author: TROUTMAN, Senior District Judge.

text:
    Nazareno S. MEDEI and Irene R. Medei v. BETHLEHEM STEEL CORPORATION and General Pension Board. Raymond W. FOULKE, Jr., et al. v. BETHLEHEM 1980 SALARIED PENSION PLAN, et al. Andrew KAVCAK, et al. v. BETHLEHEM 1980 SALARIED PENSION PLAN, et al.
    Civ. A. Nos. 82-5273, 82-5160, 83-513.
    United States District Court, E.D. Pennsylvania.
    July 18, 1985.

      Joel Ziev, Easton, Pa., for Medei.
    Stewart A. Bergstein, Allentown, Pa., for Foulke.
    Bernard O’Hare, Bethlehem, Pa., for Kavcak.
    Dona S. Kahn, Philadelphia, Pa., for defendants.
   MEMORANDUM AND ORDER

TROUTMAN, Senior District Judge.

Before this Court are three cases involving Bethlehem Steel’s 1980 Salaried Pension Plan. All three cases involve the denial of a lump-sum form of payment of retirement benefits. Plaintiffs Raymond and Alice Foulke, Nazareno and Irene Medei, and Andrew and Marian Kavcak, allege violations of the Employee Retirement Income Security Act, 29 U.S.C. § 1001, et seq. (ER-ISA). Specifically, they contend that the General Pension Board’s denial of their requests for a lump-sum payment of retirement benefits violated §§ 1132 and 1133 of ERISA.

Defendants in all three cases have moved for summary judgment, contending that there are no material issues of fact in dispute and that the denial of the lump-sum payment was not arbitrary or capricious as to any of the plaintiffs. The Foulke plaintiffs countered the affidavit of defendants in support of their motion with one of their own, while the Medei plaintiffs rely upon purported inconsistencies in the deposition testimony of defendants’ representatives to support their contention that material issues of fact remain, precluding summary judgment. The Kavcak plaintiffs have not responded to the motion for summary judgment.

Because the legal issues involved are common to all three cases and the facts particular to each set of plaintiffs are largely immaterial to the result, the decision as to the Kavcaks will not be premised upon their failure to respond to the motion for summary judgment, although such would be justified. Fed.R.Civ.P. 56(e), Local R.Civ.P. 20(c).

Despite urging that there are factual issues in dispute, the Foulke plaintiffs are nevertheless “in substantial agreement with the statement of the case as set forth in the Memorandum filed on behalf of Defendants”. (Plaintiffs’ Memorandum in Opposition to Defendants’ Motion for Summary Judgment, CA 82-5160, Doc. # 49, at 2.) The Medeis claim that the issue of fact in dispute is whether the action of the General Pension Board was arbitrary and capricious in denying them the lump-sum form of payment. That, however, is a legal conclusion rather than a factual determination. Facts which reveal inconsistencies in the application of the standards governing the granting of the lump-sum option could, of course, justify a conclusion that the Board acted arbitrarily and capriciously with respect to these plaintiffs. See, District 2, United Mine Workers of America, et al. v. Helen Mining Co., et al., 762 F.2d 1155 (3d Cir.1985).

There are in reality two sets of facts relevant here, those relating to the administration of the Pension Plan with respect to the lump-sum payment option and those relating to the specific reasons that the plaintiffs in these cases were denied that option. The specific facts will be more understandable against the backdrop of the Plan provisions, and so we turn to these first.

Section 3.12 of the Bethlehem 1980 Salaried Pension Plan provides in pertinent part:

Upon application prior to retirement by a participant who would otherwise be entitled to receive a regular pension, the Plan Administrator may make a lump-sum payment to such participant (in lieu of his special payment and his regular pension and the surviving spouse’s benefit for which his surviving spouse might otherwise become eligible under paragraph 4.1) in an amount equal to the sum of such special payment and the actuarial value of such regular pension and of such surviving spouse’s benefit. A lump-sum payment may be made to such participant only if application therefor is made after applicant has attained the age of 55 years, and if the application is accompanied by evidence, satisfactory to the General Pension Board, of the good health of the participant and the spouse, if any, of the participant.

It is undisputed that plaintiffs here qualified for the lump-sum option in every respect but one: they could not demonstrate that they, their spouses or both were in good health to the satisfaction of the General Pension Board.

The Pension Plan provision relating to the lump-sum option was supplemented by regulations. Those in effect when plaintiffs applied for the lump-sum option provided, inter alia, that the request for lump-sum payment be accompanied by a Report of Physical Examination on a form supplied by the Plan Administrator. Both the applicant and his spouse were required to submit the physical examination report. The Administrator or the Board were permitted to request additional information from the applicant with respect to any condition of eligibility. The applications of all but principal officers were first reviewed by the Plan Administrator, who advised the Board, on a monthly basis, of his dispositions. The Plan Administrator submitted the physical examination reports to the Corporate Medical Director for review and was entitled to rely upon his determination of whether or not the applicant and spouse were in good health for the purpose of the lump-sum payment. The applicant was to be notified immediately of the Plan Administrator’s decision. If disapproved, the notification was to inform the applicant of the reason(s), of his right to review by the Board and the procedures to be followed in requesting review.

If the reason for disapproval was lack of good health, the Plan Administrator was to arrange for an independent agency to review the Corporate Medical Director’s determination that the applicant, his spouse, or both, were not in good health. At all times that this provision was in effect, Aetna Life Insurance Company’s Medical Department was the independent agency to which the disapproved applicant’s physical examination report was referred. Aetna’s determination was deemed satisfactory by the General Pension Board.

When Aetna was selected as the independent reviewing agency, it made available to Bethlehem Steel’s Corporate Medical Director its Manual of Medical Selection to use in making the initial determinations of good health. The manual is a standardized system for assessing the health risks of various medical conditions. Aetna relied upon the Manual in making decisions as to the insurability of and rate structure to be applied to its insurance customers. Based upon mortality studies of insured lives, the Aetna Manual assigns “debit points” to certain medical conditions of the person being evaluated and the individual’s points are then totaled. For purposes of the lump-sum payment, a total in excess of 150 points resulted in a determination that the applicant was not in good health.

Prior to 1981, the General Pension Board reviewed the Corporate Medical Director’s determination that an applicant or spouse or both were not in good health by referring the physical examination reports to a third physician acceptable to both the applicant and the Corporate Medical Director, whose determination was accepted by the Board. (Affidavits of David Kempken in support of defendants’ motions for summary judgment.) That procedure was changed when the Board decided, upon the recommendation of David Kempken, Plan Administrator, that a more consistent reviewing procedure was needed. (Deposition of David Kempken at 68.)

Plaintiff Raymond Foulke retired on January 31, 1982. On January 21, 1982, his application for lump-sum payment of his pension benefits was disapproved because both he and his wife were determined not to be in good health for lump-sum payment purposes. The Foulkes appealed and were informed on April 8, 1982, that their medical records had been reviewed by Aetna and that their appeal was denied. (Exhibits B-F, Defendant’s Motion for Summary Judgment).

Nazareno Medei applied for a lump-sum payment on December 10, 1981. On January 13, 1982, he was informed that he had been found not in good health. He was notified on February 12, 1982, that Aetna’s review also indicated that he was not in good health for lump-sum payment purposes.

Andrew Kavcak’s application, dated December 16, 1981, was denied because his wife was determined not to be in good health. After appealing and submitting additional information for Aetna’s review, the Kavcaks were informed in June, 1982, that the appeal had been denied.

Raymond Foulke had a history of bladder cancer and stroke. His wife had hypertension. Nazareno Medei’s physician indicated on his medical report that Medei was under treatment for a myocardial infarction suffered in February, 1980. Marian Kaveak underwent surgery for cancer of the colon in November, 1980.

All plaintiffs’ physicians signed a form provided by Bethlehem Steel indicating that they were in good health, which was defined on the form as follows:

Good health means a state of physical and mental well-being from a medical point of view and includes the absence of a disease or condition that, from a medical standpoint, may result in a significant shortening of life expectancy.

There is nothing to indicate, nor do any plaintiffs argue, that their cases were handled in any way other than by the procedures outlined above. All plaintiffs began and have continued to receive their regular pension benefits after the lump-sum payment was denied.

Plaintiffs challenge the good health standard as defined and applied by the General Pension Board as a condition for receipt of the lump-sum payment, contending that it is arbitrary, capricious and discriminatory. This, of course, is the only basis upon which a court could review the decision of Trustees charged with administering a pension plan. Gaines v. The Amalgamated Insurance Fund, 753 F.2d 288 (3d Cir.1985), Wolf v. National Shopmen Pension Fund, 728 F.2d 182 (3d Cir. 1984), Rosen v. Hotel and Restaurant Employees and Bartenders Union, 637 F.2d 592, 596, n. 5 (3d Cir.1981). In addition, the Board’s interpretation and application of the good health provision in the plan should be upheld unless it is not rationally related to a valid plan purpose or contrary to the plain language of the plan. See, Gaines, supra, at 289.

Plaintiffs’ arguments are basically twofold. They challenge the Board’s definition of good health, contending that, as used, it is not good health in its common sense but expected mortality. Secondly, they contend that whatever the standard, it is not applied uniformly and objectively. Also, underlying plaintiffs’ arguments, is the suggestion that any conditions imposed for receipt of the lump-sum option are not rationally related to a valid plan purpose in that the reason given for the good health standard, preservation of plan assets, is faulty in the absence of any allegation that the Plan is experiencing financial difficulty.

The fiduciary duty placed upon trustees of a pension plan includes the obligation “to preserve the financial security of a pension fund and yet apply the assets to the greatest possible advantage for the beneficiaries. At times, restricting the amounts paid to some may be necessary to prevent loss to others”. Geib, et al. v. New York State Teamsters Conference Pension and Retirement Fund, et al., 758 F.2d 973, 978 (3d Cir.1985). David Kempken, representing the General Pension Board, testified at his deposition that the condition of good health imposed upon applicants for the lump-sum form of payment was designed to protect the financial integrity of the Plan. (Deposition of D. Kempken at 50, 51). Plaintiffs have presented nothing to indicate that such was not the reason for the good health standard. It would make little sense to restrict the Board’s management of plan assets when such management is designed to prevent financial difficulty, particularly when neither the payment of benefits nor the amount is in issue, but merely a particular form of payment. In Alessi v. Raybestos-Manhattan, Inc., 451 U.S. 504, 512, 101 S.Ct. 1895, 1900, 68 L.Ed.2d 402, 410 (1981), the Supreme Court noted that “... [A]n employee’s claim to the protected benefit is legally enforceable, but it [ERISA] does not guarantee a particular amount or a method for calculating the benefit”. In light of the deference traditionally paid to the decisions of pension fund trustees with respect to the method of calculating benefits and determining amounts to be paid, this Court finds nothing arbitrary or capricious in restricting a particular form of payment. Imposition of the good health standard did not result in the forfeiture of a vested right. Those denied a lump-sum payment thereafter received their regular monthly benefits.

