text:
    VARI-BUILD, INC., a Nevada corporation, Plaintiff, v. CITY OF RENO, Barbara Bennett, Jim Thornton, Janice Pine, Peter Sferrazza, Joe McClellan, Phil Herrington, Leann McElroy, Robert S. Shoemaker, Defendants.
    No. CV-R-83-250-ECR.
    United States District Court, D. Nevada.
    Oct. 10, 1985.

      Cal Hoover, Reno, Nev., for plaintiff.
    Charles L. Eddleman, Asst. City Atty., Reno, Nev., for defendants.
   MEMORANDUM DECISION AND ORDER

EDWARD C. REED, Jr., District Judge.

The plaintiff has moved to dismiss the defendants’ counterclaim. Because matters outside the pleadings were presented, the Court has converted the motion to one for summary judgment. Both sides have been given the opportunity to present materials pertinent to a summary judgment motion. The basis for the motion is that the statute of limitations bars the counterclaim.

The complaint asks damages for the defendants’ failure to issue a business license to the plaintiff for its “common-kitchen” apartment facility. The plaintiff was unable to rent the apartments because of the lack of a business license and lost the facility via foreclosure by its construction lender. The counterclaim alleges that the plaintiff’s application for a building permit for the apartment facility contained false statements. According to the counterclaim, the plaintiff made those false statements knowingly and with an intent to deceive the defendants. Alternatively, the defendants contend, in the counterclaim, that the plaintiff negligently made material misrepresentations in the application for a building permit. In any event, the defendants’ instant motion urges that the statute of limitations bars the counterclaim. The counterclaim originally was filed on October 19, 1984, with the defendants’ answer to the complaint.

The plaintiff applied for a building permit on or about January 30, 1981. The permit was issued February 17, 1981. The last inspection of construction by defendant City of Reno’s Building Department was completed on or about April 20, 1981. A stop-work order then was issued on April 27, 1981. It subsequently was lifted pursuant to court order. The plaintiff’s application for a business license was denied initially on August 6, 1981. The Reno City Council affirmed the denial on August 17, 1981.

The Nevada statute of limitations for actions grounded in fraud or mistake is three years. NRS 11.190(3)(d). It specifies that the cause of action doesn’t accrue until discovery by the aggrieved party of facts constituting the fraud or mistake. The plaintiff insists that the foregoing chronology of events shows that the defendants were aware of facts constituting the purported fraud or mistake longer than three years prior to the filing of the counterclaim on October 19, 1984.

In response, the defendants argue that the record doesn’t reflect when they first discovered that material representations in the application for a building permit were false. They also point out that Fred Gagnon, the principal of the corporate plaintiff, has been absent from Nevada for some time, thus tolling the running of the statute of limitations. Likewise, the defendants contend that the statute was tolled by virtue of injunctive relief obtained by the plaintiff which lifted the stop work order.

The plaintiff has replied to the defendants’ arguments. As to when the defendants first learned of the falsity of the representations in the plaintiff’s application, the defendants’ answer to Interrogatory No. 67 states: “The City had knowledge of the misrepresentation and acted upon that knowledge by issuing a Stop Work Order on April 28, 1981.” The alleged absence from the State of Mr. Gagnon is irrelevant, in the plaintiff’s estimation, since he is not the plaintiff. As a Nevada corporation, the plaintiff has been amenable to service of process under Nevada law despite its principal’s absence from the State, according to the plaintiff. Further, the answer to Interrogatory No. 80 discloses that defendant City of Reno made no attempt to contact Mr. Gagnon personally after October 19, 1981, other than through his counsel subsequent to the commencement of this lawsuit. Also, the plaintiff points out that the injunctive relief obtained against the City merely required the lifting of its stop work order, and did not prevent its bringing of a counterclaim or other legal action.

In supplementary points and authorities, the defendants note that the counterclaim alleges a state cause of action over which the Court has exercised pendent jurisdiction. They argue that it is a compulsory counterclaim and covered by a rule that the limitations period is not a bar so long as the complaint itself was timely filed. The defendants also urge that the statute of limitations was tolled during administrative and judicial appeals compelled by the plaintiff.

The plaintiff has urged, in reply, that the counterclaim was not compulsory. It is based on misrepresentation and fraud, whereas the complaint alleges violation of the plaintiff’s civil rights and negligence. The lack of similarity reflects that neither pleading is dependent on the other, the plaintiff argues. The civil rights violation occurred when the City of Reno reinterpreted its “common-kitchen” ordinances, thus thwarting the plaintiff’s attempt to obtain a business license. Whether the plaintiff made false statements in its application for a building permit is irrelevant to the conduct of the City in reinterpreting its ordinance so as to deny a business license. Therefore, the argument continues, the counterclaim is merely permissive, and not entitled to be related back to the date of the filing of the complaint. The plaintiff also insists that the counterclaim asks for affirmative relief and, therefore, is not in the nature of recoupment. Recoupment, which might not be barred by the statute of limitations, is strictly defensive and may not be the basis for a judgment for damages, according to the plaintiff.

Isolated cases do support the defendants’ contention that a counterclaim arising from the subject matter contained in the complaint relates back to the time of filing of the complaint, thus avoiding the bar of the statute of limitations. E.g., Employers’ Fire Ins. v. Love It Ice Cream, 64 Or.App. 784, 670 P.2d 160, 163 (Or.1983); Azada v. Carson, 252 F.Supp. 988, 989 (D.Haw.1966). However, the general rule of law is to the contrary. A counterclaim for affirmative relief (the defendants’ counterclaim herein seeks compensatory and punitive damages) is an independent cause of action that is subject to the operation of the statute of limitations. 16 A.L.R. 326, 328, Anno: Counterclaim-Bar of Limitation; Nalley v. McClements, 295 F.Supp. 1357, 1360 (D.Del.1969); Chauffeurs, Teamsters, etc. v. Jefferson Trucking, 628 F.2d 1023, 1027 (7th Cir.1980).

On the other hand, where the defendants’ claim is for recoupment, the statute of limitations is not a bar; it may be availed of defensively so long as the plaintiffs cause of action exists. 1 A.L.R.2d 630, 666-67, Anno: Setoff or Counterclaim-Barred Claim; Bull v. United States, 295 U.S. 247, 262, 55 S.Ct. 695, 700, 79 L.Ed. 1421 (1935); Klemens v. Air Line Pilots Ass’n, Intern., 736 F.2d 491, 501 (9th Cir.1984). The cases cited emphasize that the claim in recoupment must concern matters arising out of the same transaction that is the basis for the plaintiff’s claim for relief.

An affirmative judgment (which would result from a counterclaim) may be had for any amount to which the defendants establish their right; i.e., it may exceed the amount to which the plaintiff has proved he is entitled. 16 A.L.R. 326, supra at 327. The same A.L.R. annotation, also at 327, emphasizes that recoupment may reduce or extinguish the plaintiff’s claim, but may not exceed it. Thus, the defense of recoupment does the defendants no good unless the plaintiff otherwise would have prevailed. Bowler v. Leonard, 75 Nev. 32, 333 P.2d 989, 994 (1959).

In determining whether the defendants’ claim in recoupment arises out of the same transaction as gave rise to the plaintiff’s cause of action, a liberal construction is applied. Albright v. Gates, 362 F.2d 928, 929 (9th Cir.1966); Magna Pictures Corp. v. Paramount Pictures Corp., 265 F.Supp. 144, 153 (C.D.Cal.1967). Identity of factual backgrounds is not required as to the opposing claims, but, rather, only a logical relationship between them. Id.; United Artists Corp. v. Masterpiece Productions, 221 F.2d 213, 216 (2nd Cir.1955). The claim of the defendants herein that they suffered damages as a result of the misstatements in the plaintiff's application for a building permit is logically related to the plaintiff's claim of damages resulting from denial of its application for a business license. The construction and use of the “common-kitchen” apartment facility was all part of one unbroken sequence of events.

The defendants’ counterclaim sounding in fraud is barred, therefore, by the three-year statute of limitations. They could not recover any judgment for the fraud, if it were proved, in excess of any judgment the plaintiff might obtain for violation of its civil rights. On the other hand, the defendants are entitled to recoupment up to the amount of the plaintiff's judgment if they can prove the latter’s fraud. This affirmative defense (fraud) has been raised as the Fifth Affirmative Defense in the defendants’ amended answer. It is appropriate to raise the issue of fraud via an affirmative defense. Fed.R.Civ.P. 8(c). Likewise, negligence by the plaintiff is alleged in the Second Affirmative Defense.

The defendants’ contention that the plaintiff’s principal was often outside the State of Nevada is unavailing to avoid the bar of the statute of limitations. N.R.C.P. 4(d)(1) provides for the service of summons and complaint, in a suit against a corporation formed under the laws of Nevada, on the State Secretary of State if an officer or agent of the corporation can’t be located within the State. The limitations statute is not tolled so long as the absent party is otherwise subject to service of process. Simmons v. Trivelpiece, 98 Nev. 167, 643 P.2d 1219, 1220 (1982); Bank of Nevada v. Friedman, 82 Nev. 417, 420 P.2d 1, 3 (1966); Seely v. Illinois-California Exp., Inc., 541 F.Supp. 1307, 1311 (D.Nev.1982).

NRS 11.350, which tolls the statute of limitations while an injunction stays the commencement of a lawsuit, is equally unusable by the defendants herein. Such an injunction must be against the bringing of suit. Wells, Fargo & Co. v. Vansickle, 112 Fed. 398, 402 (D.Nev.1901). The injunction requiring the City to lift its stop work order did not preclude the City from filing a complaint or counterclaim sounding in fraud against the plaintiff. The very same reasoning applies to the claim by the defendants that the statute was tolled during administrative and judicial appeals. Nevada statute provides no exception for such proceedings, therefore the courts should not create one. See Marshall v. Packard-Bell Co., 106 Cal.App.2d 770, 236 P.2d 201, 204 (1951).

