author: JAMES M. BURNS, District Judge.

text:
    UNITED STATES of America, Petitioner, v. METROPOLITAN DISPOSAL CORPORATION, Respondent.
    CR. No. 83-29-BU.
    United States District Court, D. Oregon.
    Oct. 11, 1985.
    Amended Supplemental Findings of Fact & Conclusions of Law Filed Oct. 29, 1985.

      Charles H. Turner, U.S. Dist. Atty., Portland, Or., and Bernard M. Hollander, Antitrust Div., Dept, of Justice, Washington, D.C., Richard B. Cohen, Antitrust Div., Dept, of Justice, San Francisco, Cal., for petitioner.
    John S. Ransom, Ransom, Blackman & Simson, Portland, Or., for respondent.
   ON MOTION FOR JUDGMENT OF ACQUITTAL

JAMES M. BURNS, District Judge.

Respondent (MDC), pursuant to Rule 29, Federal Rules of Criminal Procedure, renews its motion for judgment of acquittal. MDC contends that its conduct could not have been found to be “willful” as necessary for conviction in a criminal contempt action. Respondent’s motion is DENIED.

On December 6, 1984, I denied respondent’s initial Rule 29 motion for judgment of acquittal. I then found MDC in criminal contempt for willfully violating court orders. MDC now argues that United States v. Garcia, 751 F.2d 1033, 1035 (9th Cir.1985) requires a showing of “specific intent” to properly convict a defendant of criminal attempt. I do not agree.

The Garcia case interprets 18 U.S.C. § 665(a) a statute which deals with one who “embezzles, willfully misapplies, steals or obtains by fraud” certain monies. The Ninth Circuit reasoned that the term “willfully misapply” in § 665(a) required a specific intent to injure or defraud the United States.

The statute at issue here, 18 U.S.C. § 401(3) does not contain such language. Section 401(3) states:

A court of the United States shall have power to punish by fine or imprisonment, at its discretion, such contempt of its authority, and none other, as ____ (3) Disobedience or resistance to its lawful writ, process, order, decree or command.

This circuit has held that “[a] contempt is a willful disregard or disobedience of public authority and the requisite wrongful intent may be inferred from [a] reckless disregard of obligations to the court.” In Re Allis, 531 F.2d 1391, 1392 (9th Cir.1976), cert. denied, 429 U.S. 900, 97 S.Ct. 267, 50 L.Ed.2d 185 (1976).

In Goldfine v. United States, 268 F.2d 941, 945 (1st Cir.1959), cert. denied, 363 U.S. 842, 80 S.Ct. 1608, 4 L.Ed.2d 1727 (1960), the district court required the government to prove the elements of criminal contempt, including ... “that the defendant acted ‘willfully.’ ” (Id. at 945). On defendant’s appeal the Circuit Court affirmed stating:

The only one of the ... elements which is really in dispute is ..., that the appellants acted willfully in failing to produce the aforesaid records. Willfulness almost necessarily has to be proved as an inference from circumstantial evidence; and in this case we cannot say that the district court erred in drawing that inference. Indeed we cannot see how the court could have failed to draw such inference. The government does not have the burden of negativing all possible excuses for noncompliance with a court order. It is enough to make out a prima facie case for the government to show, as the government did below, that the appellants, in response to the interim court order calling for the production of corporation records, refused to surrender them when they were in existence and within their control. See, Nilva v. United States 1957, 352 U.S. 385, 392, 77 S.Ct. 431, [435], 1 L.Ed.2d 415. (268 F.2d at 945) [emphasis supplied]

I find the government has satisfied its burden in this case. Accordingly, respondent’s renewed motion for judgment of acquittal is DENIED.

IT IS SO ORDERED.

OPINION AND ORDER

On December 6, 1984, I found Metropolitan Disposal Service (“MDS”) in criminal contempt for wilfully failing to produce certain business documents called for by a subpoena duces tecum dated August 7, 1981 and by an October 15, 1981 order of this Court.

The government recommends a fine of $10,000 be imposed on MDC and seeks $7,928.18 for costs of prosecution. MDC contends the fine amount is not appropriate in this case and objects to the government’s request for costs. I address each issue separately.

Amount of Fine

The criteria to be considered in determining a proper fine for criminal contempt is set out in United States v. United Mine Workers, 330 U.S. 258, 67 S.Ct. 677, 91 L.Ed. 884 (1947). According to the Court:

In imposing a fine for criminal contempt, the trial judge may properly take into consideration the extent of the willful and deliberate defiance of the court’s order, the seriousness of the consequences of the contumacious behavior, the necessity of effectively terminating the defendant’s defiance as required by the public interest, and the importance of deterring such acts in the future. Because of the nature of these standards, great reliance must be placed upon the discretion of the trial judge.
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It is a corollary of the above principles that a court which has returned a conviction for contempt must, in fixing the amount of a fine to be imposed as a punishment or as a means of securing future compliance, consider the amount of defendant’s financial resources and the consequent seriousness of the burden to that particular defendant.

Id. at 303-04, 67 S.Ct. at 701.

MDC contends its conduct was not “willful and deliberate defiance” but rather that it was, at best, merely negligent in its search for the documents. I am not persuaded by this argument.

At close of trial I found MDC had acted “willfully” in failing to produce the responsive documents. No reason is presented which persuades me now to accept MDC’s contention that its failure to comply was due to “oversight”. The record shows that on October 23, 1981, MDC produced 245 pages of documents and represented by sworn affidavit that they were all the documents in MDC’s possession which were responsive to the grand jury subpoena. On April 23, 1982, FBI agents, not familiar with MDC’s files or operation, searched MDC’s corporate office. They found an additional 1000 pages of documents responsive to the subpoena. This fully justifies my finding that MDC did not conduct their search in good faith.

MDC’s failure to place a knowledgeable employee or officer in charge of the search and MDC’s failure to conduct an adequate search for the documents goes far beyond the scope of “oversight”. Accordingly, I find again, that MDC acted in deliberate defiance of the subpoena and this Court’s order.

I am also required to consider MDC’s financial resources when fixing the amount of a fine to be imposed. United States v. United Mine Workers, supra, at 304, 67 S.Ct. at 701.

MDC argues that it does not have excess financial resources and objects to the recommended $10,000 fine.

MDC’s tax returns for fiscal years 1980, 1981, and 1982, show net income of $21,-635, $97,098 and $119,829 respectively. They indicate an average net worth of approximately $3,000,000 and total positive cash flow of $946,124 from operations during the three year period. Andre Cozzetto, MDC’s Controller, reported to Dun and Bradstreet that as of November 13, 1984, MDC’s annual sales were up to $3,700,000 and profits for the last six months were up.

On the other side of the ledger, MDC states it purchased equipment and incurred additional debt during the period requiring $780,665 of the positive cash flow. They also maintain that current liabilities and operation costs have increased significantly.

