author: STANLEY S. HARRIS, District Judge.

text:
    James W. ARTHUR, Jr., Plaintiff, v. AVIS RENT-A-CAR SYSTEM, INC., Defendant.
    Civ. A. No. 84-1273.
    United States District Court, District of Columbia.
    June 4, 1985.

      Douglas R. Stevens, Washington, D.C., for plaintiff.
    James C. Gregg, Washington, D.C., for defendant.
   MEMORANDUM OPINION AND ORDER

STANLEY S. HARRIS, District Judge.

This case is before the Court on defendant’s motion to dismiss based on the District of Columbia’s Compulsory/No Fault Motor Vehicle Insurance Act of 1982, D.C.Law 4-155, D.C.Code § 35-2101 et seq. (Supp.1984). In opposition, the plaintiff claims he is exempt from the Act’s restriction on civil liability suits because of his status as a taxicab driver. See D.C.Code §§ 35-2105(a) and 35-2111(e). See also Mayor’s Order No. 82-223 (Dec. 30, 1982).

The issue of the Act’s applicability to taxicab drivers is no longer novel, having been brought before at least two other judges of this Court. The Court adopts the comprehensive analysis of Judge Hogan’s opinion in Nasaka v. Data Access Systems, 602 F.Supp. 761 (D.D.C. Feb. 14, 1985). But see Adamoh-Faniyan v. McConnell, 613 F.Supp. 38 (D.D.C.1985). In Nasaka, Judge Hogan held that the exemption of taxicabs under § 35-2111(e) and the Mayor’s Order “applies only to the mandatory insurance provision, D.C.Code § 35-2103. The exemption does not prevent a taxicab owner or driver from claiming benefits under the No-Fault Law, nor does it entitle him to avoid the limitations on civil liability set forth in D.C.Code § 35-2105.” Id. at 8. To hold otherwise would be to put taxicab drivers in the enviable and untenable position of being free to sue while being free from most suits.

Once an individual is found to be covered by the restriction of § 35-2105(a), civil liability actions are precluded unless one of the six exceptions set forth in § 35-2105(b) is applicable. The plaintiff has not shown any facts warranting the applicability of exceptions 1-5. Furthermore, the plaintiff showed no more than $480 in medical expenses, a figure far short of the $5,000 amount required to maintain a civil action under exception 6.

The $5,000 threshold was found unconstitutional in Dimond v. District of Columbia, No. 83-1938 (D.D.C. Dec. 7, 1984). See also Adamoh-Faniyan v. McConnell, supra. This Court respectfully disagrees with the holding in Dimond (which now is on appeal).

A monetary threshold is rationally related to the Act’s purpose of eliminating expensive litigation for minor claims for non-serious injuries. It also is related to the Act’s purpose of providing adequate protection, since reduced litigation costs are expected by the legislature to reduce insurance costs, thereby making insurance rates reasonable and affordable. Although the $5,000 threshold may be the highest in the country, the monetary amount of the threshold was reached after considerable discussion and is under continuing study by the Council of the District of Columbia. See Fortieth Legislative Session, Proceedings, June 8, 1982, pp. 92-98, 124; Forty-First Legislative Session, June 22, 1982, pp. 136-38, 289-90; Compulsory/No-Fault Motor Vehicle Insurance Act of 1982, Improvements Amendments Act of 1983, Bill 5-246, July 8, 1983. While it is recognized that the Court of Appeals may agree with Judge Gasch in the Dimond case, this Court does not find a lack of constitutionality in the amount chosen of $5,000. A court is not to substitute its economic beliefs for the judgments of legislatures which have broad power to experiment with economic problems. Ferguson v. Skrupa, 372 U.S. 726, 730-31, 83 S.Ct. 1028, 1031, 10 L.Ed.2d 93 (1963).

Consistent with the foregoing reasoning and upon consideration of the motion to dismiss, the opposition thereto, and the subsequent additional filings, it hereby is

ORDERED, that the motion is granted and the complaint is dismissed.

SO ORDERED.


source: Caselaw Access Project

author: TEITELBAUM, Chief Judge.

license: Public Domain

text:
    Albert KOVACH, Plaintiff, v. Margaret HECKLER, Secretary of Department of Health and Human Services, Defendant. Calvin BEATTY, Plaintiff, v. Margaret HECKLER, Secretary of Department of Health and Human Services, Defendant. Larry B. SULLIVAN, Plaintiff, v. Margaret HECKLER, Secretary of Department of Health and Human Services, Defendant.
    Civ. A. Nos. 83-573, 84-1091 and 84-1651.
    United States District Court, W.D. Pennsylvania.
    June 5, 1985.

      Robert N. Pierce, Jr., Pittsburgh, Pa., for Kovach.
    John W. McTiernan, Pittsburgh, Pa., for Beatty.
    James D. Terry, Uniontown, Pa., for Sullivan.
    Anthony M. Mariani, Asst. U.S. Atty., Pittsburgh, Pa., for defendant in Civ. A. Nos. 83-573 and 84-1651.
    Barbara Carlin, Asst. U.S. Atty., Pittsburgh, Pa., for defendant in Civ. A. No. 84-1091.
   MEMORANDUM OPINION

TEITELBAUM, Chief Judge.

I.

Presently before the Court are petitions for attorneys’ fees and costs pursuant to 42 U.S.C. § 406(b)(1) by counsel for the above plaintiffs, all of whom prevailed in social security disability cases.

The petitions will be denied, without prejudice, for reasons set forth below. Counsel instead will be granted leave to file within thirty (30) days amended petitions which comply with the requirements set forth below.

II.

42 U.S.C. § 406(b)(1) provides in relevant part that:

Whenever a court renders a judgment favorable to a claimant under this sub-chapter who was represented before the court by an attorney, the court may determine and allow as part of its judgment a reasonable fee for such representation, not in excess of 25 percent of the total of the past-due benefits to which the claimant is entitled by reason of such judgment. ...

Rubber-stamp approval of the statutory maximum allowed in social security disability case should be avoided. It is the court’s responsibility to see that unreasonably large fees are not collected by attorneys who represent often indigent social security disability claimants. See Redden v. Cellebrezze, 370 F.2d 373-75 (4th Cir. 1966).

In general, those standards and procedures set forth in Lindy Bros. Builders, Inc. of Phila. v. American Radiator & Standard Sanitary Corp., et al (Lindy I), 487 F.2d 161 (3d Cir.1973) and progeny govern the award of fees in social security disability cases.

The court first must determine how many hours were reasonably spent, by whom, and in what manner. Lindy, 487 F.2d at 167. Next, the court must determine the reasonable hourly value of those services. Such determinations must be made for each attorney and for every category of activity. Different categories of activity might require different hourly rates. Lindy I, 487 F.2d at 167.

The product of the above yields what is known as the “lodestar”. Lindy I, 487 F.2d at 169.

The fee applicant has the burden of producing evidence pertaining to the above matters. See Ursic v. Bethlehem Mines, 719 F.2d 670, 677 (3d Cir.1983). Also, the fee applicant has the burden of persuasion concerning these matters. See In re Fine Paper Antitrust Litigation, 751 F.2d 562, 585 (3d Cir.1984).

The district court cannot, when considering the hours spent, award fees for services performed at the administrative level before the Secretary. See MacDonald v. Weinberger, 512 F.2d 144, 146 (9th Cir.1975). A separate application must be made to the Secretary for services performed at the administrative level. However, the aggregate of the fees awarded by the district court and by the Secretary may not exceed the statutory maximum of 25 percent of claimant’s past-due benefits. See Morris v. Social Security Administration, 689 F.2d 495, 496 (4th Cir.1982).

Once it has determined the lodestar, the court must take two other factors into consideration in.deciding whether to “adjust” the lodestar. It must determine the probability that the litigation would be successful and the quality of the work performed by counsel. Lindy I, 487 F.2d at 168-69.

Any adjustment based upon quality of work performed may be upward or downward. Lindy Bros. Builders, Inc. of Phila. v. American Radiator & Standard Sanitary Corp. (Lindy II), 540 F.2d 102, 118 (3d Cir.1976). The test is whether the lawyer discharged his professional burden with a degree of skill above or below that expected for lawyers of the caliber reflected in the hourly rate charged. Lindy II, 540 F.2d at 118.

Fee awards granted pursuant to 42 U.S.C. § 406(b)(1) are deducted from those benefits awarded to the claimant. See Spicer v. Califano, 461 F.Supp. 40, 48 (N.D.N.Y.1978). Such fee awards are closely analogous to fund-in-court cases. It follows for this reason that the court has an independent duty to scrutinize the fee petition. See Cunningham v. City of McKeesport, 753 F.2d 262, 267 (3d Cir.1985). It also follows that time spent in preparation of the fee petition does not benefit the claimant and therefore cannot be included in the lodestar amount. See In re Fine Paper Antitrust Litigation, 751 F.2d at 575.

III.

Petitioner Robert N. Pierce, Esq., seeks a total of $1,550 in fees at Civil Action No. 83-573, Albert Kovach v. Margaret Heckler, Secretary of HHS.

Petitioner John W. McTiernan, Esq., seeks a total of $2,973 in fees at Civil Action No. 84-1091, Calvin Beatty v. Margaret Heckler, Secretary of HHS.

Petitioner James D. Terry, Esq., seeks a total of $2,689.50 in fees and $162 in costs at Civil Action No. 84-1651, Larry B. Sullivan v. Margaret Heckler, Secretary of HHS.

Counsel in all three cases have failed to indicate what their hourly rates are for the services they have rendered. Consequently, this Court is unable to determine what would be reasonable awards under 42 U.S.C. § 406(b)(1).

All three petitions for an award of counsel fees therefore will be denied without prejudice. Counsel instead will be granted leave to file within thirty (30) days amended petitions which comply with the requirements set forth above.

An appropriate order will issue.


author: BARTLETT, District Judge.

text:
    Doug SIMMS, Plaintiff, v. Margaret M. HECKLER, Secretary of the Department of Health and Human Services, Defendant.
    No. 84-1211-CV-W-9.
    United States District Court, W.D. Missouri, W.D.
    June 7, 1985.

      Larry O. Denny, Kansas City, Mo., for plaintiff.
    Edward H. Funston, Asst. U.S. Atty., Kansas City, Mo., for defendant.
   ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

BARTLETT, District Judge.

Plaintiff seeks review of the final decision of the Secretary of Health and Human Services (Secretary) denying his application for disability insurance benefits under Title II of the Social Security Act (the Act), 42 U.S.C. §§ 401, et seq. and Supplemental Security Income (SSI) benefits under Title XVI of the Act, 42 U.S.C. §§ 1381-1383c. Section 205(g) of the Social Security Act, 42 U.S.C. § 405(g), provides for judicial review of a “final decision” of the Secretary under both Titles II and XVI.

On May 2, 1983, plaintiff, Doug Simms, filed a claim for disability insurance benefits and for SSI benefits. The Secretary made an initial determination and denied benefits on June 16, 1983. The Secretary denied plaintiffs request for reconsideration on July 13, 1983. On April 19, 1984, a hearing was held before an Administrative Law Judge (AU). On June 11, 1984, the AU found that plaintiff was not under a disability as defined in the Act. On November 16, 1984, the Appeals Council denied review of the AU’s decision; thus, the decision of the AU stands as the final decision of the Secretary.

