author: WARRINER, District Judge.

text:
    James Arthur BROWN, Jr. v Edward L. BOOKER, Warden, et al.
    Civ. A. 85-0449-R.
    United States District Court, E.D. Virginia, Richmond Division.
    Nov. 27, 1985.
    James Arthur Brown, Jr., pro se.
    Frank S. Ferguson, Asst. Atty. Gen., Richmond, Va., for defendants.
   OPINION AND ORDER

WARRINER, District Judge.

On 19 September 1985, this Court denied petitioner's petition for a writ of habeas corpus under 28 U.S.C. § 2254. On 30 September petitioner filed a timely notice of appeal from that decision as well as a motion for leave to proceed on appeal in forma pauperis. As a result, the Court is presented with the question of whether petitioner should be allowed to proceed on appeal in forma pauperis. For reasons set out below, the Court believes it is also presented with the question of whether this Court should issue the certificate of probable cause required by 28 U.S.C. § 2253.

Appeal In Forma Pauperis

Because this Court previously granted petitioner leave to proceed in his habeas action in forma pauperis, he “... may proceed on appeal in forma pauperis without further authorization unless ... the district court shall certify that the appeal is not taken in good faith.” Federal Rule of Appellate Procedure 24(a). See also 28 U.S.C. § 1915(a), “An appeal may not be taken in forma pauperis if the trial court certifies in writing that it is not taken in good faith.” As Rule 24(a) indicates, absent this Court’s finding that petitioner’s appeal is not taken in “good faith”, he is automatically entitled to proceed on appeal in forma pauperis. Therefore, for petitioner to so proceed, it is not necessary for this Court to “grant” his motion; his in forma pauperis status will continue if this Court simply determines not to retract it.

Determining what constitutes the “good faith” required by Federal Rule of Appellate Procedure 24(a) and 28 U.S.C. § 1915(a) need not involve a subjective inquiry into the appellant’s intent. His “good faith” may be demonstrated by the presentation for “appellate review of any issue not frivolous.” Coppedge v. United States, 369 U.S. 438, 445, 82 S.Ct. 917, 921, 8 L.Ed.2d 21 (1962). In Liles v. South Carolina Dept, of Corrections, 414 F.2d 612 (4th Cir.1969), the Fourth Circuit Court of Appeals, interpreting this standard, cautioned that a lack of “good faith” is not shown by the mere fact “that the appeal lacks merit, but that the issues raised are so frivolous that the appeal would be dismissed in the case of a non-indigent litigant.” Id. at 614, fn. 1. Applying the above standard, the Court does not believe that petitioner’s appeal is so frivolous as to warrant a finding that it is not in “good faith.” Because, I am unable to certify that the appeal is not taken in good faith, petitioner may proceed on appeal in forma pauperis.

Certificate of Probable Cause

Petitioner’s notice of appeal invokes the requirements of 28 U.S.C. § 2253 which provides that an appeal from the denial of a petition for a writ of habeas corpus under 28 U.S.C. § 2254 may only be taken if “the justice or judge who rendered the order or a circuit justice or judge issues a certificate of probable cause”.

Section 2253 is silent as to the procedure that should be followed when the district judge decides that it is not appropriate to issue a certificate of probable cause. It has been the practice of this Court to issue an order respecting the requirements of § 2253 only in those cases where the appealing petitioner specifically sought the certificate and the Court felt it justified. When, as is the usual practice, petitioners ignore the provisions of § 2253 before the district court, I have done nothing. In part, this practice has developed because, as § 2253 makes clear, responsibility for granting or withholding the certificate does not rest upon the district judge alone; the statute provides that the certificate may also be granted by a judge of the Court of Appeals or a justice of the Supreme Court. Because § 2253 seems to allow for the above individuals engaging in an independent and de novo inquiry into whether to grant or withhold the certificate, rather than appellate review of this Court’s decision, there seemed little point in issuing any statement as to this Court’s reasons for withholding the certificate. Also, I thought my opinion in the case would sufficiently reveal my view as to the merits of an appeal. However, a number of circuit court opinions and the Supreme Court’s recent decision in Barefoot v. Estelle, 463 U.S. 880, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983), have directed this Court’s attention to the requirements of Fed.R.App.P. 22(b) and have led me to conclude that my previous practice has been in error.

Section 2253 establishes that a certificate of probable cause must be obtained before an appeal may be taken; Fed.R.App.P. 22 reiterates this requirement and delineates the procedure to be followed by the various judges potentially involved in making the determination mandated by § 2253. Fed.R.App.P. 22(b) provides:

In a habeas corpus proceeding in which the detention complained of arises out of process issued by a state court, an appeal by the applicant for the writ may not proceed unless a district or a circuit judge issues a certificate of probable cause. If an appeal is taken by the applicant, the district judge who rendered the judgment shall either issue a certificate of probable cause or state the reasons why such a certificate should not issue. The certificate or the statement shall be forwarded to the court of appeals with the notice of appeal and the file of the proceedings in the district court. If the district judge has denied the certificate, the applicant for the writ may then request the issuance of the certificate by a circuit judge. If such a request is addressed to the court of appeals, it shall be deemed addressed to the judges thereof and shall be considered by a circuit judge or judges as the court deems appropriate. If no express request for a certificate is filed, the notice of appeal shall be deemed to constitute a request addressed to the judges of the court of appeals. If an appeal is taken by a state or its representative, a certificate of probable cause is not required.

The sequence contemplated by the Rule is as follows: even without a formal motion or request for the certificate, a petitioner’s notice of appeal from the denial of his petition under § 2254 must be brought to the attention of the district judge. The filing of the notice of appeal itself requires the district judge to make a determination of whether to issue a certificate of probable cause. If he grants the certificate, the court of appeals is bound by his decision and must consider the appeal on its merits. See Nowakowski v. Maroney, 386 U.S. 542, 543, 87 S.Ct. 1197, 1198-99, 18 L.Ed.2d 282 (1967). If, on the other hand, the district judge determines not to issue the certificate, he must state his reasons for declining to do so. The record is then forwarded to the Court of Appeals. At this point, the petitioner may formally petition a circuit judge to grant the certificate. If, by mistake, he addresses his request to the Court of Appeals, which as an entity is not empowered by § 2253 to grant the certificate, the request shall be construed to be addressed to an individual judge of that Court. The penultimate sentence of this section, taken in context, establishes that even if no formal request is made, the notice of appeal itself will automatically act, as it did earlier in regard to the district judge, as a request for the certificate, addressed, this time, “to the judges of the Court of Appeals.” If the designated judge of the Court of Appeals refuses to issue a certificate of probable cause, the appeal is ended.

The procedural structure established by Rule 22 clarifies the requirements of § 2253 in a number of important respects. Whereas § 2253 seems to permit the district judge and the judges of the court of appeals to simultaneously and independently make the determination of whether to issue or withhold the certificate, Rule 22(b) establishes an obligatory sequence of interlocking procedural steps that begins with the district judge’s initial determination of whether the certificate should issue. Among other things, the Rule ensures that: (1) an appellant need take no action beyond filing a notice of appeal to obtain a ruling on the certificate; (2) a judge of the court of appeals must await the initial ruling by the district judge before making his own decision as to whether to grant or withhold the certificate; and, (3) the appellee is uninvolved at this stage.

Within this procedural framework, the Advisory Committee Notes following the Rule suggest two primary purposes served by the requirement that the district judge “state [his] reasons” when he decides not to issue the certificate. The first is to ensure that “the matter of the certificate will not be overlooked” by the district judge. Since the district judge’s decision to issue the certificate binds the court of appeals to a consideration of the merits of the appeal, it is important that an appellant’s “first level right to a ruling by the district judge” not be forgotten or foreclosed by an interim denial by a judge of the court of appeals. Stewart v. Beto, 454 F.2d 268, 269 (5th Cir.1971).

This purpose would, of course, be served adequately by merely requiring the district judge to issue an order memorializing his decision not to grant the certificate. The Rule goes significantly beyond this when it demands that the District Judge “state the reasons” for his denial of the certificate. The Advisory Committee Notes suggest that a function of this requirement is to ensure that the judge or judges of the court of appeals will have before them “in any subsequent application,” a short summary of the reasons for denial to aid in their determination of whether to issue the certificate. Besides ensuring that the district judge will be forced to articulate, and thus arrive at, a principled basis for denial, this procedure promotes judicial economy in that the judges of the court of appeals should be able to rely primarily on the summary provided by the district judge rather than having to read through the district judge’s opinion on the merits in support of his denial of the habeas petition. In other words, the procedure provides a way to shorten an inquiry that might otherwise approximate appellate review, a feature in accord with the function of the certificate of probable cause as “the primary means of separating meritorious from frivolous appeals”. Barefoot, 463 U.S. at 893, 103 S.Ct. at 3394, 77 L.Ed.2d at 1104. It is also apparent that the grounds for denying the petition on the merits and for refusing to issue a certificate of probable cause often differ.

I conclude, then, that a certificate must either issue or be refused in every § 2254 appeal, with the reasons stated if refused.

Faced with the necessity of either granting or withholding a certificate of probable cause, the Court must now address the question of what the “probable cause” standard means in this setting. Until recently, there was some conflict as to exactly what constituted the “probable cause” necessary to justify the issuance of a certificate. Those conflicts, however, have been resolved by the Supreme Court’s recent statement in Barefoot that “a certificate of probable cause requires petitioner to make a ‘substantial showing of the denial of [a] federal right’ ”. Id.

Making the “substantial showing” necessary for the issuance of a certificate of probable cause is more difficult than demonstrating the “good faith” required under 28 U.S.C. § 1915(a). See Gardner, 558 F.2d at 551; see also, Blackmun, “Allowance of In Forma Pauperis Appeals in § 2255 and Habeas Corpus Cases”, 43 F.R.D. 343, 352 (8th Cir.1967) (“probable cause requires something more than the absence of frivolity and ... the standard is a higher one than the ‘good faith’ requirement of § 1915”). Thus, this Court’s determination, supra, that petitioner's appeal is taken in “good faith” does not answer the question of whether his appeal from the denial of his habeas petition meets the “substantial showing” standard justifying the issuance of a certificate of probable cause.

