author: SACHS, District Judge.

text:
    JOHN DEERE COMPANY, Plaintiff, v. Robert F. MAJOR, Defendant. JOHN DEERE COMPANY, Plaintiff, v. Eric SPROUSE, Defendant.
    No. 85-1316-CV-W-6.
    United States District Court, W.D. Missouri, W.D.
    Oct. 28, 1985.

      Daniel M. Dibble, Timothy K. McNamara, Lathrop, Koontz, Righter, Clagett & Norquist, Kansas City, Mo., for plaintiff.
    H. Kent Desselle, Desselle, White, Allin-der & Grate, Independence, Mo., for defendant.
   ORDER DENYING IMMEDIATE POSSESSION

SACHS, District Judge.

In these replevin actions, in which there is diversity jurisdiction, a farm implement manufacturer seeks immediate possession of equipment in which there is a good showing that the buyers are in default of obligations under purchase agreements. Pursuant to a Missouri statute, prejudgment possession is authorized, when, among other things, a party apparently entitled to possession files an affidavit “showing” that it will be in “danger of losing” its property unless removed from the defendant’s possession. Section 533.-010, RSMo; Mo.R.Civ.Proc. 99.03.

The affidavits in these cases are in the statutory language. At a scheduled hearing, of which defendants were given notice, various arguments and supporting testimony were tendered to show that there was danger that the equipment would be “lost” unless summarily removed from defendants’ possession. Among other things it was asserted that (1) the equipment is probably being used in the harvest, with some physical wear and tear likely; (2) debtors in default sometimes attempt to dispose of secured property; and (3) the value of use of the equipment is being lost on a daily basis. I cannot conclude that these facts establish that the property is in jeopardy pending litigation so as to justify the drastic remedy of prejudgment seizure.

The language in question is of ancient vintage, apparently dating back to early in the Nineteenth Century. No Missouri cases are cited which shed light on the legislative meaning. It may be that some loose practices have developed, generally in uncontested cases in which the creditor is represented by aggressive counsel, which would favor expansive reading of the controlling words. This is hardly a matter for judicial notice, however, and I cannot assume that the Missouri appellate courts or the General Assembly have endorsed by acquiescence any wholesale seizure of debtors’ property before judgment, on a mere showing of past-due indebtedness and property rights in the plaintiff. If that is desired, it can perhaps be established in the state courts or by deleting some of the express requirements for immediate possession.

Danger of loss of security probably has the general meaning discussed in a federal ease from Tennessee. Woods v. State of Tennessee, 378 F.Supp. 1364, 1365 (W.D. Tenn.1974). Compare Bryan v. Vaughn, 579 S.W.2d 177, 180 (Mo.App.1979) (discussing danger of losing rent, so that a landlord could attach a tenant’s personal property). In the present cases there is no particularized showing that any property is about to be concealed, removed or otherwise lost. I cannot accept the theory that the daily loss of use is sufficient to authorize an immediate transfer of possession. That would always be true when a plaintiff has a superior right to possession, and the requirement for an affidavit on that point would be superfluous.

With respect to the asserted physical deterioration, there is nothing credibly presented to indicate that the equipment is being used in a manner other than it was designed to withstand, or that use for the additional weeks or several months before final judgment will be materially damaging in a physical sense. To say the equipment is in “danger of loss” because of normal use would be such a departure from acceptable standards of communication that I cannot conscientiously accept that terminology.

The motions for immediate possession are therefore DENIED.

      . I also assume that summary judgment techniques will be available in both federal and state courts, so that final judgments in favor of deserving creditors can be rather promptly obtained.


source: Caselaw Access Project

author: CAFFREY, Chief Judge.

license: Public Domain

text:
    UNITED STATES of America, Plaintiff, v. 8.4 ACRES OF LAND, MORE OR LESS, et al., Defendants.
    Civ. A. No. 83-1807-C.
    United States District Court, D. Massachusetts.
    Oct. 28, 1985.

      Evan Slavitt, Asst. U.S. Atty., Robert H. Plotkin, Trial Atty., Dept. of Justice, Boston, Mass., for the U.S.
    Anton T. Moehrke, Wright & Moehrke, Boston, Mass., for J. John Miele & Roberta.
   MEMORANDUM

CAFFREY, Chief Judge.

This action was tried before this Court with a jury and a verdict was rendered on March 6, 1985. The jury fixed just compensation for the taking by the United States of land belonging to the defendants, J. John Miele and Roberta C. Miele, at $100,-000, a sum $89,000 greater than the amount deposited by the United States of America into the Registry of this Court. The case is now before the Court on defendants' application for attorneys' fees and costs pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412 (EAJA).

A landowner in a condemnation action is the prevailing party for purposes of the BAJA, when he recovers more than the government's prelitigation offer. United States v. 640.00 Acres of Land, 756 F.2d 842, 847-48 (11th Cir.1985); United States v. 841.45 Acres of Land, 751 F.2d 924, 937 (8th Cir.1984). Unless the position of the United States was substantially justified or special circumstances exist, the court must award the prevailing party fees, costs and other expenses. 28 U.S.C. § 2412(d)(1)(A). The test of whether or not the government's position was substantially justified is essentially one of reasonableness. United States v. Yoffe, 775 F.2d 447, 450 (1st Cir.1985). The burden of proof is on the government to show it had a reasonable basis in both law and fact for its position. Id. No presumption is raised concerning whether the government's position was justified simply because it lost the case. Id.

In applying the reasonableness standard, a district court looks at the offers made by the government before the trial, comparable awards on similar tracts of land at the time, whether the appraisal of the land upon which the government based its offer was made by a neutral and impartial expert appraiser or one regularly employed by the government, and other such facts which bear on the good faith of the government in trying to settle the case before deciding to litigate. United States v. 640.00 Acres of Land, 756 F.2d at 850. The court also considers whether the government's offer was reasonably close to the appraisals made by the government's appraisers and to the valuations established by the government's expert witnesses at trial, and whether the government acted reasonably in relying upon these valuations. United States v. 341.45 Acres of Land, 751 F.2d at 940. In so doing, the court may consider the qualifications and possible conflicts of interest of the government's experts, and the factual basis for their appraisals. Id. Where the appraisers are qualified, the government's preliti-gation position is justified if it was based on and consistent with the appraisals. Id. The focus is on the relationship between the government's offer, the appraisals, and the valuations established by the government's expert witnesses during trial, not on the relationship between the government's offer or deposit and the jury award. Id. at 940-41.

Prior to commencing litigation in this case, the government received three different appraisals concerning the value of the defendants’ land. Plaintiffs Answer to Interrogatories, #5. The estimated value of the land was $9,400 in 1980, $11,000 in 1981, and $21,000 in 1983. Id. At trial, the government presented a highly qualified expert appraiser, Mr. Reenstierna, who testified that the value of the land was $21,000. Mr. Reenstierna has testified in the past both for the United States and for defendants. There was conflicting expert testimony concerning the probable reasonable uses of the property at the time of the taking and about sales of comparable tracts of land.

Considering the totality of the circumstances, including what this Court observed when it accompanied the jury to the locus for a view of the predominantly wet and swampy land in question, I rule that the government was substantially justified in its prelitigation position and final offer of $16,100. An award of attorneys’ fees and costs is unwarranted under the facts in this case.

Order accordingly.


author: HENRY WOODS, District Judge.

text:
    Xavier D. GIBSON, Plaintiff, v. MISSOURI PACIFIC RAILROAD, Defendant.
    No. PB-C-84-226.
    United States District Court, E.D. Arkansas, Pine Bluff Division.
    Oct. 29, 1985.
    Christopher Heller, Friday, Eldredge & Clark, Little Rock, Ark., for plaintiff.
    Leon N. Jamison, Pine Bluff, Ark., for defendant.
   FINDINGS OF FACT AND CONCLUSIONS OF LAW

HENRY WOODS, District Judge.

FINDINGS OF FACT

1. Plaintiff is a citizen and resident of Pine Bluff, Arkansas. He is a Seventh Day Adventist and as such recognizes his Sabbath from sundown on Friday to sundown on Saturday.

2. Defendant operates a railroad in Arkansas and other states and is an employer within the meaning of Title VII of the Civil Rights Act of 1964.

3. Plaintiff applied for employment with the Missouri Pacific Railroad Company (MoPac) on April 5, 1971 and began service as a Fireman on April 26, 1971. Plaintiff qualified for promotion to Locomotive Engineer on December 23, 1973.

4. Plaintiff became a Seventh Day Adventist in 1975. The plaintiff notified Mo-Pac and the Brotherhood of Locomotive Engineers (Union) and both were cooperative and flexible in aiding the plaintiffs pursuit of his religious beliefs.

5. When MoPac’s Road Foreman of Engines was made aware of the plaintiffs Sabbath requirements, he informed the plaintiff that every effort would be made to relieve him on his Sabbath provided no penalty time payments were incurred by MoPac and another engineer was available to work.

6. Even though MoPac is a “union shop,” plaintiff was permitted to resign from membership in the Brotherhood of Locomotive Engineers and continue his employment with MoPac as if he had remained a member of the Union.