This action is before the Court on cross-motions for summary judgment. Upon consideration of the briefs in support and in opposition, and for the reasons stated below, plaintiffs motion for summary judgment will be granted.

The standard for judicial review by this Court is whether the decision of the Secretary was supported by substantial evidence. Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971); Hancock v. Secretary of Dep’t. of H.E.W., 603 F.2d 739, 740 (8th Cir.1979). The determination of whether the Secretary’s decision is supported by substantial evidence requires review of the entire record, considering the evidence in support of and in opposition to the Secretary’s decision.

Substantial evidence means “more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 464, 95 L.Ed. 456 (1951); McMillian v. Schweiker, 697 F.2d 215, 220 (8th Cir.1983).

An individual claiming disability benefits has the burden of proving he is unable to return to past relevant work by reason of a medically determinable physical or mental impairment which has lasted or can be expected to last for a continuous period of not less than twelve months. 42 U.S.C. § 423(d)(1)(A). Once this is established the burden shifts to the Secretary to prove that there is some other type of substantial gainful activity in the national economy that the plaintiff can perform. O’Leary v. Schweiker, 710 F.2d 1334, 1337 (8th Cir.1983).

The Social Security Administration has promulgated detailed regulations setting out a sequential evaluation process to determine whether a claimant is disabled or not. The regulations referred to generally as Medical-Vocational Guidelines are codified in 20 C.F.R. §§ 404.1501, et seq. (1983), and in 20 C.F.R. §§ 416.901, et seq. (1983). The Eighth Circuit Court of Appeals summarized this evaluation process in McCoy v. Schweiker, 683 F.2d 1138, 1141-42 (8th Cir.1982) (en banc).

In an attempt to create an orderly and uniform framework for analysis and decision of disability claims, the Guidelines set out a fixed sequence of decision-making that Administrative Law Judges (AUs) are required to follow. First, a determination is made whether a disability claimant is currently engaged in substantial gainful activity; if so, he must be found not disabled. If the claimant is not engaged in substantial gainful activity, the next question is whether he is suffering from a severe impairment, defined as one that significantly limits the ability to perform basic work-related functions. If a severe impairment is not found, the claimant must be found not disabled. If there is a severe impairment, and it is one listed in Appendix 1 to Subpart P, the claimant is found disabled on the medical evidence alone. If the impairment is not listed in Appendix 1, the next inquiry is whether the claimant can perform relevant past work. If he can, a finding of no disability is required. Finally, if the claimant cannot perform relevant past work, the question then becomes whether he can nevertheless do other jobs that exist in the national economy, despite his having a severe impairment that prevents return to his previous work. At this stage, the AU must determine the claimant’s residual functional capacity (RFC), that is, what he can still do physically even with his impairment, and also the claimant’s age, education, and relevant work experience— the latter three findings being referred to as vocational factors, as opposed to RFC, which is a medical factor. The criteria of age, education, and work experience are relevant because the statute specifies them in defining disability, 42 U.S.C. § 423(d)(2)(A). If the AU’s findings as to RFC, age, education and work experience fit any of the combinations of those criteria contained in the Tables in Appendix 2 to Part 404, then the AU must reach the conclusion (either “disabled” or “not disabled”) directed by the relevant Rule or line of the applicable Table____

The AU found that plaintiff suffered from the impairment of a borderline personality disorder but that it was not a severe impairment and, therefore, plaintiff was not disabled.

By making this finding in the initial stage of the McCoy analysis, the AU did not determine whether plaintiff could perform his past relevant work, did not evaluate plaintiff’s residual functional capacity, and did not determine the effect of his nonexertional impairments on his ability to perform jobs that exist in the national economy.

A severe impairment is an impairment that significantly limits the ability to perform basic work-related functions. McCoy, 683 F.2d at 1142. The AU’s determination that plaintiff does not suffer from a severe impairment is not supported by substantial evidence.

Plaintiff testified that each attempt at employment had been unsuccessful because he was too slow, he lacked concentration, he was not able to remember simple instructions, and he is hyperactive. For instance, plaintiff’s most recent employment was at Sexton Metal where he was supposed to sand a specific number of wooden shells by hand each hour. Plaintiff was too slow and could not concentrate on his job. It took plaintiff twelve to fifteen minutes to do what other workers were accomplishing in four to five minutes. Plaintiff was employed at this job for ten days. In 1981, plaintiff worked at Stafos Farms where he packaged produce on an assembly line. Plaintiff was too slow and worked at this job for twelve days. In 1979, plaintiff worked at A. Reich Produce where he packaged orders. Plaintiff was too slow and could not remember what he was supposed to be placing in each order. Plaintiff was also supposed to load cartons of produce from a conveyor belt to trucks.

Loading them, but I had trouble doing that because I had trouble judging, you know, be able to judge what size box fit in what space real fast because along, you know, they were feeding it to you fast and you had to take them off fast like different size boxes. I’d have trouble putting those, in other words, you know, judging which box fit in what space so the load would be even, you know.
I was slow there. I’d, you know, I’d be thinking, trying to decide as a box was coming to me which — where to put it, you know. Then the boxes would pile up on me and some of them might fall on the floor.

Tr. 46. Plaintiff worked at this job for fourteen days. Prior to that plaintiff worked at Corn Products from November, 1976, to August, 1977. Plaintiff testified that he was too slow at this job also. Prior to that plaintiff worked as a gas attendant at a Mobil gas station. Plaintiff was unable to do this job because he was hyperactive, tended to talk too fast, and was unable to communicate with the customers.

Plaintiff further testified that he took prescription medication during March (presumably of 1983) to calm his nerves and reduce the hyperactivity. The medication was prescribed by Dr. Vera at the Western Missouri Mental Health Center. Plaintiff is now participating in a biofeedback program to calm his nerves and to teach him to deal with his hyperactivity. Plaintiff attends these sessions twice a week for approximately an hour.

Plaintiff also testified that he hears voices which affects his ability to concentrate. There are two types of voices. One type is a positive voice which calms and soothes him. The other type is a negative voice which tends to excite him. The voices battle each other. Tr. 57-58.

The AU did not make any credibility findings, or in any other way reject plaintiffs testimony.

Plaintiffs friend, Anton Bougadis, testified that he had known plaintiff for approximately eight years. Plaintiff has occasionally worked for him. Bougadis testified that plaintiffs mind wanders and he cannot remember simple instructions. For instance, Bougadis would send plaintiff on an errand to the store to pick up a few items. Plaintiff would return three to four hours later without the items he was sent to get. Bougadis testified that in a conversation with plaintiff, plaintiff would drift off and start talking about something else.

“The subjective testimony of the claimant, his family, and others must be considered by [the Secretary] even if it is uncorroborated by objective medical evidence.” Basinger v. Heckler, 725 F.2d 1166, 1169 (8th Cir.1984). “If the [Secretary] is to reject such testimony, it must be specifically discussed and credibility determinations expressed.” Smith v. Heckler, 735 F.2d 312, 317 (8th Cir.1984). The failure to make credibility determinations concerning such evidence requires a reversal. Id. Although the AU recited the testimony by Bougadis, the AU did not make any credibility determinations or in any other way reject Bougadis’ testimony.

The sole medical record consists of two physicians’ reports. Dr. Lidgren, a psychiatrist, apparently examined plaintiff on a single occasion. There is no indication in Dr. Lidgren’s report that he did anything other than talk with plaintiff. Dr. Lidgren concluded that plaintiff does not have a mental impairment so severe that he is not able to engage in substantial gainful activity. Dr. Lidgren did diagnose plaintiff as having a borderline personality disorder.

Dr. Vera, plaintiff’s treating physician, performed tests on plaintiff consisting of a neuropsychological interview, the Halstead-Reitan neuropsychological battery, a tactile performance test, the trail making test, the seashore rhythm test, the Weschler Adult Intelligence Scale — revised (WAIS), the Aphasia screening test, a category test, the Weschler memory scale, and the NNPI. Dr. Vera stated that plaintiff is currently undergoing outpatient treatment consisting of biofeedback and individual counseling. In Dr. Vera’s opinion, plaintiff “is not at this time able to engage in competitive employment.” Tr. 137. “It appears that the patient is likely to experience difficulties in complex spatial-perceptual functioning including complex planning and sequencing and responding in novel learning situations.” Tr. 141. In reference to the voices or auditory hallucinations which plaintiff testified about, Dr. Vera wrote: “It may [be] hypothesized that the patient is experiencing such types of interference which frighten him and increase his level of anxiety.” Tr. 142.

There is overwhelming evidence in the record that plaintiffs ability to perform basic work-related activities is significantly limited by his mental impairment. Therefore, the Secretary should have concluded that the plaintiff had carried his burden of presenting substantial evidence that he suffers from a severe impairment. Having determined that the Secretary erroneously concluded that the plaintiff did not suffer from a severe impairment, the question remains whether this case should be remanded for further proceedings.

There is substantial evidence in the record that plaintiff’s inability to remember, his slowness and his lack of concentration prevent him from performing his past relevant work. There is nothing in the record refuting this. Therefore, the Secretary should have concluded that plaintiff could not perform his past relevant work.

At this point in the analysis the burden of persuasion shifts to the Secretary to establish by substantial evidence that plaintiff could perform some other work that exists in the national economy. McCoy, 683 F.2d at 1146-47. The Secretary had ample opportunity to develop the record in order to determine if there was substantial evidence that plaintiff was not disabled. The Secretary failed to do so.

Had the Secretary properly applied the law in this Circuit, had the Secretary properly considered the evidence, and had the Secretary properly made the findings fairly presented by the record, plaintiff would have been found disabled. Therefore, remand would simply delay receipt of benefits. Tennant v. Schweiker, 682 F.2d 707, 710 (8th Cir.1982).

For the reasons stated above, it is hereby ORDERED that:

1) defendant’s motion for summary judgment is denied;
2) plaintiff’s motion for summary judgment is granted;
3) the Secretary shall calculate the amounts due under this Order and process this claim on an expedited basis; and
4) within thirty days from the date of this Order, the Secretary shall report to the Court the amounts due plaintiff under this Order and the date when the benefits will be commenced.