Sentences for criminal contempt are punitive in their nature and imposed for purposes of vindicating the authority of the court. Gompers v. Buck Stove and Range, 221 U.S. 418, 31 S.Ct. 492, 55 L.Ed. 797 (1911). One who defies the public authority does so at his peril. United Mine Workers, supra, at 303, 67 S.Ct. at 701. After reviewing the financial records submitted in this case, I am satisfied that a fine of $10,000 is neither arbitrary nor excessive.

Costs of Prosecution

18 U.S.C. § 401 does not specify whether or not costs may be awarded to the United States if a defendant is found guilty of criminal contempt. In my view, 28 U.S.C. § 1918(b) applies. United States v. Gering, 716 F.2d 615, 625 (9th Cir.1983). Under § 1918(b) “a district court has discretion to award costs and to determine the appropriate amount ... as long as the items of cost are imposed only on non-indigent defendants in a non-discriminatory manner.” Gering supra at 626.

28 U.S.C. § 1920 identifies items which are properly taxable under § 1918(b). Section 1920 provides:

(1) Fees of the Clerk and Marshal;
(2) Fees of the court reporter for all of any part of the stenographic transcript necessarily obtained for use in the case;
(3) Fees and disbursements for printing and witnesses;
(4) Fees and exemplification and copies of papers necessarily obtained for use in the case;
(5) Docket fees under section 1923 of this title;
(6) Compensation of court appointed experts, compensation of interpreters, and salaries, fees, expenses and costs of special interpretation services under section 1828 of this title.

Section 1921 provides for per diem, mileage and subsistence for witnesses.

The government seeks $7,928.18 for costs of prosecution. Specifically it requests:

(1) fees of the court reporter $1,460.35
(2) fees for witnesses $1,352.42
(3) fees for copies $ 485.46
(4) travel and subsistence for government attorneys and staff $3,745.05
(5) cost of FBI search of MDC’s office $ 884.00

1. Court Reporter

MDC objects to the imposition of costs for fees of the court reporter. It contends the transcripts were not “necessarily obtained for use in the case” but rather were ordered for the convenience of the government.

Expenses for the trial transcript and for transcribing arguments, pretrial proceedings and the like are allowable costs. Twentieth Century Fox Film Corp. v. Goldwyn, 328 F.2d 190, 224 (9th Cir.1964). However, the statute requires that the transcripts be “necessary”. This was neither a lengthy nor complex trial and few witnesses testified. See United States v. Black, 589 F.Supp. 594 (D.Ore.1984) (trial lasted sixteen days and approximately 56 witnesses were called). Accordingly, I find the trial transcript and transcripts for pretrial hearings and motions were not necessary.

Costs can also include the costs of grand jury transcripts furnished pursuant to the defendant’s request and admitted into evidence at trial. United States v. Pommerening, 500 F.2d 92, 102 (10th Cir.1974). The grand jury transcripts of Andre Cozzetto, Patricia Yeager, Toma Amendolara, and Lewis Cozzetto, although prepared prior to issuance of the petition, were furnished at MDC’s request. Secondly, respondent agreed to use the transcripts at trial in lieu of testimony from the individuals. To that extent, I find the grand jury transcripts were “necessary” and award costs of $701.00.

2. Witness Fees

Travel and subsistance for government employees who testify at trial, is an allowable cost. Pommerening, supra at 102; Nissho-Iwai Co., Ltd. v. Occidental Crude Sales, Inc., 729 F.2d 1530, 1552 (5th Cir.1984). The government seeks witness fees as follows: Lawrence Hansen $562.00; Bernard H. Meyers $346.16; and Patricia A. Murphy $368.06.

The record shows MDC agreed to stipulate to the testimony of Bernard Meyers. The purpose of stipulation is to reduce litigation costs and make unnecessary the presence of witnesses. Mr. Meyers’ trial testimony was primarily covered by the stipulation. I disallow his expenses as unnecessary.

MDC contests the amounts for both Lawrence Hansen and Patricia Murphy as exaggerated. A review of the government’s itemization indicates both witnesses were required to travel from California to Portland, Oregon for the one-half day trial. Given the general nature of MDC’s objection, I have no basis for finding the claimed amounts excessive and thus allow them as recoverable costs.

3. Fees for Copies

The government requests $485.46 for copying costs. The costs incurred for copying exhibits and documents are allowable under 28 U.S.C. § 1920(4). Nisso-Iwai, supra at 1553. Although no specific showing of “necessity” has been made, I find the amount reasonable and exercise my discretion in allowing it.

MDC objects to the government’s requests for costs of the FBI search of Metropolitan Disposal Corporation, $884.00 and travel and subsistance for government attorneys and staff, $3,745.05. Defendant argues these items are not included in the statute and should not be allowed.

Section 1920 does not present an exclusive list of expenses, however its provisions are strictly construed. See Pommerening supra at 102; United States v. Vaughn, 636 F.2d 921, 922 (4th Cir.1980). The costs of the FBI search of MDC’s corporate office are not justified under the statute and there is little caselaw to support imposing them. Accordingly, these costs are disallowed.

While it may be within my discretion to allow travel and subsistence costs, I do not find it appropriate here. Considering the nature of the case, the lack of complexity, and the evidentiary concessions made, the government has failed to make a showing of necessity to justify an award of such costs. See United States v. Black, supra at 597 n. 1.

Thus, costs will be allowed in the amount of $2,116.52; the Clerk will enter judgment accordingly.

IT IS SO ORDERED.

AMENDED SUPPLEMENTAL FINDINGS OF FACT AND CONCLUSIONS OF LAW

INTRODUCTION

On March 4, 1983, a Petition to Show Cause was filed by the United States which charged the defendant, Metropolitan Disposal Corporation (“MDC”), with knowingly and intentionally disobeying and resisting lawful orders of this Court. The Petition charged that MDC failed to produce documents called for at the time and place commanded by a subpoena duces tecum dated August 7, 1981, and by an October 15, 1981 Order of this Court. The Petition asked this Court to find MDC in criminal contempt for its failure to produce documents responsive to said orders.

This case was tried to the Court on December 6, 1984. At the conclusion of the trial, I found MDC in criminal contempt and made the following findings:

1. That a valid grand jury subpoena duces tecum had been served on MDC;

2. That on the date MDC was served, there were numerous MDC documents responsive to said grand jury subpoena;

3. That said responsive documents were at that time in MDC’s possession, custody and control;

4. That MDC did not produce many of said responsive documents to the grand jury;

5. That MDC’s failure to produce was willful, and

6. That, beyond a reasonable doubt, MDC was guilty of criminal contempt.

In addition to these findings, I asked the United States to propose more detailed findings of fact for my consideration. I now adopt these findings as Supplemental Findings of Fact and Conclusions of Law.