In Barefoot, the Supreme Court held that when a “substantial showing” had been made, “... the petitioner need not show that he should prevail on the merits ... rather he must demonstrate that the issues are debatable among jurists of reason; that a court could resolve the issues [in a different manner].” Barefoot, 463 U.S. at 893, fn. 4, 103 S.Ct. at 3394, fn. 4, 77 L.Ed.2d at 1104, fn. 4, quoting Gordon v. Willis, 516 F.Supp. 911, 913 (N.D.Ga.1980).

In the present case, for reasons that will be set forth below, the Court does not believe that the issues which may be raised by petitioner’s appeal are “debatable among jurists of reason.” This raises a final procedural question: in what form and to what extent should the district judge state the reasons for his denial of the certificate of probable cause? Clearly, more than a pro forma reference to the “reasons set forth in the accompanying memorandum opinion” is called for. In Herrera v. Payne, 673 F.2d 307 (10th Cir.1982), the Court of Appeals found the following statement of reasons by the district court inadequate to satisfy Rule 22(b), “... the Court finding no substantial issue of law as set forth in the memorandum opinion filed herein, it is ORDERED that no certificate of probable cause.” Id. at 308. Stating that “the proper exercise of [the discretion to issue a certificate] cannot be adequately reviewed where no reasons for the determination had been given,” the Court of Appeals held that a district judge must issue a “statement detailing his reasons for declining to issue” a certificate. Id.

In this Court’s opinion, the Tenth Circuit was correct in requiring that the district judge explain his decision to withhold the certificate by more than a mere reference to his opinion. Such an abbreviated expression of the reasons for denial would be of no use to the judges of the court of appeals in exercising their own judgment as to whether or not to grant a certificate of probable cause. The opinion deals with the merits; the certificate only with the propriety of an appeal. If the drafters of the Rule had not intended that the court of appeals be guided by the district judge’s reasons for the denial of the certificate, they would surely not have required that a district judge who denies a certificate go through the additional step of stating his reasons for doing so. In the instant case, therefore, the Court feels compelled to present the following brief statement of the reasons why it feels petitioner has not made, and cannot make, a “substantial showing of the denial of a federal right”.

Statement of Reasons

Petitioner was convicted of grand larceny of an automobile. He was found in possession of the automobile shortly after its theft, though at trial he denied having stolen it. His denial was contradicted by an eyewitness, a parking lot attendant, who testified that petitioner had fraudulently removed the automobile from the parking lot in which the attendant worked. Petitioner’s overall challenge to the sufficiency of the evidence contained two specific arguments. His first claim was that the discrepancies between the parking lot attendant’s testimony at a preliminary hearing and his testimony at trial meant that he was an unreliable witness whose testimony should not have been believed. This Court rejected that contention finding it “well settled that ‘where there are conflicts in the testimony, it is [for] the jury and not the ... [reviewing] court to weigh the evidence and judge the credibility of the witnesses’ ”, quoting United States v. Tresvant, 677 F.2d 1018, 1021 (4th Cir.1982).

Petitioner’s second claim was that the value of the stolen property, a 1977 Oldsmobile Cutlass, was not shown to be above the statutory limit of $200.00 as required by Ya.Code § 18.2-95. In rejecting this challenge, this Court pointed out that besides the testimony of the owner to the effect that the car was worth $4,000.00, the jurors could have concluded from their own experience that it had a value in excess of the statutory limit. Employing the standard set out in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), this Court concluded that a “rational trier of fact” could easily have made such a finding. Petitioner’s overall challenge to the sufficiency of the evidence was rejected under the same standard because there was “ample evidence” from which a rational trier of fact could have found petitioner guilty beyond a reasonable doubt.

As the above summary indicates, petitioner’s petition presented no complex legal issues but was devoted primarily to contesting the jury’s interpretation of the evidence. An appeal can resolve nought. The jury is the trier of fact and its resolution here was well within bounds. Because there was ample evidence in the record from which the jury could have arrived at the conclusions it did, the Court concludes that petitioner cannot make the “substantial showing of the denial of a federal right” necessary to warrant the issuance of a certificate of probable cause to appeal. Accordingly, this Court declines to issue the certificate.

And it is so ORDERED.

      . 28 U.S.C. § 2253 provides in pertinent part: An appeal may not be taken to the court of appeals from the final order in a habeas corpus proceeding where the detention complained of arises out of process issued by a State court, unless the justice or judge who rendered the order or a circuit judge or justice issues a certificate of probable cause.

      . Herrera v. Payne, 673 F.2d 307 (10th Cir.1982); Gardner v. Pogue, 558 F.2d 548 (9th Cir.1977); Stewart v. Beto, 454 F.2d 268 (5th Cir.1971), cert. denied, 406 U.S. 925, 92 S.Ct. 1796, 32 L.Ed.2d 126 (1972).

      . Poe v. Gladden, 287 F.2d 249 (9th Cir.1961) (“not plainly frivolous”); Harris v. Ellis, 204 F.2d 685 (1953) ("substantial showing of the denial of a federal right”); Wilks v. Young, 586 F.Supp. 413 (E.D.Wisc.1984) (“substantial question worthy of consideration”); Dillingham v. Wainwright, 422 F.Supp. 259 (S.D.Florida 1976) (certificate denied only where applicant can “make no rational argument" in support).


source: Caselaw Access Project

author: HAROLD H. GREENE, District Judge.

license: Public Domain

text:
    UNITED STATES of America v. John A. SHORTER, Jr.
    Crim. No. 84-0421.
    United States District Court, District of Columbia.
    Nov. 27, 1985.
    Carol E. Bruce, Darryl W. Jackson, Asst. U.S. Attys., Washington, D.C., for Government.
    John A. Shorter, Jr., Washington, D.C., for defense, Shorter.
   MEMORANDUM

HAROLD H. GREENE, District Judge.

Defendant's motion under Fed.R.Crim.P. 33 for a new trial raises four matters, three of which have previously been addressed in writing by the Court. Defendant raises no new issues with respect to those three matters, and the Court will not disturb its prior rulings for the reasons given at length when those rulings were made.

Defendant’s challenge to the Court’s oral ruling of October 1,1985 on the admissibility of his prior taxpaying history does require discussion. In a written pretrial Memorandum Order dated September 13, 1985, 618 F.Supp. 255, the Court held that evidence of that taxpaying history before 1974, including prior convictions for failure to pay taxes and failure to file a tax return, would not be admitted as part of the government’s case-in-chief. However, by its express terms, the September 13 Order did not “preclude the possibility ... that some of this evidence [would] be admitted ... should defendant ‘open the door’ ... by ... cross examination ... or by the production of evidence of his own.” September 13, 1985 Order at 3.

The Court’s oral ruling on October 1, 1985 was not only consistent with the September 13 order, but it was fully justified in the context of the events which occurred during the trial.

In the opening statement made on defendant’s behalf, his then counsel had emphasized that, once he took the stand, defendant would explain in detail how he had become addicted to gambling in his early youth and how that gambling obsession progressed as the years went by. Moreover, and more directly to the point, defendant himself had implied in his cross-examination of various IRS officials that these persons had conducted their investigations after 1974 in a manner designed to encourage a criminal prosecution rather than a civil settlement with the IRS. As a consequence of the September 13 ruling, the IRS witnesses were not permitted to testify that they were aware of Mr. Shorter’s pre-1974 delinquencies — a factor relevant in response to that innuendo — and the jury was unable to evaluate fairly the motivations of the IRS investigators who were dealing with defendant during the years covered in the indictment. However, when defendant announced that he would take the stand, it could be expected that his testimony would open the door to his earlier failures to pay taxes and to the IRS investigators’ knowledge of that fact. To make certain that its September 13 ruling was not transformed from a shield into a sword, the Court ruled that, should defendant testify, the government could ask him on cross-examination (1) whether he had failed to pay taxes and file returns in years before 1974 and (2) whether he understood that IRS investigators knew of his prior taxpaying history.

Even at that, the Court was careful to protect defendant by ruling that, even if he answered both questions in the affirmative, the government would not be permitted to establish defendant’s prior tax convictions or even the fact that civil judgmente had been secured against him on account of his tax delinquencies. Thus, the ruling was narrowly tailored to ensure that the probative value of the evidence would not be outweighed by undue prejudice. See Fed.R.Evid. 403; United States v. Beechum, supra, 582 F.2d at 911.

The Court is of the view today, as it was on October 1, that the limited government cross-examination authorized by its oral ruling was necessary to a fair trial and entirely consistent with the Federal Rules of Evidence.

Even if the merits of the Court’s decision were open to question, defendant would face a significant obstacle in his quest for a new trial. In Luce v. United States, — U.S.-, 105 S.Ct. 460, 464, 83 L.Ed.2d 443 (1984), the Supreme Court ruled that “to raise and preserve for review the claim of improper impeachment with a prior conviction, a defendant must testify.” When the defendant chooses not to take the stand, there is simply no way any court can assess (1) whether the government’s hypothetical cross-examination would be improper, and (2) whether that hypothetical cross-examination would actually prejudice the defendant. In declining to take the stand, defendant plainly waived any objections he might have otherwise been able to raise to the assumed government cross-examination with regard to his taxpaying history.

For the foregoing reasons, it is this 26th day of November, 1985

ORDERED that defendant’s motion for a new trial be and it is hereby denied.

      . See the Court’s Opinions of March 26, 1985, 608 F.Supp. 871, (duplicitous indictment); September 13, 1985 (expert testimony on pathological gambling); and October 21, 1985, 620 F.Supp. 73, (prosecutorial misconduct and prejudicial publicity).

      . Because of defendant’s numerous pre-1974 tax delinquencies, a criminal investigation was fully justified.

      . On this basis, this evidence would, of course, have been admitted to explain IRS conduct and not as evidence of defendant’s character. See Fed.R.Evid. 404(b); United States v. Beechum, 582 F.2d 898, 911 (5th Cir.1978) (en banc). Pre1974 evidence would also have been admissible as part of the government’s rebuttal case for similar reasons.

      . Because the Court did not in its oral ruling permit the government to inquire about prior convictions for failure to pay and failure to file, Fed.R.Evid. 609 was not implicated.

