source: Caselaw Access Project

license: Public Domain

text:
    Arnold J. O’DELL and Janice O’Dell v. NORTH RIVER INSURANCE COMPANY, et al.
    Civ. A. No. 84-0864.
    United States District Court, W.D. Louisiana, Lake Charles Division.
    Aug. 13, 1985.

      Richard C. Broussard, Lafayette, La., for plaintiffs.
    St. Paul Bourgeois, IV, Lafayette, La., William G. Tabb, III, New Orleans, La., Craig W. Marks, Lafayette, La:, and Michael P. Mentz, Metairie, La., for defendants.
   RULING

EDWIN F. HUNTER, Jr., Senior District Judge.

This matter comes before the Court on cross-motions for summary judgment on a cross-claim and third-party demand for contractual indemnity. Plaintiff Arnold O’Dell alleges that he was injured while employed by Food and Services, Inc. as a galley hand aboard a jack-up rig, the “LaSalle,” which was allegedly owned by the Cliffs Drilling Division of Cleveland Cliffs Iron Ore Company at the time of the accident. O’Dell and his spouse have brought suit against Food and Services, Inc. under the Jones Act and against the Cliff Drilling Division of Cleveland Cliffs Iron Ore Company and its insurers [collectively, “Cliffs”] under general maritime negligence principles and the unseaworthiness doctrine. Cliffs has in turn filed a cross-claim against Food and Services, Inc. and a third-party demand against Penn-America Insurance Company [collectively, “F & S”] seeking contractual indemnity and recognition as an additional insured pursuant to a master service agreement between Cliffs and F&S. In their cross-motions, Cliffs seeks summary judgment in its favor enforcing the cross-claim and third party demand and F&S seeks summary judgment dismissing these claims.

Under the master service agreement, F & S agreed to provide catering services to Cliffs pursuant to work orders to be performed on land drilling rigs, drilling barges, jack-up drilling rigs, vessels, platforms or their drilling installations. F&S does not dispute that an agreement to provide catering services for a vessel, such as the “LaSalle,” is a maritime contract. Cf The Reina Victoria, 298 F. 765 (S.D.N.Y.1924) (Learned Hand, J.) (a supplier of food and water to a vessel is entitled to assert a maritime lien for his services because of their maritime nature). F&S also does not dispute that maritime law would apply to a typical contract action arising out of the performance of these maritime services pursuant to the master service agreement. That is, F & S does not quarrel with the general principle recognized in cases such as Hale v. Co-Mar Offshore Carp., 588 F.Supp. 1212 (W.D.La.1984), to the effect that maritime law will apply to the separable maritime elements of a “mixed contract” wherein nonmaritime obligations are also assumed. See Hale, 588 F.Supp. at 1215. F&S does urge, however, contrary to Judge Shaw’s holding in Hale, that the indemnity obligation assumed in the master service agreement cannot properly be. considered as subsidiary to the maritime elements in the contract and that the obligation is therefore governed by Louisiana state law without regard to whether the indemnity obligation arises out of the performance of the maritime elements of the agreement. F&S concludes this facet of its argument with the contention that the indemnity provision involved here would be void and unenforceable under the Louisiana Oilfield Anti-Indemnity Act, La.R.S. 9:2780.

Substantial Fifth Circuit authority supports the position adopted by F & S. The opinions in Hicks v. Ocean Drilling and Exploration Co., 512 F.2d 817 (5th Cir.1975), cert. denied, 423 U.S. 1050, 96 S.Ct. 777 (1976); Dickerson v. Continental Oil Company, 449 F.2d 1209 (5th Cir.1971), cert. denied, 405 U.S. 934, 92 S.Ct. 942, 30 L.Ed.2d 809 (1972); and Grigsby v. Coastal Marine Service of Texas, Inc., 412 F.2d 1011 (5th Cir.1969), seem to espouse the view that an indemnity obligation in a maritime contract is governed by adjacent state, rather than maritime, law. See Hicks, 512 F.2d at 826; Dickerson 449 F.2d at 1221; Grigsby, 412 F.2d at 1039. Yet other, no less substantial, Fifth Circuit authority supports the contrary position, that an indemnity clause in a maritime contract is controlled by federal maritime, rather than state, law. See Lirette v. Popich Bros. Water Transport, Inc., 699 F.2d 725, 728 n. 11 (5th Cir.1983); Corbitt v. Diamond M. Drilling Co., 654 F.2d 329, 332 (5th Cir.1981); Transcontinental Gas Pipe Line Corp. v. Mobile Drilling Barge, 424 F.2d 684, 691 (5th Cir.1970). Indeed, one panel has applied this latter rule as “settled precedent.” Corbitt, 654 F.2d at 332.

This district court therefore finds itself in the unenviable position of having to choose between two clearly conflicting lines of Fifth Circuit authority on the same point of law. Fortunately, established principles exist for resolving just this sort of dilemma. It is settled law in this circuit that the inconsistency between two conflicting lines of Fifth Circuit authority must be resolved in favor of the earlier line of cases. E.g., United States v. Gray, 751 F.2d 733, 735 (5th Cir.1985). This doctrine has evolved as a logical extension of the rule that one panel within the circuit may not overrule the opinion of another. See Alcorn County, Mississippi v. U.S. Interstate Supplies, Inc., 731 F.2d 1160, 1166 (5th Cir.1984). Yet this well-established rule of precedence of course prohibits departure only from prior circuit holdings. See, e.g., Placid Oil Co. v. Federal Energy Regulatory Comm’n, 666 F.2d 976, 984 (5th Cir.1982). As always, dicta by one panel stands as persuasive authority only, although it is entitled to great weight absent a contrary holding in the circuit.

With very due respect to the Hicks, Dickerson and Grigsby courts, this Court is bound under these principles to follow the “settled precedent” of Lirette, Corbitt, and Transcontinental Gas. The expressions in Dickerson and Grigsby as to what law should be applied to the indemnity obligations in a maritime contract can be fairly considered only as dicta because neither case involved a maritime contract. The indemnity obligations in Dickerson arose out. of the performance of a nonmaritime drilling contract on a fixed platform. See 449 F.2d at 1212, 1221. Similarly, the issues in Grigsby centered around a nonmaritime equipment rental agreement. See 412 F.2d at 1038. Hicks does in fact apply state law to an indemnity obligation in a maritime master service contract pertaining to a Jones Act vessel, a submersible oil storage facility. See 512 F.2d at 826. Yet, by the time of the Hicks decision, the Fifth Circuit had already held in Transcontinental Gas that maritime law governs an indemnity clause in a maritime contract. See 424 F.2d at 691. Under the principles set forth before, this Court is bound to follow the earlier holding of Transcontinental Gas and must similarly hold that the indemnity provisions pertaining to the maritime contract in this case are controlled by federal maritime, not state, law.

Moreover, the Court respectfully suggests that the Transcontinental Gas line of cases has generated the better-reasoned rule. The Court can see no reason why maritime law should not govern the indemnity obligations arising out of the performance of a maritime obligation. Logically, the same law should apply to all of the maritime incidents of a maritime contract. F & S nonetheless urges that the Court should apply the “maritime but local” exception to this general rule, relying in principal part on Wilburn Boat Co. v. Fireman’s Fund Ins. Co., 348 U.S. 310, 75 S.Ct. 368, 99 L.Ed. 337 (1955), and dicta in Grigsby. Yet the decision in Wilburn Boat Company was founded in large part on the tradition of federal deference to extensive state regulation over the insurance industry. See Wilburn Boat Company, 348 U.S. at 313-21; 75 S.Ct. at 370-74. Contractual indemnity, on the other hand, is not a matter that has been the subject of complex and extensive state regulation. State legislatures have entered the field on only a piecemeal basis in order to alter settled jurisprudential rules. Cf. La.R.S. 9:2780 (prohibition of agreements to indemnify an indemnitee against his own negligence in an oilfield contract); Tex.Civ.Stat. Ann. art. 2212b (same). And, unlike marine insurance, the underlying principles of maritime contractual indemnity are well-established in the jurisprudence. See generally Note, Contractual Indemnity under Maritime and Louisiana Law, 43 La.L.Rev. 189, 199-208 (1982). Thus, as the states do not have an extensive regulatory interest in maritime contracts of indemnity and as the maritime law is well-developed in this area, no solid basis exists for application of the “maritime but local” doctrine here.

To complete the choice-of-law inquiry in this mixed contract case, the Court need further determine only whether the injured party was employed in providing the maritime service contemplated by the contract. See Hale, 588 F.Supp. at 1217; Home Ins. Co. v. Garber Industries, Inc., 588 F.Supp. 1218, 1220-21 (W.D.La.1984). On the present motion, neither party disputes that O’Dell was employed as a galley hand aboard the jack-up LaSalle pursuant to the master service agreement between the parties. On the uncontroverted facts, the alleged injury occurred while O’Dell was carrying out the garbage from the galley after the evening meal. Thus, it is clear that he was employed for the purpose of, and was in fact engaged in, providing the maritime service contemplated by the contract. Thus, as with most cases covered by the Hale-Garber rule, the body of law governing the claim of the plaintiff, here a seaman, will be the same body of law that governs the contractual indemnity claim arising of his accident, which in this case is maritime law. Cf. Hale, supra (maritime law applied to indemnity claim arising out of injury to seaman); Garber, supra (platform law applied to indemnity claim arising out of injury to platform worker engaged in providing platform services). But cf. Barnes v. Kerr-McGee Corp., No. 84-3026, (E.D.La. May 23, 1985) (maritime law applied to indemnity claim arising out of injury to platform worker engaged in providing maritime services at the time of his injury). The Louisiana Oilfield Anti-Indemnity Act therefore does not stand as a bar to the indemnity claim in this case.

As an alternative argument, F & S urges that, even if maritime law applies here, the indemnity clause in the master service contract does not in fact call for indemnification in this situation. The indemnity clause provides in pertinent part:

“[F & S] hereby assumes all liability for costs, losses and damages on account of personal injury to ... [F & S] employees arising out of, incident to, or in connection with or resulting directly or indirectly from, any operations performed under the contract____ [F & S] shall indemnify and hold harmless [Cliffs] ... against any and all claims, demands or suits ... which may be brought against [Cliffs] ... by any employee of [F & S] ... in anywise arising out of, incident to, or in connection with, or resulting directly or indirectly from any operations performed under this Contract, regardless of whether such claims, demands or suits are founded in whole or in part upon alleged sole or concurrent negligence of [Cliffs], or its employees, agents, contractors or invitees, and/or are founded upon defects in equipment or unseaworthy condition of any vessel owned, chartered or used by [Cliffs] (including any defects or unseaworthy conditions which come into existence prior to the date of this Contract).”