SUPPLEMENTAL FINDINGS OF FACT AND CONCLUSIONS OF LAW

1. Criminal Contempt under 18 U.S.C. § 401(3) is established when: (1) there is a clear and definite order and the contemnor knew of the order; and (2) the contemnor willfully disobeyed the order. Chapman v. Pacific Telephone and Telegraph Company, 613 F.2d 193, 195 (9th Cir.1979). The specific elements of criminal contempt which must be proved where the charge is based on failure to comply with a subpoena duces tecum are: (1) that there was valid service of the subpoena; (2) that the subpoenaed documents were in existence at the time the subpoena was served; (3) that the subpoena recipient had control of the subpoenaed documents; (4) that the recipient failed to make production of the documents at the time they were to be produced; and (5) that the failure to produce was intentional or willful. Goldfine v. United States, 268 F.2d 941, 945 (1st Cir.1959), cert denied, 363 U.S. 842, 80 S.Ct. 1608, 4 L.Ed.2d 1727 (1960); see also, Nilva v. United States, 352 U.S. 385, 392, 77 S.Ct. 431, 435, 1 L.Ed.2d 415 (1957).

2. On August 7, 1981, the Clerk of the Court for the District of Oregon issued a grand jury subpoena with a schedule of documents attached to be served upon MDC by the United States Marshal for the District of Oregon. The grand jury subpoena called for certain documents dated, prepared, received or sent after January 1, 1975, and commanded MDC to produce said documents to the grand jury on September 15, 1981. [GX 1]

3. On August 19, 1981, MDC was served with the grand jury subpoena. [GX 6 — November 19, 1984 Stipulation between the parties (hereinafter “Stipulation”) p. 2, Tl 4; TR (J. Cozzetto) 48-49].

4. On October 8, 1981, MDC moved to quash the grand jury subpoena. This motion was argued to this Court on October 15, 1981 and, except as to certain documents that were allegedly responsive to Part IV, paragraph B, of the subpoena (which MDC claimed were privileged documents), the motion was denied and MDC was ordered to turn over all responsive documents to the grand jury by October 23, 1981. [Stipulation, p. 3 116; GX 11 (February 9, 1982 Order of Reference) ].

5. After receipt of the grand jury subpoena, MDC’s Board of Directors met and decided, without conducting a search, that MDC did not have documents responsive to Part IV, paragraphs B., D., H. 1-7 and K of the grand jury subpoena, when in fact they did have such documents. [GX 14, pp. 26, 29-30, and 35-37, GX 8].

6. MDC placed Andre Cozzetto, who had worked for MDC on a full time basis only for approximately one year and who had relatively little knowledge about MDC’s documents and filing system, in charge of the search for documents responsive to the grand jury subpoena. [GX 14 pp. 8-10, 19, Vol. II, p. 4; TR (J. Cozzetto) 50, 53].

7. Andre Cozzetto, as supervisor of MDC’s search, did not personally observe the document search performed by other MDC officers or employees, nor did he ask them where or how extensively they had searched for documents. He merely took the documents handed to him and gave them to MDC’s counsel without even reviewing them. [GX 14, pp. 23-26, 31-33, 39-40, Vol. II, pp. 3-4].

8. MDC placed its President, James Cozzetto, in charge of the search for documents responsive to Part IV, paragraphs B, C, D, H. 1-7 and K of the grand jury subpoena. However, James Cozzetto did not search for any documents responsive to those paragraphs. [GX 14, pp. 21-26, 31-39; TR (J. Cozzetto) 56-58, 64].

9. On October 23, 1981, MDC produced to the grand jury, by mail, only 245 pages of documents and represented, in Andre Cozzetto’s sworn affidavit of compliance, that these were all the documents MDC had which were responsive to the grand jury subpoena. [GX 2, Stipulation, p. 3, ¶1 9; TR (Murphy) 12].

10. On five separate occasions — October 27, 1981, February 18, 1982, February 22, 1982 (by letter), March 1, 1982 and March 17, 1982 — MDC was warned by Department of Justice attorneys assisting the grand jury that they believed that MDC’s search was insufficient. MDC did not respond to or make further compliance pursuant to those warnings. [Stipulation, pp. 4-5-, Us 10, 12-15, GX 3; TR (Meyers) 4042].

11. On April 22,1982, the United States obtained a search warrant authorizing a search of MDC’s corporate office at 8443 North Kerby in Portland, Oregon, for documents responsive to the grand jury subpoena. [GX 4; TR (Murphy) 16].

12. On April 23,1982, after a 45 minute briefing by a Department of Justice attorney, seven FBI agents searched MDC’s office pursuant to the April 22, 1982 search warrant. In less than three hours, said FBI agents searched all seven of MDC’s file cabinets and the other areas in MDC’s corporate office where documents were kept. The FBI agents, who were not familiar with MDC files, MDC’s operation or the trash industry, found and seized over two boxes of documents (over 1000 pages of documents) responsive to the grand jury subpoena that had not previously been turned over either to the grand jury or to the Court. [GX 5, GX 8, GX 100-161, GX 200-321, GX 400-419, GX 500-505, GX GOO-614, and GX 638-747; Stipulation, pp. 5-10, Us 16 a-u, 17-30; TR (Murphy) 16-23].

13. The documents marked as GX 100-162, 200-321, 400-419, 500-505, 600-614, 638-747 which were seized during the search of MDC’s corporate office were:

a. Dated, prepared, received or sent between January 1, 1975, the beginning date of the time period covered by said grand jury subpoena, and August 19, 1981, when said grand jury subpoena was served on MDC, and were in MDC’s possession, custody and control at the time said grand jury subpoena was served on MDC; [GX 8].
b. Not produced to the grand jury or the Court at any time prior to April 23, 1982 search of MDC’s corporate offices; [Stipulation, pp. 5-9, ¶ 16 and
c. Responsive to said grand jury subpoena.
For example:
(1) GX 100 is a document titled “Final Settlement Agreement.” It is dated March 20, 1980 and records an agreement between MDC and SCA Services of Oregon (hereinafter referred to as “SCA” a competing provider of commercial trash collection services in the Portland metropolitan area). It states in part that it “covers any and all outstanding oral agreements made by any prior management of SCA Services Inc., and Metropolitan Disposal Corporation with regard to trading of accounts, subcontracting and bid and performance bond costs.” Said document was called for by certain paragraphs of said grand jury subpoena. [GX 100, GX 1; Stipulation, pp. 5-6, 1116 a; TR (J. Cozzetto) 57-58].
(2) GX 109 is a signed copy of a promissory note by MDC for $105,417.89 to SCA, dated August 13, 1979, which required monthly payments by MDC to SCA. It was called for by certain paragraphs of said grand jury subpoena. [GX 109, GX 1; Stipulation, p. 6 1116 b].
(3) GX 115-162 are trade lists, notes and other documents showing the trading, during the period 1977 through 1978, of many accounts between and among MDC and a number of its competitors, including SCA, Vogel Brothers, A. Walker Disposal, Mclnnis Sanitary Service and Campagna & Zanni Refuse Service, Inc., These documents were called for by certain paragraphs of said grand jury subpoena. [GX 115-162, GX 1; Stipulation, p. 6, 116, ¶ 16 c; TR (J. Cozzetto) 64].
(4) GX 318-320 is a three-page document dated March 25, 1979 entitled “Accounts Receivable from Metropolitan Disposal Corporation.” It lists the names of specific MDC accounts served by SCA and the amounts due SCA. This document was called for by certain paragraphs of said grand jury subpoena. [GX 318-320, GX 1; Stipulation, p. 7 1116 j].
(5) GX 400-419 and 501 are materials concerning bids for trash collection to the State of Oregon, the City of Portland, the Portland Public Schools and Portland State University. These documents were called for by certain paragraphs of said grand jury subpoena. [GX 1, GX 400-419, GX 501; TR (J. Cozzetto) 66-69].