The defendants’ counterclaim alleges, in the alternative, that the plaintiff negligently breached its duty to the defendants by submitting an application for a building permit that included material misrepresentations. Mistake is covered by the same three-year statute of limitation as fraud; that is, NRS 11.190(3)(d). Metropolitan Water Disk of Southern Calif, v. State of Nevada, 99 Nev. 506, 665 P.2d 262, 264-65 (1983). The statute itself declares that the cause of action shall not be deemed to have accrued until the discovery by the aggrieved party of the facts constituting the mistake. This has been construed to mean that the statute of limitations shall run from the time the aggrieved party knew, or in the exercise of proper diligence should have known, of the facts constituting the elements of his claim for relief for mistake. Oak Grove Investors v. Bell & Gossett Co., 99 Nev. 616, 668 P.2d 1075, 1079 (1983); Sierra Pacific Power Company v. Nye, 80 Nev. 88, 389 P.2d 387, 390 (1964); Metropolitan Water Dist. of Southern Calif. v. State of Nevada, supra at 665 P.2d 265. The defendants herein, in their answer to Interrogatory No. 67, admitted that they had knowledge of the plaintiff’s alleged misrepresentations on April 28, 1981. This was more than three years prior to the initial filing of the counterclaim on October 19, 1984. Therefore the claim for relief based on mistake also is barred.

IT IS, THEREFORE, HEREBY ORDERED that summary judgment be entered in favor of the plaintiff dismissing the defendants’ counterclaim.


source: Caselaw Access Project

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

license: Public Domain

text:
    David Richard WAYNE, Plaintiff, v. Max NEUNEKER, Superintendent, Nevada State Prison, Defendant.
    No. CV-R-81-107-ECR.
    United States District Court, D. Nevada.
    Oct. 15, 1985.

      Thomas E. Kotoske, Palo Alto, Cal., for plaintiff.
    Richard Bryan, Office of the Atty. Gen., Crim. Div., by Brooke Nielsen, Deputy Atty. Gen., Carson City, Nev., for defendant.
   ORDER

EDWARD C. REED, Jr., District Judge.

Plaintiff David Wayne filed this suit under 42 U.S.C. § 1983 alleging a violation of his Eighth Amendment rights. Defendant Max Neuneker counterclaimed alleging abuse of process and seeking damages for the hostage crisis which gave rise to this lawsuit. Pursuant to 28 U.S.C. § 636(b)(1)(B), Magistrate Phyllis Halsey Atkins held an evidentiary hearing. Both parties were present and represented by counsel. The Magistrate recommended judgment be entered for Neuneker on Wayne’s complaint, and for Wayne on Neuneker's counterclaims.

Wayne timely objected to the Magistrate’s report and recommendation of March 24, 1985. Thus, this Court exercised de novo consideration of all of the testimony and documentary evidence before the Magistrate at the evidentiary hearing. See 28 U.S.C. § 636(b)(1). See also Mathews v. Weber, 423 U.S. 261, 270-71, 96 S.Ct. 549, 554-55, 46 L.Ed.2d 483 (1976) (although written before the 1976 amendment to § 636, the Supreme Court emphasized that the Magistrate may do no more than propose a recommendation).

We carefully reviewed all pleadings in this case, the hearing transcript and all exhibits. The Court adopts the Magistrate’s report and recommendation. The Court will address the particular objections which Wayne makes regarding her report and recommendation.

OBJECTIONS

1. Issue to be decided

Wayne objects that the Magistrate incorrectly identified the issue to be decided. The gravamen of Wayne’s objection is the Magistrate’s statement: “... does the fact that defendant [sic] [Wayne] was not physically harmed prevent damages from being awarded.” Report and Recommendation at 2. Wayne is correct that in denying Neuneker’s motion for summary judgment we ruled: “... the fact that plaintiff did not die or suffer physical harm does not necessarily mean that no constitutional deprivation has occurred.” Order on motion for summary judgment, (document #22) September 8, 1982. The Magistrate’s report is unclear as to whether she adopted Wayne’s position regarding this issue. Nonetheless, her conclusion that Neuneker did not intentionally order the demerol to kill or seriously hurt Wayne means that she never reached the issue of a lack of physical harm to Wayne. She clearly found that Wayne failed to prove the essential elements of his § 1983 claim and, thus, never discussed whether she would have precluded the award of damages based upon Wayne’s lack of physical harm.

2. Factual Findings

Wayne sets forth his version of the facts and objects to any contrary factual findings made by the Magistrate. A review of his assertions reveal only a few differences and a thorough reading of the transcript supports the Magistrate’s findings.

Wayne alleges: “It is also undisputed that the defendant was upset and emotionally rankled when McKenna would not provide the defendant with the information he sought [regarding how McKenna was able to secure a pistol.]” Objections at 5. Although McKenna later admitted his story was false, following the hostage taking McKenna did provide Neuneker with information of where the gun came from. Further, all but Wayne testified that Neuneker seemed calm but very tired.

Wayne next alleges that: “It is undisputed that the defendant ordered that plaintiff be given an additional 3cc’s of demerol to make him talk. It is undisputed that plaintiff told the defendant that a second injection of 3cc’s of demerol would kill him. It is undisputed that the defendant ordered the lethal dosage to be brought to the plaintiffs cell. It is undisputed that the plaintiff begged the defendant not to kill him, to which the defendant merely chuckled.” Objections at 5. The only person testifying to this was Wayne. The evidence did not establish that the additional demerol would have been a “lethal” dosage. The medical expert, Dr. Donald Molde specifically rejected that contention. Tr. at 24-25. Officer Barker directly contradicted Wayne’s assertions that he begged Neuneker not to kill him. Tr. at 325-343. Finally, the only other witness who testified to any “chuckle” by Neuneker was Nelda Cushman. She testified that when Neuneker ordered her to bring the demerol to Wayne’s cell, he chuckled. Tr. at 28. It was not in response to any alleged begging for mercy by Wayne.

Wayne next alleges that: “It is undisputed that plaintiff knew if events were not taken in hand he would be restrained by the guards that were in the adjacent hallway and forcibly injected with the lethal dosage.” Objections at 6. Although Wayne is correct that no witness disputed his testimony as to what he was thinking, there was no evidence that he would, in fact, have been restrained and forcibly injected. As the Magistrate pointed out, not only had Wayne consistently requested drugs from prison officials, but the effects of the first shot of demerol were “peaking.” Report and Recommendation at 9-11, 24.

Finally, Wayne alleges: “It is undisputed that plaintiff suffered unimaginable horror and emotional trauma because of the defendant’s attempt to kill him — a matter for which he sought and received medical attention.” Objections at 7. Wayne failed to introduce any such evidence. Accordingly, the factual findings by the Magistrate are accepted.

3. Factual Issues

Wayne argues that the Magistrate erroneously considered evidence of his past criminal record, his past involvement in hostage taking incidents and his past use of drugs. Wayne complains that all of this evidence was irrelevant and should not have been considered. Wayne testified at the hearing. He was an important witness as to his case. In fact, he was the only witness who testified that he begged Neuneker not to give him any more demerol. His credibility was, therefore, a key issue. His past criminal record was relevant. The Magistrate correctly limited testimony as to Wayne’s criminal activity which was remote in time. Further, the activities of past hostage taking incidents revealed a common thread: Wayne requested and received drugs as a condition of release of his hostages. Finally, his past use of drugs related to his tolerance level and to the issue of whether he would have wanted an additional shot of demerol. The Magistrate’s admission of this evidence was not in error and was relevant to the issues before her.

Wayne then argues that: “Despite the undisputed evidence that inmate McKenna controlled and conducted the hostage taking incident of February 14, 1981; and, despite the fact that plaintiff was acquitted of the crime related to this incident, the Magistrate, interestingly enough, finds:

‘... (David Wayne claims he was forced to leave his cell by McKenna but there is no credible evidence to support this in spite of the fact that Wayne was apparently acquitted of State charged by a jury because of this defense)’.” [R. 3]

Objections at 8. Wayne fails to point out the significance of his objections. Not only was there evidence of Wayne’s actions with his hostage Nelda Cushman when Wayne was nowhere near McKenna’s control, but an acquittal in criminal case, which requires a higher standard of proof, is not controlling in a civil case. The issue of who conducted and controlled the escape attempt is not important except as it related to Wayne’s demand for demerol being met before he would release his hostage, Nelda Cushman.

Wayne next objects to the Magistrate’s omission of a background profile of Nelda Cushman. (The Magistrate provided profiles of Neuneker, Wayne and McKenna). The Magistrate did not, however, ignore Cushman’s testimony; she merely found it unnecessary to do a profile of the nurse. There was no “oversight” of Cushman’s testimony.

Wayne’s final objection is difficult to ascertain. He complains that the Magistrate erred by her characterization of Neuneker’s lack of testimony as to the second shot of demerol. She correctly observed that Neuneker remembered very little once the hostages were safe. Report and Recommendation at 19. Wayne may have worded it differently, but whether Neuneker remembered very little, or could not refute pertinent facts, the Magistrate correctly observed Neuneker’s failure to testify as to the second shot of demerol. Other witnesses, however, testified and Wayne is incorrect when he argues that undisputed facts proved the case against Neuneker.

4. Conclusions of law

Although he makes no objection to the law applied by the Magistrate, Wayne argues that this case compels a different result than that recommended by the Magistrate. There are two essential elements to a 42 U.S.C. § 1983 action: (1) the plaintiff must allege and prove that the conduct complained of was committed by a person acting under color of state law; and (2) that this conduct deprived the plaintiff of rights, privileges, or immunities secured by the constitution or Laws of the United States. Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 1912-13, 68 L.Ed.2d 420 (1981). There is no doubt that Neuneker acted under color of state law.