7. Plaintiff worked for a time as a fireman at MoPac’s Pine Bluff facility. During that time arrangements were made for him to be relieved of duty on his Sabbath due to his seniority in that position. Further, it is possible to run a train without a fireman, and plaintiff could therefore be relieved of work on his Sabbath even without a replacement.

8. It is not possible to run a train without an engineer, so plaintiff would be able to lay off from an engineer assignment only if another engineer was available.

9. MoPac developed a shortage of locomotive engineers at its Alexandria, Louisiana facility in March of 1979. It was therefore necessary for engineers assigned to the North Little Rock-McGehee zone, such as plaintiff, to fill engineer openings in Alexandria. This arrangement was in accordance with the provisions of the agreement between MoPac and the Brotherhood of Locomotive Engineers.

10. Plaintiff was instructed to report to Alexandria, Louisiana early in April of 1979 to fill Locomotive Engineer job openings in line with his seniority. He placed himself on an engineer’s assignment at Alexandria which had rest days of Tuesday and Wednesday.

11. As a new engineer, plaintiff did not have sufficient seniority to place himself on an assignment that had a Saturday rest day.

12. Plaintiff worked as an engineer in Alexandria on Thursday, April 5,1979. He informed Assistant Superintendent W.B. Needham at that time that he would not be able to work on his Sabbath, which was from sundown on Friday to sundown on Saturday.

13. Plaintiff was aware and fully informed that there was a shortage of engineers at Alexandria, the very reason that he had been recently transferred there, but that if it was possible to relieve him, arrangements would be made to do so.

14. Plaintiff was informed and aware that if there were no qualified engineers available to relieve him, he would be expected to work.

15. On Friday, April 6, 1979, plaintiff was scheduled to work as an engineer in Alexandria at 3:30 p.m. He informed Mo-Pac’s Crew Caller as well as Assistant Superintendent Needham that he would not report for his assignment because it interfered with his Sabbath. Mr. Needham told the plaintiff that there was no available engineer to relieve him and that he must protect his assignment. Plaintiff nevertheless refused to report and did not work on April 6, 1979.

16. Plaintiff’s refusal to work made it necessary for MoPac to fill the first four hours of his assignment on April 6 with an engineer who had just completed a tour of duty. The remaining four hours of plaintiff’s assignment were filled by a regularly assigned engineer who was on his rest day. This made it necessary for MoPac to pay each of the engineers for eight hours in punitive time payments. The exact amounts of these payments were not established at trial, but Mr. Needham’s deposition testimony sets the cost at $240.00.

17. On Saturday, April 7, 1979, there was an extra board engineer available to relieve plaintiff. He was therefore permitted to lay off from his 3:30 p.m. assignment on that date.

18. Plaintiff worked as an engineer in Alexandria on April 8, 9, 11 and 12. April 10 was one of plaintiff’s rest days.

19. According to Union rules, no engineer is permitted to work more than twelve hours within any twenty-four hour period. Thus, only an engineer that had not worked more than four hours in the last twenty-four hour period would be allowed to cover for the plaintiff. Otherwise MoPac would have to use two engineers in four hour shifts each to cover plaintiff’s assignment. In this situation each would be paid for a full eight hours (double time) for the extra four hours worked.

20. Plaintiff worked out an arrangement with another engineer, Samuel Wright, whereby Mr. Wright would work for the plaintiff on his Sabbath days. However, Mr. Wright would be entitled by Union rules to double time pay for working overtime, and plaintiff made no offer to adjust his pay in order to satisfy this added expense to MoPac. Neither MoPac nor the Union was made aware of this agreement and Mr. Wright never worked for the plaintiff.

21. During April, 1979 there were jobs available which the plaintiff could have performed in the railroad yard at Alexandria, Louisiana which would have permitted the plaintiff to have his Sabbath off. Plaintiff was aware of these jobs but never requested nor sought out the opportunity to bid on them.

22. During April, 1979 MoPac and the Union made the plaintiff aware of an engineer’s position that was available in Lake Charles, Louisiana. This particular position would have permitted the plaintiff to be relieved of duty on his Sabbath. Plaintiff could have moved to Lake Charles or commuted the 100 miles at his option, but chose to do neither.

23. On Friday, April 13, 1979, he refused to report for his regular assignment because it interfered with his Sabbath. There were two engineers on the extra board that day, but both had been previously assigned. Plaintiff’s refusal to protect his assignment on April 13 made it necessary for MoPac to reassign one of the extra board engineers to cover plaintiff’s assignment and to cancel the assignment originally planned for the extra board engineer.

24. A formal investigation was held in Alexandria, Louisiana on April 19, 1979 with regard to plaintiff’s refusal to protect his assignment on April 13, 1979. Based on the evidence adduced at this investigation, it was decided to dismiss plaintiff from service because his failure to protect his assignment contravened General Rules B, Q, N and Rule 501(1) of MoPac’s Uniform Code of Operating Rules.

25. MoPac made, in good faith and within the guidelines of its collective bargaining agreement and seniority system with the Union, reasonable efforts to accommodate the plaintiff’s Sabbath observance.

26. MoPac was unable to provide plaintiff with his Sabbath off without incurring more than de minimis costs and thus would suffer undue hardship.

CONCLUSIONS OF LAW

1. This Court has jurisdiction of the parties and the subject matter pursuant to 42 U.S.C. § 2000e et seq. and 28 U.S.C. § 1331.

2. The matters of which plaintiff complains were the result of the operation of MoPac’s bona fide seniority system. MoPac is not required by Title VII to carve out a special exception to the seniority system in order to help an employee meet his religious obligations. Transworld Airlines, Inc. v. Hardison, 482 U.S. 63, 83, 97 S.Ct. 2264, 2276, 53 L.Ed.2d 113 (1977).

3. It is not an unlawful employment practice under Title VII for an employer to apply different terms, conditions or privileges of employment pursuant to a bona fide seniority system. 42 U.S.C. § 2000e-2(h). The unmistakable purpose of this part of Title VII was to make it clear that the routine application of a bona fide seniority system would not be unlawful under Title VII. Teamsters v. United States, 431 U.S. 324, 352, 97 S.Ct. 1843, 1863, 52 L.Ed.2d 396 (1977).

4. The foundation of plaintiffs claim is that MoPac engaged in religious discrimination by failing to reasonably accommodate his religion. The accommodation sought by plaintiff was the avoidance of work on his Sabbath. The United States Supreme Court has held that such favoritism at the expense of other employees who are entitled to the benefits of a seniority system is clearly not required by Title VII. Hardison, supra, 432 U.S. at 80-81, 97 S.Ct. at 2274-75. The Court found that “it would be anomolous to conclude that by reasonable accommodation Congress meant that an employer must deny, the shift and job preference to some employees, as well as deprive them of their contractual rights, in order to accommodate or prefer the religious needs of others.... ” Id. at 81, 97 S.Ct. at 2275.

5. MoPac has no obligation under Title VII to make a special exception to its seniority system in order to help plaintiff meet his religious obligations. Hardison, supra, 432 U.S. at 83, 97 S.Ct. at 2276. In fact, the Supreme Court strongly suggests that it would be unfair to other employees to make such an exception in derogation of its seniority system. Id. The strength of the Court’s commitment to the rule that seniority systems are protected from Title VII challenges can be seen in Firefighter’s Local Union No. 1784 v. Stotts, 467 U.S. 561, 104 S.Ct. 2576, 81 L.Ed.2d 483 (1984).

6. A railroad charged with religious discrimination in employment by scheduling a newly promoted engineer in accordance with a valid seniority system to work on his Sabbath did not fail in its statutory duty on the grounds that it did not (i) investigate the possibility of reassigning plaintiff back to a fireman’s position in contravention of its seniority system; (ii) initiate assigning him to another position where his seniority would have permitted him to take his Sabbath off or (iii) pay another employee overtime and charge the extra cost to plaintiff. Turpen v. Missouri-Kansas-Texas R. Co., 736 F.2d 1022, 1027 (5th Cir.1984).

7. To follow the plaintiff’s suggestion of requiring a private employer to provide an inflexible preference in favor of Sabbath observers over all other interests would contravene a fundamental principle of the religion clauses, as stated over twenty years ago by Judge Learned Hand, “The First Amendment ... gives no one the right to insist that in pursuit of their own interests others must conform their conduct to his own religious necessities.” Otten v. Baltimore & Ohio Rd. Co., 205 F.2d 58, 61 (2nd Cir.1953).

The Supreme Court has recently considered a state statute which required a preference for Sabbath observers and found such statutes to be clearly unconstitutional. Thornton v. Caldor, Inc., — U.S. —, 105 S.Ct. 2914, 86 L.Ed.2d 557 (1985). Justice O’Connor pointed out in her concurring opinion that it is only because Title VII calls for a “reasonable” rather than an “absolute” accommodation and extends that requirement to all religious beliefs and practices rather than protecting only the Sabbath observance that permits Title VII itself to withstand the constitutional challenge as being in violation of the establishment clause. Id. at —, 105 S.Ct. at 2918 (concurring opinion).