      . As indicated supra, the Court’s October 1 ruling necessarily assumed defendant’s direct evidence as it then appeared: of necessity, if that evidence turned out, in fact, to be more restricted or more expansive than expected, the allowable cross-examination, or the permissible rebuttable evidence, would have had to be adjusted accordingly.

      . Although Luce deals specifically with the problem of prior convictions, its reasoning is applicable ipso facto to evidence of a lesser character.


author: ARONOYITZ, District Judge.

text:
    Clarence NORMAN, Plaintiff, v. INTERNATIONAL ASSOCIATION OF MACHINISTS & AEROSPACE WORKERS, DISTRICT 100, affiliated with the AFL-CIO, and Eastern Airlines, Inc., a Delaware corporation registered to do business in the State of Florida, Defendants.
    No. 83-1901-Civ.
    United States District Court, S.D. Florida, Miami Division.
    Nov. 29, 1985.

      Roger G. Stanway, Hollywood, Fla., for plaintiff.
    Dorian G. Damoorgian, Manners, Tucker, Carillo, & Damoorgian, P.A., Miami, Fla., for defendant International Ass’n of Machinists, etc.
    Carmen Leon, Miami, for defendant Eastern Airlines, Inc.
   MEMORANDUM OPINION GRANTING DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S CROSS-MOTION FOR SUMMARY JUDGMENT

ARONOYITZ, District Judge.

THIS CAUSE came before the Court for a hearing on the parties’ cross-motions for summary judgment, more specifically, Defendant INTERNATIONAL ASSOCIATION OF MACHINISTS & AEROSPACE WORKERS (“UNION”), DISTRICT 100’s Motion for Summary Judgment (D.N. 44), Defendant EASTERN AIRLINES (“EASTERN”), INC.’s Motion for Summary Judgment (D.N. 49), and Plaintiff CLARENCE NORMAN’s Cross-Motion for Summary Judgment (D.N. 52). Counsel for all parties appeared and presented their views at the hearing held October 29, 1985. The Court, having heard argument and considered the motions, the supporting and opposing memoranda filed thereto, the agreed upon statement of facts, the pertinent portions of the record, the applicable law, and being otherwise fully advised in the premises, it is thereupon

ORDERED AND ADJUDGED that Defendant UNION’S Motion for Summary Judgment (D.N. 44) and Defendant EASTERN’S Motion for Summary Judgment (D.N. 49) be, and the same are, hereby GRANTED. It is

FURTHER ORDERED AND ADJUDGED that Plaintiff’s Cross-Motion for Summary Judgment (D.N. 52) be, and the same is, hereby DENIED.

This is an action for damages and reinstatement of employment due to the alleged unlawful discharge of Plaintiff by his employer Defendant EASTERN. The Amended Complaint also alleges breach by the Defendant UNION of its duty of fair representation. Jurisdiction of the cause is predicated upon the Railway Labor Act, 45 U.S.C. § 151, et. seq.

The Undisputed Facts

Essentially, the material facts are not in dispute. The parties have agreed in substantial part to the Statement of Undisputed Facts which appears at pages 2 through 10 of the Defendant UNION’S Motion for Summary Judgment (D.N. 44). (The parties’ accession to this statement of facts appears at D.N. 55.) At the hearing on October 29, 1985, Counsel for Plaintiff announced that a few of the “undisputed” facts were indeed in dispute. Counsel for Plaintiff admitted that these were “minor” points and Counsel for Defendant UNION conceded these “facts” for purposes of resolving the instant case on the pending cross-motions for summary judgment. The Court does not deem these minor facts material in any event. The following pertinent facts which are not in dispute have been summarized from Defendant UNION’S Statement of Undisputed Facts (D.N. 44). All references to the record support for these facts have therefore been omitted below. The Court would adopt and incorporate as though fully set forth herein all citations to the record as they appear in Defendant UNION’S Statement.

Plaintiff was a mechanic in Defendant EASTERN’S welding shop. On September 2, 1982, Plaintiff reported to work with alcohol on his breath. He was observed as being unable to perform the duties attendant to his job properly. As a result of this incident, the Chairman of the Defendant UNION contacted Plaintiff and discussions between the parties resulted in the Plaintiff’s decision to enroll himself as an inpatient at an alcohol recovery center in a local hospital. On September 7, 1982, while he was being treated for alcohol abuse at the hospital, Plaintiff received a letter of termination from EASTERN based on the incident of September 2, 1982. Defendant UNION interceded at this juncture and filed a grievance on behalf of the Plaintiff for wrongful discharge under the governing Collective Bargaining Agreement.

On October 9, 1982, Plaintiff completed the alcohol recovery program and enrolled in weekly group therapy sessions as well as the local chapter of Alcoholics Anonymous. At this time, he was advised by the Defendant UNION that he was eligible for a reinstatement program with his former employer, Defendant EASTERN. Subsequently, an Article 18 investigation ensued in compliance with the Collective Bargaining Agreement and at a meeting on October 17, 1982, a “Return to Work Agreement” was hammered out between the Plaintiff through his UNION representatives and Defendant EASTERN representatives. At the meeting, EASTERN representatives stated that Plaintiff would not be treated differently from any other employee with respect to violation of attendance policies. Pursuant to the parties’ verbal agreement of October 17th regarding Plaintiff’s return to work, the parties met the next day to execute a written document hereinafter referred to as the Return to Work Agreement. At the October 18th meeting, the UNION representatives questioned the language contained at Paragraph 6 of the Return to Work Agreement. They were told by Defendant EASTERN representatives once again that Plaintiff would be treated like any other employee with respect to attendance policy violations.

Paragraph 6 of the Return to Work Agreement states:

Employee acknowledges and accepts responsibility that should he violate any rule or regulation concerning attendance or alcohol abuse set forth for Employees of the Company, Employee will be terminated without recourse to any provision set forth in Article 17, 18, or 19 of the EAL/IAMAW (UNION) Agreement ...

On or about October 17, 1982, Plaintiff returned to his former job as an airline mechanic in EASTERN’S welding shop in accordance with and subject to the terms of the Return to Work Agreement. On November 2, 1982, Plaintiff called in sick and did not report to work. On November 21, 1982, EASTERN reported Plaintiff as being absent from work. The November 21st “absence” has been explained away by Plaintiff as an administrative error and neither Defendant has disputed this contention. Thereafter, on November 22nd, 23rd, 24th and 28th, Plaintiff was absent from work. According to Plaintiff, and once again Defendants have not disputed this, the entire four day period was covered by a note from Plaintiff’s doctor attesting to Plaintiff’s inability to work due to an injury. On December 2, 1982, Plaintiff received a memorandum from his supervisors advising him that his failure to report for work on November 28, 1982, was a violation of the Return to Work Agreement. On December 16, 1982, an EASTERN supervisor wrote a second memorandum regarding Plaintiffs unexcused absences and incidents of tardiness. The second memorandum cited six days of unexcused absences and two incidents of tardiness and further warned that failure to abide by the Return to Work Agreement would result in Plaintiffs immediate termination pursuant to the parties’ agreement. On the date that the second memorandum was written, December 16, 1982, Plaintiff was absent from work. As a result of this absence, EASTERN issued a letter of termination on December 20, 1982. The letter eites seven “unexcused” absences and two incidents of tardiness. Plaintiff’s counsel disputes the number of absences which are deemed unexcused by EASTERN, but as the instant memorandum opinion illustrates, the number of absences, whether excused or unexcused, is not a material fact for the purposes of this Court’s review.

Soon after he received his letter of termination from Defendant EASTERN, Plaintiff notified Defendant UNION that he had been fired. Plaintiff met with the UNION Chairman in order to file a grievance and discuss the facts attendant to his termination. Pursuant to Article 18 of the Collective Bargaining Agreement, Defendants EASTERN and UNION scheduled a joint investigation. The Shop Steward and the Chairman met to discuss the facts and circumstances of Plaintiff’s grievance and the UNION Chairman reviewed Plaintiff’s attendance record for the period from October 17, to December 16, 1982. On January 14, 1983, an Article 18 investigation was conducted. Plaintiff testified that pursuant to the Return to Work Agreement, all absences and incidents of tardiness had to be alcohol related before disciplinary action could be taken against Plaintiff. The UNION Chairman argued that Plaintiff was not in violation of the Return to Work Agreement inasmuch as Plaintiff’s absences were not alcohol related.

Upon completion of the Article 18 investigation, EASTERN Labor Relations Representative Clifford Murphy sustained the termination of Plaintiff’s employment. An arbitration hearing was scheduled thereafter for March 7, 1983. On that date, Plaintiff’s arbitration hearing was held before the Systems Board of Adjustment (“SBA”) joint panel chaired by neutral member Fred Blackwell in accordance with Article 19 of the Collective Bargaining Agreement. During the arbitration hearing, the UNION Chairman sought to establish that Paragraph 6 of the Return to Work Agreement was intended by the parties to be limited to alcohol related absences and incidents of tardiness. On March 11,1983, after apparently considering all of the evidence presented by all sides, the SBA issued an opinion affirming the EASTERN decision to terminate Plaintiff and denying Plaintiff’s grievance. It is from this SBA opinion that the instant litigation stems.

In early July of 1983, Plaintiff filed his complaint in state circuit court and thereafter, on July 28, 1983, pursuant to a joint petition filed by the parties, the Cause was removed to this District Court. Plaintiff’s Amended Complaint (D.N. 15) alleges four counts. They seek (1) to set aside the decision of the SBA arbitration panel as being arbitrary and without basis in reason or fact, (2) damages for breach of the Collective Bargaining Agreement against Defendant EASTERN, (3) damages for breach of the duty of fair representation against Defendant UNION, and (4) damages for collusion and conspiracy between both defendants. Plaintiff also seeks to be reinstated in his job as an airline mechanic in EASTERN’S welding shop.

The Motions for Summary Judgment

The parties argue three points in their respective motions for summary judgment and responses. The three issues for this Court’s determination are: (1) whether Defendant UNION’S actions in processing Plaintiff’s grievance were executed in a good faith, non-arbitrary and non-discriminatory manner; (2) whether the SBA award is in compliance with the Railway Labor Act, devoid of fraud, and confined to matters within the SBA’s jurisdiction, thereby limiting the Court’s powers of review; and (3) whether the instant action is time barred by the statute of limitations. Each of these issues is treated separately below.