The Magistrate found that Wayne failed to prove the second element. Wayne objects to the basis of her finding. After review this Court finds that Wayne did fail to prove a deprivation. However, it is necessary to examine more fully the applicable analysis used to reach this conclusion.

The Magistrate did find that Neuneker was at the most negligent in allowing more demerol be given to Wayne. Report and Recommendation at 30. Negligent abuse of authority by state officials can form the basis for a § 1983 cause of action. Parratt v. Taylor, 451 U.S. at 534-35, 101 S.Ct. at 1912-13. As noted by the Ninth Circuit:

Intentional acts by state officials, even if committed without specific authority can satisfy the color of law requirements of § 1983, Hudson, [v. Palmer, — U.S. -] 104 S.Ct. [3194] at 3202, [82 L.Ed.2d 393 (1984) ] as can conduct pursuant to established state policy, Logan, [v. Zimmerman Brush Co.] 455 U.S. [422] at 435-37, [102 S.Ct. 1148, 1157-59, 71 L.Ed.2d 265 (1982) ] and errors by individual officers in the absence of an affirmative government policy. Baker v. McCollan, 443 U.S. 137, 146 [99 S.Ct. 2689, 2695-96, 61 L.Ed.2d 433] (1979). Cf. Monell v. Dep’t of Social Services, 436 U.S. 658, 694 [98 S.Ct. 2018, 2037, 56 L.Ed.2d 611] (1978); Wolf-Lillie v. Sonquist, 699 F.2d 864, 870 (7th Cir.1983).

Hay good v. Younger, 769 F.2d 1350, 1354 (9th Cir., filed August 27, 1985). Yet, “the question whether an allegation of simple negligence is sufficient to state a cause of action under § 1983 is more elusive than it appears at first blush.” Baker v. McCollan, 443 U.S. 137, 139, 99 S.Ct. 2689, 2692, 61 L.Ed.2d 433 (1979).

Wayne’s theory of liability is that the second shot of demerol constituted cruel and unusual punishment in violation of the Eighth Amendment. To be cruel and unusual, punishment must be incompatible with “the evolving standards of decency that mark the progress of a maturing society.” Trop v. Dulles, 356 U.S. 86, 101, 78 S.Ct. 590, 598, 2 L.Ed.2d 630 (1958). Punishment is also cruel and unusual when it involves an unnecessary and wanton infliction of pain or is grossly disproportionate to the severity of the crime. See Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983); Rhodes v. Chapman, 452 U.S. 337, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981); Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). The plaintiff need not show a formal intent to punish. Albers v. Whitley, 743 F.2d 1372, 1374 (9th Cir.1984) cert. granted — U.S.-, 105 S.Ct. 2700, 86 L.Ed.2d 716 (1985). The degree of culpability required by the Eighth Amendment is whether the punishment complained of is a result of “deliberate indifference” to the prisoner’s liberty interest. Haygood v. Younger, 769 F.2d at 1354-55. This standard extends beyond the eases where prisoners were denied proper medical care and, thus, “may appropriately be applied to test the constitutionality of other exercises of professional judgment by prison officials that [may] result in harm to prisoners.” Albers v. Whitley, 743 F.2d at 1275. Accordingly, the Magistrate correctly looked to whether Neuneker was deliberately indifferent to Wayne’s Eighth Amendment rights. We agree with the Magistrate that the evidence did not support a finding of deliberate indifference.

Wayne also objects to the Magistrate’s refusal to “second guess” a prison official during a crisis. This objection has merit. While the Magistrate is correct that deference should be given where prison officials are acting in good faith to a crisis, at the time Neuneker gave the second shot of demerol, there was no crisis. The inmates had been put back into their cells. Neuneker controlled the situation. He was not reacting to any crisis. Nevertheless, this does not lead to a different result. As the Magistrate found, Neuneker’s policy was to keep all promises made during negotiations with the prisoners. Thus, his action could clearly have been found to be negligent, but the evidence does not support a finding of deliberate indifference.

IT IS, THEREFORE, HEREBY ORDERED that the Magistrate’s Report and Recommendation is accepted. Judgment shall be entered in favor of defendant Neuneker on plaintiff Wayne’s complaint and in favor of plaintiff Wayne on defendant Neuneker’s counterclaims.

      . Neuneker failed to file any response to Wayne’s objections or to make objections to the Magistrate’s recommendation on the counterclaims.

      . Wayne could possibly have sustained a cause against Neuneker had Wayne alleged negligent action. Rather than attempting to prove Neuneker intended to kill or seriously harm Wayne in callous indifference to Wayne’s eighth amendment right against cruel and unusual punishment, Wayne may have been able to show a violation of his civil rights based on negligence. Because Neuneker owed a special duty to provide for Wayne’s health and safety (NRS § 209.161) Neuneker may have been negligent in permitting the second shot of demerol get to Wayne, thus, creating a foreseeable risk of harm. Hirst v. Gertzen, 676 F.2d 1252, 1263 (9th Cir.1982) (a county’s negligent lack of care in hiring and supervising their deputies creating a foreseeable risk of harm stated a cause of action under § 1983); Escamilla v. City of Santa Ana, 606 F.Supp. 928, 931-32 (C.D.Calif.1985) (an affirmative state action creating a special relationship imposes a constitutional duty which may negligently be breached).


author: TOM S. LEE, District Judge.

text:
    Allan WALL, et al., Plaintiffs, v. Verle HEATH, et al., Defendants.
    Civ. A. No. E84-0119(L).
    United States District Court, S.D. Mississippi, E.D.
    Oct. 17, 1985.

      William L. Bambach, Columbus, Miss., for plaintiffs.
    Edwin Lloyd Pittman, Atty. Gen., Ed Davis Noble, Jr., Asst. Atty. Gen., Ryan Hood, Sp. Asst. Atty. Gen., Jackson, Miss., for defendants.
   MEMORANDUM OPINION

TOM S. LEE, District Judge.

This cause is before the court on motion of defendants Verle Heath, Charles Higginbotham, Johnny Kinnard and Lon Strong for summary judgment on various preclusion and immunity grounds. Plaintiffs Allan Wall, Lester Sire, Willie Sire, Ronald Ceruti, Albert Fair and John Cardin filed timely response to defendants’ motion, and the court has considered the memoranda with attachments submitted by the parties.

On October 13, 1983, plaintiffs were arrested by defendants Heath and Higginbotham, agents of the Wildlife Conservation Department of the State of Mississippi, and charged with hunting deer at night with the aid of a headlight in violation of Miss.Code Ann. § 49-7-95 (Supp.1983). It appears that plaintiffs were immediately taken before defendant Johnny Kinnard, a justice court judge in Brooksville, Mississippi, for a hearing which commenced shortly after midnight on the morning of October 14, 1983. The record indicates that all six plaintiffs pled guilty to the charge and received fines totalling $800.00. Plaintiffs allege, inter alia, that defendants Heath and Higginbotham conducted warrantless searches of plaintiffs’ property; that Kinnard actually performed the arrest of plaintiffs after deceiving them concerning the purpose of their visit to his office; that Kinnard refused to enter plaintiffs’ not-guilty plea and entered false information into the record by stating that all plaintiffs pled guilty; that Higginbotham, in the presence of Heath and Kinnard, threatened plaintiffs with confiscation of their property if they chose to exercise their right to counsel or offer evidence on their own to dispute Kinnard’s sentence; and that defendant Strong was grossly negligent in failing to train his agents properly to avoid violation of plaintiffs’ constitutional rights. Plaintiffs subsequently initiated the instant action against the defendants in their individual capacities pursuant to 42 U.S.C. § 1983.

Defendants’ motion for summary judgment asserts two independent legal grounds allegedly warranting dismissal of plaintiffs’ case, res judicata (claim preclusion) and immunities under § 1983. With regard to the res judicata effect of plaintiffs’ guilty plea, defendants argue that the instant action constitutes an impermissible attempt to relitigate issues which were finally determined in the justice court judgment. It is undisputed that plaintiffs did not file a timely notice of appeal as required by Miss.Code Ann. § 99-35-1. Plaintiffs’ § 1983 cause of action is, defendants claim, merely an attempt to challenge their convictions through a federal statutory remedy after their own delinquency precluded an appeal. This argument is without merit.

Defendants acknowledge that state law controls the scope of the preclusive effect of all state court judgments. Kremer v. Chemical Construction Corp., 456 U.S. 461, 481, 102 S.Ct. 1883, 1897, 72 L.Ed.2d 262 (1982). Federal courts must give the same preclusive effect to a state court judgment as would the courts of the state from which the judgment emerged. Allen v. McCurry, 449 U.S. 90, 96, 101 S.Ct. 411, 415, 66 L.Ed.2d 308 (1980). Defendants then erroneously assert that for res judicata to apply under Mississippi law there need only be “an identity of parties (or privies) and an identity of issues.” (emphasis added). In point of legal fact, Mississippi law requires the presence of four identities before res judicata can be applied: identity of subject matter of the action, identity of the cause of action, identity of parties to the cause of action, and identity of quality or character of a person against whom the claim is made. Dunaway v. W.H. Hopper & Associates, Inc., 422 So.2d 749 (Miss.1982); Wright v. Mayor and Com’rs of City of Jackson, 421 So.2d 1219 (Miss.1982). Conspicuously absent from the test for the application of res judicata under Mississippi law is any allowance for asserting the defense against a party in privity with the party to the previous adjudication. Furthermore, the doctrine of collateral estoppel under Mississippi law applies only to questions actually litigated in the prior suit and not to questions which might have been litigated. Dunaway, 422 So.2d at 751.