Keeping in mind that none of the plaintiffs dispute the Board’s method for calculating the amount of the lump-sum payment, we next consider whether the Board’s use of an expected mortality standard as its definition of good health is arbitrary, capricious or discriminatory. We note at the outset that the Plan itself defines good health only in terms of the “satisfaction of the General Pension Board”. Even if, as plaintiffs contend, the Board’s application of the term “good health” is not one that conforms to a layman’s usual understanding of it, that does not make it arbitrary or capricious.

As used, the good health standard is rationally related to the calculation of the lump-sum payment as explained by defendants. Section 3.12 of the Plan states that the lump-sum payment is calculated in terms of the actuarial value of applicant’s regular pension benefit and that of the surviving spouse. David Kempken testified at his deposition that such value is derived from the life expectancy of the entire group of Bethlehem Steel pensioners. (Kempken Deposition at 48). For each applicant, the Board would determine the regular monthly pension benefit and the number of years the beneficiary and his surviving spouse could be expected to receive it. If a pensioner who received a lump-sum payment or his spouse died before reaching the predicted time of death, they received more in the way of pension benefits than they were entitled to receive, since monthly benefits would terminate upon the death of the pensioner or spouse. The Board sought to limit the number of such “windfalls” by requiring that an applicant for the lump-sum payment demonstrate that the probability of his surviving as long as predicted was not less than average among the group of Bethlehem Steel pensioners. The Board has consistently assessed good health in terms of whether an individual could be expected to demonstrate “average mortality” vis-a-vis the entire group whose mortality experience was the basis for calculating the lump-sum payment. (See Kempken Deposition at 50).

Plaintiffs have not countered defendants’ assertions that the standard has always been the same, both before and after Aetna was brought into the appeals process. We conclude that defining good health in terms of expected mortality is rationally related to a valid plan purpose and is not arbitrary and capricious.

Plaintiffs’ final arguments concern the manner of assessing good health/expected mortality by means of Aetna’s Manual of Medical Selection. They contend that the use of the “debit point” system, instituted after Aetna was selected as the independent reviewing agency to which all appeals would be referred, so changed the evaluation process that its application to their medical reports caused them to be rejected although they might have been approved prior to the use of the manual. In addition, they argue that the Aetna system did not provide for personal observation and that it was far from uniform and objective. Specifically, plaintiffs note that there was some leeway in assigning points, that point totals were not made a part of applicants’ files, that defendants’ witnesses were somewhat unsure of the details of using the manual and of the meaning of the points assigned, and that some applicants, rejected initially, were given specific information about possibly helpful additional medical tests while others were not. Plaintiffs contend that the inconsistencies and disparate treatment revealed by discovery indicate that the application of the good health standard was arbitrary and capricious.

According to the uncontested factual averments of defendants made by way of affidavit and deposition, and including deposition exhibits, it is obvious that the Aetna system did not materially change the way good health determinations were made. It was at all times the practice and procedure of the Plan Administrator and the General Pension Board to rely upon the opinion of the Corporate Medical Director as to the good health of applicants for a lump-sum payment of retirement benefits.

Prior to 1981 when the regulations were changed to include an independent reviewing agency for appeals, Dr. Gilbert Hoffman, one of the physicians on the staff of the Corporate Medical Director, was asked from time to time to evaluate the medical reports submitted by applicants for lump-sum payments. He reported his recommendations to the Corporate Medical Director, who made the final decision as to whether any applicant qualified under the good health standard established by the General Pension Board. (Hoffman Deposition at 9). Dr. Hoffman’s purpose in evaluating the medical records submitted by the applicants was to determine whether they contained anything abnormal, i.e., anything that would “curtail their [applicants’] expected longevity”. (Id. at 71). Thus, even before the Aetna manual with its debit point system was used, no personal examinations were made by the Corporate Medical Director or his staff. At all times the good health determination was made on the basis of information submitted by the applicants. Moreover, as noted, the good health standard was always related to expected mortality.

After Aetna was brought into the appeals process, the Corporate Medical Director could use the Manual for Medical Selection to help him make the initial good health determination. This made available to him the same criteria which Aetna would use to review his conclusions, thereby permitting the evaluation of the medical reports to be standardized at all levels. However, nothing in the plan or the revised regulations required the Corporate Medical Director to assign debit points or to rely exclusively upon the Aetna manual in making his good health determinations. Thus, plaintiffs’ arguments that point totals were not made a part of the applicants’ records, that there is no way to be certain that defendants did assign debit points and did not approve anyone assigned more than 150 debit points, are simply irrelevant. Moreover, on the pending motions for summary judgment, if plaintiffs wish to challenge defendants’ factual assertions, they are not permitted simply to aver that there is no independent corroboration of them. Plaintiffs bear the burden of producing specific facts that contradict defendants’ version of the facts on this issue. Bencivenga v. Western Pennsylvania Teamsters and Employers Pension Fund, 763 F.2d 574 (3d Cir.1985).

Plaintiffs make much of their contention that those principally responsible for the application of the point system were not consistent in their understanding of the meaning of the points and the application of the manual to specific medical reports. Even aside from the fact that the use of the point system was not required, this contention is misleading. Neither David Kempken nor Gilbert Hoffman, whose depositions were cited to support that argument, were actually responsible for making the good health determination.

Kempken was Plan Administrator and as such, technically responsible for determining whether all conditions for the receipt of a lump-sum payment were fulfilled. We reiterate, however, that he was entitled to rely upon the judgment of the Corporate Medical Director as to the good health condition and did so. (Kempken Deposition at 142, 143). Kempken’s knowledge of the details in arriving at that decision is, therefore, irrelevant.

Dr. Hoffman did use the Aetna manual to review medical reports at times, but always in collaboration with Dr. Blackburn, who was Corporate Medical Director when Hoffman was allowed to use the Manual, and it was Dr. Blackburn who made the final decision. (Hoffman Deposition at 40).

An aside in the early part of Dr. Hoffman’s deposition succinctly summarizes the value to plaintiffs of their contention, even if entirely true, that he exhibited a lack of understanding of the point system and may have come to a different conclusion with respect to the good health of some applicants. In response to several misstatements of his position by counsel for plaintiffs, Dr. Hoffman remarked, “I’m not a director, no. You keep trying to give me a promotion”. (Hoffman Deposition at 8). Plaintiffs have continued to “promote” Dr. Hoffman on the instant motions, but his uncontradicted testimony was that he was never responsible for making the good health determination. His function was always limited to giving advice and making recommendations to the Corporate Medical Director. That being the case, his lack of knowledge as to the correct use or contents of the Aetna Manual when asked, at his deposition, to apply it to certain case files, proves nothing. Plaintiffs have not suggested that anyone who did occupy the position of Corporate Medical Director could not or did not apply the Aetna point system properly or did not know what the points meant.

Plaintiffs’ use of the deposition testimony to point out examples of applicants approved prior to the use of the Aetna Manual who would or might not have been approved under the debit point system is also irrelevant to the issue of whether the evaluation system in effect when their applications were considered was arbitrary and capricious. In truth, those examples tend to buttress defendants’ contentions that a change in procedures was justified in order to ensure that a lump-sum payment was comparable to receiving a regular, monthly payment of retirement benefits, a valid plan purpose.

There did exist the potential for different results when different physicians and Aetna applied the debit point system to a given medical record. This is hardly surprising, considering that medical conditions are often not susceptible to precise or doubt-free conclusions as to their effect. Doctors may disagree about the emphasis to be placed upon different aspects of any condition, particularly when trying to predict its effect upon life span. Certainly no evaluation of good health can be perfectly precise or objective, especially when that prediction is the goal. Success or failure in an individual ease can be assessed only after death. The procedures adopted by the General Pension Board attempted to find a consistent, objective method for making good health determinations. Undoubtedly, it was not a perfect method, but neither was it arbitrary and capricious. Only one person at Bethlehem Steel was responsible for making the initial decision, however varied the staff input may have been in a given case. The Corporate Medical Director’s conclusion was subject to review, upon request of the rejected applicant, by an independent agency whose expertise in making such determinations went unchallenged by plaintiffs.

Similarly, plaintiffs have not demonstrated that because some applicants received specific information as to certain medical tests, which may have changed the result upon review, while others did not,' the latter were denied meaningful review or were treated arbitrarily. In the first instance, all applicants received the same form letter telling them of their right to review, to submit additional information and to have their physicians contact the Corporate Medical Director for the details of their rejection. It is not the fault of defendants if some physicians did so but others did not. Moreover, medical conditions often exist on a continuum and cannot accurately be placed in a discrete category. Additional information may help locate some individuals more precisely in questionable cases but there are surely other cases where the effect on good health/expeeted mortality of a particular set of medical facts is clear to an experienced evaluator and where no additional information could affect the outcome.

In the cases before the Court, none of the plaintiffs has alleged that some particular type of information may have affected the outcome of their determinations. The Foulke plaintiffs do not dispute the existence of their medical conditions, nor defendants’ assertion that no applicant, such as Raymond Foulke, with a history of stroke within three years of applying for a lump-sum payment was found to be in good health. Mr. Medei does contend that he did not suffer a heart attack, but it was his own physician who included that information on his medical report. As noted previously, the Kavcaks did not respond to the motion for summary judgment. Consequently, all of defendants’ factual averments as to them are deemed admitted.