Under the uncontroverted facts on these motions, O’Dell allegedly suffered his injury while carrying the garbage out after the evening meal. At the time of his alleged injury, he had left both the galley and the mess area and was walking down an open passageway toward the garbage container. As he stepped over a pipe laying in the passageway, he allegedly stepped on a cable that rolled out from underneath him, causing his injury. F & S contends that it can owe no indemnity on these facts because the placement of the cable did not arise out of the performance of the catering services.

Essentially, F & S urges that the employee’s injury must be caused directly by the performance of the catering obligation for an indemnity obligation to arise under the contract. Yet such a restrictive reading of the phrase “in anywise arising out of, incident to, or in connection with, or resulting directly or indirectly from any operations performed under this Contract” would render the remainder of the indemnity clause mere surplusage. The portion of the clause that follows the phrase in question provides for indemnity regardless of whether, inter alia, the claim is founded wholly upon the sole negligence of Cliffs, or its employees, agents, contractors or invitees. As these parties are not engaged in the performance of the catering services under the subcontract, the indemnity clause must necessarily encompass claims for injuries that are not caused directly by the performance of the catering services. Otherwise, the reference to these additional potential tortfeasors would be superfluous. Indeed, this basic point is driven home in a part of the clause that may be directly applicable in the instant case. The indemnity provision also covers claims founded upon equipment defects or unseaworthy conditions, regardless of whether the defect or condition came into existence prior to the date of the catering subcontract. This particular portion of the clause demonstrates with certainty that the indemnity obligation is not limited solely to claims for injuries caused by the performance of the catering services. Rather, it suffices that the F & S employee merely be engaged in the performance of the catering services and that the claim be founded on the fault of F & S, or the sole or concurrent negligence of one of the listed parties, or on the defect or unseaworthiness of the LaSalle. Accord Mills v. Zapata Drilling Co., Inc., 722 F.2d 1170, 1174 (5th Cir.1983) (under Louisiana law, the trial court did not err in enforcing a nearly identical indemnity provision where the subcontractor-indemnitor’s employee was killed by the negligent act of an employee of another subcontractor of the contractor-indemnitee). The eases cited by F & S in opposition to this view, Lanasse v. Travelers Ins. Co., 450 F.2d 580 (5th Cir.1971), cert. denied 406 U.S. 921, 92 S.Ct. 1779 (1972), and Hobbs v. Teledyne Movible Offshore, Inc., 632 F.2d 1238 (5th Cir.1980), are simply inapposite, as they involve indemnity provisions drafted differently from the one involved in the case at bar.

Accordingly, the motion for summary judgment brought by Food and Services, Inc. is DENIED, and the motion for summary judgment by Cliffs Drilling Company, North River Insurance Company and United States Fire Insurance Company is GRANTED. Counsel for the Cliffs interests shall provide the Court with a form of judgment within ten days of his receipt of this ruling.


author: BUA, District Judge.

text:
    UNITED STATES of America, Plaintiff, v. Samuel BUCHBINDER, Defendant.
    No. 84 CR 951.
    United States District Court, N.D. Illinois, E.D.
    Aug. 13, 1985.

      Anton R. Valukas, U.S. Atty. by Howard Pearl, Asst. U.S. Atty., Chicago, Ill., for plaintiff.
    Frederick F. Cohn, Chicago, Ill., for defendant.
   ORDER

BUA, District Judge.

Before the Court is defendant’s motion for bond pending appeal of his conviction. Defendant was convicted of ten counts of wire fraud and subsequently sentenced to six months imprisonment and five years consecutive probation. For the reasons stated below, defendant’s motion is denied.

I. FACTS

Defendant Samuel Buchbinder was charged in an indictment with nine counts of wire fraud in violation of Title 18, United States' Code, Section 1343. The jury returned verdicts of guilty on all nine counts.

The wire fraud counts charged that the defendant entered into a scheme to defraud the brokerage firm of Paine, Webber, Jackson & Curtis by giving it bad bank drafts in connection with a commodities trading account. The evidence at trial established that the defendant opened a commodities trading account on September 2, 1982 with $4,600 cash. By the end of the day on September 7, 1982, the defendant had lost all the money he had previously deposited and presented Paine Webber with a $50,000 draft on an account at the Canadian Imperial Bank of Commerce, Nassau, Bahamas (CIBC), to cover his losses. Defendant gave Paine Webber a total of $170,000 in bad bank drafts knowing that there was no money to back the drafts. Additionally, defendant withdrew approximately $40,000 cash from his Paine Webber account based on the bad bank drafts.

In the course of writing the bad bank drafts, defendant not only wrote three false drafts but also made wire transfers of the proceeds of the bad bank drafts from his commodity account to various other cash and equity accounts in his name and his wife’s name.

II. DISCUSSION

Under 18 U.S.C. § 3143(b), the defendant bears the burden of proving four conditions before a court may grant bail pending appeal:

(1) that the defendant is not likely to flee or pose a danger to the safety of any other person or the community if released;
(2) that the appeal is not for purpose of delay;
(3) that the appeal raises a substantial question of law or fact; and
(4) that if that substantial question is determined favorably to defendant on appeal, that decision is likely to result in reversal or an order for a new trial of all counts on which imprisonment has been imposed. United, States v. Hall, 603 F.Supp. 333, 335 (N.D.Ill.1985) (quoting U.S. v. Miller, 753 F.2d 19, 24 (3d Cir.1985).

In this circuit, a “substantial question of law or fact” is defined as “a ‘close’ question or one that very well could be decided the other way.” United States v. Molt, 758 F.2d 1198, 1200 (7th Cir.1985). See also United States v. Giancola, 754 F.2d 898, 901 (11th Cir.1985); United States v. Randell, 761 F.2d 122, 125 (2d Cir.1985). If a court does find that a question raised on appeal is “substantial,” it must then consider whether that question is “so integral to the merits of the conviction on which defendant is to be imprisoned that a contrary appellate holding is likely to require reversal of the conviction or a new trial.” Randell, supra, 761 F.2d at 125 (quoting Miller, supra, 753 F.2d at 23). As to all of the four conditions for bond pending appeal, the defendant bears the burden of persuasion. Randell, supra, 761 F.2d at 125.

In his memoranda in support of the motion for bond pending appeal, defendant argues that two principal issues are “substantial questions” justifying bond under 18 U.S.C. § 3143(b). First, he argues that the Court committed reversible error by excluding psychiatric testimony offered to prove severe depression and consequent compulsive gambling, which would negate his specific intent necessary to commit wire fraud. Second, defendant’s counsel prior to and at trial failed to raise the mental condition defense in a timely manner and defendant was thereby denied effective assistance of counsel in violation of the Sixth Amendment of the U.S. Constitution.

A. Exclusion of Psychiatric Testimony

1. Failure to Provide Timely Notice Under Rule 12.2(b)

In its order dated April 16, 1985, this Court granted the government’s motion in limine to exclude defendant’s proposed defense based on his mental condition. The Court based its decision on the untimeliness of defendant’s notice of defense based upon mental condition under Rule 12.2(b) of the Federal Rules of Criminal Procedure. It is undisputed that this notice was filed on March 29, 1985, 86 days after arraignment, 17 days after the third extended deadline for such motion, and 21 days before the scheduled trial date.

Rule 12.2(b) provides as follows:

If a defendant intends to introduce expert testimony relating to a mental disease or defect or any other mental condition of the defendant bearing upon the issue of his guilt, he shall, within the time provided for the filing of pretrial motions or at such later time as the court may direct, notify the attorney for the government in writing of such intention and file a copy of such notice with the clerk. The court may for cause shown allow late filing of the notice or grant additional time to the parties to prepare for trial or make such other order as may be appropriate.

This provision relating to the timeliness of a defense noticed under Rule 12.2(b) contains the same language applicable to timely notice of an insanity defense under Rule 12.2(a). In either case, Rule 12.2 contemplates that a defendant who fails to comply with the time requirements waives his right to raise an insanity defense or a defense based upon his mental condition. United States v. Duggan, 743 F.2d 59, 80 (2d Cir.1984); United States v. Veatch, 647 F.2d 995, 1002-03 (9th Cir.), modified on other grounds, 674 F.2d 1217 (1981), cert. denied, 456 U.S. 946, 102 S.Ct. 2013, 72 L.Ed.2d 469 (1982); United States v. Captan, 633 F.2d 534, 539 (9th Cir.1980); United States v. Winn, 577 F.2d 86, 89 (9th Cir.1978).

A defendant who has allowed his deadline to pass may, in accordance with Rule 12.2, move for permission to make a late filing and the district court may grant such permission “for cause shown.” Duggan, supra, 743 F.2d at 80. Whether the defendant has demonstrated sufficient “cause” is necessarily a matter for the district court to evaluate on a case-by-case basis. Id. See United States v. Toner, 728 F.2d 115, 123 (2d Cir.1984) (Rule 12.-2(a)); United States v. Veatch, supra, (Rule 12.2(a)); United States v. Dill, 693 F.2d 1012, 1015 (10th Cir.1982) (Rule 12.-2(a)). See also United States v. Olson, 576 F.2d 1267, 1273 (8th Cir.), cert. denied, 439 U.S. 896, 99 S.Ct. 256, 58 L.Ed.2d 242 (1978) (Rule 12.2(b)); United States v. Edwards, 90 F.R.D. 391 (E.D.Va.1981) (Rule 12.2(b)). “Cause” consists not only of explanation for the belatedness of the party’s action, but also of a showing of some merit in the position belatedly to be advanced. Duggan, supra, 743 F.2d at 80; Toner, supra, 728 F.2d at 123.

