the Federal Rules of Civil Procedure.
No conclusion of this court should suggest that the United States Attorney for the Eastern District of New York, a person of high ethics and competence, has been violating either Rule 11 or Rule 7-102(A)(2). Yet, the statistics suggest that the government has been coming close to the line.

Id. at 1440-41. In Zimmerman, Judge Weinstein awarded fees under the EAJA, and declined to hold that Rule 11 had been violated. For the reasons stated, I also decline to impose Rule 11 sanctions in this particular case. The EAJA imposes an ethical obligation for attorneys very similar to that imposed by Rule 11.

It is therefore ORDERED that:

(1) Plaintiff’s request for attorney fees under the EAJA is granted, and he shall be awarded $1,123.93 in attorney fees and expenses.

(2) Plaintiff’s motion for sanctions under Rule 11 is denied.


author: POLOZOLA, District Judge:

text:
    SIERRA CLUB v. COPOLYMER RUBBER AND CHEMICAL CORPORATION. SIERRA CLUB v. ALLIED CHEMICAL CORPORATION. SIERRA CLUB v. BERCEN SOUTHERN DIVISION OF BERCEN INCORPORATED. SIERRA CLUB v. FORMOSA PLASTICS CORPORATION.
    Nos. Civ. A. 84-407-B, Civ. A. 84-408-B, Civ. A. 84-409-B and Civ. A. 84-410-B.
    United States District Court, M.D. Louisiana.
    Nov. 7, 1985.

      Michael Osborne, New Orleans, La., for plaintiff.
    Maureen N. Harbourt, R. Gordon Kean, Jr., William D’Armond, Kean, Miller, Hawthorne, D’Armond McCowan & Jarman, Baton Rouge, La., for defendant Copolymer Rubber & Chemical Co.
    Frank S. Craig, III, Breazeale, Sachse & Wilson, Baton Rouge, La., for defendants Allied Chemical, Bercen and Formosa Plastics.
    Warren Byrd, Baton Rouge, La., for amicus curiae, State of La.
   POLOZOLA, District Judge:

These consolidated cases were filed by Sierra Club under the citizen suit provision of the Clean Water Act, 33 U.S.C. 1365(a). In each of these cases, Sierra Club contends the defendants have violated Section 301(a) of the Act, 33 U.S.C. § 1311(a).

I Procedural History of the Cases

After these suits were filed, the standing of the Sierra Club -to bring these suits became an issue in this case. In order to determine the legal standard to be applied by the Court on the standing issue, the Court stayed discovery on all issues except standing and ordered the parties to file briefs on the issue. After the Court denied plaintiff’s motion for partial summary judgment on the standing issue, the Fifth Circuit Court of Appeals rendered its decision in Hamker v. Diamond Shamrock Chemical Company, 756 F.2d 392 (5th Cir. 1985). Thereafter, the Court ordered the parties to file briefs on whether the Court had jurisdiction in these cases under the Hamker decision. In addition, Copolymer filed a motion to dismiss under Rule 12(b)(1) of the Federal Rules of Civil Procedure. Briefs were filed, oral argument was held on two occasions and the matter was submitted to the Court.

II The Court’s Jurisdition

It is well settled that a federal court is empowered to hear only such cases as are within the judicial power of the United States, as defined in the Constitution, and have been entrusted to them by a jurisdictional grant by Congress. It is also equally settled that a federal court has an obligation to notice want of subject matter jurisdiction on its own motion. Where the subject matter jurisdiction of the Court has been challenged, the burden is on the party claiming jurisdiction to demonstrate that jurisdiction of subject matter exists. Thus, the burden is upon the Sierra Club to demonstrate that subject matter jurisdiction exist in these cases.