8. A private employer is not required under 42 U.S.C. § 2000e et seq. to rearrange schedules to accommodate an employee’s religious observance of Sabbath in violation of seniority and overtime provisions of a collective bargaining agreement or incur greater than de minimis costs, as either would constitute “undue hardship.” To require employers to do so would therefore violate the establishment clause under the First Amendment of the United States Constitution.


author: GENE CARTER, District Judge.

text:
    WALCON CORPORATION, Plaintiff, v. D.J. MacKENZIE ASSOCIATES, INC., Commercial Union Insurance Co., M.G. Allen Associates, Inc., and Rumford Property & Liability Insurance Company, Defendants.
    Civ. No. 84-0249 P.
    United States District Court, D. Maine.
    Oct. 29, 1985.
    Andrew A. Cadot, Perkins, Thompson, Hinckley & Keddy, Portland, Me., for plaintiff.
    Thomas C. Newman, Murray Plumb & Murray, Peter J. DeTroy, III, Norman & Hanson, Portland, Me., Richard G. Cervizzi, Scarborough, Me., for defendants.
   MEMORANDUM AND ORDER ON MOTION TO DISMISS, OR IN THE ALTERNATIVE, TO STAY, FILED BY M.G. ALLEN AND ASSOCIATES, INC. AND COMMERCIAL UNION INSURANCE COMPANY

GENE CARTER, District Judge.

This matter is before the Court on the motion of M.G. Allen Associates, Inc. and Commercial Union Insurance Company to dismiss or, in the alternative, to stay proceedings in this matter in this Court pending the outcome of duplicative litigation now ongoing in the Superior Court in and for the County of Cumberland and State of Maine. After a review of written submissions of the parties, and having heard oral argument of counsel and reviewed the pleadings in both this and the state court action, this Court finds that to proceed with the present action in this Court will be a substantial duplication of effort and waste of judicial resources in view of the fact that there is left only a very narrow issue to be litigated in this case and that it is one of several issues which must be ultimately litigated in the pending state court case. Further, the result of an adjudication of the single issue now left before this Court will not, in all likelihood, result in any positive result to any party in this or the state court litigation until the conclusion of the state court proceeding, which seeks a full resolution of all issues among the various parties.

The Defendants seek by the motion to invoke this Court’s inherent power to stay proceedings in the interests of judicial economy.

The power to stay proceedings is incidental to the power inherent in every court to control the disposition of the causes on its docket with economy of time and effort for itself, for counsel and for litigants. How this can best be done calls for the exercise of judgment, which must weigh competing interests and maintain an even balance ... a stay pending the outcome of the litigation in another court between the same parties involving the same or controlling issues is an acceptable means of avoiding unnecessary duplication of judicial machinery.

Aetna State Bank v. Altheimer, 430 F.2d 750, at 755 (7th Cir.1970); ACF Industries, Inc. v. Guinn, 384 F.2d 15, at 19 (5th Cir.1967).

The Court can find absolutely no reason for its time to be consumed with the adjudication of a narrow issue that is part of a larger controversy already well underway in the course of litigation in the courts of the State of Maine, which will not in any event be dispositive of any ultimate pecuniary or other type of right of any party to the litigation in this Court. Furthermore, the waste of the parties’ time, money and effort in adjudicating that narrow issue here in this Court is wholly unjustified. Certain of the parties have previously elected the forum of the State of Maine to resolve all of the questions in controversy. There is no reason why they should not be left to abide the consequences of that choice of forum. No harm will be done, no unfairness is likely to accrue, and a useless burden will be lifted from both the parties and the Court by the staying of the litigation in this Court.

Accordingly, the motion of the Defendants to stay further proceedings herein pending final disposition of the matter of D.J. MacKenzie and Associates, Inc. v. M.G. Allen and Associates, Inc., et al., No. CV-84-729, now pending in the Superior Court in and for the County of Cumberland and State of Maine, is hereby GRANTED. It is ORDERED that the parties herein will exercise their most diligent efforts to bring the pending state action to a conclusion by February 3, 1986, and shall file on said date a joint written report to this Court on their efforts and progress in respect thereto.

So ORDERED.


author: ZAMPANO, Senior District Judge.

text:
    Dr. Donald A. GUTHRIE, Plaintiff, v. CIBA-GEIGY, LTD. and Ciba-Geigy Corp., Defendants.
    Civ. A. No. B-83-199.
    United States District Court, D. Connecticut.
    May 10, 1984.
    Roland T. Bryan, Stamford, Conn., for plaintiff.
    Barry C. Hawkins, Ronald J. Cohen, George E. O’Brien, Jr., Tyler, Cooper & Alcorn, New Haven, Conn., for defendant Ciba-Geigy Corp.
   RULINGS ON DEFENDANTS’ MOTIONS TO DISMISS

ZAMPANO, Senior District Judge.

Plaintiff, Donald A. Guthrie, instituted this action against his former employer, Ciba-Geigy Corporation (“Corporation”), and Corporation’s parent company Ciba-Geigy, Ltd. (“Limited”), to recover damages for the alleged unlawful termination of his employment in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. The grounds advanced for jurisdiction over the defendants are Connecticut’s long-arm statute, Conn.Gen. Stat. § 33-411(b) and (c), and the federal venue statute, 28 U.S.C. § 1391(c) and (d). Both defendants move to dismiss pursuant to Fed.R.Civ.P. 12(b)(2), asserting that they are not subject to the in personam jurisdiction of this Court.

JURISDICTION OVER THE CORPORATION

The defendant Corporation, a New York corporation with its principal offices located in Ardsley, New York, is engaged in the manufacture and sale of special purpose chemicals, including dyestuffs, plastics, and other products. Although Corporation is licensed to do business in numerous states, it is not licensed to do business in the State of Connecticut.

Under these circumstances, section 33-411(b) requires the presence of two factors in order to subject Corporation to this Court’s jurisdiction: first, Corporation must have transacted business within the State of Connecticut, and second, the plaintiffs cause of action upon which Corporation is being sued must have arisen out of the business transacted by Corporation in this state. See, e.g., Apolinario v. Avco Corp., 561 F.Supp. 608, 612 (D.Conn.1982); Lombard Bros., Inc. v. General Asset Management Co., 190 Conn. 245, 251-52, 460 A.2d 481 (1983).

During the course of two hearings held on the jurisdictional question, the issue of whether Corporation “transacts business” in the state was vigorously contested. However, for the purposes of the instant motion, the Court need not decide whether Corporation’s business contacts within the state are sufficient to satisfy the “transaction of business” prong for jurisdiction. Even if the plaintiff should prevail on the issue, it is clear that the plaintiff’s cause of action for employment discrimination did not arise from any business conducted by Corporation in Connecticut.

It is uncontroverted that none of the operative facts relating to his claims of discrimination and to his termination occurred in Connecticut. All of the challenged actions and relevant events in this lawsuit arise out of an employer-employee relationship between Corporation and the plaintiff, not out of the plaintiff’s or Corporation’s business activities in this state. The moving papers reveal that determinations regarding plaintiff’s terms and conditions of employment, as well as the decision to terminate his employment, were made by Corporation at its headquarters in Ardsley, New York.

The plaintiff does not seriously dispute that he has failed to make a showing of the necessary relationship between his causes of action and the business allegedly transacted by Corporation in this state. Rather, he advances two arguments to extricate himself from the deficiency of proof. First, he contends that Corporation’s extensive business contacts with the State of Connecticut, in and of themselves, provide the necessary nexus to confer personal jurisdiction upon this Court. This exact argument was rejected by Judge Blumenfeld in his reasoned opinion in Apolinario, 561 F.Supp. at 611-12. See also Magid v. Marcal Paper Mills, Inc., 517 F.Supp. 1125, 1128 (D.Del.1981); Bross Utilities Service Corp. v. Aboubshait, 489 F.Supp. 1366, 1371 (D.Conn.), aff’d without opinion, 646 F.2d 599 (2 Cir.1980).

Second, plaintiff relies on that portion of 28 U.S.C. § 1391(c) which provides that a corporation “may be sued in any judicial district in which it ... is doing business.” He submits, in effect, that this federal statute, in relevant part, confers both personal jurisdiction and venue over Corporation in Connecticut. This contention must be rejected. By its terms, 28 U.S.C. § 1391 is a venue statute, not a personal jurisdiction statute and, therefore, it cannot confer in personam jurisdiction over Corporation. Arrowsmith v. United Press International, 320 F.2d 219, 225 (2 Cir.1963) (28 U.S.C. § 1391(c) relates to venue and not to jurisdiction); Driscoll v. New Orleans Steamboat Co., 633 F.2d 1158, 1159 n. 1 (5 Cir.1981) (“Venue is distinct from jurisdiction. Venue may be proper or improper, independent of questions of subject matter or personal jurisdiction”).

Accordingly, neither the Connecticut long-arm statute nor the federal venue statute affords the plaintiff the jurisdictional base to warrant the exercise of personal jurisdiction over Corporation.