Recently, the Seventh Circuit Court of Appeals upheld a district court’s denial of defendant’s request for an appointed psychiatrist. United States v. Fountain, 768 F.2d 790 (7th Cir.1985). In Fountain, on the day of trial, the defendant requested the judge to appoint a psychiatrist. The defense was to be self-defense or compulsion, based on the effects of statements made by defendant’s victim to defendant. The Seventh Circuit held that the defendant “had given no good reason why his request for a psychiatrist came so very late in the day.” Id. at 794. In holding that the district court did not abuse its discretion, the Seventh Circuit concluded that: “... since the proposed use of the psychiatrist was sufficiently unusual to require a fuller explanation of why it justified postponing the trial, the judge was not required to grant a continuance in order to follow up this will o’ the wisp.” Id.

In the present case, it is clear to the Court that the defendant failed to show “good cause” for his failure to timely notice a defense based on mental condition. Defense counsel requested three extensions for the filing of pretrial motions, which is the time set forth in Rule 12.2(b) in which defendant must file the proper notice. In addition, the defendant had been represented by counsel for one and one-half years prior to trial. Finally, defendant’s notice of a defense of mental condition was filed three weeks before the April 18, 1985 trial date and one month after defense counsel had first asked the psychiatrist to examine the defendant. In view of these circumstances, the Court concludes that there is not a substantial question — a close one which could be decided either way — that the defendant failed to establish good cause for his failure to file a timely notice of a defense based upon his mental condition. See Duggan, supra, 743 F.2d at 80 (where notice filed six weeks prior to a once-continued trial date was held untimely and no good cause shown for delay).

The next issue is whether, as defendant contends, the exclusion of psychiatric testimony offered to negate the element of specific intent is too severe a sanction under Rule 12.2(b) and therefore reversible error. In support of this proposition, the defendant relies on United States v. Staggs, 553 F.2d 1073 (7th Cir.1977). In Staggs, the Seventh Circuit Court of Appeals held that the failure to permit a defendant charged with a specific intent crime to introduce evidence of a character trait that makes it unlikely that he harbored the requisite criminal intent was reversible error. Id. at 1076. The Seventh Circuit made it clear that it based its holding on grounds of relevancy under Fed.R. Evid. 404(a)(1) and not on the unappropriateness of excluding psychiatric testimony as a sanction under Rule 12.2(b) for a violation of Rule 12.2(b). However, in dicta, the Seventh Circuit referred to the “drastic sanction of exclusion” under Rule 12.2(b). Id. at 1077.

Notwithstanding the Seventh Circuit’s dicta in Staggs, the overwhelming weight of authority authorizes exclusion of psychiatric testimony within the trial judge’s sound discretion. United States v. Duggan, supra; United States v. Dill, supra; United States v. Veatch, supra; United States v. Olson, 576 F.2d 1267 (8th Cir.), cert. denied, 439 U.S. 896, 99 S.Ct. 256, 58 L.Ed.2d 242 (1978); United States v. Edwards, 90 F.R.D. 391 (E.D.Va.1981); United States v. Hill, 481 F.Supp. 558 (E.D.Pa.1979). Olson stands for the proposition that exclusion of the expert testimony where a continuance is a viable alternative is “fully authorized by the rule.” Olson, supra, 576 F.2d at 1273. In addition, Hill indicates that exclusion is an appropriate remedy for a defendant’s failure to comply with Rule 12.2(b), even where a continuance is a fully conceivable alternative. Hill, supra. Finally, the Second Circuit Court of Appeals in Duggan found that the district court did not abuse its discretion in excluding psychiatric testimony where, as here, a continuance was a viable alternative and the defendant made an offer of proof. Duggan, supra, 743 F.2d at 82.

The connection between a denial of a continuance and exclusion of psychiatric testimony is well recognized in discussions of the policy behind providing notice under Rule 12.2(b) and imposing sanctions under Rule 12.2(d). In its notes regarding Rule 12.2, the Advisory Committee recognized that: “Failure to give advance notice commonly results in the necessity for a continuance in the middle of trial, thus unnecessarily delaying the administration of justice.” Notes of Advisory Committee on Rules, Federal Criminal Code and Rules, p. 60 (West Pub.1985). Referring specifically to Rule 12.2(b), the Advisory Committee noted that the purpose of that rule is to “prevent the need for a continuance when such evidence is offered without prior notice.” Id. at 61. See also 8 J. MOORE, FEDERAL PRACTICE 1112.1.01[2], at 12.-2-5 (2nd Ed.1980).

The courts echo the Advisory Committee Notes regarding the propriety of denying a continuance in order to preserve the policy and effect of Rule 12.2(b) notice. In United States v. Edwards, supra, the court observed that “the function of. the Rule is frustrated when notice is given after the ‘time provided’ as well as when the evidence is offered without any prior notice. In either instance, a continuance is or may be required.” Edwards, supra, 90 F.R.D. at 397. See also United States v. Veatch, supra, 674 F.2d at 1223-25. Finally, the recent Seventh Circuit case of United States v. Fountain, supra, refers to denial of a continuance in the same breath as a violation of Rule 12.2(b) and notes that such denial will rarely be upset on appeal. Fountain, supra, slip op. at 794.

In light of the above discussion regarding the policy and effect of Rule 12.2(b) and in light of the fact that the defendant failed to show “good cause” for the delay in providing Rule 12.2(b) notice, the Court holds that there is no substantial question — a close one which could be decided either way — regarding the appropriateness of excluding expert psychiatric testimony where notice under Rule 12.2(b) is untimely and where the defendant failed to show “cause” for the delayed notice.

2. Relevancy of Psychiatric Testimony

In support of his defense based upon mental condition, the defendant offered psychiatric testimony to show that: (1) he was severely depressed at the time the alleged offense was committed; (2) in an effort to ward off and heal his severe depression, defendant became a compulsive gambler; (3) defendant’s commodity trading was a manifestation of his compulsive gambling and the resulting need to obtain money for his gambling from any possible source; and (4) defendant lacked the intent to defraud necessary to sustain a conviction under the wire fraud statute. Defendant does not offer the psychiatric testimony to show that he was legally insane. Rather, he offers it as proof of a character trait or existing mental state which negates the specific intent necessary to defraud.

In the offer of proof regarding the psychiatric testimony, Ner Littner, M.D., defendant’s psychiatrist, testified that he interviewed the defendant three times for a total of over three hours and his wife for 45 minutes. Dr. Littner also reviewed FBI notes and material from the Evanston Hospital Crisis Center. Dr. Littner was asked to conduct a psychiatric examination of the defendant by his counsel on February 28, 1985.

On direct examination, Dr. Littner first testified that the defendant entered a severe depression following his son’s accident and that depression has lasted until the present time. Tr. 27. Dr. Littner testified that defendant’s relationships with his wife, father and brother were under severe strain. Tr. 28-31. Dr. Littner also testified that, in his opinion, the defendant left his family on two occasions as the only way to handle his severe depression over his son’s accident and the financial pressure caused by the cost of his son’s care. Tr. 28. Finally, Dr. Littner testified that, after the defendant left home for ten weeks and after his wife went to Florida with his best friend, the defendant returned home “in a state of suicidal depression, as well as wanting to kill his best friend.” Tr. 29.

In his diagnosis of the defendant’s psychological condition, Dr. Littner concluded that the defendant possessed a “severe, chronic depression of the neurotic nature.” Dr. Littner observed other characteristics as well: “a very strong self-defeating, self-destructive tendency, an amazingly poor judgment, and a great inability to talk about his feelings to other people.” Tr. 35. Dr. Littner testified that the defendant’s poor business judgment was revealed in personal observation and psychological testing and the doctor concluded that it was a symptom of the defendant’s self-destructive tendency. Tr. 36.

Regarding the defendant’s commodity trading, Dr. Littner concluded that it was “an attempt on his [defendant’s] part to deal with his depression and submerge the feelings attached to the depression.” Tr. 40. Finally, Dr. Littner concluded that the defendant was not capable of formulating a specific intent to defraud Paine Webber. Tr. 41.

In his cross-examination, Dr. Littner admitted that the defendant’s testimony regarding his intention not to pay Paine Webber for his trading losses did not relate to his depression, but instead related to defendant’s belief that his trading account had been churned by Paine Webber. Tr. 48. Dr. Littner attributed the defendant’s decision not to pay back Paine Webber to his “poor judgment.” Tr. 48. Dr. Littner admitted that the defendant did not tell him that the defendant wrote three checks totaling $170,000 on an account in which he had only $400. Tr. 49. The defendant also did not tell Dr. Littner that a $30,000 check written on the same account at Paine Webber had bounced. Tr. 50.

The defendant did tell Dr. Littner that he owed over $100,000 to various casinos. Tr. 49. However, the defendant told Dr. Littner that he did not pay the debts to the casinos because they would not send people after the defendant to collect the debts. Tr. 50. In addition, Dr. Littner admitted that nothing in his analysis helps to determine whether the defendant knew if he had sufficient funds to make the three checks given to Paine Webber. Tr. 53.

Dr. Littner was aware that the defendant had a significant gambling habit prior to his son’s accident. Tr. 54. Dr. Littner did not know that the defendant had been trading in commodities since 1973, six years prior to his son’s accident. Tr. 54. Dr. Littner then stated that the method of trading was the significant symptom of defendant’s depression, as opposed to the commodity trading as a whole. Tr. 54. However, the doctor admits that he has little familiarity with commodity trading. Tr. 54-55. He admits also that he does not know whether defendant’s trades were highly speculative or minimally risky. Tr. 55. The doctor cannot explain how the defendant wrote $170,000 in checks to Paine Webber to cover his losses and walked away with $40,000 cash. Tr. 56. The doctor testified that he could explain the above sentence as an example of the defendant’s “lousy judgment.” Tr. 56.

Finally, Dr. Littner agreed that the defendant exercised his own judgment in making his trades. Dr. Littner also agreed that the defendant is “quite capable of appreciating” the criminal nature of a particular type of conduct and is able to conform his conduct to the requirements of law. Tr. 56-57. Dr. Littner had heard that the defendant gambled away part of his son’s insurance settlement. Tr. 60. In addition, Dr. Littner agrees that the defendant is not very good at accepting responsibility for his actions. Tr. 60.

Defendant also called Jack Arbit, a clinical psychologist, to testify during the offer of proof. Arbit’s testimony mirrored the conclusion made by Dr. Littner. However, on cross-examination, Arbit admitted that nothing which he determined from defendant’s psychological testing indicates that the defendant is incapable of intentionally defrauding someone. Tr. 276.