14. SCA, a trash hauler and a competitor of MDC, received a grand jury subpoena with document requests identical to the one served on MDC, and produced to the grand jury documents identical to or similar to those marked as GX 100, GX 109, GX 115-162, and GX 321 in response to said grand subpoena. [GX 7, GX 100, GX 109, GX 115-162, GX 321; TR (Murphy) 20-23].

15. MDC’s failure to place a knowledgeable official in charge of its search for documents responsive to the grand jury subpoena, its failure to conduct an adequate search for those documents and its failure to heed at least five warnings that its production was inadequate, shows that MDC acted with a reckless disregard of its obligations to this Court. Such reckless disregard establishes that MDC acted willfully in failing to produce documents responsive to the grand jury subpoena and this Court’s Order of October 15, 1981 and thus is guilty of criminal contempt. United States v. Baker, 641 F.2d 1311, 1317 (9th Cir.1981); United States v. Greyhound Corp., 508 F.2d 529, 531-532 (7th Cir.1974); In re Allis, 531 F.2d 1391, 1392 (9th Cir.1976), cert. denied, 429 U.S. 900, 97 S.Ct. 267, 50 L.Ed.2d 185 (1976).

      . MDC submitted corporate tax returns for the fiscal years 1981, 1982 and 1983. Gross receipts or sales were indicated as $2,698,732, $2,724,611 and $3,398,207 respectively.

      . Memorandum of the United States in Support of Recommended Fine and Proposed Bill of Costs, Appendix C.


source: Caselaw Access Project

author: ROBERT L. CARTER, District Judge.

license: Public Domain

text:
    John WILLIAMS, Neal Rosenstein, Ursula Abrams, Marianne Morris, Dominick Pesola, Paul Sedita, Noah Kaufman, Margaret O’Hanlon, Jennifer Williams, Carla Rice, Sabrina Marshall, Dinah Fieske, Jill Nagle, Lauren Supraner, Jeff Hettinger, on behalf of themselves and other persons similarly situated, Plaintiffs, v. George D. SALERNO, R. Wells Stout, Donald Rettaliata, and William H. McKeon, as Commissioners of the New York State Board of Elections, New York State Board of Elections, Antonia D’Apice, and Marion Oldi, as Commissioners of the Westchester County Board of Elections, The Westchester County Board of Elections, Defendants.
    No. 82 Civ. 8128 (RLC).
    United States District Court, S.D. New York.
    Oct. 28, 1985.

      New York Civil Liberties Union, New York City, (Arthur N. Eisenberg, Jeanette Sadik-Khan, of counsel), for plaintiffs.
    Taylor, McCullough, Goldberger, and Geoghegan, White Plains, N.Y. (Charles A. Bradley, of counsel), for defendant, Antonia D’Apice.
    Arthur Goodman, White Plains, N.Y., for defendant, Marion Oldi.
    Robert B. Abrams, Atty. Gen., for the State of N.Y., New York City (Stephen M. Jacoby, of counsel), for defendants Salerno, Stout, Rettaliata and McKeon.
   OPINION

ROBERT L. CARTER, District Judge.

History of the Case

In September and October, 1983, approximately 450 students enrolled at the State University of New York at Purchase, New York (“SUNY-Purchase”) sought to qualify to vote as residents of Purchase. Their applications were rejected: the first 101 by the joint decision of both Commissioners of the Westchester County Board of Elections, Commissioners Marion Oldi and Antonia D’Apice; the remainder, by Commissioner D’Apice unilaterally. A form letter of rejection was sent to all applicants, but was signed by both Commissioners in only 101 of the 450 rejections sent. The letter quoted § 1-104-22 of the New York Election Law, and stated that “[a] college dorm cannot be considered as fixed, permanent or principal home” and suggested that the student “register and vote from your home community.” Letter dated Sept. 28, 1983, Plaintiffs’ Exhibit 1.

Although Commissioner Oldi initially took the view of the law reflected in the September 28, 1983 letter, she changed her position and refused to sign any letter after the first 101 rejections. Commissioner D’Apice, in the belief that the letter reflected the proper interpretation of the law, sent letters of rejection to the remaining applicants over her signature alone.

By memorandum dated October 6, 1983, the Senior Assistant County Attorney advised Commissioners Oldi and D’Apice “[a]s an addition to my previous memo on the same topic, the Board of Elections may not prevent people from registering to vote merely because they are students.” Memorandum of the Office of County Attorney, Defendant Oldi’s Exhibit B. Thomas Zolezzi, counsel to the New York State Board of Elections, advised that the 350 students who had been rejected by Commissioner D’Apice should be registered on the theory that New York Election Law required such action by the Board of Elections which could act only by majority vote.

None of the students was registered, and this litigation was commenced in the Northern District of New York as a class action seeking declaratory judgment and injunctive relief to enable students enrolled at SUNY-Purchase to vote as residents of the college community. The case was transfered to this court, and a preliminary injunction was entered on November 4, 1983. The injunction enjoined refusal to allow students to register to vote. It was held that denying college students the right to register to vote on the grounds that “they were residents of a college campus” and therefore, “could not under any circumstances be permanent residents within the meaning of The [New York] [Ejection [L]aw” was constitutionally invalid. In addition, the denial was held a violation of state law since the law required the joint action of the two Commissioners to reject an application. Transcript Nov. 4, 1983 hearing at 41.

In January, 1984, pursuant to conference with the court, it was agreed that active litigation in this case would not proceed pending the disposition of Auerbach v. Kinley then pending in the Northern District of New York. On October 10, 1984, Judge McCurn decided that case, holding § 5-104 of the New York Election Law unconstitutional on its face and as applied. See Auerbach v. Kinley, 594 F.Supp. 1503, 1507-10 (N.D.N.Y.1984). That portion of Judge McCum’s opinion holding § 5-104 to be facially unconstitutional was taken to the Second Circuit. On June 11, 1985, the Second Circuit reversed Judge McCurn holding the statute constitutional on its face. See Auerbach v. Rettaliata, 765 F.2d 350, 355 (2d Cir.1985).