      . The transcript of plaintiffs testimony does not appear to be reliable. For instance, the term biofeedback is recorded as "vital feedback." There are numerous examples which common sense suggest have not been accurately transcribed. For instance, plaintiff's counsel supposedly asked this question: “Mr. Bougadis, did you ever assist Mr. Simms in paying [obtaining] any employment in any kind of produce company?” Tr. 71. The ALJ supposedly asked this question: "You had an variation, significant amount, in the last year?” Tr. 37. The ALJ supposedly asked this question: "You previously told me that when you were born that you had some surgery right after you worked?" Tr. 37. Plaintiff supposedly testified as follows: "If I hadn’t been — had to have this information [incision] I would have been (inaudible) [retarded].” Tr. 38. When asked about his problems with hyperactivity at the age of fourteen, plaintiff supposedly testified as follows: "Well, it was— hard for me to be calm or sit — still for very long. You finally have to start weaving [moving] for you to be alive [able] to play, at least some part of my body, you know____” Tr. 38.
      These are just a few examples of portions of the transcript which the Court suspects were not accurately transcribed. This is yet another example of the Secretary’s inability to produce an accurate and reliable record for this Court to review.


author: DIAMOND, District Judge.

text:
    Joyce Ann BURTON, Administratrix of the Estate of Paul S. Burton, Deceased, Plaintiff, v. JOHNS-MANVILLE CORPORATION, et al., Defendants.
    Civ. A. No. 81-1934.
    United States District Court, W.D. Pennsylvania.
    June 10, 1985.

      Robert Jennings, Henderson & Goldberg, Pittsburgh, Pa., for plaintiff.
    Kenneth S. Robb, Doherty & Robb, Pittsburgh, Pa., for Auto Friction Corp.
   MEMORANDUM OPINION

DIAMOND, District Judge.

Plaintiff commenced this diversity action on October 29, 1981, against the defendant Auto Friction Corporation and others under the Pennsylvania Wrongful Death and Survival Acts to recover damages for the death of her husband from his exposure to asbestos dust and fibers emitted, inter alia, by brake linings sold to decedent’s employer by the defendant Auto Friction Corporation.

A jury awarded damages of $292,509 against Auto Friction on May 10, 1985, and it then filed a motion for judgment N.O.V. or in the alternative for a new trial, which, along with plaintiff’s motion for inclusion of delay damages, are presently before the court. For the following reasons, the defendant’s motions will be denied and the plaintiff’s motions granted.

Defendant’s Motions for N.O.V. or New Trial

The only point in support of either of defendant’s motions which requires discussion is point 4 in support of its motion for judgment N.O.V.

Defendant contends in point 4 that: “The plaintiff failed to produce competent testimony to establish that the Decedent’s possible exposure to defendant’s products was a substantial factor in bringing about Decedent’s injuries and death.”

The two main principles applicable to our consideration of defendant’s motion for judgment N.O.V. are: (1) the court must view the evidence in the light most favorable to the party who secured the jury verdict, and (2) a jury verdict may not stand if it is based on mere speculation. Eastern Associated Coal v. Aetna Cas. & Sur. Co., 632 F.2d 1068, 1074 (3d Cir.1980), cert. denied, 451 U.S. 986, 101 S.Ct. 2320, 68 L.Ed.2d 843 (1981).

At trial the plaintiff introduced evidence, viewed in the light most favorable to the plaintiff, that for a period of approximately 10 years while working for the Beck-Arnley Company in Pittsburgh, Pennsylvania, plaintiff’s decedent was subjected to a substantial exposure to asbestos dust and fibers from old brake linings, which were the products of manufacturers whose identity plaintiff did not attempt to establish at trial, and also from new brake linings, approximately 98% of which were supplied to decedent’s employer by the defendant Auto Friction Corporation, and that the decedent died of adenocarcinoma of the lung of which his exposure to asbestos at BeckArnley was a major cause.

Specifically, plaintiff produced David Keith Parkinson, M.D. who first testified that, based on his examination of the medical records of the decedent (plaintiff’s exhibits 1-6) it was his opinion that the decedent died of adenocarcinoma of the right lung. (Tr. 14-16). In addition, a death certificate, plaintiff’s exhibit 6, introduced under Rule 803(9) Fed.R.Evid. over defendant’s objection, listed adenocarcinoma of the lung as the cause of decedent’s death, and decedent’s hospital record, plaintiff’s exhibits 1-5 supra, introduced without objection, provided independent evidence that plaintiff had, and was being treated for, adenocarcinoma of the lung.

Next, in response to a hypothetical question, Dr. Parkinson testified that in his opinion to a reasonable degree of medical certainty decedent was subjected to a substantial exposure to asbestos dust during his employment at Beck-Arnley, (Tr. 18-22) and that the grinding operation in the plant (i.e., grinding of new brake linings 98% of which were supplied by defendant Auto Friction) made a significant contribution to decedent’s exposure there to asbestos dust. (Tr. 24).

Finally, the doctor was asked this question:

Doctor, on the basis of the facts that I have given you in the hypothetical, hypotheticals, since I’ve given you several facts at various times, on the basis of assuming those facts in evidence, as well as your knowledge and experience involving brake lining type activities, as well as your knowledge and experience with asbestos related disease questions, do you have an opinion to a reasonable degree of medical certainty as to whether Mr. Burton’s exposure to asbestos at the Beck/Arnley plant played any role in the development of his adenocarcinoma of the lung?

(Tr. 26-27).

To which he gave this answer: “I believe it played a significant, major role in the induction of his adenocarcinoma.” (Tr. 27).

On cross-examination, however, Dr. Parkinson testified that he could not offer an opinion as to how much the exposure to asbestos from grinding of new brake linings (i.e., defendant’s products) contributed to plaintiff’s lung cancer. At Tr. 72 counsel for defendant asked Dr. Parkinson on cross-examination, “... I’m concerned solely with his exposure to any possible asbestos fibers that came from the grinding of the new brake lining.”

The Doctor answered:

A I cannot tell you how much that contributed to the induction of his lung cancer.
Q If at all?
A Well, if at all, but I suspect it did because there was asbestos there coming from that operation.

Defendant argues from this that plaintiff’s evidence was fatally deficient because, since her expert was unable to opine on cross-examination that defendant’s product was a substantial cause of decedent’s lung cancer and death, there was no evidence from which the jury properly could find the necessary causal relationship between defendant’s defective product and decedent’s disease and death. We disagree.

The law does not require that each of concurring contributing causes itself be sufficient to bring about the harm of which plaintiff complains. It is sufficient that all concurring causes be a substantial factor in bringing about that harm. Here, Dr. Parkinson testified that decedent’s exposure to asbestos fibers at Beck-Arnley was a significant or major factor in causing the adenocarcinoma of the lung from which the decedent died and that asbestos from new brake linings sold to Beck-Arnley by the defendant Auto Friction constituted a significant portion of the asbestos dust and fibers to which decedent was exposed. That evidence was a sufficient basis for the jury to conclude under the instructions of the court on the law as it pertains to legal cause that defendant’s defective product was a substantial contributing cause of decedent’s disease and death. It was not necessary that plaintiff prove through expert opinion or otherwise that defendant’s asbestos dust and fibers independent of other asbestos dust and fibers were a substantial contributing cause of the decedent’s disease and death. Of course the doctor could not testify as to how much any particular asbestos product, among many, contributed to decedent’s disease and death, but he could, and did, testify that asbestos was the cause and that defendant’s product contributed substantial asbestos dust and fibers to decedent’s environment. That was enough. Indeed, whether he realized it or not, the net effect of Dr. Parkinson’s testimony on direct was that the asbestos emitted by defendant Auto Friction’s product was a substantial factor in bringing about decedent’s disease and death.

The law in that regard was set forth in the following charge approved by the Pennsylvania Supreme Court in Menarde v. Philadelphia Transp. Co., 376 Pa. 497, at 503, 103 A.2d 681, 685 (1954):

Plaintiff is entitled to recover for all the injuries caused by defendant’s negligence. This question of causation of the particular injuries complained of is for you, the Jury, to determine from the evidence before you. For the defendant to be liable for plaintiff’s injuries, you need not find that defendant’s negligence was the sole cause of such injuries. A wrongful act may be the legal cause of damage though other causes may have joined in producing the final result. It is sufficient if you find that defendant’s conduct, or negligence, was a substantial factor in bringing about the injury complained of. that is, if you determine that defendant’s negligence was either the sole cause of a substantial contributing cause of the injury, plaintiff is entitled to recover. The fact that some other factor may have been a contributing causes with the negligence of the defendant does not relieve the defendant from liability unless defendant shows that such other cause would have produced the injury complained of independently of his negligence. And, even though concurrent causes may have contributed to plaintiff’s injury, if defendant’s negligence was a substantial factor in producing the result, in contributing to the injury, defendant is liable for the full amount of damages sustained, without any apportionment or diminution for the other cause or causes, (emphasis supplied).

See also and cf. Hamil v. Bashline, 481 Pa. 256, 264-69, 392 A.2d 1280, 1284-86 (1978).

Dr. Parkinson’s testimony on direct examination was sufficient, and if there was a contradiction or an inconsistency in his testimony on direct and cross, that was for the jury to consider in weighing that testimony. In doing so they could reconcile it, accept it in whole or part, or reject it in whole or part. They obviously chose to accept it, and that was their prerogative.

To summarize, plaintiff’s expert testified (1) that decedent died of adenocarcinoma of the right lung, (2) that this disease was caused by decedent’s exposure to asbestos dust and fibers at Beck-Arnley and elsewhere, and (3) that defendant Auto Friction’s products contributed a substantial portion of the asbestos dust and fibers at Beck-Arnley. From that testimony the jury could infer, and not merely speculate, that defendant’s products were a substantial contributing cause of decedent’s disease and resultant death.

An order will follow denying the defendant’s motion for judgment N.O.V. or in the alternative for a new trial.

Plaintiffs Motion for Delay Damages

Rule 238 of the Pennsylvania Rules of Civil Procedure, Pa.R.C.P. No. 238, 42 Pa. C.S.A., provides in its pertinent part that under certain conditions, which have been met in this case:

(a) ... in an action seeking monetary relief for bodily injury, death or' property damage ... the court ... shall
(1) add to the amount of compensatory damages in the ... verdict of a jury ... damages for delay at ten (10) percent per annum, not compounded, which shall become part of the ... verdict or decision;
(2) compute the damage for delay from the date the plaintiff filed the initial complaint in the action or from a date one year after the accrual of the cause of action, whichever is later, up to the date of the ... verdict____

Rule 238 must be applied in a diversity action brought in a federal district court in Pennsylvania. Jarvis v. Johnson, 668 F.2d 740 (3d Cir.1982). Therefore, plaintiff’s motion will be granted.

Decedent died on May 22, 1980, and the complaint was filed on October 29, 1981. Thus, the beginning date for the computation of delay damages under Rule 238(a)(2) is October 29, 1981. The jury returned its verdict awarding compensatory damages of $292,509 on May 10, 1985. The total time from complaint to verdict is three years and 222 days. Plaintiff is therefore entitled to delay damages of $105,546. (10% x $292,509 = $29,250.90 X 3 = $87,752.70 + $17,793.30 (10% -T- 365 = .000274 X $292,-509 = 80.15 X 222 = $17,793.30) = $105,-546).

Accordingly, an order will follow entering judgment as of May 10, 1985, in favor of the plaintiff and against the defendant Auto Friction Corporation in the amount of $398,055.

ORDER OF COURT

AND NOW, this 10th day of June, 1985, for the reasons stated in the memorandum opinion filed this date in the above-captioned case, IT IS ORDERED that the motion of defendant Auto Friction Corporation for judgment N.O.V., or in the alternative, for a new trial be, and the same hereby is, denied; and,

IT IS FURTHER ORDERED that plaintiff’s motion for inclusion of delay damages be, and the same hereby is, granted, and that judgment be, and the same hereby, is entered in favor of the plaintiff against the defendant in the amount of $398,055.