Defendant argues that the excluded psychiatric testimony is relevant to establish his lack of specific intent to defraud and therefore its exclusion constitutes reversible error. In support of this argument, defendant relies heavily on United States v. Staggs, 553 F.2d 1073 (7th Cir.1977). In Staggs, the defendant’s theory of the case was that he neither intended to threaten nor did threaten a federal officer. The psychiatric testimony was offered to prove that the defendant was a person more likely to want to harm himself than to think about directing his aggressions toward others. The Seventh Circuit Court of Appeals concluded that, under Federal Rules of Evidence 401, 402, and 404(a)(1), evidence of this “character trait” made more probable the truth of defendant’s assertion that he harbored no criminal intent to assault the federal officer. Id. at 1076.

In contrast to Staggs, the Seventh Circuit defined “character trait” more narrowly under Rule 404(a)(1) in United States v. West, 670 F.2d 675 (7th Cir.1982). Rule 404(a)(1) provides that a defendant may introduce evidence of a relevant character trait to show that he acted in conformity with that trait. In West, the defendant attempted to show, through psychiatric testimony of his low intelligence, that he lacked the specific intent (i.e. knowledge) to accept a bribe. The Seventh Circuit found that exclusion of the testimony of low intelligence was not error because low intelligence was not a “character trait” under Rule 404(a)(1) and therefore expert testimony was inappropriate under Fed.R.Evid. 702.

In so holding, the Seventh Circuit defined “character trait” as “elements of one’s disposition, ‘such as honesty, temperance, or peacefulness.’ McCormick on Evidence § 195.” Id. at 682. The court concluded: “We do not believe that intelligence is a character trait within the meaning of the rule. Therefore, United States v. Staggs is not controlling.” Id. Implicit in the holding in West is the need to scrutinize proffered psychiatric testimony in order to determine what it is offered to prove. This scrutiny takes place during the defendant’s offer of proof.

The Court finds the reasoning and result in West to be persuasive. In this case, Dr. Littner’s testimony does not refer to the character trait of depression or some other disposition of the defendant. As the Court noted above, Dr. Littner explained that the defendant exercised judgment in his commodity trading but did so in a purposefully poor manner due to his depression. In addition, Dr. Littner testified that the defendant was quite capable of appreciating the criminal nature of a particular type of conduct and of acting in a law-abiding manner. Finally, Dr. Littner attributed the defendant’s decision not to pay back Paine Webber to his “poor judgment.”

Having scrutinized the expert testimony in the defendant’s offer of proof, the Court finds that the defendant has failed to show the relevance of testimony of his “depression” in his theory of lack of specific intent. Instead, the psychiatric testimony amounts to no more than experts’ explanations for his poor judgment in handling his trading and the debts arising therefrom. Therefore, the preferred psychiatric testimony falls far short of linking the defendant’s alleged depression to his poor judgment in trading. Following West, this Court concludes that evidence of poor judgment in commodity trading and handling debts does not constitute a character trait within the meaning of Rule 404(a)(1).

As in West, the Court’s analysis continues to a determination of whether expert testimony is admissible in this case to show either depression or poor judgment. Expert testimony is admissible only when the specialized knowledge of an expert will assist the trier of fact in understanding the evidence or in determining a fact in issue. Fed.R.Evid. 702. The theory upon which expert testimony is excepted from the opinion evidence rule is that such testimony serves to inform the court about

affairs not within the full understanding of the average man. West, supra, 670 F.2d at 682. The review of a district court's admissibility ruling is limited to determining whether the court abused its wide discretion concerning admissibility of expert testimony. United States v. Watson, 587 F.2d 365, 369 (7th Cir.1978), cert. denied sub nom. Davis v. United. States, 439 U.S. 1132, 99 S.Ct. 1055, 59 L.Ed.2d 95 (1979).

In this case, Dr. Littner testified that the defendant was depressed and that his depression led him to purposefully exercise poor judgment in his commodity trading and his handling of debts. While this testimony was offered to negate the specific intent necessary to defraud, nowhere in Dr. Littner’s testimony is there evidence that the defendant lacked knowledge of his actions in writing bad bank drafts to Paine Webber. Therefore, Dr. Littner’s testimony would not assist the jurors in determining the defendant’s intent to defraud in writing bad bank drafts and would tend to confuse the jurors regarding the defendant’s poor judgment in his trading. United States v. Benveniste, 564 F.2d 335, 339 (9th Cir.1977).

In addition, the defendant’s son testified at trial that his father was depressed and seemed more distant from him. The jury was able to determine from the testimony of the defendant’s wife and son that he was depressed and that the depression may have affected his business judgment without the assistance of expert testimony. West, supra, 670 F.2d at 682; United States v. Webb, 625 F.2d 709, 711 (5th Cir.1980). Furthermore, the defendant’s poor judgment and the underlying explanations were plainly within “the ken of lay jurors,” United States v. Fosher, 590 F.2d 381, 383 (1st Cir.1979), and therefore it was a proper subject for lay testimony. Webb, supra, 625 F.2d at 711. In light of the above findings, the Court concludes that the defendant’s experts were properly excluded because their proffered testimony was outside the scope of Fed.R.Evid. 702.

B. Ineffective Assistance of Counsel

The defendant argues that his counsel’s failure to give timely notice pursuant to Fed.R.Crim.P. 12.2(b) of the intent to introduce the excluded expert testimony constitutes ineffective assistance of counsel in violation of the Sixth Amendment to the United States Constitution. In order to establish ineffective assistance of counsel, the defendant must show that (1) his counsel’s performance fell below that of a reasonably competent attorney and (2) the counsel’s error prejudiced the defendant. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 2064-69, 80 L.Ed.2d 674 (1984). In this case, careful examination of the record reveals that at least part of the delay in giving notice under Rule 12.2(b) was due to the defendant missing his appointments with Dr. Littner. In light of the entire record, the Court finds that the representation provided by counsel for the defendant met the standard of a reasonably competent attorney. Moreover, the Court’s discussion of the admissibility of Dr. Littner’s testimony clearly shows that the defendant was not prejudiced by the alleged error of failing to give notice. United States v. Ellsworth, 738 F.2d 333, 336 n. 5 (8th Cir.1984).

III. CONCLUSION

Defendant’s motion for bond pending appeal under 18 U.S.C. § 3143 is denied because he has failed to show that there is a substantial question which, if decided in defendant’s favor, would likely result in reversal or an order for a new trial on all counts for which imprisonment has been imposed. He has failed to show such a substantial question in:

(1) the exclusion of psychiatric testimony on the grounds of untimely notice under Fed.R.Crim.P. 12.2(b) and of inadmissibility under Federal Rules of Evidence 404(a)(1) and 702; and

(2) the alleged ineffective assistance of counsel.

For the above reasons, defendant has failed to meet his burden under § 3143(b) and therefore his motion for bail pending appeal is denied. Defendant is ordered to surrender to the United States Marshal in Chicago before 12:00 p.m. (noon) on September 3, 1985.

IT IS SO ORDERED.


author: YOUNG, District Judge.

text:
    Petros A. PALANDJIAN, Plaintiff, v. Ashraf PAHLAVI, Defendant.
    Civ. A. No. 83-2199-Y.
    United States District Court, D. Massachusetts.
    Aug. 16, 1985.
    See also, D.C., 586 F.Supp. 671.

      M. Frederick Pritzker, Elizabeth-A. Ritvo, Brown, Rudnick, Freed & Gesmer, Boston, Mass., for plaintiff.
    Harvey Weiner, Peabody & Arnold, Boston, Mass., for defendant.
   MEMORANDUM AND ORDER

YOUNG, District Judge.

The plaintiff in this action, Petros A. Palandjian (“Palandjian”), seeks damages in excess of $30 million on his claims of breach of contract, conversion, unjust enrichment, quantum meruit, and breach of fiduciary duty. The defendant, Ashraf Pahlavi (“Pahlavi”), moves for summary judgment on all counts, claiming that the action is barred both by the statute of limitations and by the statute of frauds. For the reasons that follow, Pahlavi’s motion is denied.

I. Background

Palandjian is a dual national Iranian-American citizen who has been a resident of the United States since 1963. The defendant Pahlavi is the twin sister of the late Shah of Iran and currently is living in exile. Palandjian alleges the following facts and this court, expressing no opinion thereon, assumes them to be true for purposes of this motion only.

In 1966, Palandjian resided in Massachusetts and was the president of a construction company located in Watertown, Massachusetts. In June of 1966 he first met Pahlavi through his brother Leon Palandjian (“Leon”), who worked for Pahlavi in Iran. During the course of several meetings over a weeklong period in various locations in Massachusetts, Pahlavi and Palandjian entered into an oral contract whereby they agreed to develop a holiday resort, named “Kazar Shahr,” on the Caspian Sea in Iran. By this agreement, Pahlavi would purchase the necessary real estate, Palandjian would provide up to $2 million as an initial investment, and he and his brother Leon would form a new company to develop and construct the project, all profits being divided equally between Pahlavi and Palandjian. Palandjian agreed to oversee the development of the project from his office in Massachusetts and to visit the site in Iran as necessary.

During the June 1966 meetings in Massachusetts, Pahlavi and Palandjian also discussed the need and demand for aviation development in Iran. They agreed to contact Cessna Aircraft to seek the exclusive distributorship for Iran; if successful, Palandjian was to have an 85% interest and Pahlavi a 15% interest. Neither this agreement nor the agreement to develop Kazar Shahr were put in writing — Palandjian did not ask Pahlavi to sign a written contract for fear of insulting her.

Pursuant to these agreements, Palandjian and his brother Leon formed a company, called Abadani Jazayer, to develop the Kazar Shahr project. Because he was a resident of Iran, Leon was named president of the company. The shares of Abadani Jazayer stock were given to the plaintiffs father, Grigor Palandjian, to hold in his safe in Tehran on the basis of 50% for the benefit of Palandjian and 50% for the benefit of Pahlavi.

Palandjian also obtained the exclusive distributorship in Iran for Cessna Aircraft. Palandjian and his brother formed a company named Hooraseman to sell aircraft and parts, and each of the brothers was named individually as a Cessna representative. Leon was named president of Hooraseman and the company shares were held by the plaintiffs father in Tehran.