The root of plaintiffs’ arguments on these summary judgment motions is their belief that had they appealed an adverse decision of the Corporate Medical Director prior to 1981 they would have received a lump-sum payment. It may be that such belief, although impossible to prove at trial or otherwise, is correct since virtually all determinations referred to a third physician resulted in that doctor’s certifying that the applicant was in good health. (Kempken Deposition at 68). In 1981, the General Pension Board determined that such procedures were no longer satisfactory to it and so instituted a different system. That decision and the resulting change cannot be termed arbitrary and capricious simply because some individuals are prevented from reaching a desired goal because of it. Plaintiffs here have demonstrated, at most, that there may have been some mistakes in applying the criteria adopted by defendants for making the good health determination, but not that defendants’ handling of lump-sum requests was so inconsistent as to amount to arbitrary and capricious decision-making. They have not countered defendants’ assertions that no applicant similarly situated to themselves received a lump-sum payment and so have not been able to show the existence of any material fact for trial.

This Court has concluded that establishing a good health standard was not arbitrary and capricious, that defining it in terms of expected mortality was not arbitrary and capricious and that defendants’ application of it to plaintiffs’ requests for lump-sum payments was not arbitrary and capricious. Therefore, even after carefully considering the extensive information revealed by discovery in these cases, we find ourselves in agreement with the other courts that have considered this issue and will grant defendants’ motions for summary judgment in all three cases. See, Czyz v. General Pension Board, Bethlehem Steel Corporation, 578 F.Supp. 126 (W.D. Pa.1983), Prusak v. Bethlehem 1980 Salaried Pension Plan, 618 F.Supp. 530 (W.D. N.Y.1984), Reynolds v. Bethlehem Steel Corp., 619 F.Supp. 919 (D.Md.1984).

      . The Medeis also allege a violation of 26 U.S.C. § 401, et seq., presumably contending thereby that the Board discriminated in favor of officers, shareholders or highly compensated employees when granting lump-sum payment requests.

      . Raymond Foulke contends in his affidavit that he was never aware that the good health standard was defined in terms of expected mortality, but failed to show how such knowledge on his part would have affected the disposition of his request for a lump-sum payment.

      . Plaintiffs Raymond and Alice Foulke alleged in their complaint that Aetna was receiving direct services from the fund and was thus not truly independent. However, they failed to pursue that issue in opposing the motion for summary judgment, while defendants' affidavit in support thereof characterizes Aetna as independent and highly qualified to perform the reviewing function. On this record we are required to accept defendants’ characterization as true. See, Bencivenga, supra.


source: Caselaw Access Project

author: McMANUS, District Judge.

license: Public Domain

text:
    Paul K.R. POLITO and Cathy B. Polito, Plaintiffs, v. PERKINS RESTAURANTS, INC., Defendant.
    No. C 84-44.
    United States District Court, N.D. Iowa, Cedar Rapids Division.
    July 18, 1985.

      F. Richard Lyford, Elaine Brown, Jon Sullivan, Des Moines, Iowa, for defendants.
    Thomas Wertz, Cedar Rapids, Iowa, for plaintiffs.
   McMANUS, District Judge.

This matter is before the court on defendant’s resisted motion for summary judgment, filed February 1, 1985. Partial summary judgment for defendant.

In this action, plaintiffs Paul and Cathy Polito seek compensatory and punitive damages for alleged tortious interference with a business relationship, intentional infliction of emotional distress, negligent misrepresentation, fraud, and breach of contract. Jurisdiction is based upon diversity of citizenship and the requisite amount in controversy. 28 U.S.C. § 1332 (1976).

Mr. Polito was employed by defendant from November 28, 1982 until October 24, 1983. A letter dated November 16, 1982 and signed by defendant’s regional manager confirms a November 8, 1982 conversation between Mr. Polito and defendant and extends an offer to have Mr. Polito become a general manager trainee in Cedar Rapids. The letter provides that the hours are to be flexible, the salary will be $730.00 biweekly, subject to home office approval, and Mr. Polito will be subject to a six month probationary period.

During the employment period, defendant demoted Mr. Polito twice, reduced his salary twice, and relocated him. Additionally, Mr. Polito contends that he was denied the opportunity to fill open positions for general manager after successfully completing the general manager trainee program. Mr. Polito resigned October 24, 1983 to take a job with another employer. On April 3, 1984, plaintiffs filed a complaint.

In count I of the complaint Mr. Polito contends that in inducing him to terminate his prior job at the Sheraton Inn defendant tortiously interfered with his business relationship with the Sheraton. Mr. Polito also alleges that defendant is guilty of intentional infliction of emotional distress, negligent misrepresentation, and fraud because, at the time of his employ with defendant, defendant made material misrepresentations regarding his status and salary. Further, Mr. Polito argues that his demotions and salary reductions constituted breach of his oral contract of employment with defendant. In count II of the complaint Mrs. Polito alleges that she suffered damages and emotional distress as a proximate result of defendant’s misrepresentations and actions toward her husband.

Defendant has moved for summary judgment pursuant to F.R.C.P. 56. Defendant argues that it is entitled to summary judgment on every claim asserted by plaintiffs. It is settled that summary judgment should not be entered unless the record indicates that there is no “genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” F.R.C.P. 56(c). It is a procedure which advances the salutary objective of avoiding useless, expensive and time-consuming trials where there is actually no genuine, factual issue remaining to be tried. Anderson v. Viking Pump, 545 F.2d 1127, 1129 (8th Cir.1976). Once a motion for summary judgment has been made and properly supported, the party opposing summary judgment may not rest upon the mere allegations or denials of his pleadings but his response, by affidavits or otherwise, must set forth specific facts showing that there is a genuine issue for trial. Burst v. Adolph Coors Co., 650 F.2d 930, 932 (8th Cir.1981). Where the moving party establishes the absence of any genuine issue of material fact and the opposing party submits no evidence in rebuttal, summary judgment is justified. Stovall v. City of St. Louis, 614 F.2d 619, 621 (8th Cir. 1980). As a matter of law, defendant in the present case is entitled to summary judgment on the claims of interference with a business relationship and intentional infliction of emotional distress in count I and on all claims asserted in count II.

Interference with an existing contractual relationship between another and a third person requires knowledge of the relationship by the interferer, intentional interference preventing the other from performing the contract or causing the performance to be more burdensome, and resulting damages. Westway Trading Corp. v. River Terminal Corp., 314 N.W.2d 398, 402-03 (Iowa 1982); Restatement (Second) of Torts § 766A (1965). In the instant case, Mr. Polito responded to defendant’s open ad for employees in the newspaper and defendant merely persuaded Mr. Polito to resign from the Sheraton. Defendant is not alleged to have induced the Sheraton to end its employment of Mr. Polito or to have prevented Mr. Polito from continuing his employment with the Sheraton. Because Mr. Polito voluntarily terminated his employment with the Sheraton, he has no basis to assert a tort of interference with an existing contractual relationship. See Fincke v. Phoenix Mutual Life Insurance Co., 448 F.Supp. 187, 190 & n. 1 (W.D.Pa. 1978).

Mr. Polito’s claim for intentional infliction of emotional distress must also fail. One of the elements of this claim is severe emotional distress. See, e.g., Bethards v. Shivvers, Inc., 355 N.W.2d 39, 44 (Iowa 1984). As the Iowa Supreme Court has observed, it is for the court to determine in the first instance whether severe emotional distress can be found. Id. The evidence must show that “ ‘the distress inflicted is so severe that no reasonable man could be expected to endure it.’ ” Id. (quoting Restatement (Second) of Torts § 46 comment j (1965)). Here, the record shows no genuine issue of material fact on the severe emotional distress element. Mr. Polito became depressed. The depression led to temporary marital discord, relief for which plaintiffs consulted family members. Additionally, Mr. Polito allegedly developed mistrust of people, especially employers, and lost his enthusiasm for the restaurant business. That evidence is simply insufficient to demonstrate severe distress. See Bethards, 355 N.W.2d at 44-45 (evidence plaintiffs lost sleep, were angry, “quivered,” and worried whether others thought they owned “junk farm” insufficient to generate jury question); Harsha v. State Savings Bank, 346 N.W.2d 791, 801 (Iowa 1984) (evidence of being “downhearted” and “depressed” insufficient); cf. Meyer v. Nottger, 241 N.W.2d 911, 917-19 (Iowa 1976) (nausea, dyspnea, and acute myocardial ischemia sufficient); Randu v. U.S. Homes, Inc., 325 N.W.2d 905, 908 (Iowa Ct.App.1984) (hospitalization with near nervous breakdown sufficient). Because the record fails to establish severe distress, it is unnecessary for the court to consider whether defendant’s conduct was extreme and outrageous, a second element of the tort of intentional infliction of emotional distress. See Roalson v. Chaney, 334 N.W.2d 754, 756-57 (Iowa 1983).

In plaintiffs’ complaint Mr. Polito also advanced the theory of negligent misrepresentation; however, that theory was later abandoned. Although plaintiffs’ brief refers to a supplement to Mr. Polito’s answer to interrogatory six, in which Mr. Polito would reassert the abandoned claim, the supplement was never filed. Consequently, summary judgment will be granted on the issue unless a supplement is filed by August 1, 1985.

Mr. Polito further alleges damages from fraud. He contends that he justifiably relied on defendant’s material misrepresentations regarding his salary and future position as a general manager in surrendering his prior job and accepting employment with defendant. It is settled that a stated intention to do something in the future is actionable if it is made with the intention not to perform. See, e.g., Grefe v. Ross, 231 N.W.2d 863, 867 (Iowa 1975). The intent to deceive is shown if the speaker either had actual knowledge of the falsity of his representations or recklessly asserted false statements. Id. From the record it is unclear whether defendant engaged in fraud. A genuine issue of material fact therefore exists, and summary judgment is inappropriate on the fraud claim.

Finally, Mr. Polito argues that defendant breached the oral contract of employment. Mr. Polito states that the contract terms provided for advancement to the position of general manager following successful completion of the trainee program, a salary of $730.00 biweekly, and incentive programs. Mr. Polito claims that after successfully completing the trainee program he was demoted and his salary reduced in violation of the contract terms. In opposition, defendant argues that because Mr. Polito was a terminable at will employee he could be given the alternative of accepting modification of the contract or quitting and that his decision to continue working for defendant constituted acceptance of the contract changes. By contrast, Mr. Polito argues that his agreement to continue to work for defendant was contingent on defendant fulfilling its original promises in the near future; thus, time for fulfillment of the contract terms was merely delayed and when defendant failed to perform as promised, it breached the agreement.