      . Transcript references are to a partial transcript consisting only of the testimony of Dr. Parkinson and a trial motion by defendant Auto Friction to strike that testimony. No other transcript was available to the court, therefore, all other references to the evidence at trial are from the court’s notes/

      . In its motion for new trial, defendant contends that the court erred in admitting the death certificate. The defendant did not challenge admissibility of the death certificate on authenticity grounds, instead defendant objected to it on the grounds as stated in ¶ 13 of its motion that the death certificate was inadmissible in the absence of “testimony from the physician who signed the death certificate, or evidence that said doctor was a treating or attending physician." (emphasis supplied). In our view that objection went to weight, not admissibility, and it was overruled, since: (1) even though not challenged on this ground, the document was self-authenticating under Rule 902(2), Fed.R. Evid., (2) it was a record filed as required by Pennsylvania law, 35 P.S. § 450.501, and (3) under Pennsylvania law it was prima facie evidence of its contents. 35 P.S. § 450.810.
      In any event, no harm to defendant resulted {see Rule 103(a) Fed.R.Evid.) since Dr. Parkinson testified that he reviewed the decedent’s work history and all of his medical records and concluded therefrom that decedent died from adenocarcinoma of the right lung caused by his exposure to asbestos dust and fibers. The medical records consisted, inter alia, of decedent’s hospital records which reported his diagnosis and treatment. As noted in the text, supra, these were admitted without objection by defendant. It is fair to say that those records and the certificate of death are the "type reasonably relied upon by experts in [Dr. Parkinson’s] particular field in forming opinions or inferences upon the subject [as to which he testified]." Therefore, they did not have to be admissible in evidence as a prerequisite to their use by the witness. Rule 703 Fed.R.Evid.

      . The parties stipulated at trial that defendant’s brake linings were composed of 50% asbestos.

      . In this diversity action, decedent’s exposure to defendant's products and his disease and death all occurred in Pennsylvania, and no party questions that Pennsylvania law applies.


author: LAFFITTE, District Judge.

text:
    HERMANDAD-UNION DE EMPLEADOS DEL FONDO DEL SEGURO DEL ESTADO, by itself and on behalf of its members; Osvaldino Rojas Lugo, Plaintiffs, v. Jose Trias MONGE, Carlos V. Davila, Hiram Torres Rigual, Jorge Diaz Cruz, Carlos J. Irizarry Yunque, individually and in their official capacity, their agents, employees, and successors in office, Defendants.
    Civ. No. 84-253 HL.
    United States District Court, D. Puerto Rico.
    June 10, 1985.
    Pedro J. Varela, Hato Rey, P.Ri, for plaintiffs.
    Miriam Naveira de Rodon, Hato Rey, P.R., for defendants.
   OPINION AND ORDER

LAFFITTE, District Judge.

This 42 U.S.C. Section 1983 suit finds its origin in a disciplinary proceeding held before the Supreme Court of Puerto Rico (the Court), involving plaintiff Osvaldino Rojas Lugo, an attorney admitted to practice before the Puerto Rican courts. The facts are not in dispute. Both parties have moved for summary judgment and have appended to their respective motions all pertinent documents related to the proceedings held before the Puerto Rico Supreme Court.

I.

BACKGROUND.

By May 6, 1982, the Puerto Rico Supreme Court had received various complaints against plaintiff. On that date, said Court ordered the Solicitor General of Puerto Rico to conduct an investigation thereon, and to present his findings and recommendations to the Court. The Solicitor General rendered his report on March 8, 1983, concluding that, in his opinion, there were not sufficient grounds to discipline plaintiff. The Court concurred. In re Rojas Lugo, 83 JTS 93.

The Court, however, took note that in one of the complaints referred to the Solicitor General, No. Q-375-A, it had found that plaintiffs practice of law before the State Insurance Fund and the Industrial Commission, while simultaneously holding the office of President of the union representing the employees of the former, “on its facts presented an apparent conflict of an ethical nature”, and had ordered plaintiff to file a position brief. In re Rojas Lugo, pp. 1-2. The Court further noted that plaintiffs position had been that his legal practice before the Industrial Commission presented no ethical conflict, nor an appearance thereof.

Acting pursuant to Rule 13(e) of its Rules, 4 LPRA App. I-A, the Court went on to hold that plaintiffs dual role presented a conflict of interest or an appearance of impropriety within the meaning of Canon 21 of the Puerto Rico Code of Professional Ethics, 4 LPRA App. IX. In re Rojas Lugo, pp. 3-4. Accordingly, the Court ordered plaintiff “to abstain from representing injured workers in their cases before the State Insurance Fund and before the Industrial Commission while he holds the office of President of the Union de Empleados del Fondo del Seguro del Estado.” Id., at 5.

Plaintiff complains that the Puerto Rico Supreme Court did not afford him a hearing, nor an opportunity to tell his side of the story, before banning him from performing his dual roles as attorney of injured workers before the State Insurance Fund and the Industrial Commission, while holding the office of President of the union representing the public employees of the State Insurance Fund, in violation of his due process rights under the Constitution of the United States. This might or might not constitute a due process violation, as it concerns the constitutional requirements of notice and hearing. Goss v. Lopez, 419 U.S. 565, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975). However, for the reasons discussed later in this opinion, this argument should have been addressed to the U.S. Supreme Court via 28 U.S.C. § 1258, given the posture of plaintiffs claim when it reached this Court.

Thereafter, plaintiff resigned the presidency of the Union and the Court ruled that he could “continue representing the cases he has pending before the Commission”, Order of January 3, 1984, p. 1 (official translation), App. I to defendants’ Motion to Dismiss and/or for Summary Judgment, though it cautioned him from “holding any kind of directive or advisory position from which he could influence the Union while at the same time representing other interests before said administrative bodies.” Id., at 2.

Shortly thereafter, on November 9, 1983, plaintiff filed a motion for reconsideration before the Puerto Rico Supreme Court (App. VIII to defendants’ Motion), which the Court denied on January 12, 1984 (App. IX to defendants’ Motion). In that motion, plaintiff asserted, inter alia, that he had not been afforded “the due process of law guaranteed in Rule 13” (official translation, p. 22), yet he purported to reserve “all his rights under the Constitution and the Laws of the United States of America to air them in due time before the Federal Forum.” Id., at 23.

After the Court denied his motion for reconsideration, on January 31, 1984, Rojas Lugo filed the original complaint in this case against the named Justices of the Puerto Rico Supreme Court, in their individual and official capacities, claiming violations to his rights to freedom of speech and association, due process of law, and equal protection of the laws. Plaintiff did not seek review of the Puerto Rico Supreme Court decision before the U.S. Supreme Court. See 28 U.S.C. § 1258. The Hermandad Unión de Empleados del Fondo del Seguro del Estado (hereinafter the Union), joined in as plaintiff. The Union claimed that its rights also had been infringed by the October 21, 1983 judgment, inasmuch as it had been deprived of its freely-elected representative. A few days later, on February 10, 1984, the federal plaintiffs filed an amended complaint pursuant to FRCP 15(a). The amended complaint reiterated the allegations of the original complaint and, additionally, broadened plaintiffs’ challenge to the disciplinary order by mounting a due process attack on the constitutionality of Rule 13(e) of the Rules of the Supreme Court of Puerto Rico. See note 2, supra.

Defendants filed a Motion to Dismiss and/or for Summary Judgment, and plaintiffs countered with a Motion for Cross-Summary Judgment. Following a hearing held on March 1, 1984, the case was ripe for decision.

II.

JURISDICTION.

In their motion, defendants question, among other things, this Court’s jurisdiction. Their claim is well-founded and dis-positive, thus relieving us from proceeding any further.

In District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983), the Supreme Court held that there is no subject matter jurisdiction in a district court to review a judicial decision of the highest court of a state involving a disciplinary proceeding against an attorney. The Court made it plain that such review is to be had exclusively, if at all, before itself. 460 U.S. at 482, 103 S.Ct. at 1314.

It must be highlighted, however, that it is a question of federal law whether a proceeding before another tribunal was truly judicial for the purpose of ascertaining the jurisdiction of a federal court.

In the case at bar, plaintiff was disciplined in a proceeding that was judicial in nature. See Feldman, supra, at 481, 103 S.Ct. at 1314. See also, Middlesex County Ethics Comm. v. Garden State Bar Ass’n., 457 U.S. 423, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982); In Re The Justices of The Supreme Court of Puerto Rico, 695 F.2d 17, 21 (1st Cir.1982); Martinez Rivera v. Trias Monge, 587 F.2d 539 (1st Cir.1978), aff'd., 448 F.Supp. 48 (D.P.R.1978). Indeed, the main thrust of plaintiffs’ complaint is against the procedural rules as applied and the general procedure employed in such judicial proceeding.

The original complaint in this case sought from this Court to review a judgment of the Supreme Court of Puerto Rico stemming from an attorney disciplinary proceeding that is strictly judicial in nature. But the decision in Feldman clearly applies to federal district courts’ challenges to attorney disciplinary orders rendered by state courts in judicial proceedings. The amended complaint, however, tries to avail itself of an exception to the above mentioned rule, recognized in Feldman itself. There, the Supreme Court distinguished between an attempt to seek review of a state judgment at the Federal District Court level and a general challenge to the constitutionality of the substantive rule enforced by the state court. 460 U.S. at 482-86, 103 S.Ct. at 1314-17. The latter type of suit, the Court held, may be entertained by a Federal District Court, provided that it does “not necessarily require litl to review a final state-court judgment in a judicial proceeding.” Id., at 486, 103 S.Ct. at 1317. The standard to be applied, the Court stated, is whether the allegations in the federal complaint are “inextricably intertwined” with the state judgment. Id., at 483 n. 16 and 486-87, 103 S.Ct. at 1315 n. 16 and 1317.

A close examination of the amended complaint demonstrates that it meets the “inextricably intertwined” standard. Short of an impermissible advisory opinion, there is nothing this Court could do in this case that would satisfy both the plaintiffs and Feldman. In their prayer for relief, plaintiffs request that this Court enter a decree

“prohibiting, restraining and enjoining defendants, their successors in office and all their agents, from applying Rule 13(e) and from allowing (sic) herein plaintiff Rojas to continue being an officer of the Union and practicing before the Industrial Commission...”