JURISDICTION OYER LIMITED

The undisputed facts indicate that: Limited is a Swiss corporation with its principal place of business in Basel, Switzerland; it is not licensed to do business and is not doing business in the State of Connecticut; it did not employ the plaintiff and did not approve, control or authorize any of the actions challenged in this lawsuit; and, although it owns the capital stock of Corporation, it maintains a separate and distinct parent-subsidiary relationship.

Plaintiff grounds his causes of action against Limited on two theories. First, he claims that Corporation was acting “as the agent of” and “in concert with” Limited in the unlawful termination of his employment. Therefore, he argues, Corporation’s acts of discrimination should be imputed to Limited for jurisdictional purposes. On the basis of the present record, however, the evidence at the hearings falls far short to support a finding that the two defendants should be regarded as a single employer, or that Limited so controls Corporation that, as a matter of law, Corporation should be deemed its agent. See, e.g., Radio & Television Broadcast Technicians Local 1264 v. Broadcast Service of Mobile, Inc., 380 U.S. 255, 256, 85 S.Ct. 876, 877, 13 L.Ed.2d 789 (1965) (per curiam); Mas Marques v. Digital Equipment Corp., 637 F.2d 24, 26-27 (1 Cir.1980); Baker v. Stuart Broadcasting Co., 560 F.2d 389, 392 (8 Cir.1977); McPheron v. Penn Central Transportation Co., 390 F.Supp. 943, 954-56 (D.Conn.1975). Moreover, because Corporation is not amenable to suit in Connecticut, a fortiori Limited is not subject to suit in this District.

Second, plaintiff contends that 28 U.S.C. § 1391(d), which states that “an alien may be sued in any district”, provides the authority for this Court’s exercise of personal jurisdiction over Limited. But, as stated hereinbefore, section 1391 is a venue statute and cannot be construed to grant in personam jurisdiction over an alien corporation. See, e.g., Weinstein v. Norman M. Morris Corp., 432 F.Supp. 337, 339 (E.D.Mich.1977).

TRANSFER

In the interests of justice, the plaintiff’s action against Corporation is hereby transferred, under 28 U.S.C. § 1406, to the United States District Court for the Southern District of New York, the appropriate district where the lawsuit could have been brought. With respect to the plaintiff’s case against Limited, the action is dismissed because, based on the present record, there has been an insufficient showing that the lawsuit could have been brought in the Southern District of New York.

SO ORDERED.

      . (b) Every foreign corporation which transacts business in this state in violation of section 33-395 or 33-396 shall be subject to suit in this state upon any cause of action arising out of such business.

      . The plaintiffs reliance on § 33-411(c) also is misplaced. That subsection in pertinent part permits a suit to be brought in Connecticut whether or not the foreign corporation is transacting or has transacted business in this state "on any cause of action arising as follows: (1) Out of any contract made in this state or to be performed in this state....” Even assuming that the plaintiff had business contacts with the State of Connecticut during his six-year employment with Corporation, the plaintiffs causes of action, for the reasons stated hereinbefore, did not arise out of the performance of his contract of employment in this state.


author: BEAM, District Judge.

text:
    Michael M. GARWOOD, Plaintiff, v. AMERICAN MOTORISTS INSURANCE COMPANY, et al., Defendants.
    No. CV 82-0-359.
    United States District Court, D. Nebraska.
    Aug. 16, 1984.

      Van Steenberg, Brower, Chaloupka, Mul-lin & Holyoke, Robert G. Pahlke, Scotts-bluff, Neb., for plaintiff.
    Harold W. Kay, Kay & Kay, North Platte, Neb., for defendants.
   MEMORANDUM

BEAM, District Judge.

This matter came on for trial on May 17, 1984, in North Platte, Nebraska. Evidence was adduced and the case was submitted for decision upon written briefs in lieu of closing argument. This Memorandum will constitute the findings of fact and conclusions of law required by Fed.R.Civ.P. 52(a).

FACTS

On October 9, 1973, plaintiff Michael Garwood, along with some friends, traveled to Camp Blue Springs near Panama City, Florida, to swim. As a result of diving into a pond of shallow water at the Camp, plaintiff suffered severe, permanent injuries. He commenced an action for damages in the United States District Court for the Northern District of Florida in July of 1976. The named defendants were International Paper Company (International), The Gulf Coast Council, Boy Scouts of America (Scouts) and their respective insurers, including American Motorist Insurance Company (American). In the Florida litigation, both International and the Scouts represented, through pleadings and otherwise, that International owned Camp Blue Springs and that the Scouts leased the premises under a long-term lease. This representation was based, apparently, on the fact that the written lease between the parties was dated September 28, 1973, some eleven days prior to the accident.

However, on August 18, 1978, prior to the Florida trial, plaintiff deposed Leva Woodward Pitts (Pitts), a Florida citizen who lived near the Camp. At that time, Pitts, the part-time Camp caretaker, disclosed that the Scouts were not yet in possession of the Camp at the time of the October 9 accident. Further investigation revealed that the lease had actually been signed by the Scouts at a time subsequent to the accident. Within a few days after the Pitts deposition, the Scouts asked leave to amend their pleadings to allege that they were not, in fact, the lessee. They were permitted to do so. Thereafter, upon motion for summary judgment, the Scouts were dismissed from the Florida litigation. By the time of such dismissal, the statute of limitations precluded the assertion of a claim against any other lessee.

For several years, the Camp had been leased to the Millville Dad’s Club (Millville), a Florida non-profit corporation. When it was discovered that the Boy Scout lease postdated the accident, International contended that the Millville lease was in force and effect. Plaintiff apparently did not dispute this contention during the Florida litigation and at the outset of this lawsuit. However, during discovery for this action, a copy of a letter (defendants’ Exhibit 131) dated May 29, 1973, from C.W. Mauldin, President of Millville to Fred Snell, an employee of International, was produced. This letter was referred to by Pitts in his August, 1978, deposition (defendants’ Exhibit 153:12:18-24). It was, apparently, not sought by counsel for the plaintiff during the Florida litigation. The letter states:

May 29, 1973
Dear Mr. Snell,
In the regular meeting of the Millville Dad’s Club on May 15, 1973 the Club voted to relinquish the leas[e] on Camp Blue Springs. We would recommend the Boy Scouts of America be granted the lease. The Club feels it would be of more benifit [sic] to the Scouts for the lease to be in their name rather than work thru the Dad’s Club.
We have enjoyed having the lease for many years and working with the Boy Scouts. We would like to thank International Paper Company for allowing us that privilege.
Sincerely,
C.W. Mauldin
President

Plaintiff now contends, in the alternative, that (a) early misrepresentations that the Scouts were the lessee precluded timely assertion of a claim against Millville or that (b) later misrepresentations that Millville was the lessee precluded proof that International was both the owner and occupant of Blue Springs on October 9, 1973.

In any event, plaintiff went to trial in Florida against International and its insurance carrier. A jury verdict was returned in favor of defendants. The matter was appealed to the United States Court of Appeals for the Fifth Circuit. Judgment for the defendants was affirmed by the Circuit Court. Garwood v. Int’l Paper Co., 666 F.2d 217 (5th Cir.1982). The Fifth Circuit stated:

... Garwood does not contest the district court’s grant of the [Scout’s] motion to amend or the district court’s grant of summary judgment in the [Scout’s] favor.

Id. at 219.

The Circuit also said “[w]hen the evidence is viewed as a whole, no reasonable jury could have concluded that International Paper and the [Millville] Dad’s Club exercised joint control and possession over the Camp.” Id. at 221.

DISCUSSION

By agreement of the parties, the various issues raised in the pleadings in this case were severed for separate resolution. The issue of misrepresentation, if any, was submitted to the Court for preliminary consideration. It was agreed that other issues of fact would or could be submitted to a jury, if necessary, depending upon the outcome of this initial phase of the case.

The elements of fraudulent misrepresentation are essentially the same in Nebraska and Florida. Since all but the initial contact with regard to the Boy Scout lease took place in Florida, the law of Florida will be applied.

“Under Florida law the plaintiff in a fraud action must prove (1) that the defendant falsely represented a specific material fact; (2) that the defendant knew, or should have known, that the representation was false, or that defendant made the representation without knowledge of its truth or falsity; (3) that the defendant intended to induce the plaintiff to act on the representation; and (4) that the plaintiff was [damaged] while acting in reliance on the representation.” Banco Nacional de la Vivienda v. Cooper, 680 F.2d 727, 730 (11th Cir.1982).

First, we deal with plaintiff’s contention with regard to the Boy Scout lease. Although there may be valid argument as to elements (1), (3) and (4), this issue can be. decided by consideration of the evidence adduced with regard to element (2) only. Such evaluation dictates that this claim must be denied.

The United States Court of Appeals for the Fifth Circuit, applying Florida law, stated in Hauben v. Harmon, 605 F.2d 920, 923 (5th Cir.1979) as follows:

Under certain circumstances, an innocent misrepresentation of a material fact, relied on to another party’s detriment, is grounds for rescission of a contract (citations omitted).

This rule is an exception to the usual requirement that knowledge and intent to defraud must be proven. Id. at 924. The Fifth Circuit illuminated the application of the Florida fraud rule in Cameron v. Outdoor Resorts of America, Inc., 611 F.2d 105 (5th Cir.1980) when it said .. Florida law is satisfied by a negligent representation ‘made under circumstances in which the representor ought to have known ... of the falsity thereof.’ ” Id. at 106.