1. Whether Defendant UNION’S Actions in Processing Plaintiffs Grievance Were Done in a Good Faith, Non-Arbitrary and Non-Discriminatory Manner

This issue speaks directly to the charges of breach of duty of fair representation and conspiracy leveled against Defendant UNION. As to the duty of fair representation, there is some dispute by the parties as to what standard is to be employed in judging a claim for its breach. It is clear however, that Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967), is the first seminal decision on the issue. That case articulated the standard as follows:

A breach of the statutory duty of fair representation occurs only when a union’s conduct toward a member of the collective bargaining unit is arbitrary, discriminatory, or in bad faith.

386 U.S. at 190, 87 S.Ct. at 916-17. Defendant UNION maintains that this standard has been altered by the subsequent United States Supreme Court decision of Amalgamated Association of Street, Electric Railway and Motor Coach Employees of America v. Lockridge, 403 U.S. 274, 91 S.Ct. 1909, 29 L.Ed.2d 473 (1971) (“Lock-ridge”). Defendant argues that Lockridge increased the burden on the aggrieved employee and points to the following language in support of its contention:

For such a claim to be made out, Lock-ridge must have proved “arbitrary or bad faith conduct on the part of the Union.” ... There must be “substantial evidence of fraud, deceitful action or dishonest conduct.”

403 U.S. at 299, 91 S.Ct. at 1924.

At first blush, this language could be construed as implementation of a heavier burden on the aggrieved employee since it seems to require deceitful or dishonest conduct on the part of the UNION. However, this Court does not read Lockridge as imposing a different, more burdensome standard than the one articulated in Vaca, supra. The Court adopts the reasoning used by the Seventh Circuit Court of Appeals in Baldini v. Local Union No. 1095, 581 F.2d 145, 150-151, n. 5 (7th Cir.1978). The Baldini Court reconciled the two cases thusly:

Under Vaca v. Sipes, supra, ... a union breaches its duty of fair representation when its conduct towards the member is “arbitrary, discriminatory, or in bad faith.” It is noted that the standard is disjunctive. Vaca expressly rejected an argument that only obvious breaches such as discrimination or hostile treatment would be actionable.

The standard enunciated and utilized by the Eleventh Circuit Court of Appeals in Harris v. Schwerman Trucking, Co., 668 F.2d 1204 (11th Cir.1982), appears to combine the language found in Vaca and Lockridge. In that case, the standard for evaluating a breach of duty of fair representation claim against a union was articulated as follows:

In order to establish that the union has breached its duty of fair representation it must be shown that the union’s handling of the grievance was either “arbitrary, discriminatory or in bad faith, as, for example when it arbitrarily ignore(s) a meritorius grievance or process(es) it in (a) perfunctory fashion.”

668 F.2d at 1206. It would seem then that something less than discrimination or hostile treatment could be actionable under the Eleventh Circuit’s interpretation of what is required to establish a breach of the duty of fair representation. The Harris decision states that “the union is allowed considerable latitude in its representation of employees” and that union representatives are “not held to strict standards of trial advocacy.” 668 F.2d at 1206. Moreover, Harris reaffirms what both parties contend, namely that neither negligence nor a mistake in judgment will support a claim that the union acted in an arbitrary and perfunctory manner. In any event, the Eleventh Circuit decision affirmed Defendant’s contention that the standard for establishing such a breach is a very tough one. Under any standard advanced, whether it be the supposed lesser one stated in Vaca or the tougher one purportedly set forth in Lockridge, the Court holds that the Plaintiff in the instant case has failed to establish a claim for breach of the duty of fair representation by the Defendant UNION.

Plaintiff alleges that the UNION breached its duty of fair representation by failing to obtain clarification of the settlement agreement (specifically, Paragraph 6 of the Return to Work Agreement). He claims that the UNION should have insisted upon defining absences in the written agreement as those that are alcohol related. He further claims that the Defendant UNION failed to apprise him of his rights under the Return to Work Agreement at the time that the agreement was executed. There are however, no allegations in the Amended Complaint that the UNION breached its duty of fair representation in either the handling of Plaintiff’s grievance or the preparation and presentation of Plaintiff’s case before the SBA.

Moreover, the record clearly demonstrates and Plaintiff does not dispute that the UNION represented the Plaintiff at all stages of the grievance process, including (1) attending all meetings, (2) involving the shop steward and all other appropriate officials of the UNION who generally handle employees with alcohol related problems, and (3) generally following all steps of the grievance procedure up through and including the execution of the Return to Work Agreement. Further, Plaintiff admits in his deposition that he was satisfied with the UNION’S representation of him up through the time he returned to work pursuant to the Return to Work Agreement (Deposition of Plaintiff CLARENCE NORMAN at pp. 43-44). These record facts all indicate that the UNION fulfilled its duty of fair representation. This Court finds that the UNION represented Plaintiff in good faith and that there was no breach of the duty of fair representation notwithstanding the SBA’s finding that “the evidence as a whole does not support the Union’s proposition and instead persuades that such a limitation was not in fact agreed to by the parties.” (SBA Opinion at p. 11.) This SBA statement does not negate this Court’s holding because a review of the entire record demonstrates that at all times the UNION acted in good faith and in accordance with its duty of fair representation. At best, the UNION’S handling of the Paragraph 6 dispute was ineffective and perhaps constituted negligence. Ineffectiveness and negligence do not constitute a breach of the UNION’S duty, however.

Plaintiff argues in its cross motion for summary judgment that the UNION acted arbitrarily and without reason or judgment. Plaintiff points to the Plaintiff’s deposition wherein he states that he notified the UNION representatives that he did not want to sign the Return to Work Agreement unless the agreement was clarified to reflect that absenteeism based on alcohol abuse was the only ground for termination. Plaintiff maintains that he thought that the proper clarification was inserted into the Return to Work Agreement. According to Plaintiff, the UNION’S alleged failure to secure this understanding caused and eventually resulted in Plaintiff’s termination, since he was absent from work for reasons other than alcohol related problems. This failure, Plaintiff contends, constitutes handling his grievance in a perfunctory manner and hence, is a breach of the UNION’S duty.

In Harris v. Schwerman, supra, the Eleventh Circuit stated that in order to be actionable, the claim for “perfunctory” handling of a claim “requires a demonstration that the union ignored the grievance, inexplicably failed to take some required step or gave the grievance merely cursory attention.” 668 F.2d at 1207. Under the set of stipulated facts or under the “facts” expressed in Plaintiffs deposition, the Defendant UNION’S actions do not constitute the reckless disregard or grossly deficient conduct necessary to establish a breac h of duty on the part of the UNION. Accordingly, the Court holds that Plaintiff did not establish and the record does not reflect that Defendant UNION breached its duty of fair representation in the handling of either Plaintiff’s grievance or the preparation and presentation of Plaintiff’s case before the SBA. Under Vaca, the most lenient of standards found in the caselaw, Plaintiff did not fulfill his burden of establishing any conduct which could conceivably be construed as a breach by Defendant UNION.

2. Whether the SBA Award is in Compliance with the Railway Labor Act, Devoid of Fraud, and Confined to Matters 'within the SBA’s Jurisdiction

Plaintiff seeks to have this Court overturn the SBA award which was rendered in Defendant EASTERN’S favor. The SBA opinion affirms Defendant EASTERN’S termination of Plaintiff and denies Plaintiff’s grievance. The grounds for overturning an SBA award are for the most part articulated in Title 45, United States Code, Section 153 First (q), which provides in pertinent part:

The Court shall have jurisdiction to affirm the order of the division or to set it aside, in whole or in part, or it may remand the proceeding to the division for such further action as it may direct. On such review, the findings and order of the division shall be conclusive on the parties, except that the order of the division may be set aside, in whole or in part, or remanded to the division, for failure of the division to comply with the requirements of this chapter, for failure of the order to conform or confine itself, to matters within the scope of the division’s jurisdiction, or for fraud or corruption by a member of the division making the order.

Several courts have added other grounds for overturning or setting aside an SBA award. Beginning with the Supreme Court decision of Gunther v. San Diego & Arizona Eastern Railway Company, 382 U.S. 257, 261, 86 S.Ct. 368, 370-71, 15 L.Ed.2d 308 (1965), and continuing with a line of Fifth Circuit cases, it has been well established that an arbitrator’s award under the Railway Labor Act must be set aside if the SBA’s award is “wholly baseless and completely without reason.” In Brotherhood of Railroad Trainmen v. Central of Georgia Railway, 415 F.2d 403 (5th Cir.1969), the Court elaborated on the “narrow” standard of review accorded to federal district courts when faced with determining whether or not to affirm or overturn an SBA award. In that case, the Court equated the Gunther “wholly baseless and without reason” standard with language found in the Legislative History of the Railway Labor Act provision regarding district court review of an SBA award. That language articulates the standard as whether or not the Board’s interpretation was “actually and undisputably without foundation in reason or fact.” 415 F.2d at 412.

Diamond v. Terminal Railway Alabama State Docks, 421 F.2d 228 (5th Cir.1970), explained the standard even further. That decision stated:

The federal courts do not sit as super arbitration tribunals in suits brought to enforce awards of the Adjustment Board. They may not substitute their judgments for those of the Board’s division. They need not inquire whether substantial evidence supports the Board’s award. Under the Railway Labor Act, ... the range of judicial review in enforcement cases is among the narrowest known to the law.

421 F.2d at 233.

Finally, the decision of Eastern Airlines, Inc. v. Transport Workers Union, 580 F.2d 169 (5th Cir.1978), is instructive. There, the trial court was reversed when it set aside an arbitration award under the Railway Labor Act. In that case, the Court held that the trial judge exceeded the bounds of his reviewing powers when he set aside the award because the award was “not without foundation in reason or fact.” 580 F.2d at 173. The Fifth Circuit stated:

Arbitrators, however, “have no obligation to the Court to give their reasons for an award.” ... Although “an arbitrator is confined to interpretation and application of the collective bargaining agreement, ... (a) mere ambiguity in (his or her) opinion * * * which permits the inference that the arbitrator may have exceeded (his or her) authority, is not a reason for refusing to enforce the award.” Since we cannot find that the Board’s award — although arguably vague — was “ ‘without foundation in reason or fact,’ ” our decision in Diamond, supra, 421 F.2d at 233, compels us to reverse the District Court and reinstate the award. In doing so, we express no opinion regarding the substantive correctness of the Board’s conclusion. We merely hold that the panel acted within the scope of its jurisdiction.