Defendants’ preclusion argument must fail. Not only are the issues raised in a misdemeanor sentencing and a § 1983 claim not identical, but the parties can scarcely be deemed identical. There is a considerable difference between the subject matter of a § 1983 claim against a state official (whether there was a violation of plaintiff’s constitutional rights under color of state law) and a hearing on a misdemeanor charge of headlighting deer. Perhaps most foreign is the nature of the causes of action — one arising under a federal statute granting a civil cause of action for money damages against state officials for deprivation of constitutional rights, the other arising under a state statute aimed at regulating deer hunting through the imposition of criminal fines and penalties. Plaintiffs are not attempting to relitigate their conviction in the present action; rather, they are attempting to vindicate constitutional rights of which they were allegedly deprived through the actions of the defendants. To accept defendants’ argument on claim and issue preclusion would effectively abrogate § 1983 as a method of challenging unconstitutional action whenever a criminal conviction resulted from such state action. This court cannot wittingly do so.

In addressing defendants’ various immunity defenses, this court notes that the burden under Rule 56 of the Federal Rules of Civil Procedure is on the movant to show his right to summary judgment with such clarity as to leave no room for dispute that the other party is not entitled to recover under any discernible circumstances. Simon v. United States, 711 F.2d 740, 745 (5th Cir.1983). The nonmovant must set forth specific facts showing the existence of a genuine issue of material fact, with the court resolving all doubts in favor of the nonmovant. Galindo v. Precision American Corp., 754 F.2d 1212 (5th Cir. 1985).

Defendants Heath, Higginbotham and Strong contend that they are protected from § 1983 liability by the doctrine of “official immunity.” As state officials sued in their individual capacities, they are entitled to assert a qualified immunity defense to a § 1983 claim. In Harlow v. Fitzgerald, 457 U.S. 800, 815, 102 S.Ct. 2727, 2736, 73 L.Ed.2d 396 (1982), the Supreme Court established an objective standard for applying the qualified immunity defense, holding that officials “are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Thus, defendants Heath and Higginbotham are entitled to summary judgment on the qualified immunity defense only if the court can determine that plaintiffs have failed to allege any set of facts which would indicate the existence of a clearly established constitutional right which was arguably violated by the defendants’ actions. This court cannot make such a determination. Plaintiffs have alleged facts — which this court must credit as true for purposes of this motion — indicating that Heath and Higginbotham deprived them of their constitutional right to counsel, right to due process and right to be free from unreasonable searches and seizures. Summary judgment on the plaintiffs’ claims against defendants Heath and Higginbotham is improper.

This court is also of the opinion that defendant Johnny Kinnard’s motion for summary judgment on the ground of absolute judicial immunity should be denied. While a judge of whatever status in the judicial hierarchy, including justices of the peace, is immune from suit for damages resulting from any act performed in the judicial role, Supreme Court of Virginia v. Consumers Union, 446 U.S. 719, 734, 100 S.Ct. 1967, 1975, 64 L.Ed,2d 641 (1980); Stump v. Sparkman, 435 U.S. 349, 357, 98 S.Ct. 1099, 1105, 55 L.Ed.2d 331 (1978), he loses that absolute immunity when he acts in “clear absence of all jurisdiction” or in a “nonjudicial capacity.” Stump, 435 U.S. at 357, 98 S.Ct. at 1105; Brewer v. Blackwell, 692 F.2d 387, 396 (5th Cir.1982). In Brewer, a justice of the peace was held to have acted in a nonjudicial capacity in performing the actual arrest of the plaintiff and, in the clear absence of jurisdiction, in conducting a criminal trial of the plaintiff without any jurisdictional power to conduct criminal proceedings under Louisiana law. 692 F.2d at 397-98. Plaintiffs in the instant action have made similar claims and set out sufficient factual allegations for the court to find that summary judgment as to Kinnard is inappropriate.

Summary judgment is proper, however, as to the claims against defendant Lon Strong. Strong was sued in his individual and official capacity as the Executive Director of the Mississippi Wildlife Conservation Department. Plaintiffs allege that Strong was grossly negligent or willfully indifferent to their constitutional rights in failing to properly train his agents Heath and Higginbotham and in failing to take remedial action to prevent wrongs of the type suffered by plaintiffs. No factual allegations were made concerning Strong’s personal involvement in any decision made about plaintiffs, or concerning his knowledge that such unconstitutional conduct had repeatedly occurred in departments under his supervision. No constitutional tort in any arguable form has been alleged against Strong by plaintiffs. He cannot be held personally responsible for the independent actions of his subordinates under a theory of respondeat superior or vicarious liability pursuant to § 1983. Monell v. Department of Social Services, 436 U.S. 658, 690, 98 S.Ct. 2018, 2035, 56 L.Ed.2d 611 (1978); Owen v. City of Independence, 445 U.S. 622, 100 S.Ct. 1398, 63 L.Ed.2d 673 (1980). Since plaintiffs have offered no proof of Strong’s personal involvement in the incidents giving rise to plaintiffs’ instant action, summary judgment is appropriate as to Strong. Watson v. Interstate Fire and Casualty, 611 F.2d 120, 122 (5th Cir.1980).

For the reasons stated above, this court concludes that defendants’ motion for summary judgment should be denied as to defendants Verle Heath, Charles Higginbotham and Johnny Kinnard; however, the court is of the opinion that the motion for summary judgment should be granted as to defendant Lon Strong. A separate judgment shall be entered pursuant to the local rules.

      . In Adams v. McIlhany, 764 F.2d 294, 297 (5th Cir.1985), the Fifth Circuit reiterated the four-factor test for determining whether an act is judicial in nature and thus entitled to absolute immunity: "(1) whether the precise act complained of is a normal judicial function; (2) whether the acts occurred in the courtroom or appropriate adjunct spaces such as the judge’s chambers; (3) whether the controversy centered around a case pending before the court; and (4) whether the acts arose directly out of a visit to the judge in his official capacity." (quoting McAlester v. Brown, 469 F.2d 1280, 1282 (5th Cir.1972). While the court in Adams counseled that the four-factor test should be broadly construed in favor of immunity and should not be distinguished based on narrow factual considerations, 764 F.2d at 297 n. 1, this court cannot conclude as a matter of law that all of the alleged actions taken by Kinnard meet the McAlester test; indeed, some of the alleged actions fall squarely outside the McAlester test.


author: LOUIS H. POLLAK, District Judge.

text:
    Charles PICKRON v. Fred W. JACOBS, Jr., et al.
    Civ. A. No. 83-5938.
    United States District Court, E.D. Pennsylvania.
    Oct. 18, 1985.

      Leonard N. Sosnov, Asst. Defender, Defendant Association of Pennsylvania, Philadelphia, Pa., for petitioner.
    Eric Henson, Asst. Dist. Atty., Philadelphia, Pa., for respondent.
   MEMORANDUM

LOUIS H. POLLAK, District Judge.

Before the court is a petition for a writ of habeas corpus filed by Charles Pickron pursuant to 28 U.S.C. § 2254. The petitioner is in the custody of the Pennsylvania State Board of Probation and Parole. On April 30, 1979, he was found guilty of robbery, criminal conspiracy, and unlawful restraint by the Honorable I. Raymond Kremer, sitting without jury, in the Philadelphia Court of Common Pleas. He was sentenced to serve concurrent terms of imprisonment of two to eight (2-8) years for robbery and conspiracy, and two to five (2-5) years for unlawful restraint. Post-verdict motions were denied. The Superior Court of Pennsylvania affirmed the conviction and sentence on February 5, 1982, 297 Pa.Super. 615, 442 A2d 338; the Supreme Court of Pennsylvania denied Pickron’s petition for an allowance of appeal on May 28, 1982.

In his Report and Recommendation to this court, William F. Hall, Jr., United States Magistrate, concluded that petitioner’s writ of habeas corpus should be denied. Magistrate Hall first decided that petitioner had presented his claim to the state courts and thereby had adequately satisfied the exhaustion requirement. Report at 3. Magistrate Hall then went on to determine that the evidence before Judge Kremer was sufficient to permit the fact-finder to determine that petitioner was guilty beyond a reasonable doubt. Id. at 5. Pursuant to 28 U.S.C. 636(b)(1) petitioner filed objections to the Magistrate’s Report and Recommendations. Accordingly, I must make a de novo determination with respect to those portions of the Report and Recommendation to which objection has been made. 28 U.S.C. § 636(b)(1).

At the outset, I accept the Magistrate’s conclusion that petitioner has exhausted his state remedies. Thus, I must turn my attention to those parts of the Magistrate’s Report and Recommendation to which petitioner has objected.

Petitioner’s first objection is that the Magistrate failed adequately to address the central issue raised by the petition, whether there was sufficient evidence to convict petitioner, and instead considered the trial court’s credibility determination to be the focus of the petition. Petitioner’s Objections at 3. Petitioner further contends that in deciding that the record established sufficient evidence for petitioner’s conviction the Magistrate misconstrued Pennsylvania law and the requirements of due process. Id.

In undertaking my examination, I must be guided by Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). In that case the Supreme Court enunciated the following standard to govern review of a habeas corpus challenge to the sufficiency of evidence in a state conviction: “[T]he applicant is entitled to habeas corpus relief if it is found that upon the record evidence adduced at the trial no rational trier could have found proof of guilt beyond a reasonable doubt.” Id. at 324, 99 S.Ct. at 2791-92 (footnote omitted). This standard must be applied with reference to state law concerning the substantive elements of the criminal offense. Id. at 324 n. 16, 99 S.Ct., at 2792 n. 16. Moreover, state evidentiary law is determinative in applying this standard concerning the sufficiency of the evidence. See, e.g., Moore v. Duckworth, 443 U.S. 713, 714-15, 99 S.Ct. 3088, 3089-90, 61 L.Ed.2d 865 (1979).