That determination generated activity in this case. On September 16,1985, Commissioner D’Apice moved by order to show cause to vacate the preliminary injunction entered in this case on November 4, 1983, and pending hearing sought a temporary restraining order modifying the 1983 decree. After a hearing on September 18, 1985, the application for a temporary restraining order was denied, and the motion to vacate the injunction was set down for hearing on October 3. At a conference on October 3, the matter was set down for an evidentiary hearing on October 17 and 18.

At that hearing both Commissioner Oldi and Commissioner D’Apice testified, and a deposition was taken of Thomas Zolezzi, counsel to the New York State Board of Elections, pursuant to agreement among counsel that Mr. Zolezzi's deposition was to be treated as testimonial evidence and as though the witness had testified at the October 17-18 hearing.

At the time of the events in September and October 1983, which precipitated this litigation, Commissioner D’Apice had been Commissioner for about a year, and had been affiliated with the Westchester County Board of Elections for about 14 years. Commissioner Oldi had held her position since 1982 and had been on the Board as Deputy Commissioner since 1974.

The September 28, 1983 letter rejecting the applications was, according to Commissioner D’Apice, sent out as Board policy. She did not know how long the policy had been in effect and was not a party to the creation of this policy, nor could she recall having a conversation with any former commissioner advising her that such was Board policy. She had never seen a written memorandum memorializing the views expressed in the September 28, 1983 letter as Board policy. She stated that in her view under the state election law a dormitory cannot be a permanent address. She rejected student applicants who gave a campus building or a post office box number as an address. In September/October, 1983, when Commissioner Oldi refused to sign any rejection letters after the first 101 rejections, Commissioner D’Apice rejected student applications over her signature alone. It is her contention that New York Election Laws § 1-104-22 which provides that “ ‘residence’ shall be deemed to mean that place where a person maintains a fixed, permanent and principal home and to which he, wherever temporarily located, always intends to return” requires her to reject the registration of college students who give campus dormitories as their residence. She testified that she believed she had the authority to administer a questionnaire (Plaintiffs’ Exhibit. 2) unilaterally.

Commissioner Oldi, after signing the form letter rejecting the first 101 applicants, had a change of mind over the weekend. She took the view that students should not be rejected because they gave a campus address, and she continues to differ from her colleague in that regard. Her predecessor, Commissioner McNamara, permitted a student to register from a college address; she was not aware of any Board policy regarding student enrollment being in effect prior to the events of September/October, 1983 or of any Board policy on this issue at any time. She interprets the law as barring the use of a post office box as a residence for registration for voting purposes.

Apparently because of the injunction issued in this case, the number of students registered to vote on the SUNY-Purchase campus has grown so large that the campus has now been divided into two election districts.

Thomas P. Zolezzi testified that his interpretation of the New York Election Law which he communicated to the various boards of elections was that “it would take the consent of both Commissioners to reject the registration” of an applicant when the application form is received (Zolezzi at 4-5). He relies on § 3-212(2) of the New York Election Law which requires “any action by a board must be by a majority of that board.” Zolezzi at 5. He also relies on § 5-210(6)(8) for that view. He further testified that if both Commissioners agreed to send out a particular questionnaire to voters, until both agree to withdraw the questionnaire, it can continue to be sent out even over the signature of only one Commissioner. (Zolezzi at 7)

Discussion

At the outset, it should be noted that the court is of the view that Auerbach v. Rettaliata, supra, does not require vacation of the injunction presently in force. Auerbach held that the New York State Election Law § 5-104(2) was constitutional on its face and rejected the lower court’s determination to the contrary. The court added however: “If, in the course of administering section 5-104, election officials engage in discrimination against students that transgresses constitutional standards, courts are not powerless to provide appropriate relief.” Id. at 355.

The injunction presently enforced was addressed to the application of the statute, not to its facial unconstitutionality. We now examine the defendants’ past and projected action to determine whether the unconstitutional action on which the injunction rests has been abandoned or modified to warrant dissolution of the injunction.

In 1983, student applicants from SUNY-Purchase were denied the right to register to vote because a “college dorm cannot be considered a fixed, permanent or principal line”. Letter dated Sept. 28,1983, Plaintiffs' Exhibit 1. Commissioner D’Apice adheres to that view today and proposes again to reject college students for this reason.

In Ramey v. Rockefeller, 348 F.Supp. 780, 788 (E.D.N.Y.1972), Judge Friendly, writing for a three-judge court, held that “the only constitutionally permissible test [of residency for voting purposes] is one which focuses on the individual’s present intention and does not require him to pledge allegiance for an indefinite future. The objective is to determine the place which is the center of the individual’s life now, the locus of his primary concern. The determination must be based on all relevant factors; it is not enough that a student, or any other former non-domiciliary, would find that the place of his presence is more convenient for voting or would enable him to take a more active part in political life. The state may insist on other indicia, including the important one of abandonment of a former home.

We think, therefore, that in determining bona fide residence for a person physically present, the state cannot go further than the test set out in the Restatement (Second) of the Conflict of Laws, § 18 (1971), namely, that he ‘must intend to make the place home for the time at least.’ Important points for consideration are that ‘The search in each instance is for the state to which the person is most closely related at the time;’ and that a person can have the proper attitude to require a domicile even if he intends to move at a fixed time in the future; but that on the other hand, ‘the required attitude of mind involves to a certain extent the idea of fixety;’ and that a person does not have a domicile at a place if he has the intent to return to another that had been his home. Also relevant [is] the principle, enunciated in the first Restatement that ‘[t]he intention required for acquisition of a domicile of choice is an intention to make a home in fact and not an intention to acquire a domicile.’ Restatement of the Conflict of Laws, § 19 (1934).”

Earlier the court had said: “If such a test [intention to reside at his present address permanently] were in fact imposed on all citizens, it would go too far in restricting the vote to the more immobile elements of the populace. It would penalize, perhaps erratically, those who make definite plans, while allowing the drifters who have uncertain plans to vote. And if the test were in fact only applied to college students, then it would be an impermissible discrimination against them.” Id. at 788.

In Pitts v. Black, 608 F.Supp. 696, 709 (S.D.N.Y.1984) (Lowe, J.), the district court held that in determining whether an individual has a residence the main objective is to ascertain “the place which is the center of the individual’s life ... the locus of his primary concern,” (quoting from Ramey v. Rockefeller, supra) and the place the individual presently intends to remain.' Martinez v. Bynum, 461 U.S. 321 n. 13, 103 S.Ct. 1838, 75 L.Ed.2d 879 (1983).

The approach of the September 28, 1983 letter, to which Commissioner D’Apice continues to adhere, is not consistent with determining the individual’s present intention to remain in his present locus, and give up his former domicile. This letter blanketly rejects all students simply because they reside on a college campus. Such interpretation of § 5-104(2) discriminates unconstitutionally against college students. Thus, the rejection of the applications of students from SUNY-Purchase to register to vote in the 18th or 19th districts because they provide a campus address is an unconstitutional application and enforcement of § 5-104, New York Election Law. For this reason the motion to vacate must be denied.