580 F.2d at 173. Given these precedents, if there is any basis whatsoever for sustaining the instant SBA award and opinion, that is, if there is any foundation in reason or fact for the Board’s award, then the Court must affirm the decision to terminate Plaintiff. The Court cannot substitute its judgment for that of the Board’s. Under the above-cited statute and caselaw, this Court can evaluate only whether or not the Board’s opinion was baseless, conceived by fraud, or outside the scope of the SBA’s jurisdiction.

Plaintiff maintains that the SBA’s decision is arbitrary, capricious, unreasonable and prejudicial to him. Moreover, according to Plaintiff, the effect of the SBA’s decision amounts to a denial of due process. The basis for Plaintiff’s assertion of capriciousness can be found in his allegation that “the arbitrator appeared to have reached the conclusion that Plaintiff had violated the sudden death agreement without regard to the testimony of the Plaintiff and two independent witnesses.” (Plaintiff’s Memorandum in Opposition to Defendant’s Motion for Summary Judgment (D.N. 54) at p. 15). Curiously enough, Plaintiff then quotes the following passage from the SBA opinion:

We note here that while we do not doubt the sincerity of the Union witness who testified about the talk with Management that preceded the signing of the agreement, and while we recognize that the Union participants and Grievant may have felt that this talk resulted in a concession by Management to limit attendance violations to alcohol related violations, the evidence as a whole simply does not support the Union’s propositions and instead persuades that such a limitation was not in fact agreed to by the parties.

Rather than demonstrating Plaintiff’s point that the SBA cursorily analyzed the Paragraph 6 dispute without considering the evidence, this excerpt shows that the Plaintiff’s evidence was considered and rejected in the face of counterveiling evidence. From this excerpt alone, the Court could find that Plaintiff’s characterization of the opinion as baseless is simply without merit.

Defendant EASTERN argues, and indeed the record reflects, that the testimony presented by Plaintiff and Defendant EASTERN was conflicting. It appears from the SBA opinion that the SBA, after reviewing all of the evidence, found the company’s witnesses to be more credible and accordingly, upheld the discharge. The fact that Plaintiff may have desired a different interpretation of the evidence before the SBA falls far short of the necessary showing that the award was not based in reason or fact. When the Collective Bargaining Agreement provides for settlement of disputes by arbitration, as is the case here, the Court may not review the merits of the grievance.

Plaintiff also seeks this Court’s review of the parol evidence pertaining to Paragraph 6 of the Return to Work Agreement. This is an improper request given the limited scope of the Court’s reviewing powers under the cited Railway Labor Act provision and the pertinent caselaw. In fact, the SBA did consider the parol evidence regarding the alleged intentions of the parties. The foregoing excerpt attests to such consideration. Taken as a whole, the SBA opinion clearly has some basis in fact and reason. The Court cannot substitute its interpretation of the Return to Work Agreement and the evidence surrounding its execution. Plaintiff has not presented any evidence which would justify the overturning of the SBA opinion. This Court, must therefore AFFIRM the SBA award because it is in compliance with the Railway Labor Act and the award is devoid of fraud and confined to matters within the SBA’s jurisdiction.

3. Whether the Instant Action is Time Barred by the Applicable Statute of Limitations

The final issue concerns Defendant’s contention that the instant action is time barred because it was not filed within the 90 period allowed under the Florida Arbitration Code. The 90 day requirement under the Florida Arbitration Code is not applicable to the case at bar. Instead, the applicable limitations period for bringing suit on an arbitration decision rendered under the Railway Labor Act is six months. This was made clear in the Supreme Court decision of DelCostello v. International Brotherhood of Teamsters, 462 U.S. 151, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983). This Court has applied the six month limitations period articulated in DelCostello in the case of Leslie Eisenberg v. Trans World Airlines, et. al., Case No. 83-2681-Civ-Marcus (formerly Aronovitz) (“Eisenberg”). Although Eisenberg involved alleged ERISA violations, that case like the one at bar, was brought pursuant to the Railway Labor Act. Applying the DelCostello statute of limitations period to the case at bar, it is clear that Plaintiff’s lawsuit was timely filed. The SBA award was rendered on March 11, 1983. The instant action was filed less than four months later on July 8, 1983. This case was therefore brought within the six month time period allowed under DelCostello. Accordingly, the action is not, contrary to Defendants’ assertion, time barred.

Conclusion

As to the first issue, the Court holds that under the undisputed facts, Plaintiff has not demonstrated a basis for finding the Defendant UNION liable for a breach of the duty of fair representation. Under any standard, whether it be the more lenient one enunciated in Vaca v. Sipes, supra, or the alleged tougher one Defendants assert pursuant to Lockridge, supra, Plaintiff has not fulfilled his burden of demonstrating that the Defendant UNION breached its duty of fair representation. The record facts indicate that Defendant UNION’S actions in processing Plaintiff’s grievance were done in a good faith, non-arbitrary and non-discriminatory manner. With respect to the second issue, the record facts establish that the SBA award was in compliance with the Railway Labor Act and confined to matters within the SBA’s jurisdiction. Further, Plaintiff has not demonstrated that the subject SBA award was tainted with fraud. As such, pursuant to the Gunther “wholly baseless and without reason” standard, the Court must affirm and uphold the SBA award. The first two issues then, are resolved in favor of Defendants. The third issue, regarding the statute of limitations, is resolved in favor of Plaintiff. Under the DelCostello six month statute of limitations, the instant case was timely filed. Still resolution of the third issue in favor of Plaintiff does not alter the ultimate outcome of the matter. Final Summary Judgment shall be entered in favor of both Defendants in accordance with the ruling herein.

DONE AND ORDERED in Chambers at Miami, Florida, this 29 day of November, 1985.

       Occasional sentences lifted from their context might make it seem that invidious hostility or some sort of malice is always required, see e.g., ... Lockridge ..., but the treatment of the issue in Hines v. Anchor Motor Freight, Inc., (96 S.Ct. 1048 [96 S.Ct. 1048, 47 L.Ed.2d 231] (1976)), ... leaves little doubt that such has not become the law. Nor do we think a fair reading of Lockridge ... really supports (the defendant Union’s) argument.


author: JOSEPH H. YOUNG, District Judge.

text:
    UNITED STATES of America v. Samuel L. MORISON.
    Grim. No. Y-84-00455.
    United States District Court, D. Maryland.
    Nov. 29, 1985.
    Catherine C. Blake, U.S. Atty., Michael Schatzow, and John G. Douglass, Asst. U.S. Attys., Baltimore, Md., for plaintiff.
    Jacob A. Stein, Robert F. Muse, Rock-ville, Md., Armistead P. Rood, and Mark H. Lynch, Washington, D.C., for defendant.
   MEMORANDUM

JOSEPH H. YOUNG, District Judge.

On October 9, 1985, the second day of trial in the case of United States v. Morison, Y-84-0455, the government moved to exclude testimony which relates to the patriotism of defendant. The testimony was given in the form of depositions which were taken before trial and which are to be presented to the jury on videotape. Transcripts of the testimony of the two witnesses, Sidney Jackson and Derek Wood, were provided to the Court prior to the motion. In support of their motion, government argued that patriotism does not relate to any issue in this case. In contrast, defense asserted that patriotism is a character trait which is pertinent to the issue of whether defendant intended to release a document or photograph that was potentially damaging to the national defense, and that this is a central issue in this case. This Court ruled orally on October 9, 1985, that the evidence of patriotism is irrelevant but that it would be willing to further consider the issue upon submission of briefs on the issue. On the morning of October 10, 1985, defense submitted a memorandum of law relating to the admissibility of character testimony. The Court reconsidered arguments in the memorandum and brief additional oral arguments presented on October 10, 1985, and affirms its prior determination for the reasons stated herein.

The standard for admissibility of character evidence is set out in Rule 404 of the Federal Rules of Evidence. Under this rule, evidence of the defendant’s character is not admissible for the purposes of proving that he did not do a specific act, except when the evidence is of a “pertinent trait of his character.” Fed.R.Evid. 404(a)(1). “Pertinence,” for the purposes of this rule, has been construed to be synonymous with relevance. United States v. Angelini, 678 F.2d 380 (1st Cir.1982); United States v. Staggs, 553 F.2d 1073 (7th Cir.1977). Where the characteristic is relevant, the evidence should be admitted. United States v. Staggs, 553 F.2d at 1075. Relevance can only be determined with close attention to the government’s burden of proof and the scope of the issues in this case.

Under 18 U.S.C. § 793(d) and (e), the government must show that the defendant wilfully transmitted photographs relating to the national defense to a person not entitled to receive them (Count I), and that he wilfully retained documents and failed to deliver them on demand to the officer or employee of the United States entitled to receive them (Count 3). These are the counts to which defendant relates evidence of patriotism. No showing of an evil purpose is required under this statute. Instead, the government must prove wilfullness, which requires a showing that the defendant did the prohibited acts deliberately and with a specific purpose to do that which was prohibited. United States v. Morison, 604 F.Supp. 655 (1985). Proof of the most laudable motives, or any motive at all, is irrelevant under this statute.

At this point in the trial, there is no question that the defendant did deliver the photographs to “Jane’s Defense Weekly” and did retain the documents in his home. Defendant is not contesting these points and has demonstrated his willingness to concede them by waiving his right to have an oral admission suppressed. Thus the remaining issues are the defendant’s access to the photographs and/or documents, the “wilfulness” of the act, and the photographs’ and/or documents relation to national defense. Patriotism is clearly irrelevant to issues of both access and relation of the documents to the national defense. National defense is not a subjective test; it does not matter whether the defendant himself believed that the photographs and/or documents did indeed relate to the national defense. It is purely an objective test, and one for the jury to decide after considering all of the evidence.