Petitioner primarily contends that he was convicted solely on the basis of repudiated pre-trial statements that should never have been admitted as substantive evidence under Pennsylvania law. Petitioner’s Objections at 3. It will be necessary, therefore, first to review the trial record to see what evidence was offered against the petitioner at trial and whether any use of prior inconsistent statements was made. If such statements did figure in the trial, an examination of the Pennsylvania law on prior inconsistent statements will be appropriate.

A.

As the trial record reveals, witness Frakes, immediately after reporting the robbery, told the police that petitioner— whom Frakes had seen at least one hundred times before the incident — was one of the robbers. Record at 20-21, Commonwealth v. Pickron, Nos. 1398 et al. (C.P.Pa. Apr. 26, 1979). Then, at the preliminary hearing, Frakes testified under oath and subject to cross-examination that petitioner was one of the robbers. Id. at 22-23. Moreover, at trial he did not dispute that he had made these earlier identifications. Id. at 20-23. Yet when asked whether one of the robbers was in the courtroom during the trial, Frakes stated that he was “really not sure.” Id. at 12. He explained that two weeks before trial he had seen two individuals who resembled two of the robbers, and that one of them looked like the petitioner. Id. When at that time the man resembling petitioner immediately fled and when Frakes realized that petitioner was still in custody, he began to have doubts about his earlier statements of identification. Id. at 12-14. No other evidence was presented at the petitioner’s trial.

When announcing his verdict of guilty, Judge Kremer of the Court of Common Pleas found the witness “not truthful” and “willfully and deliberately endeavoring to aid the defendant at this point.” Id. at 32-33. Judge Kremer was unsure of the witness’s motivation in his trial testimony and alluded to the possibility of the witness’s dissatisfaction with his arrest on a bench warrant to insure his testimony at the trial. Id. at 33.

In an opinion dated April 15, 1980 and made pursuant to Rule 1925(a) of the Pennsylvania Rules of Appellate Procedure, Judge Kremer explained the reasons for his earlier decision. Commonwealth v. Pickron, Nos. 1399-1401, slip op. (C.P.Pa. Apr. 15, 1980). He observed that defendant had raised essentially three issues on appeal: 1) that prior inconsistent statements could not be used as substantive evidence; 2) the prior statements of Frakes were not “inconsistent” with his trial testimony; and 3) that even if the prior statements were admissible for substantive purposes, evidence presented at trial was still insufficient to support the verdict. Id. at 2.

Judge Kremer squarely faced the question whether prior inconsistent statements could be used as substantive evidence. Relying upon the Superior Court’s decision in Commonwealth v. Loar, 264 Pa.Super. 398, 399 A.2d 1110 (1979), which allowed such substantive use for prior inconsistent statements, Judge Kremer argued that Loar did not represent an encroachment upon an earlier rule of law clearly enunciated by the Pennsylvania Supreme Court forbidding such use. Id. at 14. Rather, he thought that the rule prohibiting such use had been eroded by the Supreme Court decisions in Commonwealth v. Gee, 467 Pa. 123, 354 A.2d 875 (1976), and Commonwealth v. Brewer, 479 Pa. 558, 388 A.2d 1071 (1978). Id. He thus felt that Loar was the only appellate decision directly relevant to the question of the substantive use of prior inconsistent statements. Id. Loar thus governed his decision in the case before him. Id.

Judge Kremer also dealt with defendant’s contentions that the witness’s earlier statements were not inconsistent and that, even if they were admissible, there was not sufficient evidence, to sustain a conviction. He found that the prior statements and those at trial were indeed inconsistent, basing his finding upon Commonwealth v. Davenport, 255 Pa.Super. 131, 386 A.2d 543 (1978) and McCormick on Evidence. Id. at 17. And he stated that he could find no support for defendant’s contention that there was insufficient evidence to sustain a conviction. Id. at 19.

The Superior Court affirmed Judge Kremer’s decision in a memorandum opinion. Commonwealth v. Pickron, 297 Pa.Super. 615, 442 A.2d 338 (1982). According to the Superior Court, the issue was really one of credibility — not of prior inconsistent statements. Judge Kremer had found Frakes credible as to the prior identifications but not as to the “look-alike” incident. Id. at 3. The court pointed out that the degree of certainty in eye-witness identification went to the credibility of the witness, a matter well within the province of the trial judge. Id. And, relying upon Commonwealth v. Kloiber, 378 Pa. 412, 106 A.2d 820 (1954), the court added that certainty by the witness in his identification of the defendant was not necessary for a conviction. Id.

It seems, then, that Judge Kremer at least considered testimony about prior statements, which he thought to be inconsistent with the witness’s later testimony, at petitioner’s trial. This fact necessitates examination of the law of prior inconsistent statements in Pennsylvania. However, because the appellate court raised the issue of credibility — an issue with which Magistrate Hall dealt — it will be necessary to treat this as well.

B.

1. Inconsistency

A preliminary matter is whether the statements made by Frakes to the police and in the preliminary hearing were in fact inconsistent with the ones made at trial, as Judge Kremer found. The Pennsylvania Supreme Court has held that for a prior inconsistent statement to be used to impeach a witness — the most commonly accepted use of such a statement — the statement must be “in fact inconsistent.” See In re Silverberg, 459 Pa. 107, 327 A.2d 106, 112 (1974). In making this declaration, the court referred to Wigmore’s treatise on evidence. Id. Wigmore’s definition of an inconsistent statement, made in the context of a discussion concerning discrediting a witness, is as follows:

In the present mode of impeachment, there must of course be a real inconsistency between the two assertions of the witness. The purpose is to induce the tribunal to discard the one statement because the witness has also made another statement which cannot at the same time be true, [citation omitted]. Thus, it is not a mere difference of statement that suffices; nor yet is an absolute oppositeness essential; it is an inconsistency that is required.
Such is the possible variety of statement that it is often difficult to determine whether this inconsistency exists. But it must appear ‘prima facie’ before the impeaching declaration can be introduced. As a general principle, it is to be understood that this inconsistency is to be determined, not by individual words or phrases alone, but by the whole impression or effect of what has been said or done, [citation omitted] On a comparison of the two utterances, are they in effect inconsistent? Do the two expressions appear to have been produced by inconsistent beliefs?

3A J. Wigmore, Evidence s 1040 (J. Chadbourn ed. 1970). Furthermore, a trier of fact can reach a conclusion of inconsistency when it finds the later statement to be false and thus inconsistent with the earlier one. See Commonwealth v. Davenport, 255 Pa.Super. 131, 386 A.2d 543, 547 (1978).

Given the above discussion, it is clear that Frakes’ earlier statements to the police and at the preliminary hearing were indeed inconsistent with his later remarks at trial. The “whole impression or effect” of Frakes’ later testimony is that he did not believe that the petitioner was one of the men who had robbed him. Another perspective, which would also lead to the conclusion of inconsistency, would be the one that Judge Kremer adopted in his opinion and that relied upon the holding in Davenport: that Frakes’ later testimony at trial was false and thus inconsistent with his earlier statements. See Commonwealth v. Pickron, Nos. 1399-1401, slip op. at 15. Because the statements were inconsistent, I must now look at Pennsylvania law governing their use to determine whether the trial court was correct in using them substantively.

2. Prior Inconsistent Statements

In petitioner’s view, it has been settled law in Pennsylvania that prior inconsistent statements cannot be used as substantive evidence, but only to impeach a witness. Petitioner’s Objections at 3. According to petitioner, Judge Kremer’s reliance upon Loar was thus misplaced in light of the clear Pennsylvania Supreme Court precedent. Id. Petitioner finds support for his position in Commonwealth of Pennsylvania v. Waller, 498 Pa. 33, 444 A.2d 653 (1982), in which the Court rejected the holding in Loar. See id.

In Waller, which presented a factual situation where a witness gave testimony at trial inconsistent with his testimony at an earlier coroner’s inquest, the court set forth the Pennsylvania rule concerning the use of prior inconsistent statements: such statements can be used to impeach the witness but may not be used substantively. 444 A.2d at 656. Moreover, the court rejected in a footnote the holding in Loar:

2. We decline to adopt the reasoning of Judge Spaeth in Commonwealth v. Loar, 264 Pa.Super. 398, 399 A.2d 1110 (1979), that prior inconsistent statements may be used as substantive evidence. Such has never been and is not now the law in this Commonwealth.

Id. at 656 n. 2.

However, petitioner neglects additional language in Waller pertinent to the instant case. When stating that prior inconsistent statements could not be used substantively, the court added that “responses to those prior statements” would, if believed by the trier of fact, be substantive evidence and could be used in determining guilt or innocence. Id. (footnote, citations omitted). Although the court made this remark in ruling upon a situation when a prosecutor was cross-examining his own witness, this situation does not seem central to the ruling. When, moreover, the appellant in Waller argued that the prior inconsistent statement at the coroner’s inquest had been used substantively and that, without this statement, the evidence would have been insufficient, the court pointed out that appellant ignored the witness’s responses to questions put to him about the earlier testimony — responses that were substantive evidence. Id. at 659. This trial testimony together with the other evidence, the court noted, was an adequate basis for a guilty verdict.

Although cited in favor of petitioner’s position, then, Waller seems to undermine it. For at trial when questioned about his prior statements by the district attorney, Frakes did not deny but acknowledged making them. Transcript at 20-23. And, as both the state appellate court and Magistrate Hall observed, Judge Kremer found this response to these statements credible while disbelieving Frakes’ testimony as to the later incident. Id. at 33. This response, then, was substantive evidence used in the conviction of petitioner. Although the witness did not give this testimony in the context of a cross-examination, as was the case in Waller, it was elicited from the witness after he expressed his doubts about petitioner’s identity as one of his robbers.