Movant D’Apice appears to contend that she has the right unilaterally to reject the applications of SUNY-Purchase students because it was the policy of the Westchester Board of Elections to reject such applications. Furthermore, as Thomas Zolezzi — whose interpretation of the New York Election Law is entitled to some deference — views the law, once Board policy has been established, it cannot be changed except by majority vote of the Board. Therefore, one Commissioner alone may continue to enforce Board policy. (Zolezzi 7).

Movants’ argument must fail for two reasons. If the Board in fact had adopted a policy as reflected in Plaintiffs’ Exhibit 1 of rejecting college applicants because a “college dorm cannot be considered a fixed, permanent or principal home,” the policy would constitute an unconstitutional application of § 5-104 of the New York Election Laws for reasons set out above.

However, the evidence on this record is insufficient to disclose that any such policy ever existed. Neither Commissioner is aware of any policy being in effect prior to the September 28, 1983 form letter. Indeed, Commissioner Oldi recalls her predecessor Commissioner McNamara, approving the registration of a college student in 1980. Neither remembers any of their predecessors stating such to have been Board policy, and there are no Board minutes or written memoranda announcing such a policy. What the evidence discloses is that Commissioner Oldi agreed to sign the September 28, 1983 form letter. Then, after reflection, she concluded that the sentiments expressed did not reflect her views. Her initial agreement to sign the form letter does not appear to have resulted from any thorough discussion by the two commissioners, their deputies and staff as to the implications of the letter. Commissioner Oldi’s initial assent, therefore, cannot be said to have set Board policy. Accordingly, Board policy is not reflected in the September 28, 1983 form letter and, under state law, Commissioner D’Apice is not authorized to reject college applicants unilaterally on the basis of reasons set forth in that letter.

Commissioner D’Apice’s apparent intention to unilaterally send out a questionnaire would clearly violate state law since, as indicated, both Commissioners must jointly agree to the contents of any questionnaire being sent.

The motion to vacate or dissolve the preliminary injunction now in effect is denied. Plaintiffs would be irreparably injured in being denied the right to register and vote. The standard for granting a preliminary injunction in this circuit is irreparable injury and either the probability of success on the merits or serious questions going to the merits making them a fair ground for argument, with the balance of hardship tipping in plaintiff’s favor. Norlin Corp. v. Rooney, Pace Inc., 744 F.2d 255 (2d Cir.1984); Sadowsky v. City of New York, 732 F.2d 312 (2d Cir.1984). Plaintiffs meet both standards. Rejection of their applications to register and vote as residents of SUNY-Purchase because a campus residence is not a fixed, permanent residence under the New York Election Laws would render the rejection an unconstitutional application of the residency requirement of the New York Election Law for the reasons set out above, and, since such rejection on the basis of this record would constitute the unilateral act of the Commissioner, would violate state law as well.

Accordingly, (1) The Westchester Board of Elections is enjoined from denying to any student at SUNY-Purchase the right to register to vote in the 18th or 19th Districts of Westchester County on the ground that a campus dormitory cannot be considered a fixed, personal or principal home.

(2) So long as the Westchester Board of Elections, Commissioners D’Apice and Oldi, cannot agree as to whether students living on college campuses are entitled to register and vote as residents of their college communities, any student living on a college campus in Westchester County who has already filed or files a timely application that contains all the material information required on the registration form with the Board of Elections, shall be entitled to register and vote as a resident of the college community in which he resides and is attending school. Such applications filed pri- or to the close of registration in October, 1985, entitle the applicant to vote in the forthcoming general election scheduled on November 5, 1985.

(3) Unless Commissioners D’Apice and Oldi agree on a questionnaire or form of inquiry to be administered pursuant to § 5-104(2) to students or any other applicants seeking to register and vote, no such inquiry shall be conducted or administered by defendants, their agents or employees.

IT IS SO ORDERED.


author: PEREZ-GIMENEZ, Chief Judge.

text:
    Maria Teresa TORRES, et al, Plaintiffs, v. Pedro A. PADILLA, et al, Defendants.
    Civ. No. 85-1699(PG).
    United States District Court, D. Puerto Rico.
    Oct. 29, 1985.
    As Amended Nov. 7, 1985.

      Eliezer Aldarondo Ortiz, Dept, of Justice, Hato Rey, P.R., for plaintiffs.
    Edgardo Colón Arrarás, Federal Litigation Div., Dept, of Justice, San Juan, P.R., for defendants.
   OPINION AND ORDER

PEREZ-GIMENEZ, Chief Judge.

Before this Court is defendants’ motion to dismiss for plaintiffs’ failure to bring this action within the statute of limitations. On September 23, 1985, the plaintiffs filed an opposition to the motion and the defendants replied on September 27, 1985.

The plaintiffs filed a complaint on October 23, 1984, at the Puerto Rico Superior Court. They asked for injunctive relief, back pay, damages and other relief. On August 14, 1985, plaintiffs filed for the suit’s voluntary dismissal without prejudice. On August 26, 1985, the Superior Court granted plaintiffs’ motion. On August 14, 1985, plaintiff filed a complaint in this Court asking the same injunctive relief, back pay, damages, and other relief. The action before this Court arise basically from the First and Fourteenth Amendments to the U.S. Constitution, 42 U.S.C. § 1983, the Puerto Rico Public Service Personnel Act, 3 L.P.R.A. § 1301, et seq., 21 L.P.R.A. § 3351 et seq., and 29 L.P.R.A. §§ 136, 137 and 151. Plaintiffs alleged that plaintiff Maria Teresa Torres Hernández was the victim of political discrimination.

The issues to be decided by this Court are the following:

1) Whether plaintiffs’ allegation that there is a continuing tort is supported by the law and the record and;

2) Whether plaintiffs’ filing of the complaint at the Superior Court interrupted the running of the statute of limitations even though the local court granted plaintiff’s petition to dismiss the case without prejudice.