The evidence in this action indicates that International, in good faith, thought that the Scouts were renting the Camp on October 9, 1973. When the deposition of Pitts was taken in 1978, International became aware of the mistake. To find that International, under the circumstances had a duty to go beyond the inquiry it had made at the outset of the action would stretch the scienter requirement in a fraud action, even as attenuated as it may be in Florida, beyond the realm of reason. Such a conclusion is buttressed by the opinion of the District Court of Appeals of Florida in Alexander/Davis Properties, Inc. v. Graham, 397 So.2d 699 (Fla.Dist.Ct.App.1981). The Florida Court more completely defined element (2) as follows:

(2)(a) a knowledge of the representor of the misrepresentation, or
(b) representations made by the repre-sentor without knowledge as to either truth or falisty, or
(c) representations made under circumstances in which the representor ought to have known, if he did not know, of the falsity thereof.

Id. at 706.

In the present case the evidence belies a known misrepresentation. No representation was made without an inquiry as to its accuracy. In addition, under the circumstances, International had no particular reason or duty, prior to 1978, to extend its search for a lessee to someone other than the Boy Scout Council.

As an epilogue, the Court notes that perhaps the Scouts should not have been permitted to exit the Florida action. See Jones v. Ambler Quarry, Inc., 64 F.R.D. 696, 698 (E.D.Pa.1974). That issue, however, was long ago decided, without appeal by the plaintiff, by the United States District Court for the Northern District of Florida.

The next inquiry considers the issue of relinquishment of the lease by Millville. Given the evidence adduced, the Court concludes that there was no misrepresentation in this regard and that the representation that was made was not relied upon by the plaintiff.

It can be persuasively argued that both the Florida District Court and the Fifth Circuit Court have previously decided that Millville was the lessee. This decision was made when the courts concluded that International was not in joint control or possession of the Camp with Millville at the time of the accident. See Garwood, 666 F.2d at 221. In this regard, it is noted that plaintiff explored the possibilities of a lapse of the Millville lease prior to the Florida trial. At the time of the Pitts deposition, the following questions and answers were propounded and given:

Q. Was there a period of time when the Millville Dad’s Club lease ran out before the Boy Scouts lease became effective?
A. No, we, we’d only had it leased about, I believe about 16 years, something like that. I don’t remember just how many years, I don’t remember just when, I think it was in ’58 and there was about, I think somewhere about four years ago they turned it over to the scouts, I’m not sure just how long ago that’s been.
Q. So, between the Millville Dad’s Club and the Boy Scouts there weren’t any other leasers?
A. No, I don’t think so.
Q. Do you know if there was a period of time there after the Millville Dad’s Club lease ran out before the Boy Scouts took it over or was it one right after the other?
A. I don’t think so, not that I know of.
Q. Do you mean by that that you don’t think that there was anybody—
A. I don’t think there was any period of time there.
Q. I’m looking to see if there was a gap in the time sequence.
A. Well, I know, I do remember that the chairman of the club, they had a letter from International that we would turn our lease over to them, that they would let the Boy Scouts have it and we just wrote them, he wrote them a letter that we were turning it back, I don’t know just whether there was a period in there or not before they—
Q. Could there have been a period of time in there?
A. There could have been a short time, very short time, maybe a couple months, maybe a month or two I don’t know.

Defendants’ Exhibit 153 at 11-13.

Accordingly, it is doubtful that plaintiff is in a position to contend that total reliance was placed upon the representations made by International as to the identity of the lessee of the property.

Plaintiff contends that the newly discovered letter (defendants’ Exhibit 131) proves that Millville had relinquished possession of the Camp to International. Plaintiff further contends that the representation by International that Millville was the lessee on October 9, 1973, if false, precluded Mr. Garwood from receiving a trial which included jury instructions defining the proper obligations of an owner in possession of a parcel of real estate. The Court rejects these contentions.

The Millville letter of May 29, 1973 (defendants’ Exhibit 131), does not clearly purport to relinquish the Camp lease prior to the expiration of its term. However, C.W. Mauldin, President of Millville in 1973, testified in his deposition that

in the summer of ’73 we discussed with the Scouts the lease situation and to our knowledge, at that time, we had given up the lease and the Scouts had, International Paper Company had released it to the Boy Scouts of America. I mean that was, the terms of our lease had run through October of that year, but we opted to just get out of the park business and, and turned it back over to the paper company to, and they in turn, leased it to the Scouts, or that was my interpretation of it.

Plaintiff’s Exhibit 73:15:11-19.

The lease (defendants’ Exhibit 125) allows the lessor to terminate the lease by giving six months written notice. The lessee is accorded no specific right of cancellation by the lease. If a reciprocal right is implied, the termination date would extend beyond the date of the accident if the May 29, 1973, letter is presumed to constitute the six months written notice. If no reciprocal right is implied, any termination would have required the mutual agreement of the parties to the lease. Brewer v. Northgate of Orlando, Inc., 143 So.2d 358 (Fla.Dist.Ct.App.1962). In either case, the Millville lease continued in force and effect through October 9, 1973.

Plaintiff points to an insurance certificate supplied to International by the Scouts on August 29, 1973, as proof that International had accepted the Millville relinquishment. While this certificate may be evidence that the lease with the Scouts commenced prior to October 9, 1973, it is not adequate proof that International agreed to a relinquishment of the Millville lease prior to the commencement of the Boy Scout lease, which date was an issue of fact litigated and decided in the Florida action.

International contends that it intended a lease to be in existence with Millville or the Scouts during the whole of 1973. Mr. Gardwood contends, on the other hand, that a “gap” occurred. There is no dispute, however, that a Boy Scout Camporee occurred at Blue Springs in late October, subsequent to Mr. Garwood’s injury. There is no evidence that International sponsored or supervised this event. There is evidence that Mr. Pitts, the Millville caretaker, was present to discuss maintenance problems with Boy Scout officials. There is further evidence that F. Willard Vickery, a Boy Scout executive, in late October or early November 1973, mentioned the retention of Mr. Pitts to perform caretaker services for the Boy Scouts. See defendants’ Exhibit 147. From this, it must be concluded that Millville was still participating in the operation of Camp Blue Springs through the activities of its caretaker Pitts, as late as October 26, 1973, notwithstanding Mr. Mauldin’s deposition testimony. Such facts derogate the contention that the May 29, 1973, letter functioned as an effective relinquishment of the lease or that the parties mutually agreed to such a relinquishment prior to the October 9, 1973, accident.

Since the plaintiff has not established actionable misrepresentation as a predicate to its other claims, this action should be dismissed. An order will issue contemporaneously herewith in accord with this Memorandum opinion.


author: ALLEN SHARP, Chief Judge.

text:
    Cecil COX and William Lawhorn, Petitioners, v. Jack R. DUCKWORTH, and Indiana Attorney General, Respondents.
    No. S 84-296.
    United States District Court, N.D. Indiana, South Bend Division.
    Nov. 27, 1984.
    Cecil Cox, pro se.
    William Lawhorn, pro se.
    David L. Steiner, Deputy Atty. Gen., Indianapolis, Ind., for respondents.
   MEMORANDUM AND ORDER

ALLEN SHARP, Chief Judge.

This petition for writ of habeas corpus was filed pursuant to 28 U.S.C. § 2254 by William Lawhorn and Cecil Cox, inmates incarcerated at the Indiana State Prison in Michigan City, Indiana. The matter is now before this court on respondents’ motion to dismiss, filed as part of their Return to Show Cause. In accord with the dictates of Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), the complete state court record has been filed with, and carefully examined by, this court.

A careful examination of the underlying state court record and the opinion of the Supreme Court of Indiana published at 452 N.E.2d 915 (1983), reveals that petitioners have exhausted their available state court remedies per 28 U.S.C. § 2254(b), (c); Anderson v. Harless, 459 U.S. 4, 103 S.Ct. 276, 74 L.Ed.2d 3 (1982). Both sides having briefed their respective positions, this petition is now ripe for ruling.

Petitioners were convicted in a state court jury trial of Dealing in Cocaine, Class A. Felony, for which they received determinate sentences of 30 years. These convictions were unanimously affirmed on appeal by the Supreme Court of Indiana. Petitioners now bring this petition for federal writs of habeas corpus.

Petitioners raise the following issue in this application for habeas relief:

1. In violation of petitioners’ right to equal protection of the law and to due process of law, guaranteed by the Fourteenth Amendment to the Constitution of the United States, the trial court erred in entering judgment on the verdict finding Lawhorn and Cox guilty of a Class A felony and in sentencing them to 30 years for a Class A Felony when the evidence presented at trial clearly supports a verdict of guilt of a Class B felony.

This is the sole issue presented by both petitioners.

I.