The record discloses no clear-cut modification of the agreement that would invoke the general rule that by continuing to work the plaintiff accepted alteration in the contract as a matter of law. See Janda v. Iowa Industrial Hydraulics, Inc., 326 N.W.2d 339, 349 (Iowa 1982). Thus, a genuine issue of material fact exists concerning the breach of contract claim. Accordingly, summary judgment on the issue is inappropriate.

In count II of the complaint Mrs. Polito claims that she has suffered emotional distress as a proximate result of defendant’s fraudulent misrepresentations and breach of contract. Because Mrs. Polito was not a party to the employment contract, she cannot assert a claim for breach of contract. Similarly, Mrs. Polito’s statement that she incurred damages in remaining unemployed one month because defendant represented that Mr. Polito might be relocated fails to state a cause of action for fraud. Defendant did relocate Mr. Polito. Moreover, its representations were directed to Mr. Polito only. Finally, Mrs. Polito’s claim for emotional distress lacks merit. The record shows no conduct by defendant toward Mrs. Polito that could reasonably be regarded as surpassing all possible bounds of decency, nor does it disclose sufficient evidence of severe emotional distress. See Roalson, 334 N.W.2d at 756-57. Defendant is therefore entitled to summary judgment on all claims in count II.

It is therefore

ORDERED
1. Summary judgment in favor of the defendant granted on the claims of tortious interference with a business relationship and intentional infliction of emotional distress in count I and on all claims in count II.
2. Summary judgment in favor of the defendant granted on the claim of negligent misrepresentation in count I unless plaintiff files supplement to interrogatory six by August 1, 1985.

      . In his deposition Mr. Polito contends that after he had begun working full-time for defendant, defendant wrongfully prevented him from returning to work part-time with the Sheraton. Because a claim for intentional interference with the part-time employment contract was never pled, the court has not considered the issue.

      . The loss of consortium claim argued in plaintiffs’ brief is not considered because it was never pled.


author: DAVID L. RUSSELL, District Judge.

text:
    Gaylon McCULLOUGH, Plaintiff, v. LEEDE OIL & GAS, INC., and Robert Johnson, Defendants.
    No. CIV 84-597-R.
    United States District Court, W.D. Oklahoma.
    July 19, 1985.

      Emmanuel E. Edem, John W. Norman Inc., Oklahoma City, Okl., for plaintiff.
    R. Paul Wickes, Lisa B. Plumly, Watson & McKenzie, Max C. Tuepker, Mock, Schwabe, Waldo, Elder, Reeves & Bryant, Oklahoma City, Okl., for defendants.
   ORDER

DAVID L. RUSSELL, District Judge.

The Plaintiff brought this action against the Defendants pursuant to the Securities Act of 1933, 15 U.S.C. §§ 77a-77aa (1982), the Securities Exchange Act of 1934, 15 U.S.C. §§ 78a-78kk (1982) and the statutes and common law of Alabama, Oklahoma and Texas. The Defendant Leede Oil & Gas counterclaimed, alleging that the Plaintiff has breached a joint operating agreement between the parties. Currently pending are two motions made pursuant to Fed.R.Civ.P. 56: (1) The Defendant’s Motions for Partial Summary Judgment on the Plaintiff’s claims; and, (2) the Plaintiff’s Motion for Summary Judgment on Leede’s counterclaim. The Defendant Robert Johnson has joined in Leede’s motion seeking judgment on the Plaintiff’s claims. The two motions have been fully briefed and the Court is prepared to dispose of them in this Order.

I.

In Count I of his Second Amended Complaint, the Plaintiff alleges that the Defendants violated § 12(1) of the Securities Act of 1933, 15 U.S.C. § 77/ (1) (1982), by selling an unregistered security. The Defendants argue that this claim is barred by the applicable statute of limitations, § 13 of the Act, 15 U.S.C. § 77m. Noting that § 13 provides a one year statute of limitations for nonregistration claims under § 12(1), and that this action was filed over two years after the date of sale, the Defendants contend that § 13 bars maintenance of this claim. The Plaintiff, on the other hand, argues that the § 13 statute of limitations was tolled by the Defendants’ fraudulent concealment of their violation of the Act. E.g., Holmberg v. Armbrecht, 327 U.S. 392, 397, 66 S.Ct. 582, 585, 90 L.Ed. 743 (1946); Exploration Co. v. United States, 247 U.S. 435, 449, 38 S.Ct. 571, 573, 62 L.Ed. 1200 (1918); Bailey v. Glover, 88 U.S. (21 Wall.) 342, 349, 22 L.Ed. 636 (1875).

In seeking an equitable tolling of the statute of limitations for fraudulent concealment, the Plaintiff is in essence asking the Court to create a “discovery rule” exception to the one year period contained in § 13. See Cook v. Avien, 573 F.2d 685, 695 (1st Cir.1978). Section 13 provides as follows:

No action shall be maintained to enforce any liability created under section 77k [§ 11 of the Act] or 771(2) [§ 12(2) of the act] of this title unless brought within one year after the discovery of the untrue statement or omission, or after such discovery should have been made by the exercise of reasonable diligence, or, if the action is to enforce a liability created under section 771(1) [§ 12(1) of the Act] of this title, unless brought within one year after the violation upon which it is based. In no event shall any such action be brought to enforce a liability created under section 77k or 771(1) of this title more than three years after the security was bona fide offered to the public, or under section 771(2) of this title more than three years after the sale.

15 U.S.C. § 77m (1982). As is obvious from text of § 77m, the Act employs a discovery rule statute of limitations for false registration claims under § 11 of the act and for the so-called “antifraud” claims under § 12(2) of the Act. However § 77m does not provide for a discovery rule statute of limitations for the type of claim brought herein by the Plaintiff, a nonregistration claim under § 12(1) of the Act. For those claims a flat one year period is prescribed. Thus, at least on its face, the statute does not lend itself to the construction urged by the Plaintiff. Nevertheless, some courts have applied the discovery rule tolling to the § 13 period applicable to non-registration claims, e.g., Katz v. Amos Treat & Co., 411 F.2d 1046, 1055 (2nd Cir.1969); Houlihan v. Anderson-Stokes, Inc., 434 F.Supp. 1319, 1322 (D.D.C.1977); Dyer v. Eastern Trust & Banking Co., 336 F.Supp. 890, 901 (D.Me.1971); cf. Ingenito v. Bermec Corp., 376 F.Supp. 1154, 1173 (S.D.N.Y.1974), presumably because “tolling by fraudulent concealment ... ‘is read into every federal statute of limitation.’ ” Public Service Co. of New Mexico v. General Electric Co., 315 F.2d 306, 310 (10th Cir.1963), cert. denied 374 U.S. 809, 83 S.Ct. 1695, 10 L.Ed.2d 1033 (1963), quoting Armbrecht, 327 U.S. at 397, 66 S.Ct. at 585. See also In re Home-Stake Production Co., 76 F.R.D. 337, 344 (N.D.Okla. 1975).

The application of the discovery rule to the one year limitation period for nonregistration claims has not been universal; some courts have concluded that “under the explicit language of § 13, the limitations period runs from the date of the violation irrespective of whether the plaintiff knew of the violation.” Cook v. Avien, 573 F.2d 685, 691 (1st Cir.1978). See also Gridley v. Cunningham, 550 F.2d 551, 552-53 (8th Cir. 1977); Kilmartin v. H.C. Wainwright & Co., 580 F.Supp. 604, 610 (D.Mass.1984); Felts v. National Account Systems Association, Inc., 469 F.Supp. 54, 64 (N.D.Miss. 1978); Lingenfelter v. Title Insurance Co. of Minnesota, 442 F.Supp. 981, 990 (D.Neb. 1977); Mason v. Marshall, 412 F.Supp. 294, 299 (N.D.Tex.1974), aff'd 531 F.2d 1274 (5th Cir.1976); Ferland v. Orange Groves of Florida, Inc., 377 F.Supp. 690, 703 (M.D.Fla.1974); Shuman v. Sherman, 356 F.Supp. 911, 912-13 (D.Md.1973); Moerman v. Zipco, Inc., 302 F.Supp. 439, 445 (E.D.N.Y.1969), aff'd 422 F.2d 871 (2nd Cir. 1970). Thus, the Court in considering this question of first impression in this district is faced with a split of authority concerning the applicability of the discovery rule to the one year limitation period governing § 12(1) nonregistration claims.

The Court concludes that neither the discovery rule nor its analog, the doctrine of equitable tolling, should be applied to the one year limitation period governing nonregistration claims for three reasons. First, the language of § 13 militates against such an application. With respect to § 12(1) claims, it is clear and unequivocal that an action must be “brought within one year after the violation upon which it is based.” 15 U.S.C. § 77m. Had Congress intended that this limitation be subject to equitable tolling, it could have included the discovery rule utilized in the limitation provision applicable to § 11 and § 12(2) claims. The legislative message is clear; by including a discovery rule limitation for certain classes of claims but omitting it for nonregistration claims, in the very same statutory provision, Congress clearly reflected its intent to prohibit application of the discovery rule to § 12(1) nonregistration claims. This Court refuses to do what Congress declined to do in enacting § 13.

Second, there is little justification for application of the discovery rule outside the fraud-based causes of action. The discovery rule, or any equitable tolling on the basis of fraudulent concealment, is premised on a fraudfeasor’s ability to conceal his violations. However, a seller of securities cannot conceal the fact that the securities he sells are not registered. While he may misrepresent that the securities are properly registered, or that registration is not required, he cannot prevent a purchaser from discovering the true facts as to a lack of registration. Thus, the discovery rule has little justification in the nonregistration setting.

Finally, the type of relief available for § 12(1) violations militates against application of the discovery rule to the one year statute of limitations. Actions under § 12 afford only rescissionary relief to a purchaser who still holds the unregistered security. 15 U.S.C. § 111. One who seeks rescission is under an obligation to do so with reasonable diligence. See Ingénito, 376 F.Supp. at 1177 (Section 12(1) is a “strictly limited cause of action for rescission, whose timely prosecution is essential to its survival.”). This policy is furthered generally by a shorter statute of limitations, and in particular by a statute of limitations not extended by a purchaser’s lack of knowledge of the facts giving rise to his claim. While this reasoning is arguably applicable to all § 12 claims, it is especially forceful where Congress has declined to permit extension of the limitation period by equitable tolling and the seller is unable to conceal the facts giving rise to the claim, as are both the case with § 12(1) claims. Thus, the fact that claims for nonregistration bring rescissionary relief suggests that the applicable limitation period be kept to the shortest permissible length.