According to the complaint, plaintiff Maria Teresa Torres Hernández (hereinafter the plaintiff) was the personnel officer of the Municipal Government of Trujillo Alto, Puerto Rico. On November, 1980, Puerto Rico held a gubernatorial and general election. In the Municipality of Trujillo Alto, Popular Democratic Party candidate, defendant Pedro A. Padilla was elected but the Municipal Assembly remained controlled by the New Progressive Party (NPP). Since Mr. Padilla (hereinafter the defendant) took office, he began a whole pattern of political discrimination, persecution and harassment against plaintiff. Among the actions plaintiffs claimed the defendant took against Mrs. Torres Hernández were the following:

a. On January, 1981, defendant told plaintiff that he had the Assembly against him, that she was from the New Progressive Party and that he expected her cooperation.

b. On April, 1981, defendant’s secretary told plaintiff not to participate in NPP meetings.

c. On July, 1981, defendant prohibited plaintiff to attend meetings of the Municipal Assembly and questioned her presence in the Assembly’s Office.

d. On January, 1982, plaintiff was questioned about the request for a certificate of employment of a former NPP municipal employee.

e. On April, 1982, defendant insulted plaintiff in his office. He told her to leave the office because her presence made him sick. He also threatened to fire her. Defendant also implied that the PDP and the NPP had put pressure on him because of her. He also told plaintiff to do things right or she was going to be affected.

f. On January, 1983, defendant hired attorney Carmen Fernández, under contract. In a few days she became as a matter of fact the new Personnel Director. Plaintiff was removed from her desk and was deprived of all her supervisory functions or duties.

g. Attorney Carmen Fernández, with the approval of defendant, gave leave to employees of the Personnel Office without the consent of the plaintiff. Attorney Carmen Fernández was not authorized by law to intervene or approve personnel transactions because she was hired under a contract.

h. Plaintiff was given a desk whose drawers did not open. She had to use a shoe box to put the office materials.

i. Plaintiff was forced for three weeks to pack boxes for a dead file.

j. Plaintiff was absent from work for eight months under medical orders. She was diagnosed as having anxiety disorder with depressive traits.

k. On January, 1984, following medical instructions, defendant granted plaintiff’s petition of transfer but, on March 1, 1984 the defendant cancelled the transfer and returned plaintiff to the Personnel Office.

l. Plaintiff’s psychiatric condition got worse when her transfer was cancelled and was returned to the Personnel Office. In said office plaintiff was completely ignored. Plaintiff was the object of jokes and comments by other employees. The doctor ordered plaintiff to rest. Plaintiff stopped working that March, 1984 and has not worked since.

The Supreme Court in Wilson v. Garcia, — U.S. -, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985) held that civil rights actions under 42 U.S.C. § 1983 are best characterized as personal injury actions for purposes of choosing which state statute of limitations to apply. In Puerto Rico, the limitations period applicable to a personal injury action is one year. See 31 L.P.R.A. § 5298(2).

Plaintiffs filed the complaint in this Court on August 14, 1985. The statute of limitations began to run on March, 1984, when the last alleged act of political harassment occurred. Therefore, if we are to find that plaintiff’s action is not time barred we must find that there is a continuing tort, contrary to defendants’ allegation. See generally, Goldman v. Sears Roebuck & Co., 607 F.2d 1014 (1st Cir.1979), cert. denied, 445 U.S. 929, 100 S.Ct. 1317, 63 L.Ed.2d 762 (1980), Williams v. Owens-Illinois, Inc., 665 F.2d 918 (9th Cir.1982), cert. denied, 459 U.S. 971, 103 S.Ct. 302, 74 L.Ed.2d 283 (1982); Tarvesian v. Carr Division of TRW, Inc., 407 F.Supp. 336 (D.Mass.1976), or that the filing of the action at the Puerto Rico Superior Court interrupted the running of the statute of limitations, see De Jesús Martínez v. Chardón 85 JTS 20 and Durán Cepeda v. Morales Lebrón, 112 D.P.R. 623 (1982).

In Goldman v. Sears Roebuck & Co., 607 F.2d at 1018 the United States Court of Appeals for the First Circuit announced the following standard:

“to state ... a continuing violation the complaint must indicate that not only the injury, but the discrimination is in fact ongoing ... A continuing violation is not stated if all that appears from the complaint is that the plaintiff continues to suffer from the ongoing effects of some past act of discrimination. United Air Lines, Inc. v. Evans, 431 U.S. 553, 558, 97 S.Ct. 1885, [1889], 52 L.Ed.2d 571 (1977).”

It thus seems clear that the critical question is whether any present violation exists. See, United States Air Lines v. Evans, 431 U.S. at 558, 97 S.Ct., at 1889.

In the instant case, the last alleged act of political discrimination stated in the complaint occurred on March, 1984, when the defendant cancelled the transfer granted to plaintiff and returned her to the Personnel Office where she was allegedly ignored. She stopped working for the Municipality that same month and has not worked there since. Therefore, there is no present violation. At the most, she is suffering from the effects of the alleged political discrimination. After March, 1984, the complaint only refers to doctor reports, her mental state and allegations of her economic deterioration.

With regard to the second issue, this Court concludes that the filing of the action at the Superior Court interrupted the running of the statute of limitations even though the local court granted plaintiff’s petition to dismiss the case without prejudice.

First, 42 USC § 1988 mandates that state tolling rules must be applied to § 1983 claims, Board of Regents v. Tomanio, 446 U.S. 478, 484-85, 100 S.Ct. 1790, 1795, 64 L.Ed.2d 440 (1979); Robertson v. Wegmann, 436 U.S. 584, 588, 98 S.Ct. 1991, 1994, 56 L.Ed.2d 554 (1978), unless the state rules are inconsistent with the federal policy underlying, § 1983, Board of Regents v. Tomanio, 446 U.S. at 485-86, 100 S.Ct. at 1795, 1796.

In Puerto Rico, contrary to the American common law, prior judicial actions toll the statute of limitations. See Ramirez de Arellano v. Alvarez de Choudens, 575 F.2d 315, 319 (1st Cir.1982). Section 5303 of Title 31 L.P.R.A., states in part that “the prescription of actions is interrupted by their institution before the courts ...” This section, as applied to this case, is not inconsistent with the federal policies of repose and federalism underlying § 1983 for the action filed at the Puerto Rico Superior Court was timely filed (7 months after the last alleged discriminatory act). Furthermore, commencement of a new limitation period when the plaintiff voluntarily dismissed the case, would not interrupt any further repose, specially when plaintiff filed in the federal court the same day. In addition, the policy of federalism also appears to be well served: Puerto Rican law is permitted the fullest effect without any visibly adverse impact on federal rights.

Second, in Puerto Rico the judicial action must be identical to the action filed later if it is to interrupt the running of the statute of limitations. See Ramirez de Arellano v. Alvarez de Choudens, supra, and Graffals González v. Garcia Santiago, 550 F.2d 687 (1st Cir.1977).

In Ramirez de Arellano v. Alvarez de Choudens supra, the court held that the mandamus action brought by plaintiff to prevent the Department of Health of Puerto Rico from dismissing her did not toll the statute of limitations applicable to her § 1983 action. Her § 1983 action seeked reinstatement and damages not an order to prevent her dismissal. In Graffals v. García, 550 F.2d 687 (1st. Cir.1977) the court held that the one year period provided by § 5298(2) would not be tolled by an administrative appeal to the Personnel Board of the dismissal. The cause of action before the Personnel Board was an administrative proceeding seeking reinstatement while the 1983 action seeked damages and injunctive relief.