As explained in the opening jury instructions, there are two elements to the definition of “relating to the national defense.” The first element is that disclosure of the photograph and/or document would be potentially damaging to the United States, or might be useful to an enemy of the United States; the second is that those same items are “closely held” in that the relevant government agency has sought to keep them from the public generally and that these items have not been made public and are not available to the general public. Defendant’s patriotism or lack of patriotism has no bearing on any element of this issue.

The defense argues that patriotism is relevant to the issue of wilfulness because wilfulness requires a showing of evil intent or bad motive. Defendant asserts that the government must not only show that the defendant intentionally transmitted the specified items, but also that he intentionally transmitted the specified items in order to potentially damage the national defense. In arriving at this interpretation, the defense has incorrectly read the statute, which states that the defendant having access to items or information relating to the national defense is guilty of a crime if he “willfully communicates, delivers, transmits ... or willfully retains and fails to deliver...” those items or information. 18 U.S.C. § 793(d) and (e). The governments must show a bad purpose to break the law by delivering or retaining the items, but a showing of an underlying purpose to damage the national defense is entirely unnecessary and irrelevant. Once again, the defendant is trying to inject a non-existent subjective element into the statute. It is irrelevant whether the defendant personally believed that the items related to the national defense, and his underlying motive is equally irrelevant. A showing of wilfulness only requires that he knew he was doing something that was prohibited by law.

It is also worthwhile to note, for the purpose of clarity, that the first half of both parts (d) and (e) of 18 U.S.C. § 793 defines the types of items and or information which is unlawful to either retain or transmit. It defines all types of tangibles: “any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense,” and also describes intangibles: “information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation.” The language “has reason to believe” does not create a subjective test for the entire statute and does not change or modify the meaning of wilfulness. Instead, it modifies and explains what type of information is included within the statute’s scope.

For these reasons, evidence of the defendant’s patriotism is irrelevant to the issues raised in 18 U.S.C. § 793(d) and (e), and differs from the cases cited by defendant in which a variety of personality traits were held to be relevant to the issues at hand. Thus this Court’s original ruling on the government’s motion to exclude testimony which relates to the character trait of patriotism has been reconsidered and is affirmed.


author: NANGLE, Chief Judge.

text:
    Donald L. TAYLOR, Plaintiff, v. UNIDEN CORPORATION OF AMERICA, et al., Defendants.
    No. 85-345C(1).
    United States District Court, E.D. Missouri, E.D.
    Nov. 29, 1985.

      Steven G. Schumaier, Clayton, Mo., for plaintiff.
    James E. McDaniel, St. Louis, Mo., Susan K. Chandler, Los Angeles, Cal., William J. Travis, Paul D. Kingsolver, St. Louis, Mo., for defendants.
   MEMORANDUM

NANGLE, Chief Judge.

This cause is now before the Court on the separate motions of defendants Uniden Electronics of Hong Kong, Ltd. and Uniden Corporation of Japan to dismiss for lack of personal jurisdiction and the motion of Uni-den Corporation of Japan to quash service of process.

I. PERSONAL JURISDICTION

Plaintiff, a citizen of Missouri, alleges injuries arising out of his use of a cordless telephone manufactured by defendants, corporations under the laws of Hong Kong and Japan respectively. Defendants argue that plaintiffs pleadings are insufficient to satisfy the Missouri long-arm statute because plaintiff fails to allege contacts with Missouri. Defendants also argue that the exercise of jurisdiction over them violates due process because plaintiff fails to demonstrate that defendants purposefully availed themselves of the privileges of conducting activities within Missouri. In responding to these arguments, plaintiff relies upon the “stream of commerce” theory of jurisdiction.

In passing on a motion to dismiss for lack of jurisdiction over a non-resident, a federal diversity court is required to engage in a two-step inquiry: first, whether defendant committed one of the acts enumerated in the long-arm statute; and second, whether the exercise of personal jurisdiction over defendant violates the due process clause of the fourteenth amendment. The Land-O-Nod Company v. Bassett Furniture Industries, Inc., 708 F.2d 1338 (8th Cir.1983); Scullin Steel Co. v. National Railway Utilization Corp., 676 F.2d 309, 312 (8th Cir.1982). Plaintiff, the party that is seeking to invoke federal jurisdiction, has the burden of establishing that jurisdiction exists, and this burden may not be shifted to the party challenging the jurisdiction. Mountaire Feeds, Inc. v. Agro Impex, S.A., 677 F.2d 651, 653 (8th Cir.1982). While the facts are viewed in the light most favorable to the plaintiffs, “there must nonetheless be some evidence upon which a prima facie showing of jurisdiction may be found to exist____” Aaron Ferer & Sons Co. v. Diversified Metals Corp., 564 F.2d 1211, 1215 (8th Cir.1977) (citations omitted). See also Data Disc, Inc. v. Systems Technology Associates, Inc., 557 F.2d 1280, 1285 (9th Cir.1977) (plaintiff need only make a prima facie showing of jurisdictional facts through submission of affidavits plus discovery materials); Greycas, Inc. v. Anderson, 584 F.Supp. 894, 895-96 (E.D.Mo.1984); 4 Wright & Miller, Federal Practice and Procedure § 1068 at 250 (1969).

Missouri’s Long-Arm statute provides in part:

1. Any person or firm, whether or not a citizen or resident of this state, or any corporation, who in person or through an agent does any of the acts enumerated in this section, thereby submits such person, firm, or corporation, and, if an individual, his personal representative, to the jurisdiction of the courts of this state as to any cause of action arising from the doing of any such acts:
(1) The transaction of any business within this state;
(2) The making of any contract within this state;
(3) The commission of a tortious act within this state;
(4) The ownership, use, or possession of any real estate situated in this state;
(5) The contracting to insure any person, property or risk located within this state at the time of contracting.
(6) Engaging in an act of sexual intercourse within this state with the mother of a child on or near the probable period of conception of that child.
2.....
3. Only causes of action arising from acts enumerated in this section may be asserted against a defendant in an action in which jurisdiction over him is based upon this section.

Mo.Rev.Stat. § 506.500 (Supp.1984).

The due process clause of the fourteenth amendment places limits upon the power of a court to exercise personal jurisdiction over a non-resident defendant. The due process clause requires that a defendant have certain minimum contacts with the forum state such that the maintenance of the suit does not offend “traditional notions of fair play and substantial justice.” International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945); Land-O-Nod, 708 F.2d at 1340. Accord World Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980); Kulko v. California Superior Court, 436 U.S. 84, 98 S.Ct. 1690, 56 L.Ed.2d 132 (1978). “In judging minimum contacts, a court properly focuses on ‘the relationship among the defendant, the forum, and the litigation.’ ” Calder v. Jones, 465 U.S. 783, 104 S.Ct. 1482, 1486, 79 L.Ed.2d 804 (1984) (citations omitted). See also Helicopteros Nacionales de Colombia S.A. v. Hall, 466 U.S. 408, 104 S.Ct. 1868, 1872, 80 L.Ed.2d 404 (1984). The defendant’s contacts with the forum state must be purposeful and such that defendant “should reasonably anticipate being haled into court there.” World Wide Volkswagen, 444 U.S. at 297, 100 S.Ct. at 567. See also Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 1239, 2 L.Ed.2d 1283 (1958).

In this circuit, the due process standard has devolved into a consideration of five factors:

(1) the nature and quality of the contacts with the forum state; (2) the quantity of the contacts with the forum state; (3) the relation of the cause of action to the contacts; (4) the interest of the forum state in providing a forum for its residents; and (5) the convenience of the parties.

Aaron Ferer & Sons Co. v. Diversified Metals Corp., 564 F.2d 1211, 1215 (8th Cir.1977). See Land-O-Nod, 708 F.2d at 1340. The first three factors are of primary importance and the last two are of secondary importance. Id.

The Court begins by examining the pleadings to determine whether they satisfy the requirements of the long-arm statute. Plaintiff alleges injuries resulting from use of defendants’ telephone. Plaintiff also alleges that defendants manufacture, design, distribute, sell, and wholesale Uniden cordless telephones and that these telephones were placed into the stream of commerce of the United States reaching every state including Missouri. Defendants’ argument rests upon a narrow, technical construction of the pleadings. Essentially, defendants argue that plaintiff’s pleadings are insufficient because they fail to allege that defendants ever sold telephones in Missouri. The pleadings, defendants argue, demonstrate only an intention to market telephones in the United States.

It is the trial court’s duty to construe all pleadings so as to do substantial justice, Fed.R.Civ.P. 8(f). Granted, plaintiff does not allege sales in Missouri explicitly. Nevertheless, plaintiff alleges sufficient facts to provide defendants adequate notice. Though the pleadings do not reveal the volume of sales within Missouri, it is reasonable to assume that substantial sales occurred here. See Gray v. American Radiator & Standard Sanitary Corp., 22 Ill.2d 432, 176 N.E.2d 761 (1961). Indeed, defendants have submitted affidavits stating that it sold two and one-half million cordless telephones in the United States. Thus, plaintiff’s complaint alleges a tort within Missouri arising out of the sale of defendants’ cordless telephone and, therefore, satisfies the Missouri long-arm statute.

In their second argument, defendants assert that plaintiff’s allegations are insufficient because they fail to show any contact between defendants and Missouri. Defendants argue that an allegation that defendants placed their product in the stream of commerce does not lead to the conclusion that defendants purposefully availed themselves of the privileges afforded by Missouri law.