In summary, the Court concludes that the § 13 one year period of limitations governing § 12(1) nonregistration claims is subject to neither the discovery rule nor equitable tolling for fraudulent concealment. But see LeCroy v. Dean Witter Reynolds, Inc., 585 F.Supp. 753, 758-59 (E.D.Ark.1984) (Although no discovery rule applies to § 12(1) claim, equitable tolling may apply); Upton v. Trinidad Petroleum Corp., 468 F.Supp. 330, 334-35 (N.D.Ala. 1979), aff'd 652 F.2d 424 (5th Cir.1981). The one year period “runs from the date of the violation.” Cook, 573 F.2d at 691. It is undisputed in this case that this action was brought more than one year from the Defendants’ alleged sale of an unregistered security, and is therefore barred by the statute of limitations. Accordingly, the Defendants’ Motions for Partial Summary Judgment are granted to the extent that they challenge the Plaintiff’s first claim for relief.

II.

The Defendants next contend that Count II of the Plaintiff’s second Amended Complaint, an antifraud claim under § 12(2) of the Act, 15 U.S.C. § 77i (2), is barred by the statute of limitations. Again, the applicable period is found in § 13 of the Act, 15 U.S.C. § 77m; however, in the case of a § 12(2) claim, the action must be “brought within one year after the discovery of the untrue statement or omission, or after such discovery should have been made in the exercise of reasonable diligence.” 15 U.S.C. § 77m. The Defendants argue that the Plaintiff should have discovered the alleged untrue statements in 1982, and is thus barred by the statute of limitations from maintaining this claim. The Plaintiff, on the other hand, contends that discovery did not occur until 1983, and that the action is therefore timely brought when filed on March 1, 1984.

The Plaintiff’s account of the events leading up to the discovery of the alleged fraud is undisputed. The Plaintiff purchased a fractional working interest in the Thompson A-l Well in Custer County, Oklahoma in the fall of 1981. By February of 1982 it had become obvious that the well had produced a dry hole, but the Plaintiff continued to receive billing statements for his share of the well’s completion costs, presumably those costs attributable to plugging and abandonment. The Plaintiff then demanded that the Defendants provide him with an itemization of the costs being charged to him, and the invoices supporting those charges. The Defendants refused to provide the documents, and the Plaintiff began to suspect that he had been swindled. In July and August of 1982 he consulted several friends who were knowledgeable about the oil and gas industry, most notably one Jim Means, an experienced drilling operator. The Plaintiff’s friends advised him of the necessity of obtaining more information about the well and the Defendants’ company, which the Plaintiff attempted to do by again making demands on the Defendants. As before, the Defendants refused to provide any information. In the meantime, Means had left the country for Indonesia, taking with him the few documents the Plaintiff had in his possession. The Plaintiff was unable to consult with Means or obtain his documents until the summer of 1983, when Means returned to the United States. The Plaintiff then determined that litigation was appropriate, and this action was filed on March 1, 1984.

The reasonable diligence standard embodied in § 77m requires a party to initiate his antifraud claim within a year of when “the possibility of fraud should have been apparent.” Ingenito v. Bermec Corp., 441 F.Supp. 525, 554 (S.D.N.Y.1977), quoting Klein v. Shields & Co., 470 F.2d 1344, 1377 (2d Cir.1972). A party seeking damages under § 111(2) may not delay commencement of his action until he has full knowledge of the existence of his claim; the one year limitations period of § 77m begins to run when the plaintiff is aware of sufficient facts to give him inquiry notice. Cook, 573 F.2d at 696; Ingenito, 441 F.Supp. at 554-55, citing Klein v. Bower, 421 F.2d 338, 343 (2d Cir.1970). See also Vigman v. Community National Bank & Trust Co., 635 F.2d 455, 459 (5th Cir.1981). The reasonable diligence standard is an objective standard, see Kramas v. Security Gas & Oil, Inc., 672 F.2d 766, 771 (9th Cir.1982), and a plaintiff is not entitled to “await ... leisurely discovery of the full details of the alleged scheme.” Cook, 573 F.2d at 696, quoting Bower, 421 F.2d at 343.

The Court cannot say that the Plaintiffs conduct in this case amounts to reasonable diligence. By his own admission, the Plaintiff began to suspect wrongdoing early in 1982. His suspicions were reinforced when the Defendants refused to provide the documentation he requested, and at this point the Plaintiff had at least the requisite inquiry notice. Indeed, the Plaintiff may well have had something more than inquiry notice, as his case was filed in 1984 upon the same documentation he possessed in 1982. Nevertheless, the Plaintiff failed to act diligently to preserve his rights; rather, he gave the only available documentation to a disinterested third party and allowed those items to leave the country for the better part of one year. The conduct of the Plaintiff in 1982 is anything but reasonable diligence, and the Court concludes that the one year limitations period began to run at some point in 1982, when the Plaintiff apparently had all the information he needed to file his action some two years later.

It is impossible from the Plaintiffs statement of the facts to determine the exact date in 1982 when the limitations period began to run. However, such a determination is unnecessary. It is sufficient that this action should have been commenced at some point in 1983 and was therefore barred by March 1, 1984, when the action was filed. As the Plaintiff has failed to raise any questions of fact concerning reasonable diligence, see Cook, 573 F.2d at 695 (Burden is on the plaintiff to show compliance with the statute of limitations in a §771 (2) claim), summary judgment is appropriate. Kramas, 672 F.2d at 770. Thus, the Defendants’ Motions for Partial Summary Judgment are granted to the extent that they challenge Count II of the Plaintiff’s second Amended Complaint.

III.

The Plaintiff in Count VI of the Second Amended Complaint alleges violations of the Oklahoma Securities Act, 71 O.S. 1981 §§ 1-703. E.g., 71 O.S. 1981 § 408(a). The Defendants contend that Oklahoma Blue Sky law is inapplicable to the transaction in this case, and that summary judgment is therefore appropriate on this claim for relief. The Plaintiff, on the other hand, asserts that the transaction in question has sufficient connection with the State of Oklahoma to implicate Oklahoma Blue Sky law.

A securities transaction comes within the purview of the civil liabilities portion of the Oklahoma Securities Act, 71 O.S. 1981 § 408(a), under the following two circumstances: (1) when an offer to sell is made in Oklahoma; and, (2) when an offer to buy is made and accepted in Oklahoma. 71 O.S. 1981 § 413(a). The Plaintiff contends that, because certain documents were sent from the Defendants’ branch office in Oklahoma City, the offer to sell can be deemed to have been made in this state. The Court does not agree. After examining the documents exchanged between the parties in the course of negotiations, the Court is satisfied that the documents embodying the offer to sell and the acceptance thereof originated in either Texas or Alabama. Although some correspondence did originate in this state, none of that correspondence amounts to an offer or acceptance of a sale of securities. Thus, under § 413(a) Oklahoma Blue Sky law is inapplicable to the transaction in this ease, and to the extent that the Defendants’ Motions for Partial Summary Judgment challenge Count VI of the Plaintiff’s Second Amended Complaint, they are granted.

IV.

In Count VII of the Second Amended Complaint the Plaintiff alleges that the Defendants breached fiduciary duties owed to the Plaintiff as a partner of the Defendants. The Defendants argue that, as the contract between the parties establishes no partnership, no fiduciary obligations existed between the Plaintiff and the Defendants. The Defendants thus contend that they are entitled to judgment as a matter of law on the claim for breach of fiduciary duties.

It must first be noted that the Plaintiff apparently agrees that fiduciary duties arise in this action only if the relationship between the parties amounts to a partnership.- While it is true that fiduciary duties arise in the context of legal relationships other than a partnership, see, e.g., Steinbrugge v. Haddock, 281 F.2d 871, 874 (10th Cir.1960), the Plaintiff does not contend that the alleged fiduciary duties owed to him in this act arise from any relationship other than a partnership. His allegations and argument focus singularly on the existence of a partnership between himself and the Defendants, and the Court concludes that, unless the facts of the case establish such a relationship, no fiduciary duties are owed in this action.

The pivotal element in the formation of a partnership is that of intent; the parties to an agreement purported to establish a partnership must have intended to form a partnership. E.g., Dowdy v. Clausewitz, 361 P.2d 288, 290 (Okla.1961). See also Freese v. United States, 455 F.2d 1146, 1151 (10th Cir.1972), cert. denied 409 U.S. 879, 93 S.Ct. 85, 34 L.Ed.2d 134 (1972). Where there is a written agreement between the parties, the requisite intent must be discoverable from the instrument alleged to give rise to the partnership. See Olive v. Turner, 120 F.Supp. 478, 483 n. 12 (W.D.Okla.1954), quoting Peters v. Fry, 173 Okla. 30, 46 P.2d 358, 360 (1935); Long v. United States, 96 F.Supp. 445, 447 (W.D. Okla. 1951) (Also quoting Peters). The written agreement in this case makes direct and unequivocal reference to the parties’ intent: “It is not the intention of the parties to create, nor shall this agreement be construed as creating, a mining or other partnership or association, or to render the parties liable as partners.” Thus, it is clear from the language of the agreement that a partnership was not contemplated by the parties.

This explicit disclaimer of the intent to create a partnership is not necessarily dis-positive; the Plaintiff could circumvent the clear language of the written agreement if he could prove that conduct or writings subsequent to the agreement worked a modification, see 15 O.S. 1981 § 237, or that the agreement as written does not reflect the true intent of the parties. See Cameron v. Stephenson, 379 F.2d 953, 958 (10th Cir.1967); Agee v. Travelers Indemnity Co., 264 F.Supp. 322, 326 (W.D.Okla.1967), aff'd 396 F.2d 57 (10th Cir.1968). However, the Plaintiff can prove neither. None of the subsequent writings presented by the Plaintiff reflects a modification in the original written agreement. And the Plaintiff’s statement that he understood the written agreement to establish a partnership is insufficient to support the contention that the parties intended other than the explicit language of the agreement.