Thus, plaintiffs seek a declaration that Rule 13(e) is unconstitutional, as well a reversal of the precise judgment of the Puerto Rico Supreme Court. The latter we obviously may not do, according to Feldman. Other federal courts have had no difficulty applying this branch of the Feldman doctrine. See, e.g., Zimmerman v. Grievance Committee, 585 F.Supp. 29 (N.D.N.Y.1983), aff'd., 726 F.2d 85 (2d Cir. 1984); Michaelis v. Nebraska State Bar Ass’n, 717 F.2d 437, 439 (8th Cir.1983); Tofano v. Supreme Court of Nevada, 718 F.2d 313 (9th Cir.1983); Verner v. State of Colorado, 533 F.Supp. 1109 (D.Colo.1982), aff'd., 716 F.2d 1352 (10th Cir.1983); Lowrie v. Goldenhersh, 716 F.2d 401 (7th Cir. 1983); Rosquist v. Jarrat Const. Corp., 570 F.Supp. 1206, 1210 (D.N.J.1983); Connell v. Connell, 571 F.Supp. 622, 623 (E.D.Pa.1983); National Carloading Corp. v. Shulman, 570 F.Supp. 3, 4-5 (N.D.Ga.1983); Mattas v. Supreme Court of Pennsylvania, 576 F.Supp. 1178 (W.D.Pa.1983); Levanti v. Tippen, 585 F.Supp. 499, 502-03 (S.D.Calif.1984); Rogers v. Supreme Court of Virginia, 590 F.Supp. 102 (E.D.Va.1984).

The former request, that this Court declare that Rule 13(e) is unconstitutional and enjoin its future application, presents a more difficult problem. It requires this Court to ascertain whether it is possible to distinguish in this case between a challenge to a particular individual’s claim, which Feldman bars, and a generalized attack on the constitutionality of a rule, which Feldman permits. See also, Supreme Court of New Hampshire v. Piper, — U.S. ---, 105 S.Ct. 1272, 84 L.Ed.2d 205 (1985), aff'd., 723 F.2d 110 (1st Cir.1983). As another District Judge has put it: “This distinction is subtle, and the courts have found the concept difficult to implement.” Mattas v. Supreme Court of Pennsylvania, 576 F.Supp. 1178, 1183 (W.D.Pa.1983).

Nevertheless, with the lone exceptions of Howell v. State Bar of Texas, 710 F.2d 1075,1077 (5th Cir.1983), cert. denied, — U.S. ---, 104 S.Ct. 2152, 80 L.Ed.2d 538 (1984), (“general constitutional challenge to the state’s disciplinary scheme”), and Mattas v. Supreme Court of Pennsylvania, 576 F.Supp. 1178, 1184 (W.D.Pa.1983), (same), all such generalized attacks which other federal courts have permitted under the FELDMAN doctrine involved statutes or rules which application to the plaintiff continued even after the state court judgment. See Tofano v. Supreme Court of Nevada, supra (attack by a failed bar applicant to the bar exam grading procedures; applicant would again be subject to such procedures upon taken anew the examination); Schneider v. Colegio De Abogados De Puerto Rico, 546 F.Supp. 1251, 1267-68 (D.P.R.1982), mandamus issued in part, sub. nom. In Re The Justices of The Supreme Court of Puerto Rico, 695 F.2d 17 (1st Cir.1982) (continued application to plaintiffs of compulsory bar dues requirement); Verner v. State of Colorado, supra, (continued application to plaintiff of continuing legal education requirements; Lowrie v. Goldenhersh, supra, (continued application to plaintiff of rule requiring all bar aspirants to approve a bar examination, even if admitted to the bar in other states); Rogers v. Supreme Court of Virginia, supra, (general attack by failed aspirant to state licensing procedures to which she would again be subject in order to gain admission); Levanti v. Tippen, supra, (same as Tofano, supra); Solomon v. Samuelson, 586 F.Supp. 280-284 (D.Conn.1984), (attack on residency requirement); Schwartz v. Judicial Retirement System of N.J., 584 F.Supp. 711, 715 (D.N.J.1984), (attack on rule prohibiting pensioned judges from practicing law). The reason is fairly obvious. It inheres in Article Ill’s case or controversy requirement. In all the aforementioned cases, the challenged rule either was of continuous application to the federal plaintiff after the state court judgment or would in all probability again apply to such plaintiff upon the occurrence of a non-speculative future event, such as a new bar admission application by that very plaintiff.

In the case at bar, on the other hand, the future applicability of Rule 13(e) to plaintiff Rojas Lugo is entirely speculative. As defendants have argued before this Court, “/in/ order for that to happen Rojas would have to commit acts arguably beyond the pale of the Cannons of Ethics, someone would have to file a complaint and the Justices would have to decide that no hearing is necessary.” Defendants’ Memorandum, p. 17. As the Supreme Court has often reminded us:

“As is well known, the federal courts established pursuant to Article III of the Constitution do not render advisory opinions. For adjudication of constitutional issues, concrete legal issues, presented in actual cases, not abstractions’, are requisite. This is as true of declaratory judgments as any other filed ...
“The power of courts to pass upon the constitutionality of acts of Congress arises only when the interest of litigants require the use of this judicial authority for their protection against actual interference. A hypothetical threat is not enough ... It would not accord with judicial responsibility to adjudge, in a matter involving constitutionality, between the freedom of the individual and the requirements of public order, except when definitive rights appear upon the one side and definitive prejudicial interferences upon the other.” United Public Workers v. Mitchell, 330 U.S. 75, 89-90, 67 S.Ct. 556, 564, 91 L.Ed. 754 (1947).

See also, Golden v. Zwickler, 394 U.S. 103, 109-110, 89 S.Ct. 956, 960, 22 L.Ed.2d 113 (1969); O’Shea v. Littleton, 414 U.S. 488, 493-99, 94 S.Ct. 669, 674-77, 38 L.Ed.2d 674 (1974); Rizzo v. Goode, 423 U.S. 362, 371-73, 96 S.Ct. 598, 604-05, 46 L.Ed.2d 561 (1976); Ashcraft v. Mathis, 431 U.S. 171, 172-73, 97 S.Ct 1739, 1740, 52 L.Ed.2d 219 (1977); City of Los Angeles v. Lyons, 461 U.S. 95, 101-10, 103 S.Ct. 1660, 1664-69, 75 L.Ed.2d 675 (1983).

All of the above is equally applicable to the plaintiff Union. Furthermore, there are additional reasons why the Union does not meet the case or controversy requirement.

First, there is not the required causal connection between this plaintiffs injury— the loss of its President — and Rule 13(e). See, Warth v. Seldin, 422 U.S. 490, 505, 95 S.Ct. 2197, 2208, 45 L.Ed.2d 343 (1975); Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 38, 96 S.Ct. 1917, 1924, 48 L.Ed.2d 450 (1976); Duke Power Co. v. Carolina Environmental Study Group, 438 U.S. 59, 72, 98 S.Ct. 2620, 2630, 57 L.Ed.2d 595 (1978). The Union’s alleged injury is due to the fact that, having been required by the Puerto Rico Court to elect between the Union president and his legal practice, plaintiff chose the latter over the former. Thus, only a reversal of the Puerto Rico Supreme Court judgment could afford the Union the relief it seeks from such alleged injury. But, under FELDMAN, this we may not do.

Second, the Union may not attack Rule 13(e), which governs attorney disciplinary proceedings before the Supreme Court of Puerto Rico, because of what we deem an obvious reason: the Union is evidently not an attorney; as such, it is wholly beyond the zone of interests implicated by Rule 13(e). See, Association of Data Processing Service Organizations v. Camp, 397 U.S. 150, 153, 90 S.Ct. 827, 829, 25 L.Ed.2d 184 (1970); Barlow v. Collins, 397 U.S. 159, 90 S.Ct. 832, 25 L.Ed.2d 192 (1970).

Since the only claim presented in the amended complaint over which theoretically we could act — the constitutionality of Rule 13(e) — would require us to render an impermissible advisory opinion, we must dismiss the complaint. All of its claims are “inextricably intertwined” with the October 21, 1983 judgment. Feldman, supra, 460 U.S. at 483 n. 16, and 486-87, 103 S.Ct. at 1317.

We need not dwell extensively on another reason adduced by defendants in support of their motion for summary judgment, which would constitute an independent basis for dismissal. Feldman recognized the possibility that even a general attack on the constitutionality of a statute or rule might be barred by res judicata-collateral estoppel principles. 460 U.S. at 487-89, 103 S.Ct. at 1317-18. Plaintiff could and did assail the constitutionality of Rule 13(e) in his motion for reconsideration before the Supreme Court of Puerto Rico. The latter’s order denying the motion could be construed as a prior adjudication on the merits. Compare Mattas v. Supreme Court of Pennsylvania, 576 F.Supp. 1178, 1184-85 (W.D.Pa.1983), with Wood v. Or ange County, 715 F.2d 1543, 1547 (11th Cir.1983), cert. denied, — U.S. ---, 104 S.Ct. 2398, 81 L.Ed.2d 355 (1984); and Rogers v. Supreme Court of Virginia, 590 F.Supp. 102, 108 n. 2 (E.D.Va.1984). Thus, plaintiff had the “full and fair opportunity to litigate constitutional claims” to which he was entitled. See, Allen v. McCurry, 449 U.S. 90, 95, 101 S.Ct. 411, 415, 66 L.Ed.2d 308 (1980). See also, Migra v. Warren City Sch. Dist. Bd. of Educ., 449 U.S. 90, 104 S.Ct. 892, 66 L.Ed.2d 308 (1984); Mercado Riera v. Mercado Riera, 100 PRR 939 (1972); Pol Sella v. Lugo Christian, 107 DPR 540 (1978).

WHEREFORE, upon consideration of the record and the proceedings before the Puerto Rico Supreme Court, briefs and argument of counsel, defendants’ motion for summary judgment is hereby GRANTED.

The Clerk shall enter judgment accordingly.

IT IS SO ORDERED.

      . The named defendants were Justices of the Puerto Rico Supreme Court at the time this action was commenced. Three of the named Justices have retired from the Court during the pendency of this action, to wit: Justices Carlos V. Dávila, Hiram Torres Rigual, and Jorge Diaz Cruz. As to cases allowing Commonwealth Justices and state judges to be named as defendants in a Section 1983 suit, see, In Re Justices of the Supreme Court of Puerto Rico, 695 F.2d 17, 20-21 (1st Cir. 1982); Pulliam v. Allen, 466 U.S. 522, 104 S.Ct. 1970, 80 L.Ed.2d 565 (1984); Supreme Court of Virginia v. Consumers Union, 446 U.S. 719, 100 S.Ct. 1967, 64 L.Ed.2d 641 (1980).

      . Rule 13(e) provides, in pertinent part:
      "(e) After receiving the answer or the report mentioned in the foregoing paragraph, the Court may order the dismissal of the complaint or submit the matter to one of its justices for determination of cause, said justice shall report his opinion and recommendation to the Court in full. Likewise, it may impose the corresponding sanctions without need of further proceedings when facts justifying the imposition of sanctions arise from the answer itself ..."