Both sides rely upon Worldwide Volkswagen, in which a fortuitous accident in Oklahoma involving a car sold in New York did not provide a sufficient contact between Oklahoma and the New York dealer. As the Supreme Court specified, a corporation must engage in activities within the forum seeking to assert jurisdiction such that the corporation could foresee being haled into court there. 444 U.S. at 297, 100 S.Ct. at 567. When the sale of a product arises from the efforts of the manufacturer or distributor to serve, directly or indirectly, the market for its product in certain states, it is not unreasonable to subject it to suit in one of those states if its allegedly defective merchandise has been the source of injury to its owner or to others. 444 U.S. at 297, 100 S.Ct. at 567. On the basis of this dicta, numerous courts have distinguished between retailers who restrict their sales to a local market and manufacturers and upstream distributors who seek a broader market for their product. See Hedrick v. Daiko Shoji Company, Ltd., Osako, 715 F.2d 1355 (9th Cir.1983); Nelson By Carson v. Park Industries Inc., 717 F.2d 1120 (7th Cir.1983); Noel v. S.S. Kresge Co., 669 F.2d 1150 (6th Cir.1982); Oswalt v. Scripto, Inc., 616 F.2d 191 (5th Cir.1980); Hutson v. Fehr Brothers, Inc., 584 F.2d 833 (8th Cir.1978) (Stephenson, J. dissenting); Rockwell Intern. Corp. v. Costruzioni Aeronautiche, 553 F.Supp. 328 (E.D.Pa.1982); Asahi Metal Industry Co. v. Superior Court of Solano County, 39 Cal.3d 35, 702 P.2d 543, 216 Cal.Rptr. 385, 702 P.2d 543 (1985).

In Hedrick v. Daiko Shoji Company, Ltd., Osako, 715 F.2d 1355 (9th Cir.1983), the plaintiff, a longshoreman, sued for personal injuries resulting from a defective wire-rope splice manufactured by Daiko, a foreign defendant. As the Ninth Circuit held, the defendant performed a forum-related act when it produced a splice that it knew was destined for ocean-going vessels serving United States ports. 715 F.2d at 1358. The court distinguished between Daiko, which distributed its products worldwide, and the dealer in Worldwide Volkswagen, which restricted its market to three northeastern states.

Similarly, in Oswalt v. Scripto, Inc., 616 F.2d 191 (5th Cir.1980), the Fifth Circuit upheld the district court’s exercise of jurisdiction over a foreign manufacturer. The manufacturer sold millions of cigarette lighters to a domestic distributor for sales across the United States. Eventually, one of these lighters injured the plaintiff in Texas. Since the manufacturer did not attempt to restrict the number of states in which the lighters were sold, the court found that the manufacturer could reasonably anticipate defending itself in a state in which its lighters were in fact sold. 616 F.2d at 200.

In Hutson v. Fehr Brothers, Inc., 584 F.2d 833 (8th Cir.1978), the plaintiffs alleged they were injured while working in a lumber yard when a chain broke. The chain had been manufactured abroad and reached Arkansas after a series of transactions between foreign and domestic distributors. The defendant had neither manufactured the defective chain nor sold or marketed it in the United States. The defendant’s only connection with the chain was that at one time it repacked and resold it to another company which resold the chain to its own American subsidiary. By a four-to-three majority, the court held that the defendant did not purposefully avail itself of the privilege of conducting business in the forum state. The facts of the instant case distinguish it from Hutson. Here, the telephone passed directly from the manufacturer to the manufacturer’s wholesale distributers in the United States. Thus, the manufacturer and upstream distributors were aware of, if not in complete control of, the scope of retail distribution. In addition, the law of personal jurisdiction has changed somewhat. The stream of commerce theory, discredited by the majority in Hutson, won favor in Worldwide Volkswagen and subsequent eases. In his dissent in Hutson, Judge Stephenson anticipated the reasoning of Worldwide Volkswagen:

It is not essential to personal jurisdiction that [the defendant] knew that its product was being sold in Arkansas. It is enough that [the defendant] could reasonably anticipate that its product sold through an exclusive distributorship in North America might ultimately be used in any state of the United States and it would be held to answer in any such state for the damage the product caused. The manufacturer cannot deny the substantial interest of the injured person’s state in providing a convenient forum for its citizens.
A corporation is answerable where it introduces its product into the stream of interstate commerce if it has reason to know or expect that its product would be brought into the state where the injury occurred. Where the activities complained of create a substantial risk of injury in the forum state, direct contact with that state is not essential.

584 F.2d at 839 (citations omitted).

The above cases establish that a manufacturer may be subject to a particular forum’s jurisdiction, without direct contact with that forum, by intentionally distributing its products to a market which includes that forum. This Court must now apply that principle to the instant facts to determine whether defendants have contacts with Missouri sufficient to satisfy due process. Though defendants maintain no office in Missouri and engage in no advertising here, defendants marketed their cordless telephones throughout the United States, including Missouri, selling over two and one-half million telephones. In addition, plaintiff’s injuries resulted from the use of one of these allegedly defective telephones. These facts establish contacts between defendants and Missouri. Considering these facts in light of the factors sent out by the Eighth Circuit in Aaron Ferer, this Court finds that defendants’ contacts with this forum are substantial in both quality and quantity and that plaintiff’s causes of action arose out of these contacts. Defendants sought to gain by sales within Missouri and enjoyed the privileges of Missouri law in so doing. Therefore, the exercise of jurisdiction over these defendants comports with traditional notions of fair play and substantial justice implicit in the constitutional requirement of due process. Accordingly, defendants’ motions to dismiss for lack of personal jurisdiction are denied.

II. SERVICE OF PROCESS

Defendant Uniden Corporation of Japan moves to quash service of process on the ground that plaintiff’s complaint was not served in compliance with the Hague Convention on the Service of Documents, Feb. 10, 1969, 20 U.S.T. 361, T.I.A.S. No. 6638. This Court finds that plaintiff complied with the requirements of the Convention in effecting service.

The Hague Convention is a treaty between several signatory countries, including the United States and Japan, concerning the method of serving judicial documents in foreign countries. Article 2 of the Hague Convention provides for the designation of a Central Authority of each foreign state through which service of process may be routed. Article 5 permits the Central Authority to require the document to be served translated into the official language of the nation. In Japan, documents must be translated into Japanese. Under Article 4, if the party seeking to serve documents does not comply with the provisions of the Convention, the Central Authority may object. The Convention also provides that a request form accompany the document to be served. When completed by the party seeking service, the form provides details such as the names of the parties, the type of service requested, and a list and summary of documents to be served.

Plaintiff translated its summons and complaint into Japanese. The issue presented is whether the request form must also be translated.

Article 5 provides that only the document to be served need be translated. The “document” refers only to the judicial document, not the request form. Though the final paragraph of Article 5 provides that the portion of the request form summarizing the documents be served with the documents, ' this provision does not require translation of the request form. Consistent with the preamble of the Convention, the request form is designed to simplify and expedite service by providing the Central Authority with information in a standardized fashion. In this case, if the Japanese authority found the form or documents inadequate, it could have objected under Article 4. It has not done so. Defendant has received the translated summons and complaint and can demonstrate no prejudice resulting from the procedures followed by the plaintiff. Therefore, this Court denies defendant's motion to quash service.


author: SKINNER, District Judge.

text:
    FRONTIER MANAGEMENT CO., INC., et al., Plaintiffs, v. BALBOA INSURANCE COMPANY, et al., Defendants.
    Civ. A. No. 85-4220-S.
    United States District Court, D. Massachusetts.
    Dec. 2, 1985.

      James E. Grumbach, Morrison, Mahoney & Miller, Boston, Mass., for plaintiffs.
    Jeffrey Swope, Palmer & Dodge, Boston, Mass., for defendants.
   MEMORANDUM AND ORDER ON PLAINTIFFS’ MOTION FOR A PRELIMINARY INJUNCTION

SKINNER, District Judge.

In this diversity action, plaintiffs seek to enjoin the defendants from terminating a managing general agency agreement (“MGA Agreement”). On November 13, 1985, I issued an ex parte temporary restraining order preventing the defendants from cancelling the MGA Agreement, and on November 20, 1985, a hearing was held on plaintiffs’ motion for a preliminary injunction.

Briefly, this dispute concerns the decision by defendants Balboa Insurance Company, Meritplan Insurance Company and Newport Insurance Company (collectively “Balboa”) to get out of the taxi and related nonstandard automobile insurance business. Since 1983, Balboa has provided liability insurance for taxis, limousines, non-emergency medical vehicles, airport vans and social service vehicles (the “Public Transportation Program”) in 48 states. Balboa operates as a “fronting” company in providing this insurance. As the fronting company, Balboa receives a percentage of the premiums for insurance written under the Public Transportation Program. However, the Program is administered by a managing general agent, originally Southern Underwriting Managers, Inc., pursuant to the MGA Agreement, and all risk of loss for the insurance issued under the Program is transferred to Balboa’s reinsurer, Omaha Indemnity, pursuant to a Reinsurance Agreement.

On June 28,1984, Southern Underwriting Managers, Inc. assigned the rights and liabilities under the MGA Agreement to plaintiff Frontier Management Co., Inc. (“Frontier”). The assignment was accepted by Balboa on December 21, 1984. As managing general agent, Frontier actually underwrites and produces the insurance policies, binds the risks, sets the rates, handles and pays claims, appoints producers (agents and brokers), and collects the premiums. Pursuant to the MGA Agreement, Frontier acts as managing general agent in 48 states, including Massachusetts. Although one of Frontier’s agents and brokers, plaintiff Jacques and Company Insurance Agency, Inc. (“Jacques”), is a licensed insurance agent in Massachusetts, Frontier is not licensed. Frontier has no business other than the Public Transportation Program.

On September 9, 1985, Balboa notified Frontier that, due to “changes in direction and philosophy”, the MGA Agreement would be terminated effective December 31, 1985. Since September 9, Frontier has been unsuccessfully attempting to find a substitute fronting company. This action was filed on November 12, 1985.

Plaintiffs seek a preliminary injunction requiring Balboa to continue the Public Transportation Program until they find a replacement fronting company. In essence, they claim that defendants did not provide enough notice of the cancellation. The MGA Agreement, ¶ 11, requires 90 days’ notice before termination other than for cause. Balboa actually gave Frontier 112 days’ notice of the intended cancellation.

To obtain a preliminary injunction, a plaintiff must demonstrate:

(1) that plaintiff will suffer irreparable injury if the injunction is not granted; (2) that such injury outweighs any harm which granting injunctive relief would inflict on the defendant; (3) that plaintiff has exhibited a likelihood of success on the merits; and (4) that the public interest will not be adversely affected by the granting of the injunction.

Planned Parenthood League of Mass. v. Bellotti, 641 F.2d 1006, 1009 (1st Cir.1981), quoting Women’s Community Health Ctr., Inc. v. Cohen, 477 F.Supp. 542, 544 (D.Me.1979). I find that, while the three other requirements may have been satisfied, plaintiffs have not demonstrated a likelihood of success on the merits of their claims so as to warrant the requested injunction. Accordingly, the motion for a preliminary injunction must be denied in great part.