III The Hamker Decision

Hamker v. Diamond Shamrock Chemical Company, 756 F.2d 892, involved the very same issue as that presented to this Court — does Section 1365(a) permit a citizen suit for past violations, or must the defendant be “in violation” of relevant standards, limitations and orders on the date the citizen suit is filed? After thoroughly discussing the history, meaning and purposes of Section 1365(a) as it relates to the other provisions of the Clean Water Act, the Fifth Circuit Court of Appeals concluded:

To summarize, the ordinary meaning of the words of the statute and its prior Supreme Court interpretation indicate that Section 1365 does not authorize citizens suits seeking either injunctive relief or the imposition of civil penalties where the defendant is not alleged to be in violation of an effluent standard, limitation or order. The section “authorizes only prospective relief” even though “civil penalties ... may be ordered by the court.” 756 F.2d at 396

The Sierra Club argues that the Hamker case is wrong and that the appellate judges misinterpreted the provisions of the Clean Water Act.

This Court is not only bound by the Hamker decision, but the Court must note that it fully agrees with the interpretation placed on § 1365 in the majority opinion.

IV The Court Has No Subject Matter Jurisdiction

Since the Court and Copolymer have questioned the Court’s subject matter jurisdiction, the Sierra Club must affirmatively show that the Court has subject matter jurisdiction. Sierra Club has failed to demonstrate that the Court has subject matter jurisdiction in these cases. In each of the cases, the Sierra Club alleges that the defendants are in violation of an effluent standard, limitation or order at the time the suits were filed. Since this allegation has been challenged by each of the defendants, the Sierra Club must present proof that the defendants were “in violation” at the time the suits were filed. However, the evidence presented in these cases clearly and unequivocally shows that none of the defendants were in violation at the time the suits were filed.

IV Conclusion

The Court finds that the defendants were not in violation of any standard, limitation or order at the time the suits were filed herein. Therefore, the Sierra Club is precluded from filing a citizens suit against the defendants under Section 1365(a) of the Act. Since the Court does not have subject matter jurisdiction, plaintiffs suits shall be dismissed.

      . The Sierra Club filed separate suits against Copolymer Rubber and Chemical Corporation (“Copolymer”) (CA 84-407-B), Allied Chemical Corporation (“Allied") (CA 84-408-B), Bercen Southern Division of Bercen Incorporated ("Bercen") (CA 84-409-B) and Formosa Plastics Corporation ("Formosa") (CA 84-410-B). Because the same jurisdictional issue is involved in each of the cases, the Court has consolidated the cases in the interest of judicial economy.

        . After oral argument was held on the Hamker jurisdiction issue and the matter was submitted to the Court, Sierra Club filed another motion for partial summary judgment on the issues of standing and liability.

      . 13 Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction § 3522.

      . Summer v. Mata, 449 U.S. 539, 547 n. 2, 101 S.Ct. 764, 769 n. 2, 66 L.Ed. 722 (1981); Louisville & N.R. Co. v. Mottley, 211 U.S. 149, 29 S.Ct. 42, 53 L.Ed. 126 (1908); and Cameron v. Hodges, 127 U.S. 322, 8 S.Ct. 1154, 32 L.Ed. 132 (1888).

      . McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 56 S.Ct. 780, 80 L.Ed. 1135 (1935); Diefenthal v. Civil Aeronautics Board, 681 F.2d 1039 (5th Cir.1982), cert. denied 459 U.S. 1107, 103 S.Ct. 732, 74 L.Ed.2d 956 (1983); Ortego v. Weinberger, 516 F.2d 1005 (5th Cir.1975).

      . 33 U.S.C. 1365(a) provides in pertinent part that "any citizen may commence a civil action ... against any person ... who is alleged to be in violation of” the relevant standards, limitations, or orders. (Emphasis supplied.)

      . Judge Jolly, in his opinion, emphasized on at least twenty separate occasions that the defendant must be “in violation" at the time the suit is filed in order for a citizen to file a suit under § 1365(a).

      . On oral argument, counsel for Sierra Club stated that the same argument the Sierra Club was making to this Court was made to the Fifth Circuit Court of Appeals in an amicus brief on rehearing in the Hamker case. The Hamker Court obviously rejected these arguments.

      . The Court does not believe that it is bound by the language in the concurring opinion regarding a suit filed against a "chronic episodic violator," 756 F.2d at 399, but even if this language applies, the facts as presented in the case sub judice fail to support the subject matter jurisdiction of the Court.