      . Feldman, therefore, is at odds with any purported reservation of federal rights at the Puerto Rico Supreme Court level, in the context of disciplinary proceedings involving an attorney. There is no need for us to resolve whether such a reservation would be valid beyond the context of attorney disciplinary proceedings or whether such reservations are strictly limited to cases where the state proceeding is a by-product of the Pullman abstention doctrine. Railroad Commission of Texas v. Pullman, 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941). Compare England v. Louisiana Medical Examiners, 375 U.S. 411, 84 S.Ct. 461, 11 L.Ed.2d 440 (1964) with Feldman, 460 U.S. at 482-84 n. 16, 103 S.Ct. at 1315-16 n. 16; Allen v. McCurry, 449 U.S. 90, 101 n. 17, 103-04, 101 S.Ct. 411, 418 n. 17, 419-20, 66 L.Ed.2d 308 (1980); and Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 104 S.Ct. 892, 79 L.Ed.2d 56 (1984). See also, Partido Nuevo Progresista v. Barreto Pérez 639 F.2d 825, 826-27 n. 1 (1st Cir.1980); Romany v. Colegio de Abogados, 742 F.2d 32, 35 (1st Cir. 1984); Howell v. State Bar of Texas, 674 F.2d 1027, 1030-31 (5th Cir.1982); Switlik v. Hardwicke Co., 651 F.2d 852, 858-59 (3rd Cir.1981); Olitt v. Murphy, 453 F.Supp. 354, 358-60 (S.D.N. Y.1978), aff'd., 591 F.2d 1331 (2nd Cir.1981), cert. denied, 444 U.S. 825, 100 S.Ct. 46, 62 L.Ed.2d 31 (1979); 28 East Jackson Enterprises, Inc. v. Cullerton, 551 F.2d 1093, 1096 (7th Cir.1977).

      . This is not a case where we are asked to assess the validity of a rule promulgated in a non-judicial proceeding. In such a case a federal court does not review a state court judicial decision and, accordingly, has jurisdiction to proceed into the merits of the controversy. As stated in Mattas v. Supreme Court of Pennsylvania, 576 F.Supp. 1178, 1182 (W.D.Pa.1983):
      "It is well settled that a state court has exclusive power to promulgate regulations to and impose discipline in the supervision of its licensed attorneys. (Citations omitted.) This power may not, however, be exercised in derogation of federally protected rights. (Citations omitted.) Even a lawyer has a right to 'enjoy first-class citizenship'.’’

      . In plaintiffs’ "Motion for Reconsideration”, p. 22 (official translation), App. VIII to defendants’ Motion to Dismiss and/or for Summary Judgment, plaintiff asserted that:
      "We respectfully believe that due process of law guaranteed in said Rule [13] has not been observed in this case because, up to this moment, the case rather resembles that of a ‘trial by affidavit.’ Cf. Roth v. Lugo, 87 P.R.R. 365, 367 (1963).”


author: SUSAN II. BLACK, District Judge.

text:
    WASTE AID SYSTEMS, INC., a Florida corporation, Plaintiff, v. CITRUS COUNTY, FLORIDA, a subdivision of the State of Florida; Craig Hunter, County Administrator; and E.L. Dougherty, Citrus County Engineer, Defendants.
    No. 83-81-Civ-Oc-14.
    United States District Court, M.D. Florida, Ocala Division.
    June 11, 1985.

      John Hubbard, Frazer & Hubbard, Dunedin, Fla., for plaintiff.
    Andrew G. Pattillo, Jr., Russell Lapeer, Ocala, Fla., for defendants.
   OPINION AND ORDER

SUSAN II. BLACK, District Judge.

This case came on to be heard on cross motions for summary judgment. Plaintiff’s Motion for Partial Summary Judgment was filed on February 19, 1985, and defendants responded in opposition on March 20, 1985. Defendants’ Renewed Motion for Summary Judgment was also filed on February 19, 1985. A hearing on the parties’ motions was held on March 20, 1985, at which time the Court heard the oral argument of counsel. The parties agree that the following issues of liability are ripe for determination by the Court: (1) whether a ban against the acceptance of out-of-county waste at a county’s landfill violates the equal protection clause of the United States Constitution; and (2) whether imposition of such a ban deprives the plaintiff of his constitutional right to due process, thus giving rise to a private cause of action under 42 U.S.C. § 1983.

FINDINGS OF FACT

Pursuant to the parties agreed facts in the Pretrial Stipulation, filed on March 20, 1985, and their Stipulation of Facts, filed on March 6, 1985, the Court finds the following facts are not in dispute:

1. Plaintiff is a corporation organized and existing under the laws of the State of Florida with offices in the City of New Port Richie, Florida.

2. Defendant Citrus County, Florida (hereinafter “Citrus County”) is a political subdivision of the State of Florida.

3. Defendant Craig Hunter was, at all times material to this action, employed as the County Administrator of Citrus County, Florida.

4. Defendant E.L. Dougherty (hereinafter “Dougherty”) is, and was at all time material to this action, employed as the County Engineer of Citrus County.

5. Plaintiff is engaged in the business of collecting, hauling, and disposing of solid waste, serving residential and commercial customers located in Pasco County, Florida and serving commercial customers in Hernando and Pinellas counties.

6. Citrus County owns and operates a solid waste disposal landfill located within the geographical borders of Citrus County, Florida.

7. Plaintiff used the Citrus County landfill for the disposal of solid waste during April and May 1983. Plaintiff deposited $9,000.00 with Citrus County as a users’ tipping fee prior to plaintiff’s use of the landfill; and upon imposition of the ban by Citrus County, this deposit was refunded to plaintiff.

8. There is no apparent difference in the nature or quality of solid waste collected within Citrus County and the solid waste collected by plaintiff outside of Citrus County.

9. At a regular meeting of the Citrus County Board of Commissioners (hereinafter “Board”) on April 26, 1983, the Board voted unanimously to ban the use of the Citrus County landfill to anyone bringing solid waste from outside of the boundaries of Citrus County, and to accept only solid waste collected in Citrus County at the landfill. The ban was not to become effective until May 3, 1983. A notice dated April 26, 1983, was sent by Dougherty to all users of the Citrus County landfill. The next regular meeting of the Board was scheduled for May 3, 1983.

10. Citrus County’s reasons for banning the deposit of waste collected outside its boundaries at its landfill were: (a) to conserve landfill space in order to prevent overcrowding and threats to health, safety, and welfare of the citizens of Citrus County; (b) to avoid unnecessary proliferation of landfills in order to prevent contamination of the ground water supply upon which the citizens of Citrus County are dependent; and (c) to prevent economic hardship and additional expense to the citizens of Citrus County in subsidizing solid waste disposal from other counties.

11. Before the May 3, 1983, meeting, plaintiff, by its attorneys, presented to the County Attorney for Citrus County a brief setting forth the legal opinions and position of plaintiff’s attorneys in opposition to the proposed ban on the acceptance of solid waste collected from outside of Citrus County. The ban did not become effective May 3, 1983.

12. At the regular meeting on May 3, 1983, the Board reconsidered the question of denying acceptance of solid waste collected from outside of Citrus County. A public hearing was held at that meeting and plaintiff’s corporate secretary, William R. Peterson, Jr., appeared along with plaintiff’s attorney of record in this case, Anne Williams, to argue against the ban. Mr. Peterson addressed the Board advising that plaintiff traveled from Pasco County to Citrus County to dump solid waste at the Citrus County landfill because the Citrus County road system was better; the Citrus County landfill was better; and the use of the Citrus County landfill was more cost effective for plaintiff. At that time, the Board stayed the effect of the ban, and scheduled further reconsideration of it for the Board’s next regular meeting on May 17, 1983.

13. At the May 17, 1983, meeting, the proposal to refuse acceptance of solid waste collected from outside Citrus County was considered once again. At that meeting, plaintiff's attorney, Anne Williams, represented plaintiff in addressing the Board and expressed her opinions and views on behalf of plaintiff that the proposed ban was unconstitutional. She suggested that plaintiff would seek redress and relief from such a decision by an action in the federal courts.

14. Following that presentation by plaintiff’s attorney, the Board voted unanimously to ban the acceptance at the Citrus County landfill of solid waste collected from outside of Citrus County; and the Board voted unanimously as well to make that decision effective one week later, May 24, 1983. The Board rejected as well a request by a city councilman of the City of Dunnellon, Florida to make an exception to the ban on solid waste collected in Citrus County, to allow the City of Dunnellon (located in Marion County, Florida) to use the Citrus County landfill.

15. Plaintiff had continuous use, without interruption, of the Citrus County landfill, for the deposit of solid waste collected outside of Citrus County until May 24, 1983, when the ban became effective.

16. On June 12, 1984, the Board adopted Ordinance No. 84-04 which included, among its prohibitions, a proscription against “any collector [disposing] of solid waste in the county’s solid waste disposal facility if said solid waste was generated and/or collected outside of the boundaries of Citrus County.”

17. The ban imposed by Citrus County has had an impact on the economic and business interests of plaintiff.

CONCLUSIONS

The parties further agree on the two issues to be determined by the Court and the applicable law. The first issue is whether the Citrus County ban violates the equal protection clause of the fourteenth amendment. See Second Amended Complaint at Count I. The second issue to be resolved is whether imposition of the ban has deprived the plaintiff of due process of law in violation of 42 U.S.C. § 1983. Id. at Count II. The Court will discuss each of these issues, respectively.

Equal Protection

The plaintiff concedes that Citrus County’s ban on accepting waste generated outside the county at the landfill is neither based on suspect criteria nor restrictive of fundamental rights. See Plaintiff’s Memorandum of Law in Support of its Motion for Partial Summary Judgment at 1. A court reviewing a classification that neither restricts fundamental rights nor is based on suspect class need only determine whether the classification passes the test of mere rationality. Exxon Corporation v. Eagerton, 462 U.S. 176, 103 S.Ct. 2296, 2308, 76 L.Ed.2d 497 (1983). This “lenient” standard looks to whether the classification bears a rational relationship to a legitimate public purpose which- it is intended to achieve. Id.; Western & Southern Life Insurance Company v. State Board of Equalization of California, 451 U.S. 648, 668, 101 S.Ct. 2070, 2083, 68 L.Ed.2d 514 (1981).

Legitimate Public Purpose

Initially, the plaintiff asserts that the purpose of Citrus County’s ban is in fact to hoard a natural resource (the landfill) to the exclusion of all those residing outside the county. Relying on a line of commerce clause cases which found such a governmental goal impermissible, the plaintiff asks this Court to find Citrus County’s objective in effecting the ban an illegitimate public purpose under the equal protection clause. See, e.g., City of Philadelphia v. New Jersey, 437 U.S. 617, 628, 98 S.Ct. 2531, 2537, 57 L.Ed.2d 475 (1978). The Court, however, finds the cases relied on by the plaintiff inapplicable to this case. Determining the propriety of government action under the commerce clause requires examining the facts in a wholly different legal context than under the equal protection clause. See, e.g., Metropolitan Life Insurance Company v. Ward, — U.S. —; —, 105 S.Ct. 1676, 1682-84, 84 L.Ed.2d 751 (1985). Further, the Court finds that, even if the landfill is a natural resource, Citrus County simply is not “hoarding” it. Unlike the cases cited by the plaintiff, Citrus County has not forbidden either the passage of out-of-county waste across its borders or the deposit of such waste at any landfill in Citrus County except for the one involved in this case.