The Plaintiff contends that the existence of a partnership is always a question of fact. This contention is simply not true. E.g., Dowdy, 361 P.2d at 290 (“[T]he question of the existence of a partnership was one of law for the court.”) There are no factual issues in this case concerning the existence of a partnership because the Plaintiff has failed to present any evidence to controvert the plain statement of intent contained in the written agreement.

Thus, the Court concludes that no partnership existed between the Plaintiff and the Defendant on the facts of this case. This being the basis alleged by the Plaintiff to support the existence of fiduciary duties, the Court likewise concludes that the Defendants owed the Plaintiff no fiduciary duties. Accordingly, the Defendants’ Motions for Partial Summary Judgment are granted to the extent that they challenge Count VII of the Plaintiffs Second Amended Complaint.

V.

The Defendants’ motions last challenge Count XIII of the Second Amended Complaint, a claim for violations of Alabama Blue Sky law, Ala.Code § 8-6-19(a) (1975). Noting that such claims must be brought within two years of the contract of sale, see Ala.Code § 8-6-19(e), the Defendants contend that this action is barred by the statute of limitations, as the contract of sale was executed no later than November 13, 1981, and this action was not filed until March 1, 1984. The Plaintiff, on the other hand, argues that § 8-6-19(e) is subject to equitable tolling, or the so-called “discovery rule,” and that this action is on that basis timely brought. This argument is premised on First Federal Savings & Loan Association of Miami v. Mortgage Corp. of the South, 650 F.2d 1376 (5th Cir.1981).

The Plaintiff’s reliance on First Federal is misplaced. That case simply stands for the proposition that the federal equitable tolling doctrine applies to federal causes of action notwithstanding the fact that a state statute of limitations is borrowed. 650 F.2d at 1378. It does not suggest that Alabama courts apply a state created tolling doctrine to a statute of limitations that is notable for the absence of a discovery rule. Indeed, there is a total absence of authorities on the question whether § 8-6-19(e) can be equitably tolled by the discovery rule.

The Court concludes that it cannot be so tolled. The clear language of the statute is that the statute begins to run from the execution of the contract of sale. In light of the fact that the statute of limitations for common law fraud, Ala.Code § 6-2-39 (1975) explicitly incorporates the discovery rule, see Ala.Code § 6-2-3 (1975), the Court cannot conclude that the Alabama legislature intended that the Blue Sky statute of limitations would likewise be tolled in the absence of explicit language. Thus, the Court concludes that the limitation period embodied in § 8-6-19(e) runs from the date of execution of the contract of sale and is not tolled by the discovery rule. Accord, First Federal Savings & Loan Association of Miami v. Mortgage Corp. of the South, 467 F.Supp. 943, 953 (N.D.Ala.1979), aff'd 650 F.2d 1376 (5th Cir.1981). See also White v. Sanders, 650 F.2d 627, 630 (5th Cir.1981).

As the contract of sale herein was executed no later than November 13, 1981, the Plaintiff’s claims under Alabama Blue Sky law were barred by § 8-6-19(e) when filed on March 1,1984. Thus, to the extent that they challenge Count XIII of the Second Amended Complaint, the Defendants’ Motions for Partial Summary Judgment are granted.

VI.

The last matter before the court is the Plaintiff’s Motion for Summary Judgment on the counterclaim of the Defendant Leede Oil & Gas. In support of this motion the Plaintiff relies on provisions of various securities acts which make unenforceable any obligations based on a contract of sale which is violative of a security act. For purposes of the motion, it is sufficient to note that this Court has yet to determine whether the transaction in question violates any securities law.' The Plaintiff’s motion is premature, and for that reason it is denied.

VII.

In summary, the Court reaches the following conclusions:

1. The Defendants’ Motions for Partial Summary Judgment are granted in to to.
2. The Plaintiff’s Motion for Summary Judgment on the counterclaim of the Defendant Leede Oil & Gas is denied.
3. Summary judgment is granted in favor of the Defendants on Counts I, II, VI, VII and XIII of the Plaintiff’s Second Amended Complaint.
4. Final judgment on the claims adjudicated above will be reserved until the remaining claims in this action have been adjudicated. See Fed.R.Civ.P. 54(b).

      . Assuming arguendo that the doctrine of equitable tolling were applicable to a § 12(1) claim, the claim would nevertheless still be barred by the statute of limitations because of the Plaintiff's lack of reasonable diligence. See infra at 388-389.


author: PLUNKETT, District Judge.

text:
    UNITED STATES of America ex rel. Keith EDDINGTON and Gary Hart, Petitioners, v. Michael LANE, James Chrans, and William Thieret, Respondents.
    No. 84 C 3271.
    United States District Court, N.D. Illinois, E.D.
    July 29, 1985.
    Donna Finch, Asst. Appellate Defender, Chicago, 111., for petitioners.
    David Bindi, Asst. Atty. Gen., Chicago, 111., for respondents.
   MEMORANDUM OPINION AND ORDER

PLUNKETT, District Judge.

Keith Eddington and Gary Hart (“Petitioners”) petition for a writ of habeas corpus under 28 U.S.C. § 2254, contending that they are unlawfully in the custody of Michael Lane, the Director of the Illinois Department of Corrections; James A. Chrans, the Warden of the Pontiac Correctional Center where Eddington is incarcerated; and James H. Thieret, the Warden of Menard Correctional Center where Hart is incarcerated (“Respondents”). Presently before the court are the parties’ cross-motions for summary judgment. Although we find that Petitioners were deprived of their Sixth Amendment rights by their jury’s extrajudicial exposure to prejudicial information, for the reasons set forth below, we narrowly conclude that the strength of the evidence against Petitioners renders the error harmless. Accordingly, Respondents’ motion is granted and Petitioners’ motion is denied.

Background

Petitioners were convicted of kidnapping and unlawful restraint following a jury trial in the Circuit Court of Cook County in 1981, and were sentenced to twelve years incarceration. Petitioners motioned for a new trial upon learning that the jury had during the course of trial viewed a list of charges pending against Petitioners, posted outside the courtroom.

The trial court held a post trial hearing, at which one member of the jury testified that he and other jurors had seen the list while walking around the courthouse during a lunch break. The juror believed the list contained approximately fifteen charges including rape and deviate sexual offenses. He testified that these charges were a topic of discussion during jury deliberations, but that his decision was not affected by the knowledge that these charges were pending against Petitioners.

Because of its erroneous application of Illinois law prohibiting judicial consideration of jurors’ mental processes in arriving at a verdict, the trial court concluded that it could not consider this testimony. The court denied Petitioners’ motion for a new trial.

The Appellate Court of Illinois, after reviewing the record of the post-trial hearing, affirmed Petitioners’ convictions. People v. Eddington, 117 Ill.App.3d 953, 73 Ill. Dec. 248, 453 N.E.2d 1383 (1st Dist.1983). The court did not make clear whether it found that the jurors’ exposure to the list did not constitute constitutional error, or whether it found that constitutional error occurred but was harmless. The court based its affirmance primarily upon two factors. First, the jury was otherwise aware of at least some of Petitioners’ criminal activity other than the crimes charged because of properly presented evidence concerning the circumstances of Petitioners’ arrests. Id. 117 Ill.App.3d at 1388. Second, the trial court had instructed the jury that this evidence of Petitioners’ involvement in an offense other than the offenses charged should be considered only for the limited purposes for which it had been received. Id.

The Supreme Court of Illinois denied Petitioners leave to appeal from the appellate court’s decision. The parties agree that Petitioners have exhausted their state remedies, as required by 28 U.S.C. § 2254(b).

Discussion

The issues raised by Petitioners are whether the exposure of the jury to the list of charges violated their right to confrontation under the Sixth Amendment and, if so, whether they are entitled to habeas relief. The threshold question we must address is the extent of deference we must extend to the decision of the Appellate Court of Illinois. The answer depends on whether that court decided a question of law, which we could review de novo, or a question of fact, which we could not review unless the fact-finding procedure was insufficient in certain respects specified by statute, 28 U.S.C. §§ 2254(d)(l)-(8).

The question of what events occurred with regard to the jury’s witnessing of the list is undoubtedly factual, and, as we discuss infra, the state court fact-finding procedure was sufficient. The problematic issue here concerns Respondents’ contention that the appellate court’s conclusion derived from those facts, that either no constitutional error occurred or the error was harmless, is a finding of “historical fact” entitled to our deference. Respondents’ position relies on the Supreme Court’s per curiam decision in Rushen v. Spain, 464 U.S. 114, 104 S.Ct. 453, 78 L.Ed.2d 267 (1983).

In Rushen, the Court reviewed a grant of a writ of habeas corpus where the state appellate court had found that an ex parte communication between the trial judge and one juror was unconstitutional but harmless error. In a confusing decision, the Court on the one hand granted that “[t]he final decision whether the alleged constitutional error was harmless is one of federal law. Chapman v. California, 386 U.S. 18, 20-21 [87 S.Ct. 824, 826-827, 17 L.Ed.2d 705] ... (1967).” Id. 104 S.Ct. at 457. Decisions by state courts on questions of federal law are not, of course, entitled to deference under § 2254(d) but are reviewable de novo. See Cuyler v. Sullivan, 446 U.S. 335, 341-342, 100 S.Ct. 1708, 1714-1715, 64 L.Ed.2d 333 (1980). But, on the other hand, the Court held that the federal courts should have deferred to the state court finding as presumptively correct. 104 S.Ct. at 457. The Court wrote:

Nevertheless, the factual findings arising out of the state courts’ post-trial hearings are entitled to a presumption of correctness. See 28 U.S.C. § 2254(d) [28 U.S.C. § 2254(d) ]; Sumner v. Mata, 449 U.S. 539 [101 S.Ct. 764, 66 L.Ed.2d 722] ... (1981). The substance of the ex parte communications and their effect on juror impartiality are questions of historical fact entitled to this presumption. Thus, they must be determined, in the first instance, by state courts and deferred to, in the absence “convincing evidence” to the contrary, by the federal courts. See Marshall v. Lonberger, 459 U.S. 422, 432-433, 103 S.Ct. 843, 850 (1983), 74 L.Ed.2d 646. Here, both the state’s trial and appellate courts concluded that the jury’s deliberations, as a whole, were not biased. This finding of “fact” — on a question the state courts were in a far better position than the federal courts to answer — deserves a “high measure of deference,” Sumner v. Mata, 455 U.S. 591, 598 [102 S.Ct. 1303, 1307, 71 L.Ed.2d 480] ... (1982), and may be set aside only if it “lack[s] even ‘fair support’ in the record.” Marshall v. Longerger, supra, ...