From 1966 through July 1969, Palandjian supervised the development of the Kazar Shahr project from his Watertown, Massachusetts, office and from periodic site visits. During this period he was in frequent telephone contact from his Massachusetts home and office with Pahlavi regarding the project. In July 1969, Leon died, and Palandjian moved to Iran to assume his brother’s responsibilities as president of both the Abadani Jazayer and the Hooraseman companies. From July 1969 through December 1970 Palandjian resided in Tehran except for several brief trips to Massachusetts to visit his family.

Following extensive site development, the Kazar Shahr project was ready for marketing in 1970. In December 1970, Palandjian had a dispute with Pahlavi concerning the amount of time he was spending in Iran. Palandjian proposed that they sell the Abadani Jazayer and Hooraseman companies, a suggestion which angered Pahlavi. While discussing this matter in France, Pahlavi sent the following written message to Palandjian:

I swear to my highest beliefs that you will never set foot in Iran while I am alive. You are free to leave here whenever you want even if you want to leave tonight.
P.S. You are free to go whereever you want.

Fearing for his safety, Palandjian did not return to Iran. He moved back to his home in Massachusetts and, from there, continued to supervise the activities of Abadani Jazayer and Hooraseman.

In 1971, Pahlavi moved to wrest control of the two companies from Palandjian. Early that year a representative of Pahlavi went to the Abadani Jayazer offices in Tehran and announced that he was taking over the company and that all documents and models should be turned over to him. The staff reluctantly complied with those demands. At approximately the same time Pahlavi’s top assistant, Izadi, visited the plaintiff’s father Grigor and demanded the shares of Abadani Jazayer and Hooraseman held by Grigor. According to Grigor’s deposition testimony, Izadi stated: “We will have you killed,” and “If you and your son and family want to live here without any danger give me the stocks.”

Grigor contacted Palandjian about the threats from Izadi, and Palandjian spoke with Pahlavi at least twice about her intent to obtain possession of the shares. Pahlavi replied that she would hold Palandjian’s shares for his benefit. Fearing for Grigor’s safety and relying on Pahlavi’s statement that she would hold the Abadani Jazayer and Hooraseman shares for his benefit, Palandjian advised his father to release the stock of both companies to Izadi, which his father did.

Shortly thereafter, in 1971, Palandjian was visited in Massachusetts by Pahlavi’s cousin, Dadsetan. Dadsetan told Palandjian that he either had to return to Iran at Pahlavi’s request or he had to relinquish his rights to the Cessna distributorship. Still fearing Pahlavi’s previous threats, Palandjian was unwilling to return to Iran. Dadsetan became more belligerant, stating “She wants Cessna Aircraft. She wants you to give up Cessna if you’re not coming back.” Dadsetan further stated, “I’m sure you won’t want to take a chance and have something unpleasant happen to your mom, to your dad. They have a pleasant life.” Palandjian called Pahlavi about Dadsetan’s threats and was told that Dadsetan was her representative and that Palandjian was to do as he was told. Pahlavi added, “You don’t have to if you don’t want to. That’s up to you. You decide.” In response to a request for payment, Pahlavi stated, “Don’t worry about the money. You will get paid.” Fearing the possible consequences to him and his family, Palandjian signed papers which relinquished his rights to the Cessna distributorship.

From 1971 through 1982 Palandjian remained in contact with Pahlavi, speaking with her by phone and periodically meeting with her in Geneva or New York. During these conversations, Palandjian repeatedly raised the issue of monies Pahlavi owed him from Hooraseman and Abadani Jazayer. According to Palandjian, Pahlavi acknowledged her debts and told him that he would be paid. Palandjian summarized the circumstances of one meeting: In 1972 he met Pahlavi in Geneva and again asked her for payment. Pahlavi stated that she had instructed her assistant to pay Palandjian $1.7 million for the unpaid construction work he had performed for the Kazar Shahr development; she also told him that Kazar Shahr had already made $25 million and would make in excess of $50 million, and that he would be paid his share of the profits. In response, Palandjian informed her that he had not received any payment whatsoever.

The Shah of Iran was deposed in 1978 and died in 1980. For some time after 1978 Palandjian believed that the Pahlavi family would return to power eventually and that “the royal family through its agents would exercise power and control while out of power ... outside of Iran.” In 1983 Palandjian came to believe that the Pahlavi family would not return to power in Iran and that he could safely litigate his claims against Pahlavi. Palandjian commenced this suit on July 27, 1983.

II. The Statute of Limitations Defense

When a defense of statute of limitations is properly raised, the burden is on the plaintiff to prove that he has complied with the relevant statutes. Holtzman v. Proctor, Cook & Co., Inc., 528 F.Supp. 9, 14 (D.Mass.1981). The Massachusetts statute of limitations applies in this diversity case. Molinar v. Western Electric Co., 525 F.2d 521, 531 (1st Cir.1975), cert. denied, 424 U.S. 978, 96 S.Ct. 1485, 47 L.Ed.2d 748 (1976). The statute of limitations for contract actions provides that such actions shall be commenced within six years after the cause of action accrues. Mass.Gen.Laws eh. 260, § 2. For claims arising in tort, the Massachusetts statute provides a two-year limitations period for claims arising before January 1, 1974, and a three-year limitations period for claims arising on or after that date. Mass.Gen. Laws ch. 260, § 2A; Baldassari v. Public Finance Trust, 369 Mass. 33, 43, 337 N.E.2d 701 (1975).

A. Counts I, II, IV, and V

A cause of action for breach of contract accrues at the time of the breach. Campanella & Cardi Construction Co. v. Commonwealth, 351 Mass. 184, 185, 217 N.E.2d 925 (1966). Palandjian alleges in Count I that Pahlavi breached their oral contract by “her failure to pay the plaintiff for his profits in the Kazar Shahr development and for the construction work performed on said project, and by preventing the plaintiff from returning to Iran to complete the project.” Amended Complaint 1134.

Palandjian’s own version of the facts confirms that this alleged breach of contract occurred no later than 1971, when Pahlavi forced him to relinquish control of his interest in the Abadani Jazayer and Hooraseman companies. Similarly, Palandjian’s quantum meruit claim in Count IV is based on Pahlavi’s failure to pay him the reasonable value of the construction work on the Kazar Shahr project, work which was completed by 1971. Thus, the limitations period on the breach of contract claim (Count I) and the quantum meruit claim (Count IV) ordinarily would have expired no later than 1977, six years before this action was filed.

A similar analysis applies to Palandjian’s claim for conversion (Count II). A cause of action in tort accrues at the time of injury to the plaintiff. Cannon v. Sears, Roebuck & Co., 374 Mass. 739, 374 N.E.2d 582 (1978). Palandjian’s conversion claim rests upon allegations that Pahlavi through her agents converted (1) Palandjian’s property rights in the Cessna Aircraft distributorship in Iran, and (2) Palandjian’s interest in the Kazar Shahr project. Amended Complaint ¶ 36. Because these events took place in 1970 and 1971, the limitations period for the conversion claim ordinarily would have expired no later than 1973.

Palandjian contends in Count V that Pahlavi breached her fiduciary duty to him “arising from the contract entered into between Plaintiff and Defendant” and “arising from her holding of the Plaintiff’s shares in Abadani Jazayer and Hooraseman Corp. since at least 1971.” Amended Complaint ¶ 48. Assuming that the parties did indeed stand in fiduciary relation to one another, see Cann v. Berry, 293 Mass. 313, 316, 199 N.E. 905 (1936), there is nothing in the record to suggest that this cause of action rests on any different footing than Palandjian’s other tort and contract claims. Indeed, as Palandjian has himself characterized the claim, it arises from the 1971 breach of contract and Pahlavi’s holding of shares “since at least 1971.” Accordingly, this court rules that the cause of action for breach of fiduciary duty accrued in 1971.

Palandjian concedes that under ordinary circumstances his complaint would be untimely. However, he contends that the applicable statutes of limitations for all counts of the amended complaint have been tolled on the ground of “duress.”

B. Duress

Palandjian asserts that he was in fear of the defendant and the Pahlavi family from 1970 until 1983, and not until 1983 did he come to believe that he could safely bring litigation to enforce his rights against this defendant. He argues that as a consequence of this continuous duress, the relevant limitations periods did not begin to run until 1983, and that all of his claims have therefore been brought in a timely manner.

Palandjian has presented substantial evidence that he was subject to duress by Pahlavi when he relinquished his interests in Abadani Jazayer, Hooraseman, and the Cessna distributorship. According to his allegations, in 1970 Pahlavi told him never to set foot in Iran while she was alive. In 1971, Pahlavi and her agent forced Palandjian to give up his property by threatening the safety of his family. Also in 1971, Pahlavi’s agent made direct threats to Palandjian’s father in Iran.

However, the issue is not whether Palandjian was under duress in 1971. The situation here is considerably different from more typical duress cases, in which a party seeks to avoid an apparent legal obligation on the ground that he agreed to such an obligation under duress. Thus, many of the authorities cited by Palandjian are inapplicable. See, e.g., Omansky v. Shain, 313 Mass. 129, 46 N.E.2d 524 (1943) (plaintiff not entitled to collect on promissory note because he had coerced the defendant into signing it). The question here is whether the duress experienced by Palandjian should excuse the lengthy delay in bringing this action.

An initial question is whether, under Massachusetts law, a court may recognize a duress exception to the statutes of limitations under any circumstances. The Massachusetts legislature has specifically defined several circumstances under which the statutes of limitations may be tolled, and duress is not one of them. See Mass. Gen.Laws ch. 260. Pahlavi makes a strong argument that this court should not create a duress exception in the absence of legislative direction. See 51 Am.Jur.2d, Limitations of Actions § 138 at 708 (1970) (“While most courts give recognition to certain implied exceptions arising from necessity, it is now conceded that they will not, as a general rule, read into statutes of limitation an exception which has not been embodied therein, however reasonable such exception may seem and even though the exception would be an equitable one.”).

In Babeo Industries, Inc. v. New England Merchants Nat. Bank, 6 Mass.App. 929, 380 N.E.2d 1327 (1978), the court rejected the plaintiffs “duress exception” argument but stated in dictum, “It is possible to imagine circumstances in which duress might toll the statute.” Id. at 930, 380 N.E.2d 1327. Likewise, the “duress exception” appears to have been recognized in this District in a closely related case. Pahlavi v. Palandjian, No. 83-0437-Z, slip op. at 4-5 (D.Mass. May 30,1985).