Waller is thus not helpful to petitioner. Nor for that matter is a recent Superior Court case, Commonwealth v. Thirkield, 311 Pa.Super. 413, 457 A.2d 954 (1983), to which he refers. There, following Waller, the court ruled that a prior inconsistent written statement could not be used as substantive evidence. Id., 457 A.2d at 956. Yet the court did not treat the question of the response to this statement. This is not surprising considering that the witness had no memory of having made it. Id.

3. Admissibility of Prior Statements

Petitioner also contests Magistrate Hall’s reliance upon Commonwealth v. Saunders, 386 Pa. 149, 125 A.2d 442 (1956), for the proposition that pre-trial statements are admissible as substantive evidence where the witness is available for cross-examination. Petitioner’s Objections at 5 n. 4. In that case, the Pennsylvania Supreme Court ruled that identifications of the defendant by several witnesses at a pre-trial line-up were admissible even though the witnesses were unable to identify the defendant positively at trial. Saunders, 125 A.2d at 445.

The Superior Court attempted to explicate Saunders in Commonwealth v. Floyd, 327 Pa.Super. 569, 476 A.2d 414 (1984), a case involving the substantive use of a witness’s prior photographic identification of the defendant. According to Floyd, Saunders dealt with the admission of out-of-court statements as an exception to the hearsay rule. 476 A.2d at 418. In Floyd, the witness stated at trial that he had never identified the defendant before, and he was not questioned about the earlier photographic identification. Id. at 416. When the Commonwealth called a detective who testified about the prior identification, the witness’s out-of-court identification was admitted as substantive evidence. Id. In reversing the defendant’s conviction, the Superior Court enunciated a two-part test for the admission of such^ prior statements as an exception to the hearsay rule: 1) that the out-of-court identification was freshly made and 2) that the witness who made it takes the stand and acknowledges its accuracy. Id.

The Pennsylvania Supreme Court affirmed the Superior Court’s decision, but carefully distinguished the Saunders situation. See Commonwealth v. Floyd, — Pa. -, 498 A.2d 816 (1985). The court pointed out that Saunders, dealing as it did with the questioning of the witness himself about his prior identifications, was not applicable to the case before it, where one witness testified as to an identification made by another. At -. The court stated that such testimony from a witness who had not made the prior identification could only be used in certain circumstances and, in accordance with Waller, for substantive purposes. Id. at-.

Petitioner seems to suggest that, while Waller bans use of prior inconsistent statements, Saunders and its progeny allow use of prior statements consistent with the trial testimony and fulfilling the Superior Court’s requirements in Floyd. Petitioner’s Objections at 5 n. 4. Given my reading of Waller, it does not seem necessary to reach the question whether Frakes’ statements could be admissible as substantive evidence under the Saunders doctrine. However, I would note that Frakes’ statement to the police seems to satisfy the Superior Court’s criteria in that it was made soon after the crime and arguably its accuracy was acknowledged by the witness at trial. Transcript at 20-22.

4. Conclusion

In sum, while Pennsylvania law now forbids the use of prior inconsistent statements as substantive evidence, responses to them may be used substantively, cordingly, given Frakes’ responses to and express acknowledgements of his prior statements, petitioner’s contention that no substantive evidence existed to justify his conviction is groundless. Ac-

C.

It remains then to apply to the instant case the standard for sufficiency of evidence stated in Commonwealth v. Smith, 490 Pa. 329, 416 A.2d 494 (1980): whether, “viewing the entire record in the light most favorable to the Commonwealth and drawing all reasonable inferences favorable to the Commonwealth, there [was] sufficient evidence to enable the trier of fact to find every element of the crime beyond a reasonable doubt.” Id., 416 A.2d at 495 (citations omitted). Because proof of the identity of the accused is an essential element, Commonwealth v. Hickman, 453 Pa. 427, 309 A.2d 564 (1973), it is necessary to examine whether there was sufficient evidence to find that petitioner was one of the men who robbed Frakes.

Although proof of the identity of the accused must be established beyond a reasonable doubt, evidence of identification does not have to be “positive and certain.” Hickman, 309 A.2d at 566. Vagueness or uncertainty in the identification testimony, of course, goes to the weight of the evidence. Id. (citations omitted). And to establish the identity of the accused circumstantial evidence may be sufficient. Id. (citations omitted). Thus, in Commonwealth v. Minnis, 312 Pa.Super. 53, 458 A.2d 231 (1983), the court upheld the trial court’s determination that there was sufficient evidence identifying the defendant, evidence that included qualified eyewitness testimony and numerous points of circumstantial evidence. Id., 458 A.2d at 233-34.

Petitioner argues that vague or tentative identification testimony, standing alone without circumstantial evidence, will be insufficient to sustain a criminal conviction even if prior identifications of the defendant were not rendered inconsistent — and thus not admissible — by recantations at trial. Petitioner’s Objections at 5. As support for this proposition petitioner relies primarily upon two Superior Court cases, Commonwealth v. Pereria, 219 Pa.Super. 104, 280 A.2d 623 (1972) and Commonwealth v. Grillasco, 272 Pa.Super. 365, 415 A.2d 1241 (1979). Id.

In Pereria, the court held that a victim’s “vague, tenuous, and uncertain” in-court identification was not sufficient to identify the defendants beyond a reasonable doubt when, in testifying, the witness relied upon a photographic identification made two years prior to trial. 280 A.2d at 625. The court in Grillasco relied upon Pereria’s holding in reversing a defendant’s conviction in similar circumstances. 415 A.2d at 1243. There, witnesses could not positively identify the defendant at trial held over a year and a half after earlier photographic identifications. Id. at 1242.

These citations are not persuasive. First, these cases refer to prior photographic identifications occurring over a year before trial. In the instant case, Frakes’ earlier statements involve more than a mugshot identification: they include both a prompt identification to police immediately after the crime and a sworn in-court identification of a man known to Frakes. Furthermore, both occurred within a year of trial.

Accordingly, in light of the substantive evidence presented at trial — the response of Frakes to his earlier inconsistent statements — I find that under the Smith standard, see supra, there was sufficient evidence to convict petitioner beyond a reasonable doubt.

D.

It is, in any event, not the Smith standard which governs this habeas corpus court, but the standard enunciated in Jackson v. Virginia, supra: whether “a rational trier of fact could have found proof of guilt beyond a reasonable doubt.” 443 U.S. at 324, 99 S.Ct. at 2792 (footnote omitted). As the Court in Jackson noted, a court “faced with a record of historical facts that supports conflicting inferences must presume — even if it does not affirmatively appear in the record — that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution.” Id. at 326, 99 S.Ct. at 2793.

Given my finding that Pennsylvania law permits the use of responses to prior inconsistent statements as substantive evidence, I hold that the Jackson standard has been met in the instant case. Reviewing the testimony of Frakes concerning his earlier statements, which testimony Judge Kremer determined to be credible, I am satisfied that a rational trier of fact could have found this evidence sufficient beyond a reasonable doubt to identify petitioner as one of Frakes’ robbers. It follows that, in my view, a rational trier of fact could have found petitioner guilty beyond a reasonable doubt. Thus, I will adopt the Report and Recommendation of Magistrate Hall and deny petitioner’s writ of habeas corpus.

An appropriate order follows.

      . Because I find that, according to Pennsylvania law, responses to prior inconsistent statements may be used as substantive evidence, I do not have to reach an additional question: whether at the time of Judge Kremer’s and the Superior Court’s decision Pennsylvania law on the substantive use of prior inconsistent statements had become uncertain. I will note that Judge Kremer’s opinion was filed on April 15, 1980, the Superior Court’s on February 5, 1982. The Pennsylvania Supreme Court decided Waller, which clarified Pennsylvania law on the substantive use of prior inconsistent statements, on April 30, 1982, only a month before it denied petitioner’s allowance of appeal.

        . Finally, petitioner relies upon Wolansky v. Lawson, 389 Pa. 477, 133 A.2d 843, 844 (1957) for the proposition that, where a witness admits that his earlier testimony was incorrect, only the last statement constitutes substantive evidence. Petitioner’s Objections at 4. Thus, he argues that Judge Kremer had no substantive evidence before him when convicting petitioner. Id. Wolansky, however, involved witnesses repudiating earlier testimony made at the trial and presenting a completely different version of the accident they had witnessed. Wolansky, 133 A.2d at 844. Frakes did not state that his earlier statements, made not at trial but to police officers and at a preliminary hearing, were incorrect; he simply expressed doubts about the identity of his robbers. Wolansky, then, does not seem pertinent. Even if it were, I must be governed by the Pennsylvania Supreme Court’s more recent ruling in Waller.


author: BARRINGTON D. PARKER, District Judge.

text:
    SHEET METALS WORKERS NATIONAL PENSION FUND, Plaintiff, v. METALS AND MACHINING FABRICATORS, INC., Defendant.
    Civ. A. No. 84-2936.
    United States District Court, District of Columbia.
    Oct. 18, 1985.

      Marc E. LeBlanc, Sheet Metal Workers Nat. Pension Fund, Washington, D.C., for plaintiff.
    Gary Lofland, Wilson & Lofland, Yakima, Wash., and Paul M. Heylman, Schmeltzer, Aptaker & Sheppard, Washington, D.C., for defendant.
   MEMORANDUM ORDER

BARRINGTON D. PARKER, District Judge.

This suit was brought pursuant to the Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. §§ 1132, 1145 (1982), and the Labor-Management Relations Act, 29 U.S.C. § 185 (1982). The plaintiff, Sheet Metals Workers National Pension Fund (“Fund”), seeks to enforce the alleged obligation of the defendant employer, Metals and Machining Fabricators, Inc. (“M & M”), to make pension benefit payments to the Fund as required under ERISA. Plaintiff moved for partial summary judgment to enforce an arbitral decision issued by the National Joint Adjustment Board for the Sheet Metal Industry (“Adjustment Board” or “Board”). The Board directed M & M to make all past due ERISA contributions and to enter into a new collective bargaining agreement with Sheet Metal Workers Local Union No. 242 (“Union” or “Local 242”) that would include a continuing obligation to make such payments to the Fund. Defendant has filed a cross-motion for summary judgment. For the reasons set forth below, the plaintiffs motion is granted and the defendant’s motion is denied.