The petitioners, William Lawhorn and Cecil Cox, are state prisoners who were convicted of dealing in cocaine, a Class A felony, by a jury. Each petitioner presents but one ground for relief in their habeas petition. The facts used to support the habeas claim have been set forth by the petitioners as follows:

Supporting Facts: Petitioner was arrested for, charged with, and convicted of dealing in cocaine. The actual drug amount of cocaine involved was 2.3 grams.
He was tried and convicted of a Class A. felony and sentenced to thirty (30) years imprisonment, even as the clear and unambiguous language of the statute is that the amount of the “drug”, which is carefully defined in the statute to exclude food (a filler), must be in excess of 3 grams.
Therefore, petitioner should have been sentenced to a Class B felony, yet ... confronted squarely with the evidence supporting and verifying petitioner’s legal position ... the Indiana Supreme Court refuses to rectify this blatant injustice.

The petitioners’ complaint seems to raise two issues involving the Fourteenth Amendment. The first issue they raise appears to be a due process claim with regard to an Indiana Statute, I.C. 35-48-4-1 (Burns Supp.1982) and the Supreme Court of Indiana’s interpretation of the language contained within that statute. The second claim alleges a violation of the equal protection clause by the Supreme Court of Indiana’s interpretation of the state law.

The Supreme Court of Indiana determined that under the state law a Class A felony occurs whenever a person delivers cocaine, pure or adulterated, which weighs three grams or more. Lawhorn v. State, 452 N.E.2d 915, 917 (1983). The Supreme Court of Indiana held that under its construction of the state statute, that the entire weight of the substance should be considered in determining the class of the crime when the substance delivered contains any cocaine and was meant to be a delivery of cocaine. Id. at 917.

Regarding petitioners’ second claim, they have identified the inequality as being based on whether cocaine was mixed with enough other substance to make an aggregate weight in excess of three grams. Petitioners claim that interpreting the state law as the Supreme Court of Indiana does creates a grave injustice and inequality because the persons who deliver the same amount of pure cocaine may be punished differently where the amount of adulterated substance differs.

The respondents contend that the claims raised by the petitioners basically amount to a challenge to the Indiana Court’s construction of a state statute, and accordingly, the claims do not present any basis for relief in a habeas corpus proceeding.

The Seventh Circuit Court of Appeals in United States ex rel. Hoover v. Franzen, 669 F.2d 433, 436 (7th Cir.1982) has held:

The district court, in ordering habeas relief, based its exercise of power on 28 U.S.C. § 2254, the provision that governs the procedure for habeas relief to state prisoners:
The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.
28 U.S.C. § 2254(a) (1976) (emphasis added). This provision, like the corresponding general jurisdictional grant applying to habeas corpus, limits habeas relief to violations of the Constitution or laws or treaties of the United States. Cases interpreting the habeas corpus statutes have uniformly held that a writ of habe-as corpus can be issued only for a violation of federally protected rights. Cronnon v. Alabama, 587 F.2d 246 (5th Cir.), cert. denied, 440 U.S. 974, 99 S.Ct. 1542, 59 L.Ed.2d 792 (1979); Chance v. Garrison, 537 F.2d 1212 (4th Cir.1976); Israel v. Odom, 521 F.2d 1370 (7th Cir.1975); McCord v. Henderson, 384 F.2d 135 (6th Cir.1967). (footnotes omitted).

In applying § 2254, the Seventh Circuit has repeatedly ruled that interpreting state statutes is not a function of the federal courts in a habeas petition. In United States ex rel. Burnett v. People of the State of Illinois, 619 F.2d 668, 671 (7th Cir.1980) held:

Errors in the interpretation of state authority are for the state supreme court to correct. This court will not take the extraordinarily intrusive action of setting aside a state criminal conviction in the guise of due process review, simply because we disagree with the state court’s interpretation of state law. See Wainwright v. Stone, 414 U.S. 21, 23-24, 94 S.Ct. 190, 192-193, 38 L.Ed.2d 179 (1973); United States ex rel. Waters v. Bensinger, 507 F.2d 103, 104 (7th Cir.1974). Furthermore, the circumstances of this case in no way indicate that the Illinois courts arbitrarily or discriminatorily misread the Illinois law of waiver for the purpose of sustaining the petitioner’s conviction. Cf. Bouie v. City of Columbia, 378 U.S. 347, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1964); NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958).

And in Cramer v. Fahner, 683 F.2d 1376, 1381-1382 (7th Cir.1982), the Court held that the petitioner’s attempt to attack the interpretation by an Illinois court of certain Illinois statutes relating to an indictment for solicitation of murder was improperly brought under habeas review. See also, Engle v. Isaac, 456 U.S. 107, 102 S.Ct. 1558, 1568, fn. 21, 71 L.Ed.2d 783 (1982).

The Eighth Circuit Court of Appeals has more than adequately expressed that the function of habeas relief is not to reinterpret state law in Harkins v. Wyrick, 589 F.2d 387 (8th Cir.1979) specifically citing two Seventh Circuit cases, holding:

Petitioner also argues that the Missouri Supreme Court violated due process by interpreting the State crediting statute, Mo.Rev.Stat. § 546.615, in a manner contrary to its plain language. This argument indicates a misperception of the role of the federal courts in examining habeas corpus petitions of State prisoners. As stated in Israel v. Odom, 521 F.2d 1370, 1376 (7th Cir.1975), “Interpretation of state statutory law is manifestly not a proper function of this court under its habeas corpus jurisdiction. United States ex rel. Little v. Twomey, 477 F.2d 767, 770 (7th Cir.1973). cert. denied, 414 U.S. 846, 94 S.Ct. 112, 38 L.Ed.2d 94.” A federal court may not simply reinterpret State statutes. To do so would impermissibly invade the autonomy and independence of the States. See Erie Railroad Co. v. Tompkins, 304 U.S. 64, 78-79, 58 S.Ct. 817 [822-23], 82 L.Ed. 1188 (1938). This court is bound by the determination of the Missouri Supreme Court as to the meaning and application of a Missouri Statute.

This court must and will follow the plethora of cases requiring this court to defer to the Supreme Court of Indiana’s interpretation of Indiana statutes, particularly in this case, I.C. 35-48-4-1 (Burns Supp.1982) absent some showing of discrimination or arbitrariness.

The Supreme Court of Indiana set forth its rationale for its interpretation of the statute here in question making it abundantly clear in Lawhorn v. State, supra, at 917 the reasons the Court held the way it did. The construction of the Indiana statute was guided by rational principles and thus, does not give rise to a level of discrimination or arbitrariness reviewable by this court in a habeas petition. United States ex rel Burnett v. People of Illinois, supra. The Supreme Court of Indiana was careful of petitioners’ claims recognizing the federal case law requirement of applying the proper test of a rational basis for the statutory interpretation, and applied that test to the case before it. Lawhorn v. State, supra, 917-918.

The petitioners have failed to raise a claim that is reviewable under a habeas petition, or to show this court that the Supreme Court of Indiana interpreted the Indiana statute in a discriminatory or arbitrary manner.

CONCLUSION

The petitioners having failed to present a reviewable issue to this court in their petition for habeas relief, the petition is hereby ordered DISMISSED. SO ORDERED.


author: HUDSPETH, District Judge.

text:
    Miguel ALDANA, Plaintiff, v. CITY OF EL PASO, Civil Service Commission of El Paso, Oneta Marsh, Moises Beltran, Cathy Bell, Arves Jones, Louie Pellicano, Maxine Silva, Luis G. Sosa, Jim Francis, Samuel Navarro, Secretary, Ross Hickock, Roy Davis, and Bud Duncan, Defendants.
    No. EP-83-CA-98.
    United States District Court, W.D. Texas, El Paso Division.
    Dec. 31, 1984.

      Jose A. Medina, Houston, Tex., Garcia & Garcia, El Paso, Tex., for plaintiff.
    Eduardo Miranda, Rodolfo Hernandez, Asst. City Attys., El Paso, Tex., for defendants.
   ORDER GRANTING DEFENDANTS’ MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT

HUDSPETH, District Judge.

This is a suit for damages and injunctive and declaratory relief pursuant to 42 U.S.C. § 1983. Plaintiff Miguel Aldana was employed by the City of El Paso as a truck driver in the Street Department for several years prior to the termination of his employment in 1982. He brought this action against the City, its Civil Service Commission, individual members of the Commission, and his supervisors in the Street Department, contending that he had been deprived of his property interest in continued employment without due process of law. Plaintiff demanded a jury trial with respect to his action for damages. On November 1, 1984, the jury found, in response to special interrogatories, that the Civil Service Commission was not a tribunal possessing impartiality toward the charges against the Plaintiff (Interrogatory No. 1); that certain Defendants acted to deprive Plaintiff of his employment by causing his termination without due process of law, but that other Defendants did not (Interrogatory No. 2); that certain Defendants acted in good faith, while others did not (Interrogatory No. 3); that certain Defendants acted maliciously, wantonly, or oppressively, while others did not (Interrogatory No. 5), and that the Plaintiff was entitled to recover actual damages of $300,000.00 (Interrogatory No. 4), and exemplary damages of $5,000.00 against Roy Davis, $10,000.00 against Ross Hickok, and $5,000.00 against Maxine Silva. The Defendants have moved for a judgment non obstante veredicto or, in the alternative, for a new trial.