Even where other courts have entertained the view that duress might toll the running of the statute of limitations, however, they have uniformly agreed with the Babeo court that such an exception would be available only under very unusual circumstances. For example, in Cooper v. Fidelity-Phila. Trust Co., 201 F.Supp. 168 (E.D.Pa.1962), the plaintiff claimed that the defendants threatened to have him committed to a mental institution if he sought to enforce his legal rights. Noting that “[t]here is little authority for the proposition that ‘duress’ tolls the running of the statute of limitations,” the court held that such threats would not constitute duress. Id. at 170; see Philco Corp. v. Radio Corp. of America, 186 F.Supp. 155, 162 (E.D.Pa.1960) (court was “unable to discover a single case which has recognized such a defense in this [antitrust] area of the law”). A New York appellate court recently summarized the law in this area as follows:

While other jurisdictions have suggested or assumed the possibility for the purpose of argument that duress might toll the limitations period for causes of action not based on duress, the ultimate resolution in each case was to reject duress as a toll on the facts presented. Whether reluctance to recognize duress as a toll lies in the undesirability of a rule that turns on the reasonableness of reliance upon threats of physical or economic harm, the ease of fabrication of such threats, or simply in the judicial reluctance to create an entirely new defense to the Statute of Limitations, ... we are not inclined in this case to attempt overthrow of the old rule.

Baratía v. Kozlowski, 94 A.D.2d 454, 459, 464 N.Y.S.2d 803, 807 (1983) (citations omitted).

To toll the running of the statute of limitations, the alleged duress must be directed at preventing the plaintiff from filing suit or otherwise enforcing his legal rights. Jastrzebski v. City of New York, 423 F.Supp. 669, 673 (S.D.N.Y.1976). In particular, the plaintiff must allege facts of duress which go “beyond those which comprise the alleged torts in suit.” Id. As noted above, in this case Palandjian certainly has presented evidence of duress in 1971 —Pahlavi converted his property to her own use by threatening him and his family. As unconscionable as these alleged threats are, they do not relate to the filing of any legal action. The record does not contain any evidence of any threat or coercive act by the defendant after 1972, despite the fact that Palandjian communicated regularly with Pahlavi over the course of the next decade. In particular, there is no evidence of any threat or act to deter the filing of this lawsuit.

Palandjian argues that the fear induced by the Pahlavi’s actions in the 1970-1972 period lasted continuously for more than 10 years and remained sufficiently strong to dissuade him from filing suit until 1983. Even assuming this fear was reasonable, the plaintiff’s subjective fear cannot by itself govern the application of the statute of limitations. A similar argument was rejected by the court in Jastrzebski v. City of New York, 423 F.Supp. 669 (S.D.N.Y.1976):

Reduced to their essentials, plaintiff’s allegations are that he was so intimidated by the tortious acts of defendants that, without any further actions on their parts, he was deprived of a free will to institute his suit against them. This argument, if accepted, would prove too much, for any plaintiff — the victim of an assault, or a battery, or a defamation, for instance — could argue that he was subjectively so intimidated or traumatized by the tortious conduct of his adversary that he was unable to bring suit until some time well beyond the period established by the legislature for the institution of such actions. If, in each instance, the trial court were forced to make an ad hoc determination of the severity of the plaintiffs subjective fear in order to determine whether to waive the effect of the statute of limitations, then obviously the courts would be burdened by a plethora of preliminary inquiries which could defeat the very purposes which the statutes of limitations were designed to serve.

Id. at 674.

Here Palandjian would have a stronger case if Pahlavi or her agents “had actually approached him at some point and threatened him with dire consequences if he were to institute his litigation.” Id. As in Jastrzebski, Palandjian simply has alleged that he was afraid Pahlavi might retaliate if he filed suit. “[T]he mere fact that the plaintiff anticipated duress does not establish it as a legal defense.” Id. (quoting Philco Corp. v. Radio Corp. of America, 186 F.Supp. 155, 162 (E.D.Pa.1960)) (emphasis in original).

Palandjian points out that another judge in this district, on allegations virtually indistinguishable from those in the present case and upon the authority of Ross v. United States, 574 F.Supp. 536, 542 (S.D.N.Y.1983), has ruled that Palandjian’s “claim of duress has raised a sufficient issue of fact to withstand plaintiff’s motion for summary judgment.” Pahlavi v. Palandjian, supra, at 1572. With respect, it seems to me that while Ross does provide some authority for Palandjian’s duress argument, it is distinguishable from this case and thus the averments of the affidavits opposing summary judgment fall short of establishing any material issue of fact.

In Ross, the plaintiff was a former prison inmate who alleged that the defendant prison officials mistreated him and wrongfully delayed in granting him parole. When the plaintiff was finally released from prison— following three successful habeas corpus petitions in federal court — he waited until he was no longer on parole (one year after the limitations period ordinarily would have expired) before filing suit. He alleged that he did not file the action earlier because he was still on parole and he feared retaliation from the defendants, who still had certain legal power over him. The court held that the defendant’s alleged facts were sufficient to invoke a duress defense, relying on the principle that a limitations period may be tolled “when a paramount authority prevents a person from exercising his legal rights.” Id. at 542 (emphasis added); see Davis v. Wilson, 349 F.Supp. 905, 906 (E.D.Tenn.) (statute of limitations may be tolled a “reasonable time” where the defendant sheriff allegedly took the plaintiff’s legal papers from his cell), aff'd, 471 F.2d 653 (6th Cir.1972).

In this case, Palandjian has not alleged that Pahlavi had any legal or paramount authority over him. According to Palandjian, he was a citizen of the United States and resided in this country continuously after 1970. Although Palandjian has implied that Pahlavi’s retaliatory power extended to the United States from 1970 through 1982, he has offered no tangible evidence of such power and this court is not in a position to speculate on that matter. For these reasons, Ross does not appear to be compelling authority for purposes of this case.

The ruling by my colleague in Pahlavi v. Palandjian, however, is entitled to considerable deference and much greater weight. “If the precedent is from a sitting judge in one’s own court and represents [her] mature reflection, the argument in favor of following it rests not only on the appropriate amenities, but also on profounder considerations of equality in the treatment of litigants.” Wyzanski, “The Essential Qualities of a Judge,” from The New Meaning of Justice (1956), reprinted in Handbook for Judges 96 (American Judicature Society 1975). These considerations have especial force here where Palandjian himself is a litigant in both cases, and I completely agree that a duress exception can theoretically toll the statutes of limitations. My reservations flow only from the limited scope I would afford to the reasoning in Ross and my own reading of affidavits which are substantially similar in both this case and Pahlavi v. Palandjian. Thus the question is simply put: ought this court reject the proffered duress exception and dismiss the action notwithstanding Pahlavi v. Palandjian, or ought it follow the reasoning of that decision, deny the motion for summary judgment, and order the case for trial? The first course has the advantage of permitting a prompt appeal to conclusively determine the legal issue; the second results in deciding like cases alike at the trial level.

Fortunately, the flexible provisions of 28 U.S.C. § 1292(b) admit of an accomodation of both concerns. The extent of the duress exception to the running of the Massachusetts statutes of limitations is here “a controlling question of law as to which there is substantial ground for difference of opinion.” Therefore, this court will deny the motion for summary judgment upon the grounds expressed in Pahlavi v. Palandjian — thus insuring that Palandjian is treated uniformly in each of his two related lawsuits. In view of my reservations as to this result, however, this court is of opinion “that an immediate appeal from [this] order may materially advance the ultimate termination of the litigation.” 28 U.S.C. § 1292(b). Accordingly, Pahlavi has ten days after the entry of the denial of this motion for summary judgment to apply to the Court of Appeals for permission to proceed with an appeal therefrom. Id. In this fashion, both uniform application of the law and prompt appeal may be accomplished.

C. Count III (and Count V Revisited)

Palandjian contends in Count III that Pahlavi has been unjustly enriched by her actions in obtaining “rights and title to the Plaintiffs property” and asks the court to impose a constructive trust for his benefit. Amended Complaint ¶¶ 38, 39. See Barry v. Covich, 332 Mass. 338, 342, 124 N.E.2d 921 (1955) (a constructive trust may be employed in equity in order to avoid the unjust enrichment of one party at the expense of the other where the legal title to the property was obtained by fraud or in violation of a fiduciary relationship). Palandjian further contends that the limitations period for this claim is six years and that the cause of action accrued after 1982. In response, Pahlavi argues that Count III is simply a restatement of the conversion claim (Count II) and is therefore barred by the applicable two-year statute of limitations.

In Massachusetts, the statutes of limitations applicable to law actions based on contract and tort are also applicable to suits in equity. Desmond v. Moffie, 375 F.2d 742, 743 (1st Cir.1967). The court must look to the “gist of the action” or the essential nature of the plaintiffs claim in determining what statute of limitations to apply. Hendrickson v. Sears, 365 Mass. 83, 85, 310 N.E.2d 131 (1974). Although Palandjian’s unjust enrichment claim does rest in part on the circumstances of the alleged conversion, it also arises from the breach of contract allegations. “The usual form of action to recover from another money which in equity and good conscience he is not entitled to keep is in contract.” Kagan v. Levenson, 334 Mass. 100, 103, 134 N.E.2d 415 (1956). Therefore, the six-year statute of limitations for actions of contract applies to Count III. Brodeur v. American Rexoil Heating Fuel Co., 13 Mass.App. 939, 940, 430 N.E.2d 1243 (1982) (six-year limitations period applies to action seeking the declaration of a trust based on an implied contract).

The six-year limitations period does not assist Palandjian, however, unless the cause of action for unjust enrichment accrued after July 1977. Palandjian reasons that his cause of action accrued after 1982, because: while he was forced by Pahlavi in 1971 to give up his shares in the Abadani Jazayer and Hooraseman companies and to relinquish his rights to the Cessna distributorship, he was told by Pahlavi that she was holding these shares and interests for his benefit. Between 1971 and 1982 he remained in contact with Pahlavi and, each time he requested payment from her, she acknowledged her debts and assured him that eventually he would be paid. According to Palandjian, it was not until after 1982 that he had reason to know Pahlavi “was holding the shares adversely to him.” Palandjian is essentially arguing that his cause of action for unjust enrichment did not accrue until the implied trust was “repudiated” or otherwise terminated to his knowledge. See Brodeur v. American Rexoil Heating Fuel Co., 13 Mass.App. 939, 940, 430 N.E.2d 1243 (1982). Although he points to no clear expression of repudiation by Pahlavi in 1982 or 1983, he alleges that it became clear after 1982 that Pahlavi had no intention of paying him.