      . The allegations are set forth in paragraph 19 of each complaint filed in these cases.

      . The parties have filed numerous affidavits and exhibits into the record on the jurisdiction issue.

      . During oral argument, the Court unsuccessfully attempted on numerous occasions to have counsel for the Sierra Club point out any violations of any defendant which were pending on the date the suits were filed. Not only did plaintiff fail to set forth these violations during oral argument, but the record clearly demonstrates there were no violations on the dates the suits were filed herein.

      . The Court’s dismissal will be without prejudice. As noted in Hamker, the plaintiff may have a state damage claim which may be brought in a state court. Hamker v. Diamond Shamrock Chemical Company, 756 F.2d 392, 396 (5th Cir.1985). The Court expresses no opinion as to the validity of such a claim.


author: BARBOUR, District Judge.

text:
    George Dent BAILEY, Plaintiff, v. STATE FARM FIRE AND CASUALTY INSURANCE COMPANY, Defendant.
    Civ. A. No. J85-0143(B).
    United States District Court, S.D. Mississippi, Jackson Division.
    Nov. 7, 1985.
    William Larry Latham, Jackson, Miss., for plaintiff.
    Edward J. Currie, Jr., Jackson, Miss., for defendant.
   MEMORANDUM OPINION AND ORDER

BARBOUR, District Judge.

This action is presently before the Court on the Motion of Defendant, State Farm Fire and Casualty Company (“State Farm”), for Summary Judgment. The issue presented by State Farm’s Motion is whether Plaintiff, George Dent Bailey (“Bailey”), is precluded from recovering uninsured motorist benefits from State Farm since Bailey can no longer recover against the uninsured tortfeasor by virtue of the running of the six year statute of limitation.

FACTS

On January 13, 1979, Bailey, a guest passenger in a vehicle driven by John Gordon, was injured when Gordon lost control of the vehicle and crashed near Soddye Daisy, Tennessee. Bailey is a resident of Mississippi; Gordon is a resident of Florida. Bailey has not sued Gordon in either Mississippi, Florida or Tennessee. The statutes of limitation in Mississippi {Miss. Code Ann. § 15-1-49 (1972) (6 year statute of limitation)); Tennessee {Tenn.Code Ann. § 28-3-104 (1980) (1 year statute of limitation)) and Florida (7 Fla.Stat. § 95-ll(3)(a) (1982) (4-year statute of limitation)) now bar any action by Bailey against Gordon for injuries sustained by Bailey in the accident. The Mississippi six year statute of limitation applies to this action. Steele v. G.D. Searle & Company, 428 F.Supp. 646, 650-51 (S.D.Miss.1977).

Bailey filed the present suit on January 11, 1985, within the six year statute of limitation, against State Farm, seeking $20,000.00 in actual damages and $550,-000.00 in punitive damages for State Farm’s alleged bad faith refusal to pay Bailey’s uninsured motorist claim. Bailey did not join the tortfeasor, Gordon, as a defendant. State Farm seeks dismissal of the action on the basis that Bailey’s claim for uninsured motorist benefits is barred because Bailey is no longer “legally entitled to recover” against Gordon, as required by the uninsured motorist statute, Miss. Code Ann. § 83-11-101(1), since the six year statute of limitation bars any claim by Bailey against Gordon.

State Farm also argues that dismissal is appropriate since the running of the statute of limitation against Gordon, the uninsured tortfeasor, effectively destroys any subrogation rights State Farm has against Gordon.

LAW

The uninsured motorist statute, Miss. Code Ann. § 83-11-101(1) (Supp.1984), provides that:

[n]o automobile liability insurance policy or contract shall be issued ... unless it contains an endorsement or provisions undertaking to pay the insured all sums which he shall be legally entitled to recover as damages for bodily injury or death from the owner or operator of an uninsured motor vehicle____ [Emphasis added].