In the complaint, plaintiffs set forth six causes of action: breach of contract, promissory estoppel, defamation, and violation of various provisions of M.G.L. c. 175. For reasons which will become apparent, the hearing on the preliminary injunction focused upon the alleged statutory violations, and I will begin discussion with them.

Plaintiffs’ strongest claim that the notice was inadequate despite the fact that it apparently satisfied the requirements of the MGA Agreement is that the notice was less than the 180 days required by M.G.L. c. 175, § 163, which provides, in pertinent part:

No company shall cancel the authority of any independent insurance agent for ... casualty insurance ... if said agent is not an employee of said company ... unless the company gives written notice of its intent to cancel ... at least one hundred and eighty days before the proposed effective date of such cancellation
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Any insurance company and any insurance agent may by written contract agree to modify the provisions of the preceding two paragraphs, other than the requirement of a one-hundred-eighty day notice in the event of a cancellation

However, as defendants argue, it seems unlikely that this section applies to the instant situation. Section 163 is not specific, but it apparently pertains to the situation in which an insurance company switches from one agent to another rather than a situation, like the instant case, where an insurance company stops writing a line of insurance. This is apparent from the remedy provided by the statute. A terminated agent may seek reference to referees who will make a finding regarding

whether or not such cancellation ... will so affect the renewal, continuation or replacement of any policies placed with the company through the efforts of the agent, or the services needed by any policyholder doing business with the company as a result of the efforts of the agent, as to justify renewal or continuation of any policies then in effect having been placed with such company by such agent.

M.G.L. c. 175, § 163. In other words, the referees must determine whether cancellation of the agency relationship will have an effect on the continued policies. If the referees find the required effect, the affected policies must be renewed and the cancelled agent given compensation for an additional year. Id. In this case, all policies will terminate on December 31,1985, so the situation contemplated by § 163 does not exist and the section does not apply.

Further, § 163 does not apply to this case because it applies solely to agreements between licensed insurance agents and insurance companies. Frontier is not a licensed insurance agent. Plaintiffs allege that plaintiff E. Cooper Jacques assigned his insurance agency license to Frontier. Neither party has cited any persuasive authority relating to the validity of such an assignment, but the language of § 163 indicates that an agent’s license is personal and cannot be assigned. In light of the above, I conclude that it is unlikely that Frontier will succeed in demonstrating that § 163 applies to this case.

Plaintiffs next argue that M.G.L. c. 175, § 193R, which prohibits an insurer from modifying the rates applicable to certain group marketing plans, prevents Balboa from cancelling the program. The first question is whether § 193R applies. The section only covers “motor vehicle insurance”, defined as

any policy of insurance or bond as defined in section thirty-four A of chapter ninety or described in this chapter insuring private passenger vehicles for individuals.

M.G.L. c. 175, § 193R. The parties differ in their reading of this definition as to whether the phrase “insuring private passenger vehicles for individuals” modifies both the “policies ... defined in section thirty-four A of chapter ninety” and “described in this chapter”. I would read it to modify both phrases, thus possibly barring application of the section to a program of insurance for commercial taxis and limousines, which may not be considered “private passenger vehicles”. However, the Massachusetts Division of Insurance has opined that the Continental Transportation Association, Inc., an association of taxicab and truck owners insured through the Public Transportation Program, is an association which may purchase a group policy on behalf of its members under § 193R. See Letter from Victor A. Fanikos, Counsel, Massachusetts Division of Insurance, to David M. Donovan, Vice President, Jacques & Company Insurance Agency, Inc. (November 8, 1983). I need not decide this question because the portion of § 193R which is alleged to apply to this case only states that

every insurer providing insurance in accordance with this section shall keep ... data on the losses and expenses ... and shall not be allowed to offer any such insured a modification of the rates so fixed ... unless data on such losses and expenses for at least three policy years shows ... that such modification is in fact justified.

M.G.L. c. 175, § 193R. This section does not purport to prevent a party from cancel-ling the group insurance, a possibility which is explicitly mentioned in the paragraph preceding the quoted language. The plaintiff has not demonstrated a reasonable likelihood that this section applies.

Plaintiffs also assert the defendants have violated M.G.L. c. 175, §§ 22H and 113F. Defendants have acknowledged that § 22H applies. As Balboa has not requested that the Commissioner of Insurance make a written determination that its refusal to issue new motor vehicle insurance policies is “justifiably required to protect the solvency” of the company, as required by the statute, it seems very likely that Balboa will be in violation of the statute on January 1, 1986, the effective date of non-renewal. See Maryland Casualty Co. v. Commissioner of Insurance, 372 Mass. 554, 560, 363 N.E.2d 1087 (1977). However, § 22H provides an express remedy when an insurer refuses to write motor vehicle liability policies without the requisite written determination: following a hearing and findings that the refusal was not justified by protection of solvency and is contrary to the public interest, the Commissioner

shall suspend such company’s licenses to issue or sell any other form of insurance within the commonwealth until such company resumes the issuance or renewal of motor vehicle liability policies ...

M.G.L. c. 175, § 22H. The Supreme Judicial Court has determined that the sole sanction for violation of § 22H is that provided in that section. Maryland Casualty Co. v. Commissioner of Insurance, 372 Mass, at 570-571 and n. 16, 363 N.E.2d 1087. Although the Maryland Casualty decision concerned the application of other sanctions in proceedings before the Commissioner, not in a private action, it is likely that the same reasoning controls and bars granting other relief under § 22H in this case. I note that the section does not require prior approval of the cancellation by the Commissioner.

Section 113F requires that any insurance company

which does not intend to issue, extend or renew a motor vehicle liability policy ... shall, if said policy ... is in full force and effect forty-five days prior to the termination date of the policy, give written notice of its said intent on or before the aforesaid forty-fifth day____ Such notice shall ... be sent to the registrar of motor vehicles ... and shall also be sent either to said insured or to the insurance agent of the company ... who negotiated the issue of the policy____
******
Any company failing to send notice ... shall, upon request of such insured ..., issue a new policy ... as to at least the amount of coverages provided by the expiring policy ... and shall recognize the agent ... designated by the insured in the same manner as provided by any contract, custom, or usage then in effect between such agent ... and such company.

M.G.L. c. 175, § 113F. Balboa apparently has not sent any such notice. The remedy provided by the section, however, must be sought by the insured, not by an agent or by a managing agent — a role not referred to in the statute. Plaintiffs thus cannot use this statute as a basis for a claim. Should an insured later seek a renewal of its insurance under this provision, Balboa may have to become an insurer in fact, rather than a mere fronting company.

In light of the above, I conclude that plaintiffs have not shown a reasonable likelihood of succeeding on the merits of their statutory claims. The breach of contract and promissory estoppel claims may be more briefly disposed of. Plaintiffs’ claim for breach of contract requires that the 180-day notice requirement of M.G.L. c. 175, § 163 be read into the MGA Agreement, which only provides for 90 days’ notice. I have already held that § 163 probably does not apply to this case. Accordingly, it may not be read into the MGA Agreement. The promissory estoppel claim is based on representations allegedly made at a meeting of Balboa managing general agents held in the spring of 1985. See Affidavit of Irwin C. Keightly, Jr., ¶ 6. Frontier alleges that in reliance on this unspecified long term commitment to the program, it expanded its insurance operations in 1985 far beyond those of 1984. However, this detrimental reliance does not provide the basis for a preliminary injunction requiring continuation of the program into the future. The resulting extra expenditure may be compensated for in a damage award.

Plaintiffs’ final claim is for defamation by “false statements, misrepresentations and disparaging comments”. Complaint ¶ 34. Plaintiffs specifically allege that defendants have falsely stated that the Program was unprofitable and the losses understated. Complaint ¶ 35. In addition, they claim that defendants have refused to provide certain information and fair references on Frontier’s behalf. Complaint ¶¶ 36, 37. This allegation is supported by a letter dated October 21, 1985 from Robert J. Lindquist, Executive Vice President of Balboa, to David M. Donovan of Frontier. Keightly Affidavit, Exhibit D. In order for Frontier to obtain a replacement carrier, Balboa must provide two pieces of information to potential replacement carriers: that it was acting only as a fronting company and that Frontier made all payments due in a timely manner. Affidavit of David M. Donovan ¶ 7, Exhibit B; Keightly Affidavit 118.

While plaintiffs have stated a cause of action for defamation, see Mabardi v. Boston Herald Traveler Corp., 347 Mass. 411, 198 N.E.2d 304 (1964), the lack of specificity with regard to the allegedly defamatory comments and the persons to whom they were made bars entry of the broad injunction requested by plaintiffs. It is not reasonably likely that plaintiffs will prevail on all parts of their claim of defamation. However, the defendants’ allegedly false statements concerning the profits and losses under the Program are sufficiently specific and ascertainable to warrant an injunction. Defendants’ refusal to provide information to potential replacement carriers is an unfair business practice and also merits relief. The injury to plaintiffs’ search for a replacement carrier by such statements and refusals is clearly irreparable; requiring accurate statements in these areas will not harm defendants; and the public interest will be served by an injunction which will ease the task of finding a replacement carrier.

Accordingly, the temporary restraining order entered on November 13, 1985 is VACATED. Defendants are enjoined from making false statements that the Program was unprofitable and the losses understated and are required to provide potential replacement carriers who request information with accurate information about Balboa’s role in the Program and whether Frontier made payments due in a timely manner. Plaintiffs’ motion for a preliminary injunction is otherwise DENIED.

      . Balboa claims that its September 9, 1985, letter gave "in excess of 90 days’ notice, more than adequate to comply with section 113F”. Defendants’ Memorandum at 9. However, § 113F requires that the notice shall be sent to either the insured or the licensed insurance agent who executed the policy in question. As defendants have argued with reference to § 163, Frontier is not a licensed insurance agent. Defendants do not claim to have sent notice to Jacques. In this situation, the statute may require the insurer to send notice to the insureds in the standard form prescribed by the Commissioner. M.G.L. c. 175, § 113F.