It is true that in the case of express or resulting trusts, the statute of limitations does not begin to run until the trustee has repudiated the trust and knowledge of that repudiation has come home to the beneficiary. Kearney v. Mechanics Nat. Bank, 343 Mass. 699, 703, 180 N.E.2d 667 (1962); see Burns v. Massachusetts Institute of Technology, 394 F.2d 416, 419 (1st Cir.1968); Hanrihan v. Hanrihan, 342 Mass. 559, 567, 174 N.E.2d 449 (1961). However, Palandjian’s claim is not based on an express or resulting trust; instead, he seeks a declaration that a constructive trust should be imposed to avoid unjust enrichment. A constructive trust is not a substantive device but merely an equitable remedy to compel a person not justly entitled to property to transfer it to another. Davies v. Krasna, 14 Cal.3d 502, 121 Cal.Rptr. 705, 714, 535 P.2d 1161, 1170 (1975). As a general rule, the “repudiation” requirement does not apply to a constructive trust imposed as a remedy by the court. Burns v. Massachusetts Institute of Technology, 394 F.2d 416, 419 (1st Cir.1968); see Currier v. Studley, 159 Mass. 17, 20, 33 N.E. 709 (1893).

Although there is no formal “repudiation” requirement for constructive trusts, “the statute [of limitations] begins to run in favor of the [constructive trustee] against the [beneficiary] ... at the time when the holder of title begins to hold adversely.” Currier v. Studley, 159 Mass. 17, 20, 33 N.E. 709 (1893); Scott on Trusts § 481.1 (3d ed. 1967).

On this theory, then, the key legal question is when Pahlavi began holding Palandjian’s property adversely to him. Given the circumstances under which Palandjian says he was forced to give up his interests in Abadani Jazayer, Hooraseman, and the Cessna distributorship, he can hardly be heard to suggest that Pahlavi acquired and continued to hold these interests on his behalf. According to Palandjian himself, he relinquished his rights unwillingly and only after threats of severe bodily harm by Pahlavi and her representatives against his family and himself.

True, Palandjian also asserts that, at the time Pahlavi forced him to give up his stock, she told him that she would “hold the shares for [him].” But even if it is true that Pahlavi acknowledged her debt and promised to pay it eventually, it does not follow that she became his agent thereby. “In the ordinary case a plaintiff’s discussions with a defendant do not postpone the accrual of the cause of action until he is satisfied that the defendant is going to do nothing for him.” Burns v. Massachusetts Institute of Technology, 394 F.2d 416, 417 (1st Cir.1968); see Aetna Casualty & Surety Co. v. Bell, 390 F.2d 612, 613-14 (1st Cir.1968) (The rule “cannot be ... that the cause of action accrues only when the settlement talks break down. This would make the policy limitation close to meaningless.”); see also Dolmetta v. Uintah Nat. Corp., 712 F.2d 15, 19 (2d Cir.1983) (action for unjust enrichment due to defendants’ fraudulent acquisition of stock accrued at the time defendants acquired such stock).

Of course, faced with Pahlavi’s motion for summary judgment, Palandjian is entitled to have his affidavits in opposition read indulgently and this court must draw in his favor such inferences as are reasonable to ascertain whether a genuine issue in fact exists. Hahn v. Sargent, 523 F.2d 461, 464 (1st Cir.1975), cert. denied, 425 U.S. 904, 96 S.Ct. 1495, 47 L.Ed.2d 754 (1976). Moreover, this court acknowledges that on this record, it is a close question whether a reasonable jury could wholly disregard the claim of duress (thus demolishing all the other counts of the complaint —except, perhaps, Count V) and nevertheless, based solely upon what remains, conclude that Pahlavi was genuinely acting on Palandjian’s behalf and only renounced her trust in 1982. Certainly, this court would not so find.

It is unnecessary, however, to determine the matter upon the factual sufficiency of the opposing affidavits as a more basic concern prevents a ruling for Palandjian on the theory advanced above. While Palandjian has every right to plead in the alternative, Fed.R.Civ.P. 8(a), the time for the maintenance of inconsistent factual positions has long since passed when, as is the case here, the court is required to resolve a motion for summary judgment made after such extensive discovery that neither party seeks to advance additional evidence pursuant to Fed.R.Civ.P. 56(f).

Long and firmly established principles of common law provide that

... a man should not be permitted ‘to blow hot and cold’ with reference to the same transaction, or insist, at different times, on the truth of each of two conflicting allegations, according to the promptings of his private interests.

Broom, A Selection of Legal Maxims 119 (2d ed. 1850) (quoting Lord Kenyon). This doctrine was recognized by the United States Supreme Court in David v. Wakelee, 156 U.S. 680, 15 S.Ct. 555, 39 L.Ed. 578 (1895), where the Court stated:

It may be laid down as a general proposition that, where a party assumes a certain position in a legal proceeding, and succeeds in maintaining that position, he may not thereafter, simply because his interests have changed, assume a contrary position, especially if it be to the prejudice of the party who has acquiesced in the position formerly taken by him.

Id. at 689, 15 S.Ct. at 558.

Since, for the reasons discussed above, Palandjian prevails on the claim of duress, his claim based upon the alleged repudiation of a constructive trust or fiduciary relationship ought not be entertained. Indeed, even were the result different and were the duress exception to prove unavailing, this court would rule that the present record is insufficient to raise a genuine issue concerning whether, after 1971, Pahlavi was other than a party totally adverse to Palandjian’s interests.

For the reasons expressed above, however, this motion for summary judgment must be denied.

SUPPLEMENTAL MEMORANDUM

On August 16,1985, this court denied the motion of the defendant Pahlavi for summary judgment, albeit with reservations, after analyzing whether the plaintiff Palandjian’s claim of duress was adequate to toll the relevant statutes of limitations. Both parties promptly sought reconsideration, Pahlavi’s counsel correctly observing that, were Pahlavi not to prevail on her statute of limitations argument, she is nevertheless entitled to a ruling on her statute of frauds defense to Count I — the contract count. After further hearing, this supplemental memorandum addresses that issue.

The Statute of Frauds Defense

Pahlavi has argued that Palandjian’s breach of contract claim is barred by the Massachusetts statute of frauds, which generally provides that no action shall be brought upon an agreement that is not to be performed within one year unless that agreement is in writing and signed by the party charged with a breach. Mass.Gen. Laws ch. 259, § 1. According to Pahlavi, the Kazar Shahr development could not have been completed within one year after the alleged oral contract was made, and therefore the contract claim is barred. Palandjian concedes that the entire Kazar Shahr project could not have been completed within one year, but argues that the obligations of the parties under the alleged agreement could have been concluded within that period. Palandjian further contends that Pahlavi is estopped from asserting a statute of frauds defense. Because this court holds that the estoppel doctrine may apply to this case, it is unnecessary to decide whether the alleged contract could have been performed within one year.

The Restatement (Second) of Contracts § 139(1) sets forth the circumstances under which a defendant may be estopped from invoking a statute of frauds defense to a claim falling within the scope of the statute:

A promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce the action or forbearance is enforceable notwithstanding the Statute of Frauds if injustice can be avoided only by enforcement of the promise. The remedy granted for breach is to be limited as justice requires.

Restatement (Second) of Contracts § 139(1) (1981). Section 139(2) lists several factors which are significant in determining “whether injustice can be avoided only by enforcement of the promise.”

The Massachusetts courts have held that the estoppel doctrine may apply in the statute of frauds context. See Cellucci v. Sun Oil Co., 2 Mass.App. 722, 728, 320 N.E.2d 919 (1974) (“[A]n estoppel, if appropriately applied in this case, would also preclude [the defendant] from asserting the affirmative defense of the Statute of Frauds.”), aff'd, 368 Mass. 811, 331 N.E.2d 813 (1975). In Hickey v. Green, 14 Mass.App. 671, 442 N.E.2d 37 (1982), the Appeals Court noted that “the earlier Massachusetts decisions laid down somewhat strict requirements for an estoppel precluding the assertion of the Statute of Frauds,” but looked to the Restatement (Second) of Contracts for a statement of the rule presently “applicable in most jurisdictions in the United States.” Id. at 673, 442 N.E.2d 37 (applying the rule of Restatement (Second) of Contracts § 129, which is substantially similar to § 139(1), in a case involving a contract for the sale of real estate); see Goeken v. Kay, 751 F.2d 469, 472, 474 (1st Cir.1985) (quoting the Restatement § 139(1), and affirming a decision of the district court which “assumed for the sake of argument” that Massachusetts law permitted recovery upon reasonable reliance on an oral promise, notwithstanding the statute of frauds).

The court in Cellucci v. Sun Oil Co., supra, summarized the “essential factors giving rise to an estoppel”:

(1.) A representation or conduct amounting to a representation intended to induce a course of conduct on the part of the person to whom the representation is made. (2.) An act or omission resulting from the representation, whether actual or by conduct, by the person to whom the representation is made. (3.) Detriment to such person as a consequence of the act or omission.

2 Mass.App. at 728, 320 N.E.2d 919 (quoting Industrial Bankers of Mass. Inc. v. Reid, Murdoch & Co., 297 Mass. 119, 124, 8 N.E.2d 19 (1937)) (citations omitted); see Loranger Construction Corp. v. E.F. Hauserman Co., 6 Mass.App. 152, 154, 374 N.E.2d 306 (Keville, J.), aff'd, 376 Mass. 757, 384 N.E.2d 176 (1978).

Pahlavi points out that neither Palandjian’s affidavits nor indeed the allegations in his complaint suggest fraud in the inducement or misrepresentation. This is not essential for estoppel to apply. “Recovery in these circumstances requires no more than a promise on which the promisee could reasonably have placed reliance; and attention is to be focused upon the reasonableness of that reliance.” Loranger Construction Corp. v. E.F. Hauserman Co., 6 Mass.App. 152, 159, 374 N.E.2d 306, aff'd, 376 Mass. 757, 761, 384 N.E.2d 176 (1978) (Braucher, J.) (“When a promise is enforceable in whole or in part by virtue of reliance, it is a ‘contract,’ and it is enforceable pursuant to a ‘traditional contract theory’____’.