In the case at bar, the action filed before the Superior Court was the same as the one filed in this court. Both seeked monetary and injunctive relief.

The last issue before this Court is the effect of plaintiffs’ voluntary dismissal without prejudice on the running of the statute limitations. According to 31 L.P.R.A. § 5267 a judicial citation which will normally toll the running of the statute of limitations will not interrupt it if the plaintiff should withdraw his complaint. However, according to the Supreme Court of Puerto Rico in De Jesús v. De Jesús, 37 P.R.R. 143, (1927) the above exception of § 5267 does not apply to 31 L.P.R.A. § 5303. The latter section states in part that “the prescription of actions is interrupted by their institution before the courts ... ”. Section 5267 refers to the prescription of property and ownership rights-so-called acquisitive prescription while Section 5303 refers to the prescription of actions-so-called extinctive prescription. The Supreme Court states:

“The Civil Code devotes one chapter to the prescription of ownership and other real rights, with certain rules in regard to the interruption of that prescription, and another chapter to the prescription of actions which also contains rules for the interruption of their prescription. They are two different kinds of prescription. By the first a right is acquired which did not exist before, and by the second existing actions prescribe. Therefore, their rules are different and those relating to the interruption of acquisitive prescription cannot be applied to the interruption of extinctive prescription, as was declared by the Supreme Court of Spain in a judgment of January 4, 1901, when it held that the provisions of section 1964 (corresponding to our section 1847) as regards lack of effect of the judicial interruption of acquisitive prescription, if the plaintiff should withdraw his complaint or permit the proceedings to lapse, did not apply to extinctive prescription, ‘because neither the letter not the spirit of section 1973 (corresponding to our 1874) allows it to be construed in the sense that thereof the action might be lost’.”

37 P.R.R. at 144-45.

According to the Spanish legal writer, Manresa, in his Comentarios al Código Civil Español, Volume 12, pp. 1235-37, 1973 Edition, the exception of Art. 1946 of the Spanish Civil Code, (the equivalent of § 5267) does not apply to Art. 1973 of the Spanish Civil Code, (the equivalent of section 5303). For him each section also carries with it a whole different body of law different from the other one. For example, under Section 5303, the mere presentation of the complaint interrupts the running of the statute of limitations, see Duran Cepeda v. Morales Lebrón, 112 D.P.R. at 625, while under section 5267 a summons, for example, is necessary to interrupt a defendant’s adverse possession. See Feliciano v. A.S.A. 93 P.R.R. 638 (1966). The law requires the defendant to have knowledge of the action filed against him in order to interrupt the time he has spent in possession. However, in the case of Section 5303, it is not necessary to summon defendant because the action prescribes when the action is not use so that the mere filing of the complaint destroys the basis for the prescription. It is not a case where the defendant must have knowledge of the action filed. Therefore, whether the running of the statute of limitations is interrupted in extinctive prescription cases does not depend on the merits of a court’s decision. Therefore, Manresa argues, it is irrelevant that a plaintiff has voluntarily dismissed his case.

In Soto v. Municipality of Hatillo, 592 F.Supp. 1295 (D.C.P.R.1981), the court held that a suit voluntarily dismissed did not interrupt the running of the statute of limitations. We respectfully disagree. First we feel compelled to follow the Supreme Court of Puerto Rico in De Jesús v. De Jesús, supra, which seems to have overruled Gonzalez v. San Juan L. & T. Co., 17 P.R.R. 115 (1911). The court in Soto, supra, relied on the latter case but did not mention De Jesús.

In González, the court held, in a tort action case, that notwithstanding the docirme of the Supreme Court of Spain of January 4, 1901 (the same Spain decision cited in De Jesús) and despite Manresa, the voluntary dismissal by plaintiff of an earlier action did not interrupt the running of the statute of limitations. The court in González followed American Common Law.

The court, in De Jesús held in a prescriptive action case that the filing of the action in 1921 interrupted the running of the statute of limitations. The court in De Jesús, however, did not explain how that prior action was dismissed. But the court did agree with the decision of the Supreme Court of Spain of January 4, 1901. The Supreme Court of Spain held that the running of the statute of limitations in cases of extinctive prescription, is interrupted by a prior judicial action even though a plaintiff withdraws his complaint. De Jesús, 37 P.R.R. at 145.

Furthermore, the court reasoning in González is contrary to the recent doctrine of the Supreme Court of Puerto Rico established in Valle vs. American International Insurance Co., 108 D.P.R. 692, 695 (1979) which states that nowadays in Puerto Rico the law in the field of damages is governed both in form and in content by the civil law system. The Supreme Court of Puerto Rico has reiterated this position and has held that the sources of Commonwealth law are not common law precedents, but rather the commentators and analogies in other civil law countries.

We also disagree with Soto because it did not make a distinction between extinctive and acquisitive prescription. It applied Section 5267 to an extinctive prescription case. Such an application is contrary to the nature of the two prescriptions and to the precedent established by the Puerto Rico Supreme Court.

The final issue to be decided by this Court is whether plaintiffs’ action in this Court was timely filed even though the filing of the action at the local court interrupted the running of the statute of limitations. According to Feliciano v. A.S.A., 93 P.R.R. at 643-4 and Durán Cepeda v. Morales Lebrón, 112 D.P.R. at 626 when the statute of limitations is interrupted by a prior judicial action, a new period of prescription begins to run when the prior judicial action ceases.

In the case at bar, plaintiffs filed their complaint herein the same day they asked for voluntary dismissal of their complaint in the local court. Therefore, their complaint was timely filed.

WHEREFORE, in light of the applicable law and jurisprudence, defendants’ motion to dismiss is denied.

IT IS SO ORDERED.

      . Section 1847 is now Art. 1846 of Puerto Rico Civil Code of 1930, 31 L.P.R.A. § 5267.

      . Section 1874 is now Art. 1873 of Puerto Rico Civil Code of 1930, 31 L.P.R.A. § 5303.

      . The Court in De Jesús, 37 P.R.R. at 146, stated: "we have to came to the conclusion that the action in this case is not barred, for the prescription which began to run in 1891 had been interrupted in 1921, notwithstanding the doctrine established in González v. San Juan L. & T. Co., 17 P.R.R. 115, cited by the appellees".

      . According to other Spanish legal writers such as Scaevola, Código Civil, Madrid, Ed.Reus, 1965, T. XXXII, Vol 2, pp. 989-990 and L. Diez Picaso, La Prescripción en el Código Civil, Barcelona, Ed. Bosch, 1964, pp. 125, the filing of a prior action that is voluntarily dismissed by a plaintiff does not interrupt the running of the statute of limitations in cases of extinctive prescription. We, however, feel compelled to follow the Supreme Court of Puerto Rico in De Jesús, supra.

      . We do not decide whether the statute of limitations starts to run the day plaintiffs asked for the dismissal or when the Superior Court granted it. It is irrelevant to the case at bar.