Id. at 456-457 (emphasis added). The Court concluded its decision with the statement that the federal courts should have deferred to the state court’s finding of harmless error, id. at 457, despite the Court’s earlier statement that harmless error was a question of federal law.

We need not untangle Rushen’s meaning because Rushen does not dictate that in this ease the question of juror prejudice is purely one of fact. The state court here unlike in Rushen never determined whether constitutional error occurred, a legal conclusion we must derive from the facts found by the appellate court as to the events which transpired. Moreover, as to the determination of whether any constitutional error which occurred was harmless, we look to Irvin v. Dowd, 366 U.S. 717, 723, 81 S.Ct. 1639, 1642-1643, 6 L.Ed.2d 751 (1961), in which the Supreme Court held that a question of bias of an entire jury is a mixed question of law and fact. The Irvin Court quoted from Reynolds v. United States, 98 U.S. 145, 156, 8 Otto 145, 25 L.Ed. 244 (1878), in which the Court had made clear that the factual component of the question is the credibility determinations that can be made based on jurors’ statements regarding their ability to be fair, and said that these factual questions must be tried by the trial court “like any other issue of that character, upon the evidence ____ In such cases the manner of the juror while testifying is oftentimes more indicative of the real character of his opinion than his words. This is seen below, but cannot always be spread upon the record.” Id. 98 U.S. at 156-157. By contrast, where as here a court must determine whether an entire jury can be fair despite extra-judicial contacts and without regard to jurors’ self-assessments, legal conclusions of the state court require no deference. In Patton v. Yount, — U.S.-,-, 104 S.Ct. 2885, 2891, 81 L.Ed.2d 847 (1984), decided in the same term as Rushen, the Court reaffirmed the distinction between Rushen’s analysis of the review to be given a state court’s credibility finding of any one juror’s partiality as a question of historical fact, and Irvin’s analysis of the review of the mixed question of law and fact when the partiality of the trial jury as a whole is at stake.

This case falls on the Irvin side of the line. According to the facts found by the appellate court, several jurors saw the posted list of charges and the jury as a whole discussed the list during deliberations. People v. Eddington, 453 N.E.2d at 1386. The trial court did not learn about the exposure until after the jury returned its verdict, and therefore during trial it neither questioned the jurors individually nor observed them as a whole to assess their partiality. Indeed, the trial court made no credibility or character determinations as were made by the state court in Patton, — U.S. at---, 104 S.Ct. at 2891-2892, where the Supreme Court found as “good reasons to apply the statutory presumption of correctness” the facts that the determination was made “only after an often extended voir dire proceeding designed specifically to identify biased veniremen” and that “the determination is essentially one of credibility, and therefore largely one of demeanor.” Here, the determination to be made, once the facts of the jury exposure were known, could not be assessed by weighing testimony. When an extra-judicial contact occurs during trial and is not discovered until after a verdict is reached, under both Illinois and federal law, a court may not question jurors about the thought process by which they arrived at the verdict or the extent to which the information affected the verdict. See Chalmers v. City of Chicago, 88 Ill.2d 532, 59 Ill.Dec. 76, 431 N.E.2d 361, 363 (1982); Fed.R.Evid. 606(b). Rather, the determination is whether, as a matter of law, the facts amount to a denial of Petitioners’ Sixth Amendment rights and if so, whether that denial is harmless error. The court must draw a conclusion based on the relevant facts as to the legal effect of the improper contact. We may review this legal conclusion of the state court de novo.

Petitioners maintain that they have not received an adequate hearing to develop the relevant facts because the state trial court erroneously refused to consider the testimony given at the post trial hearing. Petitioners analogize their case to Owen v. Duckworth, 727 F.2d 643, 645 (7th Cir. 1984), in which the Court of Appeals for the Seventh Circuit found that a full, fair and adequate hearing was not provided when a trial court declined to consider the post trial testimony of a juror who was improperly exposed to an ex parte contact during trial. Respondents, on the other hand, also primarily relying upon Owen, allege that what is at issue here is not whether the trial court misapplied the Illinois law regarding impeachment of verdicts, but whether Petitioners were afforded a full, fair, and adequate hearing by a combination of actions taken by the trial and appellate courts.

We agree with Respondents that Owen presented a different situation than does this case. In Owen, after the jury brought in a guilty verdict, the defense learned that a juror who had received a threatening telephone call during trial had, contrary to court instructions, informed other members of the jury about the telephone call. The trial court began holding a hearing, but terminated the hearing before Owens had presented all of his evidence. As a result, the Court of Appeals for the Seventh Circuit remanded the case to the district court for a full evidentiary hearing. Id.

Owen is readily distinguishable from the case at bar in that the trial court there aborted the post trial hearing before the testimony was completed. Petitioners here were allowed to present all of the testimony in support of their claim before the trial court declined to consider Petitioners’ testimony. The trial court denied them a full, fair, and adequate hearing because it made no findings. We must determine whether the appellate court held a “hearing” within the meaning of § 2254(d) when it considered the record of the trial court proceedings, including the juror’s post trial testimony, and found that Petitioners had not been prejudiced by the extra-judicial information.

The United States Supreme Court in Sumner v. Mata, 449 U.S. 539, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981), interpreted § 2254(d)’s “full, fair, and adequate hearing” requirement as being capable of satisfaction by appellate review of a trial court record. In Mata, convicted defendant Mata had raised for the first time before a state appellate court his claim that an in-court identification was unconstitutional because of an impermissible pretrial photographic identification procedure. Id. 449 U.S. at 541-542, 101 S.Ct. at 766-767. The state appellate court had reviewed the state trial court record, id. at 543, 101 S.Ct. at 767, and found no constitutional error. The Supreme Court decided that the appellate court had thereby provided Mata with a full, fair, and adequate hearing. The Supreme Court stated:

[I]t has been contended that [§ 2254(d) should not be applicable to the situation where] a state appellate court, as opposed to a trial court, makes the pertinent factual findings. We, however, refuse to read this limitation into § 2254(d). Admittedly, the California- Court of Appeals made the factual determination at issue here and it did so after a review of the trial court record. Nevertheless, it clearly held a “hearing” within the meaning of § 2254(d). Both respondent and the State were formally before the court. Respondent was given an opportunity to be heard and his claim received plenary consideration even though he failed to raise it before the trial court____ [§ 2254(d) ] makes no distinction between the factual determinations of a state trial court and those of a state appellate court.

Id. at 545-546, 101 S.Ct. at 768-769 (footnote omitted).

The Mata decision is not dispositive in this case because the court repeatedly qualified its discussion by the fact that Mata had not raised his constitutional claim before the state trial court. See id. at 546, 101 S.Ct. at 768-769 (respondent, having requested the appellate court to decide the issue, “may [not] now be heard to assert that its proceeding was not a ‘hearing’ within the meaning of § 2254(d)”); at 547, 101 S.Ct. at 769 (idea that federalism requires deference to state court factual findings is “true particularly in a case such as this where a federal court makes its determination based on the identical record that was considered by the state appellate court and where there was no reason for the state trial court to consider the issue because respondent failed to raise the issue at that level”) (citation omitted). In fact, the Court noted that, unless the “cause” and “prejudice” standard of Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), was met, Mata could not have received consideration of his habeas claim in federal court if the state appellate court had found forfeiture of the claim. Id. In this case, it cannot be said that Petitioners forfeited whatever right exists to have factual findings made by the trial court or to have the same court both receive testimony and make factual findings therefrom.

The Court of Appeals for the Seventh Circuit has found, however, that § 2254(d)’s guarantee of a “full, fair, and adequate hearing” does not contain any such right to have both the record developed and factual findings made by the trial court. The issue arose in the case of United States ex rel. Harris v. State, 457 F.2d 191 (7th Cir.), cert. denied, 409 U.S. 860, 93 S.Ct. 147, 34 L.Ed.2d 106 (1972), where the court considered whether “a reviewing court which does not hear testimony and which only has a cold record in front of it may properly make ... a factual determination” regarding the constitutionality of an in-court identification. Id. at 195. The defendant in that case had originally presented his constitutional claim at a pretrial hearing before the state trial court. On review, the Illinois Supreme Court had found that the trial court applied an improper standard in determining not to suppress the identification. The Illinois Supreme Court had then itself reviewed the trial court record, rather than reversing the conviction or ordering the trial court to hold a rehearing, as requested by the defendant, and had found that even under the proper standard the identification was admissible. The Court of Appeals for the Seventh Circuit held that so long as the record was adequate for the appellate reviewing process to satisfy the constitution, the habeas statutory hearing requirement was met. The court stated:

While we believe that the trial court is the most proper place for the determination to be made, we cannot conclude that such a resolution by a reviewing court when the record is adequate amounts in and of itself to any constitutional deprivation____
A review of the record before the Illinois Supreme Court indicates that enough facts were contained therein to enable the reviewing court constitutionally to determine if the requirements [for constitutionality of the identification] had been met. This conclusion requires us to accept the factual findings as true.

Id. at 196.

We believe that Harris controls this aspect of this case. The trial court here, as in Harris, misapplied the law, resulting in this case in a failure of the trial court to make any findings. The appellate court, however, was able to review the complete records of the trial and post trial hearing. Since Petitioners fully questioned the juror whom they wished to have testify at the post trial hearing, and since, as discussed supra, credibility determinations were not called for, enough facts were present for the trial court, and by extension the appellate court, to determine what events occurred regarding the jurors’ contact with the list. Hence, Petitioners received a “full, fair, and adequate hearing” from the state court.

Thus, we must consider whether the facts provided by the state court proceedings amount to constitutional error. We find that they do.