In support of its contention that Gordon is not “legally entitled to recover,” State Farm relies upon Aitken v. State Farm Mutual Automobile Insurance Company, 404 So.2d 1040 (Miss.1981); Matthews v. State Farm Mutual Automobile Insurance Company, 471 So.2d 1223 (Miss. 1985); Welch v. Indiana Lumberman’s Mutual Insurance Company, 673 F.2d 1326 (5th Cir.1982) (unpublished opinion). In Aitken, supra, the doctrine of inter-spousal immunity precluded the plaintiff from recovery against not only the uninsured tortfeasor, her husband, but also the uninsured motorist carrier for injuries she sustained prior to her marriage, allegedly due to her husband’s negligence. In Welch v. Indiana Lumberman’s Mutual Insurance Company, supra, the exclusive remedy of worker’s compensation precluded suit by the deceased employee’s administratrix against not only the uninsured co-employee but also the uninsured motorist carrier for the death of her husband during the scope of his employment. In Matthews, supra, the doctrine of interspousal immunity precluded suit against the insurer after divorce for injuries sustained prior to the marriage since the divorce did not revive the actions occurring prior to the marriage.

These cases relied upon by State Farm are distinguishable from the fact sub judice because the plaintiff in each case was barred from suing the uninsured tortfeasor on the date the suit was filed. In Aitken, Welch and Matthews, the plaintiffs were not “legally entitled to recover” damages from the uninsured tortfeasor on the date suit was filed because of the doctrine of interspousal immunity and the exclusive remedy of worker’s compensation. In this case, Bailey could have sued Gordon on January 11, 1985 — the day it sued State Farm — because the six year statute of limitation did not, at that time, bar an action against Gordon. Consequently, Bailey was “legally entitled to recover” damages from Gordon on the date suit was filed. Bailey’s failure to sue Gordon within the six year statute of limitation does not preclude Bailey’s claim against State Farm.

Further, the phrase “legally entitled to recover” as found in Miss.Code Ann. § 83-11-101(1) has not been interpreted by the Mississippi Supreme Court to require the insured to sue or obtain a judgment against the uninsured tortfeasor before suing the insurer. In Aitken, the Mississippi Supreme Court recognized that the phrase “legally entitled to recover” damages merely means that the insured must be able to establish fault on the part of the uninsured motorist. According to the Court

[t]his would mean that in a direct action against the insurer the insured has the burden of proving that the other motorist was uninsured, that the other motorist is legally liable for damages to the insured, and the amount of this liability.

404 So.2d 1040, 1045 (quoting Winner v. Ratzlaff, 211 Kan. 59, 505 P.2d 606, 610 (1973)). Accordingly, the Mississippi Supreme Court does not construe “legally entitled to recover” to require the insured to sue or obtain a judgment against the uninsured tortfeasor before suing the insurer.

State Farm next argues that dismissal is appropriate because Bailey’s failure to sue Gordon within the six year statute of limitation effectively destroyed State Farm’s subrogation rights granted pursuant to Miss. Code Ann. § 83-11-107 (1972). The Court is of the opinion that the alleged destruction of State Farm’s subrogation rights does not require dismissal of this suit. In Rampy v. State Farm Mutual Automobile Insurance Company, 278 So.2d 428 (Miss.1973), the uninsured motorist carrier argued that the suit against it should be dismissed because it did not receive notice of the filing of the suit by the uninsured against the uninsured tortfeasor, a Tennessee resident, until after the expiration of the Tennessee one year statute of limitation. In rejecting the uninsured motorist carrier’s contention, the Court stated that their argument “[was] not realistic” on the basis that uninsured motorists tend to be financially irresponsible, and, therefore, subrogation rights against them are of little, if any, value. See also, Puckett v. Liberty Mutual Insurance Company, 477 S.W.2d 811 (Ky.1971); Sahloff v. Western Casualty and Surety Company, 45 Wis.2d 60, 171 N.W.2d 914 (1969).

In effect, State Farm is asking this Court to shorten the statute of limitations for the filing of claims under uninsured motorist policies. That is a matter for the legislature, not for this Court. Accordingly, State Farm’s Motion for Summaiy Judgment in hereby denied.