BACKGROUND

In 1977, M & M, a machine shop operator located in the State of Washington, recognized and executed a collective bargaining contract with Local 242. The contract, the Standard Form Union Agreement (“Standard Agreement”), was a model collective bargaining contract, utilized industry-wide, and effective through May 1977. Thereafter, the parties signed a series of “addenda” which were generally in effect for one year. The last were effective for the year through June of 1982. M & M notified Local 242 in February 1982 of its intention to terminate the agreement. Negotiations for a new contract began in June 1982, continuing through several months without an agreement being reached. In August 1982, M & M presented a “last and final offer.” It implemented that offer on October 7, 1982.

Further discussions took place in the following year until Local 242 declared the negotiations deadlocked on October 24, 1983 and, pursuant to article X of the Standard Agreement, submitted the dispute to the Adjustment Board for arbitration. M & M refused to participate in the arbitral proceedings. On November 11, 1983, the Board issued a decision directing the company to make all delinquent contributions to the Fund, execute a new Standard Form of Union Agreement, and continue in effect the preexisting addenda with certain modifications. M & M never moved to vacate the arbitral award and has, in effect, ignored it.

DISCUSSION

In opposition to the plaintiff’s motion to enforce the arbitration award, M & M presents a number of defenses which are, in effect, an attempt to vacate and avoid the Adjustment Board decision. Plaintiff argues, with reason and authority, that M & M cannot raise these affirmative defenses to the enforcement of the Board decision because it failed to move to vacate that decision within the applicable limitations period under Washington state law.

The courts have uniformly held that a party who fails to make a timely motion to vacate an arbitration award is barred from raising affirmative defenses in a suit to enforce the award. See, e.g., Fortune, Alsweet and Eldrige, Inc. v. Daniel, 724 F.2d 1355 (9th Cir.1983); Chaffeurs, Teamsters, etc. v. Jefferson Trucking, 628 F.2d 1023 (7th Cir.1980); cf. United Parcel Service, Inc. v. Mitchell, 451 U.S. 56, 60-62, 101 S.Ct. 1559, 1562-63, 67 L.Ed.2d 732 (1981) (applying a state arbitration statute of limitations to a suit which, while not “style[d]” as a motion to vacate the arbitration award, would have had that “direct effect”). M & M does not seriously dispute this principle but instead disagrees with the plaintiffs choice of the applicable limitations period under Washington law. Plaintiff relies on the state arbitration statute which requires that a motion to vacate an arbitral award must be made within 90 days of that award. Wash.Rev.Code Ann. § 7.04.180. But section 7.04.010 of the statute contains the following provision:

The provisions of this chapter shall not apply to any arbitration agreement between employers and employees..., and as to any such agreement the parties thereto may provide for any method and procedure for the settlement of existing or future disputes and controversies, and such procedure shall be valid, enforceable and irrevocable____

On the basis of this provision, the defendant argues that the arbitration statute’s limitations provision cannot be applied, but instead one must turn to the general state statute of limitations for written contracts. That statute allows claims to be brought within six years and thus would not bar the defenses of M & M.

It is worth noting at the outset that only two months ago the federal court for the Western District of Washington ruled on this identical issue and enforced the same arbitral award in a case brought against M & M, the present defendant. The only difference between that proceeding and this is that the same plaintiffs were not involved. See Northwest Sheet Metal Workers Welfare Fund v. Metals & Machining Fabricators, Inc., No. C84-508D, slip op., (W.D.Wa. Aug. 16, 1985). The Western District of Washington court held that the arbitration statute’s limitation provision barred M & M’s attempt to vacate the Arbitral Board decision and upheld the arbitral award.

The Western District of Washington decision relied primarily on a Ninth Circuit case, United Brotherhood of Carpenters v. FMC Corp., 724 F.2d 815 (9th Cir.1984). That decision reaffirmed an earlier ruling in Local 1020 of the United Brotherhood of Carpenters v. FMC Corp., 658 F.2d 1285 (9th Cir.1981), where the court utilized the Oregon arbitration statute’s limitations period notwithstanding the statute’s express exclusion of collective bargaining contracts. In the court’s view, the true reason for the exclusion of collective bargaining agreements was to allow the parties to specify alternative periods of limitations in their agreements. Absent such specific agreement, the court saw no reason why a 20-day period invoked by the Oregon statute should not be.adopted as a guide for a limitation period to vacate an award of an arbitrator. Id. at 1289.

Only one Washington state case has considered the relationship between the Washington arbitration statute and labor agreements. In Greyhound Corp. v. Division 1384, 44 Wash.2d 808, 271 P.2d 689 (1954), the Washington Supreme Court noted that the effect of the exclusion quoted above was to remove any doubt as to the validity of arbitration clauses in collective bargaining agreements. The court then refused to permit a union to invoke a section of the arbitration statute that permitted one party to obtain a stay of all legal action between the parties pending arbitration. According to the court, the collective bargaining agreement did not contemplate the use of the procedures of the arbitration statute.

In this case, plaintiff is not seeking to utilize a special procedure authorized by the arbitration statute, but not mentioned in the collective bargaining agreement. Rather, plaintiff asks the Court to use the arbitration statute as a guide in determining the appropriate limitations period to apply to motions to vacate arbitral awards made under its agreement with the defendant. As the court in Greyhound noted, the purpose of the section 7.04.010 exclusion was to make clear that the parties to a collective bargaining agreement are free to specify their own arbitration procedures. A specific limitations period in article X would thus clearly take precedence over the state statute. But since no period is specified, nothing prevents the Court from finding that the 90-day limitation in the arbitration statute is the most appropriate to apply in this case.

As a matter of sound policy, because of the central role that arbitration plays in labor relations, see United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 581, 80 S.Ct. 1347, 1352, 4 L.Ed.2d 1409 (1960), it would appear that application of the arbitration statute’s 90-day limitations period is preferable to utilizing the general statute of limitations for written contracts. The efficacy of the grievance resolution system agreed upon by the parties would be fatally undermined if arbitral decisions could be open to challenge over a six-year period. United Parcel Service, Inc. v. Mitchell, 451 U.S. at 64, 101 S.Ct. at 1564; see also United Brotherhood, 724 F.2d at 817 (“A short limitation ... serves the policy of resolving labor disputes expeditiously.”) M & M had ample opportunity to challenge the Adjustment Board’s jurisdiction and decision, either through a motion to vacate or a declaratory judgment action in state or federal court. Because it chose not to avail itself of those options, its defenses in this action are now barred.

Accordingly, it is this 17th day of October, 1985,

ORDERED

That plaintiff’s motion for partial summary judgment is granted and the arbitral award of the National Joint Adjustment Board for the Sheet Metal Industry, entered on November 11, 1983, is confirmed.

That defendant’s motion for summary judgment is denied.

That plaintiff shall present by October 25, 1985, a further order implementing the arbitral award and appropriate documentation to support an award of attorneys’ fees.

That a status call is scheduled for October 31, 1985 at 9:00 a.m. to discuss the resolution of any remaining issues in this proceeding.

      . Thereafter, the Union filed an unfair labor practice complaint with the National Labor Relations Board, alleging that M & M had failed to negotiate in good faith and had implemented the final offer without impasse having been reached. On April 5, 1985, an Administrative Law Judge issued a decision recommending that the Union’s complaint be upheld. The Board has not yet made a final ruling.

      . Article X, provides in part that "any controversy or dispute arising out of the failure of the parties to negotiate a renewal of this Agreement shall be settled” through arbitration.

      . Defendant argues that article X was not a part of the addenda in force until June 1982, and that, in any event, its duty to arbitrate under that clause terminated when the agreement expired. It also challenges the arbitral award on various procedural grounds.


author: ROBERT L. CARTER, District Judge.

text:
    MOTION PICTURE LABORATORY TECHNICIANS LOCAL 780, IATSE, Plaintiff, v. McGREGOR & WERNER, INC., Defendant.
    No. 85 Civ. 1875 (RLC).
    United States District Court, S.D. New York.
    Oct. 21, 1985.

      Delson & Gordon, New York City, Bernard M. Mamet & Associates, Chicago, 111., for plaintiff; Bernard M. Mamet, of counsel.
    Freehill, Hogan & Mahar, New York City, for defendant; Jesse S. Hogg, Allen J. McKenna, Hogg, Allen, Ryce, Norton & Blue, P.A., Coral Gables, Fla., of counsel.
   OPINION

ROBERT L. CARTER, District Judge.

Defendant moves pursuant to Rule 12(b), (1), (2), (3) and (5), F.R.Civ.P., to dismiss the complaint for lack of subject matter jurisdiction, lack of in personam jurisdiction, improper venue and insufficient service of process.

This is a suit seeking to have judgment entered on an arbitration award. The United States Arbitration Act, 9 U.S.C. § 9, provides that the parties may specify the court to which application may be made for an order confirming an arbitration award. If, however, no court is specified by the parties, Section 9 provides that “application may be made to the United States court in and for the district within which such award was made.”

Defendant contends that subject matter jurisdiction is lacking because the arbitration proceedings took place in Florida and only ministerial acts of the arbitrator took place here. However, it must be conceded that the award was made in New York, since that fact is evidenced by the attestation and signature of the arbitrator. Since no specific court was named to which application for confirmation was to be made, plaintiff was entitled to seek confirmation in this court. U.S. ex rel. Chicago Bridge & Iron v. Ets-Hokin Corp., 397 F.2d 935 (9th Cir.1968); Island Creek Coal Sales Co. v. City of Gainesville, 729 F.2d 1046 (6th Cir.1984); City of Naples v. Prepakt Concrete Co., 490 F.2d 182, modified on other grounds, 494 F.2d 511 (5th Cir.), cert. denied, 419 U.S. 843, 95 S.Ct. 76, 42 L.Ed.2d 71 (1974). Indeed, plaintiff could not obtain the order it seeks in any court but this. The claim that subject matter jurisdiction is lacking, therefore, has no merit.