The record in this case reflects that, beginning December 31, 1979, the Plaintiff received a series of less than satisfactory performance evaluations from his supervisors, which included Defendant Hickok, head of the Street Department, and Defendant Davis, the Plaintiff’s foreman. Plaintiff saw fit to appeal two of these performance evaluations to the Civil Service Commission, a seven-member body which is basically the City’s highest authority with regard to personnel matters. Both of Plaintiff’s appeals were referred to subcommittees of the Civil Service Commission for investigation. After the second such investigation, in April 1982, Defendant Louie Pellicano, a member of the Commission’s subcommittee, decided to recommend to the full Commission that the Plaintiff either be transferred to another department or that his employment be terminated (Plaintiff’s Exhibit 48, pages 24-25). At a meeting of the full Commission on May 13, 1982, a recommendation was made to the department head that Plaintiff’s employment be terminated (Plaintiff’s Exhibit 50, pages 6-7). The Plaintiff’s employment was terminated, and he was furnished with written notice of the reasons for termination (Plaintiff’s Exhibit 51). Plaintiff appealed the termination of his employment to the Civil Service Commission, which held a hearing on August 3, 1982. After hearing the evidence, the Civil Service Commission voted unanimously to uphold the termination.

In support of their motion for judgment notwithstanding the verdict or for a new trial, the Defendants argue that the jury’s answers to Interrogatories Numbered 1, 2, and 3 are inconsistent. In Interrogatory No. 1, the jury found that the Civil Service Commission of the City of El Paso was not an impartial tribunal with respect to the issue of the termination of Plaintiff’s employment. In Interrogatory No. 2, however, the jury found that only one Civil Service Commissioner, Defendant Maxine Silva, acted to deprive the Plaintiff of his employment without due process of law, and in Interrogatory No. 3 only Commissioner Silva was found not to have acted in good faith. Since the Civil Service Commission is a seven-member body, and can take action only through a majority vote, the Court must agree with the Defendants that the jury’s answer to Interrogatory No. 1 is inconsistent with its answers to Interrogatories Numbered 2 and 3. When faced with apparently conflicting answers, this Court has the duty to reconcile the answers if at all possible and thus validate the jury verdict. Guidry v. Kem Manufacturing Co., 598 F.2d 402, 406 (5th Cir.1979), cert. denied 445 U.S. 929, 100 S.Ct. 1318, 63 L.Ed.2d 763 (1980). It is only when answers cannot be reconciled after a concerted effort that a new trial should be granted. Guidry v. Kem Manufacturing Co., supra.

In this case, the. jury’s finding that the Civil Service Commission was not an impartial tribunal fails to find support in the evidence, and it should be disregarded. As the Supreme Court stated in Hortonville Joint School District No. 1 v. Hortonville Education Association, 426 U.S. 482, 96 S.Ct. 2308, 49 L.Ed.2d 1 (1976) at page 493, 96 S.Ct. at 2314:

“Mere familiarity with the facts of a case gained by an agency in the performance of its statutory role does not however, disqualify a decisionmaker.... Nor is a decisionmaker disqualified simply because he has taken a position, even in public, on a policy issue related to the dispute, in the absence of a showing that he is not ‘capable of judging a particular controversy fairly on the basis of its own circumstances.’ ”

In the instant case, the evidence fails to show that any member of the Civil Service Commission had a personal or financial stake in the decision that might create a conflict of interest, or that the Commission members bore any personal animosity toward the Plaintiff. He was afforded a full and fair hearing with regard to his termination which more than complied with the minimum constitutional requirement of due process. The conclusion that the jury’s answer to Interrogatory No. 1 should be disregarded is bolstered by the answers to Interrogatories Numbered 2 and 3, which answers are obviously inconsistent with the answer to Interrogatory No. 1. Since Mrs-. Silva alone, without the support of her fellow Civil Service Commissioners, could not have caused the termination of Plaintiff’s employment, she is entitled to judgment in her favor.

Apart from Mrs. Silva, Defendants Hickock and Davis were found by the jury in its answer to Interrogatory No. 2 to have caused the termination of Plaintiffs employment without due process of law. This finding is contrary to the evidence. The record makes it clear that Defendant Hickock, the department head, acted to terminate the Plaintiffs employment only after the Civil Service Commission recommended termination on May 13, 1982. Furthermore, as previously noted, Plaintiff was afforded a hearing with respect to his termination that fully complied with the requirements of due process. Therefore, no action by Hickock. or Davis deprived the Plaintiff of a property interest without due process of law. Defendants Hickock and Davis are therefore entitled to judgments in their favor.

It is therefore ORDERED that the Defendants’ motion for judgment notwithstanding the verdict in the above-styled and numbered cause be, and it is hereby, GRANTED.

It is further ORDERED that judgment be entered in favor of the Defendants, and that the Plaintiff take nothing by his suit.


text:
    UNITED STATES of America, Plaintiff, v. Robert WILSON, Jr., Defendant.
    Crim. A. No. 3:84-00173.
    United States District Court, M.D. Tennessee, Nashville Division.
    Jan. 10, 1985.
    Ross Alderman, Asst. U.S. Atty., Nashville, Tenn., for plaintiff.
    William B. Bruce, Bruch, Weathers & Dughman, Nashville, Tenn., for defendant.
   MEMORANDUM OPINION, ORDER AND DIRECTION

NEESE, Senior District Judge, sitting by Designation and Assignment.

The defendant Mr. Robert Wilson, Jr. moved herein for an order of entry of a judgment of acquittal as to both counts of the indictment after the evidence of the prosecution was closed and again after his own evidence was closed. Rule 29(a), F.R. Crim.P. The Court reserved decision on the motion at the close of all the evidence and submitted the case to the jury. Rule 29(b), F.R.Crim.P.

The jury found the defendant not guilty as charged in count 1 and guilty as charged in count 2 of the indictment. The Court now considers such guilty verdict especially in the light of United States of America, plaintiff-appellee, v. Herbert Collins Beverly, defendant-appellant, 750 F.2d 34 (6th Cir.1984).

The finding of the jury on count 2, supra, indicated its findings that Mr. Wilson, Jr., was a convicted felon, who possessed within this District on June 7, 1984 a certain firearm which had moved previously in interstate commerce. 18 U.S.C.App. § 1202(a)(1). Only “ * * * ‘[i]f the evidence [wa]s such that a reasonable mind might fairly [have] f[ound] guilt beyond a reasonable doubt,’ * * *” was the defendant not entitled to an order of entry of a judgment of his acquittal. Id., 750 F.2d at 36.

The salient evidence reflected:

The subject firearm was manufactured in Connecticut and was in Tennessee on June 7, 1984. Mr. Wilson, Jr. had been convicted January 15, 1980 of a felony in no. 79-30179, this District and Division.

The subject firearm was and is owned by Mr. Marvin J. Gooch, the son of the defendant’s wife, he having acquired it “a year or more * * *” before June 7, 1984. Mr. Gooch resided at times with his mother and stepfather and at times at another address with his maternal grandmother, Mrs. Betsy Gooch.

Mrs. Gooch refused Mr. Gooch permission to keep the subject firearm upon her premises, and he then prevailed upon his mother to keep it for him. It was stored by her initially in a residence formerly occupied by her, her husband and two daughters, and was moved subsequently prior to June 7, 1984 to the 2-story townhouse-type apartment into which the Robert Wilsons moved.

Each of the 17-year-old daughters of Mr. and Mrs. Wilson, Jr. occupied a bedroom-bathroom suite in the latter residence, and the third bedroom on the second floor thereof was occupied jointly by Mr. and Mrs. Wilson, Jr. When Mr. Gooch was in residence with them, he slept-on a couch in the living-room of the dwelling.

Upon its removal, Mrs. Wilson stood the subject shotgun on end in a corner of the closet of the bedroom occupied jointly by her and her husband, and it was kept covered by a bedsheet. There it was found and seized on June 7,1984 during the execution of a search-warrant for the premises by Mr. Charles D. Lowe, an agent of the bureau of alcohol, tobacco and firearms of the Treasury Department.

Both Mr. and Mrs. Wilson, Jr., upon inquiry, told Agent Lowe that they occupied such bedroom jointly and utilized such closet jointly and that the weapon discovered therein belonged to her son, Mr. Gooch. All the foregoing evidence was uncontro-verted, and it is patent that the jury inferred therefrom inter alia that the defendant Mr. Wilson, Jr. was in “possession” of the firearm.

As summarized in the Beverly decision, supra:

[possession may be either actual or constructive and it need not be exclusive but may be joint. * * * Actual possession exists when a tangible object is in the immediate possession or control of the party. Constructive possession exists when a person does not have actual possession but instead knowingly has the power and the intention at a given time to exercise dominion and control over an object, either directly or through others. * * * Both actual possession and constructive possession may be proved by direct or circumstantial evidence. It is not necessary that such evidence remove every reasonable hypothesis except that of guilt. * * *

Id., 750 F.2d at 37.