“In the constitutional sense, trial by jury in a criminal case necessarily implies at the very least that the ‘evidence developed’ against a defendant shall come from the witness stand in a public courtroom where there is full judicial protection of the defendant’s right of confrontation, of cross-examination, and of counsel.” Turner v. Louisiana, 379 U.S. 466, 473, 85 S.Ct. 546, 550, 13 L.Ed.2d 424 (1965). Thus, the Court of Appeals for the Seventh Circuit found a constitutional violation where jurors examined fingerprint cards which were properly admitted in evidence but which, unbeknownst to the judge and lawyers, contained criminal histories of the defendant on their reverse sides. United States v. Dressler, 112 F.2d 972 (7th Cir.1940). The court wrote in terms applicable to this case:

The foregoing information [about prior arrests and convictions] was before the jury during their deliberations in the jury room without any instructions or direction by the court, and we are not free to conjecture that the members of the jury were conscious of any limitations or restrictions upon their use of it.
It is not questioned by the government that the information conveyed to the jury under the heading “Criminal History” on each card was inadmissible and should not have been permitted to go to the jury....
It is inconsistent with our traditional concept of a fair trial to permit any information to go to a jury which might influence the jury to convict a defendant for any reason other than that he is guilty of the specific offenses with which he is charged.

Id. at 977. See also Farese v. United States, 428 F.2d 178 (5th Cir.1970), and cases cited therein; Lacy v. Gabriel, 567 F.Supp. 467, 469 (D.Mass.1983).

In this case, the jurors saw and discussed the list of numerous charges against Petitioners which were not in evidence. We presume that the information on the list was inadmissible; and even if admissible, Petitioners were entitled to impeach its significance, argue to the jury about its proper characterization and probative value, and have limiting instructions provided by the judge. See United States v. Bruscino, 662 F.2d 450, 458 (7th Cir.1981). None of these protections occurred. While the trial judge instructed the jury regarding its consideration of evidence of an unrelated occurrence giving rise to Petitioners’ arrest, this instruction referred solely to the specific evidence, received in court, pertaining to Petitioners’ arrest, and cannot be extended to cure the effect of viewing fifteen or so unexplained charges. This is a classic deprivation of the right of confrontation.

Nevertheless, if the error was harmless beyond a reasonable doubt, we cannot reverse Petitioners’ convictions. To mandate reversal, the possibility of prejudice must not be merely speculative, but must raise “ ‘the kind of doubt which, as judges instruct juries, would cause reasonable men to hesitate in making an important decision in their own lives.’ ” Siverson v. O’Leary, 764 F.2d 1208, 1220 (7th Cir.1985) (citation omitted). On the other hand, to mandate application of the harmless error rule, the evidence against Petitioners must be “overwhelming,” not merely circumstantially suggestive. United States ex rel. Burke v. Greer, 756 F.2d 1295, 1303 (7th Cir.1985). Granting the difficulty of second-guessing how the jury would have proceeded without viewing the list, we find the evidence against Petitioners strong enough to preclude any reasonable doubt that the list of criminal charges seen by the jury influenced the outcome of the trial.

The state’s evidence developed at trial as follows. The first prosecution witness, Warren Hardnick, testified that he and a friend, the alleged kidnap victim Barbara Montley, drove to a park called Miller’s Meadow North on the day of the alleged crime, Saturday, June 6, 1981. At approximately 5:00 p.m. Barbara Montley’s boyfriend Alvin arrived at the park and the three of them began to argue. A small crowd gathered. A black man approached Alvin and said something to the effect of, “You lost your girl. You shouldn’t say anything to that guy [Hardnick] about it.” Hardnick and Barbara Montley returned to Hardnick’s car and he began to drive. When they reached a certain intersection, a black four-door Cadillac pulled up behind them. A black man got out of the Cadillac, came to the passenger door of Hardnick’s car, and told Barbara Montley that he was a cousin of her boyfriend and would take her to him. The man opened the car door, grabbed Barbara Montley by the hand, and she exited Hardnick’s car. Hardnick then drove off around the corner.

Barbara Montley testified next. She corroborated Hardnick’s recital of the incident at the park. She described two members of the group that approached Hardnick, Alvin, and her in the park as black men; one short with darker skin and braided hair, whom she identified in court as defendant Hart; and the other taller, with lighter skin and straight hair, whom she identified in court as defendant Eddington. She identified Eddington as the man who took her from Hardnick’s car to a car which she described as big, black and fourdoored. She sat in the car’s back seat. In the car were Hart, who was driving, and two black men in addition to Eddington. Hart drove around for approximately thirty minutes. Barbara Montley began crying. Hart pulled into a side street and let the two men other than Eddington out of the car. Hart then drove onto an expressway. Barbara Montley began screaming. Eddington held his arm around her neck, choked her and hit her. Montley tried to open the door nearest her but it did not work. She jumped out the other back door window. She hit the expressway hands first, and rolled over to the side of the road, where several people assisted her. Montley testified that she was in the car for about 45 minutes, during daylight, and that she could see Eddington’s face next to hers, clearly. She did not have as sustained a view of Hart, but saw him directly in the park for about five minutes and in the car when he turned to tell her to be quiet. Several days after the incident Montley viewed a lineup of six people who each stepped forward and spoke. She chose Eddington and Hart from the lineup.

Charles Kolar next testified that he was driving on the Eisenhower Expressway between 6:00 and 6:30 on June 6, 1981, when he noticed a big, dirty, black Cadillac pulling in and out of lanes and saw someone fighting in the back seat. As the car passed him, Kolar saw a woman whom he identified in court as Barbara Montley jump out of it and fall on her hands onto the expressway.

Officer Robert Barta testified that he was driving in a squad car on the Eisenhower Expressway when he saw cars gathered on the left shoulder and saw Barbara Montley, emotionally shaken and hands badly scraped. Barta took Montley to the hospital, where he notified Cook County Sheriff’s Department Officer Fernando Reyes about the alleged kidnapping which began in Cook County and ended in May-wood.

Officer Reyes testified that he broadcast information about the kidnapping over the police radio. Several nights later, on Wednesday, June 10, 1981, at 11:00 p.m., Reyes was working in Miller’s Meadow North. He approached a black, four-door, 1971 Cadillac parked in a lot and shined a flashlight. Two men, whom Reyes identified in court as Eddington and Hart, were fastening their pants, and a woman was crying in the back seat. Reyes ascertained that Hart was the driver of the car. He arrested Hart and Eddington. Prior to trial, Reyes examined the black Cadillac and found that the rear passenger side door did not open properly.

Finally, Officer Willie Miranda testified that on the day of the alleged kidnapping, he was in Miller’s Meadow North at approximately 5:10 p.m. directing traffic in the aftermath of a traffic accident. He approached a four door Cadillac with three black males in it, and told the driver, whom he identified in court as Hart, to back his car up. Hart did not respond and Miranda, holding his face four or five inches from Hart’s, repeated his direction. Miranda testified that he remembered the car and Hart because Hart was the only driver who did not comply with his instructions. Later in the evening he heard Officer Reyes’ radio broadcast and informed Reyes of the car he had stopped prior to the incident. He described the driver as a black male, 5'6" to 5'8", stocky, dark complected, wearing braids in his hair, and the right front passenger as a black male, 5'10" to 6'0", light complected with a slender build. On June 10, 1981, Miranda was standing in the lockup where Hart and Eddington were brought in. He recognized them as the driver and front seat passenger of the car he had stopped.

The defense called the following witnesses. Stephanie Eddington, defendant Eddington’s fifteen year old sister, testified that on the day of the alleged kidnapping, from 6:00 to 8:00 p.m., she watched Eddington play basketball at a park on Bellwood Avenue. She knew the time because she needed to be home at a certain time and watched a clock in a drugstore around the corner from the basketball court. She testified on cross-examination that she did not see Hart on June 6, 1981.

Reginald Williams, a friend of Eddington, testified that he played basketball with Eddington on that day from about 4:30 p.m. until about 8:00 p.m. He saw Stephanie Eddington at the park.

Alma Sanders testified on behalf of Hart that she was the mother of Hart’s girlfriend, Nanette Sanders. On June 6, 1981, she was at home barbecuing at about noon when Hart arrived to pick up Nanette. Sanders later called Hart’s home at about 6:00 p.m. and spoke to Hart, telling him to bring Nanette home. She called and gave Hart the same message at about 7:45 p.m. She saw Hart at about 8:00 p.m. when he brought Nanette home. On cross-examination, Sanders said that Hart drives a black Cadillac.

Nanette Sanders testified that on June 6, 1981, she was at Hart’s house from approximately 1:30 p.m. until approximately 8:00 p.m. She corroborated that her mother called at about 6:00 and shortly before 8:00. She said she did not leave Hart’s presence all day, and did not see Eddington that day. On cross-examination, she said she and Hart spent the day watching television, listening to the radio, and having sex.

Finally, the defense recalled Alma Sanders to testify that after a prior court hearing, Barbara Montley had told her and Nanette that she was unsure of her identification of Hart and Eddington except that one was light-skinned and one dark. Barbara Montley denied making such a statement, and Nanette testified only that Montley did not say she was sure of the identification.

We are convinced from our review of the record that the viewing of the list was harmless beyond a reasonable doubt. Of course, “[t]he task of reconstructing what occurred — or might have occurred — during a trial is always difficult, and all the more so when we must guess at what transpired in the confines of the jury deliberation room.” Siverson v. O’Leary, 764 F.2d 1208, 1220 (7th Cir.1985). Nonetheless, in this case, where the identity of the perpetrators was the only real issue, the victim’s eye-witness identifications of the defendants, with whom she claimed to have spent nearly an hour, were forcefully corroborated. Officer Miranda’s testimony placed the defendants in the park, in a four-door Cadillac, shortly before the time Montley claimed they approached her in the park. Montley’s description of the car in which she was kidnapped matches that of the car which Miranda saw them in, as well as Officer Reyes’ description of the car they were in five days later in the same park at the time of their arrest. Reyes testified that Hart admitted to being the car’s driver, a fact which Alma Sanders corroborated on cross-examination. Reyes found that the door of the car Hart and Eddington were arrested in did not open properly, as Montley testified about the car in which she was kidnapped. We believe that any reasonable jury, without reference to the prejudicial list, would have convicted both defendants.

Accordingly, the petition for a writ of habeas corpus is denied.

       "Evidence has been received that the defendants may have been involved in an offense other than that charged in the information. This evidence has been received solely on the issue of the circumstances of the defendant's [sic] arrest. This evidence may be considered by you only for the limited purpose for which it was received."