Each of the factors necessary to show estoppel may be present in this case. Palandjian has submitted competent evidence indicating that Pahlavi made specific representations regarding the Kazar Shahr project which reasonably induced Palandjian to invest substantial time, money, and other resources toward development of the project. That evidence, if believed, is certainly sufficient to show that Palandjian changed his position to his substantial detriment. Whether the elements necessary to create an estoppel exist is an issue of fact. Moran v. Town of Mashpee, 17 Mass.App. 679, 681, 461 N.E.2d 1231 (1984); Danielczuk v. Ferioli, 7 Mass.App. 914, 388 N.E.2d 724 (1979) (“The assertion of an estoppel raises factual questions of reliance and reasonableness that should have been left for resolution at trial.”). The court is not in a position to decide at this stage of the case that estoppel cannot be shown.

For these reasons, the court rules that, upon this record, the statute of frauds does not bar Palandjian’s contract claim.

      . Palandjian properly does not assert that these and the related statements by Pahlavi started the statute of limitations running afresh. Mass. Gen.Laws c. 260, § 13. David v. Zilah, 325 Mass. 252, 255-56, 90 N.E.2d 343 (1950) (Spalding, J.).

      . In Callanan Road Improvement Co. v. United States, 345 U.S. 507, 73 S.Ct. 803, 97 L.Ed. 1206 (1953), the Callanan Road Improvement Co. had applied to the I.C.C. for the purchase of an amended certificate to operate freight boats. The Commission authorized the transfer. After the transfer, Callanan filed suit to set aside a modification of the certificate effected by the Commission before the transfer. The Court held that Callanan was estopped to deny the Commission’s power to issue the certificate in its modified form, stating:
      The appellant cannot blow hot and cold and take now a position contrary to that taken in the proceedings it invoked to obtain the Commission’s approval. If the appellant then had taken the position it seeks now, the Commission might conceivably have refused its approval of the transfer. The appellant accepted the transfer with the limitations contained in the certificate.
      345 U.S. at 513, 73 S.Ct. at 806.
      Professor Moore has discussed the doctrine, sometimes referred to as "judicial estoppel" or the doctrine of "preclusion against inconsistent positions," as follows:
      Even where the facts will not permit the application of res judicata, collateral estoppel, or the election rule against inconsistent remedies, a party may be precluded by a prior position taken in litigation from later adopting an inconsistent position in the course of a judicial proceeding. Though the preclusion doctrine is sometimes referred to as 'judicial estoppel’ or ‘estoppel by oath,’ and though it is frequently expressed in language sounding of estoppel in pais, numerous cases illustrate the existence of a doctrine forbidding inconsistent positions, usually as to facts, which operates independently of equitable estoppel.
      Many cases forbidding inconsistent positions in judicial proceedings may be grouped conveniently into two classes: those where a party seeks to contradict his own sworn statements made in prior litigation in which he was a party or a witness; and those where the prior inconsistent position was not taken under oath. In the first class of cases the rule against self-contradiction is frequently said to rest upon a policy of preserving the sanctity of the oath, while the other group of cases involves a more general consideration of the orderly administration of justice and regard for the dignity of judicial proceedings. Both types of preclusion seem to fall, generically, within a universal judicial reluctance to permit litigants to ‘play fast and loose’with courts of justice according to the vicissitudes of self-interest.

      IB Moore's Federal Practice ¶ 0.405[8] (2d ed. 1974) (emphasis added).
      In the case Professor Moore cites for the last quoted sentence, Scarano v. Central R.R. Co. of New Jersey, 203 F.2d 510 (3d Cir.1953), Scarano, a railroad worker, had asserted in F.E.L.A. proceedings that he would be unable to work because of injuries incurred on the job. A verdict for a sum of over eleven times his annual salary was returned. The defendant moved for a new trial but the case was settled before a decision on the motion was rendered for a sum of approximately nine times Scarano’s annual salary. Subsequently, Scarano sued for breach of his collective bargaining agreement because the railroad refused to reinstate him. The Third Circuit affirmed the district court’s dismissal of the action, stating:
      The 'estoppel' of which, for want of a more precise word, we here speak is but a particular limited application of what is sometimes said to be a general rule that 'a party to litigation will not be permitted to assume inconsistent or mutually contradictory positions with respect to the same matter in the same or a successive series of suits.’ II Freeman on Judgments § 631 (5th ed. 1925). Whether the correct doctrine is that broad we do not decide. The rule we apply here need be and is no broader than this. A plaintiff who has obtained relief from an adversary by asserting and offering proof to support one position may not be heard later in the same court to contradict himself in an effort to establish against the same adversary a second claim inconsistent with his earlier contention. Such use of inconsistent positions would most flagrantly exemplify that playing fast and loose with the courts’ which has been emphasized as an evil the courts should not tolerate. See Stretch v. Watson, 1949, 6 N.J.Super. 456, 469, 69 A.2d 596, 603, reversed in part on other grounds, 5 N.J. 268, 74 A.2d 597. And this is more than affront to judicial dignity. For intentional self-contradiction is being used as a means of obtaining unfair advantage in a forum provided for suitors seeking justice. 203 F.2d at 512-13 (emphasis added).

        See also Smith v. Montgomery Ward, 388 F.2d 291 (6th Cir.1968), cert. denied, 393 U.S. 871, 89 S.Ct. 159, 21 L.Ed.2d 139 (1968); Smith v. Boston Elevated Ry. Co., 184 F. 387 (1st Cir.1911); Teamsters Local No. 25 v. Penn. Transportation Corp., 359 F.Supp. 344 (D.Mass.1973); Wood v. United Air Lines, Inc., 216 F.Supp. 340 (E.D.N.Y.1963).

      . Pahlavi attempts to distinguish Loranger on the basis that it involved a “promissory estoppel” theory, a doctrine which typically applies where a court is asked to “create” a contract in the absence of consideration. See Restatement (Second) of Contracts § 90 (1981). Although the traditional "promissory estoppel” doctrine differs from the type of estoppel at issue here, the principles discussed in Loranger are nonetheless relevant to this case. See Loranger, 6 Mass.App. 152, 159, 374 N.E.2d 306 ("it is doubtful that the prohibitions of the Statute of Frauds ... are applicable where recovery is otherwise warranted on the basis of promissory estoppel”) (dictum), affirmed without addressing this issue, 376 Mass. 757, 764, 384 N.E.2d 176 (1978).
      If the equitable doctrine of estoppel was applied in this case, the remedy available to the plaintiff might be restricted, even though his action at law survived. See Restatement (Second) of Contracts §§ 90, 139 (1981) ("The remedy granted for breach may be limited as justice requires.”); see also Chedd-Angier Production

        Co. v. Omni Publications Int'l Ltd., 756 F.2d 930, 937 (1st Cir.1985) (“Under § 90 of the Restatement (Second) of Contracts, adopted in its tentative form by the Massachusetts court in Loranger, damages available under promissory estoppel range from full contract damages to reliance or restitution damages."). Where recovery rests solely upon the justified reliance of the promisee, without any suggestion of fraud, it would seem equitable that such recovery be measured by the extent of the reliance interest, i.e. restitution, rather than by conferring the benefit of the bargain. See Restatement (Second) of Contracts §§ 90 comment d, 139 comment d, 363 comment b (1981).


author: DUHE, District Judge.

text:
    Arthur LOEWER v. TEXAS GAS TRANSMISSION COMPANY.
    Civ. A. No. 80-0861 “L”.
    United States District Court, W.D. Louisiana, Lafayette-Opelousas Division.
    Dec. 11, 1984.
    Christoper Edwards, Crowley, La., for plaintiff.
    Burt Sperry, George Ware, Monroe, La., for defendant.
   MEMORANDUM RULING

DUHE, District Judge.

Plaintiff, Arthur Loewer, has brought this action against defendant, Texas Gas Transmission Corporation (“Texas”), alleging breach of a contract executed over twenty-eight years ago. Texas now moves that this Court render a summary judgment in its favor on the ground, among others, that the plaintiff’s claim is barred by the ten year liberative prescription of Louisiana Civil Code Article 3499.

On May 25, 1956, W.T. Turner, the District Superintendent of the Texas land-lease department, executed a letter to the plaintiff that obligated Texas to “install one gas tap on its proposed Eunice-Lake Palourde 20-inch gas transmission pipeline” on the property of the plaintiff. This was in consideration for the plaintiff’s granting a pipeline right-of-way across his property pursuant to which Texas constructed the pipeline in 1956 or 1957. However, the tap was never installed on the pipeline.

Plaintiff commenced this suit on May 20, 1980, in state court, whereupon it was removed to this Court. The question presently before this Court is whether the plaintiff’s claim has been extinguished by the liberative prescription of ten years.

Assuming that the letter of Texas to plaintiff dated May 25, 1956, constitutes an otherwise valid contract for purposes of Louisiana law, (which is not decided) it did not by its terms specify a term for Texas’ performance. Of course, the absence of a stipulated term for performance does not preclude the perfection of a valid obligation. Caston v. Woman’s Hospital Foundation, Inc., 262 So.2d 62 (La.App. 1st Cir.1972).

The firmly established rule of the jurisprudence of this state is that when no term for performance has been stipulated, the inference will be supplied that the parties intended the obligation to be undertaken within a reasonable time. What constitutes reasonable time must be determined by the circumstances of each case. Perrin v. Hellback, 296 So.2d 342 (La.App. 4th Cir.1974). La.C.C.Art. 2050.

Louisiana Civil Code Article 3499 provides that “unless otherwise provided by legislation, a personal action is subjection to the liberative prescription of ten years.” Article 3447 provides that “Liberative prescription is a mode of barring actions as a result of inaction for a period of time.” Liberative prescription commences from the date of an obligor’s breach of his obligation. In the' facts at bar, Texas breached its obligation (assuming there was valid obligation) when it failed to install a tap within a reasonable time.

Without determining with specificity in the facts at bar what would have constituted a reasonable time period for the defendant to install the tap, this Court concludes that a reasonable time for performance had certainly elapsed before May 19, 1970, almost fourteen years later. Since the defendant’s breach occurred sometime prior to May 19, 1970, ten years liberative prescription accrued, at the very latest, on May 19, 1980. This action, having been brought on May 20, 1980, is thus barred by prescription. Accordingly, this Court grants the defendant’s motion. It is so ordered.