No witness testified that the defendant Mr. Wilson, Jr. was ever at any time in the “ * * * immediate possession or control * * * ” of the subject firearm. It is clear, however, that the jury inferred from the foregoing facts and circumstances that Mr. Wilson, Jr. “ * * * knowingly had the power and the intention * * * [on June 7, 1984] * * * to exercise dominion and control over * * * ” the subject firearm, “ * * * either directly or through others. * * * ” Id.

It is obvious that at all pertinent times Mr. Gooch, through his mother Mrs. Wilson, was in constructive possession of the subject firearm and that she was also constructively possessed of it. It is undisputed in the evidence and inferrable reasonably in addition that Mr. Wilson, Jr. shared jointly with his wife constructive possession of the apartment their family was occupying as well as of the bedroom and closet Mr. and Mrs. Wilson, Jr. occupied and utilized.

It follows that any constructive possession by Mr. Wilson, Jr. of the subject firearm was joint with either his wife Mrs. Wilson or his stepson Mr. Gooch. There was no circumstantial evidence at all to support an inference that the defendant Mr. Wilson, Jr. shared constructive possession of the subject firearm with Mr. Gooch.

The only circumstances claimed by the prosecution as supportive of an inference that the defendant Mr. Wilson, Jr. shared constructive possession of the subject firearm with his wife Mrs. Wilson were their joint occupancy for sleeping purposes and otherwise of their common bedroom and their joint utilization of its contiguous closet. In this regard, “ * * * possession of [a] residence is insufficient to establish possession of all the contents of the house * * United States v. Craven, 478 F.2d 1329, 1333-1334[7] (6th Cir.1973), cert. den., 414 U.S. 866, 94 S.Ct. 54, 38 L.Ed.2d 85 (1973), reh. den., 414 U.S. 1086, 94 S.Ct. 606, 38 L.Ed.2d 491 (1973); contra: United States v. Apker, 705 F.2d 293, 309[17] (8th Cir.1983), cert. den., 465 U.S. 1005, 104 S.Ct. 996, 79 L.Ed.2d 229 (1984); see also and cf. as contra: United States v. Alverson, 666 F.2d 341, 345[2] (9th Cir.1982), and United States v. Smith, 591 F.2d 1105, 1107 (5th Cir.1978).

“ * * * It is fundamental to our system of criminal law that guilt is individual. * *” Delgrado v. United States, 327 F.2d 641, 642 (9th Cir.1964). In the situation sub judice, that means that there must have been sufficient evidence to support the jury’s finding that the defendant Mr. Wilson, Jr. shared constructive possession of the subject firearm with his wife; in other words, that he also had on June 7, 1984 “ * * * knowingly the power and the intention to exercise dominion and control over * * * [the subject firearm], either directly or through others. * * * ” United States of America v. Herbert Collins Beverly, supra.

The prosecution’s theory presented to the jury seems to have been that the proximity of the defendant Mr. Wilson, Jr. to the subject firearm for “ * * * a year or more * * * ” in the closet he utilized jointly with his wife and his omission, when he discovered eventually the presence of the firearm, to cause its removal from his premises, permitted the jury to infer his constructive possession thereof jointly with his wife. But, “ * * * mere proximity, standing alone, was insufficient to sustain a conviction * * United States v. Daniels, 527 F.2d 1147, 1151 (6th Cir.1975), citing (on this point) United States v. Gates, 491 F.2d 720 (7th Cir.1974); and 18 U.S.C.App. § 1202(a)(1), supra, cast no burden upon the defendant to do more than not possess a firearm after he became a felon, Scarborough v. United States, 431 U.S. 563, 577, 97 S.Ct. 1963, 1970, 52 L.Ed.2d 582 (1977) (“the essence of Congress’ intent * * * [is the] * * * striking at the possession of weapons by people ‘who have no business possessing [them].’ 114 Cong.Rec. 13869 (1968).”)

Thus, under the applicable law and the facts herein, a reasonable mind would not have inferred from the evidence adduced that the defendant Mr. Wilson, Jr. shared jointly with his wife the constructive possession of the subject firearm and have found consequently his guilt beyond a reasonable doubt. Therefore, the verdict of the jury on count 2 of the indictment herein hereby is SET-ASIDE, and the clerk will enter a judgment of acquittal of the defendant Mr. Robert Wilson, Jr. on such count 2 and provide that he is released from custody herein. Rule 29(b), supra.


text:
    NORTHLAND INSURANCE COMPANY, Plaintiff, v. HECK’S SERVICE COMPANY, INC., Defendant.
    No. J-C-83-73.
    United States District Court, E.D. Arkansas, Jonesboro Division.
    Jan. 29, 1985.
    Barber, McCaskill, Amsler, Jones & Hale, Little Rock, Ark., for plaintiff.
    Joe M. Rogers, West Memphis, Ark., for defendant.
   ORDER

HENRY WOODS, District Judge.

Plaintiff Northland seeks a declaratory judgment that its policy of insurance does not cover an event in which a vehicle in defendant Heck’s custody was damaged. The parties stipulate to the following facts: Northland issued to Heck’s a “Basic Automobile Liability and Physical Damage Policy,” number NL-164905, covering the period from February 6, 1981, to February 6, 1982. That policy carried two endorsements, an “Endorsement for Motor Carrier Policies of Insurance for Automobile Bodily Injury and Property Damage Liability under Section 215 of the Interstate Commerce Act”, (Form B.M.C. 90), and an “Endorsement for Motor Carrier Policies of Insurance for Public Liability Under Sections 29 and 30 of The Motor Carrier Act of 1980”, (MCS-90). In January, 1982, Heck’s, in the course of its business, towed a vehicle owned by Eckler, and the Eckler vehicle was allegedly damaged by Heck’s during the course of the towage. Eckler sued Heck’s for the property damage allegedly caused by Heck’s, and Heck’s demanded that Northland defend the suit under the policy described above. Northland then filed this action for declaratory judgment, seeking a declaration that it has no liability to Heck’s under the terms of the policy in question. The parties agreed to submit the case to the Court on briefs, and the matter is now ripe for decision.

Three issues are raised by the parties. First, does the policy itself exclude coverage for the alleged property damage by its terms? Second, if coverage is excluded by policy language, is that exclusion waived by the ICC endorsements to the policy? And third, if there is coverage, should Northland be required to pay reasonable attorney’s fees to attorneys selected by Heck’s in the defense of the suit by Eckler? This Court finds that Northland is required to defend Heck’s under the terms of the insurance policy in question, but that resolution of the issue of whether coverage for any property damage exists must await the outcome of Eckler’s suit against Heck’s. This Court further finds that it is appropriate for Northland to reasonably reimburse an attorney chosen by Heck’s for the defense provided, rather than for an attorney of Northland’s selection to provide that defense. The reasons for these findings are discussed separately.

Northland claims that the insurance policy in question excludes coverage for any damage to Eckler’s vehicle which might have been caused by Heck’s, and therefore it has not duty to defend Heck’s against Eekler’s suit. The policy language relied upon by Northland to support this claim is contained in paragraph 1(d) of Section A of the policy:

Exclusions: This insurance does not apply: (d) to property damage to (1) property owned or being transported by the insured, or (2) property rented to or in the care, custody or control of the insured or as to which the insured is for any purpose exercising physical control. ...

Heck’s argues that this clause in the policy does not relieve Northland of the obligation to defend the suit against it by Eckler’s, because it could develop at trial that the property damage alleged to have been caused by Heck’s occurred prior to Heck’s exercising any control over the property, or after such control was relinquished. The position of Heck’s is supported by Arkansas law. Where it is possible that the damage may be proven to have been caused by the negligence of the insured before or after the property is in the care, custody or control of the insured, the normally controlling allegations of the complaint do not determine the obligation of the insurer to defend. Employers M.L. Ins. Co. of Wis. v. Puryear Wood Pr. Co., 247 Ark. 673, 447 S.W.2d 139 (1969). The “insurer’s obligation to defend may be broader than its duty to indemnify, because situations can exist where the insurer’s duty to defend cannot be determined solely from the pleadings.” Mattson v. St. Paul Title Co. of the South, 277 Ark. 290, 641 S.W.2d 16 (1982). I believe this is such a case. There may ultimately be no duty for Northland to indemnify Heck’s, but that will depend upon the outcome of the Eckler suit. There definitely is a duty to defend that suit.

Regarding defense of the Eckler suit, Heck’s argues that it should be allowed to choose its own attorney, because there would be an inherent conflict of interest in any attorney selected by Northland to represent Heck’s. The source of this conflict is the “care, custody or control” clause of the policy quoted above. As Heck’s points out in its brief, the policy in question would not cover damage arising while Eckler’s vehicle was under Heck’s care, custody or control, but would cover damage arising from Heck’s negligence before or after the vehicle was under its care, custody, or control. It would therefore be to Northland’s benefit to defend the case on a bailment theory, and to Heck’s benefit to defend on a negligence theory. In order to effectuate Northland’s duty to defend Heck’s, Heck’s must be allowed to select its own legal counsel for defense of the Eckler suit. See U.S. Fidelity & Guaranty Co. v. Louis A. Roser Co., 585 F.2d 932 (8th Cir.1978). Northland is hereby directed to reimburse Heck’s counsel for a reasonable attorney fee in defense of Eckler’s suit.