The Court agrees with defendants that the goals sought by invoking the ban are legitimate. See Findings of Fact at paragraph 10. The State of Florida has delegated to Citrus County the power and responsibility to “[pjrovide and regulate waste and sewage collection and disposal....” Fla.Stat. §§ 125.01(l)(k), 163-3167(l)(a)-(d), 163.3177(6)(c). Maintaining an available landfill is integral to Citrus County's providing efficient and safe waste disposal for its citizens. By ensuring that the landfill is available to its citizens, Citrus County prevents waste generated in the county from being left on roadsides, walkways, private yards, and other areas in which the county takes pride. Reserving the landfill for its citizens also avoids burdening other counties with Citrus County’s waste. This, in turn, obviates the additional costs Citrus County would incur transporting waste for disposal elsewhere— costs which would ultimately be borne by the citizens of Citrus County. Having found the Citrus County ban is aimed at a legitimate public purpose, the conservation of the landfill for the county’s citizens, which will effect health, economic, and aesthetic benefits, the Court need only determine whether the ban is a rational means of achieving that goal.

Rational Means

A classification by a governing entity will be sustained if the legislative body “could have reasonably concluded that the challenged classification would promote a legitimate state purpose.” Exxon, 103 S.Ct. at 2308; Minnesota v. Clover Leaf Creamery Company, 449 U.S. 456, 470, 101 S.Ct. 715, 727, 66 L.Ed.2d 659 (1981). “[Cjourts are not empowered to second-guess the wisdom of state policies.” Western & Southern Life, 451 U.S. at 670, 101 S.Ct. at 2084. Whether, in fact, the particular classification will accomplish its objective is not the question but instead whether the legislative body could rationally have believed and decided that the particular classification chosen would promote the desired purpose. Id. at 671-72, 101 S.Ct. at 2084-2085.

The Board determined it was necessary to limit access to the landfill in order to slow the rate of its depletion as an available waste site. See Affidavits of Boardmembers, filed on May 29, 1984. Citrus County is obligated to provide waste disposal for its citizens now as well as in the long term. By prohibiting only out-of-county waste at its landfill, the Board has ensured that the county’s residents will have a place to dispose of their waste now and in the future. Additionally, by applying the ban only to this one landfill, Citrus County has not forbidden either the transportation of foreign waste across its borders or the disposal of such waste at other than this one landfill. The Court finds that distinguishing waste generated outside Citrus County from waste generated within the county is rational in view of the responsibilities and specific goals of Citrus County. Having found the goals of Citrus County are directed to a legitimate public purpose and that the means of achieving those goals is rational, the Court will grant defendants’ Motion for Summary Judgment as to Count I of the Second Amended Complaint.

Due Process of Law

The plaintiff’s due process claim is brought pursuant to 42 U.S.C. § 1983. The two essential elements of a section 1983 cause of action are: (1) “the conduct complained of was committed by a person acting under color of state law;” and (2) “the conduct deprived a person of rights secured by the Constitution or laws of the United States.” Morrison v. Washington County, Alabama, 700 F.2d 678, 682 (11th Cir.1983), cert. denied, — U.S. ---, 104 S.Ct. 195, 78 L.Ed.2d 171 (1983). Section 1983 provides only that deprivations of “rights, privileges or immunities secured by the Constitution and the laws” give rise to private causes of action. Dollar v. Haralson County, Georgia, 704 F.2d 1540, 1543 (11th Cir.1983), cert. denied, — U.S. ---, 104 S.Ct. 399, 78 L.Ed.2d 341 (1984). Such rights secured by the Constitution and the laws include those property rights which “are created and their dimensions ... defined by existing rules or understandings that stem from an independent source such as state law.” Board of Regents of State Colleges v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972).

Defendants’ position is that the plaintiff has failed to adequately demonstrate a property or liberty interest that has been infringed and that, even if the plaintiff had a property interest, its right to due process has not been violated. The plaintiff responds that state statutes which provide specified procedures substantively restricting Citrus County’s ability to legislate have created a property interest, citing Parks v. Watson, 716 F.2d 646, 657 (9th Cir.1982). Plaintiff then asserts that it was deprived of that statutory property interest without due process of law. The Court initially finds that Parks does not sufficiently support the plaintiff’s position.

In Parks, the Ninth Circuit recognized that “there is some debate whether state statutes providing for particular procedures amount to ‘entitlements’ protected by due process,” concluding that “in this circuit ... they do.” Id. at 656. The court was asked to determine whether the plaintiff had a property interest in his application to have certain platted city streets vacated in order to proceed with its building project. The court noted that the city council was required to hear any petition where there was no apparent reason not to allow the vacation. Pursuant to a state statute governing the council’s actions regarding vacating petitions, the council was required to make certain determinations. If the council found that the owners of the area consented, that there was notice, and that the vacation would not prejudice the public interest, the council was required to vacate the street without discretion. Id. at 656-57. The court ruled that the state statute created a property interest because “the statutory scheme placed significant substantive restrictions on the agency’s actions” regarding the plaintiff’s request to have streets vacated. Id. at 657.

The plaintiff’s reliance on Parks for the proposition that Florida statutes have created a similar property right in the dumping of waste at the Citrus County landfill reflects too sweeping a generalization of the holding therein. The facts in this case do not reveal a statutory scheme comparable to that in Parks. The specific statute relied on herein by the plaintiff requires that certain procedures be followed when the Board enacts an ordinance rather than a resolution. See Fla.Stat. § 125.66(2). The statute restricts the Board’s actions in enacting an ordinance generally but does not purport to recognize a property interest of the plaintiff with the specificity of the statute in Parks.

The focus in Parks was the restrictions on the legislative body’s decision-making process which consequently created a legitimized expectation. Section 125.66(2) does not in any way require that the Board make a determination as to the legitimacy of plaintiff’s alleged interest in the landfill or require that the Board then act to secure that interest for the plaintiff. In Parks, the street vacation was a property interest that could come to fruition only by the working of the statute. The statute now before the Court does not rise to the level of legitimizing an expectation. See, e.g., Parks, 716 F.2d at 657. Therefore, the Court finds the plaintiff in the case sub judice has failed to demonstrate that any Florida statute has created a property interest for the plaintiff in the Citrus County landfill.

Even if the plaintiff had demonstrated a legitimate property interest, the Court finds that the requirements of notice and opportunity to be heard prior to the alleged deprivation have been met. A notice of the ban dated April 26, 1983, was sent to the plaintiff. Findings of Fact at paragraph 9. Prior to the ban becoming effective on May 3, 1983, the plaintiff submitted its legal brief in opposition to the Board’s action. See id. at paragraph 11. On May 3, 1983, the Board held a public hearing at which the plaintiff’s corporate secretary and counsel of record appeared and argued in support of plaintiff’s position. Id. at paragraph 12. The Board postponed the ban’s effective date pending further hearings on the matter. A second public hearing was held on May 17, 1983, and plaintiff’s counsel of record again stated plaintiff’s position that the ban was unconstitutional. Id. at paragraph 13. Only after plaintiff’s counsel was heard on May 17 did the Board finally approve the ban, setting its effective date for May 24, 1983. The Court finds that even if the plaintiff had a property interest in the landfill, there has not been a deprivation of any such right without adequate due process of law. Therefore, the Court will grant defendants’ Motion for Summary Judgment as to Count II of the Second Amended Complaint.

Accordingly, it is

ORDERED:

1. That plaintiff’s Motion for Partial Summary Judgment, filed herein on February 19, 1985, is denied.

2. That defendants’ Motion for Summary Judgment as to Count I and Count II of the Second Amended Complaint, filed herein on February 19, 1985, is granted.

3. That the Clerk of the Court shall enter Judgment for the defendants as to Counts I and II of the Second Amended Complaint.

      . This fact was presented in defendants’ statement of their case in the Pretrial Stipulation; it was not stipulated to in that document. The Court, however, at the hearing on March 20 questioned plaintiffs counsel regarding this assertion and counsel at that time accepted this fact as true for purposes of the summary judgment. See also Affidavits of Board members filed on May 29, 1984.

      . Even viewed under a Commerce Clause examination, the facts in this case do not support a finding that the defendant is hoarding a natural resource. In the primary commerce clause case relied on by the plaintiff, Philadelphia v. New Jersey, 437 U.S. 617, 98 S.Ct. 2531, 57 L.Ed.2d 475 (1978), "hoarding” occurred when the defendant state forbade entry of waste generated outside the state, thus closing "its borders to all waste from other States.” Id. at 619. Citrus County has neither refused access to all its landfills nor forbidden the transportation of out-of-county waste through its borders. The county has not closed its borders to out-of-county waste but has only limited its available landfills. The landfills in Citrus County are not, therefore, a hoarded resource. The plaintiff may utilize other landfills in the county, though the most cost-efficient one may be foreclosed to it.

      . Section 125.66(2), Florida Statutes, states:
      The regular enactment procedure shall be as follows: The board of county commissioners at any regular or special meeting may enact or amend any ordinance, except as provided in subsection (5), if notice of intent to consider such ordinance is given at least 15 days prior to said meeting, excluding Sundays and legal holidays. Such notice shall be made by the clerk of the board of county commissioners and shall be kept in a separate book which shall be open to public inspection during the regular business hours of his office. Certified copies of ordinances or amendments thereto enacted under this regular enactment procedure shall be filed with the Department of State by the clerk of the board of county commissioners within 10 days after enactment by said board and shall take effect upon receipt of official acknowledgement from that office that said ordinance has been filed. However, any ordinance may prescribe a later effective date.


author: WHITMAN KNAPP, District Judge.

text:
    In the Matter of Demetrios PAPADAKIS, Contempt Proceedings Under Title 28, United States Code, § 1826(a).
    No. M 11-188(WK).
    United States District Court, S.D. New York.
    June 11, 1985.
    Rudolph W. Giuliani, U.S. Atty., S.D. N.Y., New York City, for government.
    Martin L. Schmulker, New York City, for Demetrios Papadakis; Lawrence Mark Stern, New York City, of counsel.
   MEMORANDUM & ORDER

WHITMAN KNAPP, District Judge.

Demetrios Papadakis applies to be released from the civil confinement imposed upon him on December 12, 1984 when he failed to answer questions posed to him by a grand jury.

There would appear to be little question that if I should, in the exercise of my discretion, deny the application, such exercise of discretion would be upheld on appeal. ' Simkin v. United States (2d Cir. 1983) 715 F.2d 34, 38. However, the Simkin case unambiguously commands me to make “a conscientious effort to determine whether there remains a realistic possibility that continued confinement might cause the contemnor to testify.” 715 F.2d at 37. I am quite satisfied that defendant’s religious protestations are a sham. However, I am equally satisfied that he spoke the truth when he told me that he would stay in jail as long as I deemed necessary, but would in no event respond to the government’s demand that he testify. His motives are clearly ignoble (the desire ultimately to obtain the fruits of his friends’ criminal activity), but that is beside the point. I cannot conscientiously find that there is any realistic possibility that further confinement will induce testimony. Under the command of Simkin I must order his release. In this connection it is certainly not irrelevant that on a prior occasion he accepted ten years of imprisonment rather than turn informer for the government.