Section 9 provides that a non-resident adverse party “be served by the marshall of any district within which the adverse party may be found in like manner as other process of the court.” Personal service was made on a vice president and authorized agent of the defendant at its corporate headquarters. Defendant was also served by mail as provided in Rule 4, F.R.Civ.P., and arrangements were made for personal service by the United States Marshal for the District of Columbia, the domicile of defendant. Plaintiff has been advised that service by the Marshal has not been effectuated, but efforts are continuing. The service requirements of Section 9 of the Act have been satisfied. The claim of improper service, therefore, is without merit.

Defendant finally contends that it filed suit in the Middle District of Florida on December 21,1984, seeking to set aside the arbitrator’s award and that this court, therefore, has no jurisdiction to hear the case under Section 9 or Section 10 of the Act. That court is without any jurisdiction in this matter, since this court under Section 9 is the only court authorized to confirm the arbitrator’s award. Accordingly, the prior ruling and counterclaim arguments as to the action in the Middle District of Florida have no merit.

The motion is denied in all respects.

IT IS SO ORDERED.


text:
    James FERNHOFF, Plaintiff-Appellant, v. TAHOE REGIONAL PLANNING AGENCY and Does I-XX, Defendants-Appellees.
    No. CV-R-83-431-ECR.
    United States District Court, D. Nevada.
    Oct. 22, 1985.

      James Fernhoff, in pro per.
    Heaton, Doescher & Owen, Ltd., Carson City, Nev., for defendants-appellees.
   ORDER

EDWARD C. REED, Jr., District Judge.

Plaintiff has appealed to the Ninth Circuit Court of Appeals from the summary judgment entered in favor of defendant Tahoe Regional Planning Agency (TRPA), which judgment dismissed the action. The Order granting summary judgment has been published at 599 F.Supp. 185. On July 24, 1985, the Ninth Circuit denied Plaintiffs motion to submit new evidence, but without prejudice to its presentation to this district court. Plaintiff now has made such a motion here.

The new evidence is a letter dated April 7, 1977, on TRPA stationery and signed by an Asst. Engineer/Investigator of the Agency. The letter was addressed to the Planning, Public Works and Building Departments of the counties and cities (both in Nevada and in California) that border on Lake Tahoe. The subject of the letter was parcel maps. The letter writer noted that, in several cases, parcels or lots had been created in violation of a particular TRPA Land Use Ordinance that limited density of dwelling units and amount of land coverage. The last paragraph of the letter reads:

“To insure that all land divisions conform to Agency regulations, we request that a copy of all proposed parcel maps, including property line adjustments, be sent to this office prior to City or County approvals. We will review them at staff level and provide specific ordinance interpretations where necessary.”

Plaintiff alleges that the letter constitutes newly discovered evidence which he uncovered only after all appeal briefs had been submitted to the Ninth Circuit. It is his position that the letter is a written policy letter of the TRPA, and that it activated the “deemed approved” clause of the California-Nevada interstate compact to regulate the Lake Tahoe Basin. That clause states, in pertinent part, that whenever under any policy adopted by the TRPA the Agency is required to review or approve any proposal, the Agency shall take final action on the proposal within 60 days after it has been delivered to the Agency. “If the Agency does not take the final action within 60 days, the proposal shall be deemed approved.” The point being made by Plaintiff is that TRPA’s position in this litigation always has been that the Agency did not require review of parcel maps for developments of as small a magnitude as Plaintiffs, therefore the “deemed approved” clause was inapplicable. The letter establishes, in Plaintiff's opinion, that review of Douglas County’s approval of his tentative parcel map was required by the TRPA policy set forth in the letter. Thus, the Agency’s failure to act within 60 days resulted in its automatic approval of Douglas County’s approval, Plaintiff argues.

Oral arguments were heard on October 7, 1985, by the Ninth Circuit in connection with Plaintiff’s appeal of the summary judgment against him. An opinion has not yet been filed, however, so that Plaintiff’s motion to supplement the record with new evidence has not been rendered moot.

Fed.R.Civ.P. 60(b) authorizes a court to relieve a party from a final judgment by reason of newly discovered evidence. One prerequisite for obtaining such relief is a showing that the evidence is of such a character that it would probably change the outcome of the proceedings. Giordano v. McCartney, 385 F.2d 154, 155 (3rd Cir.1967); United States v. Walus, 616 F.2d 283, 288 (7th Cir.1980); Rayor v. United States, 323 F.2d 519, 523 (9th Cir.1963). Plaintiff’s evidence does not fulfill this requirement. This is because he never has had a valid, unqualified permit to proceed with the development of his land.

Where TRPA has failed to take final action on a proposal within 60 days, the operational effect of its failure is that the decision of the local authority in effect stands affirmed. California Tahoe Regional Planning Agcy. v. Jennings, 594 F.2d 181, 189 (9th Cir.1979). Plaintiffs application to Douglas County for a permit was forwarded by the County to TRPA. Four days later, on December 13, 1977, TRPA advised Douglas County that the application was not in compliance with the Agency’s Land Use Ordinance 9.31. Further information was requested. On December 29, 1977, the Douglas County Planning Commission approved Plaintiff’s tentative parcel map, subject to certain specified conditions. These conditions included documenting legal access to the parcel, identifying (1) land capability, (2) land use district, (3) existing land coverage and (4) building footprints, and paving the road.

Plaintiff employed a bulldozer to grade a road on May 12, 1978. Four days later he was arrested and charged with violating both County and TRPA ordinances, as well as State statute. On May 19, 1978, Douglas County commenced a civil action seeking injunctive relief that would prohibit Plaintiff from doing further grading or tree cutting. Plaintiff stipulated that he would refrain from such activities. On May 31, 1978, a Nevada District Court approved an order based on the stipulation. Quite clearly, Douglas County (which Plaintiff alleges is the source of his permit) did not regard Plaintiff as having complied with the conditions precedent.

TRPA sent Plaintiff a letter on September 26,1980. In the letter it directed Plaintiff to recontour and revegetate the road he had bulldozed. The letter was sent in connection with TRPA’s denial of Plaintiff’s request for a variance from land coverage restrictions. Several months later, on January 15,1981, Plaintiff sued Douglas County for a writ of mandate requiring the County to issue all necessary approvals and permits. It must have been unmistakeably clear at that time that Plaintiff had received no valid approval or permit to develop his land.

A stipulation was entered in that case; it was filed on March 7, 1983. It stated that the tentative parcel map had been approved by the Douglas County Planning Commission, on December 29, 1977, subject to subsequent review and approval by the Douglas County Board of Commissioners. Further, the stipulation required Plaintiff to provide improvement plans to the County. Likewise, the stipulation required Plaintiff to obtain an administrative permit from TRPA for environmental impact from his road before the County would issue its construction permit for the road (which was meant to serve the individual lots). Finally, Plaintiff was obligated either to complete construction of the road or to provide a letter of credit prior to recordation of his parcel map. The State Court ratified and confirmed the stipulation and ordered the parties to abide by its terms, on March 11, 1983 (filed March 22, 1983). Obviously, Plaintiff still did not have a valid permit.

TRPA advised Plaintiff, on June 28, 1983, that it could not consider his application for an administrative permit, because construction of the road would be in violation of its Land Use Ordinance 81-5 (adopted November 1982). The instant lawsuit was commenced October 26, 1983.

The law in Nevada is that vested rights against changes in a zoning law arise only after (1) a building permit has been issued and (2) the permittee has incurred considerable expense in reliance thereupon. City of Reno v. Nevada First Thrift, 100 Nev.Adv.Op. 102, 686 P.2d 231, 233-34 (1984); Board of Cty. Com’rs v. CMC of Nevada, Inc., 99 Nev. 739, 670 P.2d 102, 107 (1983). Plaintiff has never had a building or construction permit. Therefore, he has never had a vested right against any zoning changes that might restrict the development of his land. Nor would any default approval (failure to act within 60 days) by TRPA immunize the County’s conduct re issuance of construction permits from judicial review. California Tahoe Regional Planning Agcy. v. Jennings, supra at 594 F.2d 189.

The statute of limitations argument of Petitioner is inapposite. The 25-day limitation provided in NRS 278.0235 is limited to actions against the agency or governing body for relief from its zoning final actions.

Plaintiffs allegation that TRPA’s conduct was fraudulent, in not disclosing to him the April 7, 1977 letter, won’t withstand scrutiny either. The belief of the TRPA staff member, at an August 18, 1983, meeting in the office of Plaintiff’s then-attorney, that “verbal policy” required Douglas County to send Plaintiff’s tentative parcel map to TRPA, may have been an honest belief. A Fed.R.Civ.P. 60(b)(3) motion for relief from a judgment because of the fraud of an adverse party requires the moving party to establish fraud by clear and convincing evidence. Petition of Cardines, 366 F.Supp. 700, 707 (D.Guam 1973).

F.R.A.P. 10(e) allows a district court to transmit supplemental material to the court of appeals if anything material to either party is omitted from the record on appeal. As discussed above, the April 7, 1977, letter is not material because it cannot change the fact that Plaintiff never has had a valid construction permit.

IT IS, THEREFORE, HEREBY ORDERED that Plaintiff’s motion to supplement the record on appeal with newly discovered evidence be DENIED.

IT IS FURTHER ORDERED that the Clerk of this Court shall send a courtesy copy of this Order to the Ninth Circuit Court of Appeals.