SO ORDERED.


author: ASPEN, District Judge:

text:
    Mercedes CONNOLLY, Plaintiff, v. Judy SAMUELSON, d/b/a International Tours of Manhattan, Defendant.
    No. 85 C 2301.
    United States District Court, N.D. Illinois, E.D.
    June 12, 1985.

      Shelley R. Smith/William S. Piper, Epton, Mullin & Druth, Ltd., Chicago, 111., for plaintiff.
    Kevin R. Sido/Robert S. Knowles, Hinshaw, Culbertson, Moelmann, Hoban & Fuller, Chicago, 111., for defendant.
   MEMORANDUM OPINION AND ORDER

ASPEN, District Judge:

Plaintiff Mercedes Connolly (“Connolly”), a citizen of Illinois, brings this diversity action against defendant Judy Samuelson (“Samuelson”), a Kansas citizen. Connolly essentially alleges that while participating in a land tour of South Africa she was injured while crossing a stream; she sues Samuelson for negligently planning and marketing the tour package. Presently before the Court is Samuelson’s motion to dismiss for lack of personal jurisdiction. For the reasons set forth below, Samuelson’s motion is granted.

On a motion to dismiss for lack of jurisdiction, the plaintiff has the burden of providing sufficient evidence to support jurisdiction. Caicos Petroleum Service Corp. v. Hunsaker, 551 F.Supp. 152, 153 (N.D.Ill.1982); Captain International Industries, Inc. v. Westbury, Chicago, Inc., 416 F.Supp. 721, 722 (N.D.Ill.1975). The court may consider affidavits submitted by the parties on the question of jurisdiction. O’Hare International Bank v. Hampton, 437 F.2d 1173, 1176 (7th Cir.1971). “[I]f a defendant’s affidavit contesting jurisdiction is not refuted by a counter-affidavit filed by the plaintiff, the facts alleged in the defendant’s affidavit are taken as true.” Kutner v. DeMassa, 96 Ill.App.3d 243, 51 Ill.Dec. 723, 727, 421 N.E.2d 231, 235 (1st Dist.1981); Caicos Petroleum, 551 F.Supp. at 153.

A federal court has jurisdiction over a diversity suit such as this one only if a court of the forum state would have jurisdiction had the suit been brought there. Lakeside Bridge & Steel Co. v. Mountain State Construction Co., Inc., 597 F.2d 596, 598 (7th Cir.1979), cert. denied, 445 U.S. 907, 100 S.Ct. 1087, 63 L.Ed.2d 325 (1980). State courts in Illinois can assert personal jurisdiction over a nonresident defendant who “does business” within the state or who has performed one of the acts enumerated in the Illinois long arm statute. Cook Associates, Inc. v. Lexington United Corp., 87 Ill.2d 190, 199, 57 Ill.Dec. 730, 734, 429 N.E.2d 847, 851 (1981). The long arm statute sections arguably relevant to this case give the Illinois courts jurisdiction “as to any cause of action arising from ... (1) The transaction of any business within this State; or (2) the commission of a tortious act within this State.” Ill.Rev.Stat. ch. 110, ¶ 2-209.

A. Doing Business in Illinois

Connolly alleges in her complaint that Samuelson “does business in the State of Illinois.” Complaint, para. 2. Illinois courts have long applied the doctrine that a non-resident defendant may effectively consent to be sued in the state by virtue of doing business there. Cook Associates, 87 Ill.2d at 199-03, 57 Ill.Dec. at 733-36, 429 N.E.2d at 850-53. However, this doctrine applies only when there is some regularity of activities in Illinois. Id., 87 Ill.2d at 202-03, 57 Ill.Dec. at 735-36, 429 N.E.2d at 852-53.

It is clear that Samuelson’s commercial activities do not bring her within the doing business doctrine. In an undisputed affidavit, Samuelson avers that she does not maintain an office or any bank accounts in Illinois, has no agents or employees located in Illinois, does not travel herself to Illinois to do business and does not advertise or otherwise actively solicit business in Illinois. In fact, Samuelson swears that Connolly and her husband are the only Illinois residents with whom she can remember doing business. Because these uncontested facts are taken to be true, we find that Samuelson’s conduct does not amount to doing business in Illinois.

B. Transaction of Business in Illinois

The first section of the Illinois long arm statute that might possibly relate to this case gives the courts jurisdiction when the cause of action arises from the transaction of business within the state. Although Connolly does not explicitly argue that this section applies here, she does argue that the exercise of personal jurisdiction over Samuelson is warranted by Samuelson’s sale “in Illinois” of the South African tour package. However, the factual allegations in both Connolly’s complaint and Samuelson’s affidavit demonstrate the attenuated contact Samuelson has had with Illinois. Samuelson never travelled to this state concerning any of her business dealings with Connolly; rather, all of their correspondence was by mail or telephone. Moreover, their business had nothing to do with Illinois, but dealt with a tour of South Africa that was arranged in Kansas. Absent any other connection to Illinois, the parties’ exchange of mail and telephone calls is not enough to support personal jurisdiction over Samuelson. Maurice Sternberg, Inc. v. James, 577 F.Supp. 882, 885 (N.D.Ill.1984); Caicos Petroleum, 551 F.Supp. at 155; U. S. Reduction Co. v. Amalgamet, Inc., 545 F.Supp. 401, 403 (N.D.Ill.1982); Woodfield Ford, Inc. v. Akins Ford Corp., 77 Ill.App.3d 343, 349, 32 Ill.Dec. 750, 754, 395 N.E.2d 1131, 1136 (1st Dist.1979); see also Artoe v. Mann, 36 Ill.App.3d 204, 343 N.E.2d 647 (1st Dist.1976).

C. Tortious Act in Illinois

Connolly’s opposition to Samuelson’s motion to dismiss focuses on H 2-209(2), the portion of the long arm statute which provides for jurisdiction over defendants who commit tortious acts in Illinois. Samuelson argues that Connolly has failed to allege any tortious act within the state. We agree.

In the frequently cited case of Gray v. American Radiator & Standard Sanitary Corp., 22 Ill.2d 432, 176 N.E.2d 761 (1961), the Illinois Supreme Court ruled that the wrong (which it equated with “tortious act”) occurs “where the last event takes place which is necessary to render the actor liable.” Id., 22 Ill.2d at 435, 176 N.E.2d at 762-63. In most cases, that is where the injury to the plaintiff occurs. The Court declined to distinguish the terms “tort” and “tortious act” in construing the long arm statute, and it refused to allow parties to raise “extraneous issues concerning the elements of a tort and the territorial incidence of each____” Id., 22 Ill.2d at 436, 176 N.E.2d at 763.

The Illinois Appellate Court followed this aspect of Gray in Wiedemann v. Cunard Line Limited, 63 Ill.App.3d 1023, 20 Ill. Dec. 723, 380 N.E.2d 932 (1st Dist.1978). In Wiedemann, a traveler sued a cruise ship owner, a vacation tour operator and others for injuries he sustained on a beach at a resort hotel in the West Indies. The court found no tortious act in Illinois, since the traveler was injured in the West Indies and that was the only place where any specifically alleged misrepresentations had been made. Id., 63 Ill.App.3d at 1033, 380 N.E.2d at 940.

Also factually similar to this case is Stansell v. International Fellowship, Inc., 22 Ill.App.3d 959, 318 N.E.2d 149 (1st Dist. 1974). In Stansell, the plaintiff’s decedent was killed in a plane crash in Peru. The non-resident individual defendant contesting the Illinois court’s jurisdiction was the president of the association which had arranged the ill-fated airplane trip. The court found no act or omission in Illinois on the part of the defendant: “Even assuming that she was in charge of selecting the airline, this act was not performed in Illinois. Likewise, decedent’s death occurred in Peru.” Id., 22 Ill.App.3d at 963, 318 N.E.2d at 152.

Applying the principles enunciated in Gray, Wiedemann and Stansell to this case, we find no tortious act by Samuelson in Illinois. The injury to Connolly occurred in South Africa, not the Land of Lincoln. Moreover, even if Samuelson had been negligent somehow in planning Connolly’s trip, she committed that negligence in Kansas. Connolly does not convincingly distinguish her case from Widemann or Stansell, but simply stresses Samuelson’s correspondence and phone calls into the state. However, Connolly is not really complaining of a negligently placed phone call or letter, and we find that these do not constitute tortious acts within the meaning of the long arm statute.

Connolly does cite two Illinois cases which give an expanded definition to “tortious act,” Connelly v. Uniroyal, Inc., 55 Ill.App.3d 530, 13 Ill.Dec. 162, 370 N.E.2d 1189 (1st Dist.1977), aff'd in part and rev’d in part on other grounds, 75 Ill.2d 393, 27 Ill.Dec. 343, 389 N.E.2d 155 (1979), cert. denied, 444 U.S. 1060, 100 S.Ct. 992, 62 L.Ed.2d 738 (1980), and Braband v. Beech Aircraft Corp., 51 Ill.App.3d 296, 9 Ill.Dec. 684, 367 N.E.2d 118 (1st Dist.1977), aff'd on other grounds, 72 Ill.2d 548, 21 Ill.Dec. 888, 382 N.E.2d 252 (1978), cert. denied, 442 U.S. 928, 99 S.Ct. 2857, 61 L.Ed.2d 296 (1979). However, these cases do not support Connolly’s position for several reasons. First, the courts’ assertion that the phrase “commission of a tortious act” applies not only to an injury but also to all elements of a tort causally related to the injury ignores the Illinois Supreme Court’s holding in Gray discussed above. Second, these decisions were rationalized in part by the outdated characterization of the Illinois long arm statute as “one which provides jurisdiction over non-residents to the fullest extent permitted by due process concepts.” Connelly, 55 Ill.App.3d at 536, 13 Ill.Dec. at 166, 370 N.E.2d at 1193; Braband, 51 Ill.App.3d at 300, 9 Ill.Dec. at 687, 367 N.E.2d at 121. Third, these cases are factually distinguishable from the present action. In each case the Illinois Supreme Court determined that the defendants were doing business within the state; the Court therefore did not consider the correctness of the lower court’s jurisdictional finding based on tortious acts. Connelly, 75 Ill.2d at 406, 27 Ill.Dec. at 348-49, 389 N.E.2d at 160-61; Braband, 72 Ill.2d at 560, 21 Ill.Dec. at 893, 382 N.E.2d at 257. Also, each case dealt with the presence of some tangible product passing through the stream of commerce in Illinois. By contrast, this case concerns the planning of a trip to South Africa for an Illinois resident by a person living and working in Kansas. Because an intangible product such as a trip to a foreign country involves different considerations than airplanes or automobile tires, we find Connolly and Braband to be less relevant to this case than Wiedemann and Stansell. Thus, no tortious act in Illinois by Samuelson justifies the exercise of personal jurisdiction over her in this state.

Accordingly, Samuelson’s motion to dismiss is granted. It is so ordered.

      . See Cook Associates, 87 Ill.2d at 200-01, 57 Ill.Dec. at 734-35, 429 N.E.2d at 852; Green v. Advanced Ross Electronics, 86 Ill.2d 431, 436-37, 56 Ill.Dec. 657, 660, 427 N.E.2d 1203, 1206 (1981).